RT v DW (Protected Party: Proceeding in the Absence of a Litigation Friend) [2026] EWFC 183 (B)

[2026] EWFC 183 (B)

Case No CF08D00566

Venue Cardiff Civil and Family Justice Centre, 2 Park Street, Cardiff, CF10 1ET

Date 15/06/26

IN THE FAMILY COURT SITTING AT CARDIFF

Before

HIS HONOUR JUDGE MUZAFFER

Between

RTApplicant

DWRespondent

The Applicant appeared in person for in person

The Respondent appeared in person for in person

Hearing Hearing date: 11 th and 12 th May 2026

Judgment handed down at hearing on 15 th June 2026

.............................

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case overview added by court prior to publication:

HHJ Muzaffer

[1]Nature of proceedings: cross applications to set aside and enforce a financial remedy consent order

[2]Nature of hearing: final hearing

[3]Issues: protected party / whether to proceed in the absence of a litigation friend / whether to set aside or enforce the consent order / whether to stay outstanding matters

[4]Outcome: proceeding in the absence of a litigation friend to dismiss the application to set aside the consent order and make an order for possession in respect of the FMH. Application for damages arising out of a s.37 freezing order stayed for 12 months His Honour

Introduction

Judge Muzaffer:

[1]Further to a Financial Dispute Resolution Hearing on 1st May 2024, HHJ Parry approved a consent order that concluded long-running financial remedy proceedings between the wife, Ms RT, and the husband, Mr. DW. The court had previously determined that Mr. DW lacked the capacity to litigate those proceedings, and he proceeded by his litigation friend, the Official Solicitor.

[2]The consent order provided for the sale of the former matrimonial home (‘X Property’) with the net proceeds of sale being split 50:50 between the parties. It was agreed that the husband would remain living in the property pending its sale.

[3]In early 2025, the parties received an offer for the property in accordance with its market value. The wife wishes to proceed with the sale, but the husband does not. This is the court’s judgment on the applications that followed. In short, the husband seeks to set aside the consent order, whilst the wife seeks enforcement.

[4]The proceedings have been extremely difficult to progress. The husband continues to lack litigation capacity and is recognised as a protected party for the purposes of FPR Part 15. However, despite its best endeavours, the court has been unable to appoint a litigation friend to conduct the proceedings on the husband’s behalf. Both parties have remained litigants in person throughout. The court must now resolve matters in a manner that is fair and just to both parties.

Summary of Outcome

[5]By way of a summary to assist the parties to make sense of what follows, the court makes the following orders on the applications before it:a. The husband’s application to set aside the consent order is dismissed.

b. The husband shall give the wife possession of X Property by no later than 4pm on 13th July 2026.

c. The wife shall have sole conduct of the sale of X Property.

d. The wife’s application to vary the consent order is dismissed.

e. The husband’s claim for damages arising out a s.37 freezing order is stayed for a period of 12 months in the first instance, with provision for the stay to be lifted should he obtain the appointment of a litigation friend to conduct the claim on his behalf.

f. The husband shall pay the wife’s costs of her application to enforce the consent order, summarily assessed in the sum of £1,500, inclusive of VAT. Background The consent order dated 1st May 2024

Background

[6]The parties met in 1998 and married in August 2000. They separated in 2008, at which point the wife petitioned for divorce and obtained Decree Nisi. However, the parties reconciled in 2010, even though the divorce proceeded to Decree Absolute in October 2011. The parties separated permanently in 2020, and the wife issued a Form A dated 9th November 2020.

[7]It is unnecessary to undertake a detailed survey of the litigation history that followed, although it would be a task of considerable ambition in any event. The court has no less than seven full paper files before it. For present purposes, the following points are relevant:a. On 5th March 2021, the wife made an application for a section 37 freezing order. This was granted on an ex-parte basis on 8th March 2021 and confirmed at a return date hearing on 21st April 2021. The Deputy District Judge’s order of that date included restrictions on the ability of the husband to execute any new tenancies or licences in respect of the property owned in his sole name, ‘Y Property’. This was operated by the husband as a HMO. The order also included, in standard terms, an undertaking from the wife to the effect that if the court later found that the order caused loss to the husband and decided that he should be compensated for that loss, she shall comply with any order the court may make. The freezing order remained in place for the duration of the proceedings.

b. In December 2021, the husband’s solicitors sought an adjournment of the FDR due to take place later that month because of concerns about the husband’s capacity to litigate. A capacity assessment dated 24th February 2022 confirmed that the husband lacked litigation capacity, on account of him being incapable of understanding, retaining, and weighing relevant information to make litigation decisions for himself because of severe anxiety. By order of 9th March 2022, the Official Solicitor was invited to act as the husband’s litigation friend. This resulted in significant delay, and it was only by order of the court dated 3rd April 2023 that the Official Solicitor was appointed as the husband’s litigation friend.

c. The proceedings were otherwise marked by delays in disclosure and the obtaining of evidence. Expert valuation evidence was obtained in respect of X Property, Y Property, and a property part-owned by the husband in Spain. In addition, expert evidence was received in respect of a parcel of land (‘Z Land’), in respect of which the wife had inherited a 45% share in following the death of her father.

