Funding applications - lessons for solicitors learned in the trenches

On 10 March, Mostyn J handed down his decision in the case of Rubin v Rubin [2014] EWHC 611 (Fam), [2014] 2 FLR (forthcoming). We were solicitors for the Applicant Wife in the proceedings.

The applications before his Lordship were these:

(a) the Wife's application for a legal services order ('LSPO') under s 22ZA of the Matrimonial Causes Act 1973 in respect of financial remedy proceedings;

(b) the Wife's application for an order for a lump sum under s 15 of, and Sch 1 to, the Children Act 1989 ('the Sch 1 application'), in respect of her legal costs in proceedings brought against her under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Abduction proceedings'), and

(c) the Husband's application for permission to appeal an order of a Deputy District Judge made only days earlier, whereby he excluded from a stay of the English divorce and financial remedy proceedings the pending application for the LSPO.

Mostyn J sets out in his Judgment the background to the case, which we do not repeat here in detail. The salient points for this blog are these:

• The (US national) Husband was a man of very considerable means.

• The (English) Wife and their two children were entirely dependent on him for their financial support. To some extent, he gave that freely (albeit on his terms).

• Acknowledging that the Wife should be represented and advised, the Husband paid the Wife's legal costs throughout the various sets of proceedings, cavilling only at the costs which were the subject of the applications before Mostyn J.

• The family had been in England from October 2012. The Husband said that this was only because they came initially for a holiday, and the Wife had overstayed. The Wife said it was always known she did not intend to return to the US at the end of their (initial) two-week stay.

• Both parties issued divorce proceedings in May 2013, the Wife here and the Husband in California. The Wife's were first in time, some seven months after her arrival in England. She also issued financial remedy proceedings and an application under section 8 of the Children Act 1989 for a residence order.

• Having persuaded the Wife to adjourn the FHDRA listed in respect of her residence application, the Husband promptly issued the Abduction proceedings seeking the summary return of the children to the USA. As was his automatic right, and despite his wealth, he received non-means and non-merits tested Legal Aid to enable him to do so.

• The parties agreed to engage in mediation, and whilst mediating, that no further steps would be taken in either jurisdiction in relation to any proceedings. Rudimentary financial disclosure was exchanged, but remained untested.

• Mediation was not successful, the final session taking place in October 2013. The trial of the Abduction proceedings was adjourned twice in the interim, but was finally listed for early 2014.

• In December 2013, the Wife applied for directions for trial in the English divorce proceedings. The Court had deemed service to have been effected on the Husband as long ago as August 2013. A District Judge's Certificate was issued and pronouncement of Decree Nisi scheduled for 12 March 2014.

• The Husband, meantime, had made various interlocutory applications in California better to manoeuvre himself in that jurisdiction.

• A First Directions Appointment in the financial remedy proceedings was scheduled in early January 2014. This, too, had been adjourned from a previous listing. The Wife's application for a LSPO was issued prior to the FDA, but not listed with it (the PRFD counter-staff, in their wisdom, refusing to do so). The LSPO application nevertheless was served, on the basis that it would be brought to the District Judge's attention for determination at that FDA.

• Faced with the LSPO application, the Husband agreed to meet the Wife's ongoing costs of the suit and financial remedy application (subject to certain reasonable provisos). In view of the forthcoming trial of the Abduction proceedings, directions for the filing of Forms E and so on were agreed, with the FDA adjourned to a date post-trial. The LSPO application was also adjourned on the basis that it would be re-listed in the event that the Husband breached the terms of his agreement as to costs.

• The Husband refused, however, to agree to underwrite the Wife's estimated costs of the Abduction proceedings. His suggestion so far as those were concerned was that he should pay a fixed fee (which he would arbitrarily determine) from which solicitors and Counsel would have to make do. Hence, the Schedule 1 application was made, and listed to be heard contemporaneously with the trial of the Abduction proceedings.

• That trial came on on 20 January 2014 before Mrs Justice Hogg. Her Ladyship acceded to the application, directing the children's summary return to the USA.

• Of the Schedule 1 application, her Ladyship accepted the Husband's offer made at the end of the first day of the trial to pay £6,000 towards the Wife's costs of those proceedings (essentially to ensure that Counsel got paid). She declined to deal with the balance of Schedule 1 application prior to ordering the children's return.

• At the conclusion of the trial, the Schedule 1 application was adjourned over to be heard (by Hogg J if available) on 5 March 2014; the first available date the court could accommodate and which both parties' advocates could attend.

• When a further invoice was rendered in respect of the suit and financial proceedings after conclusion of the Abduction proceedings, the Husband declined to meet it in full (breaching his agreement to discharge those invoices). The LSPO application was restored, to be listed alongside the Schedule 1 application.
• The Wife and children travelled to the USA on 17 February 2014. The following day, she engaged herself in the divorce proceedings there.

• On 28 February 2014, a Deputy District Judge sitting at the PRFD acceded to the Husband's application effectively summarily to stay the English divorce and financial remedy proceedings, under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. The Deputy District Judge specifically exempted from the terms of the stay the pending LSPO application.

• As we now know, on 5 March 2014 both the LSPO and Schedule 1 applications were heard by Mostyn J. His Lordship's Judgment was handed-down on 10 March 2014.

At para [13] of his Judgment, Mostyn J sets out the principles which must apply in determining a LSPO application. Quite reasonably, he observes the court should be cautious ‘where the claim for substantive relief appears doubtful'. He takes the view that, as the court must also satisfy itself that without the payment the applicant would not reasonably be able to obtain appropriate legal services, ‘the exercise essentially looks to the future'.

