This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The parties and their children must not be identified by name or location, other than as set out in this version of the judgment. Their anonymity must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Neutral citation number: [2025] EWFC 119 (B)
Case number: 1706523844619870
IN THE FAMILY COURT SITTING AT PLYMOUTH
FINANCIAL REMEDIES COURT
The Law Courts
10 Armada Way
Plymouth PL1 2ER
B E T W E E N
DSD v MJW (Costs of mps)
Carl Geary of counsel instructed by Scott Bailey LLP for the applicant wife
Scott Horner of counsel instructed by Wolferstans for the respondent husband
Heard on 17 April 2025
Reserved written judgement handed down on 24 April 2025
Judgment
- This is a written reserved judgement following a hearing on the afternoon of 17th April in the Family Court in Plymouth, conducted remotely. I indicated that if I could deliver before 24th of April, I would do so but with reference to recent judicial guidance by Hayden J in Re F (a Minor) (permission to appeal) (2025) EWHC 638 it would take effect and be formally handed down as at 10 AM on 24th of April, albeit without any in court or similar hearing
- It was an application for maintenance pending suit of £500 per month by the applicant wife, and opposed by the respondent husband.
Preamble
- Throughout history, lawyers have had a bad reputation. Amongst the wide category of complaints might be nuances, fine points taken which lawyers call distinguishing but the public calls something completely different, long delays which rarely suit anyone but lawyers and high costs including disproportionate costs.
- It might be thought that in recent years, with far greater opportunity for bringing bad practices to light and far greater consumer awareness, there would have been wholesale changes. The profession now is very different to when I started decades ago and rightly so. We have far tighter professional rules, far more openness and transparency and far more information about costs.
- So why is it still in England and Wales family law, with which we are concerned, we have a continued saga of cases with disproportionate costs and applications which sadly do little to correct the reputation of these millennia? Countless reported decisions have condemned costs being incurred unnecessarily or inappropriately.
- Modestly, I wrote on this subject in August 2022, including a list of the then leading cases: https://financialremediesjournal.com/content/the-scandal-of-costs-in-financial-remedy-proceedings-in-english-family-law.9ff96c940ec346df8fdabe6ca45f672e.htm
- I would like to report that the profession read the article and there was a wholesale cultural change. Alas not. The excessive costs cases have continued to be reported including this year.
- As also a solicitor, I naturally appreciate the fine line which sometimes arises on taking a particular course of interim action, balancing benefits against cost, looking at the wider picture and impact on the final settlement. It's not easy in contrast to looking in the rearview mirror with the benefit of hindsight. I hope I have brought that perspective to bear in this judgement.
- But it will be obvious now where my thinking was as I read the papers in advance of the hearing, heard the very helpful submissions by counsel for each party and have reflected before writing this judgement.
Background
- Stating the background in simple terms will highlight the problem of disproportionality. In an application in early March 2025, heard in mid April 2025 with a final financial remedy hearing in early July 2025, the wife sought £500 per month interim maintenance, obviously interim being pending the final hearing and order. Presuming judgement given in mid July, this was only ever going to be 3 months duration namely £1500, at most £2000 with possible backdating. Yet in relation to this exercise alone, the wife had incurred costs of £8716 and the husband had incurred costs in responding of £4170 namely about £13,000. Almost 10 times what would have been the recovery. How can that ever be?
- I fully accept there are cases where an interim application has to be made come what may. About to lose accommodation. Losing well-paid work without any capital to fall back on and therefore a dramatic fall in the standard of living. A refusal by the paying party on separation or earlier in the proceedings to give any financial support to the vulnerable spouse, again with no capital available. Disclosure of a level of assets justifying a higher provision of interim maintenance than the level being paid on what had been previously expected disclosure. And so on. In these cases, lawyers have still a difficult task of proportionality but the making of the application may be justified.
- The parties married in August 2008 and separated in May 2022. She is 40 and he is 44. They have children aged 7 and 8. Form A was January 2024 with First Appointment in June and FDR in December and final hearing in July. This was an application made in early March 2025 for maintenance pending suit.
- The wife is in the armed services on a net income of about £38,000 per annum. She has subsidised rented property costing about £3000 per annum. The husband asserts she has, after accommodation costs, about £2600 per month or thereabouts for herself. He says this is sufficient, at least between now and the final hearing when the judge will decide.
