Costs incurred in family cases are always relevant – there is only one ‘pot’ for the legal costs to come out of after all. However, the issue of costs has been mentioned increasingly over the last few months. I think this will increase with the pressure on the family court and the backlogs in cases. I think the court will want to send a clear message that parties are expected to be reasonable in their litigation behaviour and not clog up the court deciding issues where it is within the capabilities of the parties to get to a reasonable agreement.
A stern warning comes from Mr Justice Mostyn in LM v DM  EWFC 28:
The result of the case was clearly a win for the applicant. Although she did not achieve as much in quantum as she sought, the result was much closer to her position that the respondent’s. She also succeeded on issues of principle which divided the parties. I agree that there were aspects of the respondent’s case which were unreasonable and which reinforce my starting point that the applicant should be awarded her standard costs of the application.
However, I agree that the applicant made no serious attempt to negotiate openly and reasonably beyond setting out her in-court forensic position in her witness statements. My impression was that the applicant was determined to fight the application come what may.
Litigants must learn that they will suffer a cost penalty if they do not negotiate openly and reasonably
The judge then ordered the husband to pay 50% only of the wife’s costs, saying that if she had been more reasonable and attempted to negotiate, then he would have ordered 100%.
A warning indeed and I predict we will see it quoted and relied on more frequently, so litigants beware.