Grace v Grace [2025] EWFC 37 (B) (10 January 2025)

HHJ FARQUHAR:

1. Mrs Grace (the Applicant) and Mr Grace (the Respondent) reached agreement as to the resolution of these straightforward Financial Remedy proceedings at a FDR hearing as long ago as April 2022. It is frankly staggering that these proceedings have not been finalised a long time ago. As at this final hearing, the parties both agreed that the original agreement entered into should be put into effect. Each party lays the blame upon the other for the extensive delays.

2. The Applicant states that Mr Grace has hijacked the proceedings by constantly issuing applications (in excess of 20 in total) and bombarding everyone and anyone with emails. The Brighton Family Court has received in excess of 850 emails on this non-complex case.

3. It is the Respondent's case that the delays should be laid at the door of the Applicant and, in particular, her solicitor, Mr Gardner, for failing to draft the original order correctly and for, what he states to be a constant failure to comply with orders or the Family Procedure Rules. He considers that Mr Gardner has acted in bad faith. Mr Grace's position is summed up in an email he sent after this hearing in which he stated: "I stand by every word that a plan was conceived from April 2019 by Paul Gardner to effectively waste court proceedings in pursuit of an improper purpose which was to gain control of my legal estate by deception and by misleading the court; this necessitated illegally changing the orders as agreed at the First Appointment (March 2020) predominantly in June 2021 and from 21 April 2022 and deliberately delaying proceedings, hence the non-disclosure in the Applicants Bundle of the Application of March 2021 which has never been heard as I was repeatedly assured it would be."

4. On the basis that there is no dispute between the parties as to the Order that should be made in this case the emphasis of the arguments before me relate to the reasons for the excessive delays and the costs that have been incurred. The Applicant's costs as at the date of the agreement being reached were in the region of £28,000 and are now approximately £90,000. The Applicant argues that there should be a costs order made against the Respondent. Mr Grace has represented himself for the vast majority of these proceedings, and for all of the time since the agreement was reached in April 2022, and he seeks a total costs order against the Applicant of £173,355 which includes the costs that he paid his lawyers at the start of proceedings, mortgage payments made under the agreement reached, payment for 3,000 hours of work carried out by Mr Grace on the case and the loss of his business.

5. I have reached the conclusion that I will approve the agreement that the parties both agree should be formalised into an order, subject to one variation in relation to the property being sold, rather than transferred to Mrs Grace. I am satisfied that there has been fault on both sides, but that the Respondent, Mr Grace, has been responsible for the major escalation of the costs in this case to a sufficient extent to justify an order for costs. He will pay £20,000 towards the costs of the Applicant.

6. I make no apologies for not dealing with each and every issue that has been raised within these proceedings by the parties, and in particular the huge swathes of matters about which Mr Grace has made complaint. The purpose of a judgment within a Financial Remedy case is to explain the basis upon which the order has been made (this is not controversial in this case) and then deal with any ancillary matters. The only matter that requires a decision is that in relation to costs and I set out below the reasoning for the decision that has been reached.

7. The Factual Background

8. In every Financial Remedy case that I can recall the most important issues are the history of the relationship and the assets and income of the parties. It is startling that in this case neither of the parties dealt with those issues in any detail as they concentrated on the disputes as to the reasons for the extensive litigation rather than any of the usual s.25 factors. On the basis that I am effectively being asked to approve a consent order between the parties I do not intend to deal with the facts in any great detail, but I must satisfy myself that the agreement is one that meets with the approval of the court.

9. The Applicant, Mrs Grace, is aged 51 and works as an administrator earning in the region of £25-£27,000 per annum. She continues to reside within the former matrimonial home but does not consider that she can afford to do so and stated that she will sell it as soon as it is transferred into her name. The Respondent, Mr Grace is aged 52 and is self employed principally selling used vehicles (although he states he is not presently working due to having to spend all his time preparing this case) and his stated income is in the region of £34,000 per annum. Mr Grace is in a relationship but states that he does not live together with his partner but spends time at other properties.

10. The parties married in February 1999 and separated in October 2016. The petition was issued in October 2019, with Decree Nisi in June 2020 and Decree Absolute has subsequently been pronounced, although it is noted that the Respondent seeks for that to be rescinded as he states it was based on incorrect information having been provided. Once rescinded he is content for a further application for Decree Absolute to be made and granted so long as it occurs on the correct factual basis. The parties have three "children" who are now aged 29, 24 and 20 respectively. One child continues to reside with the Applicant.

