Funding for legal costs

Submitted by Azhar Hussain on Thu, 08/29/2019 - 12:17
legal-costs

What do I do if I rely on my ex-partner and cannot afford legal expenses? Does this mean that I will not have access to the same level of legal representation? Well, dependent upon your circumstances, you may be eligible to apply for interim funding for legal costs. This would mean that you would be seeking for your ex-partner to fund your legal costs.

 

The Starting Point

The provisions for a legal costs order are contained within s.22ZA-22ZB MCA 1973, although in certain types of cases these will not apply and instead the court will give regard to principles contained within previous case law.

 

Maintenance Pending Suit

When considering Schedule 1 proceedings (CA 1989) and financial relief proceedings after an overseas divorce (Part III MFPA 1984), the court can order interim legal costs funding and when making its decision, it will be guided by the previous caselaw. The court has previously agreed to include legal costs within maintenance granted to a wife who had her legal aid certificate discharged (A v A [2000]). The case of Currey v Currey [2006] dealt with the issue further and provided guidance of the questions that would be considered when deciding if a costs allowance should be provided.

The following is to be considered:

  • Does the applicant have any asset(s) which could reasonably be deployed to meet the costs?
  • Could the applicant fund the costs by way of a Sears Tooth charge (this would be a deed assigning part of the settlement to your solicitor)
  • Could the applicant raise a litigation loan?
  • Is the applicant able to receive public funding that would provide him/her with legal advice and representation at the appropriate level of expertise for the proceedings? 
  • The court will also consider if the applicant has taken such an unreasonable approach that would make it unreasonable or dissuade a court from ordering costs?

We would need to ensure that we can answer the above questions to satisfy the court that you should receive interim maintenance. We would also prepare a budget to be attached to your witness statement in support of the application. This would comprehensively breakdown your financial circumstances with a view to persuading the court that your application should succeed. In normal circumstances, such an award of costs is initially limited up to the FDR Hearing. This is to persuade the applicant to try to settle the matter without the needs of incurring the substantial costs attached to a final hearing.

 

Legal Services Order

In terms of financial relief proceedings generally, the position has changed. In separation proceedings (divorce, judicial separation, and nullity), the court does not make maintenance pending suit orders for legal costs. Instead, under s.22ZA-22ZB MCA 1973, the court can make legal services orders. These would be payments by your ex-partner towards your legal costs and can be paid in a lump sum or installments. It is also possible for the order to be secured with a charge over a respondent’s property. This tends to rise when there are no other resources.

We will need to demonstrate the following when making such an application:

  • That the applicant cannot reasonably secure a loan to fund the legal costs;
  • That the applicant is unlikely to be able to obtain legal services by granting a charge over assets (i.e. property) that may be recovered;
  • That the applicant would not reasonably be able to obtain appropriate legal services for the proceedings.

 

The Court

The court will consider the overriding objective (FPR 1.1) and numerous statutory points when deciding the outcome of such an application. 

This includes:

  • the income, earning capacity, property and other financial resources which each of the applicant and the paying party has or is likely to have in the foreseeable future,
  • the financial needs, obligations and responsibilities which each of the applicant and the paying party has or is likely to have in the foreseeable future,
  • the subject matter of the proceedings, including the matters in issue in them,
  • whether the paying party is legally represented in the proceedings,
  • any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise,
  • the applicant's conduct in relation to the proceedings,
  • any amount owed by the applicant to the paying party in respect of costs in the proceedings or other proceedings to which both the applicant and the paying party are or were party, and
  • the effect of the order or variation on the paying party.

s.22ZB (1) (a-h) MCA 1973

 

Contact Optimal Solicitors on 0161 250 7771 and we can assist you with the process. If your application is successful, you can rest easy knowing that you can afford to instruct legal representatives on your behalf.

Author

Azhar Hussain
Azhar Hussain
Azhar is an experienced Solicitor specialising in Family, Civil and Criminal law. As Head of the Family Department, Azhar deals with all aspects of family law including divorce, financial ancillary relief, cohabitation disputes and issues relating to children. Azhar has recently advised on a complex ToLATA matter, which was successfully defended. His clients say "From the first conversation with Azhar, he had grasped the complexity of the issues and discussed my options. Azhar has been most professional and supportive from the very beginning. I feel reassured and secure with Azhar dealing with my case".
 
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