Family proceedings involve sensitive issues and as such the integrity of proceedings is dependant upon the honesty and cooperation of all parties involved. Sounds great, right? So, what happens when someone isn’t playing by the court’s rules? It is not, or at least it shouldn’t be, the ‘wild west’.
What is litigation misconduct?
Litigation misconduct is not simply ‘bad behaviour’. It is conduct or actions which the court must determine are so serious that they cannot be ignored. This is an evidential ‘high bar’ to be overcome. The most common examples of litigation misconduct in family proceedings include:
- Hiding assets or providing incomplete or false evidence.
- Making false allegations
- Causing deliberate delays and failing to comply with court deadlines
- Initiating repeated, baseless claims or applications
- Misusing the legal system for personal vendettas
- Failing, at specific times, to negotiate openly and reasonably
For additional information, please see our previous blog which explores the kinds of ‘bad behaviour’ the court is likely to consider.
How does the court determine what is litigation misconduct, and not merely bad behaviour?
To determine whether a party’s behaviour constitutes litigation misconduct rather than merely bad behaviour, the court applies a legal test focusing on:
- Improper, unreasonable, or vexatious conduct: The behaviour must go beyond mere mistakes or disagreements. It should demonstrate an intention to deceive, manipulate, or disrupt the legal process.
- Impact on proceedings: The misconduct must have affected the fairness or efficiency of the case, such as by misleading the judge or causing unnecessary delays.
- Proportionality and justice: The court considers whether imposing sanctions (e.g. costs orders) is just and proportionate in light of the misconduct complained of.
It is important to remember that the burden of proof lies with the party alleging misconduct. They must provide clear and convincing evidence.
What happens to the offending party?
Litigation misconduct can lead to severe consequences including:
- Adverse cost orders – The court may order the offending party to pay some or all the other party’s legal costs.
- Adverse inferences- The judge may draw negative conclusions from accused party’s behaviour, such as assuming that hidden assets do exist or disbelieving their evidence.
- Contempt of court – Actions like misleading the court, falsifying evidence, or refusing to comply with court orders can result in fines or imprisonment.
How to avoid being accused of litigation misconduct
To avoid allegations of misconduct:
- Provide full and frank disclosure: Always provide accurate and complete financial information, especially in divorce and financial remedy proceedings. Remember, this is an ongoing duty throughout the case.
- While it may sound simple, this fundamental aspect of financial proceedings underpins the outcome. Anything casting doubt on your honesty could be detrimental to your case and could lead to the judge drawing adverse inferences, resulting in great damage to your case.
- Only make truthful allegations: Refrain from making false claims or exaggerating allegations, particularly in child arrangement disputes. Ensure all claims are supported by credible evidence.
- Failure to know and be able to explain and support the content of your witness statements in oral evidence could contribute to allegations of litigation misconduct. It is crucial to remember that evidence is given under oath and that such evidence should be the truth. Failure to be honest or omitting relevant facts you know to be true could result in punishment for litigation misconduct and could harm the entirety of your evidence, leaving your credibility before the court in tatters.
- Comply with court orders: Adhere to deadlines, court rules, and court directions.
- Non-compliance with court orders not only exacerbates costs but wastes court time. Failure to comply with court orders at best will irritate the judge assigned to decide your case, and at worst could result in a finding of litigation misconduct.
- Seek legal advice: If in doubt you should consult qualified family law solicitors to navigate the complexities of the legal process.
What do I do if I suspect litigation misconduct?
When misconduct is suspected or identified:
What can be done:
- Document the misconduct: If you notice any unethical or improper behaviour, such as misrepresentation of facts, tampering with evidence, or false statements, document the details as soon as possible. Keep a record of emails, letters, court transcripts, or any communication related to the misconduct.
- Raise concerns with the other party’s solicitor or barrister: Before taking formal steps, it may be helpful to raise concerns with the opposing party’s legal representatives in an attempt to resolve the issue informally.
When it should be done:
- Immediately upon identifying misconduct. Timely action is important to prevent further harm to the integrity of the case and the legal process.
During court proceedings:
What can be done:
- Raise it with the judge: If appropriate the judge will consider arguments in outline and make an order that statements in support of the ‘conduct case’ and statements in reply should be filed.
When it should be done:
- As soon as misconduct is identified during proceedings: If you wait until after the proceedings have concluded, it may be more difficult to address the misconduct.
If the court makes a finding of misconduct one of the most common consequences is sanctions in the form of a costs order. In ‘needs’ cases a finding of misconduct can also reduce the award made i.e., the amount of money a party should receive to meet their income and/or capital needs.
After court proceedings:
What can be done:
- Apply for relief from judgment: In some cases, if misconduct has affected the outcome of the case (such as through false evidence or material non-disclosure), you may apply to the court to set aside the judgment and seek a new trial, or other appropriate remedy.
When it should be done:
- Immediately or as soon as possible: If misconduct is discovered or if it comes to light after the case is finished. Timely intervention is important to avoid allowing the misconduct to affect the finality of the case.
Top tips for handling litigation misconduct
- Timeliness: Addressing misconduct as soon as it is identified helps preserve the integrity of the legal process and prevent further unethical and unlawful actions.
- Documentation: Always document any incidents of misconduct thoroughly, as this will serve as the basis for any legal action or complaint.
- Transparency: If misconduct is suspected, it is important to raise concerns with the court in an open and transparent manner, ensuring that the legal process remains fair and just.
By taking the appropriate steps at the right time, legal practitioners and parties can help maintain the integrity of the judicial process and hold those engaging in misconduct accountable for their actions.
Spot the difference: litigation strategy vs litigation misconduct
You may question how you should present your case. There is a very clear difference between litigation strategy and litigation misconduct, as highlighted in the recent High Court appeal over alleged misconduct by Coleen Rooney’s solicitors in the ‘Wagatha Christie’ case.
Litigation strategy refers to the lawful and ethical methods used to present a case in the most favourable light possible. This can involve presentation of evidence, crafting persuasive arguments, and making tactical decisions aimed at securing the best outcome. The key element here is that the strategy stays within the boundaries of legal ethics and the rules of the court.
In contrast, litigation misconduct involves actions that violate legal ethics or court rules, such as misrepresenting facts, withholding evidence, or making false claims.
| Litigation misconduct | Litigation strategy |
|---|---|
| Deliberate delays to increase legal costs for the other side | Using court timetables strategically but fairly |
| Transferring assets to third parties to reduce apparent wealth | Making genuine pre-existing transfers and disclosing them in proceedings |
| Filing excessive or unfounded applications to frustrate process | Filing applications with reasonable purpose (e.g. enforcement or variation) |
| Coaching children to give false or biased views | Encouraging children’s voices to be heard via Cafcass or guardian |
| Making false allegations of abuse to sway the court | Raising genuine safeguarding concerns backed by evidence |
Conclusion
Litigation misconduct undermines the justice system and can have severe consequences for those involved. Recent case law demonstrates the courts’ commitment to addressing such behaviour to preserve the integrity of family proceedings.
While a well-planned litigation strategy is focused on effective advocacy and presentation, litigation misconduct is aimed at misleading the court, often for personal or strategic gain, and can result in serious legal consequences. Seek specialist legal advice to ensure that your actions remain within the confines of ‘strategy’.
If you’re involved in family proceedings, honesty, transparency, and cooperation are essential. Seek legal advice to ensure compliance and avoid costly penalties.
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.
Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.