Before 1 April 2013, maintenance pending suit for legal costs was defined by a series of cases such as A v A 2001, TL v ML 2005 and Currey v Currey 2007. Sections 49 to 51 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the rules codified in statute under sections 22ZA and 22ZB of the Matrimonial Causes Act 1973 which created legal services orders.

The court used to have power to make maintenance pending suit orders to cover a party’s legal costs and still has the power to make a temporary order for financing of legal costs in applications under Children Act 1989 and Part III of the Matrimonial and Family Proceedings Act 1984, and the directions in the following cases are relevant in this context. The first case to deal with this point was A v A. The applicant wife was granted maintenance pending suit to include her legal costs. This was because her legal aid certificate had been stopped. Judge Holman said:

“the words of section 22 of the Matrimonial Causes Act 1973 are wide enough to empower the court to include an element towards the payee’s costs of the suit provided it is reasonable to do so.”

Over the years that followed, there was a debate about whether A v A was properly judged. The judgment was confirmed by the Court of Appeal in Moses-Taiga v Taiga 2005. The debate moved on to whether “exceptional” circumstances were essential for a legal cost order to be made and what the fundamentals were. The position was finally made in the case of Currey (No 2) by Lord Justice Wilson in the following test:

Currey No 2 test:

In Currey (No 2), Lord Justice Wilson established that an allowance for legal costs is not a cost order and recommended that the following test should be considered when determining whether an applicant should get a cost allowance:

  • Could the person seeking to fund the divorce litigation do so by way of a Sears Tooth charge? To assist the applicant a witness statement from the party’s solicitor must state that they would not enter into such an arrangement.
  • Does the person seeking a legal costs order have assets that it is reasonable for him/her to deploy to meet the costs of litigation?
  • Could the applicant take out a loan to fund the litigation? If so, evidence must be obtained from at least two lenders (see the case of TL v ML).
  • Has the applicant taken a position in the divorce litigation that is so unreasonable as to discourage the court from ordering the maintenance pending suit or legal costs order?
  • Are there any options to get public financing that would “furnish the person seeking a legal costs order with legal advice, assistance, and representation at a level of skill applicable to the proceedings”?

Now you need a supporting budget

If the answers to the questions above were all negative, it meant that an order for an allowance for legal costs is likely to be made in favour of the applicant. The applicant must also provide a detailed budget in a statement that supports the application in general. The budget will state what costs are required and will be accompanied with a comprehensive breakdown. If the applicant does not produce a budget to support the application, then it might lead to any legal costs award being stopped.

The next consideration is the respondent’s ability to pay:

The applicant should be able to demonstrate that the respondent has the money/means or wealth to be able to afford the legal costs sought, as well as paying for their own legal costs. This is a particularly delicate case to establish which is why advice should be taken early from Britton and Time Solicitors.

Can raising a loan against assets such as a house be ordered?

The short answer is yes. Justice Hedley declined raising a loan against assets as reasonable because the wife, who had no income of her own could mortgage her £500,000 share of the matrimonial home.

How long would the cost order last?

A legal costs order was limited to the conclusion of the Financial Dispute Resolution hearing, or FDR, as a way of ensuring that a person in receipt of legal costs is encouraged to see an end to the divorce proceedings, which full costs provision might hinder.

For information on maintenance pending suit for legal costs since 1 April 2013, see our page at WHAT IS MAINTENANCE PENDING SUIT AND DO YOU NEED IT? For further advice on applications in divorce proceedings please click on the contact us page or call us on 01273 726951 to arrange a no obligation consultation at our offices.