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Financial Remedy Update, March 2022

Rose-Marie Drury and Sue Brookes, Principle Associates at Mills & Reeve LLP consider the most important news and case law relating to financial remedies and divorce during February 2022.














Rose-Marie Drury and Sue Brookes, Principle Associates at Mills & Reeve LLP

As usual this month's update is divided into two sections.

A. News

The Ministry of Justice has published an information pack and draft court forms before the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) comes into effect on 6 April 2022

The information pack outlines the reforms to divorce law introduced by the DDSA 2020. The pack also sets out important dates and deadlines in the lead-up to 6 April 2022 when a new paper and digital application process will operate for solicitors and litigants in person. The pack provides practical guidance about the new law and application process.

Important dates and deadlines:

• Proceedings issued on or before 5 April 2022 will continue to progress under the existing law, whether submitted digitally or on paper. These applications will not be impacted by the commencement of the DDSA 2020. Applications submitted under the existing law that are not issued by 6 April 2022 will be returned to the applicant, who will need to complete an application under the new law. To ensure applications under the existing law are issued in time:

• The court must receive all paper applications by 4.00 pm on 31 March 2022.

• All digital applications must be submitted online no later than 4.00 pm on 31 March 2022. The digital system will not allow applications to be submitted after this time and will not accept new applications until 10.00 am on 6 April 2022 under the new law.

• Urgent applications will continue to be accepted and issued where possible, if received by post or email, before 4.00 pm on 5 April 2022. If submitting an urgent application by email, practitioners should use the following address: onlineDFRjurisdiction@justice.gov.uk. This email address will be unmonitored after 4.00 pm on 5 April 2022.

• Applications should be completed as early as possible before the relevant deadline to ensure they are issued in time.

Family Procedure Rule Committee: publication of approved minutes of meeting on 6 December 2021

The agenda and approved minutes of the Family Procedure Rule Committee (FPRC) meeting on 6 December 2021 have been published. Points of interest include:

• Proposed new Practice Direction (PD) 3B will cover the prohibition on an abuser cross-examining a victim of domestic abuse in person in family proceedings (section 65, Domestic Abuse Act 2021). The MoJ will launch a consultation on the new measures and the proposals for statutory guidance to accompany the proposed measures.

• The International Family Working Group (IFWG) is working on implementing the judgment in Re G (A Child) [2021] UKSC 9 via Practice Guidance on Case Management in International Child Abduction Cases. The IFWG recommended that PD 12F should be amended to insert a reference to the Practice Guidance once it has been finalised.

• The Enforcement Working Group proposed a new standard directions order for general enforcement applications to be piloted for a year from the end of May 2022. The FPRC agreed this could take place subject to fine tuning of the order.

• Work is underway on an online portal for adoption applications. The service should be live from early 2022, initially for placement order applications with other types of applications being added over time.

• A working group has been established to consider the judgment in H v R [2021] EWHC 1943 (Fam)

• The Committee discussed the relationship between guidance notes and the FPR, and in particular linking content on the FPR online with the President's guidance and how best to progress this.

A new version of Form D81: statement of information for a consent order in relation to a financial remedy was issued on 3 February 2022.

A new version of Form D81: statement of information for a consent order in relation to a financial remedy, was issued on 3 February 2022 for immediate use. The old version of the form will continue to be accepted where signed no later than 18 February 2022.

New Financial Remedies Court efficiency statement issued

The Financial Remedies Court national lead judge, Mostyn J, and the deputy national lead judge, HHJ Hess, issued a new statement on the efficient conduct of financial remedy hearings proceeding in the Financial Remedies Court below High Court judge level, following recommendations by the Farquhar Committee. The statement is in addition to that issued in 2016 for High Court judge level cases. Templates for a composite case summary and schedule of assets and income, a document setting out the primary principles of the Financial Remedies Court (previously titled the Good Practice Protocol and now substantially abridged) and a revised lead judge job description have also been issued.

Advisory notice on correct use of Composite Asset Schedule ES2 in financial remedy proceedings

The Financial Remedies Court (FRC) has endorsed an advisory notice prepared by the FLBA on the correct use of the ES2 (Composite Asset Schedule) in financial remedy proceedings.  The note clarifies that the parties do not need to agree the values for assets, liabilities and incomes in the ES2. The column for assets and liabilities held by each party (or held jointly) is divided in half, so each party can set out the values they ascribe. Each party must set out their "side" of all three columns. Both sides of the columns should be completed, even where the values are agreed. Other points:

• Where the figures for an item are different (save for values less than £50 apart), the parties must highlight the competing values in yellow. Different sub-totals do not need to be highlighted.

