Entering litigation through the Court in Family matters comes with many risks. The issue of costs is a significant one.
In our experience and following usual practice and procedure, the Court’s power to make costs orders against one party to repay all or some of the other party’s legal costs is, for the most part, reserved in matrimonial and family proceedings for instances where the paying party has failed to meet or comply with certain procedural requirements. The Court will sometimes make an interim costs order against a party if their conduct has effected a particular section of the proceedings or the effectiveness of a particular Court hearing. This means that generally the Court will not make a final costs order and the parties to the proceedings will otherwise each bear their own legal costs of the proceedings, whatever the final outcome of those proceedings.
And yet, we have now seen a recent decision of the Appeal Court whereby the Judge, Mr Justice Mostyn, has dismissed an appeal application by a mother who was seeking greater contribution from the father of their child to the school fees for their 17 year old son, and whereby the Judge made an order against the mother that she pay £13,000 towards the father’s costs.
In his judgment, Mr Justice Mostyn highlighted that the parties’ costs liabilities “completely dwarf the sums” that the parties were arguing about. He expressed his concern that:
Time and again judges point out the madness of litigating in this way; and time and again their admonitions fall on deaf ears. At the end of the day all we can do is to express concern about such extreme folly, and if it is ignored then the parties will have to live with, and take responsibility for, the consequences of their decisions.
While the Court’s costs decision turned on the Judge’s considerations of how the Court should treat costs in certain types of proceedings under the presiding legislation, the case confirms the Court’s discretion to make such costs orders, which are likely to have considerable impact on the net effect of any outcome of the case.
Although Mr Justice Mostyn concluded that ‘mercy’ requires that costs be paid in instalments, this would perhaps have been of little comfort to the mother against whom the costs order was made, and reminds us of the need to carefully consider whether to proceed to Court and how far to progress the litigation in the light of developments in the proceedings and the inherent risk as to costs.