King, Bean and Moylan LJJ. Epic saga of litigation concludes with the Court of Appeal substituting a final order made in Part III proceedings.

Background

On 17 May 2023 Sir Jonathan Cohen made final orders disposing of W’s application for financial provision under Part III MFPA. The court ordered:

• H to have a life interest in a property in Greece, purchased by W at a cost of €600,000;
• a capital fund of €60,00 for furnishings;
• periodical payments of £60,000 p.a. for a period of four years; and
• costs against H for a total amount of £1.04m.

H advanced nine grounds of appeal. The thrust of H’s appeal was that the total sum ordered was too low and, as a consequence, left H in debt and in a position of real need.

Decision to proceed with the final hearing in H’s absence

H did not attend the final hearing. The hearing proceeded in his absence. The decision to proceed and dispose with the application was advanced as a ground in this appeal. That ground was dismissed. The court noted:

• H had made four applications for the final hearing to be adjourned. All were dismissed, the last of which was dismissed on 9 March 2023.
• The decision to adjourn the hearing was not appealed.
• At the final hearing the court was told that H had ‘vanished’ in response to the court’s refusal to accede to his application to adjourn.
• Consequently, H’s legal team found themselves professionally embarrassed and were obliged to come off the record.

The court noted the similarities with the circumstances that confronted Moor J in Pierburg v Pierburg [2022] EWHC (Fam) and the correct approach to the evidence for the trial judge where a party does not attend the final hearing.

The court concluded that the judge was not to be criticised for proceeding in H’s absence as:

• all information before the court suggested that H was fit to participate;
• suitable adjustments had been made to ensure that H could attend and participate fairly;
• the judge gave coherent reasons as to why the hearing should proceed.

The appeal

• The essence of H’s appeal was an attempt to reargue the case in support of his assertion that the outcome was unfair. That would demand the court go behind the findings of fact made by the trial judge.
• The court was bound by the judge’s findings. The material which now formed the basis of H’s case was appropriate for consideration at first instance and, properly, cross examination of W (Volpi v Volpi [2022] EWCA Civ 464).
• The appeal turned on the question of whether the order made by the trial judge fell outside the wide discretion available to him.
• The court agreed with the judge’s approach, consequent upon the findings in respect of the parties’ post-nuptial agreement. H was not left in a ‘predicament of real need’ and the final order was thus in line with the principles set down in both Radmacher v Granatino [2010] UKSC 42 and Pierburg. The judge:

1. was right to conclude that the proper order was one that was ‘needs light’ (Pierburg; MA v SK [2015] EWHC 887); and
2. did not fall into error by making H’s housing provision by way of a life interest.

• However, the judge was wrong to make an award which required H to live in Greece:

1. this was an international family and H should not be deprived of choosing where he wished to live; and
2. H’s capital and furnishing funds had to be revised.

• Similarly, the judge erred in his approach to W’s dividends; they represent a financial resource which W is likely to have in the future, and their inclusion impacts the quantum of maintenance ordered in favour of H. The correct figure for maintenance in the circumstances, even on a ‘needs light’ basis, was £115,000 p.a.

Impact of costs on the fairness of the award

On appeal H argued that the consequence of costs orders totalling £1.04m and outstanding legal fees of £900,000 left him unable to meet his needs as assessed by the court. Those arguments were dismissed.

H’s litigation misconduct left it open to the judge to make an order which did not meet H’s needs (Rothschild v De Souza [2020] EWCA Civ 1215).

While the judge did not do so, the court endorsed the conclusion that H’s litigation misconduct must be reflected in the court’s award.

The court declined to write off the costs orders made against H. If it did, that would require adjusting the capital sum awarded to H to reflect his litigation conduct. The court was also clear that W should not shoulder any responsibility for H’s overspend or outstanding costs liability.