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Funding of intermediaries

[See last blog]


An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.


  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.


  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:


“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”


  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.



For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.


So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.



Intermediary, fair trial and Legal Aid Agency


The High Court case of West Sussex CC v H and Others 2015 throws up an interesting issue.


This was a fact finding hearing, where the central allegation was that either mother or her boyfriend W, had caused a brain injury to a child who was two years old. The injury had at the time been life-threatening.


This is one of the most serious sorts of cases that come before the family Court. A finding that mother had caused that injury or failed to protect the child would have serious consequences for this mother’s prospects of keeping the children and possibly of any future children she might have. Also, the process itself would involve a lot of documents, some complicated issues and really forensic dissection of the events that happened that night, in a lot of detail.

The mother had undergone a cognitive assessment by Dr Nigel North, and he had concluded that she would need the assistance of an intermediary when giving evidence.

Intermediaries are used in criminal proceedings, and they play a very important part in making sure that a vulnerable witness can give the best evidence that they are able to.


The Registered Intermediary, having taken the intermediary oath, assists during the giving of evidence. They sit alongside the witness in the live link room (or stand next to them if they are giving evidence in court) in order to monitor communication. They intervene during questioning when appropriate and as often as appropriate in accordance with the ground rules and the recommendations in their report.   [taken from ]


However, though that was a clear recommendation and not challenged by anyone, she had to give evidence without an intermediary as the Legal Aid Agency had refused to fund one.


  1. The case was before me for case management on the 24th April 2015 and following the orders made on that day it was listed to be heard in July 2015. In addition to the complexity of the medical evidence there were concerns about the ability of M to fully participate in, and understand the proceedings because of a report by Dr Nigel North (a psychologist) dated the 6th March 2015 which recommended the use of an intermediary. The solicitors for M had applied for public funding for an intermediary assessment which was refused by the Legal Aid Agency (LAA). There followed attempts by the solicitors to appeal against this decision which were unsuccessful. By the time the solicitors approached the court for approval for funding an intermediary without a further assessment to support M during the trial in July there were none available to come to court.
  2. Given her history, which was never in dispute, it is not clear to me why it was considered necessary to have a further assessment by qualified intermediary except that Dr North is not an intermediary himself; the stance of the LAA did not assist when coupled with the insistence by Communicourt that they carry out an assessment separately from supporting Y at court. This led to the refusal of funding for that initial assessment. There is undoubtedly a pressing need for clear guidance and rules similar to those in criminal proceedings when it comes to the treatment of vulnerable witnesses. It is to be hoped that the proposed addition to the Family Procedure rules will come in to force sooner rather than later.


There would not have been a problem obtaining an intermediary in a criminal court*, but in a family court if the Legal Aid Agency say no, that’s the end of it.  [*I’m not a criminal lawyer, so I might be utterly wrong here and if someone more knowledgeable tells me otherwise, I’ll amend.  Of course in a criminal case, the Judge could throw the trial out for abuse of process if the LAA refused to provide an intermediary where one was necessary, and that’s a bit more difficult in family proceedings. You don’t want to decide family cases and the safety and future of children on a ‘technicality’]


Those involved in the case worked with the Judge, Russell J,  to come up with the fairest solution that they could.


  1. On the first day of the fact finding trial I heard a ground rules hearing to decide how the case could progress without the assistance of an intermediary taking into account the recommendations which had been made by Dr North. It was agreed that the trial could go ahead with frequent breaks to allow M to have time to consider the evidence broken up into shorter more manageable sections. There were to be breaks every 30 minutes or more often if needed. M’s evidence was to be similarly divided; she was to be asked short questions and cross-examined by one counsel only, who would agree the area of questioning with other counsel. Counsel for the local authority undertook this task with the assistance of the guidance provide by the ATC in their toolkit for family proceedings. As there were seven files of evidence the documents that M was to be referred to during her evidence were placed in one file; in addition it was agreed that she would be supported by someone she knew from her solicitor’s firm to find pages or if she needed any other assistance.
  2. M’s own mother L is a respondent to these proceedings as she had originally been named as a possible perpetrator and is closely concerned with the local authority’s future plans for the care of Y and X. She was able to offer M additional support throughout the hearing.



