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Costs in Family Proceedings

FROM £67.50

A concise but comprehensive and authoritative guide to the law, precedents and practice of costs and funding in all family proceedings.

"... Our library here will stock this book. Family practitioners should in my view expect that all family judges will want to work from it. There is nothing to suggest that the fast movement of the subject over the last 10 years will stall. The book will, I believe, proceed through a number of editions and I feel honoured to have been associated with the first ..."

Foreword by Lord Wilson

Costs in Family Proceedings is a concise but comprehensive and authoritative guide to the law, precedents and practice of costs and funding in all family proceedings.

Whether you want a clear exposition of the three different regimes for family costs, or are looking for information in a particular area such as arbitration costs, public funding, wasted costs or any other of the many costs issues that can arise in family proceedings this book is designed to answer your questions and to help you find the information you need. In his Foreword Lord Wilson describes the book as "magisterial" and comments upon its weight, breadth and value, in respect to the subjects it covers. He commends the book for use by family judges. It is a book that no family lawyer or costs draftsman can afford to be without.

Elderly Clients podcastListen to the podcast or watch the short video - Francis Wilkinson and Dr Sara Hunton, authors of Costs in Family Proceedings, discuss the reasons why a text book covering every day costs issues that arise in family proceedings is an essential addition to your Family Law library.
1. Family Proceedings: Definition and Powers
2. The Clean Sheet
3. Costs in Financial Remedy Proceedings
4. Costs in Other Types of Proceedings
5. Other Forms of Costs Orders
6. Non-Party Funders and the Liabilities of Non-Parties
7. Public Funding
8. Assessment of Costs
9. The Costs of Enforcing Orders and Enforcement of Costs Orders
An appreciation by Phillip Taylor MBE and Elizabeth Taylor, Richmond Green Chambers
Read the full review

"'It is extraordinary' writes Lord Wilson in his foreword to this book, 'that until now, there has been no authoritative text on costs in the specific context of family proceedings.'

So much to the relief, we would assume, of family practitioners everywhere. this hitherto awkward situation has been rectified with the recent publication of this new title from the Family Law imprint of Jordan Publishing. 

And as Lord Wilson also points out, this is a book that no family lawyer or cost draftsman can afford to be without. It is also to be commended, he says, for use by family judges, adding that costs are the one, and only, feature that crop up to a greater or lesser extent in every type of family proceedings. Curious this, then, in view of the authors' affirmation that 'ordinarily little time is spent in family proceedings on costs issues.'! ..."
Review by Sarah Phillimore, Barrister, St John's Chambers
"Only a few weeks ago my initial response to being asked to review a book on costs in family proceedings, would be to expect a slim volume, so accustomed are family lawyers to the mantra of 'no order as to costs'. However, recently I was successful - to my surprise - in obtaining a 50% costs order for a client in a private children matter. So I approached the topic with renewed interest. This volume deals with a wide variety of issues and analysis, as is to be expected when reflecting on the enormous variety of family proceedings, from adoption to abduction to financial discovery. This variety has, equally unsurprisingly, led to a 'richly varied' set of rules for costs with which I suspect many practitioners would admit they are unfamiliar. 

These 'richly varied'rules are set out in nine chapters which demonstrate a useful analysis in both breadth and depth. There is a helpful Appendix of Statutes, procedural rules and practice directions. The first two Chapters deal with general definitions and principles and set out the three available costs regimes in family cases; costs follow the event, a clean sheet and no order as to costs. 

As a primarily care practitioner I am afraid I skipped lightly over those chapters focusing on financial proceedings - but I am intrigued to note in Chapter 3 that 'proceedings for a financial remedy ... are not the same thing as "financial remedy proceedings" as defined at FPR r 2.83 for the purpose of costs ...' In the unlikely event that I ever find myself needing an opinion on either a Sears Tooth or Conditional Fee agreement, then I will make this book my first port of call.

For the legal aid family lawyer, Chapter 7 deals particularly with the issue of public funding and is a clear overview of the landscape after LASPO 2012, including consideration of such issues as the statutory charge 'prior authority' and costs against publicly funded parties. Care proceedings rarely bring up issues of costs - but this means that when they do, practitioners are often unfamiliar with the issues and would welcome an accessible 'way in'. For example, I had managed to ignore the statutory charge for many years until a recent application under the Human Rights Act 1998 for damages, bought this issues back into sharp focus and this volume would have been an ideal source of initial information. 