11. The assets of the parties can be summarised as follows:

a. Family Home - Equity - joint names £491,000

b. Commercial property - owned by the Respondent £252,000

c. Commercial property- Respondent £184,000

d. Spanish Property - Respondent and his sister £55,000

e. Spanish Property- Respondent and others £35,000

f. Vehicles owned by the Respondent for sale £55,000

Total £1,072,000

12. There are no other substantial assets with the Applicant having pension provision of £17,000. The Applicant has costs to meet in the region of £90,000 and the Respondent states that he has a £65,000 negative balance in his bank accounts. There are arguments as to the Spanish properties as to whether they are matrimonial assets and also other issues have been raised in relation to contributions. I do not intend to set those arguments out within this judgement.

13. The agreement entered into between the parties was that the Family Home would be transferred into the name of the Applicant, and the Respondent would continue to pay the monthly sum due on the mortgages relating to that property. On sale of the family home, it was intended that the mortgages in favour of Nationwide Building Society would be met by the Applicant from the proceeds of sale and that if the charge in favour of Lloyds Bank was still registered on the property (it has subsequently been released by Lloyds Bank following the agreement reached at the FDR) the Respondent would continue to be responsible for that debt. The above would be on the basis of a clean break between the parties.

14. I do not intend to perform any in-depth analysis of this agreement. The impact of the agreement is that the Applicant will retain the equity in the former matrimonial home in the sum of £491,000 and have to meet her costs (subject to any costs order). The Respondent will retain the commercial assets and the Spanish property in the total figure of £525,000 less any tax payable upon realisation, together with the stock in his business. I approach this case in the same manner as I would when considering a Consent Order application. I simply have to consider whether it falls within the range of reasonable orders and I am satisfied that that is the case. It follows that I will approve an order that implements this arrangement.

15. Litigation History

16. This case has followed a tortuous route. The proceedings commenced in October 2019 and the First Appointment took place on 12^th March 2020. A number of issues in relation to disclosure occurred as a result of which there were no less than six further hearings prior to the effective FDR taking place on 21^st April 2022. One such hearing was before Deputy District Judge Worthley (as he then was) on 28^th September 2021 which highlights the issues between the parties, and, in particular, between Mr Grace and Mr Gardner, at that point. I have read the judgment of Judge Worthley wherein he criticised both parties in what he referred to then as "acrimonious, protracted, and difficult litigation history." The judgment refers to a wasted costs order having been made against Mr Gardner on 6^th January 2021 and Mr Grace made two further wasted costs applications, one of which was "partially successful" and an order was made against Mr Gardner in the sum of £1,250 and a further £200 in relation to a second application.

17. It is telling that Judge Worthley added these words over three years ago: "it is unfortunate that the litigation has been so rocky in this case... And it does not favour either Mr Grace or Mr Gardner to continue to be engaged in acrimonious correspondence..... The parties need to try and reset their previous acrimonious falling out, and progress matters on a far more professional and level-headed footing. I include Mr Grace in that. He is not a professional solicitor, but he is clearly a professional man off some ability." These warnings have been completely ignored by both individuals.

18. The language and approach that each of those individuals have used against each other is frankly appalling. They have no place within Financial Remedy proceedings. At the commencement of this hearing Mr Gardner made inappropriate references to Mr Grace and I warned both individuals that such language would not be permitted within the hearing and, in fairness to them both, they managed to refrain throughout the hearing. However, the sort of language that has been used by Mr Gardner includes:

a. In the hearing before Judge Worthley stating that "Mr Grace has a personality disorder".

b. In the hearing before Judge Spanton on 26^th July 2023 stating that Mr Grace "is like a mongrel with a rotten bone in his mouth."

c. Later in the same hearing stating in relation to Mr Grace: "and we are dealing with a sociopath."

The language used by Mr Grace is all along similar lines to the quote set out at paragraph 3 above constantly referring to Mr Gardner deliberately wishing to run up the costs and mislead the court and acting inappropriately. The acrimony between these two individuals has only worsened since the wise words of District Judge Worthley were uttered as long ago as September 2021.

19. The agreement set out above was reached on 21^st April 2022. A handwritten document was drawn up at that hearing. It is stated that it was shown to the Respondent and that he agreed the same. A typed version of that order was then provided to the Court by Mr Gardner. The Respondent states (correctly) that there are significant alterations that were made to that order and that accordingly the typed version was incorrect and should not have been lodged with the Court. The Court approved the order that was submitted, which would normally bring the proceedings to an end. The relevant errors in that order were corrected and an amended order was approved following a hearing before District Judge Spanton in July 2023.

