Some recent thoughts about costs and family law

JUNE 16, 2023

POSTED BY: Zoë Bloom

BloomBudd LLP is passionate about creating transparency for clients in relation to their costs when going through separation. That is why our hourly rates are on our website. It is why our client care letter dedicates an entire page to how clients can take responsibility for and manage the incidence of their own legal fees. It is why we provide thorough costs estimates at the earliest opportunity and regular updates. It is why we don’t charge for two lawyers in a meeting or for lawyer learning or any of the administrational tasks which relates to client’s matters.

But that doesn’t mean legal advice is cheap. Nor does it mean solicitors have control over the level of fees. There are endless things which impact on a client’s bill and few of them are within our control.  

Hunters recent article [] in the Financial Remedies Journal is brilliant and thought provoking. Well worth a read.  The article sets out the history to LSPOs and some valuable commentary detailing the recent case law. One interpretation of the progression of case law is that the courts are using legal service payment orders to try and curtail the very high costs incurred in litigation to make a point about legal fees. The temptation to do this is understandable but are LSPOs the right arena? Doesn’t this approach aggressively penalise those without access to funding as well as solicitors and members of the Bar trying to help?  (as an aside, it should be a mandatory order that anyone defending an order for a LSPO produces complete schedules of all fees they have incurred and their own cost estimates. It is ridiculous that we need to apply for this information when it is completely central to the question of whether fee quotes are reasonable).

The rhetoric coming from these decisions, is that legal fees are increased by greedy legal teams. This could not be less helpful to the lawyer/client relationship. That relationship is already loaded with difficulties – people (unsurprisingly) do not like paying legal fees while they are going through one of the most difficult periods of their lives. Even less, paying for their ex husband or wife’s fees. But the current direction of decisions is putting additional and unwanted pressure on the relationship between client and solicitor. This conflicts with the positive work being undertaken to try and improve the wellbeing of members of our profession.

The judgments within substantive cases are more helpful. The case law which has established since Rothschild v De Souza [2020 EWCA Civ 1215] has established that litigation conduct (or misconduct) can be taken into account resulting in the recipient party receiving less than their needs. The approach seems to fairly place the responsibility for high fees with the client. So too is the judicial encouragement to openly negotiate or face costs consequences and FPR 9.27A ordering open offers 21 days after the FDR (leaving aside the fact 21 days is too fast – we all need time to collect ourselves post FDR and quite often there are directions which are sought post FDR which were not pursued in advance in the interests of proportionality but without which, advice in relation to open offers cannot be provided). Despite this, we still hear commentary from the judgments which is clearly directed at the conduct of the legal team (see for example Crowther v Crowther & Ors). We cannot dwell on whether the accusations are fair but perhaps we should question whether they are appropriate. We should consider the context of how legal fees increase during a case and the serious problem we have as a profession, in maintaining the relationship between client and solicitor.

Of course we cannot complain without proposing solutions. At BloomBudd LLP we are trying to make the changes to the way solicitors charge from within – providing fee quotes, being transparent and delivering  warnings to clients about proportionality. We try to engage quickly in processes so that we can move towards resolution from the outset and correspondence is kept to a minimum. We also involve counsel in settlement discussions because for reasons which are endless frustrating, clients are usually more inclined to take advice about settlement from counsel than from solicitors. More widely, the profession could do with some help. Cost estimates that need to be provided with the Forms H are routinely provided by way of one single unexplained figure. Forcing firms to ‘show your workings’ would ensure that clients were made fully aware of the potential ongoing costs. The statement of truth, which confirms that the figure has been discussed with the party by their solicitor and served on the other party is taken as quite a light obligation – can the client sign these off instead of the solicitor? The reintroduction of Calderbank offers is probably a question for another time, and comes with significant issues, but must be within the debate.

We need the judiciary to support those in practice rather than take swipes at easy targets. And those in practice need to ensure they do everything they can to keep clients informed about the costs and the things they can do to curtail them. And I haven’t even started on litigation funding…