The importance of good litigation conduct

A recent High Court case illustrates very clearly the need for good conduct of parties during family court proceedings.

In the case of DH v RH, the wife was ordered to pay a significant sum towards her husband’s substantial costs.

The husband accused the wife of ‘wanton and reckless dissipation of assets’ through her pursuit of litigation and a serial failure to comply with court orders. The wife had failed to comply with at least 50 individual orders made by the court during the case, and was said to have engaged in a ‘zealous and unremitting search for assets she believed to be undisclosed’. She was also accused of behaviour during the hearing that was ‘disruptive and caused considerable delay’ to the conclusion of the final hearing, which also increased costs. She was ordered to pay an eye-watering £255,000 towards the ‘monumental sums’ that had been incurred in the husband’s litigation.

The family court has a discretion to order for costs within family proceedings, obligating one party to pay towards the other’s costs. Although the general rule is that each party will be responsible for their own costs, the Family Procedure Rules allow the court to make an order for costs if it is deemed just, for example, if one party has acted unreasonably through the proceedings or court process.

There is a list of factors that the court may consider when assessing the conduct of the parties which includes:

  • Any open offers to settle i.e. where a reasonable offer made in an attempt to settle claim has been rejected. However any “without prejudice” proposals are not admissible within the court proceedings and will not be taken into account when assessing whether a Costs Order should be made.
  • A refusal of one party to negotiate reasonably and responsibly.
  • A failure by any party to enter into non-court dispute resolution (known as alternative dispute resolution or ADR) such as mediation.
  • A failure to comply with the court rules regarding family litigation.
  • The manner in which a party pursues or responds to a particular allegation or issue.
  • Any other aspect of the party’s conduct in relation to the proceedings which the court considers relevant.

Whilst Cost Orders in Children Act proceedings are rare, changes to the rules over recent years have opened the doors for more judges determining Financial Claims on divorce to award costs, particularly where there has been a failure to negotiate or mediate. There has been a general trend towards more Cost Orders being granted.

It is really important to keep a close eye on costs when conducting litigation, to ensure they are not being incurred unnecessarily or disproportionately to the issues and assets involved. It is also important to ensure that you are complying with the myriad of court rules, procedures and practice directions, to avoid criticism of poor litigation conduct, that could lead to a costs penalty.

Good legal advice and assistance throughout family litigation is vital if you are to avoid a Costs Order being made against you. Even where one party is unrepresented, having chosen to conduct the litigation in person, they can still  be ordered to pay towards the other party’s costs. Indeed, they are probably far more at risk because of their lack of knowledge of the court rules and good litigation practices.

At Staffordshire Family Law, we can guide you through the family proceedings to minimise the risk of a Costs Order. Wherever we believe there is a risk in pursuing a particular course of action or line of argument, we will advise you accordingly. We also keep you advised throughout the conduct of your case so that you can consider the cost benefit analysis i.e. whether the costs being incurred are proportionate to the benefit that you will achieve.

If you do wish for assistance with family proceedings, please feel free to contact our office on 01785 336617 to arrange an initial free appointment to speak with one of our advisers.