20. The proceedings did not end at that point. In fact, there have been at least a further 22 Orders made in this case since the date of the initial agreement and a huge number of applications have been filed by Mr Grace in particular. I do not intend to set out all the applications that have been submitted but they include the following:

a. 21^st July 2022- Applicant files application for enforcement in relation to the transfer of the property into the Applicant's name.

b. 21^st November 2022 - Respondent's application seeking an order that the Applicant's solicitor stops misrepresenting documentation as a Consent Order, to stop sending the judiciary or court any documentation without the Respondent's sight and/or approval and to stop harassing and bullying the Respondent to sign a TR1. The Respondent further sought disclosure of all correspondence between the Applicant's solicitor and the court.

c. 17^th April 2023- Respondent's application for disclosure of document sent by Mr Gardner to the court in May 2022 which was "misrepresenting it to be a typed copy of the handwritten settlement without any changes made."

d. 28th of April 2023 - Respondent's application for the "applicant's solicitors to disclose to the respondent all and any correspondence or notes of communications sent to the court..."

e. 17^th May 2023 - Respondent's application for the Applicant's solicitor to file an affidavit to verify compliance with the order for disclosure.

f. 15^th August 2023 - Respondent's appeal against an order made by District Judge Spanton on 26 July 2023 dismissing his application.

g. 23^rd August 2023 - Respondent's application for further disclosure from the Applicant's solicitor.

h. 25^th September 2023- Respondent's application to make a contempt application against Mr Gardner, the Applicant's solicitor.

i. 14^th November 2023 - Respondent's application to attach a penal notice to an order for the Applicant's solicitor to disclose various documents.

21. The orders that have been made throughout 2023 and 2024 deal with the disclosure that was ordered and that which was not. I have dealt with appeals which have all been dismissed and orders have been made to prevent Mr Grace bombarding the court with emails. It is clear that Mr Grace was not content with the response of Brighton Family Court as a result of which he instituted proceedings for Judicial Review on 26 January 2024. That application relates to these proceedings and Mr Grace's complaints as to the actions of HMCTS. It was considered appropriate to stay these proceedings pending the Judicial Review and an order was made accordingly. However, by August 2024 the Judicial Review proceedings had not progressed to any significant extent and consequently I took the decision that a final hearing in this case was required and listed it accordingly.

22. I should add that on 2^nd August 2024 Mr Grace filed a contempt application at the Administrative Court, in which application the defendants include the Judiciary at Brighton Family Court, which by definition must include myself, Sir Andrew McFarlane, President of the Family Division, named members of HMCTS staff, named members of the Solicitors Regulation Authority, Mr Gardner and the firm of accountants that prepared the CGT report. I have not had any update in relation to that application.

23. There has been no application to recuse myself although I have considered whether that would be appropriate, and I am satisfied that it is not a necessary step.

24. The Respondent has also made other applications outside of this litigation but relating to it. These include:

a. A complaint to the SRA in relation to the Applicant's solicitor, Mr Gardner.

b. A complaint to HMCTS relating to the drawing up of the order in April 2022.

c. A complaint to ICAEW in relation to the tax report.

d. A complaint to the Tax Disciplinary Board relating to the tax report.

e. A complaint to the Parliamentary Ombudsman.

f. A complaint to the Land Registry.

25. I apologise to Mr Grace if I have not included all the complaints that he has made but I simply aim to provide a pen picture of the energy and vigour with which he has pursued this issue. In reality it has become an obsession. I should add that having heard this matter on 8^th October 2024 Mr Grace sent in a 13 page document to the Brighton Family Court on 9^th October 2024 at 10:05am headed "Formal Complaint". In the document he made complaints of having been "intentionally ambushed with a defective and corrupted digital bundle filed impermissibly" by the Applicant and he made complaints about numerous documents within that bundle as well as the oral evidence of Mrs Grace.

26. The following have subsequently been received:

a. 11^th October 2024 at 9.06am - A 29 page document headed "application Urgent" in which further complaints were made.

b. 11^th October 2024 at 9.19am - The document was re-sent as hyperlinks had apparently inexplicably disappeared and Mr Grace corrected this.

c. 14^th October 2024 at 9.01am - a 38 page document seeking a GCRO against Mr Gardner and further alleging that he has misrepresented documents to the Court.

d. 15^th October 2024 at 3.52pm - an email from Mr Gardner stating that since the hearing 7 days previously he had received 19 e-mails, 2 phone calls and 10 documents from Mr Grace. This email also contained suggestions in terms of required drafting of the order to deal with any issues on sale of the property. Mr Grace provided a response on 16^th October 2024.

e. 22^nd October 2024 at 12.05pm Mr Grace provided the Court with an email he had provided to the Family Procedure Rules Committee secretariat confirming that he would attend the FPRC open meeting on 4^th November 2024. He stated that he "believed it would be of assistance for all in attendance for me to prepare not more than a 2 page summary at 1.5 line spacing setting out why I am so determined to bring what I perceive are loopholes in the law to the attention of the Rules Committee" and he added "Within three to six months I will self-publish a book, detailing an account of matters which have burdened me."

