Payment of expenses in civil litigation services (legal aid) cases

The issue of who should pay for translation of documents in care proceedings has arisen again. Last February it was before Sir James Munby P in Re L (Procedure: Bundles: Translation) [2015] 1 FLR 1417. The issue arose again in Suffolk County Council v The Mother and ors [2015] EWFC B112. It is a Family Court case dealt with by Her Honour Judge Lynne Roberts; so, first, a citation health warning is necessary (Practice Direction of 9 April 2001 (Citation of Authorities) [2001] 1 WLR 1001, [2001] Fam Law 794). The case may not be cited because the case was in a county court (equivalent) PD para 6.2, unless it 'clearly indicates that it purports to establish a new principle or to extend the present law' (para 6.1). It does not give such indication in express terms. For now, I shall leave the reader to decide whether this was what the judge intended.

 The issue in the case - translation of court bundles for one or more parents in care proceedings - involves a principle which applies to all expenses of civil litigation where the payer party has legal aid. It applies particularly to experts' reports and other expenses in children proceedings (as in Suffolk). Meanwhile, the narrow question of translation of court bundles surely requires other procedural rule intervention (eg by a fresh rule, possibly a practice direction, but which carries the Legal Aid Agency ('LAA') agreement with it). A circuit judge issues practice directions, as did HHJ Lynne Roberts against a Court of Appeal background (see Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171), which suggests this is unlawful.

The issue defined by the court

In Suffolk the judge explains the issue, entirely one of law, before her:

'[1] I am asked to decide an issue [as to] who should bear the costs of translating documents which are produced during court proceedings when one or more of the parents cannot understand English.'

The parties were, as usual in care proceedings: local authority, parents, and child. The LAA were 'invited ( sic) to intervene pursuant to a formal invitation [from] the court'. In the event, the judge heard only the parties; and as between them only, she made an 'order' that the cost of translating documents 'be paid by the party requiring the translation, provided that the party is publicly funded'. This, with respect to the judge and her disposal of the issue, seems to raise the following questions:

1. What actual power had the judge to make such an order; and
2. What is the likely effect of the order on the tax-payer (in other words, does the LAA have to pay up in this case?)

Costs and funding

The case concerned legal aid funding; but first, what is the difference in law between (i) funding a case, and (2) costs?

 Funding defines who puts up the money (normally the client who is to be a party to a case) to pay for the lawyers under their retainer contract. It tells the lawyer by whom she is ultimately to be paid and is the underpinning of the indemnity principle. In care proceedings the funder of the case is almost invariably the LAA.

 By contrast, costs are ordered by the court under Senior Courts Act 1981 s 51 and, eg, CPR 1998, Part 44 (see further at FCP 2015 Procedural Guide F4): that is, who should pay a party's costs if this is to be another party or yet another third party (or even a wasted costs order). The court order comes at the end of the case, or sometimes at an interim stage. This can be seen in care proceedings in Calderdale MBC v S and Legal Services Commission [2005] 1 FLR 751, where - at the end of the case - Bodey J ordered who was to pay certain expenses, divided between the local authority and the legally aided parties.

Legal aid law

Legal aid law principle dictates that civil legal services provision depends on the type of case, its merit and a person's means. Children Act 1989 excluded the second and third conditions in care proceedings, and this remains the law today. The tax-payer therefore funds the case.

Legal aid and its rules are created by statute and extensive delegated legislation. In any case, involving funding by any public body this fact creates two inevitable consequences:

1. That the court must always state clearly on what statute it is basing its decision; and
2. That any court proceedings and judicial decision is a matter of administrative law (ie now family or other civil law), meaning that the case is between one or more individuals and a public body. In Suffolk and Re L (above) the public body is the LAA.

Care proceedings are termed 'public law' by many family lawyers, and to a degree they are (a public body is the applicant). The relationship between family proceedings 'public law' and the real thing (prerogative writs, CPR 1998, Part 54 etc) is only very distant in terms of law; procedurally, the twain never do meet. Suffolk involves the duties of LAA and what happens if judicially they are held to have failed to comply witht heir statutory duties.

