The case o KS v ND concerned a post-divorce financial settlement agreed in 2005. A ‘consent order’ (legal agreement) reached under Schedule 1 of the Children Act 1989 specified that the husband should make child support payments of £21,600 a year, pay the wife a lump sum of £40,000, pay their child’s school fees until he left secondary education and settle the wife’s legal costs of £7,500.
Seven years later, the wife applied for an increase in the child support payments and a further lump sum, while the father, until recently a successful barrister and QC, sought a decrease in the payments.
A district judge agreed to ‘vary’ (revise) the order at a hearing in May last year. The judge ordered the father to pay an index-linked sum of £18,000 per year in child support for their son until he left university education. He was to also pay the mother 20 per cent of any bonus payments he received, as well as approximately two thirds of their son’s annual school fees. However there would be no lump sum payment and no order for the father to pay costs.
The wife sought permission to appeal and was granted permission to do so – but only in relation to the order that she pay a proportion of the school fees and the stipulation that there should no order to pay costs.
Her appeal on the school fees issue was dismissed. On the issue of costs, the mother argued that she should have been awarded these as she had been the ‘winner’ in the previous round of litigation, the father had committed ‘litigation misconduct’; and because of the economic impact on her of the previous litigation.
But Mr Justice Mostyn, sitting at the Family Division, said it was not in fact clear that the wife had been the most successful party in the previous litigation. He said the husband’s litigation misconduct had occurred before proceedings had been launched and also noted the both partners were now in a “comparably disastrous position” regarding their finances.
The judge noted that “the sums paid in costs completely dwarf the sums they were arguing about”. During the initial proceedings, the pair run up costs of close to £95,500 – the wife used borrowings to pay for her costs of £37,500, while the husband had managed to pay only £21,000 out of his costs of nearly £58,000.
The former couple than incurred further costs in the appeal – the father £18,535 and the wife £14,400. Both members of the former couple were heavily in debt.
Following the appeal, the father successfully applied to Mr Justice Mostyn for his appeal costs. The judge awarded him £13,000 but, “as an act of mercy to her”, said the mother could pay this in 26 monthly instalments of £500, via deductions from his maintenance payments as long as the child support payments continue.
The judge noted:
“Time and again judges point out the madness of litigating in this way; and time and again their admonitions fall on deaf ears. At the end of the day all we can do is to express concern about such extreme folly, and if it is ignored then the parties will have to live with, and take responsibility for, the consequences of their decisions.”