C, MT v. M, P

FCMC 5451 / 2018

[2020] HKFC 25

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5451 OF 2018

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R U L I N G
(COSTS)

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Introduction

1.  There are presently cross applications before me in relation to the costs arising out of the wife’s summons dated the 21 August 2019. The summons states as follows:

1.  The Respondent do forthwith return the passport of the Child of the family, namely, HTM, a boy, born on the XX December 2012 (“H”) to the Petitioner, as directed under the Court Order dated the 26th October 2018 (“the Child’s Arrangements Order”).

2.  The Respondent do forthwith provide a copy of his counselling letter confirming he has attended counselling for the court Order period of 6 months together with the receipt showing payment for the counselling sessions to the Petitioner’s solicitors as directed under the Child’s Arrangements Order dated the 26^th October 2018.

3.  Cost be to the Petitioner on a full indemnity basis.

2.  Both of the issues identified in the summons relate to agreements and undertakings reached between the parties in the so called “Child’s Arrangements Order” of the 26 October 2018. Paragraph H of that order states that

H.  AND UPON the Respondent agreeing and confirming that he shall continue counselling with SM or other qualified counsellor who works in the same practice area as SM for a period of six months, commencing on 1^st November 2018 and ending on 30^th April 2019 and that he shall attend 2 counselling sessions per month.  AND FURTHER UPON the expiry of the 6 months being 30^th April 2019, the counsellor shall provide to the Respondent a letter to confirm that the Respondent has attended the regime of counselling as agreed herein and the Respondent shall then provide a copy of that letter together with receipts showing payment for the counselling sessions to the Petitioner as soon as practicable.  For the avoidance of any doubt, the Respondent’s attendance with a counsellor shall not: (i) be interpreted or understood in any way adverse to the Respondent’s ability to care for the Child; or (ii) be considered as a precondition for his access to the Child.

3.  Paragraph L adds as follows:

AND UPON the Petitioner and the Respondent acknowledging, agreeing and confirming that the Petitioner shall hold the passport of the Child AND FURTHER the Petitioner agrees and undertakes to the Court and to the Respondent that she shall pass over the passport of the Child to the Respondent no less than 2 days before his intended travel with the Child.

4.  It is of note that an issue concerning the non return of the passport was first raised before me at the Maintenance pending suit/interim maintenance/litigation funding hearing on the 9 August 2019. On that day I indicated that the child’s passport should be returned to the mother by the father without further ado. Unfortunately, however, neither matter had been resolved by the time that the summons returned to court on the 29 October 2019. It is of note that the father is a solicitor and therefore an Officer of the Court.

5.  On the 29 October I took a pragmatic approach and requested that the passport (which had seemingly only just been found) be handed up to the court for safe keeping. I was also of the view that the husband needed to fully comply with paragraph H of the Child’s Arrangement Order. It seems that the husband had some concerns that the “counselling letter” could be used by the wife inappropriately. On that premise I asked the wife to undertake not to disclose the contents of the letter and and/or the counselling receipts to any third parties. I viewed the letter and the available receipts and upon the undertaking being given by the wife I then handed the same to Ms Irving, who appeared in court on behalf of the wife. I did not allow the husband to file an affidavit in reply to the wife’s 3^rd affidavit of the 21 August 2019 and I accept therefore that he has not had an opportunity to properly respond to some of the allegations made by the wife in that affidavit.  

6.  It is the mother’s case that notwithstanding the fact that this is a child related matter, that it would be appropriate in the circumstances for the husband to pay for the costs of her application on an indemnity basis. She accuses of the husband of bullying her and of engaging in unacceptable litigation games. The husband for his part says that as this is a child related matter that the court should adopt its more normal approach of making no order as to costs. His solicitors point out that this continues to be a very high conflict case, that neither party trusts the other and that each have behaved inappropriately on occasion. She adds that in any event the wife was not wholly successful in her application given the outcome on the 29 October 2019. These points are all accepted.            

The issue

7.  Consequently, the central issue here is whether or not the respondent father should be penalised in costs, given his behaviours with respect to the passport and “counselling letter”. This is notwithstanding the fact that generally speaking, in children’s cases, the more appropriate order is that there shall be no order as to costs. 

