Peel J granted the husband’s application for a legal services payment order to allow him to pursue his appeal in this long-running case.

The husband had made a successful application to Moylan LJ for permission to appeal the order of Cohen J – judgment here. Following that grant of permission, the husband applied for an LSPO to fund it. His application was determined on the papers (given short timeframe between application and hearing in the Court of Appeal which is listed for November; [9]). Peel J granted the application for the LSPO.

Jurisdiction was conferred on Peel J by virtue of the periodical payments order, currently in force. In any event, neither party questioned the existence of jurisdiction to make an LSPO; [10]. The judge referred to the plethora of historical judgments in the instant case dealing with the very issue of legal funding, including the 2022 judgment of Mostyn J – judgment here – as it pertains to an appeal against a judgment in children proceedings; [11].

Peel J went on at [12] to highlight the governing principles in Mostyn J’s judgment of Rubin v Rubin [2014] EWHC 611. In that judgment at [13], Mostyn J set out the principles that continue to govern LSPO applications, including the para 13(iii) warning to the court to act with caution 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 more doubtful it is, the more cautious it should be.’

Peel J went on at [12] to add that where permission to appeal has not yet been granted, the court should regard the Rubin para 13(iii) factor with particular scrutiny. In the instant case, the fact that permission to appeal had been granted meant that the court was more able to readily consider that the LSPO application did not appear to fall into a ‘doubtful’ category. Indeed, the granting of permission to appeal indicated at least that there was some prospect of success.

Taking into account all the circumstances of the case – [13(i–vi)] – the LSPO was ordered. The husband’s litigation misconduct in the past did not outweigh the fact that permission to appeal had been granted and the subsequent benefits of allowing the husband to have the assistance of legal representation.

As regards quantification, Peel J concluded at [14] that the figure sought of £231,179 was excessive and so approached the budget broadly. An LSPO of £175,000 was ordered.