[The outcome of the case was that the Judge found that mother’s boyfriend W, had caused the injury but more out of carelessness or recklessness than by any intention to hurt the child  :-   I do not consider that there is evidence to support any suggestion that the impact was deliberately inflicted and consider it more likely that it was a reckless and foolish action taken by a young man who has no experience as a parent, primary or main carer of a child who is still very young.   There was no finding that the mother had done anything wrong  M’s conduct since that night has been congruent with a parent seeking an answer to what has happened to her child and has not been self-serving or defensive. ]



Lasting power of attorney, financial abuse (contains ranting and references to tattoos)


These financial abuse cases come along with depressing regularity.  On the last one I wrote about, I made the suggestion that the pamphlet of guidance provided to those people who were appointed as attorneys/ deputies to manage the financial affairs of their vulnerable relative should have on the front cover  “It’s not your fucking money”


I have changed my position. That succinct advice should instead be tattooed across the back of the Attorney/deputy’s right hand.


Re ARL 2015


This was decided by long-standing favourite of Suesspicious Minds, Senior Judge Lush.


Here are some of the things that the Attorney (the son of the vulnerable person) did with his mother’s money


The application was accompanied by a witness statement made by Sophie Farley, who had investigated the case at the OPG. To summarise, she said that:

(a) On 18 July 2014 concerns were raised with the OPG regarding ICL’s management of his mother’s property and financial affairs.(b) There was a debt of £39,000 in respect of unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS Continuing Health Care.

(c) ICL was also in dispute with Hertfordshire County Council and claimed that ARL had been placed in the nursing home in Radlett without his consent. He had instructed Newlaw Solicitors in Cardiff to apply for compensation on his behalf.

(d) He was not providing ARL with an adequate personal allowance.

(e) It was not known known when he had last visited her, but it was thought to have been some time in 2013.

(f) In May 2013 ICL sold ARL’s house in Wheathampstead for £265,000 and used £174,950 from the net proceeds of sale to purchase a flat in his own name in Wheathampstead High Street. The OPG had carried out a search at the Land Registry, which confirmed that ICL is the registered proprietor.

(g) The difference of approximately £90,000 between the net proceeds of sale and the purchase price of the flat had been credited to ICL’s business account, rather than to an account in ARL’s name.

(h) The OPG wrote to ICL on 4 August 2014 asking him to account fully for his dealings with his mother’s finances.

(i) He replied a fortnight, on 18 August, later saying that he had far too many other things to deal with at that time.

(j) He said he was going to meet someone from Labrums Solicitors for advice on his responsibilities under the LPA, “which are now becoming too onerous.”

(k) He has only produced bank statements from October 2012 to October 2013, and an inspection of the bank statements he did produce revealed that he had spent at least £6,641 in a way that was not in ARL’s best interests.

(l) He had failed to account fully for his dealings.

(m) A Court of Protection General Visitor (Christine Moody) saw ARL on 15 August 2014 and confirmed that she has dementia and lacks the capacity to revoke the LPA


Now, under my methodology of hand tattooing, he would have been in no doubt that spending £175,000 of his mother’s money on a house for himself was not on, because when he signed the paperwork it would have been staring him in the face. Mandatory tattooing.


If this man does happen to have in his possession a mug that reads “Best Son Ever” or similar, it should be confiscated from him, and smashed to pieces in front of him. In fact, if the legend is not “Statistically within the bottom 1 %  of sons ever”  or “not quite as bad a son as Nick Cotton out of EastEnders”, smash it up.


Anyway, let’s see what his explanation for all of this was    (the “too long; didn’t read” version is “I needed money, and she had money, so I spent her money”  – to which, I would refer him to the tattoo that reads “It’s not your fucking money”. Sigh.  )


“I admit that some of the remaining funds have been used for personal outgoings for me and my family. This was because of difficult personal circumstances. As previously stated, I am fully prepared to pay back the entire amount that I have borrowed from my mother as soon as the sale of my former matrimonial home has completed. In the interests of complying with my duties as an attorney, I set out as far as possible an honest account of the remaining funds:

(a) I was caught drink driving in February 2013 and accordingly I borrowed £3,380 from my mother’s funds to cover my legal costs of defending my position (£2,640) and other related costs such as court fees (£500) and a penalty fine (£240). I attach letters confirming these costs sent to me by Freeman & Co. Solicitors and Sweetmans Solicitors.

