Case No. ZZ20D49528

63.The second matter before me is what modification, if any, should be made to the undertaking pending further consideration of this issue at the First Appointment on 28 April 2022. 64.The test that must be applied when considering whether a party should be released from an undertaking is set out in Birch v Birch [2017] UKSC 53. Lord Wilson JSC held at paragraph 11:“It is, I suppose, inconsistent with the admitted existence of a discretionary jurisdiction to say that it can never be exercised unless a particular fact, such as a significant change of circumstances, is established. If a discretionary jurisdiction is shackled in that way, the result is, instead, that the jurisdiction does not even exist unless the fact is established. For all practical purposes, however, the Court of Appeal in the Mid Suffolk case gave valuable guidance. I summarise it as being that, unless there has been a significant change of circumstances since the undertaking was given, grounds for release from it seem hard to conceive.”65.The wife’s case is that: i)There have been a number of significant changes in circumstances since she gave the undertaking on 15 June 2021. She points to inter alia the war in Ukraine which has had the consequence of restricting her ability to access funds in Russia. The husband does not accept, as an issue of fact, that the war in Ukraine has restricted the wife’s finances in the way she says it has. ii)The undertaking has not functioned well in practice. As its terms are so restrictive, it has generated a significant number of interlocutory skirmishes because an order is required to authorise the release of funds from the Coutts account. This has had the consequence of increasing the parties’ legal costs even further. I was told that sum in the region of £500,000 had been spent on litigation relating to legal costs alone. iii)The wife should be able to pay her reasonable legal fees without needing to seek the husband’s permission and the undertaking should be re-drawn on that basis. 66.Mr Calhaem referred to HMRC v Begum [2010] EWHC 2186 Ch, where Richards J stated:“39. First, neither the claimant nor the court is entitled to control the defendant’s choice of solicitors and counsel, and the payment of their proper costs of the way in which they conduct the case…40. Secondly, the court will not give the claimant the right to require a solicitor and own client assessment of the defendant’s costs…that would be an unjustified interference in the relationship between solicitor and client.41. Thirdly, the court will not itself perform the function of a provisional assessor of costs.43. Fourthly, the court will not in general impose a cap on the defendant’s costs.44. Fifthly, protection to which the claimant is entitled is in general that provided in the standard form of a freezing order, which is to the effect that the defendant may use the frozen assets for the payment of his reasonable legal costs which provided that he informs the claimant as to the source of those payments.”67.Next, Mr Calhaem referred to Anglo-Eastern Trust Ltd and Kermanshahehi [2002] EWHC 3152, where Neuberger J stated: “10. It is undesirable for the claimant or the court in the course of hostile litigation, to take up time and to invade the relationship between the defendant and his solicitor, by enquiring about, or challenging, save where it is necessary, the costs that the defendant is incurring. It would be unfair on the defendant to put him in the position of having a solicitor who is looking over his shoulder and worrying all the time about how much is being spent. Furthermore, the solicitor is an officer of the court, and should know that the defendant can only be required to pay reasonable costs and any order made today will reflect that. Indeed, Mr Richard Slade of Bracher Rawlins, the defendant’s solicitors, accept that.11. If a solicitor, acting for a defendant who is subject to a freezing order which only allows him to spend money on “reasonable” legal costs can be shown knowing to have permitted his client to pay costs which were plainly not reasonable, then it seems to me as a matter of principle the solicitor would probably be in contempt of court. …14. I am not prepared to impose a cap. It seems to me, particularly in this litigation that it would be a recipe for further applications…”68.Whilst the husband agreed that any legal services payment order would need to be paid from the Coutts account, he resisted any relaxation of the undertaking. His motive is to preserve the Coutts account so far as possible as the funds held in that account are likely to represent part of the substantive award which he seeks in the Part III proceedings. 69.I am satisfied that there has been a significant change of circumstances since the wife gave the undertaking on 15 June 2021. Whilst I am not in a position to determine conclusively whether the war in Ukraine has restricted the wife’s finances in the way she says it has, it seems to me that, as a matter of common-sense, it is likely that it has had a material effect. The husband’s express case is that he does not accept this, but he does accept that the only source of payment at this time for any legal services payment would be from the Coutts account. 70.I am also persuaded that in practice the undertaking has been so restrictive that further litigation between the parties about it would be highly likely. That is plainly undesirable, and it is unfortunate that exceptions to the blanket restriction on the wife’s use of the account were not agreed and incorporated on 15 June 2021.71.It is also right, in my judgment, that the wife should be able to discharge her legal costs without having to seek the husband’s agreement or, in default of the same, an order, authorising payment of sums to her for that purpose. The two authorities I have been referred to by Mr Calhaem are clearly against the court policing a party’s payment of her own costs from her own money. I acknowledge that to give the wife this freedom is hardly consistent with my strong criticism of the amount of costs that has been run up hitherto. However, the authorities give the wife the freedom to spend her own money on her “proper costs”. Whether there can be introduced some measures whereby the court can restrain a party from spending their own money on costs is a matter for the Lord Chancellor and the Rule Committee to consider.72.I indicated during the hearing that I was minded to accede to the wife’s application for a release from the undertaking on terms that an injunctive order was made restraining her from dealing with the Coutts account save as to payment of her legal fees and the husband’s interim maintenance. The wife agreed with that course and the husband mounted no serious objection to it. So, the order will be framed in those terms.73.The issue of what, if any, further modification should be made to the restraint placed upon the wife’s ability to deal with the Coutts account is a matter that can be considered further at the First Appointment on 28 April 2022.