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Legal aid and options for those faced with costs

This content applies to England & Wales

Choices available to a client who is faced with the bill for the court's costs.

There are a number of options available for a litigant who is faced with the bill for the court's costs. Her/his options will depend on whether s/he is acting on her/his own behalf, s/he gets legal aid, or s/he is paying for the case from her/his own finances.

Where a litigant is acting in person

It is possible for an individual to deal with her/his own court case. Where this happens, the individual is referred to as a litigant in person and the court corresponds directly with the litigant, before and for the duration of the case. The litigant can obtain advice from an advice agency or solicitor, but s/he remains the person who is conducting the case.

The advantage for the litigant is that her/his own costs are reduced. However, s/he may be required to pay the other side's costs if her/his case is unsuccessful, or the other side's costs of a hearing or part of the case even where s/he wins the rest of the case.

If a case is not in the small claims track (see the page Costs in different tracks for information on costs in the small claims track), the court costs of each party in the county court can run into thousands of pounds. Even where a litigant is only ordered to pay for a single hearing or only part of a court case, the costs can be hundreds or thousands of pounds. Any person considering a court case should consider carefully the risks of paying the other side's costs.

A litigant in person may receive advice from a solicitor or another advice agency, such as Citizens Advice, but must represent her/himself in court and remains responsible for running the case. Many courts have a duty solicitor or adviser available when possession cases are being heard to provide free advice and sometimes assistance in court.

Legal aid

Depending on the problem an individual has and her/his financial circumstances, s/he may qualify for legal aid (ie public funding). For more information about the different forms of legal services available through legal aid see the Civil legal aid section.

Costs claimed by the other party

The court does have discretion to order a publicly funded litigant to pay the other party's costs, but only after a hearing as to her/his resources. It is extremely rare for a publicly funded litigant who has lost a case to have to pay the other party's costs. Even though such an order can be made, the judge will usually order that it cannot be enforced unless there is a hearing into the means of the publicly funded litigant.

Most privately funded parties will not pursue the order for costs against a publicly funded litigant because any order obtained would probably not be enforceable. However, in cases where a litigant has means (income or capital), then the other party might pursue a costs order.

Where one party is assisted by legal aid and the other is not, a common order for costs is that each side bears her/his own costs, and that there is a public funding assessment of the publicly funded party's costs. The final part of the order authorises the solicitor to have her/his bill assessed by the court and then claim costs from legal aid.

In certain circumstances, an assisted person has an automatic liability to pay her/his own costs and possibly also the costs of the other party. This is the case where an Emergency Certificate is granted and it later becomes apparent that the assisted person does not fulfil the means test, or is liable for a contribution that s/he is unwilling to pay. 

Help with court fees

People on low incomes may be eligible for help with paying their court fees. This is known as the remission system. The amount of help available depends on the person’s circumstances.

Full remission is available to people on income support, income-based jobseeker’s allowance, pension credit guarantee credit, income-related employment support allowance, working tax credit (but not also receiving child tax credit). People on low incomes may also be eligible.

A person acting on behalf of a minor can apply for remission on fees incurred on the minor's behalf.

A person in receipt of legal aid may be entitled to remission depending on the type and level of services s/he is receiving. A person being represented under a certificate for Legal Representation or Family Help (Higher) cannot apply for a fee remission. A person issuing proceedings through the online MCOL or PCOL system cannot apply for remission.

Applicants need to complete an EX160A form, which also provides further detail about eligibility for remission. All applications for fee remissions need to be accompanied by the relevant evidence, eg proof of benefits or low income.

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