To ask about court costs?

[Flossyfloof]

Cannot give many details but wonder if anyone knows of circumstances where one party would be orders to pay the other party's costs in a case?
It is a marital case, financial negotiations have been going on for some time. The husband has told the wife that she will be ordered to lay his costs if matters go to court.

[Collaborate]

Would be very unusual. Only in cases of litigation misconduct (lying, basically) will one party have to pay the other's costs in divorce financial proceedings.

[Flossyfloof]

That's reassuring, thank you.

[NeedsAsockamnesty]

I got a costs order against my now exh (ex as in within the last 30 days) because his conduct meant the whole thing cost me more,

Intentionally evading service not returning paperwork that sort of thing.

He's been ordered to pay all my legal bills for the divorce inc court costs

3 years previously I also got a costs order to cover all my legal costs in securing a life time protection order.

[Flossyfloof]

Thanks, your situation sounds significantly more extreme. Hope you are ok.

[NeedsAsockamnesty]

Fwiw both orders are against the same person and at the time most solicitors told me I wouldn't be able to get him ordered to pay my costs.

The judge actually promoted the formal request in court by directly asking if it was my intention and granted it straight away subject to the costs being checked

[Andrewofgg]

There used to be a practice called Calderbank (after a decided case) by which you could make an offer - which the judge did not see - and if the other party did not do better you got your costs from the date of the offer. So if the only asset is the equity in the home and the husband offered 55% and the offer was not accepted and he was ordered to give 50% - she would have to pay his costs of the trial which is the expensive bit.

And of course if she offered to take 45% and got 50% he would pay her costs of the trial.

It did wonders in making both parties take a realistic view, it should never have been abolished, and it should be brought back.

[Collaborate]

The reason Calderbank offers were done away with is the discretionary nature of our system.

Wife can offer A, Husband B. Neither is wrong. It is then often down to luck (which judge you get) that decides what order you end up with. Calderbank offers therefore penalised the unlucky, rubbing salt in to the wounds.

[Andrewofgg]

Calderbank worked and works in personal injury cases. Bring it back!

[Collaborate]

PI is different. There's no or little discretion in awards.

Recently published judgment in Robertson (see here) says this:

Judicial discretion and arbitrariness
68 I have reached this decision in the exercise of the judicial discretion which Parliament has imposed upon, and entrusted to, the courts. Of course, on one level the decision may be said to be arbitrary. I could have awarded more, or less, and two judges might (and probably would) have reached conclusions which differed to some degree. To that extent any exercise of judicial discretion may be said to be arbitrary, as indeed Wilson LJ effectively so described it in Jones v Jones at paragraph 35 where he said:

"Criticism can easily be levelled at both approaches. In different ways they are both highly arbitrary. Application of the sharing principle is inherently arbitrary; such is, I suggest, a fact we should accept and by which we should cease to be disconcerted."

69 A decision to award 50 per cent ("sharing") or 45 per cent or 40 per cent or 35 per cent or 31.66 per cent can of course be described as arbitrary, whatever the percentage awarded, and even if it is half, as Wilson LJ said. I, personally, consider that there is nevertheless a distinction between an award which is arbitrary in the true sense, and one which is the product of judicial discretion. An arbitrary result would be one yielded by sticking in a pin, or tossing a coin, or drawing a lot. Judicial discretion is the product of a weighing of all relevant factors and wise, considered and informed decision making by an experienced adjudicator after hearing argument. My decision is a discretionary one, but it is not an arbitrary one.

[Andrewofgg]

In the end you either have done better than the offer or you haven't and if you haven't your opponent should have the benefit of it - to encourage realistic offers.

It might be necessary to postpone payment during the minority of DC - on Mesher terms and as in PI with penal interest.

[LurkingHusband]

Costs are awarded by the discretion of the court.

There have been a few cases where - despite there being a "winner" - both sides have been made to pay their own costs. There was a story a while back where a litigant won the case but had to pay their own costs of hundreds of thousands of pounds- thus bankrupting themselves. It was (surprise surprise) a property/boundary dispute. The judge was very clear it could - and should - have been settled out of court, so "sent a message" (which the supreme court confirmed !).

[Collaborate]

That is to misunderstand the wholly arbitrary system that we have in divorce. You won't know which judge you have until shortly before a hearing, and different judges will produce differing outcomes across the whole spectrum of reasonable orders, which may be rather wide. Provided with parties offers are within that spectrum, both have approached the exercise properly and neither should be penalised on costs.

