Legal aid statutory charge: what retained by Lord Chancellor

Freedom of information request: legal aid statutory charge and legal services orders

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17 February 2019

 

Manager

Freedom of Information Requests

Ministry of Justice

102 Petty France

Westminster

London

SW1H 9AJ

 

Dear Sir or Madam

 

Freedom of information request under Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) Matrimonial Causes Act 1973 s 22ZA and in respect of the Legal Aid Agency’s (LAA) statutory charge now under LASPOA s 22

 

I am writing to make an open government request for all the information to which I am entitled under the Freedom of Information Act 2000.

 

Please send me:

 

Information request – 1

 

Please tell me the total amount held by the Lord Chancellor charged upon properties under what is now the Lord Chancellor’s statutory charge (now LASPOA s 22) (‘statutory charge capital’) at the date of coming into operation of LASPOA (which I take to be 1 April 2013).

 

Information request – 2

 

Please tell me (a) what sums have been added since 1 April 2013 to the statutory charge capital; and (b) of that sum how much has been added for each year in respect of certificates which were granted after the coming into operation of LASPOA (1 April 2013).

 

Information request – 3

 

An amendment to Matrimonial Causes Act 1973 was introduced by LASPOA at Matrimonial Causes Act 1973 s 22ZA, to enable spouses in divorce or ancillary relief cases to apply for a legal services order to cover part or all of their legal funding. (a) How many applications have been made under s 22ZA; (b) what sums each year have been awarded by judges and district judges and (c) what has been paid by respondents (mostly, I suspect, husbands) to such applications?

 

Response to request

 

I would like the above information to be provided to me as an electronic copy at my above email address.

 

If this request is too wide or unclear, please contact me by email or telephone. I understand that under the Act, you are required to advise and assist requesters of this.

 

If the release of any of this information is prohibited on the grounds of breach of confidence, I ask that you supply me with copies of the confidentiality agreement and remind you that information should not be treated as confidential if such an agreement has not been signed.

 

I understand that you are required to respond to my request within 20 working days after you receive this letter. I would be grateful if you could confirm in writing or by email that you have received this request.

 

Yours faithfully

 

David Burrows

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Family law and EU withdrawal

20160418_164836-e1545130798810.jpgEU law and family breakdown: where are we today?

 

Where is family law today in relation to EU withdrawal? Resolution (a group of family lawyers) and the Law Society together provide information – not ‘advice’ – on were family law now appears to be as EU withdrawal approaches; and urges lawyers – or their clients (see Davy-Cheisman (below)) to seek advice from EU lawyers if they want to be able to advise their UK clients on family breakdown issues (divorce, money and children). In Joint Resolution and Law Society note to family lawyers in England and Wales of practical recommendations in the circumstances of no deal on EU exit (January 2019) (the ‘joint note’) they work on the assumption – inevitable now, perhaps? – that UK will leave the EU. I come back to the possible consequences of seeking advice from, and relying upon, advice from third parties.

 

An earlier short paper from the Law Society, No-deal Brexit guidance: Family law (8 November 2018) aimed to ‘highlight the changes that will occur’ in family law ‘if’ UK leaves without a deal. It emphases what will remain part of UK domestic law – eg the Hague Conventions. EU instruments based on ‘mutual recognition’ (eg Council Regulation (EC) No 2201/2003 ‘Brussels II Revised’) will go.

 

What neither paper acknowledges is that the ‘deal’ or ‘no deal’ point is largely irrelevant for family lawyers. EU family law legislation is almost invariably invoked between two people one of whom no longer lives in the UK and the other is in a EU country. Brussels II Revised, by definition, depends on reciprocity between EU and UK jurisdictions. This was obvious even before the referendum. On whatever terms – May, Corbyn or whatever – the UK leaves, till there is agreement with each EU country agreed also by the UK Parliament then the terms of any deal are unlikely to affect family law save with specific arrangements with each country for reciprocity.