The law

General approach

8.  The law is not in dispute. It is accepted by both sides that the general rule, in normal circumstances, is that costs follow the event but that costs orders against one parent or another are exceptional in cases involving children. I agree that this is the court’s general approach.

9.  Both sides have also referred me to Order 62 of the Rules of the High Court and the father has also taken me to the Hong Kong case TPL and WYY (CACV 47 of 2014 and CACV 61 of 2014) which reiterates that there would normally be no order as to costs in children’s cases, save, as I have said above, where there are “exceptional circumstances.”

10.  It would therefore be very unusual indeed for the court to make an order for indemnity costs against a parent in a child related matter, and although I accept that in this case the child issue had been largely resolved and that this summons relates to matters arising out of the agreements reached, they are still ultimately concerned with the appropriate arrangements for H going forward.  

Indemnity costs

11.  In LYE and CWW and HWL, FCMC 14787 of 2002, 6 May 2005 HH Judge Bebe Chu (as she then was) set out the Legal Principles relating to indemnity costs as follows:

LEGAL PRINCIPLES

3.     According to Rule 3 of the Matrimonial Causes Rules, the Rules of the High Court (RHC) shall apply with the necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Court of First Instance or in the District Court.

4.     Rule 91A of the Matrimonial Causes Rules provides that where the costs of an incidental to any matrimonial proceedings are directed to be taxed, R.H.C. Order 62 shall have effect in relation to the costs of proceedings in the Court of First Instance, and R.D.C. Order 62 shall have effect in relation to the costs of proceedings in the District Court.

5.     Order 62 Rule 28(3) in both R.D.C. and in R.H.C. provides that the Court in awarding costs payable to one party by another may in any case in which it thinks fit to do so order or direct that the costs shall be taxed on the common fund basis or on the indemnity basis.

6.     Any order for costs is in the discretion of the Court.  (see Headnote of Re Engindata Ltd (No. 2) 1993 1 All ER 232).

7.     Section 53 of District Court Ordinance Cap. 336 (equivalent to Section 52A of High Court Ordinance Cap. 4) provides that the Court shall have full power to determine by whom and to what extent the costs are to be paid.  See also Hong Kong Civil Procedure, 62/2/5:-

“The Court of Appeal in Choy Yee Chun (The Representative of the state of Chan Pui Yiu) v. Bond Star Development Ltd [1997] H.K.L.R.D. 1327, CA reviewed the cases and summarised the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner. Any proceedings instituted or prosecuted in such circumstances as to constitute an affront to the court could properly be the subject of a direction for the taxation of the successful party’s cost on the indemnity basis. However, the circumstances in which an indemnity award might properly be made were not restricted to circumstances beyond the requirement that taxation on an indemnity basis must be “appropriate”. The principle for the award of an order of costs on an indemnity basis applied equally to those who not only instituted proceedings but who defended them. If a plaintiff had been forced to institute proceedings by the defendant whose conduct had been not only hostile in the normal litigious sense, but oppressive and with base ulterior motive, and if the pursuit of a defence constituted conduct which was part of an oppressive game plan, then invocation of the power to award costs on an indemnity basis might well be justified”.

HH Judge Chu continued

8.     I have been referred by the Petitioner’s solicitor, Mr. Ko, to the case of Re Tang Hong Yeun Andy HCB 19585 OF 2003 (at paragraph 18) quoting Choy Yee Chun (The Representative of the estate of Chan Pui Yiu) v Bond Star Development Ltd. [1997] H.K.L.R.D. 1327 CA, where it was held that the discretion was not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be “appropriate”.  See also Hong Kong Civil Procedure, 62/App/12.

9.     I have also been referred to the Judgment of the Court of Final Appeal in Town Planning Board v Society for Protection of the Harbour Limited.  FACV No. 14A of 2003, at paragraphs 12, 14, 15, 18 and 23 where the Court of Final Appeal has made the following comments:-

(a)  The Court has a broad discretion to determine how costs shall be paid and whether indemnity costs should be ordered (paragraph 12).

(b)  The successive party should show, in order to obtain an order for costs on an indemnity basis, that the case has some “special or unusual feature” (paragraph 15).

(c)  In relation to the award of costs generally, it has been accepted, as Chu J pointed out, that while

“the ground [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further”.

There is no reason why this statement does not apply with equal force to the exercise of the discretion to award indemnity costs (paragraph 18).

