HA v EN

In interim financial-remedy proceedings, maintenance pending suit ordinarily requires a realistic interim budget. The Form E budget may suffice where it can readily be adapted, but the court retains a narrow discretion to proceed without one in exceptional circumstances.

A legal-services payment order requires evidence that appropriate legal services cannot reasonably be obtained without payment, including because a litigation loan or charge-based funding is unavailable. Historic costs qualify only where payment is necessary to secure future representation. Such provision may be secured by a charging order or equitable charge over property or the ultimate award. Funds paid for legal services must be applied to that purpose, with any surplus returned.

The applicant wife sought maintenance pending suit and a legal-services payment order during long-running financial-remedy proceedings following the parties’ separation and divorce application. The financial dispute concerned a substantial pre-nuptial agreement, alleged non-disclosure, sharply differing assessments of the husband’s resources, and the parties’ litigation funding.

The wife sought maintenance of £20,500 per month, including an unusual conditional or “unless” order, and substantial funding for historic and future legal costs. The husband disputed the wife’s financial need, challenged the alleged deficiencies in his disclosure, and offered a lower level of interim maintenance. The central issues were whether interim maintenance could be assessed without a proper budget, whether the statutory conditions for legal-services provision were met, and how any order should be secured.

1. Maintenance pending suit. Section 22 of the Matrimonial Causes Act 1973 confers a broad discretion, but the court has an inquisitorial duty to assess a realistic budget. Usually the Form E budget is the starting point, with a specific interim budget where necessary. Rattan v Kuwad did not dispense with a budget; it recognised that the Form E budget may be adapted where it is sufficiently clear. The absence of a proper budget was exceptional here, and the court proceeded because of the parties’ substantial disparity in case, resources and long-standing interim arrangements.
2. The proposed “unless” order was legally incoherent. An unless order supports an existing court direction or order; it cannot impose maintenance conditionally on a requirement which the court has not ordered. Maintenance pending suit was fixed at £12,000 per month, with the husband continuing to meet specified household, staff and education expenses. If the former matrimonial home was sold before final determination, maintenance would increase in accordance with the operative order.
3. Legal-services provision. Sections 22ZA and 22ZB of the Matrimonial Causes Act 1973 require consideration of the parties’ resources, needs, the proceedings, representation, conduct and the effect on the paying party. The court had to be satisfied that, without payment, the wife could not reasonably obtain appropriate legal services, and that a loan or Sears Tooth arrangement was unavailable or unreasonable. Those conditions were met.
4. Historic costs of former solicitors were not necessary for future representation. A reduced allowance was made for the current solicitors’ historic costs because they would cease acting without payment. Future costs were assessed broadly, excluding an unjustified second expert and adjusting counsel’s fees. Equality of arms justified provision for the husband’s representation also.
5. The shortfalls were secured by interim charging orders and equitable charges over the matrimonial home and the parties’ ultimate awards. Under section 73 of the Solicitors Act 1974, fixed sums ordered under sections 22ZA and 22ZB could constitute assessed costs for charging purposes. Simple interest at 8% was allowed. Funds received under the orders had to be used solely for legal services; unused funds had to be returned to the paying party.
6. The adjournment application was refused. Directions, maintenance, legal-services payments, charges and costs reservations were ordered as set out in the judgment.

First-instance interim decision in financial-remedy proceedings. No appeal history is stated in the judgment.