CC v UU

I shall refer to the parties as Husband and Wife, although they are now divorced.

This case throws up a number of technical and procedural conundrums. I am grateful to counsel for their assistance.

One of the issues before me is the jurisdictional basis to make an application for a legal services payment order (“LSPO”).

It is worth recalling that there are two ways in which a party may apply for a LSPO.

First, pursuant to s22ZA of the Matrimonial Causes Act 1973 (introduced by  the Legal Aid, Sentencing and Punishment of Offenders Act 2012) which provides that:

This is a specific statutory provision which is available to parties upon divorce. There are corresponding provisions under s38A of Schedule 5 of the Civil Partnership Act 2004

Second, pursuant to common law, that is to say as part of a general periodical payments order in proceedings where the statutory route is not available because the parties were not married or in a civil partnership. These are most commonly applications for a LSPO under Schedule 1 of the Children Act 1989, under the Inheritance (Provision for Family and Dependants) Act 1975 and under Part III of the Matrimonial and Family Proceedings Act 1984.

It is relevant also to recall that s22ZA was introduced in order to place on a statutory footing what had previously been a common law jurisdiction developed by judicial authority under the MCA 1973. The origins of the jurisprudence can be found in the seminal decision of Holman J in A v A (Maintenance Pending Suit: Provisions for Legal Fees) [2001] 1 FLR 377, as developed by the Court of Appeal inMoses-Taiga v Taiga [2005] EWCA Civ 1013and Currey v Currey (No 2) [2006] EWCA Civ 1338. In the latter case Wilson LJ (as he then was) at paragraph 15 expressed his admiration for the judgment of Homan J in A v A.

On 5 June 2025, the Wife applied to the Court of Appeal for a legal services payment order (“LSPO”) pursuant to s22ZA of the Matrimonial Causes Act 1973 in the total sum of £50,000. Her application says that “The Court of Appeal is currently considering permission to appeal against the discharge of the freezing injunction which was imposed by Mr Justice Hayden on 16 May 2025. The Appellant seeks legal assistance to appeal against the respondent’s request to discharge the freezing injunction after dissipation of assets”. The Wife was informed by the Court of Appeal office that she should apply for the LSPO to the court at High Court level. The application bears a Court of Appeal number which I will substitute with the number for financial remedies proceedings in the family court at Newport.

On 26 June 2025, the Wife sent to the Royal Courts of Justice an as yet unissued application to set aside the final order in financial remedy proceedings made by District Judge Barry in the Newport Family Court on 11 December 2023. The application incorrectly bears a Court of Appeal number.

Counsel for the Wife confirmed to me during the hearing that the said sum of £50,000 is in fact not the sum sought to pursue the Court of Appeal proceedings, but in respect of the set aside application dated 26 June 2025. She invites me to adjourn the LSPO application in respect of the Court of Appeal to await the outcome of the permission to appeal application at which time it can be reconsidered if permission to appeal is granted. She invites me to make a LSPO order of £50,000 in respect of the set aside application.

Counsel for the Husband opposes the making of any LSPO order. He challenges the jurisdiction of the court to make such an order, and in any event submits that the LSPO applications are without merit.

In summary, the Wife seeks:

Separately from the applications before me there are two sets of appeal proceedings:

The Wife is 59 years old, and the Husband 70. The parties married in 1999 and have two children over 18. The Husband is a hospital consultant. The Wife is a nurse, although I understand she is not currently working. There is a dispute about the extent of pre-marriage cohabitation and the date of separation. The Husband says that the relevant period for financial remedies purposes was 6 years, whereas the Wife says 18 years. The divorce petition was issued in November 2015 and the Form A in 2017. Decree Nisi was pronounced on 3 August 2017. Decree Absolute was pronounced on 8 December 2023.

Contested financial remedy proceedings took place in Newport Family Court before DJ Barry, and a final order was made by DJ Barry on 11 December 2023. There is a transcript of the hearing but not, curiously, of the judgment; however, the Husband’s solicitors prepared a note of the judgment. The Wife, as I understand it, attended the court building but left before the hearing started. An application had been made by her for an adjournment which the judge refused. The judge proceeded in her absence. The judge heard evidence from the Husband. The judge was told that the former matrimonial home was worth about £800,000 and was mortgage free. The judge was told that the Husband’s pension provision was about £516,000, and that although a pensions expert report had been provided for at a previous hearing, it had not in fact been obtained because the Wife had not cooperated in providing her own pension information. The judge heard from the Husband about the length of cohabitation/marriage and various allegations of non-disclosure and dissipation of assets made against him by the Wife. The judge accepted what he was told by the Husband, albeit of course he had not been cross examined on behalf of the Wife.

