The appeal arose out of various orders for maintenance pending suit (MPS). It gave rise to issues relevant to the award of such maintenance in what were described as ‘big money’ cases. The wife’s application for interim maintenance was not founded on a complaint that the husband had denied her financial support but rather on the complaint that he had been paying considerably less than the amount to which she was reasonably entitled, due regard being had to the lifestyle that was enjoyed prior to the breakdown of the marriage. The trial judge ordered the husband to pay interim maintenance of $2 million per month inclusive of legal fees and that payment to be backdated to the date of the application, without a set off in respect of the MPS which the husband had already paid during that period.
The Court of Appeal held that, by definition, MPS was restricted to payments that constituted ‘maintenance’, which were reasonable in the circumstances, and which would endure for no longer that it took to determine the divorce litigation. This was restricted to those payments necessary to meet the recurring costs of living at whatever standard of living was appropriate. The court had no jurisdiction to make orders that would result in a form of pre-trial capital re-balancing. Neither did the court have the authority to determine an application for MPS as though the sum to be determined was simply a sum on account of the wife’s substantive claim in the ancillary relief proceedings and on that basis to decline any analysis of the reasonableness of the amount claimed. The trial judge fell into error by failing clearly to distinguish between a capital sum to be advanced voluntarily and set off against any final award, this payment to be made in order to avoid the need to assess interim maintenance, and the payment of interim maintenance itself.
Another potential concern was that if the wife were to pay back her day-to-day living costs while there was no need for the husband to make a similar account, this may be interpreted as discriminating in favour of the husband.
In respect of legal costs, the guiding principles in Currey v Currey should be adopted and any contribution towards the wife’s on-going legal costs was reasonable, and on the basis that she had no other practical means or assets to secure the funds to run her case. The Court had to be able to conduct some analysis of the nature and extent and purpose of the contributions sought, including some breakdown of her anticipated costs. It was observed that if the application for an allowance for legal costs was made before the FDR hearing, it may well be wise to order that the costs allowance should fund the applicant only up to that hearing, to encourage settlement.
It was held that the reasonableness of the wife’s claim for interim maintenance must be judged according to the very high level of daily living that was enjoyed before the couple separated. However, there were a number of instances of forensic exaggeration in this case, as well as extra expenses misplaced in an application for MPS.
The Court of Appeal indicated that it may be in the interests of both parties if, instead of paying periodical payments of MPS and litigation funding, the husband should elect to make a lump sum payment which would enable the wife to maintain herself on a day to day basis and to meet her legal bills until final determination of the application for ancillary relief and to ‘begin to order her life again in the manner she chooses’, such sum assessed at a minimum sum of $75 million. The capital advanced would be set off against any final award and liberty was given to the husband to make that payment. The court did not have jurisdiction to make an order in those terms and therefore it was left open for the parties to choose to do so. If the husband did not choose to make the lump sum payment, an award of MPS in the sum of HK$800,000 per month (as well as backdated maintenance for 12 months) and a contribution of HK$500,000 per month towards her legal costs would be payable to the wife until FDR.
Further clarification was given on the question of offsetting the lump sum against the final award in subsequent cases.