A novel way to deal with a party frustrating an order for sale
By:2 commentsJuly 3, 2017
Or: Sometimes a litigant just can’t take a hint, no matter how clearly and how often stated.
“The wife is the most indefatigable of litigants. Defeat just seems to spur her on to further action with a fixed and obsessive view that she is right and that she will in due course be proved right in the courts.”
So said His Honour Judge Edward Hess back in March last year, in the long-running financial remedies case Welch v Welch. When he spoke those words he may have hoped that they would be acknowledged and accepted, and that perhaps the litigation would finally come to an end. Sadly, any such hopes would prove to be dashed. Some litigants just can’t accept that they have been beaten.
It was with a sigh of resignation when I saw the other day that another judgment in Welch v Welch had been published. What now? I wondered.
Let me explain.
In September 2014 Judge Hess made a final financial remedies order, which included an order for the sale of a property known as ‘Inglenook’, which was owned jointly by the husband and the wife.
As Judge Hess explains, the wife was unhappy with this order:
“The wife has always considered, and continues to consider, this order to be unfair to her and as having been procured by fraud and misrepresentation by the husband. In the judgment of 9th September 2014, and in subsequent judgments, I rejected the wife’s arguments in this respect and other judges sitting in appellate capacities have also rejected them. She has never accepted this rejection. In my judgment of 9th September 2014 I described her approach to all this as “obstinate, unrealistic and obsessive”. Nothing that has happened in the nearly three years of subsequent events has caused me to think that I was wrong about this. On 31st July 2015 Holman J made a two year civil restraint order [forbidding the wife from making any further applications to the court during that period], an unusual step in the family courts, perhaps reflecting the fact that he took a similar view”
“The wife has made numerous attempts to have my order overturned (by way of appeal or set aside). All her attempts have failed. Every judge who has looked at the matter has rejected her substantive arguments, in almost every instance finding them to be totally without merit. All her appeal routes against the substantive order have been exhausted and rejected. Despite all this, the wife retains her optimism that she will one day be vindicated and remains obsessively determined to prevent the implementation of the order of 9th September 2014.”
Sadly, the wife did not allow a little thing like being prevented from making any applications to the court to stop her from continuing to frustrate the order for sale.
In June 2016 the husband found a purchaser for Inglenook. Needless to say, the wife did not cooperate in the execution (signing) of the transfer document, so Judge Hess signed it on her behalf. Sadly, that was not the end of the matter, as the sale fell through, as did another proposed sale.
The husband eventually found a third purchaser. The sale documents were sent to the wife for signature, but once again she refused to sign them. Accordingly, Judge Hess once again made an order that he would sign them on her behalf. That, one might have thought, would have been the end of the matter, but the wife had other ideas.
Becoming aware of the identity of the proposed purchaser from the documentation, the wife bombarded him and his solicitors with “barrages of misinformation and invective deliberately and maliciously designed to frighten them off from the transaction”. Unfortunately, but unsurprisingly, she succeeded, and the purchaser withdrew.
Judge Hess commented:
“The wife is utterly unrepentant about all of this, believing her steps to be wholly justified. There is every reason to believe that, given the chance, she will do exactly the same thing again.”
The husband’s solicitors proposed a novel solution to deal with the wife’s behaviour. When another purchaser is found, the documentation should be sent to the wife without the names of the proposed purchasers or their solicitors appearing on them. Accordingly, they made an application to the court for a declaration to this effect.
After considering the legal implications of this unusual proposal, Judge Hess decided that there was no reason why he could not make such a declaration, and accordingly he granted the application. He also made an order for costs against the wife, although acknowledging that the husband is unlikely ever to receive payment, as the wife has no funds from which to pay.
As I say, a novel solution to the problem. The other solution, of course, would be not to send the documentation to the wife at all, and just get the judge to sign it, but the husband’s solicitors chose not to go down that route, as it was not clear that it was legally possible. Judge Hess, however, indicated that perhaps this was legally possible.
Whatever, I wonder whether it is too much to hope that this is the last we will hear of Welch v Welch? Somehow I doubt it.
The full report of the latest episode in the saga can be found here.
Photo by Diana Parkhouse via Flickr under a Creative Commons licence.
July 3, 2017
Categories: Family Law