Are you within divorce and financial proceedings and struggling to fund your legal costs? You may be able to apply for a Legal Costs Order, for your ex-spouse to be ordered to pay a lump sum towards your legal costs to fund your legal representation.
A Legal Services Payment Order (LSPO) is an interim order to enable funding for the services of a family solicitor (or barrister, court fees and other disbursements). Introduced in April 2013 to coincide with the withdrawal of legal aid for most family matters. The LSPO has by no means replaced breadth of cases previously funded by legal aid.
Application for Legal Services Payment Order
The application must evidence the pre-existing legal fees you require payment for and an estimate of the future legal costs. The Legal Services Payment Order is a flexible Order the Court can limit the amount payable to a specific timeframe or portion of the proceedings but the Court can also vary the terms of the order to reflect a change in circumstances and/or issue more than one Legal Cost Order within the proceedings.
The Court needs to be satisfied that you have attempted to seek means of funding your legal costs from other sources. You will need to prove the following within the application;
- You do not have assets that could be reasonably used to pay off the legal fees.
- You cannot borrow money in the form of a loan, whether a soft loan or hard loan from parents or a friend. A commercial loan from a bank or a Litigation loan. The evidence will need to be in the form of you having applied to the commercial lender/ Family and Divorce Law litigation loan provider and they refusing your application in writing.
- You have not been able to agree an arrangement with your family solicitor as to a deduction of your costs from any settlement you receive as a result of the case concluding. Again a letter from your solicitor confirming they will not agree such an arrangement is key to a successful outcome.
When considering whether to grant the Legal Services Payment Order the Court have to weigh up the financial circumstances of both you and your ex-spouse, considering the effect upon your ex-spouse if they are ordered to pay. Such considerations being
- will an Order cause them undue hardship?
- will it prevent them from being able to pay their own legal fees?
If at the point of making the application the financial circumstances of your ex-spouse is not clear the court will make 'Robust assumptions' about their ability to pay.
The Court will also consider the nature of the proceedings and whether your conduct which has resulted in the legal costs incurred has been reasonable and whether you sought to negotiate your ex-spouse paying towards your legal costs prior to making the application.
Legal Cost Orders
Legal cost orders whereby one party in substantive Divorce or Financial Proceedings is ordered by the Court to pay the other party's costs are rare. The norm is that each party shall bear their own costs. However an application for Legal Services Payment Order is an interim order within the substantial proceedings and the Court can more freely make a Legal Cost Order strictly in respect of the costs incurred for the Legal Services Payment application.
Will I have to pay the Legal Services Payment Ordered back to my ex-spouse
Due to the Court possibly not knowing your ex-spouse's precise financial position, and working on estimates of legal costs, when making the Legal Services Payment Order, the Court at the end of the case may require you to part of the amount you received to your ex-spouse, once the legal costs for the entire case are known.
It is important to remember that a Legal Services Payment Order will only be granted in exceptional circumstances it is an intrinsic and complicated area of law our family solicitors specialise in and would be able to assist you with.
