The recent decision of the Supreme Court in Re T (Costs: Care Proceedings: Serious Allegation Not Proved)  UKSC 36,  1 FLR (forthcoming) has returned the issue of costs in family proceedings to the spotlight. In view of the court's judgment, this article asks whether, against a backdrop of imminent and swinging cuts to legal aid, the time has come for the family courts to make greater use of costs orders in both private and public proceedings. In Re T the Court restated the general practice of not awarding costs against a party in family law public proceedings, including against a local authority. The Court made it plain that, in the absence of reprehensible behaviour or an otherwise unreasonable stance by a party, no costs would be granted
Of course, to practitioners, this decision came as no surprise given that unlike other civil proceedings, family law exists as an exception to the accepted principle that 'costs follow the event' (CPR 1998, r 44.3(2)) with the unsuccessful party paying the costs of the successful party. The FPR 2010, r 28.2 expressly excludes the operation of CPR 1998, r 44.3(2) in this regard.
The full version of this article appears in the December 2012 issue of Family Law.