DDJ David Hodson. Proportionality and maintenance pending suit (MPS), a cautionary tale. In this case the DDJ concluded that the game was very much not worth the candle, and the application turned out to be very costly for the applicant wife.

Background

W (40), H (44), two children (7 & 8). Marriage 14 years. Form A issued January 2024, FDA June 2024, FDR December 2024, FH listed July 2025. Children spending time with both parents.

W’s application for MPS issued March 2025 (quantified at £500 pcm, being £1,500 in total or £2,000 with back dating) to be heard in April 2025, with a final hearing three months after.

W’s income £38,000 pa, W living in subsidised rented accommodation costing £3,000 pa. H’s finances were uncertain, but he put forward a case of £39,000 pa net with housing costs of about £20,000, leaving him with about £1,500 pcm. H argued W had sufficient funds, at least until the final hearing; [13]–[14].

In terms of costs, the parties’ estimated costs to trial were W £65,000 and H £30,000, a total of £95,000, plus an additional c.£13,000 for the MPS application (W £8,716 and H £4,170). The DDJ noted that the MPS costs were almost ten times what would have been the recovery, and at [10] asked the not unreasonable question: how can that ever be? Later the DDJ noted that W’s counsel’s brief fee was more than what was recoverable, which the DDJ felt should have been a warning; [27].

The DDJ noted that there were cases where an MPS application should be made and listed the following examples, none of which were applicable to the facts of this case; [11]:

• the applicant was about to lose their accommodation or their job and therefore there was about to be a dramatic fall in the standard of living, or
• there was a refusal by one party to provide financial support for a vulnerable party, or
• there had been subsequent disclosure of assets justifying higher provision.

In this case W’s case was that she ‘could’ lose her accommodation but there was no evidence that it was ‘likely’ that she would. The use of the word ‘could’ led the DDJ to conclude that the application was on shaky territory; [17].

The DDJ acknowledged there was potentially a good argument regarding H’s financial conduct. The case law required him to (i) take a broadbrush approach and (ii) where there was potentially unreliable disclosure by the paying party, the benefit of the doubt should be given to the party in need, and he was not obliged to undertake an exhaustive disclosure analysis. The DDJ was not convinced that this was right in this case when there was a final hearing listed in three months and an experienced judge would have the benefit of three days dealing with these issues, looking at the disclosure, listening to conduct arguments, and reading into the detail of the finances; [18].

The DDJ was not convinced that the risk of judicial unavailability was a factor he should give weight to. It was, he concluded, not a distinctive risk but a general anxiety that occurs in all cases; [19].

The DDJ concluded:

1. This was a bad application to make at this late stage in the case; [26].
2. The court’s intervention was not manifestly required in this case, and definitely not in the scheme of this case at this high cost at this late stage; [22].
3. Lawyers and parties must find creative solutions in financial remedy work, including interim applications. Creative solutions were broader than requiring negotiation and similar; [23].
4. Parties should make proposals to settle and if doing so it may dramatically shift the dial on costs – in this case the net proceeds of sale of a property (over £700,000) were sitting in a client account awaiting determination at the final hearing. The DDJ queried why there had not been a proposal that each party had £2,000 paid out or even a little more. This would have saved £13,000; [23].
5. The fact that the payment was from capital not income was not relevant, because (i) the trial judge could ensure fairness and (ii) as per Nicholas Wilson (quoting anecdotally) ‘income or gains, profits or dividends, it’s all money’; [23].
6. W should have brought her application sooner; at the FDR she asked for £800 which H refused – that is when she should have made the application; [24].

DDJ Hodson gave a stern warning at [29]:

‘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.’

The application was dismissed without hesitation; [29].

Costs were to be considered on paper with a strong indication there would be a costs order against W; [30].

Practitioners

The reference to ‘manifestly required’ comes from BD v FD [2014] EWHC 4443 (Fam) where at [33] Moylan J inserts the TL v ML & Ors MPS principles as distilled by Nicholas Mostyn QC (as he was then) and at [34]–[35] Moylan J made general comments as follows (emphasis added):

‘34. I would add to these principles what I said in G v G, when determining an interim application under Schedule 1 of the Children Act 1989.

“[51] … Interim hearings are an expensive exercise and, in my view, they should be pursued only when, on a broad assessment, the court’s intervention is manifestly required. The jurisdiction to make an interim award is a very broad jurisdiction…

[52] It is a very broad jurisdiction but it is one which, as I have said, should be exercised when on a broad assessment the court’s intervention is manifestly required. Otherwise parties will be encouraged to engage in what can often be an expensive exercise in the course of the substantive proceedings when the proper forum for the determination of those proceedings, if they cannot be resolved earlier by agreement or otherwise, is the final hearing when the evidence can be properly analysed and the parties’ respective submissions can be more critically assessed.”

In my view, my remarks apply equally to applications for maintenance pending suit or interim maintenance under the Matrimonial Causes Act 1973.

35. I also need to refer to the overriding objective, in particular the specific objectives of dealing with cases proportionately, of saving expense and of allotting to a case an appropriate share of the court’s resources.’