(Family Division; Macur J; 18 June 2010)
The lower judge ordered equal division of assets on basis that the wife was to retain a French property and that husband was to retain assets in his own name, and the former matrimonial home would be sold and the assets divided so as to achieve equality. The judge made no reference in order to costs and the husband subsequently obtained a costs orders against wife. After the sale of the former matrimonial home the husband sought to set-off these orders against a ‘parity payment' due in respect of the sale of the former matrimonial home. The wife's former solicitors raised what they claimed was a prior and preferential claim arising from a deed of assignment in respect of the wife's outstanding costs.
At issue was the validity of this deed. It was found to be a ‘valid contract for valuable consideration to assign a future chose in action'. By analogy to Sears Tooth (A Firm) v Payne Hicks Beach (A Firm), the assignment attached first to the French property at the date of the order, then to the sale of the former matrimonial home and quantification of parity payment on the date of sale.
The costs orders preceded the sale and the assignee could be in no better position than the assignor. The debts owed to the husband were closely connected with the contract that gave rise to the debt assigned to the wife's solicitors. The terms of the court order did not preclude the husband's right to set-off. The order was not a contract and could not possibly determine a dispute between the client and solicitor in advance.
Costs orders extinguished ‘parity payment. Solicitors left to charge wife's French property.