By David Hodson
On 3 April 2006, new rules will bring about probably the most dramatic change in costs in family law finance proceedings that many family lawyers have witnessed in a lifetime of practice. The rules are simple, self-explanatory and, for the most part, clear to understand. However, for solicitors, legal advisers, advocates and judges, it is likely to make a big difference in the way they approach cases, the tactics they use and the key element that costs has in a case, both as to the client's payment of their costs and the client's recovery of costs against the other party. For clients, it may reduce the puzzlement and the bewilderment of the present costs law, but it may also lead to an unwelcome shift in the balance of power between the parties as cases head towards a final hearing.
The Family Proceedings (Amendment) Rules 2006 (SI 2006/352) create a new rule 2.71 FPR 1991. There is an accompanying President's Direction Ancillary Relief: Costs dated 20 February 2006.The new features are as follows:
The new costs rules apply to all cases where:
(1) there is a petition or an answer with prayers for ancillary relief and issued on or after 3 April 2006 and there are no pre 3 April petitions or an answer with prayers;
(2) a Form A issued on or after 3 April 2006 by a petitioner when there was a pre 3 April petition without any prayers for ancillary relief;
(3) a Form A issued on or after 3 April 2006 by a respondent when there had been no pre 3 April answer or a pre 3 April answer with no prayers for ancillary relief; and
(4) the application in circumstances set out in rule 2.7 10 1(3) above made on or after 3 April 2006.
Note that where Form A is issued on or after 3 April 2006 based on a petition or answer issued before 3 April 2006 containing full prayers for ancillary relief the old rules still apply. The previous draft rules referred only to Forms A issued after a certain date. It seems therefore that a Form A post 3 April 2006 based on a pre 3 April 2006 petition or answer with prayers will not qualify under the new rules but a Form A post 3 April 2006 by a respondent without an answer (or with an answer without ancillary relief prayers) will.
More details in 'Farewell Calderbanks Hello Open Offers; the New Costs Rules' by David Hodson in April  Fam Law 276.
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See also SI 2006/352 and the President's Direction below.