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On 10 March, Mostyn J handed down his decision in the case of Rubin v Rubin  EWHC 611 (Fam),  2 FLR (forthcoming). We were solicitors for the Applicant Wife in the proceedings.
The applications before his Lordship were these:
(a) the Wife's application for a legal services order ('LSPO') under s 22ZA of the Matrimonial Causes Act 1973 in respect of financial remedy proceedings;
(b) the Wife's application for an order for a lump sum under s 15 of, and Sch 1 to, the Children Act 1989 ('the Sch 1 application'), in respect of her legal costs in proceedings brought against her under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ('the Abduction proceedings'), and
(c) the Husband's application for permission to appeal an order of a Deputy District Judge made only days earlier, whereby he excluded from a stay of the English divorce and financial remedy proceedings the pending application for the LSPO.
Mostyn J sets out in his Judgment the background to the case, which we do not repeat here in detail. The salient points for this blog are these:
At para  of his Judgment, Mostyn J sets out the principles which must apply in determining a LSPO application. Quite reasonably, he observes the court should be cautious ‘where the claim for substantive relief appears doubtful'. He takes the view that, as the court must also satisfy itself that without the payment the applicant would not reasonably be able to obtain appropriate legal services, ‘the exercise essentially looks to the future'.
In this case, both applications for the Husband to meet the Wife's legal costs were made in advance of those costs being incurred. They were supported by the usual enquiries in respect of the availability of funding from other sources - commercial and otherwise. They were made when it was reasonably expected that the various aspects of the litigation would continue in this jurisdiction. Neither the Wife nor we on her behalf could have reckoned with Hogg J declining to deal with the Sch 1 application, nor the vagaries of listing which meant that the stay application was heard before the LSPO application.
So with the benefit of hindsight, what, as solicitors, should we have done? The logical conclusion of Mostyn J's Judgment is that we should have downed tools and walked out of the trial of the Abduction proceedings when the Judge declined to deal with the Sch 1 application. The ‘gratuitous offer' to which he refers (the £6,000 offer made at the close of day one of the trial) was intended to ensure the Wife's trial Counsel would be paid. It covered none of the Wife's legal costs preceding that, nor of her solicitor attending court. Whether Counsel could (or would) then have remained in court on some sort of quasi ‘Direct Access' basis if we had walked is a moot point. We did not walk away in the expectation that the application for costs remained a viable one; so Counsel was not required to make that election. Our client certainly could not have represented herself.
Likewise, when the Husband declined to meet the Wife's costs of the divorce and financial remedy proceedings, Mostyn J's decision has it we should have ceased to act forthwith. We should have required, it would seem, the Wife to act in person against a party who had the means to fund his and her costs without making a dent on his significant wealth. We should have, it would seem, allowed the Husband to take every juridical advantage by deciding if and when he might defray the Wife's legal costs (and if when, then in whatever amount he decided was fitting). He ought also to have been allowed to manoeuvre himself tactically in the US via his (privately funded) attorney there, whilst the Wife was denied access to justice save for on the ‘grace and favour' terms the Husband dictated.
We did not down tools in respect of either set of proceedings.
The Wife is now living with the children in the US, a country where she does not wish to remain. She is engaged in contested proceedings there in respect of custody, her financial future (there is, of course, a pre-marital agreement in the US which the husband seeks to enforce (at least those parts of it that are advantageous to him)) and that of her children. She has had to borrow money to initially instruct attorneys, and is seeking an order in the USA that her husband should underwrite her future costs. Seemingly, we have to pursue her now for legal costs, and she will in turn have to seek them in the US litigation from the Husband as a debt, incurring further costs by doing so.
And so the merry dance continues ...
Mostyn J rightly points out the inherent difficulty in making available Legal Aid to the Husband in the Abduction proceedings (in circumstances where his means meant he did not require it) but not to the Wife (in circumstances where her means meant that she did). The practise and jurisprudence which has developed (and is developing) in respect of LSPO and Sch 1 applications seeks to address what should happen when a rich spouse seeks through litigation to outspend his impecunious other. The protection such applications ought to provide appear to have failed the Wife entirely here.
Should the Wife in Rubin have sought to pursue her application for a financial remedy in this country, notwithstanding Hogg J's decision in the Abduction proceedings? Whilst there were no assets in this jurisdiction, and none of the parties here post 17 February 2014, would a belligerent persistence in litigating the question of a financial settlement here, and the legal costs of that stance, have been sufficiently prospective and ‘forward looking' that her LSPO application might have succeeded? Likewise, had Hogg J dealt with the Sch 1 application prior to deciding the Abduction proceedings (as she had been requested to do), rather than taking the path of less resistance, would that also have been sufficiently ‘forward looking' that that application might have succeeded?
The real shame of Mostyn J's Judgment is that it leaves - for now at least - unaddressed the policy issue of whether an impecunious by Legal Aid ineligible respondent in Abduction proceedings can deploy Schedule 1 to secure provision for her legal costs of that litigation. That principled point, which requires a decision one way or the other so that parties to such proceedings (and those that represent them) know there options remains undetermined.
So what lessons can be learned? We suggest, in light of Mostyn J's decision, that for solicitors they are these:
Don't be satisfied with an agreement about legal funding from the other party that is not enshrined in a court order. If an agreement is achieved, look to have it embodied in an order made by consent. Otherwise, if the agreement is breached and a LSPO application is made but not determined, if proceedings conclude prematurely you will find yourself without a remedy.
Apply as soon as possible, whether for a LSPO or under Sch 1. You will be held accountable for judicial case management decisions along the way that mean an application issued first in time is determined second. Better to bang in the application as soon as it appears to be needed.
Be prepared to cease representing your client. That is the real gist of Mostyn J's decision. If a Judge sees an impecunious party's legal team packing bags and heading for the door in the face of judicial disinclination to deal with a funding application, he or she might think twice. Abandoning your client to the mercies of acting as a Litigant-in-person might be enough to demonstrate that the application will not be able to obtain appropriate legal services or redress.
That this should be the call solicitors are forced to make is all the more remarkable, given the statistics about legal representation from earlier this week. According to figures released by the Ministry of Justice to lawyersupportedmediation.com, 45% of the people who went to court for the matters concerning children in the six months to September 2013 had no legal representation. According to a report in the Independent, this percentage equated to 21,574 people and is an increase of around 30% from previous periods.
The prospect of this number increasing whilst solicitors engage in brinkmanship with the court over whether their clients will be represented if funding applications are not entertained is the natural consequence of Mostyn J's decision.
Failing the above, be prepared to extend a line of indefinite and unsecured credit to your financially disadvantaged clients who have rich spouses, or else be willing to act pro bono.
Ignore these lessons at your peril. The alternative is to find yourself either out of pocket, or having to pursue an impecunious client to recover unpaid fees.
This article was originally published on the Family Matters website and has been reproduced here with permission of the copyright owner.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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