Parties who go to court seeking financial remedy orders are embarking on a lengthy and very expensive process. It is therefore vitally important that both sides do what they are supposed to do to ensure that the court and the other side have all the necessary information and documents – and that they do so on time.
Failing to do what is necessary will mean that hearings are ineffective; they cannot go ahead as there is important information and documentation missing. This inevitably slows the process down and costs the parties more in legal fees than it should do.
For example, in a financial remedy application in divorce or dissolution proceedings, when the application is commenced, the court will send the parties a Notice of First Appointment informing them of the date of the First Appointment (which will probably take place seven or eight months later, due to the court’s heavy caseload). It will also tell the parties (and their solicitors) precisely what documents must be produced.
The most important document that each party must produce is a Form E financial statement, with a large amount of supporting documents. This will set out the party’s current financial circumstances in details; how much they earn, what their other income is, what assets they have, including their pensions, and a wealth of other personal information.
Wrangling the documents is time consuming and fiddly. There will need to be house valuations, mortgage statements, 12 months’ bank statements for every account, proof of the value of other assets and investments, pension cash equivalent transfer values, business accounts, tax assessments, P60s and payslips etc. Getting hold of all the documents, sifting out the irrelevant bumph and putting it all on the right order can take ages.
These must then be filed at the court and also served on the other side (or their solicitors). Litigants in person frequently only file documents at court and fail to send them to their ex or ex’s solicitor, or the other way around. This inevitably causes delay.
These statements are then exchanged with the other side and we plough through them to identify what documents are missing and need to be produced. We then have to prepare a questionnaire requesting further information or documentation. It is rare for a questionnaire not to be needed.
The court also will have ordered us to produce a house valuation, jointly obtained if possible, indicative mortgage capacity evidence, and a Form G (indicating if we can use the First Appointment as a Financial Dispute Resolution Appointment).
Closer to the date of the first appointment, we must produce an ES1 case summary, an ES2 composite financial summary and a Form H estimate of costs incurred to date. There also needs to be a bundle, an electronic document containing all of the relevant documents needed for the First Appointment, which must include preliminary documents, such as a background case summary, a statement of issues, and a chronology. The court will also nowadays expect a position statement to be filed just before the hearing setting out the parties’ positions.
The documentation required swelled considerably following the introduction of the Financial Remedy Court’s Efficiency Statement in 2022. This was designed to ensure that progress can be made, but it has massively increased the amount of work needed to get ready for a hearing. In my view, the timetable needs adjusting so that we have to do the later steps earlier. Too much work has to be squeezed into the fortnight before a hearing
To be honest, it is not always easy to get all this stuff together in time for at the First Appointment even where both sides are legally represented. As so often is the case nowadays, where one party is representing themselves, it is very difficult indeed. It is not unusual for Litigants in Person to fail to provide their documents. Form E statements are served late, if they arrive at all. Documents will be missing.
If the absence of necessary documentation is too bad, it will prevent the court process from moving forward. The court may have to adjourn the First Appointment and list another “First” Appointment to take place months later. In those cases what happens?
A solicitor’s client will be understandably angry about this. Not only will there be a delay lasting months, but it will also have caused their client to incur unnecessary legal fees that have in effect been wasted by their ex’s failure to produce the documents needed.
Their opponent may therefore be ordered to pay the client’s costs. However, this may be a pyrrhic victory if the opponent simply can’t afford to pay them, and the client then may have to incur further expense enforcing the costs order.
A penal notice can also be attached to the court’s order that a Form E statement be filed. If that party then fails yet again to file his or her Form E statement, they may face an application to commit them to prison. Again, this is often something that the client will not wish to do, not least because of the cost. However, the penal notice does usually have the desired effect of getting the non-compliant party to do what they are supposed to do.
An example of what can happen was recently reported in the case of T v T and Others. The judge in that case was faced with a case that was simply not ready for the final hearing. The wife was legally represented, whereas the husband (and his sister, mother and the executor of his late father’s estate – this was clearly a very complex case) were not represented and did not arrive at court in time for the start of the hearing. When they did turn up, the judge bluntly told them that:
“At this stage, I make no finding of fact as the actions of any of the respondents, save to record that there is an arguable case that one or more of them have deliberately sought to frustrate this litigation, by not responding to orders, failing to disclose documents and generally dragging their feet to the inconvenience of the wife…”
Furthermore, the paperwork was not in order and the judge was hugely critical of the state of the hearing bundle prepared by the wife’s solicitors which was far larger than was allowed by the rules, (2,777 pages whereas the limit is only 350) without having first obtained permission for a larger bundle to be filed. There was also other documentation missing or late; the judge regarded this as “egregious” given that the other parties in the case were not legally represented.
The judge therefore had to adjourn the final hearing and make it clear to the applicant wife’s solicitors that they needed to get the paperwork sorted out properly and on time. These solicitors were lucky that no order for costs was made, which was because their client was legally aided (it is very difficult to get a costs order against a legally aided party) and the husband and other parties were not legal represented. I don’t know how experienced the wife’s solicitor was, and it wouldn’t surprise me to learn that he or she was very junior; legal aid payment rates are so poor that most firms no longer do legal aid work and those that do will often employ very junior and sometimes unqualified staff to handle the cases.
The judge went on to say “I am unpersuaded that any purpose would be served by making a costs order but in other circumstances I would be making a costs order against the applicant, potentially on the indemnity basis.”
In that case, both sides were at fault, but got off lightly. Being a litigant in person should not be regarded as a get out of jail free card, allowing a non-compliant party to dodge his or her responsibility to comply with the court’s orders and the Family Procedure Rules. The court has often, in my experience, been less than strict with litigants in person about compliance with the rules, but its patience appears to have now become exhausted,
In Mainwaring v Bailey the husband argued to the court that he should be treated as a litigant in person (even though he had legal representation for most of the case) and that he should not excused for his non-compliance as he did not understand the Family Procedure Rules. The judge was having none of it; she was emphatic that litigants in person are expected to comply with the procedural rules as much as represented parties.
Therefore, anyone who is engaged in family proceedings should bear in mind that the rules apply to both sides. It’s no good saying, “I’m sorry Judge, I didn’t know what I was supposed to do.”
The best way to avoid this happening to you is to ensure that you are legally represented by an experienced solicitor who will ensure that you have complied with the court’s directions before each hearing. If you are not in a position to afford this, it is well worth getting legal advice from a solicitor so that firstly you understand what is required, and secondly so that you can perhaps instruct a solicitor to prepare some or all of the documents for you on a Pay As You Go basis, even if you still represent yourself at court.
15 February 2025
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