The judge provided for sale of the FMH, equal division of proceeds, and a clean break. He did not make an order in respect of the Husband’s pension, largely, I am told, because only a relatively modest proportion was built up during what the judge accepted was a 6 year period of marriage. An order for costs was made against the Wife.

I am told that the FMH has not in fact been sold. The Wife continues to live there; the Husband has long since moved out.

It is apparent that the Wife is highly aggrieved by the order made, and has continued to be so ever since. She continues to believe that the Husband has throughout the proceedings concealed, and/or transferred out of the jurisdiction and/or dissipated, significant sums of money.

On 18 December 2023, the Wife appealed against the refusal of DJ Barry to adjourn the final hearing. Permission to appeal was refused by HHJ Parry at an oral hearing on 5 June 2024.

On a date which is not clear, the Wife applied to set aside the order dated 11 December 2023. DJ Barry refused the said application on 11 April 2024. The Wife says that she and her solicitor had insufficient notice of the hearing date, but the judge refused the adjournment application. An application for permission to appeal the order of 11 April 2024 was refused on paper on 18 June 2024 (I believe, by HHJ Parry, although I have not seen the order).

It seems that the Wife then applied on 21 October 2024 to the King’s Bench Division for a freezing injunction, although as far as I can tell there were no proceedings in existence. It is unclear what legal basis for the application was asserted.

On 11 November 2024, Freedman J, sitting in the interim applications court, adjourned the application for a freezing order to 14 November 2024 and gave directions.

On 14 November 2024, HHJ Glen, sitting as a judge of the High Court, recorded in a recital that the application “is said to be made in aid of a pending or intended application under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and FPR 9.9A to vary or set aside an order made by the Family Court at Newport Gwent in Claim No: NT16D03049”. The judge ordered that the application (which I take to be the application for a freezing order) be transferred to the family court at Newport.

I have made an inquiry of the Newport family court, and there appears in fact to have been no set aside application issued other than the one to which I have referred and which had been dismissed on 11 April 2024.

On 24 April 2025, HHJ Parry refused a without notice application by the wife for a freezing order (“the substantive freezing order”). This seems to have been the application originally made to the King’s Bench Division and was not in aid of any issued legal claim or application. It was a free standing application with no obvious (so far as I can tell) substantive legal remedy sought.

The Wife appealed that order. The appeal lies to the Family Division of the High Court. As indicated above, the application for permission to appeal has not yet been considered on paper by a High Court judge.

The Wife then made an application for a freezing order to the Family Division. On 16 May 2025, Hayden J, sitting in the Urgent Applications list, made, on a without notice basis, an order that the Husband preserve his NHS pension and specified Barclays account. This was, as I understand it, an interim freezing order (“the interim freezing order”) pending determination of the appeal against refusal by HHJ Parry.

The judge listed a further hearing before Williams J on 19 May 2025, who discharged the interim freezing order.

The Wife on 27 May 2025 filed with the Court of Appeal an appeal against the order of Williams J dated 19 May 2025. She has lodged with the Court of Appeal a Notice of Appeal, Grounds of Appeal and skeleton argument. She will incur no further costs pending determination of the application for permission to appeal.

The Wife then made her LSPO application on 5 June 2025 in order to be able to pursue her appeal to the Court of Appeal.

The application was referred to me on paper. Through my clerk, I emailed the Wife on 19 June 2025 indicating that the LSPO application should be adjourned until after determination by the Court of Appeal of the application for permission to appeal the order of Williams J, it appearing to me that:

The Wife responded to the said email the same day rejecting the said indication, and requesting an oral hearing of her application.

On 20 June 2025, I made an order for the matter to be listed. As it turned out, the hearing was fixed before me on 30 June 2025. I included in my order a recital as follows: “Upon this court being unclear (but having heard no oral argument) as to the jurisdictional basis for a LSPO in circumstances where the original financial remedy proceedings have concluded”.