(d)  Other factors, such as the reasonableness of the conduct of the parties, may need to be taken into account (paragraph 23).

12.  Ms Irving has also referred to Town Planning Board v Society for Protection of the Harbour Ltd No 2 (2004) 7 HKCFAR 114, which supports the general proposition that indemnity costs orders are based “on a wide range of factors and circumstances” and that an order must be “appropriate”.

Discussion

The wife’s case

13.  it is the wife’s case that the husband’s litigation conduct has been so extreme that it should be sanctioned by a costs order made against him on an indemnity basis. In her counsel’s submission of the 12 November 2019 she states inter alia as follows:

4.  The Petitioner seeks her costs, and on an indemnity basis. She should not have had to come to Court to compel the Respondent to comply with a Court Order, especially given that the matter of the passport had been raised at the MPS hearing on 9 August 2019, when the Respondent was told by the learned Judge to return the passport that day; that nothing else would be tolerated.  Clearly the Respondent decided to ignore that Order.  Nothing was said on that day that the passport was lost, only that he found the wording of the order “ambiguous”.

5.  The Respondent’s conduct outside the Court before the hearing on 29 October 2019 reinforces why costs must be on an indemnity basis.

6.  From the letter from Tanner de Witt of 25 October 2019, it was clear that the Respondent had been seeking to exert leverage over the passport issue, such that “if it is located”, then Recital L should be amended such that the passport be handed over to him “upon his request or in the case of travel...”. Letter attached (Attachment-3).

7.  Outside the Court, this proposal was repeated by the Respondent’s solicitor, who stated, presumably on her client’s instructions, that the passport was genuinely lost and the Respondent had not been able to find it.

8.  This proposal was refused by the Petitioner, on the basis that the Respondent would then “ask” for the passport, then simply keep it.  In any event, there was no reason why the Recital L had to be amended, nor had there been an application made to vary Recital L.

9.  At the very moment the parties were about to enter Court, it was said that the passport had been located, the night before, after a thorough search.  This had not been said when requests to vary the recital were being made. Clearly the Respondent still hoped to exert some leverage on the retention of the passport, even when aware that he had the passport in his possession.

10.  This is simply unbelievable and makes a complete mockery of the Court Order, the Court and of the Respondent’s obligations, not only as a party to the proceedings, but as an Officer of the Court.

14.  These circumstances are well noted and I am particularly concerned by the suggestion that the father had deliberately withheld the fact that he had recently “found” the passport, from the wife’s lawyers outside court. Such behaviour is inexcusable. However, whilst I have some sympathy with the wife I think it is also important not to blow this situation completely out of all proportion, especially given the highly emotive nature of this case and the parties behaviours in the past. Consequently, it seems to me that it would not be appropriate to award costs on an indemnity basis. The question then becomes what sanction would be appropriate, given the circumstances? Certainly had it not been for the court’s indication on the 9 August I may have simply acceded to the husband’s request and made an order that there be no order as to costs. However, given the court’s very firm indication on that occasion and the fact that the passport was not returned prior to the hearing on the 29 October 2019 and that there seems to have been a certain amount of unacceptable litigation brinkmanship outside of court, it seems to me that some sort of order is appropriate.

Conclusion.

15.  Consequently, having read the submissions filed and having considered the matter in the round, I intend to exercise my discretion and order that the husband shall pay 50% of the wife’s costs of and arising out of her summons dated the 21 August 2019 on a party and party basis to be taxed if not agreed. There shall be Certificate for Counsel.  

FCMC 5451 / 2018

[2019] HKFC 276

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5451 OF 2018

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J U D G M E N T
(Maintenance pending suit/Interim maintenance)

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Introduction

1.  This is an application by a Petitioner wife for maintenance pending suit for herself pursuant to section 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the only child of the family, a little boy, Hh who will shortly turn 7 years of age, pursuant to section 5 of the same ordinance. In addition, the wife seeks a contribution towards her legal costs as litigation funding.

The main issues

2.  In broad terms then there are only two issues to be determined namely a) how much maintenance should the husband pay to the wife for herself and Hh on an interim basis and b) should the husband also pay a monthly sum as litigation funding?

3.  The wife seeks an order in the sum of HK$81,700 per month broken down as a request for HK$48,000 per month as interim maintenance for Hh, HK$25,000 per month as maintenance pending suit for herself and HK$8,700 per month being the cost of continuing to hire the parties’ original domestic helper. In addition, she seeks HK$50,000 per month as litigation funding.