• Liabilities or overdrawn bank accounts should be entered as negative numbers. All numbers should be recorded in sterling, even if the parties cannot agree the exchange rate.

• The parties can add calculation boxes to calculate total combined resources, if they consider this helpful. Those calculations should show the combined total of the values asserted by each party.

• Where there is a dispute about whether an asset exists, or whether it should be included, it should be recorded. The party disputing its inclusion should leave a blank cell for the asset's value and the competing adjacent cells must be highlighted in yellow to highlight the dispute.

• Where it is asserted that one or both of the parties has a beneficial interest in an asset legally owned by a third party, that asset must be recorded. The party denying the beneficial interest should leave the value cells blank, with the adjacent cells highlighted yellow to highlight the dispute.

• For joint assets, the entire asset must be recorded in the "joint" column. The asserted beneficial interests in joint assets must not be recorded and apportioning the value across the parties' columns is not acceptable.

• It is best practice for the ES2 to travel between the parties or their solicitors when any updating disclosure is served, so the ES2 can be updated before any court hearings.

Review of standard family orders announced

On 18 January 2022, Mostyn J announced a review of the standard family orders. He has invited practitioners, judges and other interested parties to provide comments on any relevant matters by 28 February 2022.  Mostyn J intends to issue updated volumes of the financial remedy and children SFOs by summer 2022. HHJ Edward Hess will lead the review of the financial remedy SFOs and HHJ Kambiz Moradifar will lead the review of the children SFOs.

First hearings in the Family Division at the Royal Courts of Justice to be in-person

The President of the Family Division, Sir Andrew McFarlane, has announced via family lawyer organisations that where an application is issued in the Family Division after 1 March 2022, first hearings at the Royal Courts of Justice will be attended hearings as opposed to remote. The court will consider any individual requests made in an individual case for any change in the format of the hearing, having regard to the interests of justice.

Fifth sub-group of the Family Transparency Implementation Group (TIG) announced

The President has announced that the Financial Remedies Court Transparency Group, will become the fifth sub-group of the TIG. The group will be chaired by HHJ Stuart Farquhar and will report to the main TIG. Full terms of reference and membership will be announced in due course. The scope of this sub-group will look beyond the previously conducted consultation, and it is anticipated that further consultations will be undertaken. This is in addition to the existing four TIG sub-groups which were announced by the President in January 2022.

New secular laws come into force in Abu Dhabi

In a bid to make the United Arab Emirates more attractive to outsiders to live and work, new secular laws have been introduced in Abu Dhabi. The legal reforms affect both arrangements for children, divorce, and finance laws. There is now permission for personal status procedures such as divorces, inheritance, and marriage to take place for the first time in the country outside of the religious codes.

B. Cases

Collardeau-Fuchs v Fuchs [2022] EWFC 6

H was 62 and W was 46. The parties had begun cohabiting in 2008/2010, married in 2012 and separated in 2020. There were two children of the family ages 3 and 6. During the marriage the parties enjoyed an extremely high standard of living with properties around the world, a significant number of staff and they spent time travelling often by private plane or first-class staying in high-end accommodation at a significant cost.

Prior to the parties' marriage they entered into a Pre-Nuptial Agreement (PNA) in New York. H's net worth was said to be $1.064 billion and W's $4.471 million. Following their marriage, they executed a Modification Agreement (MA) in New York 2014 which increased the financial provision made to W pursuant to the PNA.

H sought for W to be held to the terms of the PNA and MA and issued Form A and an application for notice to show cause. He accepted that pending the determination of whether those agreements should be upheld he would need to provide interim financial support to W. 

H provided financial disclosure by way of a schedule of assets showing his net assets were c. £1.245 billion. His schedule of expenditure for the family was £4.775 million for the year 2019 and £5.965 million for the year 2020. He calculated that the W would receive £23.5 million under the PNA and MA as well as the benefit of living at the parties' West London property for 18 years rent-free. W's core objection to being held to the agreements was that it would not permit her to remain living at the parties' West London property until the youngest child of the family was age 21 as she would be unable to fund the costs of living of that property whereas the PNA and MA had been based upon her being to live there.

