Law Report: Desperate wife not able to claim costs: Keller v Keller and Legal Aid Board - Court of Appeal (Lord Justice Neill and Mr Justice Wilson), 20 October 1994.

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In an application for the legal aid board to pay the costs of a successful unassisted party, the condition that an order for costs would have been made if the other party had not been legally aided would not usually be fulfilled in custody proceedings concerning children where the general practice is to make no order as to costs except in exceptional circumstances.

The Court of Appeal dismissed the wife's appeal from Judge Marcus Edward's order in divorce proceedings that the wife's costs in applications in 1989 and 1990 should not be paid by the Legal Aid Board.

In 1989, the judge made an interim order that the husband should have care and control of the children as the wife, who was not in receipt of legal aid, was working. The cost of the hearing was pounds 8,000. In 1990, when the husband was employed, care and control was given to the wife. The wife's costs were pounds 8,000.

Under financial provision orders, the husband's share from the proceeds of the sale of the home was taken by the board, apart from the exempt sum of pounds 2,500. The wife's share was pounds 52,000, of which pounds 23,000 was paid to her present solicitors for costs. She bought a home with the balance. She still owes pounds 11,000 to her previous solicitors. She applied under section 18 of the Legal Aid Act 1988 for orders that the board should pay substantial sums in respect of her costs.

Andrew Nicol (Sheridans) for the wife; John Gimlette (Legal Aid Board) for the board.

MR JUSTICE WILSON said that section 18 endowed the court with a discretion to order payment by the board of costs incurred by an unassisted party, but required certain conditions to be fulfilled. It was conceded that the wife would suffer severe financial hardship unless the order was made, as she had no liquid capital and would be forced to sell her home and even become bankrupt. The judge described her predicament as desperate. He was satisfied that it was just and equitable that costs should be provided out of public funds.

The judge was not satisfied that the condition in section 18(4)(a), that an order for costs would be made in the proceedings apart from the 1988 Act, had been fulfilled. The words indicated the hypothesis should be that the husband was not protected against liability for costs and was not in receipt of legal aid.

In conventional civil litigation, the financial position of the respondent to the application for costs was irrelevant. But the exercise of discretion as to costs in relation to issues concerning children might include consideration of the respondent's financial position. In most children cases, the proper weighing of factors in the exercise of discretion was likely to lead to the choice of no order inter partes. Where the conduct of a party had been reprehensible, an order for costs might be made against him. Equally a marked disparity in wealth might give rise to an order for costs.

The judge decided that no orders for costs would be made against the husband in the 1989 and 1990 proceedings apart from the Act. He noted that the case was not one where the parties had abundant financial means. He recognised that, had the husband been of abundant means, an order might be made. But there was one house, of no great value, and a need to replace it by two reasonable homes.

In the care and control proceedings the court knew that the wife's application for ancillary relief was to be determined when the welfare of the children would be the first consideration and the wife's liability for her solicitors' costs would be considered.

The precondition in section 18(4)(a) was reasonable in the context of conventional civil ligitation, where costs prima facie followed the event.

But was it reasonable in the contenxt of proceedings referable to children where nowadays it was unusual to make an order for costs?

LORD JUSTICE NEILL, concurring, said that it was hoped that those responsible for legislation relating to civil legal aid might give consideration to the problems highlighted in this case.