4.  The husband for his part put forward the following proposal at the hearing:

94. With a view to bring W’s MPS application to a settlement, H makes the following Open Proposal:-

H undertakes to directly pay for:-

(1)  W’s and Hh’s medical insurance so long as he is able to extend his medical insurance provided to him by his employer to cover them (cost to Husband is $5,281 per month);

(2)  The FDW’s costs (approx. $8,700 per month);

(3) 50% of the dog’s reasonable and agreed medical expenses [value changeable].

(4)  Hh’s agreed extra-curricular activities up to a maximum amount of $1,750 per month.

In addition to the undertakings, H offers to pay:

(5) The sum of $50,000 per month, being $15,000 interim spousal maintenance for W; and $35,000 interim maintenance for H;

95. The effect of the above offer is that H will be paying in excess of $65,731 (being 5,281 + $8,700 + [unknown] + $1,750 + $50,000) per month for the benefit of W and H.  This plus W’s income give her a net disposable income of $ 113,461.

96. H asks that the Court makes an order in terms of paragraph 94 hereinabove, with costs to H.

5.  It is of note that although the level of conflict in this case remains very high, the parties have nonetheless been able to come to terms with respect to the arrangements for Hh. By virtue of a consent order dated the 26 October 2018 the parties have joint custody of Hh, with care and control to the wife and defined access to the husband. There are also detailed agreements set out in the order with respect to his long term care including a review clause every 18 months or so commencing in April 2020.

6.  It is the husband’s case that he has been paying maintenance of just over HK$65,000 per month, although this sometimes took the form of direct payments to third parties. The husband also adjusted the sum to be paid, if, for example the wife paid for items by cheque from the paying account, which he had not agreed to.

Background 

7.  The parties married on the XX December 2007 and separated in or about November 2017. They are of similar age and they will both turn 41, this year. They are both Irish and they are both well educated. The husband is a solicitor and a partner with an international law firm in Hong Kong. The wife is also a qualified solicitor, but she currently works as a Teacher librarian. The wife issued a divorce petition on the 7 May 2018 and the decree nisi was pronounced on the 17 July 2018.  

8.  Both parties are working, but there is a significant disparity in their current salary. The husband earns a gross salary of just under HK$210,000 per month (i.e. HK$209, 475). It is accepted that his received income (i.e. net of his MPF contribution and medical insurance) is just over HK$200,000 per month (i.e. HK$202, 693 per month). The wife for her part earns just under HK$50,000 per month gross (HK$49,230 per month) and her received income is HK$47,730 per month (i.e. net of her MPF contribution). Thus between them there is just under HK$250,000 per month income, which needs to maintain two households. It is of note that the husband’s tax liability is, as one would expect, significantly higher than the wife’s (HK$277,403 was payable in 2019 i.e. just over HK$23,000 per month). The wife’s tax liability fluctuates because of her bonus. According to her tax demand for 2018/19 she paid just under HK$3,600 per month (HK$43,006 was payable i.e. HK$3,584 per month).   However, it is accepted that this could be as much as the c. HK$5,000 per month as claimed if taken over a two-year period. In addition, the school fees are covered by virtue of the wife’s employment and this is an additional benefit that accrues to her because of this. 

9.  The wife receives a guaranteed bonus every two years. The next bonus that she will receive will be in 2020. She has also received money from her brother. It has been suggested that these monies are not borrowed but are another financial resource at her disposal. In the short term however, and for the purposes of this application, I accept that these are more likely than not to be borrowings and that she will most probably need to repay them in due course.

10.  The husband for his part is also entitled to a bonus and he has also received additional ad hoc payments for a consultancy project. However, these are quite limited. There is no evidence to suggest that he is entitled to any other form of income apart from his salary and these other smaller payments. It is also his case that he has taken out a loan in order to help pay for his legal costs and to assist with his cash flow generally. It is also not disputed that the wife has taken some funds out of the joint bank account without the husband’s consent, including the sum of just over HK$150,000 in December 2018.

The law

Maintenance pending suit and interim maintenance

11.  The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Applications for interim maintenance under section 5 of the same ordinance are approached in the same way. As Rayden points out

…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraph 16.17 of Rayden, 18^th edition).

