AM v SS

When deciding whether to make a legal services order, the court must first be satisfied that the applicant cannot reasonably obtain appropriate legal services without the order, including by a loan or a charge over assets likely to be recovered. The court must then exercise its discretion by considering the statutory factors and the overriding objective in the Family Procedure Rules 2010. Ensuring that parties are on an equal footing may carry particular weight in complex financial remedy proceedings. The order need not meet all historic or projected costs. A charge over an identifiable asset may be preferable to a cash payment and may be limited and structured to remain proportionate.

The wife applied for a legal services order during heavily contested financial remedy proceedings. She sought funding for costs already incurred and estimated future costs. Her case was that she lacked liquid resources, could not obtain a loan or charge-back funding, and would otherwise have to act in person. The husband disputed the availability of resources, the merits of aspects of her claims, and the proportionality of the costs.

The court considered the husband’s available equity, third-party financial support, the complexity of the proceedings, the parties’ representation, and the statutory and procedural criteria governing legal services orders.

1. The application was granted in part by ordering the husband to provide the wife with a charge over the Maida Vale property for legal services, limited to £150,000. £100,000 was allocated to future costs to the conclusion of the final hearing and £50,000 to costs incurred to date.
2. Under sections 22 ZA and 22 ZB of the Matrimonial Causes Act 1973, the court had to be satisfied that, without the order, the wife could not reasonably obtain appropriate legal services. That included satisfaction that she could not reasonably secure a loan or obtain services by granting a charge over assets recovered in the proceedings.
3. The court was satisfied that the wife could not obtain funding by those means or through her family. The only asset safely available to the husband was the equity in the Maida Vale property. The evidence did not justify treating the other properties as presently available resources.
4. The court had regard to the statutory factors, including resources, needs, the subject matter of the proceedings, representation, conduct and the effect of the order. It also applied the overriding objective in rule 1.1 of the Family Procedure Rules 2010, particularly proportionality, equality of footing and saving expense.
5. Complexity and equality of footing strongly favoured legal representation for both parties. The court remained unable to reach more than tentative conclusions about the merits of the wife’s claims. That uncertainty did not prevent an order, but proportionality required an award below the total historic and estimated costs.
6. No cash payment or interest provision was ordered. The order was secured by the charge, with restrictions preventing an increase in the existing mortgage or other disposal of the husband’s interest in the property.