Divorce litigation becoming unaffordable for all but the rich, warns judge

Mostyn: Case should have been dealt with dealt with quickly and economically

Financial remedy litigation seems to be “fast heading for Ritz Hotel status – so expensive that it is only accessible by the very rich”, a senior family judge warned yesterday.

Mr Justice Mostyn made his latest complaint about the level of costs in divorce litigation in a case where the parties had spent nearly £1.7m on what he called a “very straightforward” matter.

The overall value of the parties’ assets was £35m and he awarded the wife £14m.

Notwithstanding the value, Mostyn J said: “No case-law was seriously cited to me either as to computation or distribution. The wife’s evidence lasted one hour. The husband’s evidence lasted half-a-day. The experts’ evidence lasted half-a-day. Final submissions lasted three-quarters of a day. All in, under two days were spent in court.

“The case should have been capable of being dealt with quickly and economically. And yet. In the two years since the wife’s Form A the parties have incurred costs in the extraordinary amount of £1,670,380, or 5% of the total assets.”

The judge said it was no answer to the question of how such costs had been incurred to say it was what the market would bear and how the parties wanted to spend their money was a matter for them and not the court.

“It is no answer because the court is bidden to do its utmost to compel litigants to conduct their cases proportionately. The court does so in the wider public interest. It is in the public interest that citizens who invoke the rule of law should have true access to justice.

“A putative litigant does not have true access to justice if it is unaffordable; if it is, to adapt the weary aphorism, only open to all like the Ritz Hotel. Financial remedy litigation seems to be fast heading for Ritz Hotel status – so expensive that it is only accessible by the very rich.”

Mostyn J said he would not repeat his “lamentations about the exorbitance of costs which I have expressed in recent judgments”, nor his “cry that something must be done”.

He ended: “In this judgment I merely record the facts and I leave it either to the Lord Chancellor, or to the Family Procedure Rule Committee, to do something about it.”

In April, he urged those two authorities to take action after describing the costs in a case as “apocalyptic”.

In that case, the parties had incurred £5.4m in costs in just 18 months, with total future costs likely to be between £1.8m and £2.6m.

Mostyn J said: “I have struggled to find the language that aptly describes the exorbitance of the litigious conduct of the parties in the case before me since it began on 21 September 2020 when the husband filed his petition… The only word I can think of to describe it is apocalyptic.”

He said figures like this were “hard to accept even in a conflict between the uber-rich”, but in this case the wife’s Form E disclosed two properties in London each worth about £5m plus £11m in the Coutts bank account.

Mostyn J said it was “difficult to know what to say or do when confronted with such extraordinary, self-harming conduct”.

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