A judicial reflection of legal aid law and how a legal aid bill comes to be paid is at the root of the Suffolk case. For if the LAA still refuse to pay (even after HHJ Lynne Roberts' order), what remedy - in law - does the solicitor who has paid for the translation (the father's lawyers) have against the person (LAA)? None, as far as I can see.

The tax-payer's liability cannot depend on the order since - as I understand legal aid law - the order is not lawful (ie it does not, with respect to Judge Roberts, comply with any statute law cited in the case). Just as other funding arrangements rely on contract law, so payment of a legal aid bill depends on LASPO 2012 and Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. Neither of these was mentioned by the judge. A court order, where the payer cannot be forced by the court to answer, is not - as far as I know - enforceable. (A precisely analogous instance relates to payments due under Child Support Act 1991 and parallel Matrimonial Causes Act 1973 financial relief proceedings. For example, where a carer parent seeks to have arrears set off against a non-resident parent's Mesher order lump sum, the Child Support Agency cannot be forced to join in family proceedings, nor will they come in voluntarily: see, eg, Smith v Child Maintenance Enforcement Commission [2009] EWHC 3358 (Admin) (a refusal of permission).)

Costs orders and legal aid law

A crucial aspect of legal aid law from its outset was that the existence of legal aid for one party was not to affect the court's exercise of its powers. The obvious example of that was that the court was not to be influenced in making an order for costs against a legally aided person because they had a certificate. (Actual payment by the legally aided individual is a different question. It involves separate issues of law not applicable here.)

The question of who is to pay for expenses in a case is, in the first instance, a question between a party and his/her lawyers, if the party is paying privately. By similar reasoning in Suffolk, the judge found that the LAA should pay the father's translation expenses (§ [21]).

The difficulty arises at the next stage. How does the court ensure that its officer - a solicitor - is paid later? By definition the solicitor (or his firm) will have incurred the expense. An answer to that question must, surely, take the judge directly into legal aid law. It is an administrative law question as between (1) the father and his lawyer in Suffolk, and (2) the LAA.

Costs, funding, and the powers of a judge

The real question, surely, is: what are the LAA's duties in law to secure a fair trial for their customer (short-hand for the individual entitled to civil legal services: LASPO 2012, s 9); and how (if needs be, on the facts, say, in Suffolk) are those duties to be enforced if a lawyer wants to be covered and to obtain a payment on account of expenses from the LAA?

The judge has full power to deal with costs (SCA 1981, s 51(1) when the time comes, but that does not help here. The issue relates to statutory available funding from a public authority.

'Duties' of a public body; funding under a statute; guarantee of a fair trial: these are the areas of legal principle in issue here. In Giltinane v Child Support Agency [2006] EWHC 423 (Fam), [2006] 2 FLR 857, Munby J (as he then was) confronted the then convoluted appeal procedures for magistrates' court decisions by a case stated to the Queen's Bench Division. In that jurisdiction the CSA were the respondents. Mr Giltinane was long out of time, but Munby J simply transferred the case to himself in the admin court, gave Mr Giltinane permission and, in effect, allowed his appeal by quashing the order in judicial review.

LAA decision-making and High Court review

Even a High Court judge needs an Administrative Court 'ticket' to consider judicial review (ie judicial review is off-limits for a circuit judge). Thus, as it seems to me, if a case is before magistrates, a district judge or circuit judge from a dissatisfied applicant for LAA funding in the family courts, that defined LAA funding issue could be transferred direct to the Queen's Bench Division. If need be, permission (CPR 1998, r 54.4) should be listed urgently on restricted papers, before a ticketed Family Division judge. This can be directed (eg by the district judge in Suffolk) where a public law - properly 'so-called' - point crops up.

In Suffolk it was the involvement (or lack of involvement) of the LAA that created the issue. However, from the LAA's point of view, the absence of an effective court order why should they spend tax-payer's money on a type of government expenditure which Parliament has told them to restrict? That order, as far as I can see, must be in the High Court and by mandatory judicial review order.

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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.