A colleague of mine drew my attention to an article last week in the Law Society Gazette. He was frankly perturbed and shocked by what he had read and I was disgusted. It's about referral fees and you would have thought that an accident lawyer like my colleague would have been able to take it in his stride, but not a bit of it! You can read the article here:
Solicitors demand a kickback from barristers
It seems that the referral fee culture has extended the range of its corruption right into the solicitors' profession. Solicitors requiring barristers to hand over a proportion of their fees for work done, or else they don't get the job. It all sounds a bit supermarket, doesn't it? You know, we want to run a special offer on crisps, so the crisp supplier has to drop his price by 50%? Mind, at least the consumer gets cheap crisps that way, unlike the solicitor's client!
Why is it that solicitors refer work to barristers anyway? There are two main reasons - to gain the benefit of the barrister's specialism for their client and to save their client cost. If a solicitor starts selecting a barrister on the basis of how much the barrister will pay the solicitor to get the work, this is all going to go horribly wrong. Let me explain why.
1. Expertise. When I am managing a client's case, there are often times when I need an in depth view of the law on a specific issue. I pride myself on being a broad spectrum practitioner. Specialism has its own dangers. It has been defined as knowing more and more about less and less. Or as I sometimes see it, as expanding one's ignorance at least as quickly as one's knowledge.
As a broad based lawyer, I can often see interactions which a specialist might miss - the interaction of divorce finances and insolvency, for example. However, there are frequently times when my client needs someone who has total mastery in depth of an area of law - cue the barrister. So my selection criteria are simple. Who is it that has that specialist knowledge? Put it another way, who is it that knows a lot better than I do? Furthermore, having good counsel available throughout the country
means that I can act for clients regardless of location. The modern
world of email and teleconferencing means that I am available to clients
up and down the country and even abroad. Any court hearings can be
attended by independent counsel. So expertise, both of solicitor and counsel, now become far more available to clients who are no longer
restricted to using whichever firms are located near to them.
Now add to that a new selection criterion, who will give me a substantial kick back? Immediately I cut out of the equation a set of experts who would otherwise be well placed to assist my client - i.e. the ones who refuse. My client's available choice has been cut back sharply so that I can make money without working for it. What's more, the most highly regarded and in-demand barristers are the ones who are likely to have the least incentive to say yes. They have well established reputations and are not going to have to pay to secure work. This almost certainly means that refusing work to barristers who refuse to pay for it will mean the client gets the lesser experienced and able barristers and not the best available expertise. In short, the client loses out so the solicitor can cream off an additional profit.
2. Saving cost. I select the right level of barrister for a particular job. Not every case justifies using the most highly rated QC. In fact most of them don't. I'm looking for the right level of experience and expertise which can be bought at the right sort of price. Family finance cases are about money, pure straight and simple. Expend too much in legal fees and the whole exercise becomes self defeating. On the other hand, you can spoil a ship for a ha'porth of tar, so spending wisely on good representation can more than pay for itself. Using the right barrister can often be more economic than dealing with a hearing myself, even setting aside the issue of expertise. Frequently they can charge a lower fee than my time would demand.
Now add into the mix the idea that I'm going to demand of the barrister that s/he pay me 20% of his/her fee. What will happen to fees? Will the barrister meekly settle for a 20% income cut? Of course not - prices are bound to shoot up to compensate. And who will be paying those increased fees? Some remote insurance company, as in accident claims? No, it's going to be my client. So by demanding a cut of counsel's fees, I would have significantly increased the cost of the case to my client - the person whose interests I am supposed to be protecting. And what added value has my client received from me? Well, zip all, naturally.
Let me make myself clear - I already consider that my profession has gone to the dogs. Practices have grown up already which I find obnoxious. Solicitors are shamelessly trying to overcharge in contentious matters, from what I can see. If this practice becomes widespread, then it will simply show how utterly careless of their clients' interests solicitors have become. No, there is no way I will ever be persuaded to join in. My clients can have the benefit of counsel at a proper price. I shall do my work and charge for it - I shall leave counsel to charge at a proper rate for theirs.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 31 July 2012
Tuesday, 24 July 2012
Pay peanuts, employ......?
I have
to say that it was with complete incredulity that I read an advert in the Law
Society Gazette last week. I recognise
that I am a little unusual in that I take the time to read the magazine. So many lawyers I know seem to take a
particular pride in not having the time even to remove the wrapper. Unfortunately, that risks meaning that the recipient
also doesn’t have the time to keep up on changes in the law and practice, which
is bad news for their clients.