On 26 June 2025, the wife sent an application to the Royal Courts of Justice seeking to set aside the order of DJ Barry made on 11 December 2023. The Husband says that the matters raised by the Wife are identical to those placed before the court in the set aside application which was dismissed on 11 April 2024. The Wife disputes this presentation. Unless the Wife is able to produce compelling new material, which has not previously been advanced, I cannot see how such an application will get off the ground. Recent High Court authority suggests that the court does not have the power to strike out a set aside application under FPR 2010 rule 4.4 (M v B [2025] EWFC 182 following Roocroft v Ball [2016] EWCA Civ 1009). Those cases, however, concerned the first set aside application. The Wife’s application dated 26 June 2025 is (or will be when issued) her second application and if it is essentially a repeat of the previous application, which was determined against her, it seems to me that the court may well have the power to strike out as an abuse of the process under FPR 2010 4.4(1)(b). In principle, a party should not be permitted to run the same case multiple times over.

I reject the Wife’s suggestion that her set aside application should be heard outside Wales, and specifically in the Central Family Court. FPR 2010 PD 9A 13.3 expressly provides that a set aside application “is to be made to the court that made the order”. It is clearly appropriate that it is heard in the local family court which is very familiar with the case and there is, in my view, no justification for transferring it elsewhere.

In my judgment, the Wife must first establish that the court has power to make a LSPO. By s22ZA(2) of the Matrimonial Causes Act 1973 the court may make a LSPO “…in proceedings under this Part for financial relief in connection with proceedings for divorce, nullity of marriage or judicial separation”. The words “Financial relief” are not specifically interpreted in the Act or elsewhere, but appear in the heading to Part II of the Act and therefore, in my judgment, encompass all proceedings in Part II, including applications for financial provision and property adjustment orders, pension orders, and variation. The words “financial order” and financial remedy” are specifically interpreted at FPR 2020 r.3. For these purposes I shall treat “financial relief and “financial remedies” as interchangeable.

In this case, the financial remedy proceedings concluded in December 2023, a year and a half ago, and the order made by DJ Barry was undisturbed on appeal. The order was for a clean break. The divorce proceedings have concluded with Decree Absolute.

The starting point, in my judgment, is that a party to divorce proceedings may apply for a LSPO under s22ZA unless and until he or she is prohibited from doing so by the imposition of a clean break. If a final order has been made, claims have been dismissed, and the proceedings have ended, in my judgment it cannot be that a party may thereafter invoke s22ZA for an ancillary purpose such as to pursue an appeal, or to seek enforcement, or to set aside.

Whether in fact all claims have been dismissed depends on the construction of the order. If the order provides for a clean break except as provided for in the order, then no s22ZA claim can thereafter be made. If, however, it provides (as is sometimes the case) that the clean break takes effect upon implementation of the order then a s22ZA claim can be made up and until the point of implementation because it is only at that point that the claims are dismissed and there are no proceedings in which a LSPO can be made.

In this case, the former wording is contained in the order. A clean break therefore took effect on 8 December 2023. It seems to me that thereafter the Wife was not entitled to make a s22ZA application.

In most cases, this issue will not arise. Usually an order will be implemented in whole or in part such that each party has at least some resources to pursue legal proceedings rather than needing to contemplate a s22ZA application. Where an appeal is launched, and the original order is stayed pending appeal, then the power to make a s22ZA order is retained unless and until the stay is lifted. Sometimes there will be an ongoing periodical payments order. But where unquestionably a final order has been made, and a clean break has taken effect, then in my judgment no s22ZA application can be made.

The Wife refers me to Ahmad and & v Faraj [2025] EWCA Civ 468. The first instance judge (Sir Jonathan Cohen) had made a final financial remedies order. Both parties appealed. Permission to appeal was granted by the Court of Appeal. The judge thereafter made a LSPO order in favour of the wife to enable her to be represented in the appeal to the Court of Appeal. The husband appealed against the LSPO order. One of his grounds of appeal was that the court had no jurisdiction to make a LSPO order after proceedings had concluded. The Court of Appeal refused permission to appeal on that ground, although it allowed permission to appeal on another ground. The judgment does not record how the jurisdictional argument was put on the papers. It does, however, make clear that at paragraph 5 that an order for spousal periodical payments was made by the judge. In those circumstances, the wife’s claims had not been dismissed and it is therefore easy to see why the jurisdiction was established.

