Litigation Conduct: An example of how NOT to behave in family law proceedings

Litigation conduct, Thwaite jurisdiction and costs orders were all explored in detail in the recent judgement of WZ v HZ [2024] EWFC 407 (B). In this case District Judge Doman considered the enforcement of an order for sale of the former matrimonial home (“FMH”) and ultimately reduced the Wife’s needs by exercising the Thwaite jurisdiction. The Thwaite jurisdiction is derived from the case of Thwaite v Thwaite [1981] 2 FLR 280 which allows courts to vary the terms of an order which has not yet been implemented, to achieve fairness between the parties. This case also serves as an important reminder on the importance of good litigation conduct in family proceedings.

The Wife’s litigation conduct is described by District Judge Doman as “some of the most truculent and obstructive I have seen”. Her bad litigation conduct also extended into giving evidence, with the Wife tearing out pages in the hearing bundle when asked questions about her conduct, hitting herself and hiding in the public toilets when breaks were provided.

The case originally started back in 2018 when in financial remedy proceedings it was ordered that the FMH would be sold, and net proceeds were to be given to the wife to meet her housing need of £650,000 in addition to her costs of moving and stamp duty, with the husband meeting any shortfall. The husband was also ordered to pay maintenance pending the sale of the FMH. The wife obstructed the sale, and so the husband made an application for possession and removal of the wife’s home rights notice, as well as a variation of periodical payments and a Thwaite variation of the application of the proceeds of sale.

Throughout the course of the hearing it was found that the wife had indeed obstructed the sale of the FMH by unreasonably rejecting offers, locking the gates, removing the ‘for sale’ board and most concerningly, faking having Covid-19 by producing a photo of a test which was found out by a digital forensic investigator to have been created in 2022 and used in the press since.

In the many years that followed the original order, the value of the property rose significantly, and it was expected for the FMH to be sold for c.£300,000 more than was initially expected in 2018 at the time of making the order. The spousal maintenance term was also linked to the sale of the FMH, meaning that the lengthy delays at the hands of the wife were benefitting her, whilst the husband was clearly at a disadvantage.

Whilst this case clearly includes some extreme examples of poor litigation conduct, importantly, District Judge Doman also found that there were other elements which contributed to the wife’s litigation misconduct, namely:

1. She had not complied with Court orders despite the husband’s solicitors reminding her of deadlines way ahead of them.
2. She behaved unreasonably and offensively when not permitted to file evidence on the morning of the first day of the hearing.
3. She had not responded to any of the husband’s open offers.
4. She had not made any open offers.
5. She had refused the husband’s reasonable offers of alternative dispute resolution.

As a result of the wife being found to have conducted herself in such an unreasonable manner throughout the litigation process, a costs order was made requiring her to contribute £130,000 towards the husband’s legal costs.

Turning to the Thwaite jurisdiction, it was found that the previous order made by District Judge Stone was still executory and that District Judge Doman had the power to revisit the order and re-make it to remedy the unfairness that would otherwise exist. This meant that the original order could be varied based on the facts of the present-day. Therefore, District Judge Doman crystallised the wife’s housing fund at £675,000, taking into account stamp duty and moving costs, and reduced the fund to £545,000. District Judge Doman then reduced the spousal maintenance payable to the wife, with it set to terminate by September 2026. The wife was also to give up possession of the FMH within 14 days and the home rights notice was to be removed by the court.

Our Family team are experts in advising on the enforcement of orders and the Thwaite jurisdiction and are well equipped to advise on such matters. In order to avoid the potential serious consequences of being found to have behaved in such a way that might amount to litigation misconduct, please contact our Family team at Field Seymour Parkes who would be more than happy to assist you in your family proceedings.