Rubin v Rubin

A legal services payment order is an interim order ancillary to the divorce suit. If the suit is stayed, the application for such an order must also be stayed. The jurisdiction is directed to securing future appropriate legal services; it is not a substitute for inter partes costs jurisdiction under CPR Part 44. Historic unpaid costs should not ordinarily be funded where no further substantive proceedings are contemplated in the jurisdiction. Similar principles apply, with necessary modifications, to applications for costs funding under Schedule 1 of the Children Act 1989, although the precise availability of funding for alternative dispute resolution in such proceedings was left open.

The wife applied for a legal services payment order of £7,268 under section 22 ZA of the Matrimonial Causes Act 1973 and for a lump sum of £15,700 under section 15 and Schedule 1 paragraph 1(2)(c) of the Children Act 1989, representing costs incurred in English financial remedy and Hague Convention proceedings. The husband had obtained a stay of the divorce proceedings but the Deputy District Judge excepted the LSPO application from the stay. The husband sought permission to appeal that exception. The central issues were whether the LSPO could survive the stay and whether either costs application could succeed after the family had returned to California and no further substantive litigation was anticipated in England.

1. Appeal allowed. The Deputy District Judge had no power to except the wife’s LSPO application from the stay of the divorce suit. Permission to appeal was granted and the appeal was allowed.
2. An LSPO is an interim order under FPR 2010 rule 9.7(1)(da). It depends for its existence and validity on the continuation of the main divorce suit. Financial relief under the Matrimonial Causes Act 1973 is ancillary to that suit. A stay of the main suit therefore stays all subsidiary ancillary applications for financial relief, including applications for maintenance pending suit and LSPOs.
3. The court summarised the governing principles for LSPOs. It must consider the matters in section 22 ZB(1)–(3), assess the respondent’s ability to pay robustly where disclosure is deficient, and approach a doubtful substantive claim with increasing caution. The applicant must show that, without payment, she could not reasonably obtain appropriate legal services and could not reasonably secure funding elsewhere.
4. The jurisdiction is prospective. It must not be used to outflank or supplant the inter partes costs powers in CPR Part 44. Historic unpaid costs may be included only where payment is necessary to enable future appropriate legal services. Monthly funding is generally preferable, and the order should address repayment and the particular legal services funded.
5. Those principles should, with necessary modifications, apply to costs funding under Schedule 1 of the Children Act 1989, the Inheritance (Provision for Family and Dependants) Act 1975 and Part III of the Matrimonial and Family Proceedings Act 1984. The court left open whether such proceedings permit funding for alternative dispute resolution.
6. Both applications concerned costs already incurred, while no further substantive proceedings were contemplated in England. They therefore failed the prospective requirement and would create a surrogate inter partes costs jurisdiction. The LSPO application was stayed and, in any event, dismissed as fatally flawed and meritless. The Schedule 1 lump-sum application was also dismissed.

The judgment records an appeal from the order of Deputy District Judge Elliot dated 28 February 2014, which stayed the divorce proceedings but excepted the LSPO application. The High Court granted permission to appeal and allowed the appeal.