Financial Remedy Conduct Allegations: Why Gray v Gray Cost One Litigant 75% of the Costs
Why This Case Matters for Litigants in Person
If you are representing yourself in financial remedy proceedings, one instinct trips up more litigants in person than almost any other: the pull to make the court see how badly you were wronged, rather than focusing on the questions the court actually has to answer.
Gray v Gray [2023] EWFC 349 (B), a judgment from District Judge Baker in the Family Court at Croydon, shows exactly where that instinct leads when it is not managed. It is a short, low-asset case on its facts, but the costs decision at the end makes it essential reading for anyone approaching a financial remedy hearing without a solicitor.
The Facts in Brief
The parties had one significant asset: the former matrimonial home (FMH), owned solely by the husband since before the marriage. The wife sought 50% of the net equity plus a share of the husband's pension to meet her needs in retirement. On the numbers alone, this was a straightforward needs-based Section 25 MCA 1973 case.
The husband, a litigant in person, saw it differently. He alleged fraud, perjury, and theft, and maintained that his wife's personal injury compensation had been hidden from the court. He refused to negotiate until these allegations were addressed, sent lengthy and at times threatening correspondence to her solicitors, and copied in friends and associates throughout the proceedings.
What the Court Actually Decided
The judge found that almost every one of the husband's allegations was legally irrelevant to the questions before the court, and the one allegation that could have mattered, that the wife was hiding settlement money, was not proved on the evidence.
On computation and division, the court:
- Valued the former matrimonial home at around £400,000, rejecting both the husband's lower "as is" figure and the wife's higher two-flat valuation, and drew an adverse inference against the husband for deliberately leaving renovation work unfinished to suppress the property's value
- Ordered a lump sum of roughly half the net equity to the wife
- Ordered a full pension sharing order of the husband's SIPP, to equalise retirement incomes under the approach set out in W v H [2020] EWFC B10
The Costs Order: A 75% Departure From the Norm
The usual starting point in financial remedy proceedings is that each party bears their own costs. Under FPR 28.3(6), the court can depart from that starting point where a party's conduct in the proceedings justifies it.
The judge applied the four-part test approved by Mostyn J in James v Seymour [2023] EWHC 844 (Fam):
- Was there deliberate non-disclosure or a refusal to negotiate openly?
- Did a party fail to explain the basis of a claim or comply with procedural directions?
- Was a ludicrous claim advanced that stymied settlement?
- Was there an actual refusal to negotiate?
The court found the husband's conduct met all four limbs, and ordered him to pay 75% of the wife's costs, including the costs of an FDR hearing rendered ineffective by his refusal to engage.
Conduct Is Not a Moral Question
The judgment is a clear restatement of a principle that catches out many litigants in person: the financial remedy court is not a court of morals. As Mostyn J put it in the earlier case of OG v AG [2020] EWFC 52, cited approvingly in this judgment:
Conduct should be taken into account not only where it is inequitable to disregard, but only where the impact is financially measurable. It is unprincipled for the court to stick a finger in the air and arbitrarily fine a party for what it regards as immoral conduct.
The judge in Gray v Gray also drew on S v S [2006] EWHC 2793, which reviews the small number of cases where non-financial conduct has actually affected an award, all involving serious violence or coercive control causing measurable financial harm. Feeling wronged, however genuinely, is rarely enough. The conduct has to have a quantifiable financial consequence.
Two Practical Lessons for Litigants in Person
1. Test every point against computation and division, not narrative. Before raising an issue, ask whether it actually affects what assets exist, what they are worth, or how they should be divided. Points that are really about who was right or wrong in the relationship are unlikely to help your case, and, as this judgment shows, can actively damage it.
2. Your conduct in correspondence is part of your case. The court in this judgment treated the husband's threatening and repeatedly copied-in emails as litigation conduct in its own right, separate from the merits of his substantive allegations. How you communicate during proceedings carries its own costs risk, independent of whether you are ultimately right about the assets.
Where a McKenzie Friend Can Help
A McKenzie Friend cannot give legal advice or conduct the case for you, but they can help you:
- Distinguish which points genuinely bear on computation and division under Section 25 from those that do not
- Prepare correspondence and statements that stay within the issues the court needs to determine
- Understand costs risk under FPR 28.3 before it becomes a problem, not after
- Stay grounded in the needs-based framework the court will actually apply, rather than the narrative of the relationship
Remember: the litigant in person remains fully responsible for their own conduct of the case. A McKenzie Friend supports that process; they do not take it over.
Related Glossary Terms
Bridge The Gap provides observational insights and collective community experiences only. We do not provide legal advice, legal representation, or caseworker services. Always consult a qualified legal professional for your specific circumstances, and always check current case law and court rules for the position that applies to you.
Walk into court informed, not in the dark.
Explore the full platform — community insights, your journey map, and a 231-term legal glossary.