Today's blog is co-written by me and my colleague, Margaret Heathcote, whom you can follow on Twitter @Auntie_Ag
On 10 March, Mostyn J handed down his decision in the case of Rubin -v- Rubin  EWHC 611 (Fam). We were solicitors for the Applicant Wife in the proceedings.
- The family had been in England from October 2012. The Husband said that this was only because they came initially for a holiday, and the Wife had overstayed. The Wife said it was always known she did not intend to return to the US at the end of their (initial) two-week stay.
- Both parties issued divorce proceedings in May 2013, the Wife here and the Husband in California. The Wife’s were first in time, some seven months after her arrival in England. She also issued financial remedy proceedings and an application under section 8 of the Children Act 1989 for a residence order.
- The parties agreed to engage in mediation, and whilst mediating, that no further steps would be taken in either jurisdiction in relation to any proceedings. Rudimentary financial disclosure was exchanged, but remained untested.
- Mediation was not successful, the final session taking place in October 2013. The trial of the Abduction proceedings was adjourned twice in the interim, but was finally listed for early 2014.
- In December 2013, the Wife applied for directions for trial in the English divorce proceedings. The Court had deemed service to have been effected on the Husband as long ago as August 2013. A District Judge’s Certificate was issued and pronouncement of Decree Nisi scheduled for 12 March 2014.
- The Husband, meantime, had made various interlocutory applications in California better to manoeuvre himself in that jurisdiction.
- A First Directions Appointment in the financial remedy proceedings was scheduled in early January 2014. This, too, had been adjourned from a previous listing. The Wife’s application for a LSPO was issued prior to the FDA, but not listed with it (the PRFD counter-staff, in their wisdom, refusing to do so). The LSPO application nevertheless was served, on the basis that it would be brought to the District Judge’s attention for determination at that FDA.
- Faced with the LSPO application, the Husband agreed to meet the Wife’s ongoing costs of the suit and financial remedy application (subject to certain reasonable provisos). In view of the forthcoming trial of the Abduction proceedings, directions for the filing of Forms E and so on were agreed, with the FDA adjourned to a date post-trial. The LSPO application was also adjourned on the basis that it would be re-listed in the event that the Husband breached the terms of his agreement as to costs.
- When a further invoice was rendered in respect of the suit and financial proceedings after conclusion of the Abduction proceedings, the Husband declined to meet it in full (breaching his agreement to discharge those invoices). The LSPO application was restored, to be listed alongside the Schedule 1 application.
- The Wife and children travelled to the USA on 17 February 2014. The following day, she engaged herself in the divorce proceedings there.
- On 28 February 2014, a Deputy District Judge sitting at the PRFD acceded to the Husband’s application effectively summarily to stay the English divorce and financial remedy proceedings, under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. The Deputy District Judge specifically exempted from the terms of the stay the pending LSPO application.
- As we now know, on 5 March 2014 both the LSPO and Schedule 1 applications were heard by Mostyn J. His Lordship’s Judgment was handed-down on 10 March 2014.
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 Schedule 1 application, nor the vagaries of listing which meant that the stay application was heard before the LSPO application.
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 US 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 Schedule 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.
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.
- 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 Schedule 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.