Family Proceedings

Question 1

There is no single definition of family proceedings, look to:
a.
b.

Answer 1

There is no single definition of family proceedings, look to:
a. S58A of the Courts and Legal Services Act 1990
b. Family Procedure Rules, which refers to Section 75(3) Courts Act 2003
The CPR and FPR: either may apply to family proceedings (subject to variations)
a. Overriding Objective - FPR references the welfare of the child – which comes from the Children Act 1989. Both refer to proportionality

Question 2

Rules & Definition
1. FPR 2.1 – rules apply to

2. FPR 2.3 – family proceedings are defined as per

Answer 2

Rules & Definition
1. FPR 2.1 – rules apply to proceedings in the High Court and the Family Court (formerly Mags and County Court)

2. FPR 2.3 – family proceedings are defined as per S75(3) of the Courts Act 2003 – proceedings in the Family Court and proceedings in the Family Division of the High Court (where they can only be heard in the Family Division)

Question 3

The Costs Regimes
FPR 28 and the Practice Direction 28A apply for costs purposes
3x costs regimes
a.
b.
c.

Answer 3

The Costs Regimes
FPR 28 and the Practice Direction 28A apply for costs purposes
3x costs regimes
a. Clean Sheet
b. No Order
c. Costs Follow the Event

Question 4

A. Clean Sheet – all family court proceedings (except financial remedy proceedings) – e.g. proceedings under the Children Act 1989

3. FPR 28.1 –
4. FPR 28.2 – CPR with modifications. Disapplies

Solomon v Solomon 2013 – starting point for Clean Sheet should be

Answer 4

A. Clean Sheet – all family court proceedings (except financial remedy proceedings) – e.g. proceedings under the Children Act 1989

3. FPR 28.1 – the court may such order as it considers just
4. FPR 28.2 – CPR with modifications. Disapplies CPR 44.2(2) Loser Pays. Factors Taken into consideration for Clean Sheet:- CPR 44.2(4)(a) Conduct, (b) – Success of Part of Claim (c) offers to settle

Solomon v Solomon 2013 – starting point for Clean Sheet should be costs follow the event - this does not fit with FPR

Question 5

B. No Order – Re financial remedy proceedings

5. FPR 28.3 (1) - applies to
6. FPR 28.3 (2) – Don’t Apply - C
7. FPR 28.3 (4)(b) – defines
8. FPR 28.3 (5) – the general rule
9. FPR 28.3 (6) – but
10. FPR 28.3 (7) – defines

Answer 5

B. No Order – Re financial remedy proceedings

5. FPR 28.3 (1) - applies to financial remedy proceedings
6. FPR 28.3 (2) – Don’t Apply - CPR 44.2 (1) Courts Discretion, (4) Factors to Consider and (5) What Amounts to Conduct
7. FPR 28.3 (4)(b) – defines financial remedy proceedings as proceedings requiring a financial order
8. FPR 28.3 (5) – the general rule is no order for costs (Rationale – because costs of the proceedings will be taken into account when determining financial settlement)
9. FPR 28.3 (6) – but the court may make an inter partes order if it is considered appropriate on the grounds of conduct
10. FPR 28.3 (7) – defines what Court should consider when making an order under 28.3(6) – Failure to Comply with Rules, Any Open Offers to Settle, Whether Reasonably Pursued Allegations/Issues, Manner in Which Pursued/Responded, Financial Effect on Parties of Any Order

Question 6

C. Costs Follow Event

11. applies to

CPR 44-48 - applies

H v Dent 2015 –

Answer 6

C. Costs Follow Event

11. The ‘costs follow the event’ regime applies to all family matters that are heard in the Family Division of the High Court, but which could also be heard in a different division. Includes Inheritance, Protection from Harassment Act 1997 and TOLATA 1996

CPR 44-48 - applies as usual

H v Dent 2015 – indemnity costs ordered but rare in family proceedings

Re TOLATA 1996 – Costs Lawyers would normally see these files e.g. cohabitant that is trustee of land or who has interest in a property subject to a trust of land. S.14 sets out orders court can make and S. 15 factors court must take into account.

Question 7

Family Summary - short

Rules and Definition
1.FPR 2.1 - apply
2.FPR 2.3 – S75(3) of the Courts Act 2003
Clean Sheet

3.FPR 28.1 – just
4.FPR 28.2 – modifications

No Order
5.FPR 28.3 (1) - applies
6.FPR 28.3 (2) – modifications
7.FPR 28.3 (4)(b) – defines
8.FPR 28.3 (5) – general rule/no order
9.FPR 28.3 (6) – but
10.FPR 28.3 (7) – conduct

Follows
11. Costs Follow Event

Answer 7

Family Summary - short

Rules and Definition
1.FPR 2.1 - apply
2.FPR 2.3 – S75(3) of the Courts Act 2003

Clean Sheet
3.FPR 28.1 – just
4.FPR 28.2 – modifications

No Order
5.FPR 28.3 (1) - applies
6.FPR 28.3 (2) – modifications
7.FPR 28.3 (4)(b) – defines
8.FPR 28.3 (5) – general rule/no order
9.FPR 28.3 (6) – but
10.FPR 28.3 (7) – conduct

Follows
11. Costs Follow Event