Busting more Myth Buster myths…

In November 2014 I wrote about the Adoption Myth Buster Guide, see here : Take me to your Leadership Board. I said that it had been confirmed that the “top QC” who had authored the guide was in fact Janet Bazley QC.

Janet has recently been in touch to ask me if I could correct my post, because she is not the author of the myth busting guidance (this is obviously most shocking because the delay in this request appears to be evidence that there remains a top QC who does not regularly read my blog ;-)).

Janet says :

In fact, I am not the author of the original version and was not consulted at all about the further document produced later by the Department of Education. I advised the D of E but did not write the document, which was written by D of E lawyers. I had no editorial control.

I originally stated that “it had been confirmed” after myself and others asked Martin Narey for a name on twitter.

 

I post some of the relevant tweets below.

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I have amended the original post (tracked) and have linked to this explanatory post rather than disrupting the flow of the original post by inserting it in the body of the original.

Litigants in person costs awards

It’s a little known thing that under rule 46.5 of the Civil Procedure Rules (which do apply to family proceedings – see FPR 28.2) the court may award a litigant in person their costs. This has been the case for over a year now, and it isn’t used much in civil proceedings and I anticipate has rarely if ever been used in family cases.

It’s not very long so I set out 46.5 in full below.

(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.

(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

(3) The litigant in person shall be allowed –

(a) costs for the same categories of –

(i) work; and

(ii) disbursements,

which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf;

(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and

(c) the costs of obtaining expert assistance in assessing the costs claim.

(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be –

(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or

(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.

(5) A litigant who is allowed costs for attending at court to conduct the case is not entitled to a witness allowance in respect of such attendance in addition to those costs.

(6) For the purposes of this rule, a litigant in person includes –

(a) a company or other corporation which is acting without a legal representative; and

(b) any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner) –

(i) a barrister;

(ii) a solicitor;

(iii) a solicitor’s employee;

(iv) a manager of a body recognised under section 9 of the Administration of Justice Act 1985; or

(v) a person who, for the purposes of the 2007 Act, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act).

So, the first thing to say is that this doesn’t even kick into action unless the court has decided that it is right for a costs order to be made – and in family proceedings (unlike civil, from whence this rule emanates) this will be a rare occurrence.

This is not the place for an analysis of exactly when costs orders are likely to be made, but generally speaking a costs order is only likely to be made if there has been some pretty heinous conduct on the part of the person  paying, which makes it right for the court to order them to bear the costs of the other party.

If you are in that territory however, the fact that one party is a litigant in person does not protect the other party against a costs order, and nor does it mean the litigant in person can recover nothing for their time.

The amount awarded cannot be more than two thirds of the amount that would have been awarded if a lawyer had been involved. Note the wording is amount not rate, and as many litigants who once had lawyers know – a few hours of lawyer’s time may add up to a substantial sum. 2/3 of a substantial sum is not to be sniffed at.

Disbursements (things like court fees) may be recovered in full (where an order is made).

The sum may include sums reasonably spent on “legal services” (query whether this includes unregulated “legal services” provided by professional mckenzie friends as “legal services” is not defined in the CPR and appears to be broader than conduct of litigation).

The sum is to be calculated either by reference to actual financial loss (e.g. I took two days off work to prepare the case, I lost £400 in earnings in total), or, if there is no provable financial loss by reference to PD46 CPR at a rate of £19 p/h.

Evidence in support of actual financial loss must be served not less than 24 hours before the hearing (or with notice of commencement of detailed assessment if not summarily assessed).

So : beware naughty lawyers, and don’t forget litigants in person – this might, just might, be worth keeping an eye on.