Family lawBy David Burrows, David Burrows, BristolFamily proceedings, legal aid and the costs draftsman's reasonable costsA local authority v A Mother and Child and the Legal Services Commission (judgment, 20 December 2000)In A local authority v A Mother and Child and the Legal Services Commission (yet to be reported), the Court of Appeal considered whether the provision of Civil Procedure Rules 1998 practice direction about costs para 4.8 (para 2.16 of the old practice direction) overrides the Legal Aid in Family Proceedings (Remuner-ations) Regulations 1991.The practice direction says a claim can be made 'for the reasonable costs of preparing and checking the bill of costs'.

Almost all detailed assessment bills are covered by this helpful provision, but not legally aided family proceedings.

In such proceedings, solicitors can charge a reasonable amount for the costs of 'preparing the bill...

and completing the taxation' (Item 17 in the schedules to the regulations); but the amount allowed is fixed at a maximum 51.75 in care proceedings conducted by a franchised firm.A depressing aspect of this case was that the Court of Appeal accepted that the charge should be a 'reasonable amount'; but that it is open to the Lord Chancellor to fix what is reasonable.If a discretion is given, as the term 'reasonable' inescapably implies, then to fix what is reasonable is a contradiction in terms.

Lord Justice Hale in the Court of Appeal accepted this contradiction without question.So a costs draftsman's 'reasonable costs' are not allowed; but the Court of Appeal did what it could to help solicitors.

Item 18 provides for 'Preparing for and attending the taxation'; the amount allowed for this is 'discretionary'.

Thus for every provisionally assessed bill the funded client's legal representative can claim from the minute he or she picks up the bill and starts the process of checking, objecting to and attending detailed assessment of a provisionally assessed bill.It is to be hoped that in a future issue Kathryn Hughes (whose firm took the case on appeal) and I (advocate for the appellant) will suggest guidance to practitioners on all this.Costs incurred on obligation to payR v Clerk to Liverpool Magistrates' Court, ex parte McCormick (2001) The Times, 12 January, QBDivCtA costs obligation on an aspirant legally aided defendant in Liverpool Magistrates' Court is not an obvious candidate for commentary in a note on family law.

But as reported in LSG [2000] at in AP v P (still to be reported) that court has confirmed that a payment of a lump sum for children can be made 'to meet any liabilities or expenses reasonably incurred' (Matrimonial Causes Act 1973, section 23(3)(b)).

In R v Clerk to Liverpool Magistrates' Court, ex parte McCormick (2001) The Times, 12 January, the Divisional Court found that costs are 'incurred' where there is a contractual liability to pay, not upon actual payment.

(In the Liverpool Magistrates' Court case, the Lord Chancellor argued that costs were not incurred if a litigant had no reasonable prospect of payment.) Thus, where a payment is applied for under Matrimonial Causes Act 1973 section 23(3) (section 23(3)(a) for the applicant spouse, section 23(3)(b), for the children) the court is entitled to take the view that an expense is one to be incurred, not necessarily one which has already been paid.For solicitors for impecunious spouses, just above legal aid financial eligibility levels, this interpretation of section 23(3)(a) may prove a lifeline, if the other spouse has the means to fund the litigation between the parties (and see A v A (Maintenance Pending Suit: Provision for Legal Fees) (2000) The Times, 14 November, Holman J for the issue of interim periodical payments for payment of solicitor's fees).