A ‘battle royale’: MG v GM (MPS LSPO) [2022] EWFC 8

The application

In this case Peel J (‘the judge’) dealt with applications by the wife (‘W’) for Maintenance Pending Suit (‘MPS’) and a Legal Services Payment Order (‘LSPO’). These came about in the context of W’s financial remedies application, which has been stayed pending a jurisdiction dispute. At the outset the judge described this as a “battle royale” in which “the parties agree on nothing.”

W was seeking c. £1 million pa by way of MPS, comprising:

• £68,250 to secure a new rental property in Kensington.
• £25,000 for rent pm.
• £510,000 in general maintenance pa.
• The cost of two nannies at £126,000 pa.
• Backdated sums totalling c. £448,800 which W had spent on herself and the children.

As for legal fees, W sought c. £900,000, intended to cover (a) Hague Convention proceedings, (b) Children Act proceedings, (c) a divorce jurisdiction dispute and (d) the MPS / LSPO application. This involved:

• c. £230,000 for outstanding and unpaid fees.
• c. £246,000 for prospective Children Act costs.
• c. £423,000 for the divorce jurisdiction proceedings.

The judge noted that the parties were utterly conflicted on a number of issues including, crucially: whether W is a successful businesswoman with significant resources of her own and; whether H has access to significant resources himself.

The law

The judge set out the principles applicable to MPS applications contained in TL v ML [2005] EWFC 2860 (Fam) and the principles in respect of LSPO applications from Rubin v Rubin [2014] EWHC 611 (Fam).

The judge reflected that the fact of there being a jurisdiction dispute did not preclude him from making an interim order, but that the court would be cautious about both making an order and the quantum of such an order in circumstances where it may turn out to be based on a false premise, following dicta in cases such as MET v HAT [2013] EWHC 247 (Fam).

Background

The parties both hold multiple citizenships. H is 45 and W is 38. They met in 2016, married in London in 2017 and have two children aged 3 and 1.

H ran a successful hedge fund which collapsed at the end of 2018. Since then, the judge noted that H had been an investor involved in a variety of projects. The impression given was one of a person who was prepared to take large risks whilst seeking large rewards.

The parties lived in London until January 2021 when they moved to another (unnamed) country. H’s position was that this had been intended to be a permanent move, whilst W argued that it was only temporary. By the summer of 2021 the marriage had come to an end. H then applied in June in the other unnamed country for interim measures in respect of the children and (perhaps) divorce.

In August 2021 W came to the UK without H’s knowledge or consent. H then applied for the return of the children under the 1980 Hague Convention. W petitioned shortly afterwards and H disputed jurisdiction and then filed a Form A.

In September H issued divorce proceedings in Spain.

In November 2021 HHJ Robertshaw dismissed H’s application under the Hague Convention. He was denied permission to appeal by the Court of Appeal.

Shortly afterwards the other country (‘Country E’) in which H had made applications found that W was habitually resident in England and declined jurisdiction.

In December 2021 the parties agreed to the financial remedies application being stayed pending determination of the jurisdiction dispute.

A four-day trial is listed to determine the jurisdiction matter. The judge noted that, on this basis, the financial remedy proceedings would likely not start until after the end of 2022.

The issues and evidence

It was common ground that H had not paid W a penny since the end of the relationship in the summer of 2021. Prior to that, the judge was satisfied that H had made available to W ‘largely unfettered’ access to funds enabling her to spend a great deal. This amounted to some c. £43,000 per month between June 2020 and June 2021. In addition to this H would pay for rental costs, staff and other expenses. The judge concluded that the parties’ lifestyle was at the luxurious end of the spectrum, with expensive cars and holidays, occasional private jet travel and access to a number of rented properties.

W had continued, post-separation, to spend c. £70,000 per month on average. This appears to have been sustained by way of W securing personal loans from friends totalling c. £500,000.

H’s resources

The judge noted that W estimated H’s wealth at at least £100 million. H is the CEO of two special purpose acquisition companies (‘SPACs’), which the judge referred to as ABC Holdings and ABC Holdings II.

The judge noted that W had set out in some detail the alleged sources of H’s wealth, but proposed to focus on the most significant alleged assets, including:

• £4.3 million which H received from the sale of a property in W8 which the judge was satisfied H had sold without notifying W shortly after their separation. H said he had invested this in business interests.
• £2.1 million from the sale of another property, this time in SW1, which he also claimed to have invested in his businesses.
• Conditional ownership of 19% in ABC and ABC II. He had put $3.5 million into ABC II as risk capital. He claimed that neither investment was currently worth anything.
• $2.89 million in private lending funds, which H asserted would be tied up for 5-7 years from 2019.
• £8 million worth of investment in various SPVs, which H said was not realisable unless one of the underlying companies had a ‘liquidity event’ such as an IPO or sale.
• £20 million which W alleges H made in returns in 2021 from investments in a technology company, which H denied.
• A property abroad occupied by H’s parents.
• $350,000 invested in a condominium in another country.

