I want to take legal action but can’t afford to pay expensive fees …
“A grave and widespread problem….” is how Wilson J (as he then was) referred to the question of how can a spouse, usually the wife, who is not entitled to legal aid but has few assets, secure legal advice and representation in order to pursue her rights against her husband.
Sometimes, life leaves you no option but to think about going to court. Perhaps you’ve tried talking, tried Mediation, or are in a situation where you are afraid and need help. Legal Aid may be available for some types of application if you can prove you or your child are victims of domestic abuse but if you are not or you have no proof, what can you do?
The first thing to do is research: find out what options are available. This could be:
1. Making an application yourself to the court. This means completing the application forms and sending them or taking them to the court yourself. You will be a ‘Litigant in Person’ ie, representing yourself.
2. Applying for a litigation loan. There are numerous financial organisations that will loan you money specifically to fund your court case. You – or more likely a solicitor on your behalf – have to provide a lot of information about your claim and the prospects of success but if you are reasonably certain of recovering assets so as to be able to repay the loan at some point, this might be worth considering
3. You could consider making an application to the court for a Legal Services Order. Under s 22ZA of the Matrimonial Causes Act 1973, the court will be able to order your spouse to pay you an amount for the purpose of enabling you to obtain legal services. This requires very careful assessment before any application is made.
4. Speak to a solicitor to find out if you can set up an arrangement to pay in regular monthly instalments rather than have to pay in one lump sum. Some solicitors may agree to take their fees only once you have recovered assets with which to pay. This is called a ’Sears Tooth’ agreement, named after the firm which created the notion.
Before taking legal action, be realistic about whether you can get what you want if you take a case to court. If your dispute is about a misunderstanding or communication breakdown, court is usually not the best place to sort it out. It’s usually better to try other options first.
Taking a case to court can be stressful. It can take a lot of time and money – for example, if you lose and you have to pay the other side’s costs.
At this point, you may benefit from some advice or representation from a solicitor. It is possible to instruct a solicitor to represent you at any point in the proceedings, even if you originally made the application yourself. This would still mean that you save the costs of the initial steps and making the application, but it may be more costly for a solicitor to repair any errors made in the early stages.
It is always worth considering an initial session with a solicitor prior to making an application, so that we can advise you on your case. Every case is different therefore fact-specific. You will find an early meeting with a solicitor to be more cost effective in the long run and it should ensure your application starts on the right track
For more advice please contact Sue, our Family Solicitor on 01206 577676 or email [email protected]