W applied for MPS seeking the sum of £350,000 pcm on the basis she would take over responsibility for paying overheads of the various homes and staff salaries. The sum sought by W included £130,000 for her discretionary expenditure which was calculated approximately 60% of the parties' expenditure in 2020 plus a sum for the children. 

H's open offer was to pay W £31,000 pcm together with agreed overheads, school fees/nursery extras and W's legal fees. 

The matter came before Mostyn J for determination of W's MPS application.

Mostyn J found that given the marriage had been in difficulty by the end of 2019 and the parties' had separated in March 2020 the appropriate year to determine the marital standard of living was 2019 as the higher figure for 2020 did not represent the marital standard of living. Mostyn J took the headline figure supplied by H of £900,697 of global annual living costs without making deductions for items such as insurance, charity donations and furniture as H had failed to particularise those sums. He deducted H's payments to his dependants which left £441,558. He considered it fair to attribute 50% to each party. Added to that was discretionary expenditure which again he attributed 50% to each party and expenditure on the children attributed to W. The total figure for W's expenditure was £380,622 per annum or £31,719 pcm.

Dealing with holiday H had supplied a schedule of travel and holidays incurred by W and the children totalling £475,000 in 2019 (or £39,583 pcm). Mostyn J considered it fair to give W the same sum to meet her holidays on an interim basis. He therefore awarded W MPS including child maintenance in the sum of £71,300 pcm in addition to the costs which H had undertook to meet directly.

P v Q [2022] EWFC B9

W was age 48. H was age 45. The parties had cohabited since 2005 and married in 2006. There were two children of the family age 11 and 10. The parties lived in London as a family before moving to Germany in 2016. In 2016 they also set up and developed an energy business of their own based in Germany which was later sold to Y Ltd in which both parties held shares. In 2019 the parties' separated and W issued financial proceedings in 2020.

The matter came before HHJ Hess at a final hearing. 

Amongst the issues in dispute between the parties at the final hearing was whether or not sums provided to the parties by their respective parents were hard or soft debts.

In 2004 W had received €30,000 from her father to fund an MBA. A contemporaneous document recorded it was an interest free loan and a date for repayment was not set. W was to repay the loan back at her own discretion. No demand was made for repayment and the liability did not appear in W's Form E or her narrative statement.

In 2010 during the course of the marriage H's mother had advanced £150,000 to each of her children to assist them with their respective housing costs. No documentation was drawn up contemporaneously or later to record the terms of the advance. In June 2020 after separation H paid his mother the sum of £150,000 and asserted it was in repayment of the loan.

HHJ Hess found both sums were soft debts. He did not include W's loan from her father on the balance sheet and attributed back the £150,000 paid to H's mother to H's side of the balance sheet. Having reviewed the relevant authorities he derived the following principles to deal with the status of loans:

1) Once a judge has decided a contractually binding obligation to a third party exists the court may consider whether the obligation is hard or soft. If it is a soft obligation the judge may decide as an exercise of discretion to leave it out of the schedule of assets.

2) There are a wide variety of circumstances which cause an obligation or loan to be classified as hard or soft.

3) A common feature is that the analysis targets whether or not it is likely that the obligation will be enforced.

4) Features which fall for consideration include:

Hard obligations: i) obligations to a finance company, ii) terms of the obligation have the feel of a normal commercial arrangement, iii) the obligation arises out of a written agreement, iv) there is a written demands for payment/threat of litigation/actual litigation or intervention in financial remedy proceedings, v) there has not been a delay in enforcing the obligation, vi) the amount of money is such it would be less likely for a creditor to waive the obligation in full or part.

Soft obligations: i) the obligation is to a friend or family member with whom the debtor remains on good terms and is unlikely to want the debtor to suffer hardship, ii) the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangements, iii) there has been no written demand for payment despite the due date having passed, iv) there has been a delay in enforcing the obligation, v) the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or in part – albeit the amount is not necessarily decisive.

5) It Is for a judge to determine looking at all the factors what appropriate determination to make.

