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Non Disclosure and Penal Notice

  • bella1793
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9 years 1 month ago #272774 by bella1793
Non Disclosure and Penal Notice was created by bella1793
Hello,

I started divorce procedings against my s2bx husband in early July last year and was compliant and diligent in providing my Form E information on time.

My solicitor still had not received a completed and sworn Form E by the time of First Appointment on May 20th which resulted in my sol drawing up a detailed and forensic questionnaire in response.

By way of direction, the Judge drew up a Court Order compelling my ex-hub to complete and submit the questionnaire within 14 working days - a direction which he has blatantly ignored. All open correspondence from my sol is being ignored by my hub and his sol too.

What is really frustrating is that my ex-hub is a solicitor too and running rings around the whole process!

The next move will be to apply for a penal notice to be appended to the Court Order and to complain in the strongest possible terms to the SRA about my husband's solicitor (an employee of his!) about wilfully ignoring open correspondence under Rule 1 of the Code of Conduct.

I have 2 questions if anyone has experience of this:-

1) Is the penal notice an effective instrument and does it include directions and deadlines?

2) Are solicitors held to a higher standard of behaviour as Officers of the Court? Are they actually allowed to be in indirect contempt of court themselves?

I look forward to any useful insights anyone may have!

Many thanks,

bella

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  • bella1793
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9 years 4 weeks ago #273010 by bella1793
Replied by bella1793 on topic Re:Non Disclosure and Penal Notice
I'm adding to my original post here for the benefit of anybody else who finds themselves in the same situation.

Breaching a court order is indirect contempt of court and the very act of doing so is case enough for the court to append a penal notice to any such existing order without recourse to a hearing.

It's a serious enough matter for 'civilians'; having spoken to the SRA's Professional Ethics Guidance Team, it's even more serious for Officers of the Court of England & Wales who are held to a higher standard of probity under the SRA Code of Conduct. It sounds like it would be a 'cut & dried' disciplinary matter with the real possibility of the ultimate sanction being imposed, ie being struck off.

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  • .Charles
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9 years 4 weeks ago #273145 by .Charles
Replied by .Charles on topic Re:Non Disclosure and Penal Notice
Being struck off wouldn't help your financial case though would it?

Your spouse is sticking his head in the sand and being deliberately spiteful – this is par for the course I'm afraid. I've seen this type of behaviour with professional people who have power taken away from them. Your spouse will act like a fool and the court will observe his foolish behaviour.

The last thing you want is for his to say \"my wife reported me to the SRA, I am under investigation and my future earnings are now in jeopardy\". This will make you look vindictive (which sounds to be accurate?) and you will suffer financially.

The best course of action is to apply for a penal notice to be attached to existing directions . If your spouse fails to comply, the court will take into account the fact that your spouse is a solicitor and will tear strips off him. He will find it terribly embarrassing as the Judge is likely to warn your spouse that should he not comply, committal to prison will be the next step which will impact upon his career.

A penal notice application can be made on paper (the application form permits this) and the order will be made without hearing is the matter is one of fact i.e. an order was made to file and serve documents and the same have not been filed at court.

It is worth checking with the court for the missing documents – some unscrupulous parties file documents with the court to comply but fail to serve those documents to wind up the other party.

Charles

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  • bella1793
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9 years 4 weeks ago #273165 by bella1793
Replied by bella1793 on topic Re:Non Disclosure and Penal Notice
Hello Charles,

Thanks first of all for the reply.

Just for clarification, it is not my intention to report my husband directly to the SRA, it's my solicitor who is threatening to report *his* representative to them. He happens to be a family law 'consultant' to my ex-hub's practice and very much in cahoots with the way my ex-hub is conducting himself.

Not only is there a massive conflict of interest surrounding this representation arrangement, there is a cut and dried breach of most of Rule 1 of the SRA code of conduct as he is condoning a clear breach of a court order.

My solicitor has detailed all of this in open correspondence and, for now anyway, they seem to be complying (we have granted them a 21 grace period to get on with full disclosure, otherwise a penal notice application will be made without further notice).

