Changes to FPR 2010 as to costs estimates, costs statements and open offers

Changes to FPR 2010 as to costs estimates, costs statements and open offers

Family analysis: Nicholas Allen QC and Joseph Switalski of 29 Bedford Row set out the implications of amendments to the Family Procedure Rules 2010 (FPR 2010) with effect from 6 July 2020 as to the provision of costs estimates/statements in Forms H and H1 and requirements for the parties to make open offers, and examine both case law and earlier amendments to FPR 2010 leading up to those changes.

What is the background to the costs changes?

In the civil sphere, the courts’ approach to costs management has been fundamentally different to the approach taken by the family courts since 1 April 2013 and the introduction of the Jackson reforms. The Civil Procedure Rules 1998 (CPR), SI 1998/3132, 3.123.21 give the court a much tighter grip on parties’ costs, through a combination of budgeting, active management and even going as far as cost capping orders in an appropriate case.

By contrast, in family finance litigation, the use of Form H (Estimate of costs (financial remedy)) has been retrospective in its documenting of costs incurred. This, allied with the usual rule provided by FPR 2010, SI 2010/2955, 28.3(5) (that generally parties will bear their own costs), has meant that in many cases the damage wrought by disproportionate costs have only been visible after the event and have been difficult to redress when applying the general rule.

In KSO v MJO & Others [2008] EWHC 3031 (Fam), [2009] 1 FLR 1036, the parties spent £553,000 out of a marital pot of £771,000 (or 71.7%). This led Munby J (as he then was) to compare the case to that of Jarndyce v Jarndyce in Charles Dickins’ Bleak House, quoting from chapter 65 of that novel in his appendix. In his judgment Munby J stated (at para [81]) that ‘Something must be done…We simply cannot go on as we are.’

In J v J [2014] EWHC 3654 (Fam),

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