Polly Atkins reviews guidance on applications for security for costs in Family Law Journal

Polly’s article was published in the Family Law Journal, May 2022, and can be seen here.

Polly Atkins, Associate in our Family & Relationships department, reflects on the landmark judgment in MG v AR [2021], delivered by Mostyn J, which remains the leading authority on security for costs in family proceedings under the Family Procedure Rules 2010.

The case involved a cross-jurisdictional dispute over a child’s residence, with the mother seeking security for costs against the father, who had significant outstanding debts and resided abroad.

Mostyn J provided a comprehensive framework for such applications, drawing on civil procedure principles while tailoring them to the unique context of family law. He clarified that a gateway condition, such as the applicant residing outside the jurisdiction, must first be met, followed by a discretionary assessment of whether it is just to make the order, considering the merits of the case, the applicant’s means, and the likelihood of non-payment.

The judgment also addressed procedural and practical considerations, including the timing of applications, the quantum of security, and how it should be paid. Mostyn J emphasised that awards should be calculated robustly and may include historic costs, especially where delay in application is justified. He also stressed that any order must align with the child’s best interests, particularly in children proceedings.

Ultimately, the judgment not only granted the mother £50,000 in security for costs but also set out a clear procedural roadmap for future cases. While such applications remain rare, this decision is expected to guide practitioners in exceptional cases where a costs order is likely and enforcement is uncertain.

Read the full article on the Family Law Journal website [subscription required].