(b) I ran out of money in April 2013 and had to borrow £7,500 from a friend, Mrs Pollard, in order to keep afloat financially. I repaid my friend this sum from my mother’s funds.

(c) I was required to pay a deposit of $1,500 (approx. £995) to secure my son’s place at university in the USA and I borrowed my mother’s funds to cover this.

(d) I was also required to cover my son’s college fees whilst he was studying in the USA totalling £7,500. I paid these fees in instalments from my mother’s funds.

(e) I sent £300 to my son on a monthly basis whilst he was living in the USA. These payments totalled £2,400.

(f) I also paid for my son’s flights to and from the USA during his year abroad and also for flights for myself to visit him in the USA totalling £2,774.

(g) During a visit to the USA to see my son in August 2013, I spent a total of $630 (approx. £418) on accommodation and £500 on sundry expenses.

(h) I also paid for my son’s car insurance from my mother’s funds totalling £4,757.17.

(i) During the summer of 2013 I borrowed £6,300 of my mother’s funds for works to my former matrimonial home.

(j) As previously mentioned, JJT borrowed £2,500 of my mother’s funds.

(k) I cannot specifically account for the remainder of the £90,050. However. I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.



Now, of course, it is utterly reasonable to raid your mother’s finances, which you’ve been entrusted to manage on her behalf in order to defend yourself when you get caught drunk-driving, and then to pay the fine. I mean, why would you use her money to pay her actual living expenses and nursing fees, when you can be paying your drink-driving fines with it?


It is also of course utterly reasonable to not provide your mother with a living allowance out of HER money, but instead use HER money to pay for your SON to have a living allowance whilst he is at College in America.

He also claimed that he didn’t know that the house he purchased with his mother’s money was registered in his name. Of course he didn’t.


(e) Until completion of the purchase of the flat in the High Street had taken place, he hadn’t realised that the property was held in his name. He said, “I have subsequently made enquiries of the conveyancer who dealt with the purchase of the property, who confirmed that, as I completed a summary of instructions in my own name, this is the name in which the property was purchased.”

(f) He said it was always the intention that this property was purchased for the benefit of his mother and that he would be happy for the property to be transferred into her name.


As ever with financial abuse cases, I find myself looking at the regulations for the provision that says that a deputy who does this shall be placed in stocks in the town centre for a period of forty days and be pelted with rancid fruit, but it seems to have been wrongly omitted from the regulations.


Let’s be really clear. Someone who loves and trusts you isn’t able to manage their money for themselves, so they ask you to look after their money for them. And you take that love and trust and repay it by using THEIR money to pay your drink driving fines and buy yourself a house, whilst at the same time running up £39,000 of debts on her behalf in unpaid care fees.  I hope that there really is a special circle of hell for people like this.


The Judge was also unimpressed with the Deputy’s behaviour, although somewhat less medieval in the sanctions than I myself would wish to be.



  1. In this case, ARL’s placement in the nursing home at Radlett was in jeopardy and there was a serious risk that she would be evicted because of ICL’s wilful refusal to pay her care fees. She is settled and content at the nursing home and any action or inaction that might prejudice her placement is not in her best interests.
  2. As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities, go hand in hand with the actual misappropriation of funds.
  3. In this case, ICL’s misappropriation of funds includes, but is not limited to:

    (a) The purchase of a property in his own name, using £174,950 of his mother’s funds. One of my particular concerns is that ICL is currently going through an acrimonious divorce, and there is a possibility that ARL’s funds could somehow, inadvertently, become part of the settlement in the matrimonial proceedings.(b) Pocketing the rental income from the property for the last two years.

    (c) The funds referred to in paragraph 16 (a) to (i) above, which by my reckoning amount to £36,524.17.

    (d) ICL’s admission at paragraph 16(k) that he cannot specifically account for the remainder of the £90,500, “However, I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.”