 

Brussels II Revised: Miller and the Supreme Court

 

The problem with reciprocity and family law was specifically highlighted by the Supreme Court two years ago. In R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583 the majority said:

 

[69] … Our domestic law will change as a result of the United Kingdom ceasing to be party to [EU Treaties], and rights enjoyed by UK residents granted through EU law will be affected…. The Divisional Court identified three categories of right:

(1) Rights capable of replication in UK law;

(2) Rights derived by UK citizens from EU law in other member states;

(3) Rights of participation in EU institutions that could not be replicated in UK law….

[71] … Some rights falling within one category may be closely linked with rights [in] another category. For example, the rights under [“Brussels II Revised”], would be undermined if a domestic judgment governing the residence of a child could not be enforced outside the UK.

 

Despite the clear indications of Miller from the Supreme Court in October 2017 in Brexit and Family Law by FLBA, IAFL and Resolution the then authors took a view on the ‘Options’ they would recommend (without, as far as I can see, a glance at Miller). The most likely outcome – what is happening now – was the one which the authors would not recommend to legislators as a way forward: what they called ‘Domestication without full reciprocity’ (Option 2). ‘This (they said at p 15) is completely unsatisfactory…. If we do not have a reciprocal arrangement with the EU, there is simply no point in retaining the majority of the EU instruments which work on a mutually applicable basis.’

 

Yes, but that is what was bound to happen save with extensive discussions between legislators in individual jurisdictions and English government; and – no surprises – that is what will happen as things stand now. What the paper described as a ‘one way street’ was as noted by the Supreme Court (probably at Lady Hale’s prompting) and is what is happening now.

 

Milk has been spilt by insouciant family lawyers, perhaps; but that is for the historians. Where now? Detailed legislation is being worked out. The draft Jurisdiction and Judgements (Family) (Amendments etc) (EU exit) Regulations 2019 awaits positive resolution approval by MPs (European Union (Withdrawal) Act Sch 7 para 1(1)). It covers a series of mostly minor amendments to statutes and statutory instruments including transitional arrangement for existing cases (draft reg 8). There will be more; and, as we know, there is likely to be a variety of Henry VIII orders as time goes on and cracks appear in the legislative cover.

 

Professional negligence and the Brexit lawyer: Davy-Cheisman

 

As appropriate the common law will fill the gaps in the EU withdrawal legislative scheme. By definition (unless they are legally aided) this will be at expense to the parties to family proceedings. Few will relish their expenditure; and some will look for a scape-goat, beyond the politicians and those who have framed the legislation. One of those who may be in a negligence firing line for a client who has suffered loss may be the client’s lawyer. Can this be mitigated?

 

There are six (at least) references to English lawyers seeking advice from ‘local lawyers’ in the joint note. If such advice is taken does this leave the English lawyer m open to any possibility of a claim if anything does go wrong? The law on solicitors relying on another lawyer – counsel – is dealt with in Davy-Chiesman v Davy-Chiesman [1984] Fam 48, [1984] 1 WLR 291. This is in the case of domestic law. A solicitor must not (per the Times law report) ‘blindly rely on counsel’ (quoting from May LJ in the Court of Appeal judgment).

 

Should Davy-Cheisman cause alarm bells to ring? If a UK lawyer relies on a foreign lawyer and relies on their advice, this has the makings of a Davy-Cheisman trap. A difference is the Davy-Cheisman advice from counsel is on domestic law. EU law advice to family law clients is on foreign law. But if the UK lawyer relies on a foreign lawyer’s advice and the client suffers loss because it proves to be negligent, a question remains as to whether the English lawyer is in anyway implicated. (I have raised this question with both authors of the joint note and have yet to receive any response. In Davey-Cheisman the advising barrister was not involved in the claim against the solicitor by legal aid authorities in the Court of Appeal; but the solicitor was liable in effect for the claimant wife’s costs.)

