Mother wins funding for her costs debt to provide her with equality of arms

In BC v DE [2016] EWHC 1806 (Fam) an unmarried mother successfully claimed under Sch 1 to the Children Act 1989 for the father to make interim provision to meet her historic as well as future costs in both these proceedings for financial provision for the child and proceedings concerning the arrangements for that child of the parties. 

The mother had no funds of her own and no ability to borrow. The father was worth hundreds of millions of pounds. There was no question of ability to pay but the father opposed the application as a matter of principle.

The father argued that solicitors took on commercial risks with clients all the time and that the ability to apply for funding for legal costs should not be used as a ‘commercial “safety value” to mitigate that risk’.

Key to the argument made on behalf of the mother was whether it was reasonable to force lawyers to fund those costs when no-one else would and the impact of that resulting debt, forcing clients to be ‘beholden’ to their solicitor, on the proper and equal representation of the client.

Mr Justice Cobb found that, ‘A level playing field may not be achieved where, on the one side, the solicitor and client are “beholden” to each other by significant debt, whereas on the other there is an abundance of litigation funding.’

In the absence of this decision, the risk was that lawyers would feel that they took too high a risk in representing the financially vulnerable party and that these applicants would find it increasingly difficult to obtain equal representation, often against a financially mighty respondent. Mr Justice Cobb has, in his judgment, provided important protection by agreeing that ‘it is neither fair nor reasonable to expect solicitors and the bar to offer unsecured interest-free credit in order to undertake their work; there is indeed a solid reason for lawyers not to have a financial interest in the outcome of family law litigation.’

Prior to this case, the most influential authority was that of Mr Justice Mostyn in Rubin v Rubin [2014] EWHC 611 (Fam), [2014] 2 FLR 1018 where it was said that, ‘The Court cannot make an order unless it is satisfied that without the payment the applicant would not reasonable be able to obtain appropriate legal services for the proceedings. Therefore, the exercise essentially looks to the future.’

Mr Justice Cobb not only distinguished the facts in Rubin, where historic costs related to proceedings not only long concluded but where future proceedings would not take place in this jurisdiction, but also that the apparent requirement in Rubin for a solicitor to ‘down tools’ to demonstrate historic costs must be paid, was not necessary as ‘…otherwise it would work materially to the disadvantage of the honourable solicitor who is prepared to soldier on (perhaps someone against their better commercial judgement) for the good of the client or the case.’