  4. I have no confidence in ICL when he says, “I am fully prepared to pay back the entire amount I have borrowed from my mother as soon as the sale of my former matrimonial home has completed.” He made a similar promise on 15 January 2015, when he offered to transfer title to the flat in the High Street from his name into his mother’s name, but has done nothing about it during the last seven months.
  5. I find it incredible that ICL is ready, willing and able to pursue a claim against Hertfordshire County Council for unlawfully depriving ARL of her liberty, yet is pumped up with tranquillizers and was in no fit state to attend the hearing in this matter.
  6. I also find it curious that he has instructed so many different firms of solicitors or other providers of legal services at his mother’s expense, often to defend the indefensible:

    (a) Rowlington Tilley & Associates drew up the LPA.(b) He was going to meet someone from Labrums Solicitors, St Albans, to advise him on his responsibilities under the LPA.

    (c) NewLaw Solicitors, Cardiff, were advising him on his dispute with Hertfordshire County Council regarding ARL’s placement in the nursing home in Radlett and were also pursuing a claim against the NHS for Continuing Health Care.

    (d) Freeman & Co., Solicitors, Manchester – The Home of Mr Loophole – had been instructed to defending him when he was prosecuted for drink driving.

    (e) He also instructed Sweetmans, another firm of specialist drink driving solicitors.

    (f) Taylor Walton acted for him in the sale of his mother’s house and the purchase of the flat in the High street, and in the proceedings brought against him by the Public Guardian.

  7. I wonder whether this is a smokescreen to ensure that no one firm or company is fully aware of the extent of his ineptitude and deceit.
  8. I am satisfied that ICL has behaved in a way that both contravenes his authority and is not in ARL’s best interests.


[I might comment in passing that if you ARE arrested for drink driving, and you consult “Mr Loophole” and he can’t get you off, it is throwing good money after bad to go to a second lawyer to see if they can. It seems to me that you are probably ‘bang to rights’ on the charge.  Of course, when it is NOT YOUR Fucking money, I suppose it bothers you slightly less]




Re-e-wind, when the crowd say Bo Selecta!



(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here           )


This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.


Re M (a child) 2015


The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.

Here is the nub of it


  1. M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
  2. On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.

    ii) The fact finding hearing was conducted without this vital information.

    iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.

  3. The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

    “Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

    I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

    I therefore give the mother leave to re-open the fact find.”

    Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”

  4. Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.


The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.


It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged  (on the basis that the hearing was not a fair trial),  and declare that the original application for care proceedings issued in 2012  is now a live application.   The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).


Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.


So the alternative is:-


  1. Discharge the existing orders
  2. Direct that the LA prepare a section 37 report  (which in effect will be their initial statement in fresh care proceedings)
  3. Make an ICO under the section 37 powers
  4. LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care


Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.


But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach

  1. It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
  2. There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543, is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
  3. I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
  4. I make the following order:

    “Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

    It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”


It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened.  Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.



IS v Director of Legal Services 2015

Many other people will be writing about this case, but I’ll just give the bit for the family lawyers and Court of Protection lawyers (since it touches on capacity cases). Really important for the battles that have been fought since LASPO to say that it is being interpreted by the Legal Aid Agency in a way that, as Mostyn J put it


“sacrifices individual justice on the altar of public debt”


[which is approvingly cited in the case. Hell yeah]


This is of course, the case about whether the Legal Aid Agency were properly using their discretion on granting public funding for cases where to represent yourself would put you in a position where your human rights would be breached, i.e section 10 LASPO. The LAA lost. They intend to appeal.


The really important bit for family law cases is paragraph 40



It is difficult to imagine a family case, particularly when there are contested issues about children, in which there would not be an interference with the Article 8 rights of either parent or the children themselves. Thus unless the party seeking legal aid could albeit unrepresented present his or her case effectively and without obvious unfairness, a grant of legal aid would be required. That does not mean that every case will require it: some may be sufficiently simple for the unrepresented party to deal with. Obviously if there is a lack of capacity even such cases may require legal aid. That issue I will have to consider in further detail later. But I am bound to say that I believe that only in rare cases, subject to means and merits if properly applied, should legal aid be denied in such cases. As it is now applied, the scheme is clearly wholly deficient in that it does not enable the family courts to be satisfied that they can do justice and give a fair hearing to an unrepresented party. While the problem may perhaps be less acute in other civil cases, I have no doubt that the difficulties I have referred to in family cases apply.


You can’t really have a much clearer message than that to say that the low rate of s10 LASPO public funding applications being granted, and the tests and guidance being applied by the LAA are wrong. Scandalously wrong.


Paragraph 80 also good  – that the process of making an application is made unnecessarily difficult, and this, combined with the poor success rate has had the obvious effect of discouraging such applications from being made.