H’s case was that his capital was all locked up in long-term, risky investments, and that he only earned £115,000 pa, supplementing this with support from friends and family.

W’s resources

W’s case on her own resources was simpler. She claimed to have nothing but debts to friends of c. £450-500,000.

There was some question as to whether W had an interest in a company which had been in the business of providing PPE during the Covid pandemic. H had invested in this business but had only recouped a small part of this investment. He claimed that W had been very well remunerated from this venture. For her part, W claimed to have no interest or control of the company, and to have never had any income from it.

Conclusions

The judge first dealt with the impact of the jurisdictional dispute on any order, concluding that although it was relevant, it did not lead to a limit to funding on the basis of a ‘pessimistic prognosis’, since W had been found by the other country to be habitually resident in England.

The judge then noted that he was in some difficulty in circumstances where he was faced with an interim hearing based only on submissions in which both parties claimed to have no liquid assets and alleged that the other party was a barefaced liar.

He turned at first to H’s resources.

In balancing the need to be circumspect but also to make robust assumptions, the judge noted that whilst W had provided a full run of bank statements for H to analyse, H had not reciprocated. Given the lack of this disclosure, the judge felt that this was an important omission which undermined what H asserted about his income and assets.

Set against that the judge placed emphasis on the fact that prior to separation H had provided large sums to W and had also received millions of pounds from the sale of the London properties and had also invested millions into his business interests, all in 2021. The judge was satisfied that it was highly unlikely that H would have invested so much without leaving enough to meet his own needs. This behaviour was at odds with H’s assertions of impecuniosity. Notably, H was not asserting that any particular event had caused his illiquidity between 2021 and the date of the hearing, rendering him unable to pay.

H had also agreed to a certificate of complexity which put the family assets at £25-50 million in order to secure a transfer to the High Court, and had said that his wealth was £14.5 million in his narrative statement. The judge decided that he was unconvinced by H’s stated liquidity issues, relying on Behzadi v Behzadi [2008] EWCA 1070 to the effect that the owner of property must prove that it cannot be realised. The judge concluded that H had not discharged that burden, and determined that H was broadly able to afford an award.

The judge then considered W’s resources.

He considered H’s argument that W had ample resources derived from her interest in the PPE company. The judge noted that there was a “suspicious side” to W’s involvement in the business, based on a number of WhatsApp messages and emails where she appeared to be very close to one of the major figures in the business. This same person was one of the major lenders to her of the c. £500,000. In the end, the judge concluded that - on an interim evaluation - W did not have access to large sums from this company, since:

• There was no documentation showing that W had a legal or beneficial interest in the company, or a that she had a major role in it.
• There was no documentation showing that W had received monies from the PPE business.
• There was no documentation showing some sort of contractual relationship between W and the business.
• There was nothing to suggest that the business had made any profits.
• H never seems to have asked W about her supposedly receiving sums from the business.
• W’s friend in the business confirmed in a statement that W did not have an interest in the business, nor any income.
• H had invested in the business, not W.
• The judge was satisfied that monies received from W’s friend in the business were prima facie loans.

Quantification

Hving decided to make orders, judge the turned to quantification.

He considered W’s interim budget to be “grossly exaggerated”, noting that W’s expenditure since separation had been “irresponsibly excessive”. He determined that almost all items should be pared down significantly, taking a broad Purba v Purba [2000] 1 FLR 44 approach.

The judge therefore awarded in respect of MPS:

• £250,000 pa in general maintenance, backdated to the date of the application. The judge included in this sum nanny costs, on the basis that it would be better for W to control her own budget, rather than relying on H to make direct payments to the nanny.
• £144,000 pa for rental payments, backdated to the date of the application. The judge noted that this was the sum W was currently paying.
• Sums in respect of school and nursery fees, as they became payable.

The judge expressly declined to award her c. £448,800 to cover her expenditure between separation and her application, since he concluded that she had made the choice to borrow money rather than apply for MPS.

As to the LSPO, the judge ordered payment of:

• W’s unpaid and unbilled costs (being c. £230,000), albeit not including the sums referable to the Hague Convention proceedings, since he characterised these as historic costs incurred prior to the application. The judge also applied a 30% reduction to these costs.
• W’s costs relating to future jurisdiction proceedings. The judge decided to take H’s estimated costs, to which he added VAT (since H was abroad and not liable to pay VAT). The award was therefore £250,000 intended to cover 10 months of litigation.
• £100,000 for Children Act fees, albeit structured so as to provide £10,000 immediately in order to cover mediation costs, with the £90,000 to follow in equal instalments, with that latter sum to be stayed pending the outcome of the mediation.

The judge determined further that in the absence of H making an offer, W was prima facie entitled to her costs of the hearing. However, the judge decided to subsume this within the award.

Other

The judge concluded by noting that H had made a specific disclosure application against W in relation to the PPE business, which W opposed. The judge decided to make this order on the basis that it would hopefully lay the issue to rest.

Henry Pritchard, Barrister at 1 Hare Court