Rothchild v De Souza [2020] EWCA Civ 1215
The Court of Appeal dismissed an appeal of an order made by Mr Justice Cohen following financial remedy proceedings. The appellant husband (H) contended that Mr Justice Cohen, having stated his reasoning was on a ‘needs’ basis, had only taken account of the wife’s needs and rather his decision was based on H’s litigation conduct. Although litigation conduct can be taken into consideration (per s.25(2)(g) MCA 1973), H argued the judgment failed to quantify the financial effect of such conduct in the final award to the Wife.
The Court of Appeal held (after an extensive review of the development of the case law on litigation conduct and whether costs orders are always the appropriate remedy) that Cohen J had made it clear, as he was entitled to do, that H’s conduct had been taken into account after the needs of the children and their primary carer. As for awarding H with less than was required to meet his needs; the Court of Appeal clearly stated that within financial remedy proceedings, litigation conduct can justify awarding less than their needs (R v B and others [2017] EWFC 33, per Moor J).
Lord Justice Moylan echoed his observation in Moher v Moher [2020] Fam 160 at para 114, that financial remedy judgments should clearly lay out how the award was calculated. While this does not require a quantification upon each finding of litigation conduct, a reasonably structured analysis was encouraged.
Particularly relevant to practitioners, the court confirmed that orders for costs are not always the appropriate remedy for litigation misconduct. In this case the “destructive litigation” and consequent reduction of the available assets should not and could not be remedied by an order for costs, and with regards to distribution of matrimonial assets first consideration is given to the welfare of minors.
