The power of the court to deal with the failure to obey orders

Divorce|Family Law|September 20th 2018

I’ve often stated on here that orders of the court should be obeyed. It’s an obvious point, and shouldn’t really need stating, but it does, as too many people think that they are somehow exempt from obeying court orders. I know, for example, that some people take exception to me saying that orders must be obeyed, but I do not do so to annoy them or anyone – my intention is just to give some very basic advice, for the benefit of all involved in court proceedings.

The latest in the never-ending list of cases in which a party fails to comply with court orders is LKH v TQA AL Z (Interim maintenance and pound for pound costs funding), the latest judgment in which was handed down by Mr Justice Holman in the High Court on the 24th of July, and which has just been published on the Bailii website. It gives an important demonstration of the power of the court to deal with such failures.

The case concerned an application by a wife for interim maintenance, in the context of proceedings following a foreign divorce. It should be pointed out that the family has great wealth and, as Mr Justice Holman stated in an earlier judgment,

“having access to great wealth, the parties have enmeshed themselves into litigation of the utmost intensity.”

The latest judgment concerns

“a grave picture of non-compliance by the husband”

with orders previously made by the court.

One of the orders required the husband to file a Form E financial statement by a certain date. Goodness, it is so boring hearing of yet another party failing to file their Form E by the time required by the court. I remember this happening in virtually every case when I was practising, and it is still rife today. So here’s a simple piece of advice: you will have to file your Form E eventually, so the sooner you do it the better for all concerned, including yourself. (If you are struggling to fill this – read our advice here.)

But this was not the end of the husband’s ‘defiance’ (to use the word of Holman J). He had also failed to pay various sums, including interim maintenance he had been ordered to pay to the wife, and the sum of £40,000 per month he had also been ordered to pay, to cover the wife’s legal costs. As a result, he owed the wife some £230,000. He claimed that he could not make these payments, but he did manage to find the sum of £95,000 to pay to his own solicitors, who he had just instructed, in place of his previous solicitors.

Needless to say, Mr Justice Holman was not impressed by the husband’s antics. Accordingly, he made an injunction prohibiting the husband from paying any further money to his solicitors unless he paid an equal amount (i.e. pound for pound) to the wife’s solicitors towards satisfaction and discharge of the arrears and current instalments of the costs order referred to above.

The husband’s barrister objected to the injunction, saying that it denied the husband the means of obtaining legal advice, which he submitted was contrary to principle and was impermissible. Mr Justice Holman rejected this: the injunction was not intended to deny, nor was it denying the husband the means of obtaining legal advice. As far as he was concerned, the husband could go straight out and pay £100,000 to his solicitors for further legal advice, the only condition being that he also paid pound for pound £100,000 to the wife’s solicitors.

Mr Justice Holman concluded with these strong words:

“It is, frankly, intolerable and an affront to justice that in the last month this man paid £95,000 to his new solicitors at the very time when he was already in arrears and getting further into arrears with his wife and her very patient and long-suffering solicitors in the amounts I have described … I am quite satisfied that the order which I propose to make is well within the jurisdiction of the High Court and well within my discretion and that the facts and circumstances of this case now require and justify such an order.”

It would be nice if those considering breaching such costs orders were aware of this decision. The message is clear: if the other party cannot have access to proper legal advice, then neither can you.

You can read the full judgment here.

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.

Comments(4)

  1. spinner says:

    No mention of women who ignore child contact orders and the court does nothing as per usual. It’s all about the money with you lot.

  2. S Kurup says:

    Please can joi help me as I am desperate . Consent order Agreed Oct 2016 but lost by court so was not stamped until oct 2017. I am the applicant and have not applied for absolute yet as pension sharing order was a joke. ( based on out of date Calculation as actuary forgot to apply to get recent ccv)
    The consent order clearly stated we had identical incomes based on pensions as he said he could not work. However since October 2016 he has worked and received some £200,000 Gross including pensions. For 2017 he gave me 60p maintenance only and in 2018 £9000. He has not produced his tax forms, company accounts as per the order and we obviously have no equity of income. The court forced me to pay the mortgage at £3000 pm although I am not employed. I have defaulted on payment for the last 2m and he refuses to
    1.pay maintenance at a reasonable level claiming he has no money and a £20k tax bill
    2. Refuses to pay joint mortgage
    3.I have proof of his earnings which he emailed to me( his mistake)
    Can I use a form D11 as he has breeched the consent order and how do I vary maintenance as I have no money and are self representing ?
    Please help me as the bank will repossess the house and I have no money to live. I am 59 and he is 62 and we have been married for over 32 years . I am the applicant and nisi went through in August 2014 .

  3. JamesB says:

    Three things. 1. The obvious point that you expect compliance with ancillary relief orders when family arrangements (contact) orders are broken with impunity and contact is given disproportionally to the mother against fathers wishes or capabilities or conduct.

    2. What about compliance with undertakings?
    3. Most important, technical query, what about compliance with the pre amble, upon the respondent (or applicant) agreeing to … it is ordered that … Is that pre amble legally binding as it is not part of the order?

    Perhaps I am the only one who struggles with these recaptchas.

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