[8]The FDR initially commenced on 8th April 2024, but for reasons that are not recorded, was adjourned part-heard to the 1st May 2024. As well as providing for a sale of X Property and a 50:50 split of the net proceeds (after payment of the husband’s credit card debts), the consent order also directed that:a. the freezing order dated 21st April 2021 be discharged;

b. the parties have joint conduct of the sale;

c. that the husband shall sign and execute any documentation necessary to effect the marketing and/or sale within 7 days of receipt, or in default, the documents shall be signed and executed by a District Judge;

d. pursuant to FPR r.9.24, the husband shall vacate the property to enable viewings to take place; and

e. a clean break.

[9]No orders were made in respect of Y Property and the Spanish property (both retained by the husband), or Z Land (retained by the wife).

The current set of proceedings

[10]In March 2025, the parties received an offer to purchase X Property in the sum of £650,000. This was accepted by the wife, who was keen to progress the sale as quickly as possible. For context, the wife has been dependent on private rental accommodation since separating from the husband. Her income is limited and she is only able to afford modest accommodation. The youngest of three children of the marriage, CTW, now aged 19, has continued to reside with the wife and sleeps on a sofa. X Property, where the husband continues to reside alone, is a 5-bedroom family home.

[11]The husband denies accepting the offer, although I note the terms of an email that he sent to the estate agents on 13th March 2025 in which he states that “The offer has been accepted and I cannot do more.” As it happens, the husband had actually issued an application to set aside the consent order a day earlier on 12th March 2025.

[12]The husband’s D11 application notice and lengthy supporting statements are extremely difficult to follow. They refer to his physical and mental ill health, a range of issues dating back to 2020, and allegations of fraud against the solicitor and counsel that represented the wife in the substantive proceedings. He also takes issue with the value attributed to Z Land by the single joint expert, alleging that there were matters of fraud when the land was valued for the purpose of probate.

[13]The matter was first listed before HHJ Parry on 24th April 2025, although she was unable to progress matters on account of having conducted the FDR. At the first listing before myself on 22nd May 2025, the court sought to explore the husband’s position further. It appeared to the court that there were two limbs to his application. His primary application was to set aside the consent order on the basis that Z Land had been undervalued. However, he also sought compensation for losses arising out of the freezing order dated 21st April 2021, on the basis that this was procured by the wife with statements that she knew to be untrue.

[14]The husband made it clear that he had no intention of furthering the sale or vacating X Property, regardless of the outcome of his application to set aside. There being little alternative available to her, the wife confirmed that she intended to make her own application to implement the consent order and seek an order for vacant possession of X Property.

[15]The court noted the previous finding in respect of the husband’s capacity to litigate and considered the capacity assessments on the file. As the hearing progressed, it became clear that questions regarding the husband’s litigation capacity persisted. Given that the hearing on 22nd May 2025 was a short directions appointment and further enquiry and judgment was not possible, the court determined it appropriate to limit itself to an interim declaration that the respondent lacked litigation capacity pursuant to FPR r.20.2(1)(b). This allowed the court to proceed with an invitation to the Official Solicitor to act for the husband in the absence of any alternatives.

[16]The court actively considered whether it would be appropriate to exercise its case management powers to dismiss the husband’s application, but decided against doing so given the terms of FPR r.15.2 and r.15.3, and the wife’s stated position that she intended to make her own application in due course (which would have again called into question the husband’s capacity to litigate).

Involvement of the Official Solicitor

[17]The court hoped that an interim declaration would have the practical benefit of reviving Official Solicitor’s involvement as quickly as possible, clearing the way for a challenge to the interim declaration or suggestions for further enquiry if it were considered appropriate. The court was acutely conscious of the need to act without delay given the possible loss of the proposed sale and the apparent merits of the husband’s application to set aside.

[18]The matter was listed for a further hearing on 25th June 2025. By way of letter dated 20th June 2025, the Official Solicitor indicated that she was not yet able to confirm whether the acceptance criteria for an invitation to act was satisfied. The hearing was adjourned to 13th August 2025 to allow the Official Solicitor further time to consider her position.

[19]By letter dated 12th August 2025, the Official Solicitor informed the court that she remained unable to accept the invitation on the basis that security for costs for the husband’s legal representation was outstanding. A referral had been made to a firm of solicitors to consider an application for legal aid via the exceptional funding route, but this remained the subject of investigation. By way of a further email dated 13th August 2025, the Official Solicitor indicated that it seemed likely that the husband would pass the means test for legal aid, but that once an application is made, it might be at least 8 to 10 weeks before the Legal Aid Agency considers the merits element.

