Non-molestation order proceedings under Part IV of the Family Law Act 1996 are frequently commenced by applicants who are legally aided and who either assume that legal aid affords protection from adverse costs orders, or do not consider costs at all.
Unlike many other areas of family litigation, non-molestation proceedings do not attract statutory costs protection. As a result, applicants who pursue weak or unmeritorious applications may face costs consequences, even where they are legally aided.
Costs in family proceedings are discretionary pursuant to section 51 of the Senior Courts Act 1981. The general civil rule that the unsuccessful party pays the successful party’s costs (CPR r.44.2(2)(a)) does not apply, having been expressly disapplied by FPR r.28.2. Instead, FPR r.28.1 provides that the court may make such order as to costs as it thinks just. That discretion is wide.
In deciding whether to make a costs order, the court is entitled to have regard to all the circumstances of the case, including, but not limited to, the conduct of the parties, whether it was reasonable to pursue or contest allegations, the manner in which the case was run, the extent to which a party succeeded or failed and admissible offers to settle. The exercise of the discretion must also accord with the overriding objective under FPR r.1.1, including proportionality, fairness, saving expense, and ensuring that the parties are on an equal footing.
Crucially, Family Law Act 1996 proceedings do not benefit from costs protection. Section 26(1) Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 provides that where an order for costs is made against an individual in ‘relevant civil proceedings’, those costs must not exceed the amount it is reasonable for that individual to pay. However, section 26(3) expressly permits regulations to carve out exceptions to that protection, and the Civil Legal Aid (Costs) Regulations 2013 do so.
Regulation 6 of the 2013 Regulations provides that costs protection does not apply to parts of family proceedings. ‘Family proceedings’ are defined narrowly in regulation 2 as proceedings relating to domestic violence. The combined effect of regulations 2 and 6 is therefore that legal aid costs protection does not apply to non-molestation proceedings.
The practical consequence that in non-molestation proceedings, a legally aided applicant is in no different position from a privately funded litigant when it comes to adverse costs. There is no statutory backstop and no automatic shield. The court’s task is simply to determine, applying FPR r.28 and CPR r.44 principles, whether a costs order is justified on the facts.
For practitioners advising on non-molestation applications, this has important implications and before an application is made, prospects of success must be considered. While applicants may present in genuine distress, careful consideration must be given to whether the alleged behaviour justifies the making of an order. As confirmed in DS v AC [2023] EWFC 46 there need not be a positive intent to molest; however, the test is not wholly subjective. An applicant’s perception of distress does not of itself justify the court’s intervention. The conduct relied upon must be of a nature or degree sufficient to warrant protective relief.
While the court will not seek to deter genuine victims of domestic abuse from bringing applications, it will not hesitate to mark its disapproval where allegations are exaggerated, unreasonably pursued, or largely fail. Applications which are without merit, or which are pursued unreasonably, may properly attract costs orders, even against legally aided applicants.
If a court is minded to make a costs order, practitioners should note that the court may respond to the fact that a legally aided party cannot afford to pay by adding the words ‘not to be enforced without leave of the court’ to the order. However, this is not mandatory and is not always done.
Such an order remains enforceable in principle, but in practice the costs of enforcement are often wasted where the publicly funded party lacks the means to satisfy the order.
Non-molestation orders remain a vital protective remedy, but they are not cost-free terrain.
Author: Abigail Kendall
Abigail can be instructed by emailing her clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
DS v AC [2023] EWFC 46