When involved in court proceedings, don’t be difficult

Family Law|September 17th 2015

It’s an obvious thing to say, but people don’t like being taken to court. It’s not generally a pleasant experience (and one which should be avoided if possible), but for some it goes much deeper. They can see it as an intrusion into their privacy when the court requires them to disclose details of their personal and/or financial circumstances. They can also be aggrieved that the court might have a quite different view from their own very strong sense of what they consider to be right and wrong.

In such circumstances, it is not unusual for parties to become obstructive towards the court process, to try to abuse the process to their own ends, or simply to constantly challenge decisions of the court, in the hope that they will ultimately get their own way. Needless to say, such difficult behaviour is only going to make things worse, rather than better. It will not be tolerated by the court, it drives up costs unnecessarily and it drags proceedings out. It may be human nature, but it is to be avoided.

Just this week I came across a couple of examples of this behaviour, in two reported cases. Before I talk about them I should explain two things. Firstly, for the purposes of this post I will not be going into the details of the cases, which may or may not provide an explanation, or a partial explanation, for the actions of the parties. Secondly, I am not necessarily saying that the parties did what they did with the intention of being difficult – on the contrary, they may have genuinely believed that they were doing the right thing.

The first case was Welch v Welch, which concerned various applications by the parties, following a final financial remedies hearing. It was described by Mr Justice Holman as “bitter and intense litigation”, which gives a good idea of what he was faced with. A lot was going on in this case, so I can only give a flavour of it here.

Take, for example, this, from Mr Justice Holman’s judgment:

“It is quite clear that during the course of much of this marriage the wife continued to be engaged in litigation against her previous, first husband, Mr Harrison. As will emerge, that has had a profound effect upon their subsequent financial situations. In judgments in the present proceedings District Judge Hess has, in a number of places, described the approach of the wife both to that litigation against her first husband and this litigation against her second husband as obsessive, or obsessional, and indeed irrational.”

Needless to say the wife was not satisfied with the final order made by District Judge Hess, and sought to appeal. In her appeal she claimed that there had been non-disclosure by the husband, and deception by him of District Judge Hess. The matter went before Mrs Justice Roberts, who concluded that there had not been any significant non-disclosure, or lies, or misleading of the court and therefore refused permission to appeal.

Mr Justice Holman takes up the story:

“It might have been thought that the matter would then have come to some rest, but the wife issued a further application to vary the maintenance order that District Judge Hess had made so relatively recently as 9 September 2014.”

A hearing took place on 2 June last. The wife appeared in person, and made an application for District Judge Hess to recuse himself, on the grounds that District Judge Hess and the husband’s barrister had some sort of familiarity with each other, and specifically that they had both spoken together at a seminar a few months earlier. Needless to say, District Judge Hess refused to recuse himself – judges and barristers often meet at social events, and if judges had to recuse themselves in all such cases, very few cases at all could be heard.

The wife, though, did not leave it there. Amongst the many applications she put before Mr Justice Holman was one for permission to appeal from the decision of District Judge Hess not to recuse himself (Mr Justice Holman refused). She also sought to appeal against the financial remedies order, claiming there had been various Barder events. Mr Justice Holman found that there was no ground for an appeal based upon a subsequent Barder event.

And so it went on. We will leave Welch v Welch there, save to give the wife some credit for the fact that she was representing herself in a situation where, if legal aid were still available, she would probably have had the benefit of proper legal advice. This is a point made by Mr Justice Holman at the end of his judgment, and I have previously myself talked here of the sort of bad decisions that litigants in person can make without proper advice.

Welch v Welch was an example of a litigant constantly challenging the decisions of the court, in the hope that they will ultimately get their own way. The other case I want (briefly) to mention, DL v SL, also included an example of a party who simply seemed to want to obstruct the court process.

DL v SL was another financial remedies case. The judgment in question was handed down by Mr Justice Mostyn. I don’t need to explain what he had to decide, but here is an extract from the judgment:

“The husband has, I am told, filed no fewer than eighteen witness statements. In the course of the case he has made a number of ugly threats to the wife and her solicitors, including daring them to take him on and including saying that “this will be the case of the century”.”

The husband applied to adjourn the hearing before Mr Justice Mostyn, on medical grounds. In refusing the application Mr Justice Mostyn pointed out (with my underlining):

“Counsel [for the wife] refers to the history of this case, where every order has been challenged by the husband most often by way of appeal. Indeed, his most recent applications for permission to appeal against the orders made on 6th February 2015 and 19th March 2015 have both been dismissed by Lord Justice Lewison in the Court of Appeal on 15th July 2015. Almost every other order has been challenged by way of an appeal or by an application for an adjournment.”

This sort of behaviour is futile and increases costs, delay and the stress of litigation. If you want to get through litigation in one piece, then take a deep breath, put your personal feelings and animosity to one side, and comply with the wishes and the will of the court, unless you have genuine grounds for an appeal.

In short: Don’t be difficult!

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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  1. Andrew says:

    The Welch case annoyed me because H’s liability was so structured as to avoid any of it going to W’s judgment creditor – what is all that about?

    And it is also wrong that he should have to pay maintenance when W owes him more in costs than he will be paying under the order. There should have been a set-off.

  2. Luke says:

    In short: Don’t be difficult!
    Unfortunately being difficult WORKS when you have the financial advantage – due to our Family Court system and its desire to make as much money as possible.
    If you have enough money (or you are on legal aid) you can drag out the whole process and force your ex-spouse back to court on child issues that have already been ruled on over and over and over and over again – and the Judge will force the ex-spouse to pay their own costs – and even the costs of revisiting the mediators that you’ve already seen the year before !
    In this way the court colludes with the richer ex-spouse (or the one on Legal Aid) in piling up the lawyer/barrister/mediator/psychologist costs and forcing the poorer ex-spouse (or the one not on legal aid) to surrender to their demands or go in to court unrepresented or be made penniless.
    Please don’t anybody try and bulls**t me by telling me this can’t happen in our ‘wonderful’ Family Court system because I’ve been watching at close quarters such a case play out for the last few years…

  3. Nordic says:

    Of course, this kind of nonsense could not happen in most other jurisdictions in North West Europe. Legally binding regimes for division of matrimonial assets and much tighter limits on spousal maintenance have largely removed financial cases from the courts. It happens here all the time because the courts insist on complete, totally unnecesarry, discretion. The resulting random chaos is fertile ground for instigating acrimony and conflict between the parties, who most often are also parents.
    I find the hand-wringing faux sadness expressed by judges, lawyers and other family law professionals (and bloggers) in cases such as this, hypocritical in the extreme. This kind of litigation nonsense is what you all want and what the system is designed to encourage. If children were really the paramount consideration, our family law would look completely different. It is the way it is, because it’s purpose is to serve vested financial interests. You should all be giving each other high fives at the spectacle of a case such as this one. At least that would be honest.

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