PRACTICE DIRECTION 28A – COSTS
PRACTICE DIRECTION 28A – COSTSThis Practice Direction supplements FPR Part 28
|Application and modification of the CPR||Para. 1.1|
|Application and modification of the Practice Directions supplementing CPR Parts 44 to 47||Para. 2.1|
|General Interpretation of references in CPR||Para. 3.1|
|Costs in financial remedy proceedings||Para. 4.1|
Application and modification of the CPR
Rule 28.2 provides that subject to rule 28.3 of the FPR, Parts 44 (except rules 44.2(2) and (3) and 44.10(2) and (3)), 46 and 47 and rule 45.8 of the CPR apply to costs in family proceedings with the modifications listed in . Rule 28.2(1)(c) refers to modifications in accordance with this Practice Direction.
Application and modification of the Practice Directions supplementing CPR Parts 44 to 47
For the purpose of proceedings to which these Rules apply, the Practice Directions which supplement Parts 44 to 47 of the CPR will apply, but with the exclusions and modifications explained below to reflect the exclusions and modifications to those Parts of the CPR as they are applied by Part 28 of these Rules.
Rule 28.2(1) applies, with modifications and certain exceptions, Parts 44 to 47 of the CPR to costs in family proceedings. Rule 28.3, by way of exception, disapplies CPR rule 44.2(1), (4) and (5) in the case of financial remedy proceedings.
CPR Practice Directions 44 to 47 do not, therefore, apply in their entirety but with the exclusion of Practice Direction 45 and of certain sections of the other Practice Directions, reflecting the non-application of Part 45 and of certain rules of the CPR which those sections of the other Practice Directions supplement.
CPR Practice Directions 44, 46 and 47 apply as follows –
- to family proceedings including financial remedy proceedings with the exception of paragraphs 3.1 to 3.5 of Practice Direction 44 and paragraphs 7.1 and 9.1 to 9.12 of Practice Direction 46;
All subsequent editions of CPR Practice Directions 44, 46 and 47 as and when they are published and come into effect shall in the same way extend to all family proceedings.
CPR Practice Directions 44, 46, 47 and 48 include provisions applicable to proceedings following changes in the manner in which legal services are funded pursuant to the Access to Justice Act 1999. It should be noted that family proceedings (within section 58A(2) of the Courts and Legal Services Act 1990) cannot be the subject of an enforceable conditional fee agreement.
General Interpretation of references in CPR
References in the costs practice direction to ‘claimant’ and ‘defendant’ are to be read as references to equivalent terms used in proceedings to which these Rules apply and other terms and expressions used in the costs practice direction shall be similarly treated.
References in CPR Parts 44 to 47 to other rules or Parts of the CPR shall be read, where there is an equivalent rule or Part in these Rules, to that equivalent rule or Part.
Costs in financial remedy proceedings
Rule 28.3 relates to the court’s power to make costs orders in financial remedy proceedings. For the purposes of rule 28.3, ‘financial remedy proceedings’ are defined in accordance with rule 28.3(4)(b). That definition, which is more limited than the principal definition in rule 2.3(1), includes –
(a) an application for a financial order, except –
(i) an order for maintenance pending suit or an order for maintenance pending outcome of proceedings;
(ii) an interim periodical payments order or any other form of interim order for the purposes of rule 9.7(1)(a),(b),(c) and (e);
(iii) an order for payment in respect of legal services.
(b) an application for an order under Part 3 of the Matrimonial and Family Proceedings Act 1984 or Schedule 7 to the Civil Partnership Act 2004; and
(c) an application under section 10(2) of the Matrimonial Causes Act 1973 or section 48(2) of the Civil Partnership Act 2004.
Accordingly, it should be noted that –
(a) while most interim financial applications are excluded from rule 28.3, the rule does apply to an application for an interim variation order within rule 9.7(1)(d),
(b) rule 28.3 does not apply to an application for any of the following financial remedies –
(i) an order under Schedule 1 to the Children Act 1989;
(ii) an order under section 27 of the Matrimonial Causes Act 1973 or Part 9 of Schedule 5 to the Civil Partnership Act 2004;
(iii) an order under section 35 of the Matrimonial Causes Act 1973 or paragraph 69 of Schedule 5 to the Civil Partnership Act 2004; or
(iv) an order under Part 1 of the Domestic Proceedings and Magistrates’ Courts Act 1978 or Schedule 6 to the Civil Partnership Act 2004.
Under rule 28.3 the court only has the power to make a costs order in financial remedy proceedings when this is justified by the litigation conduct of one of the parties. When determining whether and how to exercise this power the court will be required to take into account the list of factors set out in that rule. The court will not be able to take into account any offers to settle expressed to be ‘without prejudice’ or ‘without prejudice save as to costs’ in deciding what, if any, costs orders to make.
In considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute.The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.
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.
An order for payment in respect of legal services under section 22ZA of the Matrimonial Causes Act 1973 or paragraph 38A of Part 8 of Schedule 5 to the Civil Partnership Act 2004 is not a 'costs order' within the meaning of rule 28.3.
By virtue of rule 28.2(1), where rule 28.3 does not apply, the exercise of the court's discretion as to costs is governed by the relevant provisions of the CPR and in particular rule 44.2 (excluding r 44.2(2) and (3)).