Mostyn hails ‘outstanding’ advocacy in financial remedy case as he winds down career

Mr Justice Mostyn praised the “outstanding” advocacy of lawyers involved in a highly complex recent financial remedy case as he prepares to draw the curtain on his judicial career.

Susan Nancy Baker v Andrew Hartill Baker [2023] EWFC 136 centred on a divorced couple with the wife seeking a £9.34 million award, alleging the husband had “squirreled away at least $35 million”.

Susan and Andrew married in 1986 and, according to the Andrew, separated in 2000, although his wife Susan says their marriage “endured on an intermittent basis” until 2013.

The husband’s visible assets were valued at approximately £5.6 million, while the wife’s assets were around £5.8 million.

The husband was described as having a personality characterised by” a toxic mixture of arrogance and dishonesty” and was found to have “lied systematically to [the] court”.

However, Mostyn J emphasised the importance of not relying on witness demeanour as it can lead to bias, stating that a judge’s role is to examine the actual evidence. This comes despite his “irritation, indeed affront, at the shocking, grossly offensive way in which the husband gave his evidence”. He said:

The allegation that the husband had hidden funds was not proven, and the judge cautioned against drawing inferences based solely on dishonesty:

“The law is not so mono-dimensional as to conclude automatically that if a party has lied to the court, then the fact in issue about which the lie was told must be decided adversely to that party.”

However, the total costs of the proceedings amounted to £1.8 million, with the wife’s costs at £1,377,837 and the husband’s costs at £426,458.

Andrew was ordered to pay a lump sum of £1,614,000, including £200,000 towards the Susan’s costs. This payment reduced the husband’s net worth to £3,941,565 (35%) and increased the wife’s to £7,458,895 (65%). This was to “reflect both his estimated liability under a clutch of interlocutory orders and the court’s very strong condemnation of his delinquency”.

Describing the litigation as “titanic”, Mostyn J said:

“It is sobering to note that if the parties had not litigated and spent £1.8 million in costs they would have respectively £6 million [husband] and £7.2 million [wife].”

Mostyn concluded his judgment by praising the lawyers involved:

“I end by applauding the skill, assiduity, and diligence of all the lawyers involved in this complex case. The written and oral work from the Bar has been of the highest quality. The attention to detail from counsel has been outstanding. Mr and Mrs Baker should understand that their interests were represented fearlessly by counsel and that no stone was left unturned in their representation. It was a pleasure to conclude my judicial career with the receipt of such skilful advocacy.”

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