Leading authority
The leading authority on costs orders in family-law proceedings is the 2005 decision of Mr Justice McKechnie in BD v JD.
The judge dispelled the myth that there is a standing protocol against awarding costs in family-law proceedings: “I do not believe that any category of family-law case should, as a matter of principle, be exempt from these cost provisions. It cannot be right that litigation can be open ended without even the risk of any type of costs order … I cannot accept that a court should be powerless to award costs even where the case, or the parties to it or their conduct within the proceedings, merit the making of such an order. If that were so, I firmly believe that both justice and the public would be ill served.”
In his view, there is a general rule against awarding costs in family-law proceedings, and a discretion to depart from the general rule where the interests of justice require it.
He asserts that costs orders are necessary in family-law proceedings to deter bad behaviour and to achieve the goals of finality and certainty in family-law litigation.
A narrowing approach?
McKechnie’s judgment has been endorsed by the judiciary since its pronouncement almost 20 years ago. Mr Justice Jordan quoted it at length in his decision in BR v PT (2020).
In this case, a husband brought an application for divorce a number of years after fully contested judicial-separation proceedings.
Jordan J made a limited costs order against the husband for the following reasons:
- Upon initiating the divorce proceedings, the husband claimed to be regularising the terms of the judicial-separation proceedings. A year later, he drastically changed his claim, seeking significant orders for his financial provision.
- The wife’s solicitors made a reasonable open offer to the husband during the hearing. The husband vehemently refused in writing, making unrealistic and covetous demands for his financial provision.
- The husband discharged his legal team, and represented himself in an obstructive and uncooperative manner. He failed to properly disclose his finances, issued multiple motions, and made allegations of criminal misconduct against the wife’s legal team.
- The husband’s strategic and tactical running of his case resulted in his wife unnecessarily accruing legal fees to defend herself.
While the factual matrix of the case clearly warranted the making of a costs order, one has to question whether the grounds for seeking a costs order are narrowing.
Jordan J observes: “It is true that there is still a tendency to consider family-law proceedings to be separate and apart from other types of litigation insofar as costs are concerned. Of course, that must be the situation in the initial stages of family-law proceedings where the parties are endeavouring, with the assistance of the court, to untangle themselves from a failed relationship.
“But there comes a point in time when the situation changes; it changes when the litigation becomes unreasonably protracted and bitter and, in particular, when that has arisen by reason of the conduct of one of the parties in particular.”
Jordan J’s focus on a ‘turning point’ or ‘event’ in this particular case frames costs orders in family-law litigation in the traditional win/lose paradigm.
Arguably, the idea that litigation has to be protracted and bitter in order to make an award of costs confines McKechnie J’s dicta to more limited sets of circumstances relating to the litigation process.
Whereas McKechnie J appeared willing to make an award on broader holistic
grounds, where:
- The case merits the making of an order,
- The parties to the case merit the making of an order, or
- The conduct of the parties within the proceedings merit the making of
an order.
Judicial aversion?
What is most interesting about the decision of BR v PT is that it showcases the perfect example of a situation where family-law litigation becomes unreasonably protracted and bitter – yet a full costs order was not made.
In the High Court case, the appellant failed on every ground of his unmeritorious divorce proceedings, and Jordan J stated that “the truth is that the court sees no good objection in principle to making a full order for the costs of the appeal against the appellant”.
Despite finding no objection in principle, the judge only awarded 20% of the wife’s costs to her, based on the facts of the case. Jordan J’s decision to make a partial award boils down to the husband’s willingness not to engage in further litigation and his limited financial resources.
In relation to the husband’s promise not to engage in future litigation, the court’s reasoning was somewhat conflicting.
On the one hand, Jordan J stated that “the court is reluctant to accept an undertaking from the appellant in relation to future litigation. It seems that if the court did so, it might be said that the undertaking was extorted from him, on pain of otherwise suffering a costs order against him.”
