The impact of disputes concerning ultimate entitlement on interim maintenance applications and legal services orders
Factors and principles when determining MPS and LSO applications
For maintenance pending suit (‘MPS’) applications, Mostyn J derived various principles from the leading cases on MPS applications which he set out in TL v ML and Others (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263. Whilst the sole criterion to be applied in determining the application is ‘reasonableness’ (synonymous with fairness), a further principle was:
‘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 (G v G, M v M). In such a situation the court should err in favour of the payee.’
Given that the general ‘no order as to costs’ rules are suspended for MPS applications, it is particularly important to consider the approach that might be taken to an MPS application if there are overarching issues such as jurisdiction in dispute. In addition, if the financial proceedings have been stayed pending the determination of a jurisdictional issue, this could mean that there are no Forms E before the court and the court may make robust assumptions as set out above.
In respect of an application for a legal services payment order (‘LSO’), following the introduction of the Legal Aid, Sentencing and Punishing of Offenders Act 2012 (‘LASPO 2012’), the court must have regard to a list of statutory factors including the subject matter of the proceedings and the matters in issue. Mostyn J has suggested this extends to assessing whether a claim is speculative (BN v MA (maintenance pending suit: prenuptial agreement) [2013] EWHC 4250 (Fam)) or doubtful (MET v HAT (Interim Maintenance) [2013] EWHC 4247, [2014] 2 FLR 692), giving guidance on this in Rubin v Rubin [2014] EWHC 611 (Fam), [2014] 2 FLR 1018. Whilst the statutory provisions concerning LSOs do not extend to proceedings under Sch 1 to the Children Act 1989, the Inheritance (Provision for Family and Dependants) Act 1975 or Part III of the Matrimonial and Family Proceedings Act 1984, Mostyn J’s view was that the principles he had set out should apply, with the necessary modifications to such applications.
Mostyn J’s obiter guidance in Rubin about the principles and procedure that govern LSOs, included the principle that:
‘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.’
This is something that must be borne in mind when considering the merits of an interim maintenance application, particularly given that the calculations involved in such orders are often ‘somewhat rough and ready’ and the need for proportionality given the costs involved.
MG v GM: a ‘battle royale’, with jurisdiction in dispute
The 2022 case of MG v GM (MPS: LSPO) [2022] EWFC 8, [2023] 1 FLR 253 was a useful reminder that, when jurisdiction is in dispute, it does not prevent the court from making an interim order, although Peel J in that case accepted that ‘the court should be cautious, both as to whether to make an order and as to quantum, where the order may turn out to be based on a false premise’.
The case of MG v GM concerned an application for MPS and an LSO by the wife in circumstances where jurisdiction was in dispute. The parties had lived in London until February 2021 when they moved overseas, with the parties’ marriage ending in summer 2021. Following this, the husband applied in that country for interim measures in respect of the children (and possibly in respect of divorce) in June 2021, whereupon the wife came to the United Kingdom with the children in August 2021 and immediately issued a petition for divorce on the basis that she was domiciled and habitually resident in England. The husband applied for the return of the children from England under the 1980 Hague Convention.
Shortly before the hearing before Peel J on 17 February 2022, the overseas court had concluded that it had no jurisdiction on the basis of its finding that the parties are habitually resident in England (which H confirmed he would appeal). The husband’s Hague Convention application had been heard and dismissed, in addition to which he had been refused permission to appeal by the Court of Appeal. Jurisdiction remained in dispute, with a 4-day hearing listed later in 2022 to determine jurisdiction and forum conveniens issues. Peel J confirmed that he could not at that stage make any comments about the merits of the issue. In his conclusion, he said:
‘In my view, the fact of a jurisdictional dispute is relevant, but does not weigh too heavily. After all, habitual residence in W’s favour was found by the English court, albeit within Hague Convention proceedings, and the Country E court has very recently declined jurisdiction. I do not regard W’s prospects of success as so remote that this application should be limited by a pessimistic prognosis of the outcome of her suit.’
In MG v GM the jurisdiction dispute had led to the financial remedy proceedings in England being stayed by an agreed order, which resulted in there being no Forms E for the application to hear the wife’s MPS and LSO application. There was limited financial information before Peel J, although the certificate of complexity justifying allocation to a High Court judge asserted the level of the net assets owned by the wife and the husband respectively and had been signed by both parties. In support of her application, the wife had filed a statement, to which the husband had replied and the wife had responded to the husband’s reply; each had filed statements from supporting witnesses too.
