FD25P00554 - [2025] EWHC 2878 (Fam)

Trustees and personal representatives have a duty to protect the trust fund and, if in complying with this duty they are able to recover costs from another party, they may seek a litigation costs order, that is, an order in relation to the subsisting legal proceedings, as between the parties to those proceedings, in the ordinary way.

One of the difficulties in this case has been to identify which costs regime applies to the present application by the Trust for its costs. However, in determining the merits of the substantive application I was satisfied that the application made by TML by way of Form N244 was properly characterised as a disclosure application made by a non-party in the substantive proceedings that approved the financial remedy order agreed between Ms Rayner and Mr Rayner, in circumstances where that application by TML sought disclosure of material from those proceedings.

Within this context, and whilst I did not receive submissions on the point, I consider that it is the costs regime set out in Part 28 of the FPR 2010 that governs the costs position in this case. However, and in any event if that conclusion is not correct, the practical effect of that conclusion is limited in this case by the fact that large parts of the CPR costs regime are applied in family proceedings notwithstanding the provisions of Part 28 of the FPR and where TML is a “party” to this application for disclosure but not to the substantive proceedings that approved the financial remedy order for the purposes of FPR r. 28.3(5), which disapplies in financial remedy proceedings the usual rule that the unsuccessful party will be ordered to pay the costs of the successful party.

In the circumstances, in determining the application for costs by the Trust in this case I am satisfied that the court should do so by reference to the matters set out in CPR r.44.2(4) to 44.2(7) having regard to the submissions made to, and the conclusions drawn by, the court at the hearing of the application and its assessment of the behaviour of the parties to the application.