R v R
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 10 March 2014 |
| Neutral Citation | [2014] EWHC 611 (Fam) |
| Docket Number | Case No: FD13P00896 |
| Court | Family Division |
| Date | 10 March 2014 |
[2014] EWHC 611 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD13P00896
Miss Katherine Kelsey (instructed by Bishop and Sewell) for the Applicant
Mr Christopher Hames (instructed by Brethertons Solicitors) for the Respondent
Hearing dates: 5 March 2014
The following applications are before the court for adjudication:
i) An application by the applicant ("the wife") for a legal services payment order ("LSPO") pursuant to s22ZA Matrimonial Causes Act 1973 in the sum of £7,268 to cover costs incurred in financial remedy proceedings.
ii) An application by the wife for an order for a lump sum pursuant to s15 and Schedule 1 para 1(2)(c) Children Act 1989 of £15,700 to cover costs incurred in proceedings under the 1980 Hague Convention on the Civil Aspects of Child Abduction (as incorporated into our law by the Child Abduction and Custody Act 1985).
iii) An application by the respondent ("the husband") for an order granting permission to appeal the order of Deputy District Judge Elliot dated 28 February 2014 whereby he excepted from a stay which he granted of the wife's divorce proceedings her application for the LSPO. If permission is granted the husband would wish the appeal to be dealt with immediately and allowed.
I shall set out the background in short form.
The husband and wife met in 2005 and started living together in April 2009. He is American having been born in Los Angeles; she is English having been born in London. Their daughter was born in London on 21 June 2008. The husband and wife married in California on 20 August 2011 following the making of a premarital agreement on 18 August 2011. On 21 January 2014 Mrs Justice Hogg found that by February 2012, at the latest, the family was living in California. Their son was born in California on 21 August 2012.
On 14 October 2012 all four members of the family came to England. Mrs Justice Hogg in proceedings under the Hague Convention found that when the wife refused to let the children return on return tickets on 30 October 2012 the children were wrongfully retained in England and Wales. She ordered that they be returned to California on 17 February 2014. On that day the wife, the husband and the children duly returned to California. No member of this family is now present in England.
Meanwhile on 10 May 2013 the wife issued divorce proceedings in London. She filed a Form A seeking financial remedies on the same day. She also issued an application for orders under s8 Children Act 1989. On 3 June 2013 the husband filed for divorce in the Superior Court of California, County of Los Angeles. The parties attempted mediation about all issues here in September and October 2013, but without success. They filed voluntary Forms E setting out their then respective financial positions prior and for the purposes of that mediation. In the financial proceedings the wife incurred costs, some of which were paid by the husband but of which £7,268 is unpaid. On 10 January 2014 she applied for a LSPO to seek this sum.
On 23 January 2014 the husband applied for a stay of the wife's divorce proceedings pursuant to Schedule 1 para 9 of the Domicile and Matrimonial Proceedings Act 1973. This application came before Deputy District Judge Elliot on 28 February 2014 for directions. He decided to deal with the substantive application, which was perhaps an unusual course as, at any rate in my experience, applications for a stay on the ground of forum non conveniens are usually, and should be, heard by a High Court Judge. He granted the stay but excepted from his order the wife's application under s22ZA for a LSPO. He made no order as to costs. It is the exception order which the husband seeks to appeal. He argues that the Deputy District Judge had no power when ordering a stay of the main suit to except a subsidiary interim financial application from its application.
On 18 February 2014 (the day after her return) the wife filed a response to the husband's divorce petition in California, seeking dissolution of marriage, a determination of the enforceability of the parties' pre-marital agreement and an order allowing relocation of the children back to England. She also issued interrogatories and demands for production of documents at her attorney's office on 28 March 2014. There is a case management conference at court in Los Angeles on 11 June 2014.
I revert to the Hague Convention proceedings here. These were issued by the husband on 31 July 2013. The final hearing date was fixed for 21 January 2014. On 14 January 2014 the wife applied under s15 and Schedule 1 para 1(2)(c) Children Act 1989 for a lump sum to cover her costs of the final hearing. Although no payment was ordered or voluntarily made prior to the hearing the wife's lawyers appeared and she was represented. At the hearing the husband agreed to make a gratuitous payment of £6,000 to cover counsel's brief fee. The wife's overall costs were however £21,700. Therefore after payment of £6,000 the sum of £15,700 remained owing. The wife seeks to recover this amount by means of a lump sum under s15 and Schedule 1 para 1(2)(c) Children Act 1989.
As I have said, Mrs Justice Hogg found that there had been an unlawful retention and ordered the return of the children to California on 17 February 2014. Her order made no order as to costs. However in a separate order made in the Schedule 1 application she recorded the husband's payment of £6,000 and gave directions for the application to be heard by me.
If the husband's appeal succeeds then that will dispose in limine of the wife's claim for a LSPO. However I propose to examine that claim on its merits.
Legal Services Payment Order
Sections 49 to 54 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 put the powers of the court to award a costs allowance on a statutory footing in relation to divorce and civil partnership dissolution proceedings. These provisions came into force on 1 April 2013 by virtue of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 7) Order 2013 (S.I. 2013/773). These sections introduced new sections 22ZA and 22ZB into the Matrimonial Causes Act 1973 and amended section 24A to permit an order for sale of property to be made on or following the making of an order for a payment in respect of legal services under section 22ZA. Corresponding amendments are made to Schedule 5 to the Civil Partnership Act 2004.
In the 11 months since the implementation of these powers there have been only three decisions referring to them namely Makarskaya v Korchagin [2013] EWHC 4393 (Fam)(21 June 2013); BN v MA [2013] EWHC 4250 (Fam) (10 December 2013); and MET v HAT [2013] EWHC 4247 (Fam) (16 December 2013). It is fair to say that none attempted any kind of deep analysis of the new provisions. In the second case I stated at para 36:
"The statutory provision, in my judgment, does no more than to codify the principles to be collected in this regard in the authorities, most recently in Currey v Currey [2007] 1 FLR 946. Under s. 22ZA(3) the court cannot make a costs allowance unless it is satisfied that without the amount of the allowance, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings, and for the purposes of this provision the court must be satisfied in particular that the applicant is not reasonably able to secure a loan to pay for the services (see s. 22ZA(4)(b))."
I have recently had to deal with a flurry of such applications and there is no reason to suppose that courts up and down the country are not doing likewise. Therefore it may be helpful and convenient if I were to set out my attempt to summarise the applicable principles both substantive and procedural.
i) When considering the overall merits of the application for a LSPO the court is required to have regard to all the matters mentioned in s22ZB(1) – (3).
ii) Without derogating from that requirement, the ability of the respondent to pay should be judged by reference to the principles summarised in TL v ML [2005] EWHC 2860 (Fam) [2006] 1 FCR 465 [2006] 1 FLR 1263 at para 124 (iv) and (v), where it was stated
"iv) Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation the court should err in favour of the payee.
v) Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial."
iii) Where the claim for substantive relief appears doubtful, whether by virtue of a challenge to the jurisdiction, or otherwise having regard to its subject matter, the court should judge the application with caution. The more doubtful it is, the more cautious it should be.
iv) The court cannot make an order unless it is satisfied that without the payment the applicant would not reasonably be able to obtain appropriate legal services for the proceedings. Therefore, the exercise essentially looks to the future. It is important that the jurisdiction is not used to outflank or supplant the powers and principles governing an award of costs in CPR Part 44. It is not a surrogate inter partes costs jurisdiction. Thus a LSPO should only be awarded to cover historic unpaid costs where the court is satisfied that without such a payment...
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