In a recent case Teasdale v Carter & Anor [2023] EWHC 490 (Fam) (07 March 2023) concerning a family dispute over property, relating to a divorce, the judge was unimpressed with the costs expended by the parties, saying that:
I have to say that this is one of the most regrettable pieces of litigation that I have ever come across. It is not just because this family has become so fractured as a result. The total costs of the litigation at the conclusion of the hearing below were approximately £828,000. The costs of this appeal are £220,000. These figures do not include the costs of the financial remedy proceedings. The house at the heart of the dispute, Cow House, is worth £245,000, after a 20% reduction for an agricultural occupation restriction. When the appeal was opened, it was said that, if I allowed the appeal, the matter would have to be re-heard at further vast expense, as an appeal court clearly could not substitute different findings of fact for those found by the judge below. The final reason that the position is so regrettable is that the parties agreed a way forward on 7 October 2020 which would have obviated the need for all this litigation. Unfortunately, the agreement was subsequently repudiated by the Appellant, on the basis that the First Respondent had enlarged her claim in other respects.
Following a trial one party was appealing and if successful a further trial would have been required.
The judge suggested that in future in divorce proceedings, parties could obtain a preliminary ruling as to whether costs would be recoverable saying:
For the future, however, I suggest the following course of action. If there is ever an issue as to the representation of a party at a piece of ancillary litigation prior to financial remedy proceedings, an application should be made to the judge in advance for a ruling as to whether or not a costs order will be available at the conclusion of the litigation. In this case, it seems highly likely to me that the judge would have decided, at such a preliminary hearing, that the Husband was entitled to representation and, as a result, a costs order would be available to him if he was successful. The benefit, however, would have been that the parties would all have known where they stood and their potential exposure to costs orders. Moreover, it would obviate the sort of argument that is now being raised in this case.
That way a party could make an informed choice as to whether to be represented.