Mr Justin Warshaw KC sitting as a Deputy High Court Judge. Application for maintenance pending suit, a legal services payment order and an injunction in a high value financial remedy case.

Facts

W (45) and H (68) began cohabiting in 2015, moved to England in 2016 and married in 2017. The parties have four children. W is a homemaker and H has various business interests. Parties had extreme wealth, including a family home with nine bedrooms, a heated indoor pool, and 15 members of staff.

When W announced her intention to divorce in July 2024, H only then stopped spending excessively. W produced an asset schedule which included a family home of £45m, land in Z City worth £150m, private equity investments, cash, and art. H disputed this schedule and said that the family is in financial crisis. In August 2024, W says the parties discussed settlement and agreed that H would provide a £15m house, £10m to invest and £360,000 an annum for maintenance secured with a fund of £8.5m.

Legal principles

In relation to evidential disputes, in TL v ML [2005] EWHC 2860 (Fam), Nicholas Mostyn QC, as he then was, stated that where disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about their ability to pay. Where the paying party has historically been supported through the bounty of an outsider, and where the payer is asserting that the bounty had been curtailed but where the position of the outsider is ambiguous or unclear, then the court is justified in assuming that the third party will continue to supply the bounty, at least until final trial.

The applicable principles for an application for a LASPO are set out by Mostyn J in Rubin v Rubin [2014] EWHC 611. Some of the relevant principles are:

• The court is required to have regard to all matters mentioned in s 22ZB(1)–(3).
• The ability of the respondent to pay should be judged by reference to the principles in TL v ML (set out above).
• Where the claim 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 court cannot make an order unless it is satisfied that without the payment, the applicant would not reasonably be able to obtain appropriate legal services for the proceedings.

In relation to incurred costs, Peel J in KV v KV [2024] 2 FLR 951 set out that, in principle, an award for past costs can be made. Previously, courts have declined to encompass costs owed to firms no longer instructed by the applicant as well as costs in connection with proceedings already concluded. Costs reasonably and legitimately incurred by the present legal team in ongoing proceedings may, by contrast, be justifiably brought within the LASPO application.

In relation to quantification of a LASPO award, in the same case, Peel J set out that to apply a standard basis of assessment discount may be a useful approach or cross check against the reasonable figure in some cases, but it is not a formula of universal and automatic application. He looked at the sums sought in the rounds, took account of all relevant factors and assessed an overall reasonable figure.

TL v ML [2006] 1 FLR 1263 sets out that the sole criterion for assessing maintenance is ‘reasonableness’ which is synonymous with ‘fairness’.

Judgment

The judge assumed that the asset table was produced in the last 18 months by H and reflected the resources then available to H. He commented that at this stage in the proceedings it was difficult to draw any concrete conclusions about H’s wealth; however he had no hesitation in finding on the balance of probabilities, for the purposes of this application, that it is likely that H has significantly greater resources available to him than he disclosed. H concluded that H’s disclosure is obviously deficient, and H has access to resources to meet this interim claim.

W had incurred £125,609 in costs so far. The judge refused to order payment for the injunction hearing costs (most of the costs up to October 30 were related to that hearing) as the costs were reserved for the return date in March. The judge ordered 85% of the costs from November 1 and costs from now until the end of the post FDR directions.

W sought maintenance payments of £33,410 per month, mortgage payments, utility payments, school fees, the salary for one security guard and the nanny, and medical expenses. H offered nothing. The judge concluded that W’s figures were reasonable and ordered what W requested.

W sought an injunction against the second respondent to these proceedings, the trustees of the A Trust, prohibiting them from dealing with the family home, which they own through B Ltd. Garrido J in hearing the injunction in October 2024 ruled that there was no evidential basis for concluding there might be a risk of dissipation of the family home or its proceedings. Mr Justin Warshaw KC refused to reconsider this decision and declined to order the injunction sought by W.