IQ Legal TrainingBerkeley Lifford Hall Accountancy Services

Moses-Taiga v Taiga [2005] EWCA Civ 1013

Appeal relating to maintenance pending suit order dismissed.

Moses-Taiga v Taiga [2005] EWCA Civ 1013

Court of Appeal: Thorpe and Dyson LJJ (5 July 2005)

Appeal relating to maintenance pending suit order dismissed.

This case related to lengthy litigation between the parties. In February 2003, the wife had filed a petition for the dissolution of her marriage; she pleaded a customary marriage in Nigeria in December 1993 and she pleaded jurisdiction on the grounds of habitual residence; she founded her petition on the ground that the irretrievable breakdown was demonstrated by conduct on the part of the husband with which she could not reasonably be expected to live. She sought all forms of relief, including a residence order in respect of the twin children of the marriage, and all forms of ancillary relief, including a property adjustment order in relation to a string of properties in Greater London. By his answer, the husband put everything in issue: the marriage was denied; the court's jurisdiction was denied; and the conduct asserted in the petition was denied.

At a hearing in May 2003, a district judge in the Principal Registry ordered interim maintenance pending suit of £25,000 per month, to be divided as to £10,000 to the wife for her living expenses and £15,000 to her solicitors to cover their running costs of the proceedings. In December 2003, a judge of the Family Division heard evidence to the effect that interim disclosure applications by the wife had uncovered funds worth in the region of £7 million; in the light of this, and the mounting litigation costs, he increased the interim order from £25,000 to £39,000 per month, divided as to £14,000 to the wife and £25,000 to her solicitors. On 14 June 2004, the Court of Appeal effectively restored the overall liability set by the district judge but altered the allocation, namely £14,000 to the wife and £11,000 to her solicitors.

By this appeal, the husband raised a number of issues for consideration by the court: (1) he challenged the powers of the court to order maintenance pending suit under section 22 of the Matrimonial Causes Act 1973 where there was a preliminary issue as to the court's jurisdiction; (2) even if there were jurisdiction, no order should be made where the existence of the marriage was in issue; and (3) he challenged the foundation of the inclusion of legal costs in the quantification of the maintenance pending suit.

Held, dismissing the appeal, that the first ground was unsustainable, either as a matter of statutory interpretation or in the absence of any authority other than Ronalds v Ronalds (1875) LR 3 P & D 259; further, the second submission was unconvincing.

As to the third ground, the modern reality was that the highly specialist solicitors and counsel necessary for the conduct of big money cases no longer do publicly funded work. So, if the applicant had no assets, could give no security for borrowings, or could not guarantee an outcome that would enable her to enter into an acceptable arrangement, there would be no source of funding for the litigation other than the approach to the court for maintenance pending suit that would include a substantial element to fund the cost of the litigation. Obviously, in all these cases, the dominant safeguard against injustice was the discretion of the trial judge, and it would only be in cases that were demonstrated to be exceptional that the court would consider exercising the jurisdiction.

The court also observed that, in future, it was particularly important that the trial of any preliminary issue as to jurisdiction or forum should be prioritised so that, if it was preceded by a maintenance pending suit order, the duration of that order was kept to a minimum to ensure that the payer was not put at risk of having to advance irrecoverable and unmerited monies.

Read the full text of the judgment here