Vince v Wyatt

An order requiring one party to fund another’s legal costs pending family proceedings does not necessarily make payments irrecoverable when the order is successfully challenged on appeal. Where the challenge is to the order itself, rather than merely to the underlying claim at trial, the successful appellant may recover sums paid to fund future litigation or costs incurred after the order became vulnerable to appeal. The relevant date is assessed realistically by reference to notice of the appeal and its progress. A failure to seek a stay or expedition does not defeat restitution in principle. The recoverable amount is assessed by reference to the solicitors’ account at the relevant date.

Following an earlier appeal concerning an order made by Mr Nicholas Francis QC for £125,000 towards the respondent’s past and future legal costs, the Court of Appeal addressed consequential disputes about repayment. The appellant argued that payments made under the order should be returned after the respondent’s substantive claim failed and the order was successfully challenged. The respondent’s solicitors had applied most of the money to costs and disbursements. The central issues were whether Moses-Taiga v Taiga [2005] EWCA Civ 1013 governed the position and the date at which the amount repayable should be assessed.

1. Appeal allowed. The appellant was entitled to an order for repayment of monies paid to fund future litigation or the respondent’s costs from the date when it became apparent that the security provided by the costs order was vulnerable to appeal.
2. Lord Justice Thorpe distinguished Moses-Taiga v Taiga [2005] EWCA Civ 1013. That case concerned the failure of the wife’s claim at trial. The present issue concerned the failure of the wife on a challenge to the costs order itself. An earlier determination of the challenge would have prevented the later instalments from being paid into the solicitors’ account.
3. The relevant date had to be determined realistically. The appeal was apparent from the application for permission, the extension of time, and the filing of the Appellant’s Notice. The court directed that the account between the respondent and her solicitors be taken as at 17 January, the date on which the Appellant’s Notice was filed.
4. The absence of an application for a stay or expedition did not affect the principle of restitution. Such applications would ideally have been made, but a stay would probably have been refused given the unusual function of a maintenance pending suit order, while expedition might have been ordered.
5. The amount repayable depended on the state of the account between the respondent and her solicitors at the relevant date. If the amount could not be agreed, it was to be determined by a costs judge. Permission to appeal to the Supreme Court was refused.

1. Principal Registry Family Division — Mr Nicholas Francis QC ordered payment of £125,000 towards the respondent’s past and estimated future legal costs.
2. Court of Appeal (Civil Division) — on the appeal and consequential disputes, the court allowed the appeal, directed repayment of sums attributable to future litigation or costs from the relevant date, and fixed 17 January as the date for assessing the solicitors’ account. The judgment is reported at [2013] EWCA Civ 934.