SP v DM (Costs)
[2023] EWHC 2482 (Fam)
RG v TA (Appeal: Legal services funding order: Schedule 1 Children Act 1989)
6 October 2023
[2023] EWHC 3155 (Fam)
High Court
A dad needed money for a lawyer to fight for his kids. A judge said no, but a higher judge said yes, because the mom might get a lot of money soon and should help the dad get a lawyer too. The higher judge said the mom has to share some money she gets from a friend with the dad if she does.
Key Facts
- •RG (father) appeals a Family Court decision denying his legal costs funding order against TA (mother) for ongoing Children Act 1989 proceedings.
- •Proceedings concern child contact arrangements and the father's Schedule 1 Children Act 1989 claim for financial provision.
- •The mother alleges serious abuse and the father's contact is supervised pending a fact-finding hearing.
- •The father claims a vast financial disparity, citing the mother's family wealth, although much is illiquid due to ongoing European tax litigation.
- •The mother's disclosed income is £100,000 gross annually, but she claims significant expenses and insufficient funds for a contribution.
- •The father's application primarily focused on the anticipated repayment of a £145,000 loan to the mother by PP.
- •The judge dismissed the application, finding insufficient evidence of the father exhausting other funding avenues and the mother's financial vulnerability.
Legal Principles
Permission to appeal granted if a real prospect of success or compelling reason.
Part 30 FPR 2010, r.30.3(7)(a) and (b)
Court slow to interfere with fact-finding unless demonstrably wrong or the process defective.
AA v NA [2010] EWHC 1282 (Fam)
Appeal court reviews lower court's decision for errors of law, insufficient material, exceeding discretion, or procedural irregularity.
FPR r. 30.12(3)(a) and (b); Re W [2007] EWCA Civ 786
Applicant for costs allowance must show inability to procure legal services by other means, including asset deployment or loans.
Currey v Currey (No 2) [2006] EWCA Civ 1338
Court can make robust assumptions about ability to pay if disclosure is deficient; considers historical support from outsiders; cautiously assesses doubtful claims; ensures payment is necessary for appropriate legal services.
Rubin v Rubin [2014] EWHC 611 (Fam)
Outcomes
Appeal granted; original application allowed.
Judge failed to give sufficient weight to Rubin guidance, didn't adequately consider reasonableness of father's funding efforts, and ignored potential PP loan repayment.
50% of PP loan repayment (if received) to be paid to father's solicitors for costs.
Prioritizes fact-finding hearing representation; this is the only viable resource; balances father's need with mother's.
No rehearing; stay on Schedule 1 directions lifted.
Disproportionate use of resources; prioritizes fact-finding hearing; limited available assets.