BC v DE [2016] EWHC 1806 (Fam)

21 July 2016

Order for payment of an interim lump sum for legal services (both outstanding and prospective costs) in proceedings under Schedule 1 and s.8 of the Children Act 1989

Facts

  • The mother brought a claim against the father for financial provision under Schedule 1 to the Children Act 1989, the final hearing for which is listed in February 2017. The parties were involved in concurrent s.8 proceedings.
  • In October 2015, Roberts J made an order in relation to legal costs funding, pursuant to which the father was to pay: i) 70% of the mother’s outstanding costs in relation to both the s.8 and Schedule 1 proceedings (£77,994); ii) the mother’s costs to the next hearing in the Sch 1 proceedings (£40,508), and; iii) nothing in relation to the mother’s prospective costs in the s.8 proceedings (the presumption being that there would be no such proceedings or costs).
  • In February 2016, Holman J awarded the mother a further £20,000 in relation to her prospective costs in the ongoing s.8 proceedings. In April 2016, Roberts J ordered the father to pay the mother’s costs in progressing the Sch 1 proceedings to FDR (£38,000).
  • The question for the court in the relevant hearing was whether the father should fund in whole or in part: i) the mother’s outstanding legal costs and/or ii) her future legal costs. The father opposed in principle the mother’s claim to outstanding costs.

Held

  • Cobb J allowed the mother’s application and ordered the father to pay the mother’s outstanding and prospective legal costs in both sets of proceedings. With regard to quantum, the judge reduced the mother’s presented figure by 15% to reflect a summary assessment.
  • The court has authority to order the payment of outstanding legal costs in an attempt to ensure equality of arms between the parties.
  • Unlike in Rubin v Rubin [2014] EWHC 611 (Fam), the mother’s outstanding costs were not “historic” costs in the strict sense; they were costs incurred in ongoing proceedings.
  • Cobb J found it unnecessary for an applicant to demonstrate that their solicitors had or would “down tools” without payment of outstanding fees; it is enough to show that the applicant’s solicitors are “reaching the end of their tolerance” in continuing to act on credit [26].