The devastating effect of non-disclosure
By:6 commentsSeptember 26, 2017
I have written here often about the duty of the parties to comply with the requirements of the court, and of the possible consequences if they do not. I have done so primarily to provide some basic advice to parties to family litigation, particularly those who do not have the benefit of legal assistance. Sadly, in my 25-odd years of practising as a family lawyer I came across non-compliance all too frequently, and I fear the problem may now be even worse, in these post-legal aid days that are dominated by the litigant in person.
Failure to comply with court orders and rules occurs in every type of family proceedings. However, it is perhaps most prevalent in financial remedy proceedings, where one or both of the parties are reluctant to disclose details of their means, and seem to think that by not doing so they will get away with hiding their assets from the court, thereby denying the other party a share of them. In the vast majority of cases they will not get away with any such thing, and far from helping their case their non-disclosure will actually make things much worse for them.
Another in the long line of cases in which one party had failed to make financial disclosure was published last week. It is the case LFL v LSL, which I mentioned here in my weekly review last Friday. LFL v LSL is a rare instance of a judgment of a district judge being published. The particular reason why it was published was that it detailed the appalling behaviour of a McKenzie friend, who disrupted the proceedings and was eventually excluded from the courtroom. However, there was much else going on in the judgment including, in particular, the issue of non-disclosure by the husband.
The judgment concerned the final hearing of the wife’s application for financial remedies. For the purposes of this post, I do not really need to rehearse the facts of the case, save to say that the wife was represented by lawyers, and the husband was a litigant in person.
The husband’s litigation conduct, or more accurately misconduct, is set out by the district judge in paragraphs 19 to 54 of his judgment. The wife had two complaints in relation to this: firstly that the husband had failed to comply with rules of court and orders, and secondly that he had failed to provide any or any adequate disclosure.
I will summarise the most serious of the husband’s failures as follows:
1) When the wife issued her application the husband was served with notice of the application, explaining that he should file the usual documents, including a form E financial statement, a statement of issues, a chronology, and a questionnaire setting out the further information and documents he required from the wife. He failed to file any of these documents, as a result of which the first appointment was abortive.
2) When the Financial Dispute Resolution (FDR) hearing took place the husband had still not filed his form E, despite the court ordering him to do so. The district judge therefore required him to complete a form E at court. The husband did so, but the form was incomplete and much of it was indecipherable.
3) The husband then filed a second form E, despite not having the required permission from the court to do so. Once again the form was incomplete and indecipherable. It also lacked the documentation that should be attached to a form E.
4) Following the FDR the judge ordered the parties to answer and provide further documents in response to the other party’s questionnaires. The wife’s questionnaire was never answered, and the husband never served a questionnaire.
5) The court ordered a joint valuation of a property in Spain. The husband did not participate in the instruction of the valuer. Instead, he chose to dispute the valuation at the final hearing and sought to adduce evidence from the internet and other agents relating to other properties, without any warning before the hearing that he intended to do so.
6) The court ordered the parties to file a statement dealing with the dates that their pensions accrued. The husband failed to comply, despite the fact that, as the district judge pointed out, to have complied may well have been to his advantage, as at least part of the accrual of his pensions must have been before the marriage, and therefore may have reduced the amount that the wife would receive (as I said above, non-disclosure can make things worse!).
7) The judge ordered that each party openly set out their proposals no less than 14 days before the date fixed for the final hearing. The wife complied, but the husband did not.
8) As the husband had still not answered the wife’s questionnaire, the court made another order requiring him to do so. Again, he failed to comply.
The district judge explained the effect of the husband’s failures as follows:
“The husband’s total disregard of the rules and court orders has had the effect of forcing the wife to a final hearing … the wife, even on the day of the hearing did not know the case she had to answer or what the husband really sought as being fair. This has caused costs to be escalated and must be taken into account when deciding whether to make any order for costs and if so, what order to make, in due course.”
He went on:
“Non- disclosure has a devastating effect. It prevents the court from considering all of the evidence that could have been available and forces the court into the unsatisfactory position of having to make assumptions as to the existence of certain assets and other relevant facts.”
So, how did all of this affect the outcome? Well, the husband’s various failures resulted in him being ordered to pay the wife’s costs of the proceedings, in the sum of £21,285. The assets in the case were really quite modest, and that was a significant sum – no doubt sufficient for the husband to reflect upon the folly of his litigation (mis)conduct.
The full report of the case can be found here.
Photo by jridgewayphotography via Flickr under a Creative Commons licence.
September 26, 2017
Categories: Family Law