How much and when can litigant in person claim costs in family proceedings
A little know area of costs law enables self-represented parties (litigants in person (LiP)) to claim their costs in the same way as a represented party can claim costs. This simple statement hides a variety of questions. Especially this is so in family proceedings where – sad to relate – the subject of when anyone (LiP or solicitor for a party) can actually get an order is set about with illogicality.
This series will look at the law and rules surrounding LiP costs orders (Part 1); then at how the ‘general rule’ on claiming costs works (Part 2); costs in money proceedings will be considered in Part 3 and in children proceedings costs in Part 4. Part 5 will come back to the entirely the separate subject of ‘funding’ in case, alongside costs order, a claim against a former spouse to help pay a solicitor may be useful for a LiP (mostly a wife, in such claims: see eg Funding family proceedings for the weaker spouse)
Generally Civil Procedure Rules 1998 (CPR 1998) do not apply to proceedings in the family courts. These courts have their own rules: Family Procedure Rules 2010 (FPR 2010). An exception to this is the costs rules under review here. The family proceedings rule-makers ran out of steam when it came to costs. Most of the civil proceedings costs rules apply to family proceedings with one or two important exceptions (like the costs of money proceedings).
CPR 1998 are not the only rules which govern costs. It all starts with statute law: Senior Courts Act 1981 s 51 deals with costs in family courts and, in particular – for present purposes – says two things:
- Costs orders are in the ‘full discretion of the court’ (SCA 1981 s 51(1)), subject to anything said in the rules (eg as in CPR 1998 r 44.3\\, below); which means the judge can make any order, within reason, which the judge chooses to make; and
- ‘The court [has] full power to determine by whom and to what extent [any] costs are to be paid (SCA 1981 s 51(3)).
The general rule is that ‘costs follow the event’ (as will be seen); but is subject to a number of qualifying points in family proceedings. Some of these are defined by the courts – ie common law and, as need be, will be explained in this series. Other variations are defined by the rules.
A last introductory point is a matter of terminology. ‘Funding’ is one thing: it is what a client pays to his or her solicitor; or which the Legal Aid Agency pay to a lawyer for a legally aided person. ‘Costs’, on the other hand, is what I am talking about here. It is always for the court to decide, mostly at the end of a case, but sometimes at an earlier stage of proceedings (eg if a person – normally a wife – claims interim maintenance to see her through till a final hearings).
Categories of family proceedings
The term ‘family proceedings’ means mostly proceedings following family breakdown: (1) divorce, (2) children, (3) money claims and (4) domestic abuse (plus one or two unusual set of proceedings: declaration of marital status, surrogacy etc).
Of these (2) children proceedings divide into private cases (mostly child arrangements order (what used to be called ‘custody and access’) and care proceedings (ie involving the local authority). Costs orders will be rare in all types of children proceedings (save where you may be appealing against an order): I will deal with this in Part IV. Almost all care proceedings work is on legal aid; so costs claims very rarely apply.
With (1) divorce and (mostly) (4) domestic abuse case, I would expect the court generally to follow the ‘general rule’ (see Part 2). Money claims (3), which comprise a substantial proportion of the work of the family courts, have – it gives me no pride to say – a waywardness all of their own. I will explain that in detail in Part 3.
Costs claims by litigants in person
First the good news: a LiP can claim costs? But when? CPR 1998 r 46.5 starts the ball rolling. The rule says (as relevant our purposes):
Litigants in person
(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.
(3) The litigant in person shall be allowed –
(a) costs for the same categories of –
(i) work; and
which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf;
(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and
(c) the costs of obtaining expert assistance in assessing the costs claim.
‘Disbursement’ means out of pocket expenses; but could include court fees, fees and expenses of expert witnesses etc: ie these can be claimed in full.
‘Summary/detailed assessment’ – the court process of fixing costs: ‘summary’ normally at the end of a hearing; and ‘detailed assessment’ – ie where costs are awarded in principle, but the exact amount is determined later.
‘amount which would have been allowed’ (ie time-recording) – that is, a LiP can claim up to 2/3rds of what a lawyer would have charged. In theory then, if a lawyer could have charged £240 per hour, the LiP can pitch his or her claim at £160 per hour for all recorded time (ie time recorded or noted by the LiP: so keep notes of all time spent on your case; and say for each block of time what you are doing: a letter or email or note of a phone conversation is your record in itself: most solicitors work on 6 minute units (10 in one hour) so a ten minute phone call is 2 units; one and a half hours spent preparing a statement is 15 units, etc). If you don’t it will come back to bite you on detailed assessment.
What can a legal representative claim; what can a LiP claim?
But – and it’s an enormous ‘but’ (hence this introduction to the subject) – the rule is that a LiP can claim a proportion of what a legal representative can claim. And that means, for the LiP, that he or she must have some idea of (1) what a legal representative charges; and (2) in what circumstances a legal representative would be able to claim and expect to have an order for costs. In family proceedings those circumstances are relatively rare, but it is the object of this series to explain briefly when they might crop up: that is, where a costs claim might be made.
‘The general rule’ on costs and actually making the claim will be considered in Pt 2; costs in money proceedings will be considered in Pt 3 and children proceedings costs in Pt 4. Finally Part 5 will revert to the separate subject of ‘funding’ which may be important to a LiP: when in matrimonial proceedings can the financially weaker (normally the wife) LiP claim funding from her former partner for lawyers to help her with her case.