I am preparing for FH and I want to seek a costs order against my ex due to his litigation misconduct. He has failed to negotiate with open offers (no response to my open offers, not even acknowledged), failed to respond to my questionnaire, resulting in the issue of 2 schedules of deficiencies and request for penal notice, and has unreasonably pursued aspects of his financial remedy claim. I understand I have to make it clear to his solicitor that I intend to pursue costs, is there a draft letter or template available? If not do I set out in the letter to the solicitor what I consider the litigation misconduct to be? I am aware I need to complete form N260.
Are you represented by a solicitor? If not what costs do you intend to claim?
Costs orders are rare in family proceedings and usually only made when a party unreasonably fails to accept or reject an open offer that is bettered at final hearing.
Failing that it is possible to obtain an order for costs of an application such as the penal application you sought. If that issue wasn't determined or an order was made that did not include a costs order, you cannot claim one now.
There is no template letter or draft - each matter is judged on its merits so you would have to put forth an argument why a costs order is made in accordance with the Family Procedure Rules. The Practice Direction to Part 28 is useful:
Parties who intend to seek a costs order against another party in proceedings to which rule 28.3 applies should ordinarily make this plain in open correspondence or in skeleton arguments before the date of the hearing. In any case where summary assessment of costs awarded under rule 28.3 would be appropriate parties are under an obligation to file a statement of costs in CPR Form N260."
The guidance for obtaining a costs order is set out in FPR Part 28.3 which has a lot of escape clauses (see extract below).
For instance, the starting point is that there is no costs order and to overcome that you have to demonstrate litigation conduct. Even if you can do that, the financial effect on the parties is taken into account - this is not a problem where the parties are rich in assets but if the assets are limited the court's determination at final hearing may be such that a costs order will unbalance the carefully crafted financial settlement.
In essence, getting a costs order is difficult but giving notice of your intention to pursue one can help focus the other side's mind.
Extract from FPR 28.3
"(5) Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
(6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).
(7) In deciding what order (if any) to make under paragraph (6), the court must have regard to –
(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;
(b) any open offer to settle made by a party;
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;
(e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant; and
(f) the financial effect on the parties of any costs order."
With the help of this site I have done the vast majority of the work myself, but I am using a solicitor on an adhoc basis and I have incurred solicitor’s fees and counsel’s fees.
My first open offer was 18 months ago and my latest open offer 3 months ago, both were ignored. My ex’s legal costs at FDR we’re £10k, his WP offer post FDR was equal to his combined costs and my original offer. In conference with counsel it was suggested on this basis I might be able to claim my costs. Elements of his claim are without merit. So far my costs and my open offer fall below his WP offer, which is why I haven’t yet agreed a settlement.
As a LiP I understand I can also claim for my time spent chasing replies to questionnaires and issuing schedules of deficiencies? His solicitor only responded to the schedule of deficiencies on the day I applied for the penal notice, so an order was not made.
Many thanks for your advice Charles. I am drafting my S25 statement and I am including in it my proposals for settlement. I want to include that I would like to court to make a costs order, in view of the Applicant’s litigation misconduct. Is it sufficient to say a costs order in the sum of £XXX and form N260 will be filed before the hearing or do I need to set out in the S25 statement how the costs have been calculated?