Litigation misconduct in family law

Litigation misconduct can cover a range of scenarios in family law proceedings, including:

• Delay or failure to comply with court orders;
• Refusal to provide full and frank financial disclosure;
• Filing unnecessary or unjustified applications; and
• Running bad arguments that are obviously going to be unsuccessful

Importantly, it does not relate to the parties’ behaviour during the marriage.

Effects of misconduct

Bad behaviour in the Family Court often leads to delay within the already lengthy court process. It could temporarily frustrate the proceedings altogether if one party refuses to provide an address for service of an application. Additional hearings may be required if one party fails to provide certain necessary disclosure. It may also lead to hearings being adjourned at late notice because one party is not prepared and the hearing can’t therefore be effective. Being on the wrong side of litigation misconduct will increase legal fees. There will be the extra costs of chasing the opponent, additional hearings and possible third-party orders. The level of mistrust between the parties will likely be heightened and an even greater level of scrutiny or forensic evaluation of any disclosure that is received may be required. There is also the emotional toll of being on the receiving end of litigation misconduct.

Often clients are desperate to reach a resolution so they can have closure from their marriage and move forward, but such conduct only serves to prohibit that. Often the perpetrator’s behaviour is designed to elongate proceedings and avoid negotiations as a means to continue to control their spouse or opponent and keep a tie to them.

Is there any recourse?

When dealing with a person intent on causing disruption, practitioners must be inventive with their approach and keep the momentum in the proceedings. Options to consider are:

Disclosure orders

In financial remedy proceedings, if one party refuses to provide full and frank disclosure, it is open to the other party to apply to court for authority to liaise with banks, pension providers, employers and the like on behalf of the non-compliant party. Such an application can be used to obtain missing information, but is only really a viable option if the applicant has basic knowledge of the assets.

Costs applications

FPR 28.3(6) states that an order for costs may be made where appropriate because of the conduct of a party in relation to the proceedings. Where a court hearing or application (such as for third-party disclosure orders) is only required because of one party’s non-compliance, the other party can apply for their costs to be paid. Similarly, they have the opportunity to claim costs if the opposing party brings unwarranted applications or runs a legal argument that is bound to fail. The difficulty is, even if a party is successful in their claim for costs, the question of enforceability arises. If someone is intent on breaching court orders, it is unlikely they will pay an order for costs. Often there will need to be a mechanism for the costs to be paid, for example from the sale of an asset.

Contempt proceedings

If a party consistently disobeys court orders – for example, if they repeatedly breach directions of the court or fail to pay costs orders – it is open to the other side to bring contempt proceedings against them. If the court finds the individual is in contempt of court, they have the power to impose a period of imprisonment, a fine or confiscate assets.

Parties are often extremely reluctant to pursue contempt proceedings. First, there is the additional cost associated with running an extra set of proceedings. Secondly, there are the likely consequences contempt proceedings may have on their family (and children) and, in financial matters, the financial settlement. For example, if a party is found in contempt of court, it may affect their employment status or reputation, which may hamper any financial settlement. Other options include:

• Asking the court to accelerate the process to a final hearing so that finality can be reached as soon as possible;
• At a final hearing, asking the court to make adverse inferences against the non-compliant party.

Victoria Spencer is an associate with Seddons seddons.co.uk