27. I point out that I will not take any of the issues raised in these documents into account as they were provided after the close of submissions. I simply refer to them in order to show that Mr Grace's enthusiasm for sending long documents does not appear to have waned following the final hearing.

28. Issues to be Considered

29. The issues that I consider important to deal with are as follows:

a. The Order of 21.4.22 and errors in the approval of that Order.

b. The disclosure of documents raised by Mr Grace.

c. The criticisms of the actions of Mrs Grace's solicitor and the failure to comply with the FPR

d. Should a costs order be made?

e. Drafting of the Order.

30. The Order of Deputy District Judge McIntyre 21 April 2022.

31. The central point of Mr Grace's case is that the typed document that was submitted by Mr Gardner following the agreement reached at the FDR was materially different to the handwritten document. The two documents are both present within one of the bundles that have been prepared for this hearing and I have considered the same. It is accepted by Mr Gardner that there are some differences, but it is his position that they are of little import. It is the view of the Respondent that the differences are "critical" and have meant that he is at risk of losing everything that he owns, including his commercial properties, and not just the former family home.

32. Mr Grace has carried out an extraordinarily detailed analysis of the differences between the two documents which he has set out in an Excel spreadsheet. He states that there are 19 alterations and has set these out within his skeleton arguments. I make no apologies for not considering each and every one of these differences, but it is important that I set out a number of the points raised by Mr Grace so the nature of his approach to this litigation is understood.

a. Para 3.1 refers to "the charge" on the family home rather than "charges"

b. Para 3.1 "property" instead of "Property".

c. Undertaking - refers to "My promises" in original and not "our promises".

d. Para 8 - Original refers to "two domestic mortgages" and the typed version refers to "the mortgage".

e. Para 8 - Original states the Nationwide mortgage shall be "repaid from the sale proceeds" whereas the typed copy refers to it being "paid (effectively by her) from the sale proceeds."

f. A number of paragraph numbers have been altered.

g. Some wording has been added such as in the definition section the original just states "Definitions. 2. Family Home" and then the address whereas the typed version includes the words "The "family home" means" and the address is then given.

33. The Respondent carried out extremely detailed research in relation to these issues and the amendments made and he is undoubtedly now very well versed in the minutiae of the FPR. He stated that the order is impermissible as Practice Direction 29D paragraph 1.2 (a) and (g) sets out what is permissible in Court officers making corrections to orders. It states that "a court officer may make an amendment to an order, without prior reference to a judge.... In the following circumstances –

a. where a court officer has wrongly transposed details in the draft order approved by the court

g. To improve the formatting (but not the numbering) of an order.

34. Mr Grace points out that there is an alteration in the numbering and consequently the Court Officer did not have the permission of the judge to make such amendments. It is fair to say that prior to Mr Grace pointing out this rule, it was not one of which I was aware. He further stated that the use of a capital "P" rather than a lower case "p" was "critical". However, he was not able to inform me as to how that was critical. I simply fail to understand what difference that would make to the impact of any order, although I accept it was grammatically incorrect.

35. The reality is that the vast majority of the alterations that were made between the original handwritten copy at Court and the typed version presented to the Court at a later date by Mr Gardner are totally inconsequential and would have had no impact upon the order being put into effect. It is simply impossible to imagine that a lower case 'p' as opposed to an upper case 'P' on the word 'property' could have caused any difference in the mind of any person that was reading the order, as to the meaning that was intended. I accept that it may be poor grammar, but that would be of no consequence as to how the order would be implemented.

36. I am satisfied that the amendment to only refer to a single charge on the property in favour of Nationwide Building Society is relevant as there are two such charges and any order should refer to the same. The same is true in relation to the wording in paragraph 8 which simply refers to the "mortgage" and not the mortgages. It is difficult to understand why these changes were made and why they were not simply corrected immediately. In the circumstances I am satisfied that Mr Grace was fully justified in raising the error in the copy of the order being sent to the Court by Mr Gardner as it relates to the charges on the property.

37. Those amendments should have been extraordinarily simple to correct. The fact that they have not been easily dealt with is as a result of the complete breakdown of trust between Mr Grace on the one hand and Mr Gardner. It was this that has led to Mr Grace considering that there has been a conspiracy which he appears to consider has involved staff at the Brighton Family Court to deprive him of all of his legal estate, not only relating to the family home but also the commercial properties in his name. This has in turn led to Mr Grace issuing numerous un-meritorious applications and raising many points which have no legal or logical basis.

