Judge urges action as he blasts “apocalyptic” costs in divorce case

“Steps must be taken” to curb costs, says Mr Justice Mostyn

A senior Family Court judge has urged the government or Family Procedure Rule Committee to take action to curb the costs of divorce proceedings after describing the costs in a case as “apocalyptic”.

In Xanthopoulos v Rakshina [2022] EWFC 30, the parties had incurred £5.4m in costs in just 18 months, with total future costs likely to be between £1.8m and £2.6m.

Mr Justice Mostyn said: “I have struggled to find the language that aptly describes the exorbitance of the litigious conduct of the parties in the case before me since it began on 21 September 2020 when the husband filed his petition… The only word I can think of to describe it is apocalyptic.”

He said figures like this were “hard to accept even in a conflict between the uber-rich”, but in this case the wife's Form E disclosed two properties in London each worth about £5m plus £11m in the Coutts bank account.

Mostyn J said it was “difficult to know what to say or do when confronted with such extraordinary, self-harming conduct”.

He continued: “Periodically the judges bemoan the heedless incurring by divorcing parties of huge costs. What was regarded in 1996 as gross costs inflation was the principal driver for the ancillary relief pilot scheme of 25 July 1996: Practice Direction [1996] 2 FLR 368. In 2014 in J v J [2014] EWHC 3654 (Fam), [2016] 1 FCR 3 I exploded with indignation at the rate and scale of costs incurred in that case and solemnly pronounced that ‘something must be done’.

“With the benefit of hindsight those costs – a total of £920,000 – now seem almost banal. The rules have been changed so that orders have to record the costs incurred and to be incurred (see FPR 9.27(7)). Para 4.4 of FPR PD 28A has been introduced to try to force parties to negotiate openly and reasonably in order to save costs. Yet costs continue to go up and up.

“In my opinion the Lord Chancellor should consider whether statutory measures could be introduced which limit the scale and rate of costs run up in these cases. Alternatively, the matter should be considered further by the Family Procedure Rule Committee. Either way, steps must be taken.”

The judge also condemned the parties’ “shocking” preparation for the interim hearing, with documents filed late and well beyond the length allowed.

“This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored…

“It should be understood that the deliberate flouting of orders, guidance and procedure is a form of forensic cheating, and should be treated as such. Advisers should clearly understand that such non-compliance may well be regarded by the court as professional misconduct leading to a report to their regulatory body.”

The applicant husband appeared in person. Simon Calhaem (instructed by Family Law in Partnership) for the respondent wife.