Alyami v Mussallam

The exercise of discretion in a family financial-remedy order, including provision for legal costs and accommodation, is highly fact-sensitive. A party has no general entitlement to have unpaid legal costs met from assets held by the other spouse. The court must consider available resources and the effect of further provision on the spouse and children. On appeal, intervention requires an error of principle or an outcome outside the judge’s generous discretionary ambit. A previous discretionary decision cannot dictate the result in another case. Clear reasons identifying the relevant considerations are sufficient; lengthy reasons are unnecessary.

The parties were Saudi Arabian nationals who had established their habitual residence in England and had three children. Following the breakdown of the marriage, there were divorce proceedings in Saudi Arabia, Children Act proceedings in England and a Part 3 claim under the 1984 Act. At the final hearing on 18 October 2011, Mr Justice Coleridge ordered provision of London accommodation for the husband’s contact with the children and awarded £50,000 towards his substantial legal costs, conditional on documentary compliance. The husband appealed, arguing that the costs award was inadequately reasoned, inconsistent with the housing provision and contrary to the approach in Radmacher. The central issue was whether the judge had erred in principle or exceeded his discretion.

1. The appeal was dismissed. The Court of Appeal held that Coleridge J had exercised a wide discretion in deciding the appropriate financial provision.
2. There was no general principle requiring unpaid litigation costs to be met by a lump-sum award merely because the matrimonial assets were held by the other spouse. The circumstances included the husband’s lack of means, the nearly £490,000 costs incurred, the disproportionate nature of the bills and the potential effect of further provision on the wife and children. Those features made the case exceptional and widened the judge’s discretionary ambit.
3. The judge’s reasons were adequate. His judgment identified the relevant financial considerations and explained why a substantially larger award would jeopardise the wife’s and children’s position. In the absence of any serious challenge to those findings, complaints of inadequate reasons and lack of evidential basis were untenable.
4. Radmacher could not require a different award. Discretionary financial-remedy cases are fact-dependent, and Baron J’s decision could not determine how Coleridge J should exercise his discretion. The guidance attributed to Wilson LJ, insofar as relevant, supported rather than undermined the need to respect the first-instance discretion.
5. The housing provision was not inconsistent with the limited costs award. It secured accommodation for contact during the children’s minority without giving the husband an immediate beneficial interest which his trustee in bankruptcy could realise. His future entitlement to half the net sale proceeds was separately secured.

The appeal was dismissed.

• Court of Appeal (Civil Division): on appeal from the Principal Registry of the Family Division, the appeal was dismissed. Citation: [2012] EWCA Civ 1967.
• Principal Registry of the Family Division: Mr Justice Coleridge gave the final judgment on 18 October 2011 and made the financial and housing order challenged on appeal.