“IT SHOULD BE UNDERSTOOD THAT DELIBERATE FLOUTING OF ORDERS, GUIDANCE AND PROCEDURE IS A FORM OF FORENSIC CHEATING AND SHOULD BE TREATED AS SUCH”

In Xanthopoulos v Rakshina [2022] EWFC 30 Mr Justice Mostyn considered some key aspects of procedure, including costs and transparency.  Here we look at that part of the judgment that deals with compliance with the rules.

“This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored.”

THE CASE

The judge was considering applications during the course of financial remedy proceedings.

THE JUDGMENT ON PROCEDURE AND PREPARATION FOR THE HEARING

The judge was less than impressed with the preparation of both parties for the hearing, in particular the failure to comply with court orders, rules and Practice Directions.

1. 1. The preparation for this hearing can only be described as shocking:

i) Paragraph 15 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings provides that skeleton arguments for interim hearings must not exceed 10 pages. The husband’s skeleton argument ran to 24 pages and the wife’s skeleton argument ran to 14 pages.

ii) Skeleton arguments were due by 11:00 on the working day before this hearing. Both parties filed late. The husband’s skeleton argument was filed only on the morning of the hearing. The wife’s skeleton argument was filed at around 17:30 the day before the hearing.

iii) Paragraph 18 of Sir Jonathan Cohen’s order dated 15 March 2022 provided that the husband’s statement was to be filed and served by 12:00 on 21 March 2022. The husband’s statement is dated 22 March 2022. I do not know when it was filed, but I am told by the wife’s representatives that it was only served on her on 24 March 2022.

iv) Paragraph 20 of that same order provided that the parties’ statements to be filed and served for this hearing would be limited to 6 pages each with any exhibit accompanying the same limited to 10 pages (a total of 16 pages). The husband’s statement ran to 11 pages and its exhibit ran to 15 pages (a total of 26 pages). The wife’s statement also ran to 11 pages and its exhibit ran to 28 pages (a total of 39 pages).

v) FPR PD 27A paragraph 5.1 provides that unless the court has specifically directed otherwise that there shall be one bundle limited to 350 pages of text. I have been provided with four bundles respectively containing 579 pages, 279 pages, 666 pages, and 354 pages (a total of 1,878 pages).

1. 1. This utter disregard for the relevant guidance, procedure, and indeed orders is totally unacceptable. I struggle to understand the mentality of litigants and their advisers who still seem to think that guidance, procedure, and orders can be blithely ignored. In Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 WLR 1993, paras 50-51, Sir James Munby P, having referred to “a deeply rooted culture in the family courts which, however long established, will no longer be tolerated”, continued:

“I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders.”

That was nine years ago. But nothing seems to change. In the very recent decision of WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Peel J astutely pointed out at [1(i)]:

“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?”

It should be understood that the deliberate flouting of orders, guidance and procedure is a form of forensic cheating, and should be treated as such. Advisers should clearly understand that such non-compliance may well be regarded by the court as professional misconduct leading to a report to their regulatory body.