The main problem lies in the forms which are prescribed. They are far too complicated and are not at all helpful to lay persons. Providers have difficulties with them and the small level of grant has unquestionably, on the evidence which has not shown to be erroneous, led to the unwillingness of providers to take on clients who need to apply for ECF. The scheme is not properly providing the safety net which s.10 is supposed to provide. It is to be noted that it was anticipated that some 5,000 to 7,000 applications would be made in a year. The actual rate was a fraction of that. The defendants say that the figures they relied on were only estimates for planning purposes. In a letter of 20 August 2013 the MoJ stated that the figures were based on the number of grants estimated in the LASPO consultation exercise, namely 3,700. It is significant that the scheme has not produced anything like that number of grants, let alone applications. Furthermore, as the OS has indicated and a number of applications dealt with in the statements confirm, the hurdle erected for those who lack capacity is far too high. Those who are unable to pay for legal assistance are suffering in a way that Parliament cannot have intended.



And final flurry of killer blows

  1. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.
  2. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.
  3. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.



I don’t know about you, but I find  something shameful about a Ministry of Justice being condemned by a Court for their part in devising a scheme that deprived individuals of justice in order to assauge public debt. And similarly something shameful that a body whose job it is to ensure that people have access to legal representation and advice going out of their way to prevent them getting it.

But then, these are bodies who in their response to the criticisms laid against them by the Justice Select Committee of Parliament with comments like  “The Court did not rule that our policy was wholly unlawful” as though that was something that a Ministry of Justice should actually boast about.


Which reminds me rather of Steve Coogan’s pool attendant from the Day Today



A witness talking over the lunch adjournment

I don’t often write about ancillary relief cases, but this one


JE (Husband) v ZK (wife) 2015

threw up an issue that we all trot out to witnesses on a daily basis and when I asked on Twitter about six months ago where you can find that actual rule written down, nobody was entirely sure.

When a witness is part way through their evidence, and the case comes to a break (either at the end of the day, or lunch), the witness is generally warned by the Judge “You should not discuss the case with any one, and you are still under Oath”

The still under Oath part must be right, since when the witness resumes, they do not have to take the Oath again.  Therefore, during that break in the evidence, the witness is still bound to tell the truth, the whole truth and nothing but the truth – technically, if the witness goes for a haircut and the hairdresser does that thing with a mirror where they show you the back of your own head, rather than the stock response of   :- nod “mmm, that’s great thanks” the witness ought to answer “I have no idea why you show me that, what is the point? Whatever you’ve done, it is too late to fix, and I don’t care what the back of my head looks like”


[Even worse, if you are still under Oath, and your new partner asks you “does my bum look big in this?”, you could be in for a world of trouble. Best to not talk to anyone at all]

The not discussing the case with anyone makes perfect common sense (which is unusual in law).  If you could talk about your evidence with someone whilst you were in the middle of giving it, they could be influencing what you say, or giving you tips as to how to do it better.  And if someone else in the case saw the witness talking to their lawyer or another party, they might well SUSPECT that this is what was happening, even if it wasn’t. So best not to do it.

The hard bit is finding where that rule is actually written down, and what the Judge is supposed to do about it.


Here, what happened was that the original Judge heard evidence that the husband, having given part of his evidence and then needing to come back over lunch, had been seen in the Court waiting room talking to his colleague NC (his colleague was also someone whom the husband had been renting accommodation from AND someone who was said to owe the husband £15,000, so it COULD be said that the conversation might have a bearing on financial matters)

The husband’s evidence was that he had asked NC about “Ironman” competitions and personal trainers, and nobody disputed that.


The District Judge had found that the father was in contempt, and said in his judgment

Is it relevant? I can hear being said! Well, yes, for this is the same man who remortgaged 141 Kings Road after having said through his solicitors that there were no grounds for saying that he was going to. Like that, his behaviour at the lunchtime was unacceptable’.

Now, importantly, this was a hearing where a financial order was made, concluding the financial arrangements. The District Judge was now in a pickle, because whilst saying that it was ‘relevant’  it clearly wasn’t conduct that could legitimately be taken into account for the purposes of the Matrimonial Causes Act.

