KA v LE [2023] EWFC 266 (B)29 November 2023

Published: 19/02/2024 16:57


DDJ Mark Harrop. Final hearing in FR proceedings with consideration of relevance to findings in children proceedings that H had bullied, coerced and controlled W throughout the whole of their marriage.

The first issue was whether there should be an adjournment to the final hearing. H represented himself and did not provide documents or comply with directions throughout proceedings. By the time of the final hearing H sought an adjournment on medical grounds. DDJ Harrop went through the law on adjournment; [25]–[27]: this was a case management decision for the judge and an adjournment needed to be justifiable on careful scrutiny of the evidence. The judge weighed up the overriding objective, the fact that H was a litigant in person, H’s excuse, and that H had his chance to put his case in writing and had not submitted any questions. Importantly, the judge was concerned by H’s threatening communications with W’s representatives, which reflected the fact-finding judgment. The judge decided to proceed with a final hearing, and the court put in participation directions to assist H to play a full part in the hearing.

The jointly-owned family home (£280,000 equity) and the pensions (W: £25,000; H £37,000) were ‘more or less the entirety of these parties’ assets’. Each party was able to provide for themselves from earned income; W earned £90,000 and H £46/47,000. W sought more than half of the equity in the FMH on the basis of needs. The court found that she had sufficient financial (borrowing) resources and income to buy out H’s 50% share of the FMH and no adjustment for need was required.

W’s real motivation for seeking more than half was H’s conduct, but W was correct not to run a conduct argument. The case law at present is clear that personal misconduct will only be taken into account in very rare circumstances and only where it has had financial consequences – ‘it is unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct’ (Mr Justice Mostyn in OG v AG [2020] EWFC 52 at [72]).

The third key issue was the awarding of costs. The court considered that there were an unusually large number of settlement proposals made by each of the parties. The court however did not find H’s approach to settlement noticeably less reasonable than W’s, especially as H achieved better at final hearing than any previous offer from W. The main argument towards costs was H’s failure to comply with court orders. There was also the content and tenor of H’s communications. This is where H’s conduct and findings from the children’s proceedings (in which there had been a seven-day fact-find) became especially relevant. The court stated H had gone well beyond a robust assertion of his case and strayed far into the territory of gratuitous offence and abuse. H also directed his emails to a trainee solicitor who was a junior female, asking her not to share his messages with her employer, which struck the court as ‘an egregious abuse of the obvious power imbalance between them’.

The court disapproved of the way in which H conducted litigation and ordered him to pay W a sum representing 25% of the legal fees she had incurred in these proceedings, which was summarily assessed at £10,000.

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