These are the noteworthy case-law developments since the last issue went to press in early October 2024.

This period has seen a number of cases involving legal services payment orders (LSPOs), and we draw your attention to one in particular. In addition to this, there are several interesting cases involving international enforcement of maintenance, mistake, the effect of one party having a significant disability in a modest asset cases; and a very useful case on the effect of delays between conditional and final divorce order.

Legal services payment orders

In the world of LSPOs and maintenance pending suit, the case names have been getting memorable: we have both HA v EN [2025] EWHC 48 (Fam) and LI v FT [2024] EWFC 342 (B). (These are not quite as memorable as FI v DO [2024] EWFC 384 (B), in which who should have the dog was an issue so contentious and emotive that it derailed settlement.)

A few notable points arise from HA v EN, a decision of Richard Todd KC sitting as a Deputy High Court Judge. Ella Fogg from 1KBW provided the summary of this case for the FRJ website.

The wife (whose application for an LSPO and maintenance pending suit it was) was unable to obtain a sum to discharge her unpaid former lawyers’ costs in light of DH v RH [2023] EWFC 111 and Xanthopoulos v Rakshina [2022] EWFC 30, but was able to obtain funds for past and future costs of her current solicitors, to ensure they continued to represent her. The solicitors for both parties were permitted to secure a charge over the matrimonial home under s 73 Solicitors Act 1974, allowing them to apply for an abridged charging order. (Charging orders in family proceedings are regulated by FPR Part 40.) They were also permitted to take an equitable charge over the final financial remedy award with payment to be made from the proceeds of the matrimonial home: a Palmer v Carey [1926] AC 703 charge. In these ways, the situation could be distinguished from the Simon v Simon (Level Intervening) litigation (see [2024] EWFC 160) which the judgment records had caused ‘considerable disquiet’ among law firms.

In the event of a successful appeal against the LSPO, per Twinsectra Ltd v Yardley [2002] UKHL 12, the funds would ultimately ‘result’ back to the paying spouse via the recipient spouse.

In HA v EN, Richard Todd adopted the approach of Cobb J in making a deduction to account for a standard basis of assessment, on the basis of CPR Part 44. This approach was not taken by Nicholas Allen KC, also sitting as a Deputy High Court Judge in SM v BA (Legal Services Payment Order) [2025] EWFC 7, on the basis that CPR Part 44 does not apply to LSPOs as they are not costs orders. Instead, the court should start from a presumption that the costs have been properly incurred and therefore, unless it can be established to the contrary, should be met under the LSPO.

Counsel’s fees for reading time

HA v EN also contains a useful comment on counsel’s fees for a reading day, again from Richard Todd KC sitting as a Deputy High Court Judge:

‘It might be helpful here to address one matter which has caused a surprising level of confusion in the profession at large. It is long settled law that counsel is entitled to be paid a full refresher for a day where the Court is listed and counsel still retained. If the matter is not listed, then counsel do not get paid. The authority for this is the long-established case of Lawson v Tiger [1953] 1 WLR 503. Thus, Mr Glaser KC (and any other instructed counsel) are entitled to charge a refresher for days which are listed even though the Court might be reading or considering judgment on those days. The logic is compelling; counsel is not available for any other work. Counsel might be called upon even if the Court is provisionally detained in reading or judgment writing. Counsel has contracted to provide that time exclusively (this is the usual position where the agreement is between solicitor and counsel (a “B2B” agreement). The position of counsel is directly akin to a barrister in a criminal court waiting for a jury to return with a verdict; nobody could sensibly say that such a barrister should go unpaid whilst having to wait for the Court to re-assemble.’

The judge goes onto note that ‘The position is less clear where there is a direct access agreement between a “consumer” and a barrister – see the decision involving a direct access agreement in Glaser and Miller v Atay [2024] EWCA 1111. But that is not the position here where counsel is retained by a solicitor’.

Mistake

XY v XX [2024] EWFC 387 (B) is the sequel to XX v XY [2023] EWFC 334 (B), both decisions of HHJ Hess. A computational error had been made by the husband, which resulted in erroneous figures being used in the 2023 final hearing. Specifically, no allowance was made for capital gains tax (CGT) arising in England on the disposal of the husband’s Dubai assets. The husband applied to set aside the final order on the basis of ‘mistake’. His application was unsuccessful. This was not an error of the court. The husband had told the court that no CGT would be payable. He had not sought to adduce expert tax evidence. He had been distracted by running a different, dishonestly unsuccessful case. The strong public policy of respecting the finality of sealed orders should carry significant weight in this case, particularly where W had to spend significant sums to identify H’s dishonesty. As such, the court should be slow to come to his aid – and in this case it did not.

