Meerna Ali Ghuloom Faraj v Sohail Sultan Ahmad & Anor

Facts

The parties married in April 2013 and divorce proceedings between Meerna Ali Ghuloom Faraj ("the wife") and Sohail Sultan Ahmad ("the husband") began in October 2020. The husband is the majority shareholder, a director and chief executive of IIB Group Holdings WLL ("the Bank"), an investment holding company in Bahrain, which was joined as second respondent. The financial remedy proceedings were determined at first instance by Sir Jonathan Cohen, whose judgment is reported as Ahmad v Faraj [2023] EWFC 209, and who made a detailed order dated 15 December 2023 ("the 2023 Order"), paragraph 26 of which required the husband to pay the wife £156,000 by way of a net figure sweeping up earlier costs orders. A legal services payment order made on 13 December 2024 required the husband to pay the wife £120,000 plus VAT; his appeal against it was dismissed on 21 February 2025, with an unless order following on 14 April 2025, for the reasons given at [2025] EWCA Civ 468. On 24 July 2026 the Court of Appeal allowed all three appeals brought by the husband, the wife and the Bank, and ordered a full retrial ([2026] EWCA Civ 962). The parties could not agree the consequential order, and written submissions limited to four pages were directed. This judgment gives the court's reasons for the form of the consequential order.

Decision

Issues

• Whether the legal services payment order, the LSPO Appeal Order and the Unless Order should be set aside as consequential upon the successful appeals.
• Whether the husband's proffered undertaking not to seek recovery of sums paid under the LSPO was required.
• Whether paragraph 26 of the 2023 Order should be set aside or rescinded.
• Whether the costs of the three appeals should be the subject of an order now or reserved.
• Whether the first hearing should be listed to suit counsel's availability.

Reasoning

Fraser LJ, with whom Baker LJ and King LJ agreed, gave the court's reasons for settling the consequential order itself, the parties having been unable to agree it. On listing, he observed that although parties ordinarily benefit from counsel of their choice, the overriding objective in family proceedings under FPR Part 1.1(2)(a) requires cases to be dealt with expeditiously and fairly, a phrase which also appears in CPR Part 1.1(2)(d), the family formulation differing in its regard to welfare issues. Referring to his own decision in Bates v Post Office Ltd [2017] EWHC 2844 (QB), and to Jackson LJ's Review of Civil Litigation Costs, he noted that fitting hearings around counsel's diaries causes delay and delay causes cost; the first hearing before the retrial judge would therefore be listed on the first available date after 26 October 2026. The attempt by the husband, supported by the Bank, to have the LSPO, the LSPO Appeal Order and the Unless Order set aside was fundamentally wrong: no application to set aside had been made, and the husband was in substance seeking to appeal the LSPO Appeal Order by a route not available to him. The court had not accepted his case on the existence of the Disputed Accounts; King LJ had found in the LSPO Appeal judgment that his failure to pay was deliberate and wilful and that he had the means to pay; and the judge below had based the LSPO on a range of matters, not the Disputed Accounts alone. No undertaking against recovery was therefore needed, its presence suggesting only further delay and attritional expenditure. Paragraph 26 of the 2023 Order, which swept up a series of earlier costs orders in favour of each party, likewise had to remain, as did the paragraphs dealing with spousal and child periodical payments and school fees. As to the costs of the three successful appeals, the only just course was to reserve them to the retrial judge at the conclusion of the financial remedy proceedings: whether the FAP is found to be a sham or valid may well dictate a different and fairer costs outcome, and those questions, which fall for fresh consideration as part of the court's statutory obligation under section 25 of the Matrimonial Causes Act 1973, cannot be pre-determined.

Case history