Any client asking a lawyer how much his or her
divorce will cost is likely to be met with the not entirely helpful response ‘how
long is a piece of string?’
This article is intended to give some general help with
understanding what cost variables are in a divorce case.
Although in many cases it isn’t possible to predict in
advance what the final cost of a divorce will be, it ought with a bit of
analysis to be possible to provide a very, very rough estimate. Certain
variables in divorce are known in advance. For example in any contested divorce,
the court will fix a timetable which stipulates periods for lodging and
exchanging of various documents including any defence, and the fixing of what is
called an options hearing. It is at the options hearing the sheriff will assess
the parties’ readiness to proceed with the case to a final hearing, called a
There are also various fees which require to be paid to the
court, and the lawyer will know what these will be.
All of this is reasonably standard.
One major variable is of course the basis on which your
lawyer chooses to charge for the work they do. Lawyers are now required to send
clients a letter setting out their standard terms and conditions which will
include their charging rates. By comparison, under legal aid, the Legal Aid
Board will pay a fixed fee to a lawyer for all work done up to a certain stage
of a case. The client may be able to come to an arrangement with their lawyer
for a fixed fee on a similar basis. However, many, if not most lawyers, dealing
with private clients would probably prefer to charge on a strict ‘time and line’
basis. That means they would expect to be paid for each item of work done –
writing a letter, reviewing a document, meeting with a client, phoning the
client or the opposing lawyer – and so on. The disadvantage of that kind of
arrangement is that you the client have little control over the bill for your
case. The client therefore needs to establish what exactly is the basis on which
they’ll be charged for their lawyer’s work.
You can of course help yourself – and I encourage all my
clients to do this where this kind of arrangement operates – by not making too
many calls to your lawyer or keeping meetings to the minimum absolutely
necessary. It also helps to keep meetings as short and as focused as possible.
All of that can be done with good preparation. I also encourage my own clients
to correspond with me where possible by e-mail as I would not generally charge
at least for reviewing an incoming e-mail unless it was extremely long.
What the client can’t control of course is the activity of their spouse’s
lawyer who may be firing off multi-page letters at a time – for review of all of
which your own lawyer would be entitled to charge – and/or court motions
(applications for interim orders.) Your lawyer then of course needs to speak to
you about these and then act on your instructions.
The other variable that is difficult to predict unfortunately
is incidental applications to the court called motions. These are applications
to the court for immediate orders whether in relation to financial issues or the
children of the marriage. If a motion is opposed, it results in a hearing having
to be fixed, which obvious results in increased cost. I’ve dealt with some cases
where I personally have had to make a very large number of motions for the
client. In other cases, the other side might have a habit of making motions to
When it comes to preparing for the proof, the costs can
unfortunately escalate quite considerably especially if you’re the Pursuer in
the action. That’s because, as the Pursuer, you’re responsible for arranging and
paying for a shorthand writer to take down the evidence. Shorthand writers
charge £50 per day just as a reservation fee. The cost for attending the proof
runs into several hundred pounds per day, additionally, whether or not the notes
are actually typed up. If the notes do have to be typed up, then the costs
escalate massively. The cost of preparing typed notes of evidence is very high,
and can run into thousands, depending on the length of the proof.
It is also likely that in the run up to the proof, further
motions to the court may have to be made. Additionally witnesses will have to be
cited and even before then they have to be interviewed, statements taken from
them, and prepped for proof. Obviously, that doesn’t mean being coached. It is
though entirely permissible, and frankly advisable, to make sure a witness knows
as far as possible what areas they’ll be asked to cover when giving evidence and
also how to present in court. For example, witnesses should be told to keep
their answers short, to keep their cool, to dress appropriately, not to answer
questions they don’t know the answers to – and so on.
It’s important for the client to understand and accept that
the more witnesses cited, the more the cots will escalate because of the court
time involved in hearing those witnesses. A witness list should be kept as short
Then there is then the cost of the lawyer’s own time at
court. A day in court for a lawyer assuming a start time of 10:00 until 16:00
could cost a reasonably well-off client £2,000 assuming a charging rate of £250
per hour. (My own hourly rate is lower than this). Some lawyers charge even
more. You could, of course, ask your lawyer to agree a daily fee, and some may
Your lawyer may well suggest in some situations that due the
complexity of the case, they would want to instruct counsel. This means they
would contact an advocate in Edinburgh, either senior or junior, and they would
have primary responsibility for dealing with your case. This should be avoided
at all costs. At the very least, you should take a lot of persuading that this
would the correct course of action. Advocates are extremely expensive, and their
involvement adds another significant layer of cost to a case. Many advocates
would charge around £1200 for a single day in court, for example, regardless of
how long a time was actually spend in court. You would also have to pay your own
lawyer’s charges for instructing counsel, because counsel are not generally
allowed to deal directly from the client.
The next problem is in relation to the expenses of the court
case. Generally Scots law operates a rule whereby if you win a case, your
opponent has to pay not just their own legal expenses but yours as well. That
rule is subject to various modifications. If your spouse is on legal aid, they
can apply to the court for an order that they shouldn’t have to pay expenses, or
all of them. If the Sheriff
feels that in a case involving a number of issues, there’s
been mixed success, the expenses may be shared.
The other thing to bear in mind is that even legal aid
clients aren’t always protected from this rule. That’s because the Legal Aid
Board have a rule that where a lawyer recovers money for a client who’s on legal
aid then the first claim on that money is whatever the Legal Aid Board have paid
to the lawyer i.e. the cost of the case. The first £5000 or so of any money they
get is however exempt from recovery. Anything over that amount will attract the
If after divorce proceedings have been raised, there’s any
proposal for settlement, it’s important to be alive to the issue of expenses
whether you’re on legal aid or not. Your lawyer should make this clear for you
but you should always make sure you know what you’re actually going to
get at the end of the case.
A client should never, therefore, accept the answer quoted at
the start of this article. While it will rarely be possible to tell a client
exactly what a case might cost, it ought to be possible to give the client
ballpark or conditional figures.
It is also important for the client – and frankly just as
much for the lawyer – to make sure anything said about fees is put in writing. I
used to handle complaints reporting for the Law Society on an ad hoc basis and a
frequent source of trouble was the failure by the lawyer and client to put in
writing any agreement on payment of fees. A client might for example claim that
their lawyer told them their case would cost no more than a certain amount. They
would then complain if the lawyer ultimately billed them for more than that.
Review of the relevant file often revealed nothing to support that claim.
Always, therefore, get it in writing.
To summarise, the client needs to:-
1. Establish the basis on which they’ll be charged legal
fees, and also query whether the fees mentioned are negotiable, and if so, on
2. Get fee terms confirmed in writing
3. Make sure that meetings and court motions are kept to the
minimum necessary for the proper conduct of the case
4. Know what their case is likely to involve in general terms
– number of witnesses likely to be required, involvement of experts and
associated costs, expected duration of proof, documentation to be reviewed,
involvement of counsel – and so on.
5. Fully understand the implications of any settlement
proposal in terms of cost to them.
copyright Al Gordon 2009