UNIVERSITY OF WESTMINSTER
LEGAL PRACTICE COURSE
FAMILY LAW
LECTURE 9 – FINANCIAL ORDER PROCEDURE & PRACTICE
ELIGIBILITY FOR FAMILY HELP (HIGHER) & LEGAL
REPRESENTATION
Only victims of domestic violence, with the appropriate evidence
(see Form A (re MIAMs) for the list) will be eligible
For those who are eligible
FHH will cover cases up until the Financial Dispute Resolution
Appointment (FDR)
FHH will not cover the final hearing and an application for LR will
have to be made – note that in most cases this will be an
amendment to the existing certificate so a CivApp8 will be used.
Even before LASPO there was a requirement to consider the
availability of private funding by means of a loan if they have
sufficient disposable income or even by making use of available
capital that is perhaps the subject matter of the dispute
Remember issues with respect to the Subject Matter of Dispute
being exempted up to £100,000. Note also that a general claim
for a lump sum will not put specific savings in dispute so as to
activate the SMOD disregard.
THE STATUTORY CHARGE
s25 LASPO 2012
a first charge on—
(a) any property recovered or preserved by the individual in
proceedings, or in any compromise or settlement of a dispute, in
connection with which the services were provided (whether the
property is recovered or preserved for the individual or another
person), and
University of Westminster 1 Family Law
, (b) any costs payable to the individual by another person in
connection with such proceedings or such a dispute
Exceptions in The Civil Legal Aid (Statutory Charge)
Regulations 2013
In relation to FHH and LR, the statutory charge will apply to all property
recovered or preserved, and the amount will include the work done at
the lower levels.
In relation to the Lower levels of funding they are exempt from the
statutory charge, unless you progress up to certificated work.
Also exempt are:
any periodical payment of maintenance
(maintenance means money or money’s worth paid
towards the support of a former partner, child or any other
person for whose support the payer has previously been
responsible or has made payments)
the client’s clothes or household furniture or the tools or
implements of his trade (other than in circumstances which are
exceptional having regard to the quantity or value of the items
concerned)
any sum or sums ordered to be paid under Part IV of the Family
Law Act 1996
Pension attachment orders under s25B(4) and lumps sums
payable on death under s25C are exempt.
Recovering or Preserving Property
Recovery is a gain by an applicant or claimant receiving funding from
the commission
Preservation is fending off someone else’s claim over your property or
your possession of your property or part thereof
Property must be in issue
Hanlon v The Law Society [1980] 2 All ER 199
this can be decided by looking at the statements of case, the
evidence and the correspondence
University of Westminster 2 Family Law
, significance is the ability to minimise the charge by agreeing at
the outset that certain property is not in dispute
in Hanlon the house was in the husband’s sole name but equal
contributions had been made by both parties
the house was transferred to the wife
the House of Lords held that the charge applied to all of the
house
if the parties had agreed at the outset that the wife was entitled
to 50% of the house and that the only issue was over the
husband’s share then the charge would only have applied to that
50%
Curling v The Law Society [1985] 1 All ER 705
here it was accepted that each party owned 50% of the house
the dispute was that the husband wanted to stay in the house
but the wife wanted the house sold
in the end the husband bought out the wife’s share and she
argued the charge did not apply to any of this as it had never
been disputed that this was hers
the Court of Appeal held that she had realised her share earlier
than she otherwise would have been entitled to so the money
paid to her by her husband had been money recovered in
respect of property in issue
Parkes v The Legal Aid Board [1994] 2 FLR 850
remaining in exclusive possession of the property through having
a sale postponed was also preservation of a property right
Whether for himself or any other person
this means that you cannot avoid the charge by having money
transferred to children or to a creditor
Postponing the Charge
University of Westminster 3 Family Law
LEGAL PRACTICE COURSE
FAMILY LAW
LECTURE 9 – FINANCIAL ORDER PROCEDURE & PRACTICE
ELIGIBILITY FOR FAMILY HELP (HIGHER) & LEGAL
REPRESENTATION
Only victims of domestic violence, with the appropriate evidence
(see Form A (re MIAMs) for the list) will be eligible
For those who are eligible
FHH will cover cases up until the Financial Dispute Resolution
Appointment (FDR)
FHH will not cover the final hearing and an application for LR will
have to be made – note that in most cases this will be an
amendment to the existing certificate so a CivApp8 will be used.
Even before LASPO there was a requirement to consider the
availability of private funding by means of a loan if they have
sufficient disposable income or even by making use of available
capital that is perhaps the subject matter of the dispute
Remember issues with respect to the Subject Matter of Dispute
being exempted up to £100,000. Note also that a general claim
for a lump sum will not put specific savings in dispute so as to
activate the SMOD disregard.
THE STATUTORY CHARGE
s25 LASPO 2012
a first charge on—
(a) any property recovered or preserved by the individual in
proceedings, or in any compromise or settlement of a dispute, in
connection with which the services were provided (whether the
property is recovered or preserved for the individual or another
person), and
University of Westminster 1 Family Law
, (b) any costs payable to the individual by another person in
connection with such proceedings or such a dispute
Exceptions in The Civil Legal Aid (Statutory Charge)
Regulations 2013
In relation to FHH and LR, the statutory charge will apply to all property
recovered or preserved, and the amount will include the work done at
the lower levels.
In relation to the Lower levels of funding they are exempt from the
statutory charge, unless you progress up to certificated work.
Also exempt are:
any periodical payment of maintenance
(maintenance means money or money’s worth paid
towards the support of a former partner, child or any other
person for whose support the payer has previously been
responsible or has made payments)
the client’s clothes or household furniture or the tools or
implements of his trade (other than in circumstances which are
exceptional having regard to the quantity or value of the items
concerned)
any sum or sums ordered to be paid under Part IV of the Family
Law Act 1996
Pension attachment orders under s25B(4) and lumps sums
payable on death under s25C are exempt.
Recovering or Preserving Property
Recovery is a gain by an applicant or claimant receiving funding from
the commission
Preservation is fending off someone else’s claim over your property or
your possession of your property or part thereof
Property must be in issue
Hanlon v The Law Society [1980] 2 All ER 199
this can be decided by looking at the statements of case, the
evidence and the correspondence
University of Westminster 2 Family Law
, significance is the ability to minimise the charge by agreeing at
the outset that certain property is not in dispute
in Hanlon the house was in the husband’s sole name but equal
contributions had been made by both parties
the house was transferred to the wife
the House of Lords held that the charge applied to all of the
house
if the parties had agreed at the outset that the wife was entitled
to 50% of the house and that the only issue was over the
husband’s share then the charge would only have applied to that
50%
Curling v The Law Society [1985] 1 All ER 705
here it was accepted that each party owned 50% of the house
the dispute was that the husband wanted to stay in the house
but the wife wanted the house sold
in the end the husband bought out the wife’s share and she
argued the charge did not apply to any of this as it had never
been disputed that this was hers
the Court of Appeal held that she had realised her share earlier
than she otherwise would have been entitled to so the money
paid to her by her husband had been money recovered in
respect of property in issue
Parkes v The Legal Aid Board [1994] 2 FLR 850
remaining in exclusive possession of the property through having
a sale postponed was also preservation of a property right
Whether for himself or any other person
this means that you cannot avoid the charge by having money
transferred to children or to a creditor
Postponing the Charge
University of Westminster 3 Family Law
