the judge ignores service rules

Charls I would like to ask your view on this if I may.

a) if there is no service (regardless if I knew about the claim or not) b)and the 6 month service out of jurisdiciton has expired

Do you still belive that an application for a strike out based on jurisdiciton is still enterpreted as me putting a spanners in the works and would be likely to fail?

Thanks...

I have looked at this thread. It seems the OP is not listening to the wise advice they have been given. I too would suggest they forget about trying to argue about service and focus on the matter of settlement.

It is worth noting that any clear evidence that proceedings were known about has regularly been used to allow a divorce to progress where service hasn't been acknowledged.

Hadenoughnow

thank you for having a look at my problem.

You know I wish there were some consistency with these rules. Contrary to your experience I must say that my first application for divorce which was not acknowledged by my wife that was posted and was brought into the alimony court notes with all relevant references, was not accepted by the divorce judge. So I had to withdraw my original divorce applicaton. File a new one and this time use the foreign service section to exact proper service which was subsequently accrpted.

I hope you can see my frustration.

The difference here is that to grant a divorce the judge has to be satisfied that the respondent has received the petition.

In order to satisfy a judge that the petition has been received they will first look for an acknowledgement from the respondent. If there isn't one, they will accept a statement of service from a bailiff or process server. If that isn't possible an application can be made for alternative service service e.g. by posting a letter at their address, on their facebook page or by WhatsApp. If you don't know the address/facebook/WhatsApp it gets difficult.

What is helpful is where a respondent sends an email or text saying something along the lines of "I've received the petition, I won't comply!" which can be used in an application as proof of receipt.

The test in financial proceedings is different as the divorce proceedings have to be underway already so there will proven contact with the opposing party at that stage.

As you've said yourself you had notice of proceedings and you merely chose to say that you'd not been served 'properly' therefore it was void. It is within the Court's gift to decide that service had occurred, you knew about the proceedings and should have attended.

As I said above, the financial proceedings are inevitable - can you name a prejudice you have suffered from not receiving the notice through formal service which you had received by other means? If not, there will be no sympathy to any application to strike out - a measure which the family court seldom makes.

I've worked in the law for many years and in recent times (the last 10 years) the Courts have had to take a different approach to dealing with matters in order to avoid a small percentage of cases from blocking access to justice for the large percentage of cases.

The Courts do this with case management powers which allows them to make decisions about how justice is administered.

If a party wants to drag an opposing party through court purely for fun or through spite the Court takes a dim view. The Court is not the playground of litigants - it is a blunt tool used to administered justice to parties that cannot agree to settle matters between them.

The alternative which would avoid the blunt tool of justice is for parties to communicate with one another and reach a settlement which would usually involve a compromise by both parties.

This will avoid the time, cost and stress of court proceedings which will otherwise consume all parties for 18 months or so at which point a judge will make the decision then move on to the next case without much thought.

Charles

Than you for this.
I do not intent to drag this out in this forum , so probably this would be my last comments.

The communications I wrote to the court and the petitioner`s solicitors did not draw any reference to any proceedings particulars"...As you've said yourself you had notice of proceedings " ...

This is what I wrote to them: "..I am led to believe that financial proceedings regarding my divorce procedure have been filed with your court on behalf of my wife Azar Nami by her solicitors.... and then gave them my address to help them arrange for the service". How did I know? They first emailed my divorce solicitor only to be told by her that she is not acting on my financial remedy case. My solicitor then email to inform me of this. So this is how I got to know about the claim/appliation.

Afterwards a flurry of emails began to arrived from the claiment sollicitor which I did not concern myself with and delted on arrival.

1- By the way the divorce proceedings started by me and the financial remedy application started by me Ex.
2- The financial remedy application is not a continuation of the divorce. For the divorce I was in the UK and my EX in Istanbul. For the financial remedy Ex is in the UK but I am outside the UK.

"...can you name a prejudice you have suffered from not receiving the notice.." The case laws I came across talks about the "potential" prejudice becaue these rules needs to apply to all cases. But dont you thind not being present to offer a defence is prejudice enough?


"..The Courts do this with case management powers .." I think you are refering to the "overall objectives (oo)" as the source of the courts descretion however I do no see how the court can justify using it given that:
a) The (oo) has to be applied justly. To this end if proper service is a must in all proceedings then not applying it to my case makes it unjust.
b) (oo) also requiers a fair tratment. If court closes thier eyes on the petitioner professional solicitors default or neglect at first instant and focuses only on my default then it is harly a fair treatment.

Sorry if this is dragging out ....

The letter of the law and the application of the law are subtly different. More so in the Family Court than the Civil Court. This is why each Court has its own set of rules.

What you must understand is that the law is a stick which is wielded by the Court. It is not a stick which a litigant can wield themselves. You can be behind the Court or in front of it.

You can question the application of the law but appeals of orders are mostly unsuccessful and of the remaining, they are partially successful, fully successful or a pyrrhic victory.

You need to pick your battles carefully. Questioning proper service where the Court appears to be satisfied that this occurred is a waste of your time and, more importantly, the time of the Court.

As you have already collected a costs order against you, it would appear that the Court's summary so far is that:

1 Your ex has applied for a financial order
2 You are frustrating the process and denying justice to your ex.
3 The Court has signalled its displeasure by making a costs order against you.

The reason I reach those conclusions is that the Family Court seldom makes costs order unless it sees a clear case of litigation misconduct.

As you weren't at the hearing you don't know what was said but I would guess that the solicitor/barrister on the other side said that you knew of the proceedings and you had ample opportunity to attend or contact the Court to make arrangements for attendance remotely or - which is often the case with the FDA hearing - agree directions and vacate the hearing with an agreed order.

Non-engagement in proceedings is litigation misconduct. The Court will always find against a person on that basis as it wastes the Court time and blocks access to justice. Access to justice in this instance is the making of a financial order which is inevitable.

If you deal with the financial application by filing form E and disclosure; exchanging and answering questionnaires, attending upon the FDR to discuss possible settlement etc. that will be time well spent and will foreshorten the process. This also allows parties to reach a settlement between them rather than one which is imposed upon them by the Court.

I offer the above as an insight into the operation of the Court, not as a judgment upon you as it's not my chosen role to determine such issues.

Charles

Thank you charles for your comments and more importantly your patience. It is much appreciated.

I took note of all you said and will follow your advise. However there is a nagging question in my head that I love to hear your views on. This is not aimed at drilling my point further but a way to put this to sleep, so to speak.

I am not clear as to how the court has come to the conclusion that a service was undertaken, or that I knew about the FDA hearing. Q: how can I find out! do I ask the court for clarification on our next meeting?

Given that I received emails notifying me of the application (allbe it without my written confirmation), there has not been any emailed details of the FDA, its date etc in any email body that I have received. Q: How am I to accept the courts assumption that I knew about the FDA and did not attend eventhough there is no proof possible that I knew? Putting aside the issue of service is this not fundamentally wrong/unjust to assume something was when it wasn`t?

And finally what about the body of high/appeal court rulings that shadow my problem with regards to the improper service of the calim form/time out(expired) unserved claims which I draw on to formulated my views. The stuff to do with "the bright line", "knowing is not the same as been served properly", "being served properly is a must", "rules are there to be followed and is nothing less than neglect if erred by legal professional", etc. Q: do I accept that they can not come to my rescue and unlitmately people have to take the stick wielded by courts regardless?

Regards..