Anyway,
there was this job ad. I wasn’t really
looking for a job, so I guess that I just stumbled across it. It was placed by a company called CrimeDirect
Ltd. It’s situated in North Shields in
the North East, so I did wonder just what direct crime it was in the business
of providing. Actually they serve
criminals rather than supplying crime, directly or otherwise. And, I hasten to add, those who are merely
suspects and who may be, and often are, entirely innocent. Specifically, they have the contract to
advise persons arrested and being held at a police station. The advice is provided over the phone rather
than face to face.
It’s
clearly a demanding job. They want duty
solicitors and accredited police station representatives to apply. As I used to have the dubious distinction
many years ago of doing just that myself, I read on. The applicants will work three shifts per
week. Each shift lasts a full 12
hours! Presumably there will be meal and
comfort breaks, though this isn’t specified.
Shifts run from 9 am to 9 pm and from 9 pm to 9 am and you have to be
prepared to work both – you can’t just opt for one or the other. The service has to run 365 days of the year,
so you have to be prepared to work on any bank holidays, including Christmas,
if that’s when you’re rostered.
All this
is, just as I say, very demanding. As a
solicitor or accredited representative you will have certain educational
qualifications. A solicitor will have a
degree. A representative will have
passed what I rather hope is a rigorous written examination and practical
assessments. If you a degree, presumably
you have student debt. So what can you
expect for this demanding job, supported by your previous studies and
qualifications?
£15,000
per annum. That equates to 8 quid an
hour. For enormously unsocial hours and
conditions. The national minimum wage, I
would remind you, dear reader, is just over £6 per hour.
The candidates
will be expected to advise suspects on matters related to their freedom from
imprisonment, so that’s a huge responsibility.
If a suspect exercises his/her right to remain silent after taking their
advice, that advice could potentially be picked over at length in court.
I don’t
know which is worse – that someone actually advertises this salary, presumably in
the belief that it constitutes fair remuneration – or that they may actually
find staff prepared to work on these terms.
Just what will they be getting for this money?
Back in the early 1990's, there was the Royal Commission on Criminal Justice. It was instituted after a number of prominent miscarriages of justice. It identified various common features of these - a failure by the prosecuting authorities to give proper disclosure, a lack of legal advice in custody, forced or false confessions. So the government of the day responded by limiting the obligation on the prosecution to provide disclosure and reducing access to legal advice. Oh, and altering the right to remain silent by qualifying it.
And now, without enacting anything, the legal advice to be given may be by an underpaid member of staff at the end of a 12 hour day, having worked all through the night. Perhaps even after a switch between an early shift and a late shift, with whatever effects that has on mental alertness and functioning.
I gave up criminal law and legal aid work over 10 years ago - why? Well, for one thing because my family had to put up with the disruption to family life of my being on call and being called out at all hours of the day and night, and the money just didn't make it worth it. But that doesn't mean that I stopped caring about justice, and there'll be even less of that around if this proves to be a "success"!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 19 July 2012
The referee's decision is final - even for the referee
Judges aren't allowed to dither. Judges have to decide. And once they've decided, that's it. They can't change their minds a few weeks later and turn back the clock. If they've got it wrong, the most they can do is give permission to one party or the other to appeal it.
L-B children
This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case. On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries. In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved. Not only was the decision clear, it was obviously very important indeed.
The local authority prepared a care plan for the two children of the family. They were both to stay for the time being with their mother's parents. There would be a final hearing in February to decide what the best long term arrangement would be. Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.
In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case. She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured. So there was no longer a finding that the father had been responsible at all. Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it. The appeal which was filed was effectively a request for further explanation of the change of mind from the judge. When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.
The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that. It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it. The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal. But there has to be finality at some point. Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.
In fact, this case now, sadly, will go to further appeal by the look of it. The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either. The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of. A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
L-B children
This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case. On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries. In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved. Not only was the decision clear, it was obviously very important indeed.
The local authority prepared a care plan for the two children of the family. They were both to stay for the time being with their mother's parents. There would be a final hearing in February to decide what the best long term arrangement would be. Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.
In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case. She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured. So there was no longer a finding that the father had been responsible at all. Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it. The appeal which was filed was effectively a request for further explanation of the change of mind from the judge. When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.
