Mr Justice Mostyn opens the door to more Legal Services Orders

Legal Services Orders came into being with effect from 1st April 2013 by the insertion of sections 22ZA and 22ZB into the Matrimonial Causes Act 1973. Under these sections the court can make an order, or indeed orders, that one party to a marriage pay to the other an amount to enable that party to obtain legal services for the purposes of the proceedings.

In reality, however, few of these orders have been made, because the hurdle that had to be cleared was, arguably, impossibly high. Effectively, the applicant had to show that there was no other way in which they could fund their case, so they could not borrow, beg or have a charge put over their property, thus securing the release of further funds. Given that there are specialist companies providing litigation funding, or there are various potential arrangements that can be entered into re the provision of funding for litigation, it can be difficult to prove that you cannot obtain monies to fund your own case.

However, in his judgment in the case of Rubin-v- Rubin[2014] EWHC 611(Fam) Mr Justice Mostyn (Mostyn J) established 14 principles which apply to such an application.

The Judge went on to say, for instance, that the Court, when determining whether a party can obtain funding from another source, is unlikely to expect a person to sell or put a charge over their property, or reduce modest savings. He did, however, stress that this was fact specific, and each case had to be considered on it's own merits. If, for instance, it is likely that at the conclusion of the case the property will be sold, then it may not be unreasonable to expect it to be charged now.

An order should only be made to cover historical unpaid costs.

The order, if made, should contain an undertaking that the Applicant will repay some or all of the amount ordered if the court thinks it appropriate so to order when the question of costs arises at the end of the case. If the Applicant is unwilling to provide such an undertaking, the Court should think twice before making the order.

Mostyn J noted that an order for monthly payments was preferable to a single payment, as this more accurately reflects what happens if a client pays their lawyers from their own funds.

He also suggested that the court should generally not make an order that funds were paid beyond the dispute resolution hearing, and should not, therefore, cover the cost of a final hearing. If an application had to be made to cover final hearing costs, then this should be considered at a separate hearing after the dispute resolution hearing has taken place.

It is likely, following on from the clarification set out in this decision, that the courts will make more of this type of order than they have previously, although applicants for legal services orders will have to be careful to satisfy the tests laid down in sections 22ZA and 22ZB.