LKH v TQA AL Z (interim maintenance and costs funding)
| Jurisdiction | England & Wales |
| Judge | HOLMAN J |
| Judgment Date | 19 April 2018 |
| Neutral Citation | [2018] EWHC 1214 (Fam) |
| Court | Family Division |
Financial remedies – Interim maintenance – Costs funding – Pt III application following foreign divorce – Quantum of maintenance – Wife’s use of driver – Large sums owed to solicitor – Whether recoverable – Status of submissions as to solicitors’ unwillingness to continue to act unless sums owed cleared even if future costs provided for – Future costs.
In the course of proceedings under Pt III of the Matrimonial and Family Proceedings Act 1984, relating to a foreign divorce, the wife applied for interim periodical payments. The husband had not supplied a Form E. The wife’s estimate of the husband’s historic annual income was £3.7 million and of her own historic spending, £100,000 per month. There were also ongoing proceedings in relation to arrangements for the couple’s two children, aged 11 and 8.
There was agreement, subject to precise drafting, that the husband would give undertakings to make certain payments, but disagreement as to the husband’s offer to pay the leasing charges of the existing vehicles and the running costs, in particular in relation to payment of the driver. The husband was apparently seeking, through his driver, to limit or control the journeys that the wife could take in the cars alone, without the children.
After taking account of the impact of the husband’s undertakings on the children’s daily living expenses, the amount claimed for their expenses was about £22,544 per month. The husband was offering an undertaking to pay all ‘reasonable expenses’ for the children, either in advance or promptly on production of a receipt or bill. The wife claimed that this approach was fraught with problems and that it would be far better for the children’s expenses to be paid to her as part of her interim periodical payments.
The wife claimed £16,182 per month for her own personal expenditure. In addition, she was asking the husband to pay her loan repayment of £874.20 per month in respect of a bank loan for £40,000 and contributions towards her maintenance of properties in the Lebanon of £3,750 per month, which he had apparently historically paid. Further, she was asking for additional interim provision of £40,000 per month to help her repay substantial additional debts although, unlike the bank loan, she had no contractual obligation to repay these.
In relation to the two sets of legal proceedings the wife owed her solicitors £200,000 (she had already paid about £57,000). Her projected future costs were said to be about £155,750 in relation to the children and about £91,730 in relation to financial matters. The husband had already incurred costs of about £98,000 in relation to the children proceeding and about £35,000 in relation to the financial proceedings. Unlike the husband (who was resident in Oman), the wife had to pay VAT. The wife’s position was that the court should make provision for her to pay off her existing debt to her solicitors at the rate of £30,000 per month as well as future costs. The wife’s counsel submitted that if the solicitors were not relatively swiftly paid their outstanding costs, they would not continue to act for the wife, even if there was an award for future costs.
Held – (1) For the driver to be forbidden to drive the wife anywhere alone in the car, unless she had the children with her, was highly controlling and demeaning. It was absurd, if the cars were available and the proposed journey was within the contracted hours of work of the driver, for the mother to be unable to undertake some reasonable journey, driven by the driver, as was the historical pattern in this family. It was also, frankly, preposterous to suggest that there should be some provision to the effect that she could only be driven alone in the car provided that did not take priority over the children. She was in charge of the children’s daily lives and it was for her to make decisions as to the division of the driver’s time between her reasonable needs and the reasonable needs of the children. The husband’s undertaking to continue punctually to pay all the leasing charges on the vehicles and the insurance and other running costs was to be accepted, but from now onwards he would not be required to pay the salary or other employment costs of the driver. These were to be paid by the wife directly to the driver and there was to be added to the award for interim maintenance an amount equal to the monthly salary and other employment costs of the driver (see [9], [11], [12], below).
(2) The court accepted the wife’s argument that continued reliance on the reliability of the husband to pay for the children as and when required was fraught with danger. However, £22,544 per month (£270,000 pa) was an excessive amount for the children’s general incidental expenses, at any rate on an interim basis, even having regard to the general standard of living of this family. The court would allow a total of £12,000 per month for the children. Without commenting on any of the individual items in the wife’s claim for personal expenses, the court considered £16,182 per month an unnecessarily high figure and would award her £10,000 per month. In relation to the bank loan repayments and the maintenance of Lebanese properties, the court awarded her £4,000 per month. Therefore, so far as general maintenance for the wife and the children were concerned, the husband was to pay a total of £26,000 per month (plus, once it had been ascertained, the averaged monthly aggregate of the driver’s employment expenses) (see [15], [17]–[20], below).
(3) If the court were to make any provision in the present order for substantial monthly sums referable to past and existing debts which the wife was not contractually obliged to pay, it would be impermissibly making a form of capital provision disguised as maintenance. However, the whole question of the wife’s debts would, of course, fall to be considered as part of her overall financial claim and whatever distributive capital order was made (see [22], below).
(4) The court was not willing to make any order at all in relation to the costs that the wife had already incurred. Section 22ZA of the Matrimonial Causes Act 1973 (as amended) did not apply in this case, but, by virtue of subsection (1), the starting point in an English matrimonial case was that the court could 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 the proceedings’. That was looking forward to the obtaining of legal services, not backwards to legal services already obtained. Agreeing with Rubin v Rubin[2014] EWHC 611 (Fam), while it would be possible to award historic costs if, without such a payment, the applicant would not reasonably be able to obtain future appropriate legal services, this should be done only very sparingly indeed. If a partner of the wife’s solicitors had made a clear and unequivocal witness statement, to be publicly relied upon, to the effect that they would now, to quote the court in Rubin, ‘down tools’ or, to use another metaphor, pull the plug on their client, unless...
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