Having found that the parties net assets comprised of c. £871,000 in the family home in London, £2.337m in the Wife's sole name (including her shares in Y Ltd), £2.402m in H's sole name and pensions (of which the majority was in H's sole name) HHJ ordered that a division of the assets which broadly achieved equality as follows:

1) The family home in London be transferred to W. W would commit to obtain the release of H's name from the joint mortgage within the next two years failing which the property would be sold and W would retain the net proceeds of sale.

2) H would use his best endeavours to take over the rental property in Germany and W would transfer the rights in the deposit to him.

3) W to transfer 20,000 of her shares in Y Ltd to H. This left W with 117,610 shares. 

4) 50% pensions sharing order of H's spension.

5) An immediate clean break.

Although H was left with a significant number of shares in Y Ltd which were not readily tradeable and could only be sold during a specific liquidity event HHJ Hess considered that a departure from equality was not justified to take into account risk and illiquidity. In particular he noted that W was also heavily reliant on the share price of Y Ltd, H had deliberately chosen not to seek a sale and equal division of the net proceeds of sale of the family home in London, H took an optimistic view of the future of Y Ltd which, as CEO of the UK arm, he was in a position to make a better estimate than most. Y Ltd had enjoyed substantial foreign investment which was presumably inspired by an optimistic assessment of the future and a transfer of shares from W to H would trigger an immediate tax liability for W whilst some of H's tax liability would remain latent.

CW v CH [2022] EWFC B1

H was a Nigerian national. W was a Nigerian national and also held US citizenship. The parties married in 1994 in Nigeria. There were two children of the marriage X (age 26) who lived in the USA and Y (age 13) who had attended boarding school in England since 2019.

The parties' separated in 2014 when W and the children moved out of the FMH in Nigeria into rented accommodation. W issued divorce proceedings in Nigeria in October 2016 which she subsequently withdrew in January 2017. in September 2018 the parties signed a deed of separation. W then issued a second divorce petition in Nigeria in February 2019. In September 2019 the terms of the parties' deed of separation were incorporated into a financial order and decree absolute was granted in December 2019.

In October 2020 W moved to England into a property which H owned in his sole name. In December 2020 W issued an application under the Matrimonial Family Proceedings Act (MFPA) 1984 Part III seeking leave to pursue an application for financial relief following a foreign divorce. W was granted leave on an ex parte basis. In August 2021 H's application as to whether W's Part III application had been validly issued prior to 31 December 2020 was heard. HHJ Hughes QC determined it had been and permitted W's Part III application to proceed.

W issued applications for interim periodical payments seeking £9,755 pcm and a costs allowance for legal fees of £196,270 which included £111,910 of costs incurred but unpaid.

H contested the court's jurisdiction to deal with the interim applications arguing W had not passed the threshold for leave and that her application was devoid of merit and so  no substantive relief should be granted. W argued that H could not challenge the grant of leave as he had not applied for a set aside and the court should not consider the merits of her substantive application when dealing with an interim application.

Recorder Allen QC found that although the first order granting W leave in December 2020 was expressed to be made in the 'distinctive circumstances' of the imminent change in jurisdictional requirements leave had been granted. The question of whether leave was granted or not was binary. Whilst W sought to argue it was relevant H had not applied to set aside the leave the court could not draw an inference from this.  

Recorder Allen QC went onto express the interim view there was some basis to suggest the court may ultimately conclude that i) W's application was the kind which was not the purpose for which Part III was enacted given the limited English connections , W's right to apply for financial relief under foreign law and the award in the foreign country, ii) in the event that W wished to challenge the Nigerian order on Edgar grounds she should apply to set aside the order in Nigeria and iii) W should apply for any increase in maintenance in Nigeria. However, those interim views, on which no specific findings were made, did not prevent the court from exercising its powers to make an interim order. The correct approach was to judge W's applications with a degree of caution.

Recorder Allen QC ordered H to pay £5,300 pcm in interim maintenance backdated to October 2021. He balanced H's ability to meet the figures sought, the very high standard of living enjoyed during the marriage, the fact that the expenditure was almost all discretionary items and his concerns about the overall merits of W's application to reduce the figures that were disputed by H by 50%.

