Seales v Seales (Ancillary Relief: Murder and Coercive Control as Conduct)  NIMaster 629 August 2023
Published: 01/11/2023 09:59
Master Bell. NB: a judgment from the High Court in Northern Ireland.
Ancillary relief application in which the W was seeking to run a ‘conduct case’ based, in part, on the H’s conviction for murder. The H attempted to challenge his murder conviction within the ancillary relief proceedings.
The total assets amounted to c.£1m, comprised of two properties (valued at £435k and £375k) and the sum of c.£186k held by solicitors.
The H submitted that the assets should be divided 50/50 and that the judge should not take into account his conduct. Instead, the H submitted that the court should take into account the W’s conduct – his allegations were that she had sold significant amounts of machinery and other property belonging to him, without his permission, while he was in prison.
The W said the assets should be split 75/25 in her favour, taking into account the H’s conduct, being his conviction for murder and the convictions of her two sons for their involvement in the murder as well as the H’s domestic abuse, including controlling and coercive behaviour and physical abuse.
In considering conduct, Master Bell took the starting point as the judgments of Lord Nicholls and Baroness Hale in Miller v Miller; McFarlane v McFarlane. He also considered Mostyn J’s judgment in OG v AG, and the cases of H v H (Financial Relief: Attempted Murder As Conduct)  EWHC 2911 (Fam) and S v S (Non-Matrimonial Property: Conduct)  1 FLR 1496, among others.
Master Bell reiterated that there is a high threshold for conduct but that it may be that expressions such as ‘the gasp factor’ should now be regarded as overstating the position. He considered that there is a clear obligation on the court in ancillary relief proceedings to recognise cases of coercive control because it would be inequitable to disregard them. Further, that to exclude genuine cases of coercive control from amounting to conduct, would be to fail to do justice to women, as it is women who are disproportionately the victims of such conduct.
Master Bell was satisfied on the balance of probabilities that the W was subject to coercive control and that she had suffered psychological distress and enduring injury as a result, which also impacted her ability to obtain gainful employment.
In terms of the H’s murder conviction, Master Bell explained that the H was entitled to try to challenge the allegation that he had murdered someone, but that would not overturn his criminal conviction and would only mean that it was not taken into account in the division of the matrimonial assets. The H called no witnesses on his behalf and Master Bell found the H’s oral evidence on the point to be ‘utterly underwhelming’. Master Bell referred to the remarks made at the H’s sentencing hearing, including that the H was ‘the prime mover, director and controller’ of the murder. In his criminal trial, the H had denied his presence at the scene, while the parties’ two sons had admitted their involvement and one son had given evidence for the prosecution against the H.
Master Bell considered that the H’s involvement in the murder of Mr Strickland had a profound impact on the W’s physical and mental health, as well as her ability to earn a living.
Master Bell considered this case to be a ‘paradigm example’ of a conduct case where the H’s conduct is so outrageous that it would be inequitable to disregard.
In respect of financial conduct, the H owned a property which he gave an undertaking not to dispose of which he then transferred to his sister for no value. His sister then sold it for £75,000. Master Bell declined to add back this sum, noting that neither party had called the H’s sister to give evidence.
The W submitted that the way the H had managed the litigation amounted to litigation misconduct as it has taken a significant number of years to bring these proceedings to a conclusion. Master Bell accepted the submissions made on behalf of the W on that point.
In evidence about the H’s allegations against the W, the W accepted that she had sold some vehicles, but believed them to belong to both parties and that the H had instructed her to sell them. Numerous documents from the H’s former solicitors demonstrated that he had given instructions to a wide range of professionals and others to sell property on his behalf. The H had no reasonable explanation for the existence of this documentation and he maintained his denial in giving any such instructions.
Master Bell divided the assets in accordance with the W’s position, i.e. 75% to her. He made clear that this was not further punishment to the H. The division accounted for the impact of the H’s conduct on the W’s physical and emotional health such that the judge did not foresee her ever being able to engage in employment.
The H was ordered to pay £50,000 in respect of the W’s costs, following the guidance of Mostyn J in OG v AG that litigation misconduct should be penalised in costs.