[20]The next listing of the matter was fixed for 24th October 2025. By letter dated 13th October 2025, the Official Solicitor informed the court that a further month was required to complete the application for legal aid. The hearing on the 24th October 2025 was vacated and re-listed on 25th November 2025.

[21]On 20th November 2025, the Official Solicitor informed the court that she remained unable to accept the court’s invitation to act, as the firm of solicitors instructed to consider the claim on her behalf had still not provided a full response and determination as to whether to make an application for legal aid. A further period of time was requested, and the hearing was adjourned to 26th January 2026.

[22]By letter dated 16th January 2026, eight months after the court’s order of 22nd May 2025, the Official Solicitor confirmed that she would not be able to accept the invitation to act as the husband’s litigation friend. The letter set out that the solicitors that she had approached (the same as those that had acted for the husband in the substantive proceedings) had now indicated that it was not willing to make an application for legal aid in respect of any of the applications before the court. Whilst it was considered that the husband would be financially eligible for legal aid, it was not considered that any application would meet the legal aid merits test. The letter notes that the Official Solicitor cannot compel any solicitors firm to make a legal aid application. In the absence of liquid funds or any other way to fund the husband’s legal representation, the question of the Official Solicitor’s security for costs remained outstanding.

[23]The court is bound to record its concern and frustration at the time taken to resolve this issue. The merits of the application were capable of being determined at an earlier stage, particularly as the relevant documentation had been sent to the Official Solicitor pursuant to the order dated 22nd May 2025. The delay that followed cannot be attributed to any investigation of the husband’s financial means or difficulties arising from an application to the Legal Aid Agency, as no application was made. In each of its orders, the court identified the tension between the parties’ rights to a fair trial and the need for expedition. In circumstances where there remained a realistic prospect that the proceedings might continue with the benefit of a litigation friend, the court repeatedly concluded that the balance fell in favour of an adjournment.

[24]However, notwithstanding the tenor of these observations, the court finds it difficult to be critical of the Official Solicitor. I fully recognise the resources pressures under which her office operates and remain grateful for the conscientious efforts made to progress the matter. The court must also bear in mind that the solicitors who considered the merits of the husband’s position, and the possibility of a legal aid application, did so on a pro bono basis.

[25]The systemic difficulty is that vulnerable individuals such as the husband do not have automatic recourse to legal aid in cases of this kind. The husband has been left to navigate matters alone and without representation, while the wife has had to endure the continuing financial and emotional burden arising from the protracted litigation. The reality is that both parties have, in a very real sense, been impeded in their access to justice and have suffered hardship as a result. This is a matter that ought to give rise to real concern.

[26]I note that other possibilities were considered by the court, including pro bono assistance or the involvement of the Court of Protection. In terms of the former, advocates and charitable organisations understandably will not agree to act when there is a risk of being liable for costs. In respect of the latter, any application to the Court of Protection for the appointment of a professional deputy, who might then assist as a litigation friend, would be a lengthy and costly process. There is also no clear avenue as to who or how such application would be made in the circumstances of this case. Finally, there are no family or friends willing to take on the role.

Capacity determination

[27]On the basis that the court had only ever made an interim declaration regarding the husband’s capacity to litigate, a final determination was required before the court could decide how best to proceed. The court sought updating evidence as to the husband’s mental health and invited his General Practitioner to complete a capacity assessment in the standard form. Whilst a formal capacity assessment was not forthcoming, the court received a written update dated 18th February 2026 confirming that the husband continued to be treated for severe anxiety. In the words of his GP:

“This condition causes him to feel constantly anxious, causes him to have a constant tremor, he has difficulty in articulating without stuttering, especially in pressured situations, it affects his cognitive functioning especially word processing and memory and sleep disturbance.”

[28]The GP considered that the husband’s mental health had deteriorated in the years since the capacity assessment in February 2022, and as such “it is very likely that he continues to lack capacity to conduct proceedings.”

[29]At a hearing on 2nd March 2026, the court heard from the respondent and considered all relevant information on the court file. The court made a final determination that the husband did not possess the capacity to litigate the proceedings. The court concluded that the husband was unable to use and weigh information provided by the court to make decisions as to the litigation, and that this was because of his severe anxiety.

[30]The court notes that whilst the husband can describe in broad terms the decisions that he wants the court to make, he becomes overwhelmed by even gentle enquiry. Although he retains his ability to communicate at a basic level, the stress of the proceedings and being in the court environment plainly have a debilitating effect on his welfare. This manifests itself in stuttering, a tremor, and an inability to retain focus on a particular issue. His anxiety impacts on both his ability to understand questions put to him and give answers that can be understood.