12.  Reference has also been made by each side to the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held inter alia that:

“(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

 (d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation the court should err in favour of the payee.”

What are the wife’s reasonable needs?

13.  Some of the difficulty in this case has been that the wife’s figures do not appear to “work”. In broad terms, even if I were to accept all of her estimated outgoings (which I do not) the wife still seems to be seeking more in maintenance than the total of her estimated outgoings.  

14.  In the wife’s schedule of income and outgoings she sets out her expenses as follows:

4.1 General

Item	Amount
Rent	HK$	38,000
Mortgage Instalments and life insurance (323 euro)	HK$	2,842*
Utilities (electricity, gas, water, Now tv, Netflix and HKBN broadband)	HK$	4,350 **
Management fees (for rental property) (135.57 euro)	HK$	1,193*
Food	HK$	9,000**
Household expenses	HK$	1,000
Car expenses (Car rental and insurance)	HK$	1,611**
Insurance premia (Irish house insurance – annual 485 euro)	HK$	355*
Domestic helper(s)	Currently paid by Respondent
Pet Bills (vet, food, grooming and medication)	HK$	4,000**
Other (Specify):
Hong Kong contents insurance	HK$	477.67
Travel insurance	HK$	248
Total monthly household expenses	HK$	63,076.67

4.2 Personal

Item	Amount
Meals out of home	HK$	4,000
Transport	HK$	2,000
Clothing/Shoes	HK$	3,000
Personal grooming (including haircut and cosmetics)	HK$	3,350
Entertainment/presents	HK$	3,500
Holiday	HK$	7,000
Medical / Dental	Paid by the Respondent’s Insurance
Tax (estimated) (63,500)	HK$	5,292
Insurance premia (included at household)	HK$	0
Interim maintenance	HK$	0
Contribution to parents	HK$	0
Dependent family members	HK$	0
Others (specify):
Phone bill	HK$	600
Skype credit	HK$	200
Pilates fee	HK$	650
Bootcam`p fee	HK$	960
MPF	HK$	1,500
Spotify subscription	HK$	58
iTunes	HK$	23
Social contributions at work	HK$	250
Total monthly personal expenses	HK$	32,383

4.3 Children

Item	Amount
Extra Tuition	HK$	1,200
School books and stationery	HK$	200
School trips (ePayment)	HK$	183
Transport to school (including school bus)	HK$	66
Medical / Dental (currently on work medical insurance)	Paid by the Respondent’s Insurance
Extra Curricular Activities	HK$	3,500 *
Extra Curricular holiday camps	HK$	450
Entertainment / presents	HK$	1,500
Holidays	HK$	3,000
Clothing / Shoes	HK$	2,000
Insurance premia (on work insurance)	Paid by the Respondent’s Insurance
Lunches and pocket money	HK$	800
Other Transport	HK$	625
Child-minding fees (when dh on holiday)	HK$	2,000 **
Uniform	HK$	450
Haircut	HK$	150
Total monthly expenses for children	HK$	16,124

Total monthly expenses(4.1+4.2+4.3)

HK$

111,583.67

This does not include the salary of the domestic helper at HK$8,700 per month. Thus I accept that if the domestic helper salary is included then at first flush the total that the wife seeks amounts to approximately HK$120,000 per month. However, the wife earns just over HK$47,000 per month net. She is seeking HK$81,700 per month. HK$81,700 per month + HK$47,000 = HK$128,700. Consequently, there appears to be a surplus here, even on the wife’s own figures, of approximately HK$8,700 per month.

15.  The solicitors for the husband have approached the math slightly differently, but they also come to a similar conclusion. In their written submission they state inter alia as follows:

43. Even taking W’s case to its highest and assuming that all her expenses (FDW’s costs included) are accepted, which for the avoidance of doubt is not accepted, her MPS claim should be no more than $71,284 per month (= $120,284 - $49,000 (as opposed to HK$47,000)). W claims $81,700 per month.

