Each of the above examples may well give good grounds for an argument that there should be a re-attribution of the assets in favour of the reasonable party. Of course, each case turns on its own facts.
A culmination of one or more will strengthen any such argument. The broadest, and most frequently argued, is the penultimate submission – namely that in respect of litigation conduct. Court orders are to be complied with and, understandably, judges are becoming increasingly less sympathetic to those who flagrantly disregard them.
Judicial system under pressure
With the Covid-19 pandemic, the judicial system has found itself under unprecedented pressure to keep cases moving towards a just resolution. There is simply no compassion for those who place obstacles in the court’s way by failing to comply with clear directions.
As a practitioner, one party's failure to comply with their ongoing duty of full and frank disclosure of the assets within their financial proceedings is an all too familiar issue.
Not only does this hinder any early settlement (and accordingly, increases legal costs on all fronts) because the other party is not likely to agree to a settlement which has no regard to assets which they suspect are in existence but which have not been disclosed, but it also enables the court to make such assumptions as to the available assets as it deems appropriate.
If a court draws an adverse inference in respect of one party’s means and their ability to meet their needs, whether in relation to their income, assets or liabilities, because that party has failed to provide adequate disclosure, then that party can hardly complain that the inference has led to an unfavourable award.
It is highly frustrating for an innocent party to find themselves at the receiving end of such behaviour. It is essential to ensure that any failings by the vexatious party are bought to the court’s attention, without delay.
Asking the right questions at an early stage, pinpointing the areas of default and placing the failings on “record” are all likely to be helpful steps both in the short and longer term, should the matter proceed to trial.
Adverse costs orders can begin to cumulate and will often send a clear message to any final hearing judge in respect of the non-compliant party’s character and credibility, as well as having a bearing on the sums ultimately awarded to one party over the other.
Orders can be sought which prevent a party putting or advancing certain aspects of their case unless and until they comply with a court order and, in more extreme circumstances, a party can be prevented from making applications until they comply with that ordered of them.