The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that. It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it. The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal. But there has to be finality at some point. Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.
In fact, this case now, sadly, will go to further appeal by the look of it. The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either. The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of. A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Wednesday, 18 July 2012
What do the National Secular Society and the Christian Institute wholeheartedly agree on?
Poles apart, you'd say, wouldn't you? Well, they, together with noted campaigner, Peter Tatchell, want to see section 5 of the Public Order Act amended to remove the word 'insulting'. This has all suddenly gained added topicality with the recent John Terry prosecution. You can read the judgment here:
John Terry
Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress. With John Terry, he admitted calling Anton Ferdinand "f...ing black c..." or perhaps "f...ing k......d". I don't know that anyone could realistically say that this was anything other than insulting. As the District Judge pointed out, whether or not JT is a racist was irrelevant. True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.
The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI. What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression. I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not? The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone. To put it another way, should swearing constitute a crime?
There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact. At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon. One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher. Continuous repetition of that challenge should cause an alteration to the behaviour. Well, that's the theory anyway.
Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender. An example is the law of libel. This exists to deter people from making defamatory and false statements against others. The criminal law simply doesn't intervene in this area and never has. No one suggests that it should. Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest. Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.
Of course it's not JT's language which bothers campaigning groups. It's the uneasy thought that plenty of people all too easily take offence at their campaigning. Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!
In fact, the campaigners have set up a separate website on the topic here:
Reform section 5
I particularly recommend a viewing of the victims page - some of them really do beggar belief.
The key statement of the right to free expression is set out in Redmond-Bate v. DPP. You can read it here:
Redmond-Bate
The central sentiment and statement of principle comes late in the judgment. It's one of the great legal expositions of human rights and how they should be honoured.
" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."
It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution. Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed. The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable. If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying. After all, we could still show them a red card as an alternative.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
John Terry
Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress. With John Terry, he admitted calling Anton Ferdinand "f...ing black c..." or perhaps "f...ing k......d". I don't know that anyone could realistically say that this was anything other than insulting. As the District Judge pointed out, whether or not JT is a racist was irrelevant. True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.
The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI. What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression. I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not? The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone. To put it another way, should swearing constitute a crime?
There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact. At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon. One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher. Continuous repetition of that challenge should cause an alteration to the behaviour. Well, that's the theory anyway.
Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender. An example is the law of libel. This exists to deter people from making defamatory and false statements against others. The criminal law simply doesn't intervene in this area and never has. No one suggests that it should. Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest. Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.
Of course it's not JT's language which bothers campaigning groups. It's the uneasy thought that plenty of people all too easily take offence at their campaigning. Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!
In fact, the campaigners have set up a separate website on the topic here:
Reform section 5
I particularly recommend a viewing of the victims page - some of them really do beggar belief.
The key statement of the right to free expression is set out in Redmond-Bate v. DPP. You can read it here:
Redmond-Bate
The central sentiment and statement of principle comes late in the judgment. It's one of the great legal expositions of human rights and how they should be honoured.
" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."
It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution. Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed. The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable. If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying. After all, we could still show them a red card as an alternative.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Friday, 13 July 2012
Vicky Haigh - an update
Just to update my earlier post about the Mail article on Vicky Haigh, it seems that my surmise was correct - new life in an earlier and dormant case came about because of a partially successful appeal by Ms. Haigh against sentence.
No judgment has been made public but this report appeared in the Worksop Guardian.
Vicky Haigh Appeal
So there was some reduction in the sentence but it what remained was very substantial. I'm not going to pontificate as to the wrongs and rights of this - I wasn't at the hearing so I just don't know. I'm starting to think that the only proper place to criticise a judge's decision is in the Notice and Grounds of Appeal. Commentators should perhaps limit themselves to calling for law reform or supporting further appeals, if warranted. Attacking a judge's decision in a specific case outside the court's procedures is fraught with danger and it's all too easy to become hostage to the partial truths and partisanship of those close to one party or the other.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
No judgment has been made public but this report appeared in the Worksop Guardian.
Vicky Haigh Appeal
So there was some reduction in the sentence but it what remained was very substantial. I'm not going to pontificate as to the wrongs and rights of this - I wasn't at the hearing so I just don't know. I'm starting to think that the only proper place to criticise a judge's decision is in the Notice and Grounds of Appeal. Commentators should perhaps limit themselves to calling for law reform or supporting further appeals, if warranted. Attacking a judge's decision in a specific case outside the court's procedures is fraught with danger and it's all too easy to become hostage to the partial truths and partisanship of those close to one party or the other.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 12 July 2012
Will the parents grow up before their children do?
