Wife fails to have financial order set aside in ‘whistle-blower’ case

Divorce|February 28th 2019

When I wrote about the case Saxton v Bruzas (or Bruzas v Saxton) here briefly back in June last year I speculated that we might be hearing a lot more about it, as it had the potential to be very significant. In the event, the case has turned out not to be as significant as it might have been. Nevertheless, it is still of interest, and it contains a lesson for anyone who thinks they may have had a bad deal from a financial remedy order made by the court.

The headline feature of the case is that it involved a paralegal employed by the firm of solicitors who had been acting on behalf of the husband ‘whistle-blowing’ by sending documents to the court which the wife suggested indicated that the husband and his legal team had committed perjury and perverted the course of justice. As one might guess, such a finding by the court would be quite significant.

The circumstances surrounding all of this were, briefly (and in simplified form), as follows.

The husband commenced divorce proceedings in 2013. Negotiations took place to resolve financial matters. The husband was represented by lawyers throughout, but the wife was not always represented, and did not have lawyers when a settlement was reached and a consent court order was submitted to the court, to give effect to the settlement.

A consent order is not simply ‘rubber stamped’ by the court, just because the parties agree to its terms. The court must be satisfied that the terms are broadly reasonably, before it approves the order. Here, the Deputy District Judge was not so satisfied, commenting that it was far from clear what the net effect of the order would be, nor was it clear that it was reasonable to dismiss the wife’s claim for maintenance, in view of the large disparity between the parties’ incomes.

The court sent a letter setting out these comments to the husband’s legal team, but the letter was not sent to the wife. The husband’s lawyers replied to the Deputy District Judge’s comments, and their letter was copied to the wife. The order was then amended and signed by both parties. The Deputy District Judge was satisfied, and the order was made, in March 2014.

In February 2016 the wife made an application to set aside the order, on the basis of an alleged failure by the husband to make proper disclosure of his financial circumstances. On the day before the judge, Mrs Justice Parker, was due to hand down her judgment on the application she received an unsolicited email sent anonymously to the court suggesting that the husband’s lawyers had deliberately withheld the letter from the court from the wife, for fear that its contents would cause her to withdraw from the agreement, and seek a more favourable settlement.

Mrs Justice Parker found that the wife had not seen the letter from the court, but concluded that it was not proved that that was as a result of a deliberate cynical and manipulative tactic by the husband’s lawyers.

The wife claimed that if she had been aware of the letter she would have thought twice about agreeing to the settlement. However, Mrs Justice Parker did not accept this, and said:

“In those circumstances, I have come to the conclusion that this is a case very familiar in this area of litigation where the wife has, for understandable reasons, come to the conclusion that she has had a bad deal from the financial remedy order made. That she has thought better of it and has in her own mind reworked the events so as to justify her application.”

Accordingly, the wife’s application was dismissed.

That was not the end of the matter, however. The whistle-blower then sent further documentation to the court regarding the alleged actions of the husband’s lawyers in relation to the letter from the court, and the wife applied to set aside the order dismissing her application.

This application fell to be heard by the President of the Family Division, Sir Andrew McFarlane. In order to keep this post to a reasonable length, I will not go into the details of his judgment. Suffice to say that he found that even if the further documentation was admissible (which he did not think it was, as it was protected by legal professional privilege), it did not take the wife’s case any further, as it did not change the picture significantly, certainly not sufficiently significantly to justify reopening the case.

In the circumstances the wife had no new evidence, and her application was in reality no more than an attempt to reargue the same material as was before Mrs Justice Parker. Accordingly, the application was refused.

As I said at the outset, this case contains a lesson for anyone who thinks they may have had a bad deal from a financial remedy order. Such orders are meant to be final, and therefore they will not be re-opened by the court without good reason. Before seeking to have the case re-opened you must therefore be sure that you have such a reason, and not fall into the trap of manufacturing a reason (consciously or otherwise) by reworking the events surrounding the making of the order.

You can read the President’s full judgment here.

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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