Costs orders

I am at the end of a gruelling four-year process. Following an aborted attempt at mediation and a likely long timetable if FDR was pursued, there was an arbitral award in 2023, a court hearing in 2024 and more recently several hearings about (1) enforcement and (2) varying periodic payments. In a nutshell, I have earned only a fraction of what the arbitrator forecast I would, my ex has earned more than the arbitrator expected she would and her needs have reduced. l fell into arrears on the maintenance but if a reduction is ordered the arrears will be reduced or (hopefully) cancelled. The enforcement involved selling an asset that I was awarded. In the arbitration and at every subsequent hearing I was ordered to pay costs. I assumed that was the way the system worked. But recently a knowledgeable solicitor friend said it is rare in a family law case for a costs order to be made against a party - usually that party has behaved in an unhelpful or improper manner. I don't recognise the latter and no allegation has been made in support of the costs claim. Is my treatment correct and is there anything I can do about it?

It is impossible to say without knowing the details. The solicitor is correct in the sense that in the financial proceedings arising from divorce it is normal for each side to pay their own costs rather than one side being ordered to pay the other side's costs. However, where there is some degree of fault it is also normal for the party in default to be ordered to pay the other side's costs. You may actually be in that position because you say enforcement proceedings have been undertaken against you. Enforcement proceedings are only necessary when someone is in default. If you had complied with the arbitration award no enforcement would have been necessary.

Also, courts give reasons for the order they make - including costs orders. If you did not hear these reasons (and these things can be all too easy to miss for a litigant in person) then I am pretty sure that the other side can tell you the reason.

Having said all this, these things do very much depend upon the details and so there may be circumstances of which I am unaware which would cast a different light upon it.

Thank you. In the most recent stage, the other side have submitted a schedule of costs but so far nothing has been said about costs. Judgement will be delivered orally within a week. Two questions: (1) Am I entitled to submit my own claim? I read somewhere that a LIP can claim for time spent at £19/hour and (2) would it be reasonable to ask the judge for written reasons for awarding costs against me?.

The problem you have with preparing your own schedule of costs is that it seems that the action is about enforcing an arbitration award/order against you so it is hard to see upon what basis you could possibly be asking that the other side pays your costs. Possibly there is some reason of which I am unaware (such as that you offered in writing to meet your ex's claim before they issued their application) but on the assumption that the action is about enforcement proceedings against you have no obvious grounds to claim costs. If, say, a creditor sues a debtor for money owed and the creditors gets judgement then you would not expect the debtor to be able to claim the legal costs from the creditor. On a separate point, the purpose of serving a shedule of costs is to enable the potential paying party time to consider it and then to raise any objections about any particular aspects of it if there are legitimate objections.

If the judge gives oral judgement he/she is not going to write down a part of it just for your benefit. In the event that it is an oral judgement it is up to you to take notes and/or pay to obtain a transcript. Obviously if the judgement is handed down as a written judgement then it will deal with costs just as it will deal with the main issue.

More thanks for your further responses.

There were three applications heard at the latest hearing, one mine to vary or discharge periodic payments and two from my ex to do with implementation of the enforcement order. Naturally my ex resisted the former. I spent at least two weeks preparing for each of the three hearings. And a barrister was paid to help with one. There was two-way financial disclosure and quite a bit of toing and froing on the followup.The costs have been saved up for the latest hearing and submissions were not specifically mentioned in the directions.

In (my) mitigation (1) the evidence provided in relation to the application to vary periodic payments makes very clear that there was no bad conduct involved in me not paying the sums, I simply didn't have the money and the problem was the arbitrator made forecasts of what each side would earn which proved to be very different from has transpired subsequently and (2) I did make an open offer to settle, which was declined.

Your point about "you would not expect the debtor to be able to claim the legal costs from the creditor" is of interest to me, because I told my ex her solicitor should not be engaging with the property professionals in relation to the sale (in a foreign jurisdiction) and therefore I would ask the judge to exclude any element that related to the solicitor's time spent on doing so. I have spent time arguing that my ex should not have a role in the disposal of the asset because it was awarded to me and because she no longer has an equity interest her relationship with the transaction must be as a creditor, in which case she has a duty to fetch a fair market price, not a lower price that simply covers the debts that are the subject of enforcement.

>>I told my ex her solicitor should not be engaging with the property professionals in relation to the sale (in a foreign jurisdiction) and therefore I would ask the judge to exclude any element that related to the solicitor's time spent on doing so. I have spent time arguing that my ex should not have a role in the disposal of the asset because it was awarded to me and because she no longer has an equity interest her relationship with the transaction must be as a creditor, in which case she has a duty to fetch a fair market price, not a lower price that simply covers the debts that are the subject of enforcement.<<

I think you are totally wrong about this.If the application is about forcing the sale of a foreign property in order to satisfy a debt which your ex says is owed to her then it is entirely appropriate that her solicitor should contact professionals in that foreign jurisdiction to establish what the mechanisms of sale might be. If they did not do that they would be unable to answer obvious questions from the court about the mechanism of enforcement (and the costs).

That is not to say that your ex's application is certain of success because it must be doubtful whether a court would order what she asks. It might do but that is by no means obvious and ultimately that will be for a judge to decide. It will also be for a judge to decide whether your inability to pay is bona fide and whether it would be reasonable to do as your ex requests. For what it is worth, IF (and it is a big if) a court does decide in favour of her application then it is a separate question whether she or you should have the conduct of any sale. Her solicitors will be legitimately contacting professionals in the foreign to establish the pros and cons of each.

The court did decide to order the sale of the property. This is now a situation in which the debtor has been ordered to sell his asset to satisfy the claim of a creditor. The court awarded joint conduct but as it's not a jointly owned asset I don't believe it is appropriate for my ex to have any direct role. The order does not provide for my ex to be paid her solicitor's costs out of the sale proceeds. The solicitor has expertise in family law, not conveyancing, and no experience in the foreign jurisdiction. And to date has spent time asking questions of the local conveyancing attorney about the process. So back to the initial question: should I have to pay the other side's costs for time spent on the sale process



Edited 1 time(s). Last edit at 04/17/2025 09:23AM by Novice L-I-P.

>>should I have to pay the other side's costs for time spent on the sale process

I believe I have already answered that. It was legitimate and necessary for your ex's solicitor to determine how and according to what timescale the property could be sold. The court will have wanted to know how, in what way and when the property could be sold so your ex's solicitors needed to find out.