 

A first step, I should have thought, is to look at the terms of any retainer of the English lawyer and of the local adviser. If the client’s retainer is direct with the local lawyer that must be a start. The client’s advice on the law of the country in question will be from the lawyer on the ground. If the English lawyer takes responsibility for a brief then, unless that is prepared negligently, again it will be for the foreign lawyer to advise and for the English lawyer to make it clear that s/he distances him/herself from that advice, in the sense that (anticipating a Davy-Cheisman claim) the English lawyer advises only on English law. The English lawyer cannot advice on the law – as distinct from domestic procedure – on which supplemental advice is being sought by the client. If the English lawyer adopts the advice Davy-Cheisman problems may arise.

 

If any action here proceeds on the basis of foreign law advice, a form of words will have to be found to avoid any Davy-Cheisman liability.

Divorce and the Muslim community

20160419_170156Divorce law reform

 

The Lord Chancellor will shortly – March 2019 – be reporting on his review of the replies to his divorce reform consultation: Reducing family conflict – Reform of the legal requirements for divorce. Divorce reform has been in the air for many years. It was given particular impetus by the Supreme Court case of Owens v Owens [2018] UKSC 41. However, to be divorced you have to be married. That is obvious; but to define a valid marriage in English law is by no means obvious. It is easy enough in a conventional civil or religious marriage (with a ‘signing of the register’ bit tacked on). But what happens if the formalities of your marriage are challenged? Maybe you were married in a Sikh or Muslim ceremony, and your estranged husband raises the point in the hopes of not having to provide financially for you.

 

It is estimated that around 30% of Muslim marriages are not legally valid. This may leave the wife – it will mostly be the wife – in the position of a cohabitant in English law. She will therefore be subject to the vagaries of trust law which the ‘common law wife’ confronts. Alternatively, if she can afford it, she will have to battle in the family courts with the argument that she has a ‘void marriage’ (see recently Akhter v Khan & Attorney-General [2018] EWFC 54 (31 July 2018), Williams J) so that, if she proves a void marriage, she can then seek the array of financial provision set out in Matrimonial Causes Act 1973.

 

Financial provision dependant on a marriage

 

This is important. Many forms of financial provision depend of whether or not a person is married to their husband: benefits claims, insurance, intestacy, claims under Inheritance (Provision for Family and Dependants) Act 1975 (claims to the estate of a dead spouse); quite apart from the variety of financial provision which is available to a married wife: mostly to a void marriage wife; but emphatically not to a not married ‘wife’. And this is so even though a wife may have thought throughout her ‘married’ life that she was validly married in English law to the man she lived with, and the father of her children.

 

This state of affairs has been considered by The independent review into the application of sharia law in England and Wales, Home Department, February 2018 (the ‘Review’). The Review was commissioned to look at the working of Sharia councils which, it explains, are voluntary groups of scholars who offer advice to Muslims on Sharia which is a body of jurisprudence based on ‘a diversity of opinions among jurists’ (p 4). ‘It is important to note that sharia councils are not courts and they should not refer to their members as judges’ (p 4).

 

The Review is a disappointing document. It is only when you have read it that you realise it is designed mostly to look at Muslim ‘divorce’; but it does nothing, for example, to explain how that works alongside, or in contrast to, a Matrimonial Causes Act 1973 (MCA 1973) divorce: that is, a divorce in the English courts. (The Panel members consisted of an academic as chairman, and three lawyers – Anne-Marie Hutchinson QC (Hon), Sam Momtaz QC and Sir Mark Hedley, a retired High Court, Family Division judge; which makes the Review the more disappointing still for how slender it is on law.)

 

Most troubling – since the Review is plainly concerned predominantly with the rights of Muslim wives – it does not address the factors alluded to in the second paragraph of this post. It does not tell a reader – who might be an impoverished Muslim woman – what she can do to enforce any rights she might have in English law; and how these operate, if at all, alongside advisory remedies pronounced by the Sharia councils. What happens if financial arrangement agreed by the parties with assistance from their Sharia council: will it be approved on divorce (if the couple are married) by English courts? (Probably not, in the absence of legal advice, and even though a Sharia council has expressed a view.)