On the basis he was satisfied that W had a need she could not meet form her own resources, she was not reasonably able to obtain a loan and a Sears Tooth arrangement was not feasible he ordered H to pay £84,000 for her future costs and refused a claim to discharge her incurred but unpaid costs. W's costs to the first inter partes hearing totalled £240,971 which were disproportionate. He found W had chosen to incur the costs when there was some doubt as to the merits of her claim and her solicitors had assumed this risk. There was no evidence to say W's solicitors would down tools. Her solicitors had been paid £170,000 of the costs to date and at this stage her unpaid costs where not a liability that H should be required to meet.

Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2022] EWFC B7 (26 January 2022)

The wife (W) applied to set aside a decree absolute granted in April 2010 on the alleged grounds that:

• she had not been given any notice of the proceedings;

• she had not signed the acknowledgement of service which had allowed the suit to proceed undefended; and

• the signature on the acknowledgement of service, which purported to be hers, was a forgery.

The husband (H) had subsequently remarried in 2011 and he and his new wife had a child who had been born in September 2010.

W accepted that she and H were separated, and that she had heard rumours of H being involved with another woman, but she claimed they had remained very much married and they attended family functions as husband and wife. She had then petitioned for judicial separation in December 2019.

It was agreed that, if the judge found serious procedural irregularities in the petition for divorce and the process that was followed, in particular lack of service, the divorce must be set aside. However, H denied W's allegations and argued that W knew about his new relationship and that they had kept their divorce secret for cultural reasons and to protect the children they had together.

His Honour Judge Moradifar noted that, in family cases, the person alleging the disputed fact must prove it on the balance of probabilities. He also noted specifically that the Lucas direction in criminal proceedings applies equally to family cases and a judge should not rely on a conclusion that an individual has lied on a material issue as proof of guilt. As per McFarlane LJ in Re H-C (Children) [2016] EWCA Civ 136, if there is clear evidence one way or another, there will be no need to address a witness's credibility. Where the tribunal looks to find support for their own view, it must caution itself against relying too much on a finding of a propensity to dishonesty and, equally, a propensity to honesty will not always equate with a witness's reliability on a particular issue.

A forensic document examiner concluded there was very strong evidence that the signature had not been written by W, but there was no clear evidence that H had forged her signature.

The judge heard evidence in relation to the breakdown of their relationship, W's knowledge of H's remarriage and various property transactions in respect of which there were also significant disputes from both parties and their adult children. Evidence was also given by Mr Aqbal Lall a practising solicitor who had been involved in advising W on a property transaction, W's brother in law who had been married to W's late sister, a mortgage advisor  and a financial planning consultant. The evidence highlighted some very concerning conduct on behalf of both parties.

The judge concluded that H was a man who would take any necessary steps to achieve his ends and, where any steps fell foul of the law or morality, he would deny any misconduct unless left without any option but to admit it.

The judge also concluded that W's evidence was very worrying and at times she had seriously lacked a legal and moral compass, including her involvement in the marriage between her own brother and sister. The judge had to weigh this into the balance when considering her evidence. It was clear both parties had little regard for the law.

The judge concluded with reference to the totality of evidence before him that the signature on the acknowledgement of service was forged by or on behalf of H and that W had no notice of the divorce proceedings. The decree absolute was therefore set aside.

Bailey v Bailey (Committal) [2022] EWFC 5 (Mr Justice Peel) 4 February 2022

Peel J had to consider the committal application by the wife (W) against the husband (H) for alleged breaches of a financial remedy order made in April 2021 and a passport order made in May 2021.

W had also brought a committal application against the second and third respondents for alleged breaches of the financial remedy order.

W was represented on a pro-bono basis. H was represented with public funding, as was his statutory right, but H was not in attendance at the hearing, despite having been ordered to attend, and was understood to be in Portugal.

The second and third respondents were not represented and did not attend. Peel J considered if he should proceed with a committal application in their absence and concluded he should because they had been given ample notice of the hearing and they had chosen not to participate. They had not sought an adjournment or given any reason for not engaging in the proceedings. Weighing the gravity of the applications, the judge was comfortably satisfied that it was fair and just to proceed in their absence.

It was argued on behalf of H that, as per Hollington v Hewthorn [1943] KB 587, the original judgment was not admissible within this application because findings of fact made by earlier tribunals constitute opinion evidence and findings made to the civil standard in family proceedings cannot carry probative value when determining a contempt application to the criminal standard.