Participation of the husband

[31]Having made a final determination that the husband lacked capacity to litigate these proceedings, the court decided to list a final hearing to determine the question of whether to proceed in the absence of a litigation friend, and to make any final orders that it thought appropriate to make.

[32]The court considered how it might best facilitate the participation of the husband at the hearing. In addition to measures such as courtroom screens and regular breaks, the court directed that an assessment be undertaken as to whether the husband would benefit from the provision of an intermediary.

[33]HMCTS procured an assessment by the intermediary provider Communicourt dated 28th April 2026. This concluded that, even with standard reasonable adjustments, the husband’s communication needs are such that an intermediary was necessary to promote his participation at the hearing. The report made various recommendations, including:a. controlling communication with slow, clear, and plain language, whilst also breaking information into short, manageable parts;

b. actively managing the husband’s anxiety with regular, scheduled breaks, whilst also being alert to signs of distress;

c. keeping oral communication short, slow and structured;

d. allowing alternative means of expression, including writing out his submissions or answers to questions;

e. giving a clear structure to the hearing from the outset and re-orienting him periodically with reference to this; and

f. simplifying and signposting any judgment or decision.

[34]To allow sufficient time for breaks, a slowed pace, and a shortened court day, the court listed the matter over two days, 11th and 12th May 2026. The husband was assisted by an intermediary throughout. He was able to address the court at length and referred to a significant amount of documentation in support of his position. With some prompting, the husband followed the court’s structure as it moved between issues. The court facilitated planned and ad hoc breaks, and recapped matters where necessary.

[35]In accordance with the intermediary’s recommendation and the husband’s stated preference, the court then reserved judgment to be handed down in writing. With the court’s other commitments, the earliest available date for the judgment to be formally handed down was 15th June 2026.

Decision to proceed

[36]FPR Part 15 and its associated practice direction sets out the rules regarding the representation of protected parties. The necessity for a litigation friend is dealt with at FPR rules 15.2 and 15.3. 15.2 Requirement for litigation friend in proceedings A protected party must have a litigation friend to conduct proceedings on that party’s behalf. 15.3 Stage of proceedings at which a litigation friend becomes necessary(1) A person may not without the permission of the court take any step in proceedings except – (a) filing an application form; or (b) applying for the appointment of a litigation friend under rule 15.6, until the protected party has a litigation friend.

(2) If during proceedings a party lacks capacity (within the meaning of the 2005 Act) to continue to conduct proceedings, no party may take any step in proceedings without the permission of the court until the protected party has a litigation friend.

(3) Any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

[37]The clear purpose of these provisions is protective. They exist to ensure that a party who lacks capacity is not disadvantaged in litigation that they cannot conduct for themselves and allow that party’s interests to be properly advanced by someone able to make decisions on their behalf.

[38]FPR rule 15.2 is drawn in mandatory terms and with no stated exceptions. Plainly, a decision to proceed in the absence of a litigation friend is a serious step that should only be taken where the circumstances truly require it. However, when read in conjunction with rule 15.3, it would be wrong to elevate rule 15.2 to the point of imposing an absolute bar on decision making. Rule 15.3 expressly affords the court a degree of discretion to permit steps being taken without a litigation friend having been appointed. That discretion must be exercised with great caution, with the husband’s right to a fair hearing under

Article 6 of the European Convention on Human Rights

plainly engaged. However, the discretion exists, and the question for the court is whether this is a case where it would be appropriate in all the circumstances of the case to apply that discretion in favour of proceeding.

[39]In resolving this question, I return to the court’s compass, namely the overriding objective pursuant to FPR rule 1.1. The court is to deal with cases justly, which includes, so far as is practicable:(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance, and complexity of the issues;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allow resources to other cases.

[40]The obligation to deal with cases justly is one that runs to both parties. The protection of the husband as a vulnerable party is a weighty consideration, but it is not the only one. Throughout, the wife has been left to bear the continuing financial and emotional burden of the protracted litigation. Her needs continue to go unmet, and she is entitled to expect that the consent order is implemented absent an order to the contrary. Beyond the interests of the parties, the court also has a vested interest in achieving finality in litigation and in ensuring that its orders are not frustrated.

[41]What is clear is the necessity for the court to balance all the circumstances of the case, with particular regard to the nature of the issues to be resolved. Where the court does decide to proceed, it should go no further than is necessary to do justice between the parties, determining only those matters that genuinely require resolution. It is for that reason that I propose to consider the question of whether to proceed in respect of each application and issue individually, rather than as a single global decision.

Whether to proceed: the applications concerning the sale of X Property

[42]I begin with the applications that concern the sale of the X Property, namely the husband’s application to set aside the consent order and the wife’s application to enforce it and seek an order for possession. These applications are clearly intertwined, in that they both go to the single question of whether the agreed sale should proceed.

