Great (and unrealistic) expectations: Re Z (Schedule 1: Legal Costs Funding Order; Interim Financial Provision)  EWFC 80
- This case concerned a mother’s (“M”) application for interim legal costs funding and interim financial provision in relation to her Schedule 1 and section 8 of the Children Act 1989 applications on her three week old child’s (“Zoe”) behalf.
- M was in her late 20s and was an interior designer by profession. The father (“F”) was in his late 40s, lived in the USA, and was extremely wealthy: he had net assets of $130m and a monthly income of $0.9m.
- The parties first met in early 2017, commencing a relationship in 2019 when M lived in New York. The relationship rapidly developed, with F asking M’s father for her hand in marriage in February 2020. The lifestyle of the parties “reflected the father’s remarkable wealth’ ().
- Around that time, M became pregnant. Unfortunately, the relationship deteriorated rapidly over the following weeks, with F subsequently taking issue with M’s extravagant spending.
- In July 2020, M moved back to the UK without giving any prior notice to F.
- After M moved back to the UK the parties entered discussions regarding a potential pre-nuptial agreement, with the apparent view that they would reconcile. The details before Cobb J were that F would provide M and Zoe a “property at $15,000pcm rent, an $120,000 annual tax free allowance, lease arrangement for a Range Rover car, and a nanny ($60,000p.a.)” (). F proposed also to lodge $200,000 with M’s lawyers as an upfront payment for her living costs in anticipation of returning to the USA. These discussions failed and no sums were paid.
- On 14 October 2020, F commenced proceedings in the USA seeking adjudications on paternity, custody, and child support. These proceedings were served on M on 5 November 2020.
- In October 2020, Zoe was born. M commenced proceedings in England the day after Zoe’s birth. The proceedings in the US were, consequently, stayed until mid-March (and F accepted that despite issuing these proceedings in the USA the English Court should have jurisdiction ().
- The issue in the case was the interim funding M sought for:
- Incurred legal costs, assessed at:
- for firms no longer actively instructed and/or situated in the USA: £71,219.
- in the UK with her current solicitors, Hunters: £86,434.
- Future legal costs assessed at:
- in relation to Schedule 1 proceedings, the sum of £94,878 up to the FDR.
- relation to section 8 CA 1989 issues, the sum of £94,806 up to any DRA.
- Costs of setting up a home for Zoe in London, assessed at £97,500.
- Interim maintenance of £31,396.
- Incurred legal costs, assessed at:
Incurred legal costs
- Cobb J noted the decision of Rubin v Rubin  EWHC 611 (Fam) where Mostyn J determined that an LSPO should not outflank the powers in CPR Part 44 in that interim payment for legal costs “should only be awarded to cover historic unpaid costs where the court is satisfied that without such a payment the applicant will not reasonably be able to obtain in the future appropriate legal services for the proceedings” (). He noted, however, that Rubin was not a decision dealing with legal costs funding in ongoing proceedings, but with historic costs which had arisen in two separate sets of proceedings ().
- Cobb J drew a distinction, citing himself in BC v DE  EWHC 1806 (Fam), between historic costs that had to be settled in order for a party to continue to have representation and truly ‘historic’ costs that were not within the current proceedings. The former could be the subject of an application for interim legal services funding, the latter could not ( – ).
- Applying this to the current case, Cobb J held that M’s legal costs not incurred by Hunters, her present solicitors in these proceedings, were historic costs as their non-payment would not jeopardise her current or future representation in these proceedings (). The costs incurred by Hunters, however, were a different category as they were M’s currently instructed solicitors and were also clearly reaching their tolerance for representing M without payment ().
- Accordingly, Cobb J awarded M only £60,504: the sum claimed of £86,434 for Hunters’ costs, less a 30% reduction for a notional standard assessment ().
Future legal costs
- Cobb J determined that M could not reasonably attain legal advice unless he made an order. He assessed the two heads of claim, the costs for the Schedule 1 claim and costs for the Section 8 proceedings, separately. He noted that F’s current and projected costs could be used as a “benchmark” in assessing M’s costs, and that they showed “costs incurred of c.£51,000 which is about 40% of the mother's costs at c.£128,000” ().
- With regard to the Schedule 1 claim, Cobb J held that M’s costs were excessive by contrast to F’s to date and awarded £65,000 (), taking into account any potential deduction ().
- With regard to the Section 8 proceedings, Cobb J noted that the claimed costs were unintelligible given that there was “no real indication of any significant dispute between the parties”. He awarded £25,000 to M (), taking into account any potential deduction ().
Costs of setting up a home
- Cobb J determined that M would require a sum to relocate to London with Zoe, and awarded a sum of £70,000 by way of set up costs plus a £15,000 rental deposit ( – )
- Cobb J considered the factors under para 4 of Schedule 1 to which he had to have regard, bearing in mind particularly “the extraordinary wealth of the father, and his luxurious standard of living, and the importance (and fairness) for Zoe in being raised by her mother in an environment which bears at least some relation to that” (). He noted that this was a “somewhat unusual case” in that Zoe had not become accustomed to any standard of living as she was only a few weeks old ().
- Cobb J determined that M’s claim had been “overvalued, and in some respects unrealistic” particularly in her claim for both a full time nanny and 21 hours of domestic cleaning per week, her property particulars, and demand for a high-performance car for grocery shopping ().
- Cobb J calculated his award on the basis that it should be “designed to achieve a good-to-luxurious lifestyle for Zoe (and therefore the mother) in London, where the mother wishes to live, with full time nanny support” ().
- On that basis, Cobb J awarded M: (i) £4,750 for rent (from Jan 2021); (ii) £9,612pcm for other expenses (from Jan 2021) (iii) £5,600 as allowance while she lived with her family in the north-east of England (Nov – Dec 2020); and (iv) 5,600pcm for a nanny (reduced to £4,000 from mid-February 2021) ().