Maintenance pending suit

The Family Court’s power to order interim support is limited to its power to make maintenance pending suit orders (MPS) under section 22 of the Matrimonial Causes Act 1973 and legal services payment orders (LSPO) under section 22ZA.

The leading authority remains Mostyn J’s decision in Rubin v Rubin [2014] EWHC 611 (Fam) in which he set out 14 relevant applicable principles. They were recently considered by Holman J in two separate judgments in the same case. 

In LKH v TQA AL Z [2018] EWHC 1214 (Fam), Holman J made a legal services order in the context of an application brought by the wife under Part III of the Matrimonial and Family Proceedings Act 1984. The wife had unpaid legal fees of over £200,000. Her projected future costs were estimated to be approximately £156,000 in relation to children matters and approximately £92,000 in relation to financial matters. 

Holman J was unwilling to make an order to enable the wife to discharge her historical costs. He noted that s22ZA(1) provides that the court may make an order requiring one party to pay to the other ‘an amount for the purpose of enabling the applicant to obtain legal services for the purposes of these proceedings’. He stated that looks forward to the obtaining of legal services, not backwards to legal services which have already been obtained. In so doing, he followed the approach of Mostyn J in Rubin v Rubin in which he said, ‘the exercise essentially leads to the future’. 

On the issue of past costs, in Rubin v Rubin, Mostyn J stated, ‘this is not a case where her lawyers are saying that they will down tools unless they are paid outstanding costs as well as being funded for the future. Were her application to be granted it would represent a very dangerous subversion of the exclusivity of the inter-partes costs powers and principles… such a development must be stopped in its tracks’. 

Holman J noted that in the family law field, prestigious firms of solicitors frequently make a decision to allow an element of credit to their clients on an assessment by them that the client will ultimately be in a position to pay the bill. It was, however, submitted on behalf of the wife’s solicitors in LKH v TQA that if they were not relatively swiftly paid all of their outstanding costs, they would not continue to act, even if there were an appropriate award of monthly payments to cover future costs. Holman J was, however, unwilling to accept that submission. He stated that if a partner of the wife’s solicitors’ firm had made a clear and unequivocal witness statement to the effect that they would ‘down tools’ or ‘pull the plug on their client unless their past costs were rapidly paid’, then Holman J stated he would have to consider that. But he did acknowledge that that would be a regrettable and regressive development in this class of expensive family litigation. And he was not prepared to assume on the basis of a submission that such a firm would act in that way. 

Holman J was therefore willing to make provision for the wife’s future costs, but not for those costs already incurred.

As for payment of the wife’s future fees, Holman J directed that there must be a suitable formula to the effect that the solicitors must regularly account to the husband as to how the monthly sum was being spent. If there was a surplus at the end of the proceedings, it must be credited back to the husband. The wife’s solicitors were, however, specifically precluded from using any part of the award to satisfy any costs owing up to the date of the hearing. 

The same case came back before Holman J and was reported as LKH v TQA AL Z (Interim maintenance and pound for pound costs funding) [2018] EWHC 2436 (Fam). The husband had failed to file and serve his Form E, despite an extension of time having been agreed by consent. He had also failed to satisfy the MPS order and the LSPO. Despite such non-compliance, during the intervening three-month period he had paid £95,000 in costs to his own solicitors.

The wife brought two applications before Holman J: a pound-for-pound order seeking £100 for her own costs for every £1 the husband spent on his solicitors, and a debarring order in the event of non-payment by the husband. On the first point, Holman J’s attention was drawn to the decision in Mubarak v Mubarik [2007] 1 FLR 722 in which Bodey J had made a pound-for-pound order. Holman J recognised that the rationale of such an order must be that of an equal or level playing field. It therefore did not seem to him that the Mubarak jurisdiction can properly be applied to require a payer to pay substantially more to the other party than to his own solicitors. 

Holman J declined to make a debarring order following the jurisdiction of Hadkinson v Hadkinson [1952] FLR 287. Holman J was of the view that it was an extreme course to debar somebody from being heard on an application.

Broad-brush approach

Holman J’s first decision in respect of MPS is unremarkable, save perhaps for the interim support awarded of £26,000 a month. Rather than adopting a line-by-line analysis of the wife’s interim expenditure needs, a broad brush was adopted to the wife’s general needs claimed. This reflects the approach to budgets recommended by Mostyn J in SS v NS [2014] EWHC 4183 (Fam) and Thorpe LJ in Purba v Purba [1999] EWCA Civ 1730.

The most recent decision of note in respect of maintenance pending suit applications is that of Moylan J in BD v FD [2014] EWHC 4443 (Fam). He emphasised that the purpose of an MPS application is to address immediate needs. He stated: ‘The purpose of the section is to give the court the power to address income needs which cannot await the final resolution of the substantive claims either by agreement or court determination.’ 

He also stated: ‘I would endorse, indeed emphasise, the word immediate’. Moylan J commented that in the present case, the wife was neither prejudiced nor disadvantaged if she chose to use part of her resources to meet her reasonable interim income needs. Moylan J anticipated that the final capital award would be calculated by reference to her actual resources at that time, unless the husband was able to deploy an add-back or re-attribution argument. 

Andrew Newbury is a partner at Hall Brown