Costs in family cases: who pays, costs estimates and court fees

What costs mean in a family case

Costs are the legal costs of a case, such as lawyers' fees, court fees and expert fees. A costs order says one party must pay some or all of another party's costs.

Rule 28.1 of the Family Procedure Rules lets the court make any costs order it thinks just. Rule 28.2 applies parts of the civil costs rules to family cases.

The civil rule that the unsuccessful party usually pays is not one of the parts applied. Under the civil rules, if an order does not mention costs, the general rule is that no party is entitled to costs for it.

Costs in children cases

Costs orders between parents in children cases are unusual. The Supreme Court described the general practice in a 2012 case known as Re T.

The court explained that this practice applies most fully to cases between parents and other relatives. It said a costs order is not usually made unless a party's conduct has been reprehensible or their stance unreasonable.

Practice Direction 3A adds that if the court allows time for non-court dispute resolution, a party's failure to attend may be considered on costs.

The general rule in financial cases

In most financial remedy cases, rule 28.3 sets a general rule. The court will not order one party to pay another party's costs.

The court can depart from this where it is appropriate because of a party's conduct in the proceedings, before or during them. Practice Direction 28A says only litigation conduct can justify this.

The general rule does not apply to every financial application. Interim applications, applications to set aside an order and Schedule 1 applications for children follow the wider civil costs discretion instead.

What the court looks at on conduct

Rule 28.3(7) lists what the court must consider when deciding whether to make a conduct costs order.

1. Any failure, without good reason, to attend a MIAM or non-court dispute resolution.
2. Any failure to follow the rules, a court order or a practice direction.
3. Any open offer to settle made by a party.
4. Whether it was reasonable to raise, pursue or contest a particular allegation or issue.
5. How a party has pursued or responded to the application or an issue.
6. Any other relevant conduct in the proceedings.
7. The financial effect of a costs order on the parties.

Open offers and without prejudice offers

An open offer is one the court can see. A without prejudice offer is one made on the basis that it will not be shown to the court.

Rule 28.3(8) says offers that are not open cannot be used at any stage, except at the Financial Dispute Resolution appointment. Practice Direction 28A says this includes offers marked without prejudice save as to costs.

Practice Direction 28A also says the court will generally treat a refusal to negotiate openly and reasonably as conduct it may consider for costs.

Forms H and H1: costs estimates

In a financial remedy case, each party files a costs estimate before hearings. This applies whether or not you have a lawyer. Practice Direction 9A gives a statement of truth for people without a lawyer.

Form H gives your costs to date and, at some hearings, the costs you expect next. Form H1 gives full details of all costs before the final hearing. It helps the court take account of each party's costs when deciding the financial order.

You bring a copy of the form you filed to each hearing. The amounts are recorded in the court order.

Costs for a litigant in person

If the court orders another party to pay your costs as a litigant in person, rule 46.5 of the Civil Procedure Rules applies. Family Procedure Rule 28.2 applies it to family cases.

You can claim for time reasonably spent on the case. If you can prove financial loss, such as lost earnings, you can claim that loss. If you cannot, Practice Direction 46 sets an hourly rate, currently £24 per hour.

You can also claim disbursements, which are expenses such as court fees. Apart from disbursements, the total cannot exceed two-thirds of what a lawyer would have been allowed.

To prove financial loss, Practice Direction 46 says to give the court your written evidence. You serve a copy on the other party at least 24 hours before the hearing.

The statement of costs

When the court decides the amount of costs at the end of a hearing, this is called summary assessment. A party seeking costs files a statement of costs on the civil form N260.

Practice Direction 28A says a party who intends to ask for costs in a financial case should usually make this clear beforehand. This can be in open letters or in a written argument before the hearing.

This guide explains the procedure only. Whether a costs application is suitable in a case is a question for legal advice.

Court fees and help with fees

Court fees are separate from legal costs. GOV.UK's family court fees list (EX50) sets the current amounts. Some examples are below.

You may get help paying court fees if you are on benefits or a low income. The help with fees guide explains the EX160 form and the limits.

1. Application for a financial order, other than by consent: £321.
2. Application by consent for a financial order: £62.
3. New application under the Children Act 1989, such as a C100: £270.
4. Application on notice within a case where no other fee applies: £195.
5. Application by consent or without notice where no other fee applies: £62.

Key dates

1. At least one day before every financial hearingFile and serve Form H with your costs to date.Source: r 9.27(1) ↗ (external source, opens in a new tab)
2. At least one day before the First AppointmentForm H also estimates your costs up to the FDR if there is no settlement.Source: r 9.27(2) ↗ (external source, opens in a new tab)
3. At least one day before the FDRForm H also estimates your costs up to the final hearing if there is no settlement.Source: r 9.27(3) ↗ (external source, opens in a new tab)
4. At least 14 days before the final hearingFile and serve Form H1 with full details of all costs.Source: r 9.27(4) ↗ (external source, opens in a new tab)
5. At least 24 hours before a costs hearingA litigant in person claiming financial loss serves their written evidence of it.Source: official page ↗ (external source, opens in a new tab)