High court orders legal aid firm to pay costs in family case

A family law firm has been ordered to pay costs of the other party after the High Court found it was negligent in the preparation of a family case for a three-day hearing.

Ms Hannah Markham KC, sitting as a deputy High Court judge, found Slough firm Burnham Law Practice, which held a live legal aid certificate to represent the mother, had failed in core Solicitor Regulation Authority duties and was negligent ‘in that they did not act with the competence reasonable expected of ordinary members of the profession in the preparation of this case…and in their failure to both instruct counsel and enquire whether counsel was available to be instructed’.

The case in A Father v A Mother deals with a father’s application for a summary return of two children to Nigeria from where he claims they were unlawfully removed in June 2024.

Following a number of delays and, according to the judgment, ‘when it became clear that despite all efforts the three-day hearing could not proceed (no counsel across England and Wales being able to attend court, so I was told)’ the father made an application for his wasted costs ‘by the actions of the mother and or her legal team should be met by them (either by the solicitors or mother in shares to be determined)’.

The judge said at no stage did the firm respond to emails from the mother in the week ahead of the court listing - ‘a failure of their duty to her to prepare her case ahead of a listed hearing’. She added that ‘at no stage did it consider any issue about prior authority to instruct an expert and at no stage did the firm provide instructions to counsel or to ensure that counsel was instructed’.

‘The submissions made to me that counsel ought to have "instructed" new counsel were in my view wholly misplaced and demonstrated a failure to understand the basic process undertaken between solicitor and counsel and the manner in which counsel are instructed by solicitors.

‘It is important that solicitors remember their role in the proper instruction of counsel and that they must ensure that counsel is properly and fairly instructed and in a timely manner so that they (counsel) can in turn comply with their regulatory and ethical duties to client and court. I make the clear observation that all solicitors instructing counsel must ensure that they do so in this fair way, and in a timely fashion. It is the responsibility of solicitors to comply with their regulatory duties so that counsel can comply with theirs and the clients be properly represented and court time is not wasted.’

The judge found there was a link between ‘the acts or lack of acts’ by Burnham Law and the loss to the father of the costs he had paid to his direct access counsel which were wasted because the hearing could not proceed.

Finding Burnham Law negligent, the judge ordered the firm ‘meet the entirety of the father’s counsel’s costs’ for the three-day hearing and the costs of his travel to England, both flights and accommodation.