38. A good example is that Mr Grace states that when he received a letter from a member of staff from HMCTS dealing with his complaint on 22^nd November 2023 he was convinced that it meant that everything that Mr Grace owned (including the commercial properties and possibly even the Spanish properties) could be lost. He bases this on a sentence that reads "At a hearing on 21 April 2022 Judge Panton made an order for you to transfer the ownership of all your legal estate." There is no possibility that this could have referred to anything other than the legal interest in the family home. If one looks at the order, in any of its iterations, the only property (with or without a capital 'P') is the family home. There is simply no reference within the order to any other properties. It is therefore inconceivable that the impact of that order could be the transfer of any other property. The perception of Mr Grace was totally misconceived and unreasonable.

39. The Order was in fact amended in August 2023 following a hearing before District Judge Spanton and I am satisfied that those amendments corrected the important issues such that the order should have been implemented. It is clear that Mr Grace now states that is not the case even though it is set out within the recital in an order of mine in October 2023 that Mr Grace did agree that the order was now correct as is set out in more detail below.

40. Disclosure

41. It is a major issue for Mr Grace that there are a number of documents that have not been disclosed to him by Mr Gardner but that have been provided to the court. The issue of disclosure has taken up an enormous amount of his time and has led to many of the applications which he has made. The reality is that these issues have all been considered at previous hearings and final orders made as a result of which it is not something that in strict legal terms I need to deal with in this judgment.

42. However, due to the central importance in Mr Grace's mind of this issue I will set out the position once more. The complaint made by Mr Grace is that Mr Gardner has sent documents to the court which he has not provided to Mr Grace. This issue was considered by District Judge Spanton when he made an order on 21^st April 2023 stating that "The Applicant's solicitor is ordered to disclose to the Respondent all and any correspondence or notes of communications by any medium whatsoever sent to the Court, or between the two parties, by the Applicant's solicitor from 1 April 2022 to date in accordance with FPR 5.7. Such disclosure is to be made by 4 PM on 26 April 2023."

43. There then followed a hearing before District Judge Spanton on 2nd May 2023 at which Mr Grace asserted that the order of 21^st April 2023 had not been complied with in full. Mr Gardner confirmed that a further check would be made and provide any further documents within seven days. The order that was made was for Mr Gardner to confirm compliance with that order by 10^th May 2023 and for Mr Grace to file a schedule of documents that he states to be missing seven days thereafter.

44. It was contended by Mr Grace that there had not been compliance with the order for disclosure and he sought for Mr Gardner to swear an affidavit to verify that there had been full compliance with the order. Mr Gardner stated that 50 pages had been disclosed originally and then, on further checking, another 70 odd pages were disclosed and that there were no further documents which had not been seen by Mr Grace. This was the subject of an oral hearing before District Judge Spanton on 26^th July 2023. I have seen the full transcript of that hearing and also the commendably short judgment.

45. In the judgment, District Judge Spanton stated that it was a surprise that further documents had not previously been disclosed but that now that Mr Gardner as an Officer of the Court has stated that the order was complied with the application was dismissed.

46. That decision was appealed by Mr Grace to myself. I ordered the transcript of the judgment to be obtained and on 10^th October 2023 I refused Permission to Appeal on the papers stating "upon the Court noting that the proceedings relate to a claim for Financial Remedies between the parties following their separation and that an order to resolve those proceedings appears to have been produced which is compliant with the agreement reached between the parties." Mr Grace was provided with permission to apply for an oral hearing, and he availed himself of that opportunity.

47. I heard that the matter on 17^th November 2023 and the order from that day includes the recital stating "upon the court noting that the proceedings relate to a claim for Financial Remedies between the parties following their separation and that an order to resolve those proceedings appears to have been produced which is compliant with the agreement reached between the parties and was sealed on 17^th August 2023." It was also added as a recital that "upon Mr Grace confirming that other than the issue of costs, the only other matter between the parties remains the wording of the TR1 relating to the property to be transferred pursuant to the agreed order."

48. After hearing Mr Grace the order that was made reads as follows: "Permission to appeal is refused as there are no realistic prospects of success. The decision that was reached was a case management decision within the wide discretion of a judge hearing such an application. This is a Financial Remedy application and is not the correct vehicle for satellite litigation. The only remaining issues between the parties can be fully and fairly prepared by either party and adjudicated upon without the need for any verification affidavit."