Some years ago I appeared in a local county court for a mother in a Children Act application brought by the father. The solicitor on the other side was a local practitioner of many years experience and asked me if we could go in to see the judge without clients first of all. I agreed and we went in before the judge, an equally experienced family law judge. My opponent introduced the case by saying, "This is one of those cases, ma'am, where we should all devoutly hope that the parents grow up before their child does." Instantly, the judge knew exactly what to expect!
I had my attention drawn to this report from the Telegraph recently and it triggered my memory of that afternoon.
Childish adults
My instinctive response was, oh yes, we've all been there. Thorpe LJ was just voicing what we have all thought so many times in the past. Why on earth do intelligent people expose themselves as acting in what can only be considered an immature way in front of a number of independent professional people? The whole atmosphere is so often one of tit for tat. Isn't it too undignified for words?
“It seems to me almost puerile; these very rich people distrusting and disliking each other intensely, so somebody has to come into the nursery to make some rules to dissipate all this nonsense.
“I simply cannot understand how the parties can litigate with such profligate extravagance.”
We aren't told what this pair have spent in legal fees so far. I know I harp on about this, but it is quite important really. I tell all my clients - I will advise you, as best I can, how much you could realistically hope to benefit by if you take your case to the next stage. I will also tell you how much it will cost to get there. If the first number isn't considerably larger than the latter, then there's no point in carrying on any further. Unless, that is, you would rather I had the money than either you or your ex.
In this case there seems to be another factor to take into account. The wife is saying that the original order, which gave her £26m, just isn't enough. She seems to have managed to get that order overturned and is now waiting to go back to argue for more. For whatever reason, she won't settle for more money than the vast majority of us could spend in several lifetimes. Having lived with countless clients through the whole trauma of contested financial proceedings, I find it very hard to understand why someone who is to benefit from that sort of wealth wants to go through the whole thing all over again. Why? To be awarded still more money which you are unlikely to have time to spend before you die?
In 1985, we are told, the couple were penniless. Now they can each leave their marriage with at least £26m. Surely that's enough? The saddest element, as always, is when you see that they have two teenage daughters. What is the effect on these two of seeing their parents squabbling like this and being derided by a senior judge in such demeaning terms?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
I had my attention drawn to this report from the Telegraph recently and it triggered my memory of that afternoon.
Childish adults
My instinctive response was, oh yes, we've all been there. Thorpe LJ was just voicing what we have all thought so many times in the past. Why on earth do intelligent people expose themselves as acting in what can only be considered an immature way in front of a number of independent professional people? The whole atmosphere is so often one of tit for tat. Isn't it too undignified for words?
“It seems to me almost puerile; these very rich people distrusting and disliking each other intensely, so somebody has to come into the nursery to make some rules to dissipate all this nonsense.
“I simply cannot understand how the parties can litigate with such profligate extravagance.”
We aren't told what this pair have spent in legal fees so far. I know I harp on about this, but it is quite important really. I tell all my clients - I will advise you, as best I can, how much you could realistically hope to benefit by if you take your case to the next stage. I will also tell you how much it will cost to get there. If the first number isn't considerably larger than the latter, then there's no point in carrying on any further. Unless, that is, you would rather I had the money than either you or your ex.
In this case there seems to be another factor to take into account. The wife is saying that the original order, which gave her £26m, just isn't enough. She seems to have managed to get that order overturned and is now waiting to go back to argue for more. For whatever reason, she won't settle for more money than the vast majority of us could spend in several lifetimes. Having lived with countless clients through the whole trauma of contested financial proceedings, I find it very hard to understand why someone who is to benefit from that sort of wealth wants to go through the whole thing all over again. Why? To be awarded still more money which you are unlikely to have time to spend before you die?
In 1985, we are told, the couple were penniless. Now they can each leave their marriage with at least £26m. Surely that's enough? The saddest element, as always, is when you see that they have two teenage daughters. What is the effect on these two of seeing their parents squabbling like this and being derided by a senior judge in such demeaning terms?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Friday, 6 July 2012
Something new(ish) in the Vicky Haigh saga
Some little while ago I blogged about Vicky Haigh and others and reminded myself and any readers of the vital need to preserve confidentiality in children proceedings. To my considerable surprise, I find that the Daily Mail is back on the topic.
