Litigation Guardians, Part 3 – Costs and Expenses

Litigation Guardians – A Four Part Series: Overview, Appointment, Costs and Access.

Part 3 – Costs and Expenses

Continuing on with our fictional fact scenario presented in Part 1 – Overview and developments in Part 2, Pam, James’ sister, has agreed to act as his litigation guardian and has now been successfully appointed by the Court.

Part 1 – https://www.resolveconflict.com.au/litigation-guardians-part-1-overview/

Part 2 – https://www.resolveconflict.com.au/litigation-guardians-part-2-steps-to-appoint-litigation-guardian/

1. The difficulty with consent – the legal expenses associated with litigation

Who is responsible to meet the expenses and costs of running the Family Law matter and what are the risks to Pam?

As litigation guardian, and without any knowledge of Family Law, Pam will necessarily rely on the advice of James’ family lawyer to conduct the Court proceedings.

But Pam should also seek separate, independent legal advice to ensure she is fully informed not only of her responsibilities as litigation guardian but also the risks to her personally, particularly in relation to how costs and expenses of the proceedings will be met.

Although Pam will have a right of indemnity to recoup costs incurred by her from James, including James’ lawyer’s fees,[1] it is important for Pam to be aware that this right can be lost if she acts unreasonably and as a result of her conduct, James’ costs were increased.[2]

Regardless of her right of indemnity, it is important that Pam take active steps to insulate herself from any of the expenses she incurs in efforts to advocate on behalf of James.

One solution is to seek an interim property order for litigation funding from James’ ex-partner to meet the expenses and costs of running the case, if appropriate. Alternatively, Pam could seek an order for these expenses to be met from any potential distribution to James from a future property settlement.

This risk still remains for litigation guardians however, in matters with:

1. Modest property pools;
2. Where there may be no anticipated entitlement to property; or
3. Where there is no property at all from which to be reimbursed, such as in parenting matters.

In addition to the significant work involved in running a Family Law case, the potential risk of being personally liable for one’s conduct can be a significant disincentive to someone considering acting as another’s litigation guardian.

Those considering an appointment as litigation guardian should seek independent legal advice to ensure they are fully informed as to the role, responsibilities and associated costs and expenses.

Luckily for James, he can rely on Pam. Others may have a large support network of friends and family, all capable of acting as litigation guardians but in light of the risks with acting as litigation guardian, what happens if none consent?

Note: This is general information only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au

[1] Murray v Kirkpatrick (1940) 57 WN (NSW) 162.

[2] Chapman v Freeman (1962) VicRp 38 & 259.