With regards to being struck off, my ex-husband is claiming that he is only earning £24K pa (from a West End practice!), and I am only in receipt of the CSA minimum of £500pm from him for the children with no spousal maintenance asked for as I want the house in a clean break settlement. I am a professional working full-time and, on the basis that his paltry £500 is neither here nor there to me, it is of little consequence to me either way if he gets struck off.

He could probably make £24K pa stacking shelves in Waitrose if he applied himself, so he is persuing a very, very high risk strategy on that front.

Finally thanks for the tip about filing with court, I'll get it checked out.

Best,

bella

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  • shimmyaway
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7 years 4 months ago #381488 by shimmyaway
Replied by shimmyaway on topic Re:Non Disclosure and Penal Notice
Hi Bella - interesting to read your feed and also was very interested to see the comment about ''hiding'' papers in court, I will also check this out. My ''ex'' has stalled at every single possible juncture. His behaviour has been unbelievable and very much built on spite I''m sure. Agreed about the control thing.

We have just had a penal notice attached to an order from a failed FDR which took place in October. Responses had to be served by 22nd November as part of that order and despite our chasting and threatening a penal sentence, we have still not had them.

I only received the information from my solicitor yesterday but what I find upsetting is that in her cover email she has said that we have given him 14 days and should we not get the responses by then, I will need to decide whether I want to send him to prison! It may have been a slightly tongue in cheek comment as he has been a total nightmare throughout and to be frank many people in my position would probably delight at the prospect but it makes me feel sick.

Surely it should be the court/judge making that decision and not me. He is in contempt of court. He has flaunted every order, let every date slip right to the wire every time. I believe his resons for wanting to stall as long as possible are two-fold. Financially the longer we stay married the longer he can ''sponge'' and of course pure spite. (He is a self employed builder and has still not disclosed proper full accounts. He has been claiming to have no work prior to the FDR when he did have work. And on the day of the hearing he had a vehicle accident which left him with ''whiplash'' thus giving him a ''genuine'' excuse not to work - even though he was going running throughout. This has given him more reason to not contribute to the home even though he has refused to move out.)

I have also asked many times how not only how can he get away with this but how can his solicitor as again, he general ignores our letters.

My solicitor says that he cannot act without my ex''s instruction but I had always felt there must be some sort of code of conduct between solicitors . Perhaps I am naive

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  • Janwyn60
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1 month 2 weeks ago - 1 month 2 weeks ago #512637 by Janwyn60
Replied by Janwyn60 on topic Re:Non Disclosure and Penal Notice
Hello,I started my divorce in January 2019 on unreasonable grounds although he had many affairs in our nearly 30 yes marriage. I have a solicitor and he doesn't and has been sending back back form e3 uncompleted ....I have complied all the way through and now I am at the stage of he has had or is about to receive a consent order for the required information which has to be in court by the 14th july. So far up to yesterday he still has not replied to my solicitor so there may well be a penal order attached now to. There is no house to split just half of his 22k pension.and no maintenance as children are all over 21. My question is if he is sent to prison where do I then stand with regards to the pension??..I would just like closure on him..(he got engaged 8 wks after we split,was violent,abusive and a heavy drinker plus a cocaine user)and if I am fortunate to get something from his pension I can get on with my life which is all I want to do. do the the courts have no power to divide the pension?or will it just go on and on and on.
Thanks in advance
Last edit: 1 month 2 weeks ago by Janwyn60. Reason: Spelling mistake

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  • hadenoughnow
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1 month 2 weeks ago #512650 by hadenoughnow
Replied by hadenoughnow on topic Re:Non Disclosure and Penal Notice
The court can make a decision without the other side's involvement and can, in certain circumstances, award costs on the basis of litigation misconduct. A penal notice would rarely be invoked but it can be. It is more often used to 'incentivise' matters. Costs threats are used for a similar purpose.
A penal notice is issued by the court. It won't apply to exchange of forms on a voluntary basis only to failure to comply with court requirements.

Hadenoughnow

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