Decline in Availability of Legal Aid

However, there remains significant assistance to those people, whether married or not, to pursue their legal case with the help of what is known as legal services and payment orders (LSPO): an order that the other party pays for your legal services.

This should be distinguished from a legal costs order.  In family proceedings, the usual order is that there is no order for costs.  However, in rare circumstances, costs orders can be made where one party has behaved particularly badly and, in so doin,g has inflated the costs of the proceedings for the other party.

For married people, assistance is available pursuant to Section 22ZA of the Matrimonial Causes Act 1973 for a legal services payment order.  The test for that application is as follows:-

The court must not make an order under this section unless it is satisfied that (without a legal services payment order) the applicant would not reasonably be able to obtain legal services for the purposes of proceedings.

If a client is able to borrow money to pay for legal services from whatever source, the court will not make an order to assist.

If a solicitor’s firm is willing to assist a client under a Sears Tooth arrangement (i.e., that no payment is made for legal fees until the conclusion of the case) then the court will not make an order.

If your solicitor is able to offer you litigation finance through one of the litigation funding providers such as Novitas or Iceberg, the court will not make an order to assist you.

If none of these avenues remain viable, you are able to seek an order from the court for your spouse to pay your solicitor’s bills.  In deciding whether to make such an order the court will assess:-

  1. the income, earning capacity, property and financial resources of each of the parties;
  2. the financial needs, obligations, and responsibilities which each of the parties has now or in the future;
  3. the subject matter of proceedings, including what is at stake and the issues between the parties;
  4. whether the paying party is legally represented;
  5. any steps taken by the applicant to avoid all or part of the proceedings by, for example, offering mediation;
  6. the applicant’s conduct in proceedings, and
  7. any amount owed by the applicant to the other party in respect of costs.

Similarly, unmarried parents are able to seek legal services payment orders under Schedule 1 of the Children Act 1989 in order to pursue financial claims against the other party for:-

  1. Housing (usually held subject to a trust or settlement to revert to the paying parent when the child has reached 18 or left education).
  2. Repeated lump sums for items such as furniture, cars, educational assistance.
  3. In limited cases, top-up child maintenance orders when the parent has a weekly income in excess of £3,000 gross per week or is resident abroad and therefore outside the jurisdiction of the Child Maintenance Service.

In the recent case of BC v DE [2016] EWHC 1806 (Fam) the court even went so far as to award an unmarried mother historic costs as well as her projected costs to the end of proceedings.

In this case, the father was a multi-millionaire and the mother was very much financially dependent on him.  The parties lived together, but never married and had a child together. The mother made an application under Schedule 1 of the Children Act 1989 for financial provision, lump sum, maintenance and a legal services payment order.  The mother was unable to borrow or take up litigation finance.

On the mother’s behalf, it was agreed that the mother should be able to recover her historic costs as well as projected costs, because otherwise the solicitors’ outstanding bills would remain unpaid and it was considered unlikely that the solicitors would agree to continue acting and assist the mother in the future.  The judge agreed that the solicitors should not bear the burden of taking on commercial risks for such matters, and granted the mother a legal services payment order.  The judge considered that there was no logical distinction between ordering father to pay outstanding legal costs and projected costs to the end of the case.  The judge did not consider it reasonable to expect solicitors to offer unsecured credit to clients in order to undertake legal work and that it was unwise to place legal firms in a position where they had a financial interest in the outcome of litigation.

If you would like to discuss the availability of litigation funding or the possibility of applying for a legal services payment order, please contact the family team at Myerson.

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