Hazel Pauline Walker v Philip Hughes Walker

This is a highly unusual application for Legal Services provision, which relates to the funding of a hearing listed for 1 day before MacDonald J on 26 March 2025. The hearing is listed for an oral renewal of the applicant’s application for permission to appeal (which has already been refused on paper by the same judge), and if permission is granted, with the substantive appeal to follow. The appeal relates to the applicant wife’s claim for relief under Part III of the Matrimonial and Family Proceedings Act 1984, and the order appealed against made by HHJ Evans-Gordon on 29 May 2024, (1) confirmed the permission to make that claim already granted to her, but (2) limited the scope of the orders for which she could contend at the final hearing.

The original grounds of appeal were ten in number, but nine of them were refused by MacDonald J as being totally without merit, so that an oral renewal of those grounds was not permitted. By definition, therefore, the remaining ground, against the scope of limitation imposed by the circuit judge’s order, was not ‘totally without merit’, but has nevertheless already been determined on paper to be one where the appeal does not have a real prospect of success, nor that there is any other compelling reason why it should be heard, pursuant to FPR r.30.3(7).

In those circumstances, as Mr Tyzack for the respondent reminds me, the authorities are very clear that I should be extremely cautious before making any award. He goes as far as to suggest that I have no jurisdiction to do so. I cannot accept that. The authorities have been clear that there is a jurisdiction at common law, and I have been taken to the well known cases of Currey v Currey (No.2) [2007] 1FLR 846, Rubin v Rubin [2014] EWHC 611 (Fam), Re Al M [2021] EWHC 303 (Fam), and Xanthopoulos v Rakshina [2022] EWFC 30, and [2023] EWFC 158. Although there may be jurisdiction, it must be extremely doubtful if it would ever be appropriate to exercise it simply to cover the costs of an oral renewal application. In circumstances ‘where the claim for substantive relief seems doubtful’ as Mostyn J made clear in Rubin, ‘…the court should judge the application with caution. The more doubtful it is, the more cautious it should be.’ Here, on its own, any applicationfor a LSPO for oral renewal after permission to appeal has been refused must be viewed as almost certain to fail, especially when considered in the light of Peel J’s remark in Rakshina that where Permission to Appeal had not yet been granted, ‘the court will evaluate this factor with particular scrutiny’.

There is however a complication here in that, in the event that permission is granted, and MacDonald J is persuaded that the appeal does have a real prospect of success, then the appeal will be heard immediately. In those circumstances, if they came to pass, such an application could not likely be properly classed as ‘doubtful’, even if the prospect is not currently more likely than not. Is it equitable in those circumstances for the applicant to be left prosecuting her appeal unrepresented?

I canvassed with the parties that one answer, in the right case, might be to de-couple the oral renewal from the substantive appeal, and consider a legal services provision order only once permission had been granted, if it was. In practical terms, however, that is not an attractive solution in these proceedings, where already the hearing of the wife’s application has been adjourned from 20 January 2025 until 26 March to allow this application to be heard first, and MacDonald J has sanctioned by his last order of 17 January 2025 the listing of the 2 applications together. Meanwhile, the applicant’s Part III claim has been stayed by the Central Family Court to await the outcome of the appeal. I am therefore persuaded that it is in the interests of both parties that these applications should remain coupled, to be heard together.

Miss Rothwell, in her attractive and forceful submission for the applicant has argued that the date of 26 March is of itself too soon for her client to be effectively represented at the hearing of her application, and possibly, her appeal. She cites the long and complex history of the litigation between the parties, which encompasses not just completed financial proceedings in California, but also a raft of other ongoing litigation, by the applicant wife against her former firm of Family Law attorneys in the US, and again by her in the commercial court against the husband, his father and a corporation in which he used to have an interest. She says that in any event, there should be a delay, and that in the meantime her client should be fully funded to the tune of c.£25,000, to enable her to be fully and fairly represented at the conjoined hearing. She points to the fact that the husband has employed a team of specialist matrimonial solicitors and counsel through the proceedings, whereas she has been reliant on the occasional instruction of direct access counsel during the past 12 months. She has a firm of solicitors that have now come on the record for her to act in the anticipation that sufficient funding will be ordered.

I am not persuaded that any delay in the determination of this application is proportionate or fair. The order appealed against was made at a hearing already now 10 months ago. The appeal is anyway limited in scope, and to date no permission to appeal has been granted. I am therefore clear that the hearing on 26 March should proceed and that no adjournment is warranted if the two limbs are going to be determined together. Speedy resolution would be greatly in the interests of both parties, if, as I am satisfied it can be, the hearing can be conducted fairly for both parties.

