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Law Report: Costs award to partly aided party: Re H (Minors) (Legal Aid and Costs): House of Lords (Lord Griffiths, Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle) 25 June 1992

Where proceedings were finally decided in favour of a party who then had legal aid but had previously been unassisted, and the losing party had been assisted throughout, the court had jurisdiction under section 18 of the Legal Aid Act 1988 to order payment by the Legal Aid Board of such part of the successful party's costs as had been incurred while he was unassisted.

The House of Lords dismissed the Board's objection to an order that the costs incurred by the defendant in the High Court prior to the issue of his legal aid certificate should be paid out of the Legal Aid Fund. The House made the order after giving judgment for the defendant in proceedings under the Child Abduction and Custody Act 1985 ((1991) 2 AC 476).

Charles Utley (Richard N Green) for the Board; Christopher Llewellyn-Jones QC and Debora Price (E Edwards, Son & Noice, Grays) for the defendant.

LORD BRIDGE said the plaintiff was legally aided throughout but the defendant had initially borne his own costs. Legal aid was granted to him during the first instance proceedings and continued until final disposal of the appeal by the House. Section 18 provided: '(1) This section applies to proceedings to which a legally assisted person is a party and which are finally decided in favour of an unassisted party. (2) In any proceedings to which this section applies the court by which the proceedings were so decided may . . . make an order for the payment by the Board to the unassisted party of the whole or any part of the costs incurred by him in the proceedings.' The Board argued that section 18(1) only covered a person who was an unassisted party at the time when the relevant proceedings were finally decided.

But his Lordship saw no difficulty in reading the language of section 18(1) and (2) as authorising an order for payment by the Board of such part of the costs of proceedings eventually determined in the defendant's favour as were personally incurred by him while he was not receiving legal aid and was thus an 'unassisted party' within section 2(11). The conjunction of 'finally decided' and 'unassisted person' in section 18(1) afforded no ground to link the required status of the party with the moment of final decision.