Legal aid statutory charge: what retained by Lord Chancellor

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

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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Funding family proceedings for the weaker spouse

Funding and when may it be available

 

A coalition of questions led me to think about legal services orders: the orders which enable judges, in the view of some husbands, to force them to pay their wives to sue them. To the more enlightened, it enables family courts to require the financially more robust party (a husband (H), say) to provide from assets controlled by him enough to ensure Family Procedure Rules 2010 r 1.1(2)(c) is complied with: that both ‘parties are on an equal footing’. In other words, yes, that he must release cash to ensure his (former) wife has enough to pay her own lawyers. At a time when so many spouses are acting in person in family proceedings, I wonder how many parties – mostly it will be wives or mothers – are applying for orders.

 

These thoughts were given prominence by press reports that Princess Tessy of Luxembourg had conducted her own financial relief proceedings; though had she not wanted to I am sure funds would easily have been made available to fund her own lawyers. By contrast, a new client of mine had been advised by previous lawyers – three at least, as far as I could see from her papers; and none seem to have advised her to ask the court to order cash from her former husband, to for representation and for train travel to the distant court where he was conducting their matrimonial financial relief proceedings.

 

‘Family proceedings’ for present purposes, means proceedings which happen in the family courts (ie Family Division of the High Court or the Family Court (formerly county courts)). Mostly the proceedings dealt with in the family courts are:

 

• Children proceedings (often called ‘private law’)
• Care (or ‘public law’) proceedings
• Domestic abuse and occupation order proceedings
• Financial proceedings after divorce (ie under Matrimonial Causes Act 1973 (MCA 1973))
• Financial relief for and in relation to children (Children Act 1989 Sch 1)
• Divorce

 

Parents and children in proceedings under 2 will have legal aid always. Those who are financially eligible are entitled to legal aid under 3. Defended divorce is very rare. Unless any human rights issues arise (regarded as ‘exceptional’ under legal aid legislation), legal aid in children proceedings will only be available – again very rare – for a child who is joined. Parties who have had legal aid for domestic abuse may be entitled also to legal aid under 1,  4 and 5; but not otherwise.

 

The question of payment by one spouse to another arises from 4 (and for parents under 5 – probably: the law is not entirely clear). That is what this note deals with.

 

Funding for financial relief proceedings: legal services orders

 

So what funding may be available in financial proceedings under divorce legislation? Can one materially weaker spouse (say, the wife (W)) claim funding for such proceedings from the other spouse (H)?

 

MCA 1973 s 22ZA(2) says a party to ‘proceedings…for financial relief’ can seek an order for payment for ‘legal services’ (as defined by s 22ZA(10)) (s 22ZA(1) is about funding divorce costs). The presumption is it will be the financially weaker spouse only who will apply for the order, a ‘legal services order’. Section 22ZA enables a spouse to seek funding to employ lawyers from her spouse. I am sure that if Princess Tessy of Luxembourg had wanted to apply for a legal services order it would have been granted. By all accounts the Prince had the necessary cash.

 

In a case where the means of the parties are more routine, if a husband has his own lawyer, the question must be: why should not H’s expenditure for a wife’s lawyers where she cannot pay from her own means be balanced – at least in part – by him for lawyers of her choice? Section 22ZA provides a statutory basis for her to make such an application to the court.

 

If the court is to make an order, it must be satisfied that there is no other source of funding available to the applicant spouse (s 22ZA(3)) eg a bank loan or other borrowing (s 22ZA(4)(a)) or a loan charged on property (s 22ZA(4)(b)). And MCA 1973 s 22ZB sets out the factors about the parties’ circumstances the court must take into account before it makes an order.

 

At a time when so many wives of modest means are presenting their own finance cases, I wonder how many are using legal services orders to help them to finance their own lawyers?