Chai v Peng

Maintenance pending suit is an interim remedy requiring a broad-brush assessment of what the applicant reasonably needs until fuller consideration. The court should avoid both under-provision and undue generosity. In assessing legal funding, it should consider whether other realistic sources of funding are available. An interim award may properly be made on account of the applicant’s financial claims in any jurisdiction, with later adjustment or set-off against a final award. The court must also apply the overriding objective in Family Procedure Rules 2010, rule 1, including proportionality, expedition and the saving of expense.

The wife applied for further maintenance pending suit in English financial remedy proceedings following a marriage of about 42 years. The parties had five adult children and substantial international connections, including ongoing divorce proceedings in Malaya and related property interests in England and Canada. The husband disputed the jurisdiction of the English court and resisted further payment.

The wife sought £125,000 per month for living expenses and £245,000 towards legal costs. The central issues were the reasonable level of interim maintenance, the extent of any contribution towards legal costs, the availability of alternative funding, and whether making an order would improperly interfere with the Malaysian proceedings.

1. Application granted. The court ordered the husband to pay £170,000 forthwith for the period to the next hearing, apportioned as £70,000 for general maintenance and £100,000 towards the wife’s legal costs.
2. The assessment was necessarily short, interim and impressionistic. The court had to confine the award to what the wife reasonably needed pending later consideration and should not be over-generous. The wife’s proposed figure of £125,000 per month was not justified on the material available, particularly given the level of expenditure during the marriage and the inclusion of substantial one-off items.
3. In relation to legal funding, the court considered whether other sources were realistically available. Legal aid was effectively unrealistic in the circumstances, and no litigation loan was presently available. The court nevertheless declined to undertake a detailed assessment of the solicitors’ bills at this interim hearing.
4. The order was made on the same basis as the earlier payment and undertakings. The sums were expressly paid on account of the wife’s claims for financial provision in any jurisdiction. They could therefore be set off against any later award ordered or agreed elsewhere.
5. The existence of Malaysian proceedings did not make the order an improper interference with a foreign court. There was no completed decree or judgment of divorce in either jurisdiction, and substantial proceedings remained ongoing in England as well as Malaya.
6. The court stressed the application of the overriding objective in Family Procedure Rules 2010, rule 1. The parties’ expenditure and use of court time were disproportionate. The court referred to Spiliada in emphasising that disputes about forum should be resolved efficiently, and urged the parties to negotiate.

First-instance decision. No appellate history was stated in the judgment.