Appeal allowed despite 'disastrously handled' litigation

A High Court judge has ‘with a very heavy heart’ allowed an appeal while making clear his dismay at the conduct of the successful party.

Mr Justice Moor said Li v Simons was a case where costs were ‘entirely out of proportion and, in all probability, ruinous to the future financial well-being of the parties’.

Despite finding in favour of the appellant, the judge said he took ‘virtually the entire blame’ for the conduct of a case that ‘could not have been handled more disastrously if the parties had tried to do so’.

The appeal related to monthly payments for a child after the breakdown in the relationship. The appellant applied in 2020 to vary periodical payments on the basis his income had fallen significantly: the application was refused by Her Honour Judge Gibbons, who was highly critical of the appellant and made a costs order against him.

Just 12 weeks later, Li made another variation application raising a series of additional points and asserting he could not afford the maintenance ordered. Again this variation application was dismissed, by which time both parties had each incurred extra costs of more than £32,000. The appellant spent around £135,000 on the application in total, the equivalent of five years’ maintenance payments.

Mr Justice Moor said he wanted to make it clear he had ‘immense sympathy’ for the respondent who through no fault of his own had been put through ‘two years of contentious and, at times, wholly unmeritorious litigation’.

But he found that the decision on the second application had not taken account of Li’s reduced income and that the court’s adverse inferences about his finances were not backed by evidence. The findings, therefore, could not be considered as safe. Moor ruled that reduced payments should apply from the time of the decision on the second application.

But he added that the appellant’s litigation misconduct would be relevant to the costs of the appeal. He stressed there should be no further litigation in this case and urged the parties to come to a sensible agreement on costs, although he admitted this wish ‘may be a forlorn hope’.