Peel J noted that an interim maintenance application is almost invariably tried on the basis of submissions only, with in many (perhaps most) cases, there being sufficient information for the court to exercise its jurisdiction broadly, with a ‘tolerably accurate assessment of the finances’. However, in MG v GM, Peel J noted:
‘I am hampered by the fact that each party denies holding any liquid assets, yet is accused by the other of having access to a great deal of wealth. Each says the other is a barefaced liar. I am very conscious of the difficulties this presents at an interim hearing. I cannot be completely sure of the ground on which I stand where the positions are so polarised.’
Peel J went on to deal with the matter in a circumspect manner. He noted that whilst he should not be afraid to draw adverse inferences if so warranted, to his mind he should not make orders without either credible evidence in terms of one party being able to access large sums of wealth or by being satisfied that the disclosure by either party is so deficient as to justify, even at the stage of an interim hearing, making an award which that party denies is capable of being met. Here, the husband’s failure to provide any financial disclosure other than a summary balance and one bank statement, was seen as ‘extraordinary’ by Peel J and accordingly made it more difficult for Peel J to accept what the husband was saying at face value.
In terms of the legal fees funding application, Peel J ordered the husband to pay the wife’s costs less any part referable to the Hague Convention proceedings, which were seen as entirely distinct historic costs, incurred before the issue of the wife’s application and therefore irrecoverable. This is something which Mostyn J did on similar facts in Rubin.
Re YM and NM: MPS application following an approved consent order
Re YM and NM (Maintenance Pending Suit) [2020] EWFC 13, [2020] 1 FLR 1246 is an example of a situation where the court applies a more stringent test when considering an MPS application. In this case, the application for MPS by the wife was complicated by it being made in the context of the wife having signed a consent order dismissing all of her claims for maintenance, albeit that she had applied to set aside that order. The consent order had been approved by the court following the grant of decree nisi but prior to the grant of decree absolute.
Leading counsel made submissions about the relevant test to apply in such circumstances, with MacDonald J concluding that:
‘. . . in order to pursue her application for maintenance pending suit at this stage the wife must demonstrate to this court that she is likely to succeed in setting aside the financial remedy consent order before Holman J in June of this year. Such a test is, I am satisfied, commensurate with both the principle that the court should be slow to grant relief to which a party has not yet shown definitively they are entitled and the principle that where the parties have reached a prior agreement on the relief now claimed the court will be reluctant to disturb that agreement absent a cogent justification for doing so.’
In applying such a test to this case, MacDonald J noted that the court’s evaluation must necessarily be a broad one rather than a detailed forensic analysis of the evidence, which is the role of the substantive hearing.
MacDonald J also noted that ‘it follows from the existence of the approved consent order that until such time as the outcome of the wife’s application to set aside that order has been determined, the court will be cautious before it grants relief to the wife to which she would not be entitled were the consent order to be upheld by the court.’
The wife’s application for MPS was dismissed on the basis of the wife not being in a predicament of real need and on the basis of the evidence submitted by the wife, which meant MacDonald J was not satisfied that the wife had demonstrated to the court that she was likely to succeed in having the consent order set aside.
BN v MA: a pre-nuptial agreement and an ‘extremely speculative’, ‘borderline irresponsible’ claim
BN v MA (maintenance pending suit: prenuptial agreement) [2013] EWHC 4250 (Fam) sets out a more stringent approach to MPS applications in the context of a pre-nuptial agreements (‘PNA’). This case established that in a situation where one party is trying to resile from the terms of a PNA and applies for MPS, the court will apply the terms of the PNA as closely as possible unless (a) the applicant demonstrates, to a convincing standard, a likely prospect of satisfying the court that the agreement should not be upheld and (b) to apply the terms of the PNA would leave the applicant in a real predicament of need.
It was apparent from Mostyn J’s judgment that there was nothing in the correspondence nor the wife’s statement to explain her case as to why she should be allowed to discharge the burden stipulated by the Supreme Court in Radmacher (Formerly Granatino) v Granatino [2010] UKSC 42, [2010] 2 FLR 1900 as to why the PNA should not be effective. It was only upon Mostyn J’s questioning of the wife’s counsel that it became apparent that the wife’s case was material non-disclosure by the husband and that there were circumstances concerning the signature of the agreement which could lead the court to conclude that it would be unfair to uphold the agreement.