49. It follows from the above that issues in relation to disclosure have been considered by the Court and Mr Grace's application was dismissed. Further applications that he has made simply replicate the application that was considered and do not add anything to the case. I went to great lengths during this hearing to ensure that Mr Grace was content with all of the financial disclosure by Mrs Grace. He confirmed on multiple occasions that he is making no complaints about such disclosure.

50. As set out within my order dismissing the appeal these are Financial Remedy proceedings. This court needs to be satisfied that each of the parties and the Court has a full understanding of the financial position so that a fair and fully informed decision can be made. I am satisfied that that is the case and no further financial disclosure is required. The only other issue between the parties is that of costs and I am again satisfied that the disclosure that has been made and all of the documentation that is available is more than sufficient to enable this Court to reach a fair conclusion on the matter of costs.

51. It follows that there is no purpose in any further consideration of applications relating to disclosure of documents between the parties. If there are any other issues that arise between Mr Grace and Mr Gardner then that must be for other tribunals to consider. This Court is limited to making financial orders between the parties to include orders as to costs. I dismiss any applications that have not bee previously listed or adjudicated upon.

52. Breaches of the Family Procedure Rules

53. It is Mr Grace's case that Mr Gardner has acted in breach of the Family Procedure Rules on many occasions, and this has led to multiple complaints by Mr Grace. Examples of the breaches of the rules include:

a. Failure to serve the Form A on Nationwide, who held two mortgages on the family home. It is accepted by Mr Gardner that this was not carried out and there is no doubt that that is a breach of FPR 9.13

b. Failure to comply with orders, in particular relating to bundles for hearings. One of the wasted costs orders referred to above was due to the failure of Mr Gardner to produce a bundle for the hearing and I am satisfied that this was also a breach.

c. Failure to provide the bundle for this hearing in time and with the relevant documents. I have received a 232 page bundle prepared by Mr Gardner and Mr Grace has made many complaints in relation to that bundle. I believe I have seen approximately five emails including applications made by Mr Grace pertaining to these bundles. The response by Mr Grace has been to file his own bundle which ran to 601 pages and then a supplementary bundle of a further 353 pages. Once more I accept that Mr Gardner was in breach of my order in terms of preparation of the bundle.

d. A failure to comply with FPR 5.7 by ensuring that any communication with the court must be disclosed to the other party.

54. These are mere examples of the breaches of the orders and rules that have been alleged and indeed proved by Mr Grace. The question is the impact of those breaches. As I have already stated some previous breaches have been met by way of wasted costs orders. I decided for the purposes of this hearing that I would simply let in all of the documents and allow the parties to refer to any of the documents within any of the bundles to ensure that the hearing was able to proceed.

55. The reality is that there will be breaches of some of the rules in many, possibly the majority, of cases. The court does not encourage any such breaches, but the touchstone must always be the overriding objective as set out within FPR 1.1. This includes ensuring that the case is dealt with expeditiously and fairly and in ways which are proportionate to the nature, importance and complexity is of the issues as well as saving expense.

56. In this case there has undoubtedly been excessive expense primarily as a result of the huge number of applications made by Mr Grace and importantly this case has been allotted much more than its appropriate share of the Court's resources and has impacted upon the ability to deal with other cases. In considering the overriding objective I am satisfied that none of the breaches of the rules have led to an unfair final hearing and that no further orders or sanctions need to be made in relation to those breaches.

57. Costs

58. The normal rule for Financial Remedy proceedings is that there will be no order as to costs unless it falls within one of the exceptions set out within FPR 28.3 (6) & (7). The rules set out as follows:

a. FPR28.3 (6) The Court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (either before or during them);

b. FPR 28.3(7) states:

'In deciding what order (if any) to make under paragraph (6) the court must have regard to—

(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;

(b) any open offer to settle made by a party;

(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue.

(e) any other aspect of a party's conduct in relation to the proceedings which the Court considers relevant; and

(f) the financial effect on the parties of any costs order.'

c. The Court must also take into account FPR PD28A para 4.4 which states : "In considering the conduct of the parties for the purposes of rule 28.3 (6) and (7) (including any open offer to settle) the Court will have regard to the obligation of the parties to help the Court to further the overriding objectives, and will take into account the nature, importance and complexity of issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute. The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a 'needs' case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets."

59. As set out above the striking issue in this case is that the parties were fully agreed as to the appropriate outcome of the proceedings in April 2022 and the order that has now been made is in terms precisely as agreed on that date. The issue that this court has to consider is which party is responsible for the fact that the proceedings have continued for a further 2 ½ years since that date and the costs have ballooned.