In this case, both applications for the Husband to meet the Wife's legal costs were made in advance of those costs being incurred. They were supported by the usual enquiries in respect of the availability of funding from other sources - commercial and otherwise. They were made when it was reasonably expected that the various aspects of the litigation would continue in this jurisdiction. Neither the Wife nor we on her behalf could have reckoned with Hogg J declining to deal with the Sch 1 application, nor the vagaries of listing which meant that the stay application was heard before the LSPO application.

So with the benefit of hindsight, what, as solicitors, should we have done? The logical conclusion of Mostyn J's Judgment is that we should have downed tools and walked out of the trial of the Abduction proceedings when the Judge declined to deal with the Sch 1 application. The ‘gratuitous offer' to which he refers (the £6,000 offer made at the close of day one of the trial) was intended to ensure the Wife's trial Counsel would be paid. It covered none of the Wife's legal costs preceding that, nor of her solicitor attending court. Whether Counsel could (or would) then have remained in court on some sort of quasi ‘Direct Access' basis if we had walked is a moot point. We did not walk away in the expectation that the application for costs remained a viable one; so Counsel was not required to make that election. Our client certainly could not have represented herself.

Likewise, when the Husband declined to meet the Wife's costs of the divorce and financial remedy proceedings, Mostyn J's decision has it we should have ceased to act forthwith. We should have required, it would seem, the Wife to act in person against a party who had the means to fund his and her costs without making a dent on his significant wealth. We should have, it would seem, allowed the Husband to take every juridical advantage by deciding if and when he might defray the Wife's legal costs (and if when, then in whatever amount he decided was fitting). He ought also to have been allowed to manoeuvre himself tactically in the US via his (privately funded) attorney there, whilst the Wife was denied access to justice save for on the ‘grace and favour' terms the Husband dictated.

We did not down tools in respect of either set of proceedings.

The Wife is now living with the children in the US, a country where she does not wish to remain. She is engaged in contested proceedings there in respect of custody, her financial future (there is, of course, a pre-marital agreement in the US which the husband seeks to enforce (at least those parts of it that are advantageous to him)) and that of her children. She has had to borrow money to initially instruct attorneys, and is seeking an order in the USA that her husband should underwrite her future costs. Seemingly, we have to pursue her now for legal costs, and she will in turn have to seek them in the US litigation from the Husband as a debt, incurring further costs by doing so.

And so the merry dance continues ...

Mostyn J rightly points out the inherent difficulty in making available Legal Aid to the Husband in the Abduction proceedings (in circumstances where his means meant he did not require it) but not to the Wife (in circumstances where her means meant that she did). The practise and jurisprudence which has developed (and is developing) in respect of LSPO and Sch 1 applications seeks to address what should happen when a rich spouse seeks through litigation to outspend his impecunious other. The protection such applications ought to provide appear to have failed the Wife entirely here.

Should the Wife in Rubin have sought to pursue her application for a financial remedy in this country, notwithstanding Hogg J's decision in the Abduction proceedings? Whilst there were no assets in this jurisdiction, and none of the parties here post 17 February 2014, would a belligerent persistence in litigating the question of a financial settlement here, and the legal costs of that stance, have been sufficiently prospective and ‘forward looking' that her LSPO application might have succeeded? Likewise, had Hogg J dealt with the Sch 1 application prior to deciding the Abduction proceedings (as she had been requested to do), rather than taking the path of less resistance, would that also have been sufficiently ‘forward looking' that that application might have succeeded?

The real shame of Mostyn J's Judgment is that it leaves - for now at least - unaddressed the policy issue of whether an impecunious by Legal Aid ineligible respondent in Abduction proceedings can deploy Schedule 1 to secure provision for her legal costs of that litigation. That principled point, which requires a decision one way or the other so that parties to such proceedings (and those that represent them) know there options remains undetermined.

So what lessons can be learned? We suggest, in light of Mostyn J's decision, that for solicitors they are these:

Don't be satisfied with an agreement about legal funding from the other party that is not enshrined in a court order. If an agreement is achieved, look to have it embodied in an order made by consent. Otherwise, if the agreement is breached and a LSPO application is made but not determined, if proceedings conclude prematurely you will find yourself without a remedy.

Apply as soon as possible, whether for a LSPO or under Sch 1. You will be held accountable for judicial case management decisions along the way that mean an application issued first in time is determined second. Better to bang in the application as soon as it appears to be needed.

Be prepared to cease representing your client. That is the real gist of Mostyn J's decision. If a Judge sees an impecunious party's legal team packing bags and heading for the door in the face of judicial disinclination to deal with a funding application, he or she might think twice. Abandoning your client to the mercies of acting as a Litigant-in-person might be enough to demonstrate that the application will not be able to obtain appropriate legal services or redress.

That this should be the call solicitors are forced to make is all the more remarkable, given the statistics about legal representation from earlier this week. According to figures released by the Ministry of Justice to lawyersupportedmediation.com, 45% of the people who went to court for the matters concerning children in the six months to September 2013 had no legal representation. According to a report in the Independent, this percentage equated to 21,574 people and is an increase of around 30% from previous periods.

The prospect of this number increasing whilst solicitors engage in brinkmanship with the court over whether their clients will be represented if funding applications are not entertained is the natural consequence of Mostyn J's decision.

Failing the above, be prepared to extend a line of indefinite and unsecured credit to your financially disadvantaged clients who have rich spouses, or else be willing to act pro bono.

Ignore these lessons at your peril. The alternative is to find yourself either out of pocket, or having to pursue an impecunious client to recover unpaid fees.

This article was originally published on the Family Matters website and has been reproduced here with permission of the copyright owner.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.