Re R (A Minor) (Legal Aid: Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Court of Appeal (Civil Division) |
STAUGHTON, LJ AND HALE, J
Costs – contested residence proceedings – following conclusion of proceedings Judge orders father to pay mother's costs out of father's share of equity in matrimonial home – Judge fails to adjourn consideration of father's ability to pay until after conclusion of ancillary relief proceedings – whether form of order correct – whether costs order against father correct in principle.
In October 1994, following a lengthy residence hearing, the Judge determined that the father had held unreasonable views and thereby had acted unreasonably in maintaining those views throughout the hearing. The Judge proceeded to make an order that the father pay the mother's costs from the father's share of the equity in the matrimonial home; and by doing so failed to adjourn consideration of the father's ability to pay until after the conclusion of the ancillary relief proceedings.
The father appealed.
Held – allowing the appeal in part: (1) The form of the costs order was wrong in law as it offended the provisions of s 17(1) of the Legal Aid Act 1988 as, having reached the conclusion that the father in principle was liable to pay costs, the Judge had failed to adjourn consideration of the question of the father's ability to pay the costs until after the ancillary relief proceedings had been concluded.
(2) The Judge, in the exercise of discretion, was correct in principle in taking the exceptional course of making an order that the father pay the mother's costs out of the father's share in the equity of the matrimonial home as the father had held and maintained throughout the proceedings unreasonable views as to the future welfare of the child.
Statutory provisions referred to:Legal Aid Act 1988, s 17(1).
Cases referred to in judgment:Gojkovic v Gojkovic (No 2) [1991] 2 FCR 913; [1992] Fam 40; [1991] 3 WLR 621; [1992] 1 All ER 267.
K v K and Another (Legal Aid: Costs)[1995] 2 FCR 189.
Sutton London Borough Council v Davis (No 2)[1994] 2 FCR 1199; [1994] 1 WLR 1317; [1995] 1 All ER 65.
AppealAppeal from Judge Goldstein sitting at Bow county court.
Jane Gill for the father.
Iain Davies for the mother.
MRS JUSTICE HALE.In this case a father, who is the respondent in divorce proceedings, appeals against that part of the order made by His Honour Judge Goldstein in the Bow county court on 18 October 1994 which relates to costs.
After a lengthy hearing about where the parties' child R, who was then aged 10, was to live, the Judge ordered the father to pay the mother's costs out of his share of the equity in the matrimonial home.
Leave to appeal was granted by Thorpe, LJ on 5 July 1996.
There are basically two limbs to the appeal. The first is that the form of the order was wrong in law, in that it offended against the requirements of s 17(1) of the Legal Aid Act 1988 which provides:
"The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connexion with the dispute."
It is now common ground between the parties that the...
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