It is always open to either party to make open offers. The court can certainly take those in to account as if they were Calderbank offers.

[Ann1976]

Hello,
I'm an hoping to get some advice. I am in the midst of divorce proceedings and am trying to keep my children of 7 and 4 in their family home (and the same school). My ex is bullying us to sell the house ( of which he owns a quarter as my parents invested money in the house and own 1/2). My ex has been having an affair for the past year and wants the money from our house to set himself up for the next stage of his life.

Last week in a court hearing centred on children's matters, we offered him a fair lump sum payment and an offer for the rest of the money to be offset and paid when my youngest reached 18 or when there was a 'trigger' event. He refused this offer and my solicitor said that he was in his rights to do so as he needs to rehouse himself. I cannot understand why he cannot be made to consider the offer as he could rent or downsize. The lump sum offered would have been enough to put a deposit down on somewhere decent but further away from the town centre in which we live. His salary would cover a mortgage.

Am trying every possible avenue to keep our home. I cannot afford to pay him the full amount which is equal to 1/4 of the value of the house straight away. I have been to see a financial advisor and have been to see our mortgage lender. I can afford to adjust the mortgage and pay for this on my own with my salary and other income (child benefit etc). Therefore, the only thing that is stopping us staying in our house is my ex refusing this out of court offer.

I have been interested in the 'Calderbank offer' as felt that this would pressure him agree to the fair out of court settlement with the offset payment, as he wouldn't like to risk paying my court costs as well as his own. I am disappointed and bit deflated to learn from this thread that this type of offer may now not exist.

As you can probably tell from the details above, I am dealing with someone who cares more about how much money he will get from our house, than the happiness and stability of his children.

Are there any solicitors out there who can offer me some advice please? Is there anything similar to the Calderbank offer which would work in my situation? I do have a solicitor, but am quickly losing confidence in her as she seems to be more of a mediator and keeps making excuses for him. She hasn't been proactive in giving us positive advice and just seems to respond to demands made by his solicitor.

I'd therefore appreciate any advice please or words of wisdom from those who have been through a similar situation. It just doesn't seem right and fair that he can make us sell the house - if we went to court, wouldn't the judges see that I could now afford to keep the children in the family home on my own and make him take this out of court settlement for the good and stability of the children?

[thisisafakename]

Ann1976, no, Calderbank offers existed previously, only in family law. They have now been abolished, so you cannot costs to pressure settlement.

You can seek alternative legal advice if you wish and that might be the best option for you. However, if your solicitor has explained to you why your lump sum offer to your DH was not fair, it could be that you are intent on securing a particular outcome that would not be fair in the eyes of the law. The court will not order that the resident parent keep the family home in every case, particularly if doing so is not affordable or means the non resident parent cannot find suitable accommodation. Mesher orders (deferred sale) are generally only used where it is not possible for rehoming both parties if the property were sold immediately.

Your parents' contribution would be more likely to be treated as a gift to you jointly, unless your parents wish to intervene and claim that they own half of it. The starting point would be equal division (although this can be departed from having regard to factors such as needs and the interests of the children).

I would suggest that you pay for a couple of hours of advice with a different solicitor, if you have lost confidence in yours. If the advice is similar to what you have already received, you would need to rethink things.

[Ann1976]

Thank you for taking the time to reply. I really appreciate it.

The thing that I just cannot understand is why the lump sum and offset arrangement can be rejected. 30,000 would be the lump sum and and offset payment of about 36,000. Surely 30,000 would be enough to secure a deposit and a mortgage on another home for him? It just seems like the law is against mothers trying to keep their children in the family home. I thought it would be the other way around.

If we were to sell, and I have primary custody of the children with my ex seeing them every other weekend and one night midweek, would I have strong case for gaining 60 or 70% of the equity from the house or not?

Am desperate not to sell, but it seems that the odds are stacked against me. :(

[Ann1976]

Ps. my parent's names are on the deeds to the house, so there is evidence that they own a quarter each. Ex claimed 1/2 initially, but has since changed his claim to owning a quarter as had no evidence for owning 1/2.

[thisisafakename]

Ah, OK that makes a big difference. Often on divorce, one spouse says that the parents own a share because they helped out with the deposit. But if they are actually on the deeds, it will be pretty hard for him to suggest that they don't.

