In Traharne v Limb  EWFC 27 (31 March 2022) our Director and founder, Charlotte Leyshon (supported by our trainee solicitor, Emily Borghese), was instructed by the respondent husband in the High Court financial remedy trial relating to a post-nuptial agreement. Kingsley Napley LLP were instructed by the applicant wife. The 4-day trial was heard by Sir Jonathan Cohen in the Family Court sitting at the Royal Courts of Justice. Mr Richard Bates of 29 Bedford Row acted for the respondent husband whilst the applicant wife instructed Mr Justin Warshaw QC of 1 Hare Court and Dr Charlotte Proudman of Goldsmith Chambers.
This financial remedy case had a series of unusual and complex features which may interest family law practitioners.
The applicant wife and respondent husband entered into a post-nuptial agreement prior to the parties’ separation. The applicant wife subsequently made an application for financial remedy orders whilst the respondent husband argued that the post-nuptial agreement was valid and should be a “magnetic factor” in the outcome of the case.
The applicant wife’s case was that she was subjected to coercive and controlling behaviour perpetrated by the respondent husband which had the consequence that she was unable freely to enter into the post-nuptial agreement. She argued that, as such, the post-nuptial agreement should be afforded no effect.
Following the 4-day trial, Sir Jonathan Cohen found that the post-nuptial agreement was valid although did not meet the applicant wife’s needs. Sir Jonathan Cohen also found that the applicant wife was not subject to coercive and controlling behaviour by the respondent husband.
The judgment of Sir Jonathan Cohen gave clear guidance on how coercive and controlling behaviour in financial remedy cases should be treated (following Re HN and Others (2021)EWCA Civ448 giving guidance on allegations in children cases). There has been a huge increase in the allegation of coercive and controlling behaviour in family cases generally since the introduction of the criminal offence and Re HN and Others (2021)EWCA Civ448 on children matters. The court needed to make it clear how this kind of “duress” or domestic abuse (where proved) was to be treated in the modern context of domestic abuse being classified criminally in a more nuanced way. Sir Jonathan Cohen neatly does this by saying that the law set out in Edgar v Edgar (1981 2 FLR 19) is still ‘good law’. Sir Jonathan Cohen states the following:
I have been asked to consider whether coercive and controlling behaviour, if proved, falls within the pre-existing Edgar criteria or whether it represents a new category of circumstances which can vitiate/taint an agreement.
In my judgment, Ormrod LJ’s words are as relevant now as they were when uttered over 40 years ago. They stand the test of time. Coercive and controlling behaviour would plainly be an example of undue pressure, exploitation of a dominant position or of relevant conduct. It would be part of all the circumstances as they affect the two parties in “the complex relationship of marriage”. If Ormrod LJ were writing his judgment today, he might have employed words such as “coercive and controlling behaviour”.
Further, Sir Jonathan Cohen gave a firm judgment on the issue of costs. Practice Direction 28A paragraph 4.4 of the Family Procedure Rules was enacted on 29th May 2019. This led to an emphasis to encourage parties to engage reasonably and responsibly in negotiations and during the course of the proceedings. The amendment to Practice Direction 28A started to put pressure in family proceedings to break away from the no order as to costs principle and to assist the parties to understand the likely costs consequences of failing to litigate sensibly and transparently.
Sir Jonathan Cohen made robust observations regarding the applicant wife’s approach to litigation and the costs she had incurred in pursuing the same. Sir Jonathan Cohen found that the applicant wife’s approach to the case was “misconceived”. He went on to say that “the conduct argument took at least two days of the hearing and it added nothing. Her sharing claim was unarguable.”
Sir Jonathan Cohen stated the respondent husband’s offer was “far closer to the mark” to that of the applicant wife. Further, he went on to say that the applicant wife “should have responded to what was a realistic offer in a constructive manner”.
Sir Jonathan Cohen subsequently ordered that the wife meet half of her remaining costs liability from her award and, in effect, punished her for not litigating more sensibly. Sir Jonathan Cohen stated that “(the applicant wife) is left with a costs bill to pay is entirely the result of her prodigal expenditure on costs and her approach to this litigation”.
In practice, this reinforces that clients must be advised to negotiate transparently and sensibly in order to avoid incurring unnecessary costs and if they do not then they (particularly the weaker party) cannot simply expect for their costs to be paid off by the other (wealthier) party simply based on “needs” – i.e. by clearing their debts going forward. It is a shot across the bows for practitioners.
You can download the judgment here: Traharne v Limb  EWFC 27 (31 March 2022) (bailii.org)