Litigation misconduct is where parties are in court proceedings and one party fails to co-operate. This could be by failing to disclose financial information, failing to comply with court orders or failing to attend hearings. The result of these actions creates further delay as the judge is not able to reach a decision.
The consequences of litigation misconduct could be that the judge orders the party that failed to comply to pay some of the other party's costs – this is known as a costs order. However, the recent case of VS v OP [2024] EWFC 190 demonstrates a rare example of a judge using their discretion to reflect the litigation misconduct in the division of assets rather than by a costs order.
Background
The parties had a relatively short marriage of 5 years and were aged 38 and 37.
A usual court process will involve three hearings: First Appointment (FDA), FDR and Final Hearing. This case had a total of six hearings due to litigation misconduct by the wife. The first three hearings were adjourned as the wife failed to provide the required financial disclosure and when she did provide it, she still provided it late and with incomplete supporting documents.
Once the FDR was able to take place, the wife failed to attend twice stating that she was unaware of the hearing. A further request for disclosure was made against the wife which a penal notice was attached to, and a pre-trial review was listed. The wife was giving notice of the hearing but still failed to attend.
As such, it proceeded to a Final Hearing without the wife's attendance where the judge found that the wife was in 'serious litigation misconduct'. The wife had breached four penal notices having failed to provide full and frank disclosure and failed to attend court.
Judge's verdict and reasoning
The judge departed from equality with a division of assets of 66.5% and 33.5% in the husband's favour. The judge held that the departure from equality was fair because the wife's litigation misconduct had significantly increased the duration and expense of the proceedings.
This case highlights that the courts treat litigation misconduct seriously and it could affect the court's decision on the outcome of your case. Therefore, it is important to remember to follow any orders made by the court and provide full and frank disclosure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.