The Rules are the Rules – Ignore them at your peril!

Family practitioners are warned that deliberate flouting of orders, guidance and procedure is a form of ‘forensic cheating’ and such professional misconduct may lead to advisors being reported to their regulatory body.

In the recent decision of Xanthopoulos -v- Rakshina [2022], Mr Justice Mostyn re-emphasised the court’s expectation on practitioners to follow the relevant guidance, procedure and orders in all cases that are conducted in the Family Court. He described the preparation for the hearing as ‘shocking’ and bemoaned the complete disregard of the requirements set out in the High Court Statement of Efficient Conduct of Financial Remedy Proceedings. In particular:

• On both sides the skeleton arguments significantly exceeded the permitted 10-page limit for interim hearings and were filed late (see para 15 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings).
• The husband’s narrative statement was filed late and both sides significantly exceeded the permitted page and accompanying exhibit limits set by the court.
• In breach of FPR PD27A the bundle for the hearing consisted of 4 A4 size ring binders totalling 1,878 pages (see PD27A para 5.1 which limits the contents of a court bundle to 1 A4 size ring binder or lever arch file containing a maximum of 350 pages of text unless the court has specifically directed otherwise).

Mostyn J described the utter disregard for guidance, procedure and orders are being ‘totally unacceptable’ and he pulled no punches in making it absolutely clear to the profession that such behaviours are a form of ‘forensic cheating’ and should be treated in that way. He stated:

‘Advisors 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.’

The most recent comments of Mostyn J in Xanthopoulos -v- Rakshina [2022], echo similar direct criticisms made a few weeks earlier in WC -v- HC (financial Remedies Agreements) [2022]. At the outset of this judgment, Peel J called out both parties for breaches in case preparation:

• The wife had ignored the requirement for narrative statements to be typed in a font no smaller than 12 point and with 1.5 or double spacing (see para 5.2 of PD27A). The consequence of this failure was that the wife’s statement was 33% longer than that of the husband (who complied) resulting in the loss of a level playing field. 
• The content of the wife’s narrative statement crossed the line by descending into irrelevant personal and prejudicial matters directed at the husband. This approach disregarded the High Court Statement of Efficient Conduct of Financial Remedy Proceedings requiring s25 statements to only contain evidence that ‘on no account should contain argument or rhetoric’ (see para 11 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings).
• A week before the hearing, the wife included in her draft bundle index, a 102-page section of narrative comment and fresh property particulars directed to the issue of her housing need. She gave no notice to the husband, who objected on the basis this was an attempt by the wife to introduce fresh evidence (the judge’s reaction was to refuse all but the wife’s comments on properties already produced in evidence).
• After skeleton arguments had been exchanged and lodged, the husband served updating disclosure. The wife objected to the updates being adduced in evidence or to the updated figures appearing in the composite schedules. This resulted in competing composite schedules which the judge found thoroughly unsatisfactory.
• On the working day prior to the hearing, the husband served on the wife a financial analysis of matrimonial expenditure consisting of thousands of entries. The wife’s legal team objected to late receipt of this analysis. The judge deprecated such ‘eleventh hour’ practice of analysis of long- held documents, which he said, ‘appears to be prevalent’ and instead made it clear that advance notice of such reliance (in advance of the PTR/final directions hearing) should be given to enable issues and evidence to be properly identified and case managed. 

The above cases are the latest examples of the court’s increasing lack of tolerance to those litigants and advisors who continue to ‘blithely ignore’ guidance, procedure and orders. Indeed, it was as long ago as 2013 when, Sir James Munby P in Re W (A Child) (Adoption Order: Leave to Oppose) [2013], referred to:

‘a deep-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 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’

He went on:

‘Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.’

The above position was reiterated in HU -v- SU [2015]. In this case Keenan J commented:

‘It must now be clear and plain to any competent family practitioners that:

1. court orders must be obeyed;
2. a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and 
3. any application to extend the time for compliance must be made before the time for compliance has expired.”

What is clear is that for many years the court has delivered the same message about the expectation on practitioners to follow the rules, yet there remain few examples of sanctions being applied to stem the behaviours of those advisors who consistently fail to take heed. This must change. Perhaps Mostyn’s J’s most recent warning that the court may now impose real consequences to all who refuse to conduct their cases professionally and in line with mandated guidance and procedure, will be the impetus that is really needed to ensure those who deploy underhand tactics will be called out, and such practice will then at long last become an experience of the past.