For many years it has been difficult to recover costs from the other side when pursuing claims for financial support on divorce. This does on occasion create great injustice.

There are two possible options to seek a contribution to your costs. The first is to apply for a ‘’legal services order”. This is where you ask for an opponent to pay them for you. It is done by way of a lump sum or installments. In addition you have to show that they are able to cover their own costs as well as yours. You must also show:-

  1. You cannot reasonably secure a loan instead from elsewhere;
  2. You are unlikely to be able to obtain legal services by granting a charge over any asset you have.

It is quite a high hurdle to jump, but in the appropriate case can be very useful.

The other option is to ask the Court to order your opponent to pay your costs. However the starting point is each party pays their own. To recover the cost from your opponent is hard and the Court has a wide discretion based on showing the seriously bad conduct of the party caused major expense. The conduct must be oppressive, or pursuing a particular point which is peripheral or irrelevant, or very tardy in producing or not disclosing information, or pursuing an unnecessary interim application.

In my experience Courts rarely make such orders and if they do they only order payment of the additional costs incurred over and above what would have been incurred anyway.

The purpose of this article is to suggest that this attitude might be undergoing something of a change following a recent amendment to the rules. Now when considering conduct, the refusal to negotiate reasonably and responsibly may be sufficient conduct, even in  a low value needs type of case. Also, if someone is ordered to pay costs and the order is made in the interim stage, when it comes to looking at the likely outcomes, the debt incurred to meet these costs is ignored.

This change could have a significant impact on a number of cases.  We now have to wait and see how strictly the Courts are willing to enforce the rules, but it certainly presents new opportunities, both at the interim and final stage when dealing with an opponent who has not been conducting themselves properly and sensibly.