60. The principal reason for the matter not settling immediately after the April 2022 hearing was due to the Order that was submitted not being consistent with the handwritten document that was agreed at court. That was the fault of Mr Gardner and was something that should have been corrected very shortly thereafter. The fact that it was not was partly due to Mr Gardner not instantly agreeing to any amendments but also due to the deluge of applications filed by Mr Grace and his dogged pursuit of what he considered to be the truth. I am satisfied that although it took some time the order was in fact corrected by August 2023 and certainly proceedings should have been able to be completed at that stage. There has followed significant dispute in relation to the TR1, which I have deliberately not delved into within this judgement as I do not consider it necessary to do so.

61. In considering the costs dispute where each party seeks an order against the other, the following issues are of greatest importance:

a. There have been breaches of the rules and failure to comply with orders of the court as set out above, but I am satisfied that they are not sufficient to justify any award for costs.

b. Has Mr Gardner, on behalf of the Applicant, contributed to the increase in costs? The answer to that must be that his failure to correctly reproduce the handwritten order in typed form has certainly led to extra time and expense within these proceedings. I am not satisfied that this is part of a deliberate policy by Mr Gardner to protract the case and build up his own costs. That is what is suggested by Mr Grace, but the evidence simply does not support that to be the case. The error that Mr Gardner made was significant, but it was not part of any masterplan as alleged.

c. Was it reasonable for Mr Grace to raise, pursue or contest a particular allegation is or issues? The answer to that question is indisputably 'No'. There was an error made by Mr Gardner in drafting the order which he sent to court and he should have corrected that error. However, the pursuit thereafter by Mr Grace has been wholly unreasonable disproportionate and inappropriate. He states that he has spent 3,000 hours in preparation of this case. If that is correct, and working on a 37 ½ hour working week, this would equate to 80 weeks of work. When one bears in mind that this is a reasonably straightforward Financial Remedy dispute it is unfathomable as to how so much time could be considered appropriate. He must understand that every time he sends a document to the court or to Mr Gardner on behalf of the Applicant it must be considered. That takes significant time and bearing in mind that many of Mr Grace's documents are extremely lengthy the time is significant. That has hugely increased the costs for Mrs Grace.

d. The manner in which the Application has been pursued. As is clear from all that is set out above, Mr Grace has acted in a wholly disproportionate manner by way of the number of applications and emails that he has sent to the Court and Mr Gardner. I have made orders that he is limited to sending one short email to the court per week and that all others will not be read but he has continually failed to comply with that order and bombarded the court with many emails. The correspondence and applications that have been received following this hearing are typical of his approach.

e. The financial effect of a costs order. I am satisfied that if a costs order is made against Mr Grace then he would be able to afford the same bearing in mind he owns commercial properties and also stock for his business as well as the Spanish properties.

62. The Applicant's costs have increased from £28,000-£90,000 since the parties entered into their agreement in April 2022. I am satisfied that some of those costs are attributable to the fact that Mr Gardner incorrectly drew up the order which he provided to the court. However, the vast majority of the increase in those costs is attributable to the unreasonable and disproportionate approach of Mr Grace to this litigation. I have no doubt that the litigation conduct of Mr Grace in this case fully merits an order for costs being made against him. The only question is what the level of those costs should be.

63. Mr Gardner stated in his closing submissions that he and the Applicant will have a discussion about the costs. I do not have any jurisdiction at present to make any order concerning her costs, but I would agree that there is full justification for there to be a reduction in the overall bill being charged to Mrs Grace bearing in mind the findings that I have made concerning Mr Gardner.

64. The Court is not to carry out a complicated and detailed assessment of the costs that should be awarded to the Applicant in this case. I have to take a broadbrush approach as is appropriate in a summary assessment. In all of the circumstances there must be a substantial contribution towards Mrs Grace's costs, and I assess that to be one of £20,000. That is to be paid within 21 days.

65. Drafting of the Order.

66. It is the customary practice within proceedings where one party is represented and the other is acting in person for the Court to request the represented party to draw up the order in the first place. This would then be referred to the litigant in person and any disagreements in the wording should be capable of being discussed by the parties and in most cases an agreed order is presented to the court. Bearing in mind the history in this case I have zero confidence of Mr Gardner and Mr Grace being able to reach any agreement and it is likely that there will be a painstaking number of points upon which they are unable to agree.

67. It is for that reason that I have taken it upon myself to draw up the order using the Standard Family Orders. As I set out in court the only alteration of significance is that I shall not order that the former matrimonial property should be transferred to the Applicant as she states that she fully intends to sell the property immediately as she is not able to continue to reside there. There has been a huge amount of correspondence and applications in relation to the drawing up of the TR1 in this case (which I have deliberately not dealt with in this judgment) and consequently it will be simpler to order that the property is sold with the Applicant having the sole conduct of that sale and for her to receive 100% of the net proceeds of sale after all of the usual payments have been made. Following all of the difficulties in this case I will include orders that any documents may be signed by the Court on behalf of Mr Grace if he fails to sign such documentation within 7 days.