The final chapters deal with assessment of costs and enforcing of costs orders - issues which may often get little or no thought in the heat of litigation but which every family lawyer ought to have at least a passing familiarity.

The authors themselves note that theirs is a 'Cinderella subject' being both neglected and ignored but requiring greater recognition in light of recent substantial changes to the costs terrain. Their intention is to explain and illuminate the different costs regimes in family proceedings - to make us 'fearless as to costs'. Do they succeed? I do not think that costs will ever be a subject about which I am 'fearless' but this is certainly an excellent book to bring anxiety levels down to acceptable levels."

There is only one feature which crops up, to a greater or lesser extent, in every type of family proceedings: costs. No order can be sought or opposed without incurring an element of costs. It is, so I belatedly realise, extraordinary that until now there has been no authoritative text on costs in the specific context of family proceedings.

Yet I confess that, on receipt this week of the proofs of Francis Wilkinson’s and Sara Hunton’s book, I was amazed by its size. ‘But surely nowadays it’s almost always just “no order” as to costs’, I said to myself. My reaction betrayed a serious lack of imagination. The fact that one party in family proceedings is rarely ordered to pay the costs of another party in no way diminishes the importance of costs or the problems which they present to the courts as well as to the litigants.

This is a magisterial book. We can see what it contains in the list of chapters or, better still, by dipping into it, as I have done. The early chapters indeed address the limited scope for orders for costs between parties. I now believe that the abolition in 2006 of the right to refer to a Calderbank offer in relation to the costs of financial remedy proceedings was beneficial: a judge’s previous duty to give effect, following judgment, to reasonable Calderbank offers often demolished his construction within the judgment of the parties’ future economy; and it is insulting to our still excellent family judiciary to consider that they will assume uncritically an applicant’s open offer to be too high or a respondent’s to be too low.

But look also at the later chapters: costs allowances, security for costs, Sears  Tooth deeds, other funding arrangements, wasted costs, legal aid, pro bono representation, court fees, indemnity costs, assessment of costs and enforcement of costs. These and other subjects explain the weight, the breadth and the value of the book.

Our library here will stock this book. Family practitioners should in my view expect that all family judges will want to work from it. There is nothing to suggest that the fast movement of the subject over the last 10 years will stall. The book will, I believe, proceed through a number of editions and I feel honoured to have been associated with the first.

Nicholas Wilson

Parliament  Square, 9 October 2015
A Cinderella subject is one that is ‘undeservedly neglected or ignored’ and one that ‘unexpectedly achieves recognition or success after a period of obscurity and neglect’. Costs in family proceedings fit both these definitions. The question of how family cases are paid for has recently received statutory, judicial and professional attention so that the costs terrain has become varied and partly unexplored. Whether coping with the restrictions on legal aid, getting litigation loans, investigating cheaper alternatives to court proceedings, the limits of the court’s powers on public funding, or just trying to get the other side to pay, recent changes have been substantial. The Law Commission is investigating the enforcement of family court orders and the Secretary of State is looking for further economies in the context of two-tier justice – those who can afford it and those who can’t.

Even in areas where there have been no recent changes, ordinarily little time is spent in family proceedings on costs issues, and when the subject has come up we have found ourselves less familiar with the detail than we would have liked. It is all too easy to be uncertain about the costs regime for a trusts of land claim in financial remedy proceedings, not to be sure how to claim costs for a publicly funded client, and to be baffled by the assertion that ‘costs in financial remedy proceedings are not the same as costs in proceedings for a financial remedy’.

So we have written this book with the intention of helping the reader to become, as the Court of Appeal described the King’s Proctor a century ago, ‘fearless as to costs’. Or, if you prefer, to give Cinders her carriage.

We are enormously grateful to Lord Wilson, the doyen of family costs, more of whose judgments are quoted in what follows than anyone else’s, for his kindness in writing the foreword.

Gray’s Inn

Hallowe’en 2015

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