Funding ancillary relief cases: the new costs rules

10 APR 2007

Margaret Hatwood, Associate, Thomas Eggar Solicitors. The Family Proceedings Rules 1991 were amended last year by the Family Proceedings (Amendment) Rules 2006 (SI 2006/352) (the 2006 Rules) to limit the court's power to make costs orders unless they relate to the conduct of one of the parties to the proceedings. This change in rules may lead to a greater observation of the Law Society's family law protocol and it is possible, if this is the case, that there will be a lessening of costs litigation following family proceedings.

There have been various attempts, both judicially and through legislation (never enacted), to provide for a power to award interim lump sums in respect of legal costs in these cases. When similar costs rules to the 2006 Rules were introduced some time ago in Australia the power to order interim lump sums was also given to the courts. The lack of such a power here means that in the absence of a conduct based costs order the wealthier party is in a better position to litigate. Where once legal aid was available to the petitioner with no assets, this is no more and the harsh reality is that a lack of available funding often means a lack of legal representation.

This article considers ways in which the economically disadvantaged party might fund their legal costs, and analyses the technicalities of maintenance pending suit, Sears Tooth deeds, Schedule 1 Children Act 1989 claims and bank loans. For the full article see April [2007] Fam Law.

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