In today’s blog, we examine the issues and concerns that are faced by individuals who find themselves entangled in court proceedings but come to the realisation that, unlike their opponents who can afford to hire the best legal representation, they can’t foot their legal bill. If you find yourself in this predicament what are your options? Should you be forced into dropping your claim and forfeiting your rights because you’re financially disadvantaged?
The most common response to this question is to advise such individuals to apply for legal aid to help manage the legal costs associated with filing a claim. However, turning to legal aid is not a feasible option in today’s economy given the funding cuts over the years. In particular, legal aid for family law matters is an area which has been adversely affected. The reality is that most individuals who need assistance in helping manage their legal costs no longer qualify for any sort of financial help. Even those who do qualify (most commonly as victims of domestic violence), they may not be ‘poor enough’ for legal help, but still find they’re not well-off enough to actually afford legal assistance. Those who can satisfy the evidence requirements for domestic violence still have to pass financial means testing and in many cases make a financial contribution of their own to off-set some of the legal aid funding. For the individuals caught in this group, they can make use of a measure known as a Legal Services Payment Order which was introduced in 2013 to deal with the phasing out of legal aid funding for family law matters.
So, what exactly is a Legal Services Payment ORder and how do you get one? Typically, a such an order is issued by the court for the purpose of allowing an applicant to obtain legal services for the purposes of a proceeding. The provision is covered by section 22ZA of the Matrimonial Causes Act 1973. For example, a Legal Services Payment ORder is meant to cover costs concerning matters such as advice regarding how the law applies to your particular situation or it could be to provide advice regarding an enforcement order, among other things.
Of course, being granted a Legal Services Payment Order will depend on a number of factors including but not limited to the following:
- The parties’ current income levels and future ability to earn, property and other financial resources measured against the financial needs, obligations and responsibilities of the parties involved
- Have the parties tried to take steps to mitigate the proceedings such as considering mediation or other measures such as obtaining a loan to cover costs?
- Will issuing the Order in favour of the applicant cause undue hardship on the other party?
In terms of what an applicant will need to prove in order to qualify for an Order, a useful case reference is Rubin v Rubin 2004 in which the court set out a 14 factor analysis of assessment. An overall synopsis of the key points raised is that the applicant must show that they don’t have sufficient funds but more importantly that the opposing party does have access to the necessary funds. The applicant may be required to demonstrate that they have made attempts to secure what is known as a litigation loan and that they have been rejected at least twice and/or have attempted to secure their legal costs against any property they may own. A link to this case and its details can be found here – http://www.familylawweek.co.uk/site.aspx?i=ed128089
In closing, it’s important to remember that a Legal Services Payment Order is an available option and while it may be difficult to obtain, it’s worth trying to exhaust this option rather than giving up on your rights. But be wary that even a successful application for an Order in some cases may not necessarily cover the whole cost of the litigation.