“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE
In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making pejorative assertions about the above party.
“This is completely unacceptable, and W’s legal team should not have permitted it to happen. Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored. The purpose of the restriction on statement length is partly to focus the parties’ minds on relevant evidence, and partly to ensure a level playing field. Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage?”
“Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude or what Coleridge J once famously described disapprovingly (albeit in a slightly different context) as a “rummage through the attic” of the marriage …”
THE CASE
The judge was giving judgment in financial remedy proceedings. The judgment contained some comments about preparation for the hearing.
i) By order made by me at the Pre-Trial Review, the parties’ s25 statements were limited to 20 pages of narrative. Para 5.2 of PD27A mandates that narrative statements, among other documents, shall be typed in “a font no smaller than 12 point and with 1 ½ or double spacing”. H complied. W’s statement purported to comply in that it consisted of 20 pages, but because it used smaller font and spacing it was, in fact, about 27 pages compressed within the 20 page limit provided for by me. The consequence is that her statement was about 33% longer than H’s. This is completely unacceptable, and W’s legal team should not have permitted it to happen. Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored. The purpose of the restriction on statement length is partly to focus the parties’ minds on relevant evidence, and partly to ensure a level playing field. Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage?
ii) By para 11 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings, s25 statements must only contain evidence, and “on no account should contain argument or other rhetoric”. In this case, W’s over long statement crossed the line and descended into a number of personal, and prejudicial matters, directed at H which, in my view, were irrelevant to the matters at hand. Parties, and their legal advisers, may be under the impression that to describe the other party in pejorative terms, and seek to paint an unfavourable picture, will assist their case. It is high time that parties and their lawyers disabuse themselves of this erroneous notion. Judges will deal with relevant evidence, and will not base decisions on alleged moral turpitude or what Coleridge J once famously described disapprovingly (albeit in a slightly different context) as a “rummage through the attic” of the marriage in G v G [2002] EWHC (Fam) 1339.
iii) Approximately 1 week before the trial, I was notified of a bundle issue. W, in putting together the first draft of the bundle index, included a 102 page section of narrative comments by W and fresh property particulars, directed towards the issue of her housing needs. No notice had been given to H, who objected. I was asked to rule on paper. I largely acceded to H’s objections, concluding that this was an attempt to introduce fresh evidence, although I allowed the inclusion of W’s comments on properties already produced in evidence.
iv) After the parties had exchanged and lodged skeleton arguments, H served updating disclosure. W objected either to the updates being adduced in evidence, or to the updated figures appearing in the composite schedules. I therefore started the trial with competing composite schedules, which was thoroughly unsatisfactory and defeated the purpose of having composite schedules in the first place.
v) The working day before the hearing, H served on W a financial analysis of matrimonial expenditure through the parties’ joint account in 2018 and 2019. The itemised schedule consisted of thousands of entries. W’s legal team unsurprisingly objected to late receipt of this analysis. Commendably, in short order, they responded with a schedule of their own in respect of sole accounts so as to give a more complete picture. I deprecate the practice, which appears to be prevalent, of lawyers producing at the eleventh hour spreadsheet analysis of expenditure during the marriage (and/or since separation) based on primary documents such as bank and credit card statements which have been in their possession for many months. If an exercise such as this is to be relied upon, it must be provided well in advance of the final hearing (I suggest before the PTR or final directions hearing) so that the issues, and evidence, can be properly identified and case managed.
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It seemed to me at the start of the trial that far and away the most material aspect of the case was W’s reasonable needs. By the end of the trial, my view on that had not altered. It is a moot point whether the wide-ranging, and at times bad-tempered, inquiry by the parties into a multiplicity of other issues achieved much of value.