 

In a short section entitled ‘2 The relationship between state and religion’ the Review asserts that European Convention 1950 Arts 8, 9 and 11 are engaged to the extent, it suggests, that religious groups generally are registered as charities. The Review does not explain why Sharia councils may – or not? – be public bodies.

 

Marriage Act 1949: discrimination and law reform

 

Serious rights and discrimination issues arise from a Muslim spousal relationship. These issues may be eased as a result of the victory of the partner of the dead father of her children in Re McLaughlin (Northern Ireland) [2018] UKSC 48, [2018] 1 WLR 4250 (30 August 2018). It is still an uncertain and rocky road, for any ‘wife’ or wife. It is a road which may have to be travelled by Muslim wives whose knowledge of English is limited, and of English law and Sharia still less. If English law does not properly recognise such wives discrimination (Art 14) and lack of a fair trial (Art 6: if they get their claims before the court) may be engaged. If so Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3) must be in line (R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622, [2015] 1 WLR 2247) for any Family Law Act 1986 s 55 (declaration of validity of marriage) or answer of a husband’s defence to a divorce (as in Akhtar).

 

The Lord Chancellor should reform divorce, by all means; but he should look at the much more diverse question of what is a marriage. And he should recall: a divorce by any process (the one we have now or another under any new Act he proposes) is still a divorce. The benefits to a spouse under MCA 1973 are all there. If you are not married – though you thought you were by the ceremony your Imam set up (say) – no amount of law, at present, will provide you with the benefits available on divorce; or with the relief you might seek as a widow on benefits or otherwise.

 

Divorce law reform is an easy subject. David Gauke seems to be looking little beyond MCA 1973 s 1 (grounds for divorce). The real challenge for reform is the prior Marriage Act 1949 (which is a consolidating statute, now already 70 years old, and based on law going back to 1753: try reading some of it). To reform that in our diverse religio-secular society is the real challenge. Reform within the tapestry of religious marriages available in our mixed society must be the aim of any family law reformer who is concerned with fairness for all wives whatever their form of religious, secular or other marriage.

Family courts: costs claims for the litigant in person Part 1

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How much and when can litigant in person claim costs in family proceedings

 

A little know area of costs law enables self-represented parties (litigants in person (LiP)) to claim their costs in the same way as a represented party can claim costs. This simple statement hides a variety of questions. Especially this is so in family proceedings where – sad to relate – the subject of when anyone (LiP or solicitor for a party) can actually get an order is set about with illogicality.

 

This series will look at the law and rules surrounding LiP costs orders (Part 1); then at how the ‘general rule’ on claiming costs works (Part 2); costs in money proceedings will be considered in Part 3 and in children proceedings costs in Part 4. Part 5 will come back to the entirely the separate subject of ‘funding’ in case, alongside costs order, a claim against a former spouse to help pay a solicitor may be useful for a LiP (mostly a wife, in such claims: see eg Funding family proceedings for the weaker spouse)

 

Generally Civil Procedure Rules 1998 (CPR 1998) do not apply to proceedings in the family courts. These courts have their own rules: Family Procedure Rules 2010 (FPR 2010). An exception to this is the costs rules under review here. The family proceedings rule-makers ran out of steam when it came to costs. Most of the civil proceedings costs rules apply to family proceedings with one or two important exceptions (like the costs of money proceedings).

 

CPR 1998 are not the only rules which govern costs. It all starts with statute law: Senior Courts Act 1981 s 51 deals with costs in family courts and, in particular – for present purposes – says two things:

 

  • Costs orders are in the ‘full discretion of the court’ (SCA 1981 s 51(1)), subject to anything said in the rules (eg as in CPR 1998 r 44.3\\, below); which means the judge can make any order, within reason, which the judge chooses to make; and
  • ‘The court [has] full power to determine by whom and to what extent [any] costs are to be paid (SCA 1981 s 51(3)).