There was an absence of evidence of that nature from the wife and so Mostyn J found it was appropriate to seek to apply the PNA to this case as closely as he could, provided that the wife was not left in any real predicament of need. In terms of the wife’s application for a costs allowance, there was much criticism of the lack of a detailed schedule of the costs by the wife, with the breakdown of costs set out in the wife’s affidavit being ‘manifestly, and I will go so far as to say completely, insufficient for an award to be made on this footing’.
On the basis that the wife was able to reasonably secure a loan to pay for legal services, she did not satisfy the first criterion as specified in s 22ZA of the Matrimonial Causes Act 1973 Mostyn J commented:
‘. . . having regard to the subject matter of the proceedings, I do take the view that the wife’s claim here is extremely speculative. In argument I described it as being borderline irresponsible, and I do not resile from that view.’
Mostyn J also declined to make any award for a costs allowance.
MET v HAT: interim provision where jurisdiction for a Part III claim disputed
MET v HAT (Interim Maintenance) [2013] EWHC 4247 (Fam), [2014] 2 FLR 692 concerned what Mostyn J termed an application for ‘interim interim’ financial provision to endure merely until the next hearing (scheduled for two months’ later), when the interim arrangements were to be reconsidered.
A key point in the case was whether there was a divorce that would be recognised in England as a non-proceedings divorce (whereby the applicant wife would have no right to apply for relief under Part III of the Matrimonial and Family Proceedings Act 1984) or a proceedings divorce, pursuant to which the wife could apply for relief under Part III. Mostyn J described this situation as a ‘surprising state of affairs’, on the basis that the Act was brought into effect to deal with the unfairness which arose from pronouncements of talaqs abroad which may or may not be proceedings divorces. Mostyn J noted that if the talaq in this case was a valid talaq, entitled to be recognised in England, then the wife’s claims were confined to a claim for child maintenance under Sch 1 of the Children Act 1989.
Mostyn J found that the husband ‘has a very strong case indeed’ in relation to the fact that the wife would have to demonstrate why an earlier English decision did not amount to ‘res judicata’ in respect of the preliminary issue and why a delay by the wife did not give rise to an estoppel, particularly when taken in combination with the absence of any evidence to demonstrate that this was not a valid non-proceedings divorce entitled to recognition in England.
He commented:
‘In such circumstances, I take the view that any claim for or maintenance pending suit which flows from the wife’s petition must be looked at very carefully indeed. It is certainly true that the court has power to award maintenance pending suit, even where the jurisdiction of the court to pronounce a decree has been challenged . . . where the jurisdiction to pronounce a decree is in dispute, the court should act very cautiously indeed. The court is entitled, in my view, to have regard to the strength or otherwise of the claim that the court has jurisdiction, and the more uncertain the court is on a provisional basis that the court does have jurisdiction, the more cautious it should be.’
Mostyn J was not satisfied that there was a real predicament of need for the wife, particularly considering the sums which he intended to award by way of interim child support, so he did not make an MPS order. Nor did Mostyn J make an LSO; in respect of this application, he was specifically entitled to have regard to the subject matter of the proceedings and he was ‘extremely doubtful’ that the subject matter here had ‘any merit at all’.
In terms of costs, there was no award for the element which was referable to the wife’s claim that there is jurisdiction to consider whether her marriage exists or has been dissolved; the only award for costs was a sum in relation to past work related to the claim for child maintenance.
Summary
When considering issuing an MPS application, the merits of such an application have to be weighed up, given the risk on costs and the fact that, in many cases, the costs of an application may be disproportionate to the relief being sought, particularly when the likely duration of an order (if it is obtained) is taken into account.
Such caution is heightened in the presence of any complicating factors, such as jurisdictional issues or a PNA. Whether the applicant has a genuine real need is something that must be examined in detail before an application is issued.
In the context of a PNA, it is important to evaluate whether the applicant has a likely prospect of satisfying the court that the agreement should not be upheld, whilst with a set aside application it should be considered whether the applicant can demonstrate that they are likely to succeed in having the order set aside.
Whilst interim applications often need to proceed on an urgent basis, because the applicant is in real need, complicating factors such as a PNA and the consequently more stringent approach to such an MPS application means that the evidence provided for such an application needs careful consideration from the outset.
This article was first published by Family Law.
