Hart v Hart in detail, part 2: encouragement for non-disclosers?
By:1 commentSeptember 13, 2017
It seems that the overwhelming consensus amongst family lawyers is that there was nothing wrong with the Court of Appeal’s decision in Hart v Hart. It was just applying the law, as we already knew it to be. Whether the law came up with the right result is another matter, as I discussed here yesterday. However, there is another reason to be uneasy with the outcome of the case.
As the President of the Family Division no less has made quite clear in the past, and as I myself have said here just recently, the parties to family proceedings should comply with the requirements of the court. In financial remedies cases that means in particular providing the court with full and accurate details and documentary evidence of your means. The husband in the Hart case, however, failed in that duty, and yet he still received a favourable settlement, which gave him full credit for his pre-marital assets. What kind of message does that send out to others who are reluctant to make full disclosure?
As I mentioned here yesterday, the wife argued on her appeal that the husband had failed to provide full and accurate disclosure, which “meant that it was impossible fairly to assess the extent of any non-matrimonial property with the result that all the parties’ wealth should be treated as matrimonial property.” As we know, that argument failed (for reasons we will come to in a moment), but the husband was nevertheless heavily criticised for his behaviour.
As Moylan LJ pointed out, Judge Wildblood was:
“… very critical of the husband’s approach to disclosure which he described as having been “very poor indeed”. He had produced “a deluge of partial information and patent misinformation”. His evidence had been under-researched and, at times, “deliberately obstructive”; it, and the evidence from his other two witnesses, contained “inaccurate and conflicting information on major matters relating to the past”.”
This is pretty serious stuff. It wasn’t just that the husband was being economical with his disclosure, omitting to disclose everything he should. It went much further than that: it purposely included misinformation, and was deliberately obstructive, on “major matters” relating to the critical issue of his past financial dealings. Now, one would expect that a party behaving in such a fashion would be penalised in some way, perhaps even in the amount of the settlement that they receive. But here the husband appears not to have been penalised in any way. Indeed, it is almost as if he has been rewarded.
How could this be? Moylan LJ explains at paragraph 101:
“…I do not accept [counsel for the wife’s] first ground of appeal, namely that because the judge was unable to carry out the formulaic approach, in part because the judge was unable to ascertain the “true value” of the husband’s pre-marital wealth, he should have awarded the wife a half share. Deficiencies in evidence and/or litigation conduct do not mandate a particular outcome. A judge still has to make findings on such evidence as there is, including by drawing such fair inferences … or adverse inferences as may be appropriate.”
He went on:
“This applies equally in the present case, notwithstanding the judge’s findings as to the deficiencies in the husband’s evidence. I acknowledge the strength of the judge’s criticisms as to the extent of the husband’s failures but the judge was still required to make such findings as he considered justified. Even in cases where a respondent has failed to engage at all with the process, a court will still have to make findings, however broad or abbreviated, as to the scale of the resources. This is because, inevitably, the judge will have to determine that the proposed award is one which the respondent can meet and which is fair.”
As to the effect of this upon the wife, he concluded (at paragraph 111):
“…I do not consider the wife has suffered the consequences of the husband’s litigation misconduct. The judge was plainly aware of this factor and, nevertheless, concluded that his proposed percentage award was fair.”
That may be so, but all of this still leaves a bad taste. And the biggest worry is that anyone else reading the case might be encouraged to be less than forthcoming on disclosure, or even deliberately obstructive. Now, of course this case does not mean that they will get away with it, but the mere fact that they engage in such litigation misconduct is likely to cause the other party much unnecessary stress and expense, which they may be unable to recover. It may also make the court’s job considerably harder than it should be.
Photo courtesy of Mayberry Health and Home.
September 13, 2017
Categories: Family Law