Blog: Legal Services Orders, Part One

Following the Becket Chambers summer series of seminars in Canterbury, Dartford, and Eastbourne, below is a very condensed précis of one of the talks – legal services orders.

There are two regimes to be aware of:

  1. Costs Allowances (the old regime); and
  2. Legal Services Orders.

Costs Allowances

Although I refer to CA’s as the old regime, they still apply in some cases. For example, when dealing with a Schedule 1 case, an application to court would be for a costs allowance rather than a LSO.

When looking at costs allowances, we start with a maintenance pending suit case: A v A (Maintenance Pending Suit:   Provision for Legal Services) [2001] 1 FLR 377. In this case, Holman J included within MPS an award for legal services. These became  known as “Costs Allowances”

In TL v ML (Ancillary Relief: Claims Against Assets of Extended Family) [2005] EWHC 2860 (Fam) a three stage test was set out. The applicant for an order must have no assets, must be unable to secure a litigation loan, and must be unable to persuade his solicitors to enter into a Sears Tooth agreement.

Re G (Maintenance Pending Suit) [2006] EWHC 1834 (Fam) established the principle of ‘equality of arms’ which I say is the most important factor for the future.

Currey v Currey (No 2) [2006] EWCA Civ 1338 elaborated on the TL v ML test. In Particular, “no assets” should not be taken literally, but should be taken to mean no assets that can be reasonably deployed.

On 1 April 2013 costs allowances were given statutory force and LSO’s were created.

Sections 22ZA and 22ZB were inserted into the Matrimonial Causes Act 1973 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Legal Services Orders

If handling a matrimonial finance case, an application will be for a LSO, and not a CA.

The two statutory provisions of the Matrimonial Causes Act 1973 are:

  1. s22ZA: the court can make a LSO; and
  2. s22ZB: what a court is to consider when deciding whether to make a LSO.

Under s22ZA(1) court may make an order requiring party to the marriage to pay to the other an amount for  the purpose of enabling that party to obtain legal services for the purposes of the proceedings.

The test for a LSO is the same as a CA:

STAGE 1: Applicant will not reasonably be able to obtain appropriate legal services without an order. To satisfy this requirement, the applicant will need to establish:

  1. that he is not reasonably able to secure a loan;
  2. that he is unlikely to be able to obtain legal services by granting a charge over any assets recovered in the proceedings;
  3. that he is unable to secure a Sears Tooth agreement.

We turn to the old case law for guidance:

Applying TL v ML, letters from at least two banks refusing loan and a letter from a solicitor refusing a Sears Tooth will normally suffice.