Have you investigated whether your parents could guarantee a remortgage to enable you to buy him out completely? Might not be realistic but for some, this could be an option.

As for getting 60/70% of equity, this is impossible to advise on without knowing all facts and full details of financial positions. Any departure from equality has to be justified on the basis of the 'factors' that the court takes into account when deciding cases. The most important one of these is needs. As primary carer, you would need a suitable property for yourself and the kids. Not the most expensive one out there, but not the cheapest either. One that the court considers 'reasonable'. Would you be able to rehouse with 1/4 of equity and a mortgage? If no, that doesn't sound like a viable option.

You could try presenting it to him as an 'either/or' situation. Either he accepts your lump sum offer (which you can strengthen by finding property particulars for houses that would be suitable for him and which he could afford with a mortgage). Or you suggest you sell and you explain that you need x amount of the equity to buy somewhere suitable (which you back up with property particulars and evidence of investigations you have made into your mortgage capacity). That might work because he might realise that he doesn't have that much to gain by going to court.

I presume you have tried mediation? Not that it sounds like it would be of much help but thought I would check.

[thisisafakename]

Also, the bit about keeping the kids in the family home. In an ideal world, yes, but there is certainly no presumption in favour of it. The court will not deny the non resident parent their share simply to enable the children to stay in the home.
What is usually a guiding factor is how expensive and large is the family home compared to other suitable properties in a similar area? If you had a five bed detached house and could downsize easily to a 3-bed semi, that would point in favour of selling.
Another factor is where keeping the home is not financially realistic- for example where there is a large mortgage and SAHP or low income earner wants to stay in the home. In that case (provided there is sufficient equity), downsizing is usually better because s/he can buy something more affordable and not have to rely on large maintenance payments from the other spouse. It's also fairer on the other spouse who can then get his own suitable accommodation (which he is unlikely to be able to do with large maintenance payments and no deposit).
Hope that makes sense. (FYI my background is as a family law solicitor, although currently non-practising).

[Ann1976]

Thanks so much. Yes, this does make sense. We did try mediation, but were poles apart in what we were likely to agree on. I didn't want to go to mediation for months/years and not get anywhere: He wanted 50% custody of the children and wanted 50% of the value of the family home, even though he only owned a quarter. I have compromised and have offered for the children to spend 1 night in the week with him, even though I was set against it. He doesn't seem to be willing to compromise about much.

We live in a 3 bed terrace in a city. He is currently renting a 2 bed house 10 miles from the city.

As I mentioned previously, I am able to pay the mortgage on the equity left in the house, around 210,000. My parents want keep their grandchildren in their home, so are willing to leave their money in the house.

I could afford a 3 bed outside the city, but the cost of moving would be about 15k and I really don't want the children to be unsettled any more than they already have been. It is a good idea to get evidence of what he could afford with the 30,000 deposit and investigate what his mortgage payments would be- I haven't done this and can see how useful this would be.

We cannot raise the money needed to buy him out completely; that's why we're were relying on this 'offset' payment later.

I think I need to make the lump sum and offset offer again and explain that if it is refused I will go for 60 or 70% of the equity in the house if it's sold, in court. I guess the court costs will be less than the moving costs of 15k. Will it be in my favour that I have previously tried to settle outside of court do you think or will it be irrelevant?

[Two4601]

Was he abusive or is he a danger to your children? Is there any reason why he can't have the children 50% of the time and have 50% of your respective share of the assets? That is the starting point at splits. No court worth their salt will sign off what you are proposing because it's in your interests not his or the children's.

[SpiceLinerandHoneyLove]

Sorry bit what other profession gives away do much free work? The number of posters on here who expect free legal advice is astounding. How many hours of your own jobs do you do for free?
You can afford repayments on a £210k mortgage. You can also them afford to pay someone for their legal advice

[SpiceLinerandHoneyLove]

And agreed. Your proposal IS entirely in your own interest

[Ann1976]

Thanks for the advice 'this is a fake' I really appreciate it. I will book an appointment with another solicitor as you have suggested.

As for the others, I am sorry that you feel the need to kick others when they are down. Evidently, I am trying every avenue possible to keep my children in the same school and home after their dad has decided to start a new life with another woman. Why is this entirely in my 'own interest'? Wouldn't other mums do the same or would they simply stand back and let their children's lives be entirely unsettled and changed?

Obviously, you do not know me and my situation and that's probably why you have written your posts..... Think it's best if I rely on advice from friends in the real world.