[43]I am satisfied the court should proceed to determine these applications now, notwithstanding the absence of a litigation friend.

[44]First, the consent order provides for the sale of X Property, a sale has been agreed at full market value, and that sale is presently frustrated. The prospective purchaser has shown remarkable patience throughout, but the sale will inevitably be lost through further delay. To stay these applications and leave them undetermined would not be a neutral act. It would consign the parties to a state of permanent limbo and uncertainty. In particular, the ongoing prejudice to the wife would continue without end. She remains dependent on modest rented accommodation in expectation of being able to purchase a property once the order is implemented, whilst the husband continues to live in comfort at X Property. The husband has not paid the mortgage for several years, and it is at risk of repossession by the mortgagee (although the husband insists this is not the case).

[45]Second, the court considers that the issues arising from these specific applications are narrow and capable of determination without forensic inquiry. The wife’s application to enforce raises no real complexity. The consent order is clear, and the question is simply how it should be implemented. The husband’s application to set aside, although expressed at considerable length, ultimately appears to turn on a single point, namely the valuation of Z Land.

[46]Finally, the court was able to put in place measures to improve the husband’s effective participation in the proceedings. Whilst this cannot be considered an adequate substitute for conducting of proceedings by a litigation friend, it did at least enable the husband to address the court at length on the matters he wished to raise.

[47]Weighing these matters in the balance, I am satisfied that dealing with these proceedings justly means providing certainty to the parties as to the status and enforceability of the consent order. Whilst that certainty serves both parties, the immediate prejudice of further delay falls on the wife, and the protective considerations underpinning Part 15 are outweighed by the significant prejudice she will suffer should the matter be stayed indefinitely. To that extent, any imposition on the husband’s Article 6 rights arising from the absence of a litigation friend is both necessary and proportionate, with the court having done everything within its power to mitigate the impact and support the husband’s participation.

Determination on the applications concerning the sale of X Property

[48]I shall first deal with the husband’s application to set aside the consent order, since if it were to succeed, the wife’s application to enforce that order would necessarily fall away.

[49]An application to set aside a final consent order is not an opportunity to reopen a concluded bargain because a party has come to regret it. The order is a final order, and the law affords it a high degree of finality. The traditional grounds for setting aside an order include fraud; material non-disclosure; certain limited categories of mistake; and the occurrence of a subsequent event, unforeseen and unforeseeable at the time, which invalidates the basis on which the order was made (a so-called Barder event).

[50]I have considered each of those avenues with the husband’s case in mind, and in my judgment, none is made out.

[51]The husband’s primary case is that Z Land was undervalued by the court appointed single joint expert (‘the SJE’) in his report dated 28th November 2023. Whilst the SJE valued the relevant plot at £80,000, in the husband’s view, this neglected important points about how the plot had been split previously. The husband argued that the plot ought to be regarded as part of a bigger parcel of land, part of which had already been sold in 2021. In his view, the value should have reflected its potential to be a sixteen-house, multimillion-pound development. The husband also made repeated references to breaches of the ‘Grampian rule’ and other planning regulations, and sought to obtain and rely on evidence from the planning department at J County Council.

[52]The difficulty for the husband is twofold. First, the consent order was not one into which the husband entered without protection. The husband had the benefit of the Official Solicitor acting as his litigation friend, and the order was therefore fully agreed on his behalf with the protective directives of FPR Part 15 fully engaged. The husband was represented by specialist family counsel at an effective FDR heard over two days, and the order was scrutinised and approved by the court in the ordinary way. Unlike civil proceedings, where a consent order can be finalised without reference to a judge (CPR rule 40.6(2)), the parties in financial remedy proceedings cannot oust the jurisdiction of the court, even when proceeding by agreement (note Dunhill v Burgin (Nos 1 and 2)

[2014] UKSC 18

at [26]). These are all safeguards that add strength to the finality of the order.

[53]Second, and in any event, the husband’s complaints about the valuation of Z Land were before the court at the time that the consent order was agreed. The court has identified two documents from the file in this regard. First is a letter dated 4th April 2024, sent by the solicitor representing the husband through the Official Solicitor. This letter takes issue with the SJE valuation and sets out details of a shadow expert instructed to comment on the SJE’s approach. Then, the following day, the solicitor for the husband issued an application for permission to instruct an alternative expert to prepare a further valuation of the land, ‘to be listed to be heard on 8th April in the event that the FDR on 8th April 2024 is unsuccessful’. The rider to the application notice takes issue with the methodology underpinning the SJE’s conclusions, and details the conclusions of the shadow expert, namely that the correct valuation for the land is between £210,000 and £245,000.

