Inequality of arms in a post-legal aid world

Family Law|December 13th 2017

I nearly deleted the email. Greeted with it in my inbox early last Saturday morning, my still sleepy brain couldn’t initially make sense of it. It seemed to be just another spam email from some stranger, of the type that I receive all the time, and I automatically hovered over the ‘trash’ button.

But then I looked at it again and realised what the sender was asking of me. I gave her the information that she requested and was rewarded with a reply explaining why she wanted it. She was involved in apparently acrimonious divorce proceedings. But the worst part was that she was having to represent herself, whilst her husband had the benefit of being represented by one of the most prestigious law firms in the country.

Welcome to family law in the 21st century.

Now, as I will explain in a moment, there may be (at least one) way for this lady to get out of her unenviable inequality of arms predicament, but before April 2013 the fact that you could not afford to instruct solicitors was no bar to anyone obtaining proper legal advice and representation. Until then, legal aid was available to anyone involved in private law family proceedings, such as disputes over arrangements for children and financial remedy claims ancillary to divorce. OK, it may have been true that the most ‘prestigious’ firms in the country did not usually offer a legal aid service, but there were still very many excellent firms that did, and inequality of arms was rarely much of an issue. Everyone had access to the benefit and protection of a lawyer: there were no second-rate citizens who did not.

All that of course changed when the last government swept away the protection of legal advice and representation for all those who could not afford it. Now, the prospect of having to represent yourself against an opponent with the benefit of lawyers is a daunting reality facing all too many litigants in our family courts.

Of course the unfairness of all this is magnified when the opponent is represented by a particularly high-profile firm, with its access to some of the top lawyers in the country. But ironically that fact may be an indicator of a possible answer to the inequality of arms problem, as Marilyn Stowe and others pointed out to me when I mentioned the issue on Twitter.

The answer to my lady’s predicament, as I subsequently advised her, may be a legal services order (LSO). As I have explained here previously, a legal services order is an order of the court requiring one party to pay a sum of money to the other party, to enable them to obtain legal services for the proceedings. Now, obviously such an order is only a possibility if the other party has the means to pay, but if he has the means to instruct one of the most prestigious law firms in the country, then that is an indicator that he may well have the means to pay a LSO.

There is then the problem of a litigant in person (LiP) having to apply for a LSO. Many LiPs may be so overwhelmed, or at least intimidated, by the prospect of having to make such an application, that they may be put off. However, my understanding (thanks to another Twitter user, whose name I can’t mention, as he keeps his account protected) is that many firms would be prepared to represent the LiP, if there was a high prospect of success, so that their costs were ultimately paid.

Even so, it still doesn’t seem right to me, and probably doesn’t seem right to many LiPs, that they have to go ‘cap in hand’ to the other party in this way. I suppose it is a minor point of swallowed pride, but it seems to emphasise that they are ‘second class’, in a way that legal aid never did.

And of course the LSO is not available to all. In most cases the other party will not have the means to pay the legal expenses of both sides. Then, the options for the LiP are very limited. They may be able to find a lawyer who is prepared to act for them on a pro bono basis (another suggestion I made to my lady), but as I have also explained here previously, pro bono can never fill the gap left by the abolition of legal aid – there are only enough pro bono lawyers available to represent a fraction of LiPs.

The simple reality is that many people going before the family courts in the 21st century will have to do so with the significant disadvantage of inequality of arms.

Photo by Dun.can via Flickr under a Creative Commons licence.

Author: Stowe Family Law

Comments(7)

  1. rum says:

    Today i went to court for a LSO . Mainly for representation for a CMS tribunal. As of course they have little jurisdiction to look into diversions etc. The judge said that anyone can get a cms tribunal and i am not convinced that you are entitled to such help as in dickinson v rennie , it was a big money case. He never understand the actual uphill struggle it is to get one and what you need to prove. The fact that it takes years. The fact that if you have a big profit you have the ability to take max assessment. He was on the defensive from the word go and did not want to issue and LSO for cms representation. I cant even go into the other parts of the order but i left the court having yet another down trodden system failure hearing that is destroying my sole. In fact in the judgement he failed to quote the huge profit of the defendant and only stated his salary ! I say if you are a litigant in person , walk away. If you go for a LSO without representation , forget it . They are too frightened to do anything for fear of reprisals, even with evidence of diverted funds in their thousands . The process and system does not work unless your in high court . I have wasted 3 years trying to act for myself to my detriment and ill health and low self esteem. Children’s act ! They dont give a damn about the children .

    • Andrew says:

      What on earth do you mean by reprisals? What sort of reprisals and from whom?

      The theory is that neither side needs representation in Tribunals (tell that to a defendant in the employment tribunal facing a discrimination case who can lose his business and his livelihood!) so I can see why you were refused an LSO for one.

  2. Andrew says:

    An LSO is effectively an advance on what is eventually found due. But beware. One fine day there is going to be a case where a wife (probably and I will so assume) gets one and the judge finds that the contribution of the husband is so stellar or the conduct of the wife so appalling that she should get less than what the husband has paid under the order.
    .
    In that case, John, are the solicitors as well as the wife liable to refund the difference? They should be. They will ex hypothesi have taken a punt on the wife doing better than she did and they should stand to the loss.
    .
    What do you think the answer is and what do you think it should be?

  3. Stitchedup says:

    John, the biggest inequality of arms scenario is a man falsely accused of domestic abuse, with no evidence offered, that attracts an award of legal aid to the accusing woman. How has this escaped your attention???

    • Andrew says:

      And to compound the inequality of arms he cannot cross-examine the witness against him but her counsel can cross-examine him!

  4. Nick Langford says:

    Oh, those golden days of legal aid! Except, they weren’t, were they? There was much wrong with the old system, which is one reason it was changed, though putting something much worse in its place wasn’t a good move. Legal aid was only available to the relatively poor, so that the services of a lawyer were not available to a wide band of middle-income people. I took a poorly paid job 15 years ago so that I could qualify for legal aid, because there was no way I could afford a lawyer on my previous salary. I’m now trapped in that job which will affect my pension. And legal aid was widely abused by lawyers and litigants alike, leading to high costs for the tax-payer and to cases dragging on for years without resolution.

  5. Phil says:

    The other way the woman can get legal aid is to claim domestic violence, whether genuine or not. Unfortunately there are too many people more than willing to offer this advice. The other party is then served with an NMO and as Sir James Munby said this sets the tone for the proceeding hearings.
    People make money and more than likely a child suffers emotional abuse as he doesn’t get to see one parent.

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