Having recently discovered that it is a little known fact that it is possible to make Legal Services Payment Orders (LSPOs) in Children Act proceedings, it seemed like a good idea to share that in a short article.
Of course, it is not possible to invoke the statutory Matrimonial Causes Act jurisdiction to make LSPOs in Children Act proceedings, as S.22ZA MCA 1973 applies only to financial remedy cases but, it seems not to be generally realised that the statutory jurisdiction grew out of common law and that the common law jurisdiction remains, although strictly calling them legal costs funding orders is more accurate.
My recent case in which this issue arose was before a High Court Judge who was absolutely clear that he had jurisdiction, and it has now been transferred to a S.9 Judge but, the one hesitation that I have about this jurisdiction is to what extent it applies to a judge without access to the High Court jurisdiction, because the cases are not absolutely clear on this point, although I tentatively suggest that without the High Court jurisdiction any gaps could be made up by incorporating an application under Schedule 1 of the Children Act.
Otherwise, reference to two cases should suffice to succinctly map out both the jurisdiction and the principles:
BC v DE [2016] EWHC 1806 (Fam), [2017] 1 FLR 1521, Cobb J:
The headnote reads:
Held – awarding the mother £212,438.78 in respect of her legal costs –
There was no dispute that the court had the power to make a legal costs funding order in respect of the costs of both the Sch 1 claim and the s 8 claim: CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2010] EWHC 1754 (Fam), [2011] 1 FLR 208. The court had to exercise its discretionary power with a view to promoting fairness between the parties exercising a judicious mix of caution and realism: Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946. This was a case in which the mother had a proper case to put before the court; it was a case in which her legal costs, were broadly on a par with those of the father. He self-evidently, had the means to pay, though he may well not be able to recoup the costs allowance awarded. It was clear that the mother could not reasonably obtain legal costs funding elsewhere; it would not be fair or reasonable for the mother and her solicitors to be labouring under the disadvantage of financial pressure in the preparation of the important case in the lead up to the final hearing (see paras [11], [27]).
The Judgment reads:
[11] There is no dispute that I have the power to make a legal costs funding order in respect of the costs of both the Sch 1 claim and the s 8 claim: see CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2010] EWHC 1754 (Fam), [2011] 1 FLR 208, at [36]: ‘the “equality of arms” point can apply in s 8 proceedings just as it has been found to warrant a provision for costs in Sch 1 proceedings’.
[12] The common law jurisdiction for the making of an order for legal costs funding is now well-established. It finds voice first, for present purposes at least, in Holman J’s judgment in A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 WLR 605, [2001] 1 FLR 377, followed soon thereafter by Charles J in G v G (Maintenance Pending Suit: Costs) [2002] EWHC 306 (Fam), [2003] 2 FLR 71; Moses-Taiga v Taiga [2005] EWCA Civ 1013, [2006] 1 FLR 1074 was then decided in the Court of Appeal in which Thorpe LJ said that ‘it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction’. In Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946 the Court of Appeal dismissed (at para [19]) the suggestion that the word ‘exceptional’ had been used in Moses-Taiga otherwise than to illustrate the combination of circumstances whereby the applicant for funding has no assets, cannot raise a litigation loan, and cannot persuade her solicitors to enter into a Sears Tooth charge (a deed of assignment of her rights to financial provision). Wilson LJ observed that: ‘whenever a court decides to make a costs allowance, it ought to proceed with a judicious mixture of realism and caution as to both its amount and its duration.’ (at para [28])
[13] In relation to matrimonial and civil partnership causes, the common law jurisdiction has now been replaced by s 22ZA of the MCA 1973 (inserted by s 49 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).
MG, JG v JF [2015] EWHC 564 (Fam), [2016] 1 FLR 424, Mostyn J:
The headnote reads:
Held – Ordering JF to pay 80% of the claims of MG and JG and 80% of all future professional costs in respect of therapeutic work; ordering the costs of further expert reports to be met by the child –
(1) Distilling the principles in Rubin v Rubin [2014] EWHC 611 (Fam), [2014] 2 FLR 1018, CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2010] EWHC 1754 (Fam), [2011] 1 FLR 208), and Currey v Currey (No 2) [2006] EWCA Civ 1338, [2007] 1 FLR 946 on the facts of this application the following considerations were engaged:
i) the subject matter of the application was centrally relevant, as was the reasonableness of the applicant’s stance in the proceedings;
ii) there were generally recognised advantages flowing from competent representation, and from there being an equality of arms in an investigatory as well as in an adversarial process;
iii) the court could not make an order unless it was satisfied that, without the payment, the applicant would not reasonably be able to obtain appropriate legal services for the proceedings. A costs allowance should only be awarded to cover historic unpaid costs where the court was satisfied that, without such a payment, the applicant would not reasonably be able to obtain in the future appropriate legal services for the proceedings;
iv) in determining whether the applicant could reasonably obtain funding from another source, the court would be unlikely to expect her to sell or charge her home or to deplete a modest fund of savings. That aspect was, however, highly fact-specific (see para [22]).
(2) Although MG and JG were not entitled to an order for costs, they were entitled to seek an order for costs funding. It was impossible for them to be expected to represent themselves having regard to the factual and legal issues at large. There would be a gross inequality of arms, and arguably a violation of their rights under Arts 6 and 8 of the European Convention and Art 47 of the Charter of Fundamental Rights of the European Union. So even though it could not be said that JF had behaved reprehensibly or unreasonably, he was the only realistic source of costs funding, subject to whatever contribution MG and JG should make from their own very limited resources. Furthermore, he could meet the costs without undue hardship. Some may say that that was grossly unjust but that was where the legal aid reforms had left him (see paras [10], [35], [36]).
(3) The cost of reports from a psychologist and an educational psychologist would be met by the child as a reasonable charge on his legal aid certificate. Were the child not legally aided, but funded from another source, the court would have no hesitation in making an order that the child bore the costs of further expert reports given that MG and JG did not have the means to do so, and given the burdens that had already been imposed on JF. Further, and in any event, it was just and reasonable that the child bore those costs whether or not he was legally aided because, at the end of the day, the fees were being incurred primarily for his benefit (see para [40]).