 

The general rule is that ‘costs follow the event’ (as will be seen); but is subject to a number of qualifying points in family proceedings. Some of these are defined by the courts – ie common law and, as need be, will be explained in this series. Other variations are defined by the rules.

 

A last introductory point is a matter of terminology. ‘Funding’ is one thing: it is what a client pays to his or her solicitor; or which the Legal Aid Agency pay to a lawyer for a legally aided person. ‘Costs’, on the other hand, is what I am talking about here. It is always for the court to decide, mostly at the end of a case, but sometimes at an earlier stage of proceedings (eg if a person – normally a wife – claims interim maintenance to see her through till a final hearings).

 

Categories of family proceedings

 

The term ‘family proceedings’ means mostly proceedings following family breakdown: (1) divorce, (2) children, (3) money claims and (4) domestic abuse (plus one or two unusual set of proceedings: declaration of marital status, surrogacy etc).

 

Of these (2) children proceedings divide into private cases (mostly child arrangements order (what used to be called ‘custody and access’) and care proceedings (ie involving the local authority). Costs orders will be rare in all types of children proceedings (save where you may be appealing against an order): I will deal with this in Part IV. Almost all care proceedings work is on legal aid; so costs claims very rarely apply.

 

With (1) divorce and (mostly) (4) domestic abuse case, I would expect the court generally to follow the ‘general rule’ (see Part 2). Money claims (3), which comprise a substantial proportion of the work of the family courts, have – it gives me no pride to say – a waywardness all of their own. I will explain that in detail in Part 3.

 

Costs claims by litigants in person

 

First the good news: a LiP can claim costs? But when? CPR 1998 r 46.5 starts the ball rolling. The rule says (as relevant our purposes):

 

Litigants in person

(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.

(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

(3) The litigant in person shall be allowed –

(a) costs for the same categories of –

(i) work; and

(ii) disbursements,

which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf;

(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and

(c) the costs of obtaining expert assistance in assessing the costs claim.

 

‘Disbursement’ means out of pocket expenses; but could include court fees, fees and expenses of expert witnesses etc: ie these can be claimed in full.

 

‘Summary/detailed assessment’ – the court process of fixing costs: ‘summary’ normally at the end of a hearing; and ‘detailed assessment’ – ie where costs are awarded in principle, but the exact amount is determined later.

 

‘amount which would have been allowed’ (ie time-recording) – that is, a LiP can claim up to 2/3rds of what a lawyer would have charged. In theory then, if a lawyer could have charged £240 per hour, the LiP can pitch his or her claim at £160 per hour for all recorded time (ie time recorded or noted by the LiP: so keep notes of all time spent on your case; and say for each block of time what you are doing: a letter or email or note of a phone conversation is your record in itself: most solicitors work on 6 minute units (10 in one hour) so a ten minute phone call is 2 units; one and a half hours spent preparing a statement is 15 units, etc). If you don’t it will come back to bite you on detailed assessment.

 

What can a legal representative claim; what can a LiP claim?

 

But – and it’s an enormous ‘but’ (hence this introduction to the subject) – the rule is that a LiP can claim a proportion of what a legal representative can claim. And that means, for the LiP, that he or she must have some idea of (1) what a legal representative charges; and (2) in what circumstances a legal representative would be able to claim and expect to have an order for costs. In family proceedings those circumstances are relatively rare, but it is the object of this series to explain briefly when they might crop up: that is, where a costs claim might be made.

 

‘The general rule’ on costs and actually making the claim will be considered in Pt 2; costs in money proceedings will be considered in Pt 3 and children proceedings costs in Pt 4. Finally Part 5 will revert to the separate subject of ‘funding’ which may be important to a LiP: when in matrimonial proceedings can the financially weaker (normally the wife) LiP claim funding from her former partner for lawyers to help her with her case.