16.  There are also some other difficulties with the wife’s expenses. For example, she includes expenses that relate to the purchase of a property in Ireland, which are more in the nature of a capital expense and should not be included for the purposes of this application. I have marked these items with an * in the General Expenses in paragraph 14 above. She also includes the cost of running a car in Ireland, although she does not live there. The husband also complains, and with some justification that the utility expenses seem a little on the high side. I accept that they are capable of some reduction, likewise the food costs. In so far as the domestic helper is concerned, the parties seem to have accepted that this is a necessary expense, notwithstanding the fact that this cost is also higher than the norm. In so far as the vet bills are concerned I accept that these are likely to be in the range of HK$2,000 per month. I have therefore marked with a double ** those items that seem capable of some reduction. On a very broad brush basis therefore I will allow the wife HK$61,000 per month for general expenses, inclusive of the domestic helper’s salary and the vet’s bills as follows:

General

Item	Amount
Rent	HK$38,000
Mortgage Instalments and life insurance (323 euro)	N/A
Utilities (electricity, gas, water, Now tv, Netflix and HKBN broadband)	HK$3,000
Management fees (for rental property) (135.57 euro)	N/A
Food	HK$7,500
Household expenses	HK$1,000
Car expenses (Car rental and insurance)	N/A
Insurance premia (Irish house insurance – annual 485 euro)	N/A
Domestic helper(s)	HK$8,700
Pet Bills (vet, food, grooming and medication)	HK$2,000
Other (Specify):
Hong Kong contents insurance	HK$	477.67
Travel insurance	HK$	248
Total monthly household expenses	HK$	60,925

17.  In so far as the wife’s personal expenses are concerned, some of these are also relatively high. I will allow HK$26,000 per month inclusive of the tax estimate. I have though deleted the reference to MPF, as that has been taken into account in the estimate of her net income. It cannot be deducted twice. I have also deducted the reference to the social contribution at work. It seems to me that many of the other expenses can also be reduced a little and that on a broad brush basis HK$26,000 per month for the wife’s personal expenses seems about right.

18.  In so far as Hh is concerned, I accept that a total amount of HK$4,700 per month for extra tuition and ECA’s seems rather high. The father’s proposal of HK$1,750 per month for his share, conversely seems a little low. I will retain the extra tuition fees and the ECA’s shall be reduced to HK$2,300 per month. I have also deducted the reference to child minding fees when the domestic helper is on holiday, as this should not occur on a monthly basis and is excessive in any event. Thus I will allow HK$13,000 per month for Hh as follows:

Children

Item	Amount
Extra Tuition	HK$	1,200
School books and stationery	HK$	200
School trips (ePayment)	HK$	183
Transport to school (including school bus)	HK$	66
Medical / Dental (currently on work medical insurance)	Paid by the Respondent’s Insurance
Extra Curricular Activities	HK$	2,300
Extra Curricular holiday camps	HK$	450
Entertainment / presents	HK$	1,500
Holidays	HK$	3,000
Clothing / Shoes	HK$	2,000
Insurance premia (on work insurance)	Paid by the Respondent’s Insurance
Lunches and pocket money	HK$	800
Other Transport	HK$	625
Child-minding fees (when dh on holiday)	N/A
Uniform	HK$	450
Haircut	HK$	150
Total monthly expenses for children	HK$12,924.00

In total then it seems that the wife’s expenses come to approximately HK$100,000 per month inclusive of the domestic helper’s costs. 

19.  Given that I have accepted that the wife should be responsible for paying for her share of the Irish properties expenses, it seems that at most she may have slightly more than HK$40,000 per month available to contribute towards the monthly expenses. The balance of say HK$60,000 per month should be met by the husband. This is very close to the amount that he has proposed in his open offer.

Conclusion on maintenance pending suit/interim maintenance

20.  In conclusion then I will hold the husband to his undertaking to continue to pay for the wife and Hh’s medical insurance. The remainder of the expenses that he has offered to pay for directly namely the domestic helper’s salary, the vet’s bills and Hh’s ECA’s have been included in the wife’s schedule of expenses. On that premise the husband shall pay the sum of HK$60,000 per month, HK$31,750 per month as maintenance pending suit for the wife and HK$28,250 as interim maintenance for Hh.

Backdating

21.  The wife seeks backdating and for the costs of the application. I am not inclined to order that the maintenance be backdated especially given the fact that the final order is so close to the husband’s offer in any event. I am also cognizant of the fact that the wife has taken some funds from the joint account which she has presumably used for some essential expenditure in the interim including moving costs, rental deposit etc etc.

