Disclosure in Financial Remedies Cases

In advance of the forthcoming Becket Chambers seminar series, where I will be tackling the thorny topic of disclosure, here is a little taster in advance.

According to FPR 2010 Part 21 and PD 21A, there are two stages of disclosure: Form E, and then the questionnaire. Or more precisely, the answers to questionnaire. Permission is needed for a further questionnaire.

Remember, unless there is an order to the contrary, there is no disclosure requirement before the date Form E is due.

It is important that Form E is a full and detailed as possible – Mostyn J is known to be very critical of incomplete Forms E. For example in GW v RW (financial provision: departure from equality) [2003] EWHC 611 (Fam), the learned judge said:

”[16] … The very point of Form E is to give an honest and conscientious estimation of the true net worth of the party at the time of swearing it. For these purposes sensible and fair figures have to be attributed to unrealisable or deferred assets. The maker of the Form E is fully entitled to qualify those figures in the narrative part of the section. But a proper figure has to be put in. It is unacceptable, in my view, that simply because an asset is not realisable on the day that the Form E is sworn, but is assuredly realisable, or likely to be realisable, at some future date, for a zero figure to be inserted”

He also went on to say that if an individual has particularly complicated finances, he must work that much harder to present them in a way that can be understood. It is not uncommon, indeed, it can be helpful, to have a schedule/ explanatory note alongside a Form E which contains complicated assets.

Parties to financial remedy proceedings are not entitled to invoke the privilege against self-incrimination in order to withhold material information about their financial resources. This means that a party cannot be selective about what is or is not disclosed in his Form E. However, as the information contained in a Form E and in answers to a questionnaire has been obtained by compulsion of a court order, those documents are not admissible in a criminal trial on charges relating to tax fraud.

If, during a trial, financial irregularities become known to a judge, that judge may report the irregularity to the relevant authority.

If replies to questionnaire are inadequate, it is standard practice, though there is no provision for this in the FPR, to file and serve a schedule of deficiencies.

In practice, the distinction between a schedule of deficiencies and a further questionnaire can become somewhat blurred. I have seen schedules of deficiencies where a solicitor has sought to go beyond the questionnaire and elaborate.

If a party fails to answer a questionnaire and schedule of deficiencies properly, the best course of action is likely to be an application. The application would be for an order for the outstanding disclosure, with a penal notice.

My colleagues and I look forward to welcoming you to a Becket Chambers seminar soon.