On the other hand, he concluded that the court “hears what Mr R says in relation to this litigation being at an end and is prepared to take him at his word. What he has said in that regard is influencing what it is going to do in relation to costs.”
These contrasting lines of reasoning are difficult to square with one another.
Furthermore, it is somewhat peculiar that the court was unwilling to accept the appellant’s evidence in relation to every ground of his appeal, but was amenable on this particular point concerning further litigation.
If anything, the court appears more ‘reluctant’ to make a costs order than to accept the appellant’s undertaking.
Secondly, with regard to the husband’s limited finances, it should be noted that he chose to bring a full appeal lasting four days and spend his resources on same, all the while depleting his former wife’s resources.
His decision to appeal the decision of the Circuit Court, and his conduct therein, was clearly unwise and unwarranted. Nevertheless, his former wife was subjected to paying 80% of the costs she incurred as a result of his ‘mistakes’.
If the judiciary are shying away from costs orders, even on the narrower ‘turning-point’ grounds, then what deterrent is there to bringing an unmeritorious appeal?
McKechnie J’s dicta are still quoted at length in all family-law cases concerning costs orders, but perhaps its force is a relic of the past.
Motions and applications
Awarding costs for unwise motions and applications may be more palatable to judges and practitioners alike, as it aligns better with an orthodox understanding of costs orders.
In the decision of BC v PK (which issued four months after his previous judgment), Jordan J discussed costs orders in misconceived interlocutory applications.
This case concerned an application brought by a father to dispense with the consent of the mother for their children to attend with a specific counsellor for the purpose of ongoing therapeutic care.
As the specific counsellor prepared a section 47 report for the court, Jordan J held it was common sense that he should not be involved in counselling or therapeutic care on a continuing ongoing basis in order to maintain his independence while fulfilling his court duties under section 47.
He awarded costs in favour of the wife for defending the application. Jordan J again cited the judgment of McKechnie J in BD v JD as the locus classicus with regards to costs in family-law proceedings, and further stated that costs are awarded in the usual way regarding motions and applications: “It is the position when a court is dealing with substantive proceedings involving a resolution of a dispute concerning matrimonial assets owned by either one or both of the parties following a relationship breakdown that it will ordinarily make no order as to costs.
"This is so in circumstances where the court will, in the ordinary course of events, have regard to the cost of the litigation in deciding the issues in the case, including the division of the matrimonial assets. There is frequently evidence given in relation to those costs in the substantive proceedings.
"But where applications, such as motions of an interlocutory nature or applications such as this, after the resolution of matters, are made or brought, then the court is entitled to exercise its discretion in relation to an award of costs in the ordinary way.”
Jordan J was not stating that costs orders will be granted in all instances where a motion or an application fails in family-law proceedings, but rather where the application made is singularly unwise.
This was underscored by Barrett J in X v Y (2020), where a mother sought a costs order against a father for bringing a motion for greater custody and access while divorce proceedings were pending.
Barrett J refused to award costs in this case as the father brought the motion in good faith, and there was no requirement for him to wait for the hearing of the divorce case to ventilate issues relating to the children.
He paraphrased McKechnie J, noting that the courts should be slow to award costs in family law litigation, but “if a case, or the parties, or the conduct of the parties merit the making of an order as to costs, such an order can be made”.
In a further judgment, in B v B (2022), Barrett J refused to award costs against a former husband who successfully took a motion to reduce his monthly maintenance payments.
He found that there was no compelling factor persuading the court to make a costs order, and again focused on the former husband’s legitimate entitlement to bring a motion of this nature.
Access to justice
Of particular interest is Barrett J’s comments in B v B that difficulty paying legal fees is not a sound legal basis for making a costs order: “There has been nothing in Mr B’s behaviour or in the manner in which these proceedings have been conducted, nor is there any other factor presenting, that would incline me to order that he should pay some or all of Ms B’s costs.
“I accept that Ms B may encounter some difficulty in meeting all of the legal costs that she has incurred in what have been fraught proceedings, and she has my genuine sympathy if this is so; however, that sense of sympathy does not offer a sound legal basis on which to order that some or all of her legal costs should now be paid by her ex-husband.”
