How not to conduct a financial application

Divorce|December 4th 2014

The case Thiry v Thiry hit the national headlines yesterday for a variety of reasons, including the sum awarded to Mrs Thiry and the general conduct of Mr Thiry, which prompted Sir Peter Singer, who heard the case, to use the words ‘manipulative’, ‘sadistic’ and ‘unprincipled rogue’ in relation to him. Interesting though all of that may be, it is not of particular application to other cases. However, Mr Thiry’s conduct in relation to the proceedings is, and is in many ways a model of how not to conduct a financial remedies application.

There is so much to say about Mr Thiry’s conduct of the proceedings that I could not possibly mention it all in a post of reasonable length, so I will just pick out a few things that I think are of relevance to others involved in financial remedy proceedings following divorce.

Take, for example, Mr Thiry’s Form E, the financial statement required to be filed by everyone involved in financial remedy proceedings. As one can imagine, and as I certainly came across myself many times whilst I was practising, many parties are reluctant to disclose full details of their means in their Form E. Mr Thiry’s conduct in relation to his Form E certainly left something to be desired.

Firstly, Mr Thiry did not file his Form E by the required date, only filing later after the court made an order requiring him to do so, with a penal notice attached indicating he could be committed to prison for contempt if he did not comply. Late filing of Form Es was in my experience all too common. All it achieves is further delay and costs, plus it puts a ‘black mark’ against the offending party which is unlikely to do them any good, particularly if they are also guilty of other misconduct within the litigation.

Secondly, as Sir Peter Singer stated, Mr Thiry’s Form E “incongruously stated total capital of £42,700 but income (including benefits of various kinds) of £960,250 both for the previous year and projected forward for the next one”, disowning any value in substantial business interests. However, as Sir Peter Singer pointed out, Mr Thiry later wrote an email which stated that in August 2013, the month in which he filed his Form E, his net wealth was £50,550,000.

Of course, the other party does not have to accept at face value what is stated in a Form E. Accordingly, once Form Es have been exchanged the procedure allows for each party to send a questionnaire to the other, requesting further information and/or documentation regarding their means. The receiving party must reply to all reasonable questions contained in the questionnaire, within a certain time limit. Again, some parties are reluctant to give full replies.

Mrs Thiry’s lawyers were not satisfied with Mr Thiry’s replies to her questionnaire, and a schedule setting out the deficiencies in his replies was prepared. The court ordered Mr Thiry to reply to this schedule, but he failed to do so. This again added to the costs and delay, and ultimately led to Mr Thiry being committed to prison for contempt for failing to comply with the order. The committal order was only not executed because Mr Thiry remained in Belgium, out of the reach of the Tipstaff.

Moving on, Mr Thiry tried to raise the issue of Mrs Thiry’s conduct outside of the litigation, as something that the court should take into account. This is also a common course that parties involved in financial applications like to take. However, as I have said here previously, it is quite unusual for a claim that such conduct should be taken into account in a divorce settlement to be successful, and therefore conduct allegations should only be made after careful consideration. Mr Thiry’s allegation was that Mrs Thiry maliciously denounced him to the Belgian tax authorities, causing him financial and other reputational damage. The court made an order requiring Mr Thiry to specify whether he intended to proceed with the allegation. Mr Thiry failed to comply with the order.

The final aspect of Mr Thiry’s conduct of the proceedings that I want to mention is his failure to appear or even be represented at the final hearing, despite the rules requiring him to attend and despite a warning from the court that if he failed to do so the court may proceed in his absence. The court even suspended the committal order mentioned above, “giving him safe passage for the purpose of preparing for and appearing at final hearing”. Needless to say, not attending did not go well for Mr Thiry, with the court making an order in his absence for him to pay £17 million to Mrs Thiry, plus substantial costs.

In short, as Sir Peter Singer said, the defective aspects of Mr Thiry’s response to court orders and directions illustrated “his attitude of contempt for these proceedings and indeed for his wife”. Obviously, such conduct is never going to end well. So, whether you are a multi-millionaire or in receipt of benefits, the best policy is to comply with the rules and orders of the court.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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