[54]Whilst the court knows nothing about what transpired at the FDR, it is self-evident that the application was not pursued further to the agreement reached to conclude the proceedings. What is also clear is that the valuation of Z Land formed part of the landscape against which the order was negotiated and approved. A party who agrees a consent order with knowledge of the matter of which he later complains, naturally faces a significant, and here determinative, obstacle in seeking to set that order aside. Here, although the ultimate decision will have been taken by the case worker for the Official Solicitor, the husband is regarded as having agreed to the consent order. He cannot now resile from it on the strength of a grievance he held, and could have been pursued on his behalf, at the time the proceedings concluded.

[55]It follows that there are no grounds to engage the court’s jurisdiction to set aside, and that this element of the husband’s application must be dismissed. The consent order stands, and stands to be implemented.

[56]By her application notice dated 17th June 2025, the wife applied to enforce the consent order by way of an order for possession of X Property. In addition, the wife sought an order granting her with sole conduct of sale, on the basis that two separate conveyancing solicitors had decided to step back from the case due to the difficulties presented by the husband, including numerous emails and a raft of unfounded complaints.

[57]The court granted the second part of her application at the hearing listed on 13th August 2025. The court was mindful of delay and the risk that the wife would suffer further prejudice if she was unable to take steps necessary to prepare for the exchange of contracts if the husband’s application to set aside the consent order was ultimately dismissed. To strike a balance with the husband’s right to have his application determined before the order was implemented, the court also directed that the sale of the X Property could not be completed without leave of the court. That temporary protection is no longer necessary, and the court grants the wife leave to proceed to completion of the sale.

[58]The remaining obstacle is the husband’s continued occupation of the property. The husband has made it clear that he has no intention of vacating X Property or facilitating its sale. The court’s order will continue to be frustrated unless the husband leaves the property.

[59]The court’s power to order that the husband gives up possession of the property arises under FPR rule 9.24. This enables the court, where it has made an order for sale, to order any party in occupation to deliver up possession to enable the sale to proceed. The court notes that this power was engaged at the time of the consent order itself, which required the husband to vacate X Property to permit viewings.

[60]The court does not lose sight of the fact that, if it makes the order sought, the court will be requiring a vulnerable man, who lacks litigation capacity and suffers from severe anxiety, to leave what has been his home for many years. I have considered carefully whether it is a necessary and proportionate interference with the husband’s rights under

Article 8 of the European Convention on Human Rights

. I am satisfied that it is. An order for possession does no more than give effect to the order made by the court that the husband himself agreed to through his litigation friend. The property is a five-bedroom house occupied by the husband alone, the sale of which is necessary to release the wife’s share so that she may meet her own needs, as well as those of the parties’ adult son whilst he remains living with his mother. Any interference with his Article 8 rights is therefore necessary in pursuit of a legitimate aim, namely the protection of the wife’s rights and the enforcement of the court’s order, and is proportionate to that aim.

[61]I therefore order that the husband deliver up possession of X Property to the wife by no later than 4pm on 13th July 2026. If he fails to do so, I grant the wife permission to enforce the order for possession by way of an application for the issue of a warrant for possession.

[62]Notwithstanding the fact that the wife shall now have sole conduct of the sale, should the husband be required to sign or execute any documentation to give effect to the sale and fails to do so within 7 days, such documents shall be signed and executed by a District Judge or Circuit Judge of the Family Court sitting at Cardiff in accordance with section 39 of the Senior Courts Act 1981, as applied by section 38 of the County Courts Act 1984.

[63]One further application requires determination in relation to X Property. By way of an application notice dated 6th February 2026, the wife seeks an order varying the division of the net proceeds of sale in her favour. She argues that the husband’s conduct in obstructing the sale were intentional, and had caused her direct financial loss on account of having to pay additional rent whilst waiting for the consent order to be implemented. She also argues that additional mortgage arrears had accumulated with interest, reducing the equity available for her to receive once the property is sold.

[64]At the hearing on 2nd March 2026, the court explained to the wife that it was not possible to vary the division of the net proceeds of sale pursuant to section 31 Matrimonial Causes Act 1973, and that she may wish to seek legal advice should she intend to argue variation on the basis of either the Thwaite jurisdiction or a Barder principle.

[65]Perhaps with this in mind, the wife’s argument at the final hearing had moved from seeking variation to compensation for the delay in the property being sold. Specifically, she seeks a lump sum payment from the husband in the sum of £5,000 to account for her additional outlay on rent and any additional charges to the mortgage account arising from the ongoing arrears. When asked how she arrived at the figure of £5,000, the wife accepted that this was an imprecise calculation and more something ‘to help my daughter’.

[66]I do not hesitate to conclude that the wife’s application dated 6th February 2026 should be dismissed. It was advanced at the final hearing on a materially different basis to that set out in writing, giving rise to a high degree of unfairness given the husband’s limitations. Moreover, the wife was unable to identify the legal framework governing an award for compensation/damages of the type sought, in addition to being unable to properly detail the losses she stated had been incurred. Given that this is the wife’s application to prove, and with it being desirable to determine all matters relating to terms of the consent order in advance of X Property being sold, it is in accordance with the overriding objective to dispose of it at this juncture.

Whether to proceed: the claim for damages arising out of the freezing order

[67]The husband’s remaining application is for compensation for losses said to arise out of the s.37 freezing order made on 21st April 2021, on the basis that the allegations underpinning the order were made by the wife without foundation. The husband argues that the freezing order prevented him from granting new tenancies or licences in respect of Y Property, and that he was therefore deprived of rental income whilst the order was in force. On the basis that he was consequently unable to afford the necessary upkeep, the property fell into a state of disrepair and remains unfit for new tenants.

[68]As with the applications relating to X Property, the court should first consider whether this issue can be determined justly in the absence of a litigation friend. The wife points to the apparent merits of the husband’s claim. Difficulties that he has to contend with include the freezing order (and associated undertaking by the wife) being discharged as part of the final consent order without any provision for compensation being made, and the factual premise of the claim being undermined by solicitor correspondence exchanged in December 2021 in which the wife provides her express agreement to the husband letting Y Property, subject to him seeking variation of the terms of the freezing order.

[69]However, in my view this part of the case should be stayed until such time as the husband has a litigation friend appointed to conduct matters on his behalf. It is a discrete claim, and determining it is not necessary to give effect to the consent order or to relieve the prejudice that the wife has suffered through delay. It is not bound up with the sale of X Property, and nothing is lost by deferring it.

[70]This is a claim for damages of a kind that requires proper investigation – of what the husband could and would have done with the property but for the order, of the income that he says he lost, and of the wife’s answer to it. Absent a litigation friend to take decisions and to advance his case, the husband would be placed at a real disadvantage. Proceeding with a contested damages claim, in respect of which there is no prior determination, is a very different matter to enforcement of an order made whilst the husband had the benefit of the Part 15 protections. The fairer course, and the one more consistent with the husband’s interests, is to preserve the claim so that it may be pursued, if so advised, once a litigation friend is in place.

[71]However, it is in the interests of both parties that the claim is not left hanging over their heads without limit of time or review. I consider that the best course of action is to direct a stay for a period of 12 months in the first instance. If, within that period, the husband applies to lift the stay with the benefit of a litigation friend to conduct proceedings on his behalf, the court will give directions for further case management. If no such application is made, the matter shall be listed for hearing after expiration of the stay for the court to consider whether the stay should be extended, or whether any other order should be made to determine the claim.

[72]I have deliberately not provided for the claim to stand automatically dismissed at the end of the stay period. The husband is a protected party, and it would not be just for his claim to be defeated by the passage of time without further consideration of the court.

Costs

[73]Both parties have acted as litigants in person throughout, save that the wife instructed solicitors to assist her with the preparation of her application for enforcement dated 17th June 2025 and the witness statement filed in support. The wife applies for an order that the husband pay the costs associated with this, and relies on a costs schedule prepared by the solicitors in the sum of £2,222.80.

[74]The wife’s application being one for enforcement, the general ‘no order as to costs’ starting point in FPR rule 28.3 does not apply, and the court’s ordinary discretion as to costs (the ‘clean sheet’ principle) is engaged. The wife’s application succeeded in full, and she argues that costs should follow the event. She makes the point that an application was only necessary because the husband had made it plain that he had no intention of leaving X Property, and the consent order was not capable of being implemented whilst he remains in occupation.

[75]A lack of capacity does not shield a protected party from an order for costs. Nonetheless, I have kept the husband’s vulnerability in mind in deciding whether to make an order. I am conscious that the husband’s obstructive behaviour is associated with the anxiety that underpins the decision on capacity, and the court must obviously be careful to ensure that an order for costs does not penalise him on this basis, as opposed to unreasonable behaviour in the more general sense. The husband has resisted progressing the agreed sale, made the conveyancing unworkable for two firms, and remains clear that he has no intention of leaving X Property regardless of the question of set aside. These are issues distinct from the question of litigation capacity.

[76]Ultimately, I consider that it would be unjust to visit upon the wife the cost of an application that she should never have had to bring. She has brought a successful application, which was only necessary due to the non-implementation of an order to which the husband has agreed. It is a paradigm case for a costs order following the event.

[77]In terms of assessment, the work identified within the schedule of costs, principally the drafting of an application notice and witness statement, was straightforward and did not require the attention of a Grade A fee-earner. To reflect that it could properly have been undertaken by a more junior fee-earner, and with an amount that is reasonable and proportionate in mind, I summarily assess the wife’s costs of the application in the sum of £1,500, inclusive of VAT. This shall be payable by the husband in the standard period of 14 days.

[78]This concludes my judgment on the applications before the court.

[79]In accordance with the intermediary’s recommendations, the court has also prepared for the benefit of the husband a brief and simplified explanation of the decisions reached and the key reasons for them. HHJ Muzaffer 15th June 2026 SIMPLIFIED EXPLANATION OF JUDGMENT Introduction

HHJ Muzaffer

[1]This is a short summary of the decisions that the court has made. It is intended to assist Mr. DW to understand the decisions and the reasons for them. It is not the full judgment, which exists separately with all my detailed reasons.

[2]There were several questions for me to determine. I will take each one in turn.

Whether the court should proceed

[3]First, I had to decide whether it was fair to make any decisions at all, given that Mr. DW does not have a litigation friend. Normally, where a person has been found unable to conduct a court case themselves, the court appoints a litigation friend to conduct it on their behalf. The court tried for many months to secure a litigation friend for Mr. DW, namely the Official Solicitor, but despite those efforts, it was not possible.

[4]Having weighed matters carefully, I decided that it was right to proceed without a litigation friend, but only with the most pressing matters – those concerning the sale of X Property. Despite this being a serious step, I concluded that it would not be fair to delay decisions relating to X Property any longer, as both Mr. DW and Ms RT needed certainty as to what was going to happen with the property. It would be particularly unfair on Ms RT, who remains in rented accommodation because she intends to buy a property with the money that the consent order said she would receive from X Property. The court is required to do justice to both parties when making decisions.

[5]To make the hearing as fair as possible for Mr. DW, the court put several measures in place to help him take part. He was assisted by an intermediary, the hearing was spread over two days with regular breaks, and matters were explained and taken at a slower pace. This support assisted Mr. DW to put his case to the court.

Application by Mr. DW to set aside the consent order dated 1st May 2024

[6]Mr. DW seeks to set aside the consent order made in May 2024 which provided for X Property to be sold. His main reason is that he believed that Z Land was valued too low by the expert in the first set of proceedings, which was unfair to him.

[7]I have refused this application for two main reasons. First, when the consent order was made in 2024, Mr. DW had the Official Solicitor conducting matters on his behalf as his litigation friend. He also had the benefit of a solicitor and a barrister. The judge approved the consent order as a fair outcome. It was an order validly made and with full recognition of Mr. DW’s lack of litigation capacity.

[8]Second, the points that Mr. DW makes about the value of the land were already known and raised at the time that the consent order was agreed. The fact that they were already known undermines the suggestion that this is a basis for setting aside the order now. There are no other grounds that make the court consider that the consent order should be set aside.

Application by Ms RT to enforce the consent order dated 1st May 2024

[9]Ms RT seeks an order requiring Mr. DW to leave X Property so that it can be sold in accordance with the terms of the consent order. As I have decided that the consent order should not be set aside, I agree that X Property must now be sold.

[10]I have decided that Mr. DW must vacate X Property and give possession of it to Ms RT by 4pm on 13th July 2026.

[11]X Property cannot be sold whilst Mr. DW is still living in it, and he has made it clear that he will not leave voluntarily. Ms RT is entitled to her share of the money so that she can meet her and CTW’s needs. To make sure that the sale of X Property can now proceed without further difficulty, Ms RT will be in charge of all matters related to arranging and completing the sale.

[12]If Mr. DW does not leave by 4pm on 13th July 2026, Ms RT can ask the court for a warrant to allow bailiffs to take possession of X Property and remove Mr. DW.

Application by Ms RT to vary the consent order dated 1st May 2024

[13]Ms RT invited the court to award her £5,000 to make up for the extra rent that she has paid and the money that she has lost because X Property was not sold sooner.

[14]I have decided to refuse this request. Ms RT did not explain it clearly enough or show how the amount was worked out, and so she has failed to convince the court that it should be paid.

Claim by Mr. DW for damages arising out of the s.37 freezing order

[15]Mr. DW states that he lost rental income because of the freezing order made in 2021, which affected his ability to let out the property at Y Property. He seeks damages for these losses, as he states Ms RT obtained this order on grounds that were not substantiated.

[16]I have decided to pause (‘stay’) this claim for now. That means that I have neither allowed nor refused it. This is because I do not think it would be fair to decide it whilst Mr. DW does not have a litigation friend to conduct the case on his behalf. The pause lasts for 12 months. If, in that time, Mr. DW identifies a litigation friend that can be appointed to act on his behalf, the litigation friend can ask the court to look at the claim again. If that is not possible, the court will hold a further hearing to decide what to do with it.

Costs

[17]Ms RT had to pay a solicitor to help prepare her application to enforce the consent order. This application succeeded, and it was only needed because X Property has not been sold and Mr. DW is refusing to leave the property. I have directed that Mr. DW pays £1,500 towards her legal costs, within 14 days. HHJ Muzaffer 15th June 2026