Ager v Ager

Where a costs order against a legally aided party is not to be enforced without leave, obtaining leave is itself a step in enforcing the order. Under section 15(4) of the Supreme Court Act 1981, enforcement provisions applicable to High Court orders apply equally to civil division Court of Appeal orders. County Court machinery may therefore be used to determine the assisted party’s recoverable liability under section 17(1) of the Legal Aid Act 1988. Regulation 124(3) permits the Court of Appeal to determine liability where appropriate, but does not require it to do so in every case. The same solution applies whether the order is analysed under regulations 127(a) or 129(b).

In ancillary relief proceedings, the Court of Appeal ordered the husband to pay the wife’s appeal costs, but costs incurred after he became legally aided were not to be enforced without leave. After the husband received money from his father’s estate, the wife and the Legal Aid Board sought to enforce the outstanding costs.

The application was made in the County Court and transferred to Guildford County Court. Judge Slot held that he had no jurisdiction and gave leave to appeal. The central issue was whether the application for leave, and the consequential determination of the husband’s liability, had to be made in the Court of Appeal or could proceed in the County Court.

Lord Justice Simon Brown gave the judgment, with which Mrs Justice Hale agreed. The appeal was allowed and the matter was remitted to the County Court for a further directions hearing and final determination of the husband’s liability for costs. The husband was ordered to pay the costs of the appeal, including those reserved below.

1. The phrase court which tried or heard the proceedings in regulation 124(3) included the Court of Appeal, since that court had heard the appeal. The wife’s argument that the phrase referred only to the County Court therefore failed.
2. The court did not need to resolve whether the original order was properly characterised as made under regulation 127(a) or regulation 129(b). Parr v Smith [1996] 1 FLR 490 and Wraith v Wraith [1997] 2 FLR 415 did not decide the jurisdictional question arising in the present case.
3. If regulation 127(a) applied, regulation 127(b) could be used to refer factual questions for investigation and report. It could not transfer the ultimate determination of the assisted person’s liability to the district judge or other person to whom the questions were referred.
4. Section 15(4) of the Supreme Court Act 1981 applied. An order made in principle and expressed not to be enforced without leave remained capable of taxation and appeal, but required a further step before it could be enforced. Seeking leave, including the determination of the recoverable amount under section 17(1) of the Legal Aid Act 1988, was a step for enforcement of the Court of Appeal’s order.
5. Accordingly, the enforcement machinery applicable to High Court orders could be used for the Court of Appeal order. Section 76 of the County Courts Act 1984 enabled the County Court machinery to be invoked for the final determination.

• Court of Appeal: Allowed the appeal and remitted the matter to the County Court for directions and final determination of the husband’s liability for costs.
• Guildford County Court: Judge Slot held that the County Court had no jurisdiction to entertain the wife’s application, made no order on it, and granted leave to appeal.
• Reigate County Court: The wife’s application was initially made there before being transferred to Guildford County Court.