Perhaps, on the facts of this case, the wife’s difficulty in paying her legal fees was not a compelling factor, as the husband also appeared to be struggling with his finances, given that he took a motion to reduce maintenance payable.
However, if an inability to pay fees affects the proper provision afforded to the weaker spouse, it is indeed a compelling factor, as recognised by Hogan J in the Court of Appeal in CC v NC.
In the High Court decision, Abbott J made a decree of divorce conditional on the husband discharging his wife’s legal fees.
Hogan J varied the form of the order in the Court of Appeal, but upheld the substance of the order. He made it clear that costs orders cannot be a precondition to divorce, but can be a necessary condition to achieve proper provision.
He further stated that there are only four prerequisites to obtaining a decree of divorce under article 41.3.2 of the Constitution:
1) The spouses have lived apart for at least four years,
2) There is no prospect of reconciliation between the parties,
3) Proper provision must be made for the spouses, any children of either or both of them, and any other person prescribed by law, and
4) Any further conditions prescribed by law must be complied with.
In terms of making an order for costs, Hogan J took a broad holistic view of the matrimonial pot rather than focusing on any acrimony or bitterness between the parties.
Of course, it is noted that family-law judges always consider the legal costs of each party, as sworn in their affidavit of means, in their overall assessment of the marital pot.
However, there is very little discussion of how legal fees are taken into account in most reported judgments, and costs orders are rarely made in this regard.
Equality of arms
Using costs orders more regularly may facilitate access to matrimonial justice
by enabling both sides to have equal representation.
Oftentimes, an impecunious client (that is, the dependant spouse) is forced to face a situation where they cannot obtain any, or at least equal, legal representation due to a lack of finances.
In order to run a divorce case, clients engage legal representation, obtain valuations and accountants’ reports, and should ideally have the same number of counsel on each side.
In most cases, the dependant spouse has to borrow money to bring divorce proceedings, which subsequently has to be repaid.
Fees are generally paid out of a lump sum awarded to the dependant spouse, rather than a specifically designated costs order, frequently leaving little for the dependant spouse by way of financial provision.
Costs orders could be used to ringfence legal fees, which would level the inequality of arms where the distribution of assets between the parties, prior to the separation, demands it.
Costs orders in family-law proceedings should not be understood in win/lose terms (as in civil litigation), but rather on a spectrum of promoting fairness where a case, its parties, or their conduct therein merits it.
Delaying tactics
For a court to focus on an ‘event’ or a ‘turning point’ reorients the emphasis away from provision (as outlined above) and onto conduct. Jordan J’s decisions of BR v PT and BC v PK appropriately redress the behaviour of both husbands in circumstances where they took avaricious and heedless applications.
However, difficulty regularly arises where there is no key turnabout, but a party engages in dilatory, obstructive, or delaying behaviour.
Often clients delay proceedings by failing to exchange vouching or by failing to provide financial disclosure in a timely manner, or by inappropriately asking for adjournments at the direction’s list or case progression.
This has very real consequences for a dependant spouse who faces increasing costs and delays.
Unfortunately, the reality is that time is money in legal proceedings, and with every delay comes an increase in costs for the weaker spouse and more time is spent struggling to make ends meet.
Arguably, costs orders could be effectively employed to encourage more expeditious litigation. Looming costs orders could prevent cases lying dormant for months on end and improve access to justice through the speedy and efficient resolution of matrimonial disputes.
Viewing costs orders as inherently adversarial results in their limited
usage in family-law proceedings.
Recasting costs orders as a fairness spectrum, in line with previous judicial dicta, may encourage their usage in a broader set of circumstances to enhance matrimonial justice where (a) there is an inequality of arms, and
(b) there is dilatory or bad behaviour.
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Inge Clissmann SC is a fellow of the International Academy of Family Lawyers. Ciara McLoughlin is a legal researcher studying for the Bar.
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