Given the level of attention this issue received both in the press and during the appeal hearing itself, the case seemed poised to become one of the leading cases on add-backs. In fact, the Court of Appeal neatly side-stepped the conduct/add back aspect. Black LJ, who gave the leading judgment, said that HHJ Everall’s decision could be justified on the basis of need alone. Even if, therefore, the judge could be said to have placed undue emphasis on the husbands conduct, the order would remain valid. Accordingly, Black LJ said that it was unnecessary to consider further 'the interesting and challenging question' of whether behaviour of this nature should be reflected in the court’s order.
While the decision may have had little to say about add-backs, it was far more voluble on the husband’s failure to engage with the first instance proceedings. The case therefore serves as a vivid illustration of the obstacles that will face any litigant who seeks to appeal an order after having failed to properly participate in the proceedings.
The husband’s participation at first instance had been limited to filing a Form E (albeit one described by HHJ Everall as a 'woefully inadequate document') and attending in person at the First Appointment and the FDR. After the FDR he barely took any part, save for a last minute application to adjourn the proceedings for medical reasons, which HHJ Everall refused. Among the husbands omissions were a failure to file a s 25 Statement or replies to questionnaire or to attend the final hearing (save for an unsuccessful renewal of his adjournment application on the last day).
Each time that Black LJ rejected one of the husband’s grounds of appeal, she made at least some reference to the husband’s non-engagement in the proceedings. For example: