Roberts J. Appeal from HHJ Ellis who had refused F’s application for a legal services payment order of £125,000 in relation to his s 8 and Schedule 1 applications. F’s Sch 1 application based on significant disparity of wealth. Their joint home was said to be worth £1.3m but with a mortgage of £863k. Mother was a member of a family that had very significant wealth and she received trust monies in the past, although she said her sole income currently was her earnings of £100k pa. Judge refers to all this as ‘unevidenced speculation’ and notes that trusts are illiquid and her potential inheritances subject to 20 years of unresolved tax litigation.

Although this was an unmarried couple, HHJ Ellis had correctly identified the principles set out in Currey v Currey (No 2) [2006] EWCA Civ 1338 and Rubin v Rubin [2014] EWHC 611 (Fam) were relevant. She had held that legal advice was necessary to ensure equality of arms and an Art 6 compliant hearing as it was potentially complex. However, she noted that W was supporting family of five with no assistance from F, there were arrears of school fees and monthly interest-only mortgage payments of £5,350. M was owed £145,000 from ‘PP’, a friend, but even if this was paid, M would need it for these things. She also found that F had failed to satisfy court that he had exhausted all routes of securing litigation funding.

Roberts J found that HHJ Ellis had failed to give sufficient weight to the guidance provided in Rubin (which Roberts J sets out at length) and been overly cautious in relation to F’s ability to borrow. She was wrong to dismiss the monies owed by PP as a potential resource as she had failed to balance the needs of F against those of M. M should pay half of any funds recovered from PP to F’s solicitors for their ongoing costs. If PP did not pay, the parties are both likely to find themselves in a similar predicament in relation to funding representation. Her order was thus a contingent lump sum.

Roberts J heard this case in June 2023. In July 2023 when she circulated a draft judgment, she was advised that prior to May 2023 PP had paid M £191,000 being the loan plus interest, and M had used this to pay her solicitors, reduce debt, meet the children’s educational costs, and pay ongoing living expenses. The court had proceeded on a mistake of fact. However, this did not vitiate the fundamental basis of Roberts J’s decision and Roberts J drew up the order she had intended to make.