Legal fees in maintenance pending suit

Moses-Taiga v Taiga [2005] EWCA Civ 1013; [2005] All ER (D) 57 (Jul); NLJ 16 December

The whole purpose of maintenance pending suit is to sustain the petitioner pending the court’s determination of the suit. This may lead to a risk of unjustified and irrecoverable payments, but that has to be balanced against the risk of denial of access to justice for the petitioner if she did not have the means to sustain herself and the litigation. Modern reality is that the highly specialist solicitors and counsel necessary for the conduct of big money cases will no longer do publicly funded work. If the applicant has no assets, can give no security for borrowings, and cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth v Payne Hicks Beach [1998] 1 FCR 231; [1997] FLR 116, then there is no source of funding for the litigation other than an approach to the court for maintenance pending suit that will include a substantial element to fund the cost of the litigation. It will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction.