Henry Hood and Anna Roiser discuss notional standard assessment in LSPO applications in Financial Remedies Journal
Henry and Anna’s article was published in the Financial Remedies Journal, 11 July 2024, and can be seen here.
Henry Hood, Senior Partner, and Anna Roiser, Senior Knowledge Lawyer, in our Family & Relationships department, examine the increasing judicial use of a "notional standard assessment" in Legal Services Payment Order (LSPO) applications.
This approach involves applying a percentage-based reduction to the applicant’s claimed legal costs, often mirroring what might be recoverable under a standard costs order in civil litigation. The authors analyse two recent High Court decisions that reflect diverging judicial attitudes: Cobb J strongly endorsed the approach, while Peel J expressed caution, suggesting it should only serve as a secondary check.
Henry and Anna argue that this trend risks distorting the purpose of LSPOs, which are intended to ensure that financially weaker parties can access legal representation on an equal footing. By importing cost control mechanisms from civil litigation, the courts may be undermining the fairness and accessibility that family law seeks to uphold. The notional assessment method, they suggest, lacks a clear legal foundation and may result in arbitrary reductions that disadvantage applicants.
Henry and Anna also highlight the practical implications of this approach. Applicants may be left with insufficient funds to instruct or retain appropriate legal representation, particularly in complex or high-stakes cases. This could lead to an imbalance in proceedings, especially where the other party has significantly greater financial resources. The authors stress that LSPOs should be assessed based on the actual needs and circumstances of the applicant, not hypothetical recoverability standards.
In conclusion, the article calls for a more principled and transparent framework for determining LSPO amounts. With Cobb J’s recent appointment to the Court of Appeal, there is concern that his endorsement of the notional assessment approach could gain wider judicial acceptance. Henry and Anna urge the legal community to critically assess whether this trend aligns with the core values of family justice and to advocate for reforms that preserve fairness and access to justice for all parties.
Read the full article on the Financial Remedies Journal's website [external link].
