Wednesday, 14 March 2012

Good news - judges like to do the right thing. Edgerton v. Edgerton

 There's been one of those odd and complicated divorce cases in the Court of Appeal recently.  It's all to do with a husband declaring that a significant part of the family assets, belong to his mate.

First the husband asserted that he owed his friend Mr. Shaikh a shed load of money.  Then the story changed - actually Mr. Shaikh and he were in partnership and that a large sum of money and a house were actually partnership assets.  Despite the fact that the wife had got an undertaking from the husband that he wouldn't dispose of his interest in various assets, including the "partnership" assets, the husband's friend began an action against the husband, claiming repayment of the debt.  Then he discontinued that action and began a separate one, claiming that his partnership with the husband was dissolved and seeking an account of the partnership assets.

Withdrawing legal aid - stupid or what?

So now Mrs. Edgerton faces her first problem.  She has legal aid for the divorce proceedings but the partnership action is in the High Court Chancery division.  At one stage it is joined with the ancillary relief application but for unexplained reasons this is changed and the hearings are separate.  It is not clear why, but she didn't have legal aid for the Chancery action.  Legal aid to argue over the property division but no legal aid to decide how much property there is to divide.  Penny wise, pound foolish!

As a result, Mrs. Edgerton loses the Chancery action and a large slice of the matrimonial pot looks as if it's going to disappear to the husband's close friend and associate.

However, the judge in the divorce proceedings, somewhat surprisingly, asserts that he isn't  bound by the decision of the chancery court as to the partnership action.  The order in the chancery action had been by consent between the husband and his friend as the wife's defence of it had been struck out for failure to comply with directions. In other words, the wife had unsurprisingly been out of her depth, she didn't have legal assistance and the husband had taken full advantage of this.  As a result, the family judge makes an injunction which effectively prevents the chancery order being implemented, so the husband and his friend appeal against the injunction to the Court of Appeal.

At the Court of Appeal

Now it doesn't require a great deal of legal knowledge to appreciate that the wife's case in relation to the chancery order has problems.  There aren't different High Courts - there's just the one and it simply has different divisions.  That must and does mean that a decision of one division must bind all the other divisions.  That's why in relation to disclosure issues, husbands have tended to go to the Queen's Bench Division for orders rather than the Family Division - the judges have a different approach and can still bind the family judge.  So this was an appeal which was bound to succeed and it did.

But the Appeal judges clearly couldn't stand the thought of clear injustice being done.  They thought long and hard and came up with a doctrine, based on uncontested facts, which would give the wife a remedy.  They then set a timetable with detailed steps which would enable her to access that remedy.

So good news!  Judges are hostile to injustice and will exercise their intellects and legal knowledge to secure justice for a litigant wherever possible.  All is not yet as bad as it could be.

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