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Lyustiger v Lyustiger [2006] EWCA Civ 1311

This is an application for permission to appeal an order in ancillary relief proceedings concerning payment of legal costs as part of maintenance pending suit. The application was dismissed.

In this case counsel for the husband argued that it is impermissable for the court to include a sum for costs and such awards are in excess of the jurisdiction conferred by s22 of the Matrimonial Causes Act 1973. This argument was given short shrift by Thorpe LJ in the light of recent cases such as Moses-Taiga v Taiga.


B4/2006/1191 & B4/2006/1192

Neutral Citation Number: [2006] EWCA Civ 1311





Royal Courts of Justice


London, WC2

Wednesday, 26th July 2006

B E F O R E:






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(DAR Transcript of

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MR M POINTER QC & MR G KINGSCOTE (instructed by Messrs Finers Stephens Innocent, London W1W 5LS) appeared on behalf of the Appellant.



(As Approved by the Court)

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1. LORD JUSTICE THORPE: Mr Martin Pointer QC renews an application for permission refused on paper by Wilson LJ on 23 June. The judge had before him a very full skeleton argument and explained his reasons for refusing permission very fully, and Mr Pointer has drawn attention to the notes at the foot of the order drawn, which emphasise the requirement of advocates imposed by paragraph 4.14(a) of the practice direction. Mr Pointer has, with commendable attention, researched the obligation and obeyed it by filing a brief supplemental skeleton in which he seeks to address the various points made by Wilson LJ in his written reasons. So, full marks to Mr Pointer for endeavour, but that endeavour does not disguise the fact that this is an absolutely hopeless application.

2. The parties to the legal proceedings in this jurisdiction are Russian immigrants. They met in 2001 and married in the United States in summer 2002. Their only child, a little girl, was born in September 2003. The marriage seems to have been of extremely brief duration. There seems to have been a separation achieved by early 2004, and certainly by February 2004 both wife and only child were in this jurisdiction. Shortly thereafter the husband seems to have issued divorce proceedings in Moscow. There is a suggestion that they were fraudulent proceedings and the attorney has been joined to the issue in this jurisdiction as to whether the Russian divorce should be recognised. The wife had responded by issuing a petition for disillusion in this jurisdiction on 12 August 2005.

3. The father initiated proceedings in relation to the child in this jurisdiction, by the issue of a wardship summons on the 21 October. The case came before Munby J on 3 November 2005, when he made a maintenance pending suit order in favour of the wife, which provided her with £2,500 for her general maintenance in the ensuing 28 days, but included the grander sum of £25,000 to enable her to meet her legal costs over the ensuing month. It seems that immediately thereafter and, speculatively, possibly in reaction, there was an application to the court by the mother, on the basis that the father had failed to return the little girl to this jurisdiction after a period of contact.

4. That led to the making of a peremptory order against the father for return, an order that he has subsequently chosen to ignore. So the case came back in front of Munby J on 6 December. By that date the husband was represented by his present solicitors and junior counsel. Again the judge made amendments to the pending suit order, £2,500 for the wife to carry her forward until January 2006, and the same sum for the month of January and another £25,000 to cover continuing legal costs: total bill, £30,000, to be paid within three days.

5. Mr Pointer has not been able to submit that the husband was not informed of his obligation to pay that money within very short order. So it follows that any challenge to that order had to be received by this court by 20 December, if it was not to breach the requirements of the rules. So, when the notice of application to this court in respect of both the November and the December orders is not filed until 26 May, it will immediately be seen that these applications for permission were some five and six months out of time respectively.

6. Such a cavalier disregard of the requirements of this court needs very strong explanation or mitigation. What has been offered in this instance is very far from strong; indeed, I think it is no injustice to characterise it as weak. So Mr Pointer is driven to say, well there is a big point of principle here. He says that the court's jurisdiction to include within a discretionary award of maintenance pending suit any sum in respect of lawyers' costs is impermissible and in excess of the jurisdiction conferred by section 22 of the Matrimonial Causes Act 1973.

7. That would have been a plainly arguable point, certainly in the Family Division until the decisions of Holman J in A v A [2001] 1 FLR 377 and the decision of Charles J in G v G [2003] 1 FLR 71. The point would equally have been arguable in this court at the stage when judgment was given in the case of Wermuth v Wermuth [2003] 1 FLR 1029, but by cautious steps this court has come to approve the decisions in the Family Division, tentatively in the cases of McFarlane v McFarlane [2004] 2 FLR 893 and Parlour v Parlour [2004] 2 FLR 893, but expressly in the cases of Moses-Taiga v Taiga [2005] EWCA Civ 1013.

8. Mr Pointer suggests that the decision of the court in Moses-Taiga is per incuriam and therefore he can re-open the debate. That submission ignores the limitations that have been placed on the doctrine of per incuriam, classically defined in Halsbury's Laws 16 para 1242. That authority states that a decision is given per incuriam where the court has acted in ignorance of a previous decision of its own, or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which to follow, or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision, or when the decision is given in ignorance of the terms of statute or rule having statutory force, or when in rare and exceptional cases it is satisfied that the earlier decision involved a manifest slip or error and there is no real prospect of a further appeal to the House of Lords.

9. The decision of this court in Moses-Taiga comes nowhere near any of those exceptions. This is a hopeless application on that jurisdictional argument. It is a hopeless application for an extension of time and, if that were not enough, if ever there was a case in which the parties should not be encouraged to extend the field of battle, it is this.

10. It is on those grounds that I characterise this renewed application as hopeless and one that should clearly be refused.

11. LORD JUSTICE WALL: I agree. I add simply that in my judgment the reasons given by Wilson LJ on paper are in my view compelling, and although Mr Pointer is to be commended for picking up the note on the form which requires them to be answered, the answers he has given this morning have come no where near persuading me that the application should be permitted. Like my Lord, Lord Justice Thorpe, therefore I would refuse it.

Order: Application refused.