Comply With Court Orders or Else

In mid-July 2022 a High Court judge warned all lawyers to comply with court orders.

What Happened In The Case?

A law firm were instructed by a client to act after a marriage breakdown in which the wife had decided to vacate the matrimonial home. During December 2021 the firm acting for the husband applied for an order compelling them to reveal the location of the couple’s children. The application was submitted for enforcement purposes and to retrieve the identification paperwork belonging to the mother and issue.

The learned Judge disclosed that the court was aware of the location of the children for nearly two-months pre-hearing. However, the applicant and the legal representative failed to include this information in the application. Contrary to the truth, the applicant’s application purported to present the misleading impression that the mum had fled with her offspring and were on the run.

The husband applied forty-eight hours before the end of the order to cancel it because the mother had alleged domestic violence and claimed her address should not be published due to it being confidential information.

The court were particularly upset by the fact that the father had negated to act in compliance with an order for disclosure. This was because he was under the misconception that his compliance was superfluous because he had entered an application to terminate the order.

7 Days Later?

Around seven days after the order had expired the court managed to take the identification documents into its safe possession. These documents contained conclusive evidence of the family’s location. The judge was particularly damning of the behaviour of the father by claiming disclosure from the lawyer as the application was not required.

What Applications Were Made?

Due to the conduct exhibited in submitting an unnecessary application to the court an application was made to strike out the claim and another one was submitted seeking for the person to be imprisoned for contempt of court.

What Did The Court Say?

The judge reviewed the evidence in front of him and made a decision on the two claims. In terms of the request to strike out the claim, he found that the accusations on the evidence presented to the court:

• were weak,
• lacked foundation and
• were untrue.

He commented that the requirements under the court order did not stretch to cover the father from a personal perspective. The judge then moved on to address the contempt of court issue. He found that the application was fundamentally flawed because the court order had not specified a penal notice upon it. In similar vein to the strike out claim, the judge ruled that it did not apply to the father personally.

The most disturbing matter from the judge’s perspective was the lengths the law firm had gone to avoid compliance with the order handed down by the High Court. The fact that they had admitted such an omission was to their credit and he did not impose an order for costs. However, this was as far as the good cheer of the High Court judge extended and he did not let the parties involved off the hook. He commented on the fact that the individual lawyers as court officers and the law firm had deliberately overlooked compliance with a valid High Court Order was alarming.

Lessons Learned?

Lawyers should be ensuring:

• they are complying with court orders (even if they are ultimately ruled unnecessary)
• not encouraging clients to mislead the court by submitting incorrect details and
• if they do make applications for court orders, such applications are supported by persuasive, compelling and cogent evidence.

This will mitigate the risk of liability for costs orders and other sanctions.

ASSESSING FIRMS

#BrabnersLLP #HalBrownFamilyLaw #IrwinMitchell #JMWSolicitors #MaguireFamilyLaw #Mills&ReeveLLP #MSBSolicitors #Weightmans #Aaron&Partners #FarleysSolicitorsLLP #HillDickinsonLLP #McAllisterFamilyLaw #MyersonsSolicitorsLLP

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Rose, Neil – Law firm’s “extremely disquieting” failure to comply with court order – Legal Futures - 11 July 2022 - Law firm's "extremely disquieting" failure to comply with court order - Legal Futures

[2] Mohamed Ahmed v Yasar Khan [2022] EWHC 1748 (Fam) - Ahmed v Khan [2022] EWHC 1748 (Fam) (07 July 2022) (bailii.org)

[3] Children Act 1989