RG v TA (Appeal: Legal services funding order: Schedule 1 Children Act 1989)

In an application for legal services funding under Schedule 1 to the Children Act 1989, the applicant must show that appropriate legal advice and representation cannot reasonably be obtained by other means. That inquiry requires an objective assessment of the applicant’s resources, borrowing options, commercial litigation funding, and the respondent’s immediately available resources.

The court must apply the guidance in Currey v Currey (No 2) and Rubin v Rubin flexibly and fairly. It should not require unrealistic borrowing steps, such as charging an asset occupied by the applicant’s former family, where those steps are unreasonable in context. The court must balance the parties’ competing needs and give adequate reasons. The appeal was allowed and a contingent funding order was made from a debt due to the respondent.

The father appealed from an order made by Her Honour Judge Ellis in the Family Court at Gloucester dismissing his application for a legal costs funding order. The application related to ongoing proceedings under section 8 and Schedule 1 to the Children Act 1989.

The father argued that he could not fund representation himself and that the mother had access to a debt of £145,000 due to be repaid to her. The appeal concerned whether the first-instance judge had properly applied the governing principles, assessed the evidence concerning alternative funding, and balanced the parties’ respective needs.

1. Permission to appeal was granted and the appeal was allowed. The first-instance decision was wrong because the judge did not sufficiently apply the guidance in Currey v Currey (No 2) and Rubin v Rubin to the specific evidence.

2. The governing inquiry was whether the father could reasonably obtain legal advice and representation by another means. That required consideration of whether his income, assets, borrowing capacity, commercial funding, or a charge over future capital could reasonably fund the litigation. The inquiry was fact-sensitive and had to be anchored to an objective assessment of reasonableness.

3. The judge was wrong to expect further investigation of credit-card funding and to place insufficient weight on the evidence from commercial litigation funders. The father’s income, liabilities, recent self-employment, and the limited nature of any possible capital recovery made those routes unreasonable or unavailable. His interest in a property occupied by his former wife and children was not, in the circumstances, a realistic source of immediate litigation funding.

4. The judge also failed adequately to balance the father’s need for representation against the mother’s needs when considering the £145,000 debt due to her. The debt was a potential resource even though its timing was uncertain and the mother had competing liabilities.

5. A rehearing was refused as disproportionate. The appellate court exercised its powers under FPR 2010 rule 30.11(1) and ordered that, if the mother received repayment of the principal loan, 50 per cent of sums received should be paid to the father’s solicitors for ongoing legal costs. The mother could retain the interest element.

• High Court (Family Division): Permission to appeal granted and substantive appeal allowed against the Family Court’s dismissal of the father’s legal services funding application. A contingent lump sum funding order was made.
• Family Court at Gloucester: Her Honour Judge Ellis dismissed the father’s application for funding of his ongoing legal costs.