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Penalty for non filing of Form E

  • Flower64
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07 Dec 20 #515032 by Flower64
Topic started by Flower64
I'm interested in anyone who's ended up in a situation where the judge has actually enforced a penal order?

FDA was earlier this summer, ex hadn't filed or served form E. Said they didn't know they needed to. Judge wasn't impressed that we were in court as the only asset is the house, with low equity available. An adjourned FDA date was set for later this year to be used as FDR if possible, and the Judge advised us to try and settle prior to court. Ex was ordered to file and serve in September.

Ex didn't file and serve, I contacted the court and after a few weeks a new order was made in November ordering ex to file and serve by early December, the next hearing is now delayed until Feb 2021 and this time a penal notice was attached in relation to the ex filing and serving. It is looking like he is not going to file and serve as directed though.

I've spent money on 3 solicitors letters since the FDA all of which have been ignored by the ex. I made the judge aware at the FDA that my ex has been non compliant throughout the divorce, and I have a default costs judgement as he didn't engage with costs assessment either. I think the judge will now be seeing why I was forced into a court application because my solicitor and all the attempts to settle were ignored.

For anyone who's been in this situation - is this normal behaviour for people to think if they just ignore the court it wont matter, and is the judge likely to enforce the penal order at the next hearing? I might as well be burning £50 notes instead of repeatedly trying to reach out and negotiate..... We think he's hiding his financial circumstances on purpose, but this doesn't make sense when I'm not asking for anything from him. I just want to secure the house for myself and the kids. Its been reserved to the same judge for the next hearing so at least they will know the history.

Thank you

  • .Charles
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08 Dec 20 #515040 by .Charles
Reply from .Charles
It is common for people to miss dates, file late or just overlook matters. It's something that has plagued the law for a file, particularly family law.

However, there comes a point where the gloves come off and things become serious very quickly.

If a court attaches a penal notice, it does so as a peremptory measure in order to avoid any other delay. It's the same as saying "I've warned you once, don't make me come over there" to a child.

If left to its own devices the Court will either extend the deadline or issue a notice to commit to prison. It's more likely to be the former.

You can take positive action such as apply for a penal notice or write to the court to put the judge on notice of the non-compliance with the original direction and the penal notice.

If you apply for a committal order you will have to prepare an application, have it issued at court (with a court fee) and personally served on the other side. Personal service is required as committal to prison effects a person's liberty and proper notice is essential.

Normally upon receipt of a committal notice, there is compliance prior to the hearing of the application. If not, the judge will make a committal order and the recipient will be taken to the cells - a committal is likely to be in person as it is difficult to imprison somebody over Microsoft Teams. If the recipient does not attend the hearing, an order will be make in there absence and a warrant for arrest issued.

A committal is a very serious step but sometimes necessary if only to focus another party's mind. They are not at all common. The last I saw was around 8 years ago when a colleague applied for a committal which was granted. The judge ordered my colleague to sit with the respondence whilst he hand wrote a form E and neither party (the respondent and my colleague) were not to leave the building until the Form E was completed and handed to the judge.

Quite what my colleague was to do if the respondent refused was happily not an issue on the day as the form E was reluctantly completed and the committal discharged.

Given that the judge has reserved the matter to themselves it mind be more cost effective to write to the court giving warning that the hearing might be ineffective as the form E has not yet been served. The judge may be able to make further directions before the hearing depending upon when this is.

Charles

  • Flower64
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08 Dec 20 #515041 by Flower64
Reply from Flower64
Thank you Charles as always for your sound advice. I will wait until the date for service passes and then I think I shall make the court aware that its not been filed. I genuinely don't want to apply to send anyone to prison, I'm just frustrated by the whole process. I feel quite strongly that the refusal to engage is just a way of continuing to be in control.

That situation you described does sound quite comical though - being forced to stay there until the form E is completed, a bit like not leaving detention until your home work is finished !! :)

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