Litigation Recent Decisions 13/1/98

Decisions are taken from Lawtel's Case Law database. LTL: Lawtel report; TLR: Times Law Reports; ILR: Independent Law Report

Enforcement of costs of assisted person

Ager v Ager (1998)

Court: CA (Simon Brown LJ and Hale J) 19/12/9Summary: When an order is made by the Court of Appeal for the costs of party A to be paid by a legally aided party B, such order 'not to be enforced without leave of the court', to which court must A later apply for leave? Is it the Court of Appeal or the court from whose order the appeal lay?

The parties were husband and wife and in the ancillary proceedings arising out of their divorce suit, the wife successfully applied to the Court of Appeal against a county court order dividing the proceeds of the sale of the former matrimonial home. The Appeal Court reduced the husband's entitlement and made an order as to costs, the effect of which was to require each party to bear its own costs of proceedings in the county court and the husband to pay the wife's costs in the Appeal Court subject to the qualification that those costs incurred from the date when the husband became legally aided should not be enforced without the leave of the court. After the husband received £30,000 from his father's estate steps were taken by the wife and the Legal Aid Board (LAB) to enforce the outstanding order for costs against him (the LAB had a statutory charge against the matrimonial home in respect of the unrecovered costs). The Civil Appeals Office advised the wife's solicitors that there was no procedure in the Appeal Court for making application for leave to enforce such orders for costs and that they should apply to the county court. The county court judge decided that he had no jurisdiction to entertain the application, as reg124(3) of the Civil Legal Aid (General) Regulations 1989 provided that determination of an assisted person's liability for costs shall be tried and heard by the court that heard the proceedings. He made no order other than giving the wife leave to appeal to the Appeal Court. S15(4) Supreme Court Act 1981 provides that any provision authorising or requiring the taking of steps for the execution or enforcement of a judgment or order of the High Court applies in relation to a judgment or order of the civil division of the Court of Appeal as it applies in relation to a judgment or order of the High Court. By s76 of the County Courts Act 1984 this provision is applied equally to the county court. In addition to the general question, the specific question was therefore: 'Is the seeking of the court's further order which necessarily involves the determination of the amount of the assisted person's liability for costs in accordance with s17(1) of the Legal Aid Act 1988 (without which no costs are recoverable from him) the taking of a step for the enforcement of the present court of Appeal order?' If so, then it follows that the machinery available in the county court for arriving at such a determination can be invoked to transform the present order into a recoverable order for costs.