Hirachand v Hirachand and Another
| Jurisdiction | England & Wales |
| Court | Supreme Court |
| Neutral Citation | [2024] UKSC 43 |
| Year | 2024 |
2024 Jan 18; Dec 18
Family provision - Child - “Reasonable financial provision” - Daughter making claim for reasonable financial provision out of deceased father’s estate - Whether such provision capable of including amount referable to daughter’s liability to pay conditional fee agreement success fee -
The claimant brought a claim under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975F1 against her widowed mother and her brother, who respectively were the sole beneficiary and the personal representative of her deceased father’s estate, seeking an order under section 2 of that Act for such financial provision out of the estate as it would, in all the circumstances of the case, be reasonable for her to receive for her maintenance. Having concluded that the deceased’s will had not made reasonable financial provision for the claimant, the judge awarded her a lump sum calculated by reference to her “financial needs” within the meaning of section 3(1)(a) of the 1975 Act, including an amount referable to the claimant’s liability to pay a conditional fee agreement success fee, which by virtue of section 58A(6) of the Courts and Legal Services Act 1990F2 she would not have been entitled to recoup under any “costs order” made in her favour. The Court of Appeal dismissed the widow’s appeal, holding that an award under the 1975 Act could include a sum referable to the claimant’s liability to pay a success fee under a conditional fee agreement.
On appeal by the widow—
Held, allowing the appeal, that the general principle that the costs of civil proceedings were to be dealt with exclusively in accordance with the CPR and were not to be recovered by means of the substantive relief ordered in those proceedings applied (i) to claims for financial provision under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975, since proceedings under the 1975 Act were civil proceedings and there was nothing in that Act which displaced the principle expressly or by necessary implication, and (ii) to the liability of a party in civil proceedings to pay a success fee, notwithstanding that the success fee could not be recovered by way of a “costs order” by virtue of section 58A(6) of the Courts and Legal Services Act 1990, since a success fee nevertheless remained part of the costs of the proceedings; that, further, a substantive order under section 2 of the 1975 Act which made provision for the payment of a success fee was a “costs order” within the meaning of section 58A(6) of the 1990 Act and so was prohibited by that subsection, since any order which dealt with the costs of the proceedings in which it was made constituted a “costs order” within the meaning of section 58A(6) of the 1990 Act, irrespective of the provision or other jurisdiction under which it was made; that it followed that both the general principle and section 58A(6) of the 1990 Act precluded a judge from making an order for financial provision under the 1975 Act which included directly or indirectly any allowance for the success fee payable by the claimant; that no valid analogy could be drawn between financial remedy proceedings under the Matrimonial Causes Act 1973 or financial provision proceedings under Schedule 1 to the Children Act 1989 on the one hand (in which a substantive award might include a sum in respect of costs incurred in the proceedings) and proceedings under the 1975 Act on the other hand, since in the former proceedings orders for costs were not generally made; and that, accordingly, the court would exclude from the order made in favour of the claimant under the 1975 Act any sum for the success fee payable by her in respect of the present proceedings (post, paras 56–60, 62, 66, 70, 74, 80–85, 87–88, 93–94, 99–100).
Per curiam. Payments to fund accrued (or future) legal costs are capable of constituting “maintenance” for the purposes of section 1(2)(b) of the 1975 Act (post, para 26).
The following cases are referred to in the judgment of Lord Richards JSC:
A v A (Maintenance Pending Suit: Payment of Legal Fees) [
Attorney General v Prince Ernest Augustus of Hanover [
Azarmi-Movafagh v Bassiri-Dezfouli
Barnett v Eccles Corpn [
Berry v British Transport Commission [
British Racing Drivers’ Club Ltd v Hextall Erskine & Co [
Calderbank v Calderbank [
Cockburn v Edwards (
Currey v Currey
Dennis, decd, In re [
Ilott v The Blue Cross
Jassal v Shah
Quartz Hill Consolidated Gold Mining Co v Eyre (
Seavision Investment SA v Evennett (The Tiburon) [
Simmons v Castle (Practice Note)
Union Discount Co Ltd v Zoller
Weisz v Weisz
The following additional cases were cited in argument:
Amnir v Bala
Baynes v Hedger
Clarke v Allen
Diag Human SE v Volterra Fietta
Espinosa v Bourke [
Jennings, decd, In re [
Lewis v Warner
Lilleyman v Lilleyman
Lilleyman v Lilleyman (No 2)
R (PACCAR Inc) v Competition Appeal Tribunal
APPEAL from the Court of Appeal
By a claim form dated 10 November 2017 the claimant, Sheila Hirachand, issued proceedings under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 as a child of the deceased, Navinchandra Hirachand, seeking such financial provision as it would, in all the circumstances of the case, be reasonable for her to receive for her maintenance. The first defendant, Nalini Hirachand, was the claimant’s mother and the sole beneficiary of the estate of the deceased. The second defendant, Katan Hirachand, was the claimant’s brother and was the personal representative of the deceased’s estate. On 6 March 2018, the claimant entered into a conditional fee agreement with her solicitors.
By an order dated 7 May 2020 Cohen J [2020] EWHC 1134 (Fam); [
By an appellant’s notice filed on 24 June 2020 and with permission granted by the Court of Appeal on 20 October 2020 and 10 May 2021 (King LJ) the first defendant appealed on two grounds, one of which was that it was wrong in law for a judge to include a sum by reference to a success fee under a conditional fee agreement, in a maintenance-based award calculated by reference to the financial needs of a claimant. By a decision dated 15 October 2021 the Court of Appeal (King, Singh LJJ and Sir Patrick Elias) [2021] EWCA Civ 1498; [
By an appellant’s notice dated 10 January 2022 and pursuant to permission to appeal granted by the Supreme Court on 25 August 2022 (Lord Reed PSC, Lord Sales and Lord Hamblen JJSC) the first defendant appealed. The key issue for the Supreme Court, as set out in the parties’ agreed statement of facts and issues, was whether the Court of Appeal was wrong in law to decide that a conditional fee agreement success fee was a debt, the satisfaction of which might constitute a financial need for which the court might in its discretion make provision in an award under the 1975 Act. In determining this key issue, the following issues were to be considered. (1) With regards to section 58A(6) of the 1990 Act: (a) what was the definition of “costs order” in section 58A(6); (b) did section 58A(6) constitute a statutory limit on what the court could take into account as “financial needs”...
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Musst Holdings Ltd v Astra Asset Management UK Ltd
...in earlier proceedings against the same party. Mr Spalton and Mr Mo relied on the decision of the Supreme Court in Hirachand v Hirachand [2024] UKSC 43, [2025] AC 599 and the article “Costs as Damages” by Professor Louise Merrett published in (2009) 125 LQR 468 which Lord Richards JSC cited......
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David Marcus Isaacs v Michael Anthony Green (as Personal Representative of the Estate of Sybil Rachael Isaacs Deceased)
...for his legal costs incurred within these proceedings in the light of the recent decision of the Supreme Court in the case of Hirachand v Hirachand [2024] UKSC 43; [2025] AC 559. He referred me to the decision of Mr James Pickering KC sitting as a Deputy High Court Judge in the Chancery Div......
