LP v AE

A legal services payment order may fund both prospective and unpaid costs incurred in ongoing proceedings where the applicant could not reasonably obtain appropriate legal services without payment. The court must distinguish such costs from genuinely historic costs arising in concluded proceedings. An application should be made and determined well before the substantive hearing, but it should not fail solely because the hearing has already occurred. The order must reflect the applicant’s reasonable need, the complexity of the proceedings and the parties’ means. Equality of arms may justify funding both solicitors and counsel, without requiring parity between the parties’ expenditure.

The mother appealed against the refusal by His Honour Judge Tolson QC of her application for a legal services payment order under section 22ZA of the Matrimonial Causes Act 1973. The proceedings concerned child arrangements and related financial proceedings. The mother sought funding for solicitors and counsel in continuing litigation, including unpaid costs already incurred and costs of forthcoming hearings.

The first-instance judge treated an earlier payment as a fighting fund, considered that counsel alone should suffice, and declined to analyse the mother’s claim or the father’s means. The central issues were whether unpaid costs incurred in ongoing proceedings could be funded, whether both solicitors and counsel were reasonably required, and what sum should be ordered.

1. Appeal allowed. The refusal of the legal services payment order was set aside, and the High Court made an order covering specified past and future costs.
2. Under section 22ZA of the Matrimonial Causes Act 1973, the jurisdiction looks principally to whether, without payment, the applicant would reasonably be unable to obtain appropriate legal services. It is not a surrogate inter partes costs jurisdiction.
3. Following the distinction identified in Rubin v Rubin [2014] 2 FLR 1018 and applied in BC v DE [2017] 1 FLR 1521, genuinely historic costs from concluded proceedings are different from unpaid costs reasonably incurred in continuing proceedings. The latter may be included in a legal services payment order.
4. The application had been issued too late. Applications of this kind should be made and determined well before the substantive hearing. However, delay did not justify refusing relief where the proceedings remained ongoing and the applicant’s need for representation persisted.
5. The judge had materially erred by treating the earlier £35,000 payment as a general fighting fund, comparing the mother’s proposed representation with that of a children’s solicitor, treating the father’s expenditure as irrelevant, and relying on an expectation that the father would act reasonably in future. The mother’s need for representation had to be assessed separately from the reasonableness of the amount claimed.
6. In the circumstances, representation by both solicitors and counsel was reasonably required and promoted a level playing field, although the mother was not entitled to recover every solicitor charge claimed. The court allowed £30,000 inclusive of VAT for eligible unpaid costs to 16 December 2019 and £40,000 plus VAT for future costs, apportioned between the July and September hearings, with liberty to apply concerning the later hearing.

• High Court (Family Division): Appeal from the order of His Honour Judge Tolson QC dated 16 December 2019. The appeal was allowed and the application was determined by the High Court.