Is this a good idea? Risk and proportionality

The need for proportionality and calmly assessing risk never goes away. 

These days, so many reported cases, particularly of the High Court and the Court of Appeal concern vast sums, for millionaires and billionaires. This case concerns very different numbers but contains a very important lesson for both parties and their lawyers. The case DSD v MJW (costs of MPS) [2025] EWFC119(B) is where the wife brought a claim for Maintenance Pending Suit, otherwise known as interim maintenance, during a court case for financial remedy. The claim was for £500 per month, and the hearing took place in mid-April 2025 with the Final Hearing listed for mid-July 2025. The claim was therefore worth £1,500 to £2,000 depending on the date of any payments, if the court regarded the wife’s claim favourably. 

Her costs by the time of the application were £8,716, and the husband had incurred costs of £4,170, just short of £13,000 between them. This matters because the wife lost, in part, because she was putting forward arguments that should have waited until the Final Hearing, and she failed to convince the Judge of her merits of the case. 

Deputy District Judge Hodgson was critical for a number of reasons: – 

1.Delay

The application might have been appropriate had it been made at an early stage, by bringing the application so soon before the Final Hearing, the wife harmed her own case. 

2. Doubtful evidence

The wife asked the court to make conclusions based on some assumptions that were a stretch. She ‘could’ lose her accommodation; the Final Hearing ‘might’ be adjourned, but for both of these assertions, the wife simply did not have evidence in support.

3. Disproportionality

The greatest criticism was in relation to the wife’s decision to bring a claim for such a small sum when it should have been obvious that the costs of bringing the claim would far outweigh any potential award. 

What can we learn from this? 

Don’t forget risks

The solicitors should have told the wife that litigation involves risk, there is always a risk that a Judge will not see things your way. Would she have brought the application had she realised that not only might she lose, but also, because of the type of application, she might have to pay the husband’s costs if she did. 

Is it worth it? 

Somebody should have worked out whether the application was worth it. They should have costed the value of the claim and estimated the costs and weighed them up properly. The wife should have been able to make an informed decision because, if she had seen the value of the claim versus the estimated costs, would she have brought the claim at all? The strongest criticism is reserved for the solicitors who failed to give the blunt advice that the wife needed, and it is our job as solicitors not to give the advice our clients want, but the advice our clients need. 

If you have any questions about the topics covered in this blog, feel free to contact me, Deborah Davies from the award winning Family Law Team at SE-Solicitors.