The District Judge then made a clarifying note

In his clarifying note at B26 the District Judge said that he did not take the husband’s conduct in speaking to NC into account in his conclusion and that he ‘would have thought that was clear. It just had to be mentioned, it as so blatant’.


Part of the husband’s appeal was that the judgment was thus blurred about whether or not this issue had weighed on the judicial determination of finances.


Dealing with the appeal, His Honour Judge Wildblood QC said this:-

  1. Quite plainly, that conversation between the husband and NC had absolutely nothing to do with the correct outcome of the financial remedy applications. It was a complete irrelevance, as far as the solution to the case was concerned. It certainly was not conduct that the court could possibly take into account when deciding upon the correct outcome. It had no relevance under any of the other factors under section 25 of The Matrimonial Causes Act 1973 and cannot be salvaged by reference to ‘all the circumstances of the case’ in s 25(1) of The Matrimonial Causes Act 1973.
  2. I accept that the District Judge does not then tie in the finding that this issue was ‘relevant’ when later explaining his conclusions. At B15 he says that he is departing from quality bearing in mind the wife’s need for her to provide a home for the children. Further, at B6 he says: ‘there are two aspects of the husband’s affairs which I take into account within all the circumstances of the case and which make me satisfied that my decision is appropriate. First the dissipation of assets referred to in paragraph 4 above and, secondly, the opaque business relationship with Mr Clarke’. Although there are obvious difficulties with that past passage to which I must return, he does not say that the ‘contempt’ finding is relevant in that later passage.
  3. The difficulty is this. If a judge says that something is relevant in the sort of strong terms used by the District Judge he must mean what he says. A judgment has to be capable of being understood on its face and a party to the proceedings must be able to understand the methodology of the court. It seems highly likely that, at the time that he wrote the judgment, the District Judge did regard this issue as relevant to how the capital should be divided (because he said so himself at B15). I do not accept Ms Allen’s clever submission that he meant ‘Is it relevant for me to mention it?’ at B15; that interpretation does not fit in with the context of what he was saying. He associated it with the husband’s conduct in re-mortgaging the property at Kings Rd [B15] and, later took that remortgage into account at B16. The reality is that the District Judge was making findings of conduct and saying that he treated them as relevant. He was incorrect to do so and a clear statement in a judgment that something is treated as relevant cannot be cured by a clarifying note.



[This Judge was more sanguine about the incident itself than the DJ had been


iii) The finding of contempt was inappropriate and unnecessary to the exercise that the District Judge had to perform. The husband was wrong to speak to NC over lunch having been warned not to do so but the conduct complained of (speaking about personal trainers and an Ironman competition) had nothing whatsoever to do with the outcome of the case but was described by the District Judge as ‘relevant’ to it. I know the Gloucester waiting area well having appeared there as an advocate myself in my 27 years at the bar, and can well imagine what occurred (and what did occur happened in the full view of the lawyers and was not remotely surreptitious).   ]


His Honour Judge Wildblood QC, with some reluctance, had to allow the appeal and discharge the financial order that had been made. I say with reluctance, because the Judge had earlier expressed substantial dismay that two people who had once been in love had spent a “Scandalous” amount of money in ligitation


  1. The District Judge said that the costs were scandalous. I agree. The total that has been spent in legal costs now is as follows:
    Wife’s costs before the District Judge 62,171
    Husband’s costs before the District Judge 28,799
    Husband’s appellate costs 12,849.26
    Wife’s appellate costs (at least) 20,000
    Total 123,819.26
  2. This is not a complex case. It involves a home, a working husband who is effectively a sole trader, a few modest assets, considerable liabilities, two children and a depressed wife. For money to have been wasted on such disproportionate costs is truly scandalous. Further, these parties have two children – what sort of example do they set their children when they spend so much of the money that should be directed to their children’s welfare on blinkered and self validating litigation?
  3. I am particularly critical of the level of this wife’s costs. They are double those of the husband and nothing that I have seen gets anywhere near justifying that. I have myself witnessed two wholly unnecessary applications being brought by the wife: a) for transcripts of all of the evidence before the District Judge to be ordered at the husband’s expense for the purposes of the appeal, an application which I did not allow and b) a full legal services application, when the correct application should have been for a partial release on a stay which, when I suggested it, was agreed on the evening before a hearing of the legal services application brought by the wife and only after considerable cost expenditure (W’s claimed costs £3875.70). Further, I consider that money has been wasted on obtaining expert evidence about the suggested value of the husband’s business when that capital value was abandoned (rightly) at trial and was never going to have the sort of relevance originally suggested. That expenditure on costs took place against the backcloth of strong complaint made by the husband before the District Judge about the wife’s costs expenditure (see A1 – no trial bundle, no open offer, no updating disclosure and a late production of her s 25 statement that had been prepared three months before the hearing started but was filed seven days before the hearing started).
  4. The above remarks must be before any judge assessing costs in this case and I ask that there is very careful scrutiny of the costs that are being claimed by the wife’s legal team. It cannot be right that this level of cost expenditure occurs in a case of such modest assets. The costs claimed are about 36% of the total assets held, according to the District Judge by the parties. The burden that this now creates upon the parties, especially the wife must be immense.
  5. The District Judge found that the total pot of capital in the case was £345,686