In Xanthopoulos v Rakshina [2023] EWFC 158 I made a LSPO order in favour of the appellant to enable him to have legal representation in his appeal before the Court of Appeal. He had been granted permission to appeal on paper by the Court of Appeal and a final appeal hearing had been listed. I touched briefly on my jurisdiction to make a LSPO at para 10 of my judgment where I said (having heard no argument on the point):

“It seems to me that there is jurisdiction to make a LSPO by reason of the fact that the husband’s periodical payments order is currently in force, and the term does not terminate until April 2027. It is therefore open to me in principle to make an order. Neither party questioned the existence of the jurisdiction”.

I was satisfied that I had jurisdiction to make a LSPO order given that there was a periodical payments order in place and therefore a clean break had not taken place.

Given that in this case a clean break became operative on 8 December 2023, I conclude that I have no power under s22ZA to make a LSPO to assist the Wife in pursuing her appeal to the Court of Appeal.

Further, the appeal is not an appeal against a financial remedies order. It is an appeal against refusal of an interim freezing injunction by Williams J, which in turn arose out of a refusal by HHJ Parry to make a substantive freezing injunction, in circumstances where there were no ongoing proceedings at all. The application before HHJ Parry was not based on a legal claim; it was free-standing and unconnected to any proceedings. The financial remedies claim and the divorce proceedings had concluded some 16 months previously. The appellate route had been exhausted. It cannot, in my judgment, be said that the appeal to the Court of Appeal is “in proceedings under this Part”, as require by s22ZA. It is an appeal against injunctive relief sought which was sought without any legal peg to hang the freezing order on. Accordingly, for this reason as well as the fact of a clean break being in place, there is no power to make a LSPO in respect of the Court of Appeal proceedings under s22ZA.

The next issue is whether a LSPO order under s22ZA can be made within the Wife’s set aside application. There is apparently no authority on the point.

In my judgment, the position is the same as set out above in connection with appellate proceedings. Where a clean break has taken effect, in my judgment it is not open to the court to make a LSPO order in a subsequent set aside application.

Further, in my judgment a set aside application does not fall within the definition of an order “in proceedings under this Part for financial relief”. A set aside application is not made under Part II of the 1973 Act. It is, rather, an application under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 and FPR 2010 9.9A. It is not an application for financial remedies, or intimately connected with the financial remedies proceedings. The definitions of “financial order” and financial remedy” at FPR 2010 r2.3 do not include a set aside application. It is an application to set aside an order made on a financial remedies application so that a renewed application for financial relief can be made. A set aside application is not supplemental to, or ancillary to, or consequential upon, a financial remedies order. It is, in my view, a specific statutory power to set aside contained under s31F(6), which encompasses all aspects of family law and is not unique to financial remedies. I am not persuaded that because the set aside application relates to a concluded financial relief application, it becomes part of those financial relief proceedings, some 19 months later.

I note that FPR 9.9A(3) states that a set aside application must be made “within the proceedings in which the financial remedy order was made”. That, in my judgment, is a provision to ensure that the set aside application is not issued under a fresh number in a separate set of proceedings, but is immediately directed to the original proceedings and to the court that make the original order. It does not elevate the set aside application into an application for financial relief pursuant to which a LSPO can be made.

Accordingly, in my judgment, it is not permissible to make a s22ZA order to aid the Wife in pursuing her proposed set aside application.

Given my decision about jurisdiction, I do not need to consider the merits of the application. Had I been satisfied that the jurisdiction exists, I would have adjourned the application until after determination by the Court of Appeal of the application for permission to appeal, giving the Wife the opportunity to set out her stall at that point. To make an assessment of the merits at this stage, when the Wife has lodged the appeal and will incur no costs until the application for permission to appeal is determined, would be, as the Wife’s counsel acknowledged, pointless.

I have determined that there is no jurisdiction for the court to entertain a LSPO application in set aside proceedings. I do not need therefore to consider the merits. Had I reached a contrary view (i.e that there is such a jurisdiction) I would not have gone on to determine the merits today given the lateness of the application and the fact that the set aside application is being allocated to the Newport family court; it would then have been a matter for the local court to consider whether or not to make a LSPO.

The Wife’s applications for (i) a LSPO in respect of the appeal proceedings to the Court of Appeal and (ii) a LSPO in her set aside application are dismissed.

The set aside application dated 26 June 2025 shall be allocated to the Newport family court.