- The children spend good time with each parent, which is invariably commendable, with expenses being shared. I don't think this was exactly equally but certainly the entire burden did not fall on the wife.
- The husband's earnings are far more uncertain which I acknowledge. He asserts about £39,000 per annum net with housing costs of about £20,000 leaving him with about £1500 or thereabouts net per month for his and children's living expenses. The wife strongly disputes these figures and asserts higher available income and in any event material capital available. She is running a conduct case in relation to his disclosure and related. If this had been at the outset of the case, perhaps after some disclosure, this court might have spent time, probably more than the hour allowed, investigating. I'm conscious of the case law authorities including those referred to me. But I do not believe they apply so much so late in the case, when we are on the cusp of a judge having good time to investigate, look at the full disclosure and make findings. At least not in the absence of significant changes recently occurring.
- Herein for me lay the significant concern. There was nothing here.
- I was told the applicant wife, in the armed services with armed services accommodation, could lose her accommodation. Once I saw the word could, I realised this application was on shaky territory. If she did lose accommodation, received notice which couldn't be rectified by an urgent order made at the final hearing, she could apply immediately and get a quick hearing. The family courts are now very used to giving quick hearings where really needed. But there was no evidence there would be a likely loss of accommodation before the final hearing.
- I was told there was more disclosure from the respondent husband in the past few weeks. But there was a lot of redactions, there was argument about what was the amount he had been earning and indeed I heard what looked like a good run at a conduct argument in respect of a company put into receivership thereby losing perhaps £160,000 marital funds within that company; I'm sure he has been advised that there will need to be a good explanation for this at trial. These are matters which may have been highly pertinent on an interim maintenance application at the beginning of a case or after initial disclosure. As I say, I was already aware of but reminded of the judicial authorities telling me to take a broadbrush approach to potentially unreliable disclosure given by the paying party, the benefit of the doubt to the party in need and not to feel obliged to undertake an exhaustive disclosure analysis. All of that is completely right naturally. But not with only 3 months to go when an experienced judge of this court will have the significant benefit of 3 days dealing with these issues, looking at the disclosure, listening to conduct arguments, reading into the detail of the finances and similar.
- I was told there was a risk that the hearing may not go ahead in July because of a lack of judge. I don't think this was any distinctive risk for this case or because of any particular judge but a general anxiety that occurs in all cases. I said I would find out after the hearing if any judge had been allocated, and I did and an experienced full-time judge of the Plymouth family Court has this case allocated to him and I have communicated his identity to the lawyers. But even if unexpectedly at the last minute there had to be some adjournment, the invariable process is to allow a short hearing to find out what directions are needed in those circumstances whereupon interim matters such as this could be sympathetically considered. But I should not make such an order now on a generalised risk that July would not go ahead.
- I was told that the costs in the case of the applicant wife were being met by her parents. That is a huge benefit for her. I was told the respondent husband did not have that opportunity and had been far more stringent in his costs. In that regard, at the FDR in December, the wife had incurred £43,000 in costs and expected another £22,000 to the end of trial. The husband had incurred £18,000 and expected another £12,000 to the end of trial. I express a small surprise at the figures for each side going to the end of trial; generally the costs to final hearing from FDR are normally similar to the costs up to the FDR. In any event they will have been exceeded by the costs of this exercise on top. But on these figures alone, the wife would have incurred £65,000 and the husband £30,000 namely £95,000, with £13,000 extra for this exercise. This shows the importance of costs awareness.
- I listened carefully to the points made on behalf of the wife regarding her budget. In general terms I couldn't find major faults in principle in what she said but equally I couldn't balance about available resources for the reasons above. However the entire landscape of the application, the entire proportionality of what she was seeking, had been coloured by the costs.
- Naturally I am aware that the criteria in law is reasonableness, but that is a broad term applying to the wide aspects of the application. I must carry out a broad assessment when the court's intervention is manifestly required, and I'm not convinced it is manifestly required here and it is definitely not required in the scheme of this case at this high cost at this late stage.