Litigation funding

22.  The wife also seeks litigation funding of HK$50,000 per month.

The law

23.  As far as the law on the funding of litigation costs is concerned, Currey v Currey [2006] EWCA Civ 1338 continues to be routinely applied in Hong Kong. This states inter alia that:

“the conditions for a ‘costs allowance’ are as follows:

(1) That the applicant spouse has no assets, or none that can reasonably be deployed (at para [19], [20]).

(2) That she can provide no security for borrowing, or none which can reasonably be offered (at paras [19], [20]).

(3) That she cannot reasonably obtain legal services by offering a charge on the outcome of the litigation (at para [20] and see Sears Tooth, per Wilson J).

(4)   That she cannot secure publicly funded legal help ‘at a level of expertise apt to the proceedings’ (at para [20])”

24.  There is also a requirement to undertake an overarching enquiry

At para [20], Wilson J held that the initial, overarching enquiry should be into whether the applicant for a costs allowance could demonstrate that she cannot reasonably procure legal advice and representation by any other means. Therefore, to the extent that an applicant has assets (as in C v C), she has to demonstrate that they cannot reasonably be deployed (whether directly or as the means of raising a loan) in funding legal services …… Other factors may well come into play.  The subject matter of the proceedings would always be relevant, as would the reasonableness of the applicant’s stance in the proceedings.

Is this an appropriate case to award litigation funding?

25.  In this case I accept that there although there is a property in Ireland, this is not an asset that can reasonably be deployed for legal costs. It has been suggested that the wife can take out a loan, just as the husband has done, but it is difficult to see how a loan could be serviced on her current income. I also accept that it is unlikely that she would be eligible for Legal Aid and it is clearly not feasible for her to obtain legal services by any other means.

26.  The husband also complains about the wife’s litigation conduct and points to the fact that the FDR hearing was adjourned because of this application, which he believed to be unmeritorious. While I have some sympathy with him on this and it is clear, as I have said, that the levels of conflict between the parties remains high, nevertheless they have been able to come to terms on the divorce itself and on the arrangements for Hh. In such circumstances it seems to me that the husband should make some provision for the wife’s legal costs from his own savings/bank loan in order to take the matter up to the FDR hearing. The difficulty however is that the basis for the wife’s claim of HK$50,000 per month is very general, with very little specific information to assist the court in making a decision. In such circumstances and on the premise that there shall be an FDR hearing on the 2 March 2020, I shall order that the husband do pay the wife’s lawyers the sum of HK$50,000 per month for the next four months, such sum to be paid directly to them and held on account of costs. In making this order I accept that these funds will most probably need to come from the H’s own savings which included the monies from the loan account, which was taken out in part to assist with payment of his own legal costs.     

Costs

27.  It seems to me that at the end of the day neither party has been wholly successful. The order for maintenance pending suit/litigation funding was very close to the offer made by the husband, but he had made no offer for litigation funding and the wife has been partially successful in that respect. In such circumstances I shall exercise my discretion and make an order nisi to be made absolute in 28 days’ time that there be no order as to costs of this application including any costs reserved.

Order

28.  Consequently, I shall make an order as follows:

UPON the Respondent undertaking to continue to pay for the medical insurance for the Petitioner and Hh as long as he is able to extend his medical insurance provided to him by his employer to cover them.

IT IS ORDERED THAT: 

1) The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$31,750 per month and interim maintenance to the Petitioner for the child of the family in the sum of HK$28,250 per month, the first payment to be paid on the 1 November 2019 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2) The Respondent shall pay as additional sum of HK$50,000 per month to the solicitor’s for the Petitioner, for a 4-month period from the 1 November 2019, as litigation funding.

3) The Petitioner and Respondent shall file and serve their amended questionnaires as attached to this judgment within the next 7 days.

4) Each side do file and serve their answers to the same within 28 days thereafter.

5) Valuation of the Irish property to be agreed between the parties, failing which a valuer shall be jointly appointed by the parties and a valuation report shall be filed not less than 7 days before the FDR hearing. The costs of such to be split equally between the parties.     

6) The Financial Dispute Resolution hearing has been set down for the 2 March 2020 at 2:30 p.m. with 2 hours reserved.

7) Both parties shall personally attend that hearing.

8) There shall be an order nisi to be made absolute in 28 days’ time that there be no order as to costs including all costs reserved.