Sandra Seagrove v Lawrence Sullivan (Practice Directions Re Bundles and Citation of Authorities)

Despite numerous attempts to rein it in, the scale, intensity and cost of family financial litigation remains often out of control and completely disproportionate to the issues at stake. This case seems to me to be a particularly obvious example, and I propose, therefore, to take a firm and robust line.

The applicant is Miss Sandra Seagrove. The respondent is Mr Lawrence Sullivan. With the agreement of each party, I will, for convenience, call them respectively "Sandra" and "Larry". I cannot call them "wife" and "husband" for they were never married. It is not appropriate simply to refer to them as "mother" and "father", for the main issue which brings us here today is not directly dependent on the fact that they jointly have children.

The parties met and began a relationship in 1988. At that time, Sandra was aged about 19 and Larry about 35. They began to live together in 1989. She was then about 20 and he was about 35 or 36. They were to live together for over 20 years, although it is right to say that, in the last few years of their relationship, there were many difficulties between them. They separated in September 2010. Now, Sandra is aged 45 and Larry is aged just 61.

From their relationship they have three children. The eldest is aged 23, the second is aged 20, and the third, a son, is aged ten.

Since they separated, they have been locked into what can only be described as titanic litigation in relation to certain issues concerning the amount of time the son should spend with his father, and financial matters. The issues in relation to the son were finally resolved in October 2013 after a three day hearing before a circuit judge. The financial matters continue.

There is now before the court a consolidated hearing of Sandra's application under the Trusts of Land and Appointment of Trustees Act 1996 "( TOLATA"), pursuant to which she claims a beneficial interest in their last home, and also her application under Schedule 1 to the Children Act 1989, by which she claims financial remedies in relation to their minor and dependent son. I mention that it does not seem that much divides them on the issues under Schedule 1, and if that alone was in issue, it would be very surprising if agreement had not been reached long ago. The real issue between them, therefore, is Sandra's claim to a 50% beneficial interest or share in their last joint home, a property called Sundial House.

Sundial House and its 14 acres of land have been valued, for the purposes of these proceedings, at around £2,300,000. There is borrowing of about £1,400,000 secured upon it. If that borrowing is deducted from the assessed likely selling price, it leaves about £900,000. If costs of sale are assumed at around £70,000, the net equity is of the order of £830,000. I perfectly appreciate that part of the case of Sandra will be that some, at any rate, of the borrowing secured upon it is not referable to the acquisition of that property and that it should be ignored, so that a higher assumed equity than £830,000 should be adopted for the purposes of this case. However that may be, the reality is that Sandra is claiming a beneficial half share in an asset whose net value is broadly of the order of £1 million. Half of £1 million is £500,000.

I now turn to the costs expenditure. I stress that the figures I am about to quote are the figures that these two parties have expended on all the litigation between them, including that in relation to their son. That hardly dents the force of the point as to the appalling profligacy of their legal expenditure and the intensity of this litigation. It is the financial litigation which has engaged leading counsel as well as junior counsel, and the financial litigation which has generated the phenomenal amount of documentation to which I will shortly refer. I have no doubt that the considerable majority of all the costs expenditure is referable to these financial matters rather than the dispute in relation to their son.

Since she first instructed solicitors following the breakdown of their relationship, Sandra has incurred (including her estimated costs to the end of a fully contested current hearing) costs of about £800,000 inclusive of VAT. She, indeed, currently appears to be heavily in debt as a result. Larry has incurred costs of about £506,000, inclusive of VAT. So, between them, these two parties, who lived together for over 20 years and bore three children, to whom I am sure they are each devoted, have now incurred, or anticipate incurring, expenditure of about £1,300,000 on legal costs.

What are they arguing about? They are arguing about a claimed half share in an asset that may be worth around £1 million. So they are arguing about £500,000. What they have incurred in costs is not far short of three times the amount in dispute. Others might use other words of description, but as this is a judgment in a courtroom, I will merely say that the costs, and also the scale and intensity of this litigation, have been, and are, completely disproportionate.

I wish to stress that I have absolutely no idea where the rights and wrongs and responsibilities lie as between these two parties. I do know that there was a private family dispute resolution event before a retired High Court judge. Of course, I know nothing whatsoever as to the content of that event, but only that it did not result in settlement. I have absolutely no idea what offers may have been made by the one side or the other and rejected.

I do know also that the case has the slightly added feature that Sandra and (when he is with her) their son no longer live in Sundial House, but live in another property, which was purchased around the time of the parties' separation, called Penrose. In open documents, reference is made to the terms upon which Sandra currently does, and in the future may, occupy that property. Around those terms and their duration is very considerable scope for negotiation to a fair and wise settlement which would protect the security of Sandra and show respect to her as mother of the three children. By the time the ten year old son has completed university or similar education, Sandra will be in her late fifties. To talk about "the usual Schedule 1 terms", as the skeleton argument of Mr Richard Todd QC and Mr Justin Warshaw on behalf of Larry does, does not strike me as appropriate in those circumstances. That, however, is not the issue that is before the court. The issue that is before the court is whether or not Sandra establishes her claimed 50% beneficial share or interest in Sundial House.

Having referred to the completely disproportionate costs that have been incurred, I turn now to the documentation which underlines the scale and intensity of this dispute. There were delivered to the court yesterday, or the day before, five large lever arch bundles of documents, which comprise over 2,000 pages, inclusive of the respective skeleton arguments, which are each just under 25 pages. There were also delivered to the court two large bundles and one more slender bundle containing no less than 32 authorities. As if that were not bad enough (as I will later describe), I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever arch files of additional documents (these are the ones with lavender coloured card on their spines). I have been told that those additional five bundles contain around a further 1,500 pages of documents. So, in aggregate, at the outset of this hearing, these parties are expecting consideration of all or part of 3,500 pages of documents as well as all or part of the 32 authorities. This needs to be considered within the framework that rule makers and the most senior judiciary have endeavoured to establish in order to ensure the proportionality of litigation.

I begin with what is described as "the overriding objective" in the Family Procedure Rules 2010, which of course mirrors the overriding objective in the Civil Procedure Rules of 1998. One only has to mention the dates of those respective rules to appreciate that what I am about to recite and refer to is nothing new. I absolutely understand that what I have been saying in court earlier this morning may well have struck each of Sandra and Larry as something of a bombshell; but they have each expended this phenomenal legal expenditure on two very well known firms of solicitors, and counsel of the utmost renown. So, although it may be something of a bombshell to them, it should not be remotely new to their lawyers.

The overriding objective in the Family Procedure Rules 2010, which is applicable to this case, provides as follows:

"1.1 The overriding objective

(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with...