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The decision in Daga v Bangur [2018] EWFC 91 has a salutary tale to tell in relation to costs. The judge said that:

“But this tragic and destructive case should stand as a cautionary tale to those who would embark on expensive litigation which they can ill afford in the hope of prising money from a discretionary trust.  A very careful and cool appraisal needs to be made at the very outset as to how realistic a prospect that really is.”

THE CASE

Mr Justice Holman was considering financial issues following a divorce. There were normal maintenance orders to the child of the family. However the husband wanted a major lump sum payment from the wife (£2.5 million) on the grounds that she may a beneficiary from a discretionary trust.   The husband’s application failed. He had spent (at least) £150,000 in costs. The court would not award a lump sum to pay those costs.

THE JUDGMENT

3         This is the husband’s claim for a lump sum payment or other capital provision from the wife.  She seeks no capital provision or current maintenance at all from him for herself, and modest, conventional periodical payments for their son.  At the outset of the hearing the open claim of the husband was for a lump sum of £2.5 million.  By the time of his closing submissions, his counsel, Mr Simon Webster, had moderated that claim to one of the order of £1-1.5 million.
4         How tragic it is that, meanwhile, the parties have spent or incurred between them over £1 million on legal costs.  Of that figure about £380,000 related to litigation about their son.  But almost £650,000 has been spent litigating over finance.  £650,000 could have made a very large contribution to the purchase cost of the sort of flat the husband now aspires to buy.  As it is, the savings of around £150,000 which the husband had accumulated during the course of the marriage by the time of separation have been wiped out, and each party now has considerable debts.  There are now in this case no liquid matrimonial assets nor any “acquest” at all, but only large debts.