Albert Gibbon summarised this case for the FRJ website.

Reciprocal enforcement of maintenance

In AJ v FJ (Appeal Against Registration) [2024] EWFC 356 the court upheld an appeal against the decision of the Maintenance Enforcement Business Centre (MEBC) to register a Polish interim maintenance order. The wife had abducted the children. The husband argued that recognition was would be incompatible with the public policy of the United Kingdom for the purposes of Art 22(a) 2007 Hague Convention; that he did not have proper notice of the maintenance proceedings as required by Art 22(e); and lack of jurisdiction. He succeeded on Art 22(e), but a useful point is that the abducted children could not be considered habitually resident at the time the application was made, so jurisdiction arose only because their mother was resident in Poland. The argument about registration being contrary to public policy given the abduction depended upon whether or not recognition would perpetuate the harm to the children. Vivien Croly summarised this case for the FRJ website.

Delay in applying for a final divorce order

HHJ Simmonds, the national lead judge for divorce, handed down a judgment in HK v SS [2025] EWFC 5 (B) that provided guidance on the approach to delays between conditional divorce orders and applications for a final divorce order. It is of course perfectly normal for there to be an extended delay pending financial settlement, but in this case the delay was sufficient to cause the court to question whether the final order should be made at all.

The wife’s divorce petition had been issued on 12 May 2022 and the wife had applied for a conditional order on 30 September 2022. However, she did not apply, and neither did the husband when it became possible for him to do so.

The parties reconciled in March 2023 before finally separating in June 2024. A couple of months after this, the wife applied for her conditional order to be made final.

Until the coming into force of the Divorce, Dissolution and Separation Act 2020, FPR 7.32 had set out specific questions the court should ask if there was a delay in excess of 12 months since decree nisi, including whether or not the parties had lived together or the wife had given birth. The key issue was whether anything had happened which undermined the basis on which the decree nisi had been made. Reconciliation attempts were encouraged; and HHJ Simmonds considered that, as 2 years’ separation was then required to show irretrievable breakdown, this indicated that 2 years was also an appropriate time to allow reconciliation to be attempted without it being fatal to the petition.

But of course, the law has changed. Under what is now FPR 7.19(5) the application must include or be accompanied by an explanation in writing stating why the application has not been made earlier, but there are no requirements as to content. HHJ Simmonds nevertheless took a similar approach, holding that under the new law the issue remained whether anything had happened which undermined the basis on which conditional order had been granted. While a reconciliation of more than 2 years may amount to a material change in circumstances (and this is at the court’s discretion), within the 2 years the application for final order should be allowed to proceed.

Beth Payne from QEB summarised the case for the FRJ website.

Needs and a disability

Some of the most difficult situations arise where parties have limited assets but significant competing needs. This was the situation in our Mostyn Award winner for the must-read case of the issue, decided by a judge below High Court level. In V v V [2024] EWFC 380 (B) HHJ Booth had to decide whether a house, adapted for the husband, who was tetraplegic, should be sold to enable the wife and children to be housed in a purchased property. The husband’s disability occurred as a result of a domestic accident during the marriage and insurance paid out sufficient for the parties to purchase the matrimonial home. The wife had modest earnings topped up by universal credit, and the husband received universal credit and personal independence payments. They both had significant debts affecting their ability to borrow. The judge at first instance had ordered deferred sale once the parties had paid off their debts, arranged alternative accommodation, raised mortgages, and in the case of the husband had the property adapted to his needs. The husband appealed.

On appeal, HHJ Booth held that the judge at first instance had fallen into error. In trying to meet both parties’ needs, he had met neither. A delay would not enable the parties to pay their debts, and receipt of funds from the house sale would simply eliminate their universal credit. This was a Butler v Butler [2023] EWHC 2453 (Fam) situation in which it was not possible to meet both parties’ needs. After consideration of the case-law relating to those with serious disabilities (Wagstaff v Wagstaff [1992] 1 FLR 333, C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171, and Mansfield v Mansfield [2012] 1 FLR 117) the judge held that there were examples of the needs of a disabled person taking priority over other needs, but this was not a principle. It was necessary to balance the parties’ needs and in this case the husband’s disability was so significant that his need to remain in the matrimonial home dominated. There would be a Mesher order with sale once the husband no longer needed the family home, either because he had died, or had moved into institutional care. In compensation for the delay the wife would be entitled to 75% of the proceeds.

Albert Gibbon summarised this case for the FRJ website.

This article draws on the case summaries prepared by the FRJ summariser team.