Rule 88.Allowance of attorneys’ fees; expenses and services

The power. In every case where there is a legal or equitable basis for it, the court may assess against a party the reasonable counsel fees of any other party. The condition does the work: a basis in law or equity has to exist. Fees are not routine, and this rule does not create the entitlement — it supplies the procedure for one that already exists.

In this court that matters more than in most. Family litigation is often between people of very unequal means, and a fee award is sometimes the only thing that lets the poorer party be represented at all.

The affidavit. Where fees are requested, the attorney must submit an affidavit stating the time and effort expended; an itemisation of the services rendered; the relevant hourly rates; an itemisation of the disbursements claimed; any sums received or to be received for those services or disbursements; and any information that will let the court weigh the factors set out in the Rules of Professional Conduct on the reasonableness of a fee.

Notice the fifth item. An attorney must disclose what they have already been paid, or will be paid, from any source — so a fee award tops up rather than duplicates. And notice that a bare total will not do: the court is given the hours, the rates and the costs, and can therefore disagree with parts of a bill rather than having to accept or reject the whole of it.