AB v CD (Financial Remedies: Failure to exchange witness statements)

This matter has come before me today listed for a two-day final hearing in financial remedy proceedings between the parties. I shall refer to the Applicant as AB and the Respondent as CD. The matter to which this ruling relates is an application by the Applicant for relief from sanctions due to her failure to file and exchange her witness statement in accordance with the order of District Judge Malik dated 1 May 2025.

By way of preliminary comment, the preparation for this hearing has been extremely poor:

It is not possible to properly prepare cases if there is such wholesale failure to comply with orders and the rules and practice directions. In addition, District Judge Malik made a specific provision for section 25 statements. At paragraph 7 of his order of 1 May he said this:

“7.

The parties shall file and serve section 25 Matrimonial Causes Act 1973 statements 21 days before the final hearing (4pm on 7 July 2025) limited to eight pages 12 font in Times New Roman 1.5 spacing plus exhibits.”

The parties failed to comply with that direction. The Respondent’s statement is dated 11 July, the Applicant’s 22 July. Neither statement appears to have been formally filed on the portal. I am not told when they were exchanged. Both exceed the length specified by District Judge Malik and the Respondent’s statement appears to have been prepared in a small font to try and fit more text in, no doubt.

That sets the context for this application. The application is required because of the effect of rule 22.10 of the Family Procedure Rules 2010. That provides as follows:

“22.10

If a witness statement for use at the final hearing is not served in respect of an intended witness within the time specified by the court then the witness may not be called to give oral evidence unless the court gives permission.”

That is a clear sanction. If you do not serve your statement on time, you cannot give evidence without the court’s permission. It is as straightforward and as simple as that. That provision cannot, of course, be extended by the parties by agreement. That is because rule 4.5(3) says so. That is in the following terms:

“4.5(3) Where a rule, practice direction or court order –

(a)

requires a party to do something within a specified time; and

(b)

specifies the consequences of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties.”

Hence, the application for relief from sanctions. These applications are governed by rule 4.6. Rule 4.6(1) makes clear that the court will consider all the circumstances and then sets out nine particular things which the court shall have regard to. Any application must be supported by evidence – rule 4.6(2). Here the evidence in support is what is contained in box 11 of the D11 application.

That says as follows:

“The wife’s statement was filed late as the wife has had some issues with her previously instructed counsel, which the Court is aware of. The wife has repeatedly asked for information from the husband with regards to the partnership assets and their whereabouts. The husband has failed to provide this information until the week before the final hearing. The late filing of the wife’s statement has had no impact on the husband’s offer as his offer has not changed since the first directions appointment. There has been no prejudice to the husband in preparing for this trial and it has had no impact upon his section 25 statement.”

To call that evidence weak is, I think, describing it kindly. The issues with previously instructed counsel are, I presume, a reference to the fact that the court was informed on Friday, 25 July that Mr Julian Bailey, who had been acting for the Applicant previously in this matter, was unwell and was unlikely to be able to appear today. Quite what relevance that has to filing a statement that was due as long ago as 7 July, I know not.

Similarly, the Applicant asking for information from the Respondent is not a matter which should impact upon the preparation of her statement. If necessary, it could have been made clear that material had not been given that had been requested. Whether or not the late filing had an impact on the Respondent’s offer is irrelevant. There has been prejudice to the Respondent in serving the statement late.

I will work through those of the nine items set out in rule 4.6(1) that seem to me to be applicable in this case.

Firstly, the interests of the administration of justice. There is already severe pressure on the courts. Failure to prepare cases properly and in accordance with orders. rules and practice directions impacts on the court’s ability to deal with them expeditiously. There is a need to ensure that parties comply with court orders, rules and practice directions. That militates against granting relief.

Secondly, was the application made promptly? Manifestly, no. The application was only made when it became clear to the parties during this hearing that an application would be needed. There appears to have been no appreciation whatsoever of this issue on the Applicant’s solicitor’s part until we got to court. That militates against granting relief.

Thirdly, was the failure to comply intentional? It is not said in the evidence in support that it was not intentional. Clearly, there seems to have been a conscious decision to delay filing the statement so as to permit the inclusion of material sought from the Respondent, so it was an intentional failure. That militates against granting relief.

Fourthly, is there a good explanation for the failure? Manifestly not in this case. None of the explanations offered in support of the application amounts to anything which might possibly be regarded as a proper explanation, let alone a good explanation, for the decision that was taken. That militates against granting relief.

Fifthly, was the failure to comply caused by the party or the party’s legal representative? Again, nothing is ventured as to whether it is the Applicant or the solicitors that took this decision: in any event the Applicant is responsible for the instructions she gives to her solicitors, so it is her default. That militates against granting relief.

Sixthly, can the hearing date still be met if relief is granted? Standing the matter down to allow this application to be made has meant we have lost half a day of the hearing. It is probable that we could get through the matter if relief from sanction is granted. That points to granting relief.

Seventhly, what is the effect that the failure has had on each party? It is, as Mostyn J described in the case of Xanthopoulos v Rakshina [2022] EWFC 30, effectively, a form of cheating if you do not comply with the rules. Here the effect of the Applicant serving her statement very late has been that the Respondent’s time to consider it and give proper instructions has been very severely truncated. That militates against granting relief.

In this case the court set out a timetable for the service of evidence which would give each party a fair opportunity to consider the other’s statement. The Applicant’s choice to serve her evidence so late has meant that the process then becomes unfair. Accordingly, looking at this in the round, considering the particular factors set out above and all of the circumstances of the case, I refuse the application.