68. I have not included any Restraint Order as I consider that the proceedings are now at an end, subject to any appeal, which would not be considered at the Brighton Family Court. If that transpires not to be the case I will re-visit that as an option.

69. If either party seeks to amend or vary any parts of the order they are to set out such within seven days of receipt of the order and the document is limited to 3 pages (I will simply not read beyond the third page). I will consider any such suggestions before finalising the Order.

70. Clarification

71. If either party wishes to raise any issues relating to clarification of any matters set out within this judgment or any errors (including typographical errors) they should do so in writing within seven days. Any such requests are also limited to 3 pages.

72. I remind the parties of the purpose of any request for clarification as was set out by the Court of Appeal in the case of YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 . At paragraphs 90 & 91 Baker LJ set out the position and I set it out herein in full:

"90.Finally I return to the vexed issue of requests for clarification. It may be, as Ms

Fottrell suggested during the appeal hearing, that it takes time for the messages from

reported cases in this Court to get through. But, if I may adopt the words of Sir

Nicholas Wall P quoted above, it is high time they did. This case illustrates that the

procedure is still being misused. I would therefore draw the following lessons to be

learned from this case, in the context of other cases which have involved similar

examples of the practice being misused:

(1) A judgment does not need to address every point that has arisen in the case. The

court should only be asked to address any omission, ambiguity or deficiency in the

reasoning in the judgment if it is material to the decisions that have to be taken in

the proceedings. In care proceedings, the decisions are whether the threshold

criteria for making orders under s.31(2) are satisfied and, if so, what orders should

be made to meet the child's welfare needs.

(2) When making a request for clarification of any perceived omission, ambiguity or

deficiency in the reasoning in the judgment, counsel should therefore identify why

the clarification is material to the decisions that have to be taken in the

proceedings.

(3) Counsel should never use a request for clarification as an opportunity to re-argue

the case, reiterate submissions, or invite the judge to reconsider the findings.

(4) Requests for clarification should not be sent in separately by the parties but rather

in a single document compiled by one of the advocates. If necessary, there should

be an advocates meeting to compile the document. Save in exceptional

circumstances, there should never be repeated requests for clarification.

(5) Judges should only respond to requests for clarification that are material to the

decisions that have to be taken in the proceedings.

91. The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope

that hereafter counsel will confine requests to matters which are material to the

proceedings and that judges will deal robustly with requests that exceed what is

permissible."

73. I do not require the parties to send in one joint document. They can be sent individually, if it is considered that it is required at all.

74. Anonymity

75. It is still the case that the vast majority of Financial Remedy judgments are anonymised. The question of anonymisation remains in dispute as was fully set out by Peel J in the case of Tsvetkov v Khayrova [2023] EWFC 130 at paragraphs 110 onwards. I do not intend to repeat what is set out in that judgment in relation to the contentious issues surrounding anonymisation, but for the purposes of this case it is important to set out what was stated about cases in which the general rule would not apply.

76. At paragraph 117 Peel J stated: "Even if (contrary to the thesis of Mostyn J) the starting point of non-reportability is as set out in Clibbery v Allen and Lykiardopulo , there are certain categories of case where publication is more likely to take place:

a. Where there has been litigation misconduct; Lykiardopulo was just such a case.

b. Where anonymisation would be effectively impossible because of the prominence of one or both of the parties, as in McCartney v Mills McCartney [2008] 1 FLR 1508.

c. Where material in the financial remedy proceedings is already in the public domain, as in Crowther v Crowther [2021] EWFC 88 where the case had travelled up to the Court of Appeal on a contested freezing injunction which had been heard (as is the practice in the Court of Appeal) publicly.

d. Where one or both parties court publicity."

77. There is no suggestion that this case involves prominent individuals or that any of the material is already in the public domain. However, the findings that have been made are ones of significant litigation misconduct such that I am satisfied that this is a case in which, whatever the starting point on anonymity, the parties should be named. The perpetual onslaught perpetrated by Mr Grace is so far beyond what could possibly be considered acceptable that this case clearly calls for the parties to be named.

His Honour Judge Farquhar

10^th January 2025

	MARY-JANE GRACE	Applicant
	- and -
	IAN DOUGLAS GRACE	Respondent

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Grace v Grace [2025] EWFC 37 (B) (10 January 2025) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2025/37.html Cite as: [2025] EWFC 37 (B)

England and Wales Family Court Decisions (other Judges)