- It's incumbent upon lawyers and parties to find creative solutions in financial remedy work, both interim and final settlement. This is broader than, but in the spirit of, the costs provisions requiring negotiation and similar. In this case there is apparently over £700,000 sitting on solicitors' deposit account, proceeds of sale of a property, awaiting adjudication in July. Why not propose that each party has £2000 paid out or even a little more. This would have saved £13,000. The wife complains that there was a negative attitude by the husband but she could have proposed. If she had and he had refused at the outset, before the application, the requirements of the costs rules might have shifted dramatically. She didn't and the question of payment out only arose in the last few days apparently. I cannot believe that the final hearing judge would be unable to produce a fair outcome if each party had had £2000 paid out in March to keep them going through to the final hearing. It was put to me one reason for non-payment out was that it would be coming from capital and the interim maintenance should come out of income. Quoting anecdotally from Nicholas Wilson, either at the bar or at some stage in his judicial career: income or gains, profits or dividends, it's all money.
- I acknowledge that at the FDR the applicant wife asked for £800 per month which was refused. She could have made the application then. Not wait more than 2 months. I would also observe in passing that if she thought £800 per month was appropriate in December, apply for it. She might have succeeded and the cost disproportionality slightly moderated.
- I'm keenly aware as well that there are tactics in applying for interim maintenance. I am fully cognisant of steps taken at an interim level to improve the position for a client at the final hearing. So with the lack of any financial commercial sense, I wondered if this was just tactics. I saw reference to the fact that the applicant wife is or may be seeking capitalised maintenance. I have no idea if this is viable or possible. I was told the husband will be opposing this outcome. I simply record that if this was the tactical purpose of this application i.e. increase the interim level so that the capitalisation figure is significantly increased, again it falls flat. Judges are aware this sort of thing happens. In any event a judge at the final financial remedies hearing will invariably look afresh at the appropriate level of maintenance support in making the final order, and only then look at any capitalisation if possible and appropriate. The lawyers in the case will be very aware of the authorities, and I particularly have in mind one from Mathew Thorpe of quite a few years ago, who made it clear that when conducting this exercise one looked first and foremost at what was the appropriate level of annual support before going on to consider whether capitalisation was then appropriate and what quantum.
Conclusion
- This was a bad application to make at this late stage in the case. It should not have been made. I fear it ran the risk of diverting attention from proper preparation for the final hearing, maybe even opportunities to settle before the final hearing. It will certainly have added ill feeling and greater animosity in the case, which again is regrettable. It failed in my assessment to satisfy the criteria required in law for the making of this sort of order. It was in any event thoroughly cost disproportionate. I have no idea what estimate was given by the wife's lawyer to the wife when they were discussing making the application. I suspect it wasn't a figure of nearly £9000. But it's not been complicated. She did her application, statement in support, not even a statement in reply, instructing counsel and attending. I couldn't see any expensive detours or satellite litigation. I was told that even in the meantime they had been preparing their s25 statements and similar for final hearing. That is where the costs should have been better spent and energies committed.
- I suspect her parents are appalled, or at least should be, because apparently it is their money. I have no idea if either or both have spent any time in commerce. But only rarely and exceptionally does one spend almost £9000 to recover what might be at best £2000 if the order were backdated. Outside the exceptional, which this isn't, it makes no commercial sense whatsoever. Even the brief to counsel was more than what counsel could expect to recover. That itself should have been another late in the day warning.
- Nothing at the hearing or in the statement of the applicant wife persuades me that this is a suitable case for interim support at this very late stage, for the court resources that have been needed and in any event in the context of the exceptionally disproportionate costs that have been incurred in getting to this point.
- I have no hesitation in dismissing this application. Any such application contemplated by the wife and her advisers should have been made, if merits permitted, far earlier in the case or, if not previously justified or appropriate, immediately after the FDR but then on a cost proportionate basis for the application. This family court will not entertain such cost disproportionate applications and thoroughly criticises this approach. It has done only ill for the reputation of the family courts and family lawyers.
- I'm willing to consider costs on paper including to save more costs of a costs hearing. If the husband had not had to incur these costs, his funds could have put towards the costs for the final hearing. Perhaps the lawyers could work out how they want me to deal with this. If the application for costs on behalf of the husband is pursued, as I understand will be the case, it might be that the wife should respond on why costs should not be made but if the lawyers prefer the route of the husband making submissions and the wife replying then I'm equally content.
- Can I please have a draft order on the application. Please can someone put this on the portal
DDJ David Hodson
24 April 2025