Judicial exhortations and deaf ears

Family Law|January 12th 2016

It is the nature of things that many family law judgments relate to proceedings that are highly contested and that have been on-going for some considerable time. And it is generally accepted that there are some cases of that nature where resolution is very unlikely without the intervention of the court. I would suggest these are few and far between, and that it should be possible to settle most such cases by agreement between the parties provided, of course, that both take a reasonable position and make a genuine effort at settlement.

This basic truism can be a great source of judicial exasperation. I’ve long since lost count of the number of times I have seen a judgment concluded with an exhortation to the parties to resolve their dispute by agreement, rather than persist with damaging, expensive and highly contested litigation.

The most recent example of such an exhortation I’ve encountered came at the end of Lady Justice King’s judgment in Li Quan v Bray, which has just been published on Bailii. I won’t go into the details of the judgment as it has already been covered here in this post, but this was the ‘Tiger charity’ case, in which the court decided that the wife was not entitled to claim a share of the funds in a Tiger preservation charity run by her husband. The newly published judgment concerns the Court of Appeal’s decision to grant the wife permission to appeal against that decision.

The final paragraph of Lady Justice King’s judgment in the Court of Appeal merits quoting in full. It reads as follows:

“Given the ferocity of the litigation to date, I fear the observations which I feel compelled to make will fall on deaf ears; nevertheless I would urge most strongly that the parties attempt to find a way through to a resolution of these proceedings in their totality. Failure to do so will lead this appeal being heard some months down the road and, if the appeal is allowed, a full rehearing probably as much as a year after that, at huge cost both financially and emotionally for this husband and wife. Such an appeal, it must be remembered, would not mark the end of the litigation whatever the outcome. Both parties have the benefit of highly experienced specialist legal teams, well versed in achieving settlements in cases which at first blush appear to be incapable of being settled. I would entreat the parties rather than now focusing only on the appeal, to use the intervening months to concentrate instead on achieving an agreed resolution to the case.”

Sometimes the parties to family proceedings are so hell-bent upon achieving what they perceive to be their entitlement that they can be quite blind to the effects of their actions. But judges, of course, are not blind to the damaging consequences of highly contested litigation – they see those effects every day, and it must be highly frustrating to see litigants making the same mistakes over and over, hence the frequency of such appeals to reason.

It would be interesting to know just how often judicial exhortations of this kind are heeded by the parties involved. Unfortunately, there is often no way of knowing, unless you are personally involved in the case. Sometimes the case gives rise to a further judgment which indicates (usually) that the judicial warning has indeed fallen on deaf ears, as Lady Justice King feared in Li Quan v Bray, but more often than not we hear nothing more about the case. Of course, that may be an indication that the parties were able to settle, but could also simply be because any further proceedings were not reported.

The moral, though, is clear: if you receive such a judicial exhortation, then pay attention to it!

The full judgment in Li Quan v Bray can be found here.

Author: Stowe Family Law

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