Towards the end of the judgment, HH J Wildblood QC set down a marker for future litigation conduct

86….I wish to make it plain that, if I find any more money is being wasted by this wife on costs, I will impose costs sanctions – if she, or the husband, pursues any more pointless or unmeritorious issues I will reflect that in a costs order (and I say that without prejudice to any arguments and applications that may be advanced about existing cost expenditure). It seems to me at least highly possible that past dissipation of assets (which in a big money case can be of obvious importance) may be regarded as totally overshadowed now with the exigencies of the current very limited financial circumstances of these parties with the true focus of this case now being on the limited issues that I have set out above – especially relevant will be these questions: i) Where are these people to live and ii) what incomes are these people to have?.

  1. Although I am not in any way deciding the point now, I foresee that the husband will have a difficult task in contending that this wife should face a time limit to any order for periodical payments particularly if it involves a s28(1A) bar but even without such a bar.
  2. I intend that the above issues must be adhered to. There will be no more profligate expenditure on legal costs. To that end I wish to record that any District Judge assessing the costs of either party from this point on until conclusion of the rehearing should disallow that parties’ costs insofar as the costs of any party (from this point onwards) exceed £7,500 unless a) any party has made submissions to me that I should revise that figure or b) the judge carrying out the assessment considers that an extension beyond that figure was genuinely necessary.
  3. I strongly recommend now that the parties make every effort to resolve their differences without the need for the rehearing to take place.
  4. I reserve the costs of the appeal until conclusion of the rehearing. Both of these parties know what their own financial circumstances are and, with the level of costs that she has incurred, the wife should know about her tax credit position (and, if she doesn’t she needs to find it out hurriedly). Although I do not know what the husband’s income is, he does. If it were to be shown on fresh evidence that the District Judge was correct about his income, that would be bound to have an impact on the orders for costs that I would make.

Court of Appeal say no judicial power to order Court to pay for legal costs


Very grateful to Noel Arnold of Coram Legal Child’s Centre for alerting me to this.  You may be aware that post LASPO, there will be parents who will have to represent themselves in court proceedings who would previously have got free legal representation.

The Courts have been concerned for some time about cases in which it would seem to be a breach of article 6 to make a parent represent themselves, and particularly where that would involve a parent cross-examining a child or their former partner about abuse.  The provision in LASPO SHOULD capture those cases and grant exceptional funding where there’s a potential breach of human rights, but in practice it just isn’t happening.

The President has done a few of these cases and pushed the Legal Aid Agency to the brink, by saying that if they didn’t provide funding, he would order that the costs of legal representation should be paid by the Court. Up until now, the Legal Aid Agency have folded (but only in the cases before the President, which is not ideal)

Well now, in Re K-H (children) 2015, they didn’t fold, the Court made an order that a lawyer be provided and paid for by the Court service. The Lord Chancellor appealed it. And the Court of Appeal agreed that there was NO POWER to do that.


That leaves us all in a mess. The only thing that the Court can really do now is give a judgment that it would be a breach of article 6 to proceed – but where does that leave the case?  Can the Court make a decision that the Court itself has breached father’s article 6 rights and make an order that the Court pay compensation?  (allowing the money to then be used by the father to pay a lawyer?)   Almost certainly not.

I can’t get the link to the judgment to work at present to chew over the detail, but here is the Children’s Legal Centre summary.



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