Mr Tyzack does not however accept that the applicant’s evidence of her inability to fund representation for that hearing should be seen as being sufficient to persuade the court that she cannot provide funding by other means. He argues that the criteria specified in s.22ZA of the Matrimonial Causes Act 1973 – that she would not reasonably be able to obtain appropriate legal services for the purpose of the proceedings – are not satisfied in the absence of better evidence from her of her impecuniosity. I am however persuaded that this is a genuine case of impecuniosity – Mr Tyzack at the same time complains of the lack of security for the enforcement of any costs orders which might be made. I have indicated that the applicant must provide a targeted list of documents after this hearing which will clearly demonstrate that what she has told the court (whilst acting in person) are accurate, and I will make the order today on the basis that she will comply fully and conscientiously with that direction.

Mr Tyzack also pointed to the fact that at the hearing when this order was made, the applicant was represented by an experienced counsel, Christian Kenny, on a direct access basis, but that was in consequence of an earlier LSO made. The applicant has produced a letter written to her by the solicitors that she now wishes to instruct, complaining that the sum of £12,000 ordered at the hearing on 15 February 2024, which funded Mr Kenny, was not enough for them then to come onto the record. That funding provided for Mr Kenny to represent the applicant at the hearing from the outcome of which the applicant now wishes to appeal. Miss Rothwell argues that her client should have the benefit of both solicitor and counsel at the next hearing, and that the respondent should fully fund that, so that a level playing field is created, and relies on the solicitors’ email to evidence why a more substantial fund is now required. She also prays in aid her client’s serious medical problems, which I am aware of and take fully into account.

I consider that a fine balance must be struck here. On the one hand, the applicant’s permission application has already been refused, and her claim as it currently stands must be viewed as extremely doubtful. If it were the only application before the court on 26 March, I find it hard to conceive of circumstances where the court might think it appropriate to order legal services funding, especially as the respondent himself and his legal team would not usually be required to attend that hearing. However, in this case, given the listing of the appeal to follow if permission is granted, then the respondent will be present and represented, and both parties must be ready to go straight into the hearing of the appeal before the hearing commences. In those circumstances, and probably only by those circumstances, I am satisfied that it would not be equitable, applying the tests in Rubin, for the applicant not to be represented at the hearing on 26 March.

However, I am equally satisfied, in fairness to the respondent, that he should not be expected to fund a full legal team for that hearing for the applicant, when at present, her permission application stands refused. The appeal is from a hearing at which the applicant was represented by direct access counsel, and it was a hearing at which she was, at the very least partially successful, in that the respondent’s application for her Part III permission to be rescinded was dismissed, albeit that the conditions against which she now appeals were attached to that order. I am satisfied that it would be both appropriate and fair if a similar level of representation for applicant were now to be afforded. Mr Kenny’s costs for the May 2024 hearing were £10,000, plus VAT. For the FDR hearing in the application, they were £4,500 plus VAT. The hearing now, even if the full appeal is heard, has a much narrower ambit, in that there is only one ground, which is broadly whether the judge’s exercise of her discretion to limit the scope of the applicant’s claim should be allowed to stand, or whether the arguments at the substantive hearing can be wider ranging. I appreciate that the applicant has an undetermined application about disclosure issues which she says may impact on her appeal, but the issues are nonetheless relatively compact.

Any award which the court makes, cautiously judged, should be sufficient, but not overly generous, given the circumstances. The respondent himself had in January 2025 offered the sum of £6,500 plus VAT to compromise this application, and then repeated an offer of that sum last week, withdrawing it only 7 days ago. I consider that that offer was well-judged, in that it will enable the applicant to instruct an able and experienced junior counsel at the same level as Mr Kenny to put her case, both at the renewal hearing and then if successful at the appeal which will follow. Given the current position, any further provision would in my judgment not be merited, and would go too far in extending the bounds of this jurisdiction. I consider this award in effect to be funding the hearing of the appeal, but because there is the question of renewal to be determined first, any more generous provision would not properly balance the current uncertainty in the applicant’s case.

I should add that I am satisfied that such an award is affordable by the respondent, partly because he himself has offered that amount, and partly because the evidence that I have heard and read of his financial position does demonstrate that he has facilities to borrow funds on an ongoing basis from his family, which he has been and is continuing to take up. I acknowledge that he will have spent more money in coming to this hearing because the applicant did not accept his offer, but I expect that he will nonetheless be able to provide that sum, on the basis of course that it is LSO provision, and not a costs order, and may be reclaimable at the end of the proceedings, if the applicant’s financial position then permits its recovery.