Costs in financial remedy proceedings are often described as the exception rather than the rule. The starting point under FPR 2010 r.28.3 is clear: no order as to costs.
But as the recent decision in LP v MP [2026] EWFC 36 demonstrates, that starting point can shift dramatically where litigation misconduct is serious. In that case, the wife was ordered to pay £275,000 towards the husband’s costs following findings of litigation misconduct in the substantive proceedings.
For practitioners and litigants alike, the message is simple: conduct matters — and it can be expensive.
The Legal Framework: Why Costs Are Different in Financial Remedy Cases
Unlike most civil litigation, financial remedy proceedings do not operate under a “loser pays” regime. The rationale is policy-driven: the court is engaged in a discretionary redistribution exercise under s.25 MCA 1973, not adjudicating a conventional claim.
However, r.28.3(6) sets out the factors the court must consider when deciding whether to depart from the no-order principle. These include:
- Conduct in relation to the proceedings (including compliance with orders),
- Whether it was reasonable to pursue or contest a particular issue,
- The manner in which a party has pursued or responded to the application,
- Any open offers to settle.
The focus is squarely on litigation conduct, not simply moral blameworthiness.
What Happened in LP v MP?
In the substantive judgment, the court made strong findings about the wife’s conduct in the litigation. That misconduct then became the foundation of the husband’s subsequent costs application.
The court concluded that the wife’s behaviour went well beyond ordinary forensic robustness. It fell into the category of conduct that justified a clear departure from the usual rule — resulting in a substantial costs order of £275,000.
While costs awards of this magnitude remain relatively unusual in financial remedy proceedings, they are no longer rare where the court finds:
- Deliberate non-disclosure,
- Tactical obstruction,
- Serious procedural non-compliance,
- Or abusive litigation behaviour designed to drive up costs.
The court was not imposing a “penalty”. It was compensating the innocent party for costs unnecessarily incurred due to the other party’s litigation misconduct.
Substantive Conduct vs Litigation Conduct
It is important not to conflate two distinct concepts:
- Conduct under s.25(2)(g) MCA 1973 — which may (in rare cases) affect the substantive award.
- Litigation misconduct — which generally affects costs.
The appellate authorities have consistently emphasised that substantive conduct must usually have a clear financial consequence before it affects the distribution. Litigation misconduct, however, sits in a different category and is ordinarily addressed through costs.
LP v MP is a clear reminder that even where the substantive award has been determined, the financial consequences of how a party conducted the litigation can still be significant.
Procedure: How to Seek a Costs Order
If you are acting for a party seeking costs in financial remedy proceedings, procedural discipline is critical.
- Give Notice
A party seeking costs must make that clear at the appropriate hearing. It should not come as an ambush.
- File a Schedule of Costs
A detailed, properly prepared schedule is essential. It should:
- Be proportionate,
- Identify costs attributable to misconduct where possible,
- Be supported by evidence.
- Link Conduct to Costs
The court will want to understand:
- What conduct occurred,
- Why it was unreasonable,
- How it caused additional or wasted costs.
Vague complaints rarely succeed. Specificity wins.
- Be Realistic
Even where misconduct is established, the court retains discretion. It may:
- Order a proportion of costs,
- Limit costs to a defined issue,
- Or reduce the amount claimed if disproportionate.
Practical Tips to Avoid a Costs Order
For litigants and practitioners:
- Comply meticulously with directions and disclosure obligations.
- Avoid advancing hopeless arguments purely for leverage.
- Keep correspondence measured and proportionate.
- Make sensible open offers — they remain highly relevant.
- Think carefully before escalating satellite disputes.
Costs awards in this arena are often driven by cumulative behaviour rather than a single misstep.
A Broader Trend?
Over recent years, there has been a discernible judicial willingness to enforce procedural discipline more robustly in financial remedy cases. Courts are increasingly prepared to:
- Penalise serious disclosure failures,
- Sanction deliberate delay,
- Protect parties from abusive litigation strategies.
LP v MP sits squarely within that trajectory.
Final Thoughts
The “no order as to costs” principle should not be mistaken for immunity. It is a starting point — not a shield. Financial remedy proceedings are discretionary, fact-sensitive, and often emotionally charged. But they are still litigation. And where a party’s conduct drives unnecessary expense, the court has both the jurisdiction and the willingness to respond.
In LP v MP, that response was £275,000.
A sobering reminder that in family finance, how you litigate can be almost as important as what you litigate.