The judge had already read the original judgment before this issue had been raised. However, considering the relevant case law, he concluded that the argument was not well-founded.  How else could the court make sense of the original order? Such an approach would have implications for both enforcement and variation applications, which cannot be right, and there is no clear authority for such an argument.  Hollington v Hewthorn is therefore not authority to prevent the judgment in earlier proceedings between the same parties being admitted in evidence for the purpose of a contempt application arising out of the earlier judgment. Both the evidence given and the judgement in the earlier proceedings are admissible in subsequent and related criminal proceedings between the same parties. It will be a matter for the judge conducting the committal proceedings to determine what weight to attach to it. In this case Peel J would take into account the original judgment.

The onus of proof remained with W and the criminal standard of proof applied. There is no burden on the defendant. W must prove a deliberate disobedience to the order and the accused must have known the terms of the order and have acted or failed to act in breach of the order, knowing the facts which made the conduct a breach. It is not enough to suspect recalcitrance. If committed, the contemnor can apply to purge the contempt.

H argued that he had not been served with the passport order. The judge heard from one of the police officers who had served it and the Tipstaff. He noted that H had declined not to be cross-examined, which was his right but which had a knock-on effect on H's written evidence and that it enabled the judge to draw adverse inferences from his silence. Peel J accepted the evidence of the police officer and the Tipstaff unreservedly and concluded the order had been properly served.

Peel J was satisfied to the criminal standard that H had breached some but not all of the original order and that he had breached some but not all of the passport order. He was also satisfied to the criminal standard that the second and third respondents had breached their obligations under the original order.

Peel J then gave H and his lawyers some time to file mitigation, which had been submitted to him. Peel J considered those arguments but concluded that a 12 month custodial sentence for H was justified, subject to any application by H to purge his contempt. H also order 4 months imprisonment for the second and third respondent suspended for 28 days to give them the opportunity to remedy the breaches.

Loggie v Loggie [2022] EWFC 2 (Mostyn J) 27 January 2022

Mostyn J considered an application by the wife (W) on D11 that the husband (H) indemnify her for the sum of £65,603.65 owed to her former solicitors.

The parties were in their ninth year of litigation. Back in 2014, Mostyn J had given permission for an SJE accountant to value H's business, with the costs being split equally between the parties. The order did not limit the level of fees to be incurred by the SJE.

The SJE had initially quoted £60,000 plus VAT prior to starting the work, but the eventual costs were substantially higher.

In 2016, Mostyn J ordered that the SJE's fees be suspended until the conclusion of W's application for financial remedies.

The final order, made in 2017, provided for several properties to be sold and that any unpaid SJE fees plus interest should be paid from the proceeds of sale.

The properties had been sold but the fees had not been cleared.

W had applied to enforce the order and the enforcement application was compromised by written agreement between the parties, followed by a further variation order made by Mostyn in March 2019.

The total invoices raised by the SJE were £212,407.20. Out of those fees, H said he had paid approximately £147,000 and the balance remained outstanding until W's solicitors cleared the bill on W's behalf in August 2021. W's solicitors wanted to be paid by W, which had led W to make the application. W accepted that she had the funds to pay the solicitors herself, if she was required to do so.

Mostyn J was satisfied that he could order the indemnity for the reasons he gave in CH v EWH (Power to Order Indemnity) [2018] 1 FLR 495.

The written agreement reached in March 2019 had included provision for H to pay the outstanding sum due to the accountant and to fully indemnify W against it.  The subsequent variation order made by Mostyn J did not include such a provision but Mostyn J now considered that to be an oversight by himself. There was no good reason why he should not make the order sought by W to give effect to that agreed provision. He was effectively correcting the March 2019 order under the Slip Rule.

H would need to identify a cogent reason why he should not be held to the terms of the March 2019 agreement and he had failed to provide one. Vague assertions about the pandemic were not enough. H was therefore ordered to pay the requested sum directly to W, with the expectation that she would then repay her solicitors. H would also be responsible for any further interest sought by the SJE.

Mostyn J adds that the moral of this unhappy tale is that parties must ask the court to place a cap on the expert's costs prior to their instruction, pursuant to FPR 25(12)(5). If circumstances change, it will then be open to the expert to apply for the order imposing the ap to be varied under FPR r4.1(6).

Finally, W had also referred in her statement to a wish for a further variation of the March 2019 order, but the judge refused to consider that without an application on Form A and the requisite issuing fee.


07.03.2022