An Update from Nicholas Starks: New Forms H and H1 and changes to the costs rules

Devotees of the Family Procedure Rules 2010 (FPR) will undoubtedly have been eagerly awaiting the ‘new’ costs Forms H and H1, which had been heralded by recent amendments to FPR 9.27. The new forms, which will come into use from 6.7.20, are attached. The following practical / procedural points should be noted:

  • (FPR 9.27(1)) an estimate of costs incurred to date must be filed and served at least one day before every hearing/appointment (other than the final hearing – see below);
  • For the FDA and FDR appointment, this must include an estimate of costs to the next hearing assuming settlement is not reached (9.27(2) and (3));
  • “Costs particulars” for the final hearing must be filed and served no less than 14 days before the final hearing (9.27(4));
  • The estimates must confirm that the figures have been discussed with the client and served on the other side (9.27(5) and be confirmed by a statement of truth (PD 9A);
  • The estimates/particulars must be brought to court (9.27(6)) and the figures recorded in the court order for that hearing (FPR 9.27(7));
  • Any failure to comply with rr.9.27(1-4) must be recorded in a recital to the order and remedied by a direction that the estimate must be filed and served within 3 days following the hearing (9.27(8)).

Readers are also reminded of:

(1)   FPR 9.27A (open proposals) which provides that:

An open proposal must be filed and served within 21 days following the FDR (or such other time as the court directs: 9.27A(1)) – this is in addition to the duty (r.9.28) to file open proposals 7/14 days before the final hearing;
If no FDR takes place, the open proposals must be filed and served at least 42 days before the final hearing (9.27A(2)).

(2)   an unreasonable failure to make open proposals may be regarded as litigation misconduct and potentially sound in costs; PD 28A para 4.4  provides “The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs”

Nicholas Starks, St Ives Chambers, Birmingham                                          
22 May 2020

Form H

Form H1