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litigation misconduct in ancillary relief

  • sunday lunch
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13 Sep 12 #355716 by sunday lunch
Topic started by sunday lunch
Hi everybody, it has been several months since I wrote on this forum.

You will not believe it if I tell you that my final hearing has not been concluded yet! but I am nearly there. I will write on the forum when it is over. It has been an ordeal!.

It is not even a big money case but I was not getting anywhere with the other side. My ex has been lying to the court and obstructing justice regarding property abroad.

Can I ask the court he pays some of my costs because of his lack of discovery,dishonesty and the fact that he has set out from the start to defraud me and deny me a fair settlement including all assets as he is the one who has been fighting the truth all along.

Please if any of you can enlighten me with what is considered litigation misconduct and how I can go about it.

I do really appreciate your help all, I learned a lot from wiki and without it I could never be able to represent myself

Thank you.

  • soulruler
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13 Sep 12 #355720 by soulruler
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Failure to disclose, failure to comply with proceedure, racking up costs in time and court proceedings, abusing a position of trust (such as the trust in a marriage being disolved) are all litigation misconduct and not to be confused with any conduct during the course of a marriage (which often lead to a breakdown in a marriage).

Work your way through the points, your knowledge about the property abroad and how you know, his failure to be honest (if you can proof of his title to a property abroad - not sure how you get that), but any information you can and also all attempts that you have made to get a sensible solution to your financial issues.

Write these down in a statement of issues, do your best to keep them concise.

Any open offers you have made to settle to date should go in the bundle, any open or without prejudice offers he has made - if they are marked without prejduce and can show that they are prejudiced you can put them in the bundle but be sure of your grounds.

Put in the outcome you would like to have, so if he is hiding assets that were marital then show them as such or if he is consealing assets that are partly marital be straightforward and show them as such.

Hope that helps.

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13 Sep 12 #355734 by sunday lunch
Reply from sunday lunch
Thank you soulruler,there is a without prejudice offer from them but did not include the property abroad. I put a counter open offer to them. My understanding that I can not mention the without prejudice offer, I am really worried as i don''t know the legality and been penalized last week during the hearing, i am scared to open my mouth now.

Do I file before next hearing a chronology or statement of issue as you call it. Do I mention that their offer didn''t include the value of the property without including the offer itself.

They have been threatening me with costs because I did not accept their offer and give in.

Since their offer further discovery has been sought and revealed more discovery that was not voluntarily submitted.

I have incurred legal bills and I have been sued in court for outstanding legal bills I am unable to settle till i get my money.

I have been put in a precarious situation and it is not my fault. I provided full and frank discovery from earlier on

Thanks very much.

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13 Sep 12 #355741 by soulruler
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If you can really prove that there is a property abroad based on knoweldge and maybe a deed then a without prejudice offer that does not include that asset isn''t without prejudice. Prejudiced and biased offers that are marked without prejudice can be revealed to a court. The reason being to take an extreme example is that if someone murdered a person they could not mark the murder weapon without prejudice just to stop it being revealed as evidence in court.

I am sorry to hear that you had a bad time in court last time but it depends on the hearing, usually a differnt judge is assigned to the next hearing from First Appointment to FDR and only if it goes to a final hearing is the FDR judge usually assigned to the final hearing (in an attempt to revent a prejudicial hearing I think).

Maybe someone with more knowledge of the court process will advise differently but that is my understanding of proceedings in English courts.

It is reasonable in a statement of issues to point out that an offer did not include other assets, you just have to be sure on what basis the assets were aquired, if possible if their is any rent, how long they have been in possession that sort of thing.

  • .Charles
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14 Sep 12 #355839 by .Charles
Reply from .Charles
I have to disagree about the disclosure of without prejudice offers.

A without prejudice offer in Ancillary Relief proceedings has no status and can be ignored. If it is accepted the offer becomes open and forms the basis of an agreement.

At no point can the recipient of the without prejudice offer seek to disclose the offer to the court whilst it remains ''without prejudice''.

Charles

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14 Sep 12 #355845 by soulruler
Reply from soulruler
Well, I am not exactly going to disagree with Charles bearing in mind his real expertise and also that I know Charles has won awards for his work on costs, however ... deep breath....

My family lawyers put to court an offer on my behalf which I wished to be an open offer, I wished it to be an open offer as it was a serious offer which I wished the family judge to consider - not only that it was a guenuine offer that I would have had to comply with had my ex husband accepted it.

However, despite me writing to my family lawyer asking for the offer to be open they made it a without prejudice offer which is the type of mistake that lay people make in total innocence.

That offer was made 1 month before the hearing was heard. I say one month as first of all it was conveyed by phone from my solicitor to his solicitor, then to him, the answer was no, then back to his solicitor, to my solicitor who phoned me and the answwer was no.

I then wrote to my solicitor asking them to put the offer in writing to the other side and asked them to make the offer an open offer as I did not see why it should be kept a secret until any further court hearing that might be made.

They did not do as I asked, they made the offer a without prejudice (not even save for costs) and sent it to my ex husbands legal team (and presumably although I could never be sure) then sent the offer again to my ex.

We then had a costs hearing which I attended and ex did not. In the bundle produced by his solicitors was my solicitors without prejudice offer which was guenuine on my behalf but according to the marking on the letter should not have been disclosed by me (if I had had it) and most definitely not by the other party in proceedings at any point.

The family judge asked about the without prejudice offer and asked why they had disclosed it. I btw had disclosed my letters to my solicitor as what I believed was privileged information as at a previous hearing I had been accused of predudicing proceedings by the family barrister working for my husband as I had disclosed to court some letters between my solicitor and me which they said was abuse of process by me - it is not by the way you can disclose letters to and from you and your solicitor and your solicitor can disclose letters between them and you.

The judge commented that he had letters from me which I had stated were privileged and had the other party got a copy of them. They confirmed that they had not and I confirmed why I had not disclosed them but I had no objection if I was not prejudicing proceedings for the other party to see my letter to the solicitor.

The judge then asked me my view on the without prejudice offer and I told him that I had no objection to it being produced as I had not wanted it without prejudice and I believed that they had mislead me also about privileged documents at the previous hearing.

At another hearing what my ex-s solciitors produced at another family hearing was documentation which was internal notes between various solicitors in their practice. The family judge was straight onto that, actually not only as that is an abuse of privilege (and the letters were highly condemnatatory of me) but also as they had not even sent me the bundle of documents and it only became apparent to me during the hearing that they had submitted a bundle to court.

The saga continues... but that is why I believe if an offer is not honest in family proceedings that you can produce it - the other side did as if to say that I was being dishonest by marking it without prejudice - I was able to prove differently to the family court.

  • rugby333
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14 Sep 12 #355860 by rugby333
Reply from rugby333
Sunday lunch,

The only cases I have witnessed where costs have been awarded have been:

Either were it is proved that someone has left out material assets or income from their form E and has not rectified that.

Or where is can be proved that someone has no intention of settling.

On the second point it is important to distinguish between ''no intention'' of settling and a reasonable difference of opinion as to what the settlement level should be.

What constitutes ''no intention'' to settle would be something like: your husband has a house valued at £500k. You go to FDR having not questioned this valuation. At FDR you then state that you do not accept this valuation as fair. A judge might logically conclude that you came to FDR with no intention of settling and award costs against you.

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