Vicky Haigh, the latest
For those of you who haven't been following this story, Vicky Haigh is serving a prison sentence for breaching a court order that she have no contact with her oldest daughter. The order was made because two judges separately concluded that she had made up false allegations that the child's father had abused her and she had then sought to persuade the child to repeat these allegations.
I really can't see why this article has been published. There is no new material in it. Vicky was sentenced over six months ago now and this was reported at the time. The article itself is a masterly piece of fence sitting by the journalist. On the one hand there is a sentimental tone, apparently sympathetic to the plight of a mother separated from her child. On the other hand, there is no criticism of the original decisions by the court that Vicky was author her own fate by treating her ex and her child in the way that she did.
So why the big article now? I really have no idea. Why do I return to the topic then? Well it's because of one quotation which gives me some unease - "There are those who believe Victoria has been unjustly treated. Among them is MP John Hemmings, who says her imprisonment is ‘ridiculously harsh sentencing for what was a minor technical breach of a court order’."
Attacks on judges
There used to be an axiom in football - the referee's decision is final. To go by what you see at football matches these days, that has long ceased to be the case. A good friend of mine from times past was a rugby league referee. He told me that at all levels of that game, the players, without exception, addressed him at all times as "sir". His decisions were not attacked, whether or not they were good ones. Of course, there would be days when his decisions were not perfect - after all, he is merely a human being. It was recognised, though, that someone had to have the final responsibility to make the decision and clearly that couldn't be one of the players.
I have grave reservations about publicly attacking or criticising decisions by judges. Do I always agree with them? Certainly not! Like any advocate, there are days I leave court shaking my head in puzzlement or exasperation. But I'm not prepared to make public pontifications about how shoddy a decision may be. Ultimately, the judge's decision has to be final. Someone has to put an end to the fractious toing and froing and that job goes to the judge. It definitely does not go to any politician!
The fact is that John Hemmings was not present at the trial and didn't hear all the evidence. It cannot be for him, therefore, to second guess what the judge should have decided. The reality is that the judge was in a much better position to form a view and did so. What's more, it was his job to do this and no one else's.
Update - it seems that the reason for this case reaching the press again is to do with Vicky Haigh's appeal against sentence. I haven't located the judgment yet but it was reported in the Telegraph by Christopher Booker. You can read it here.
Vicky Haigh - Christopher Booker
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Vicky Haigh, the latest
For those of you who haven't been following this story, Vicky Haigh is serving a prison sentence for breaching a court order that she have no contact with her oldest daughter. The order was made because two judges separately concluded that she had made up false allegations that the child's father had abused her and she had then sought to persuade the child to repeat these allegations.
I really can't see why this article has been published. There is no new material in it. Vicky was sentenced over six months ago now and this was reported at the time. The article itself is a masterly piece of fence sitting by the journalist. On the one hand there is a sentimental tone, apparently sympathetic to the plight of a mother separated from her child. On the other hand, there is no criticism of the original decisions by the court that Vicky was author her own fate by treating her ex and her child in the way that she did.
So why the big article now? I really have no idea. Why do I return to the topic then? Well it's because of one quotation which gives me some unease - "There are those who believe Victoria has been unjustly treated. Among them is MP John Hemmings, who says her imprisonment is ‘ridiculously harsh sentencing for what was a minor technical breach of a court order’."
Attacks on judges
There used to be an axiom in football - the referee's decision is final. To go by what you see at football matches these days, that has long ceased to be the case. A good friend of mine from times past was a rugby league referee. He told me that at all levels of that game, the players, without exception, addressed him at all times as "sir". His decisions were not attacked, whether or not they were good ones. Of course, there would be days when his decisions were not perfect - after all, he is merely a human being. It was recognised, though, that someone had to have the final responsibility to make the decision and clearly that couldn't be one of the players.
I have grave reservations about publicly attacking or criticising decisions by judges. Do I always agree with them? Certainly not! Like any advocate, there are days I leave court shaking my head in puzzlement or exasperation. But I'm not prepared to make public pontifications about how shoddy a decision may be. Ultimately, the judge's decision has to be final. Someone has to put an end to the fractious toing and froing and that job goes to the judge. It definitely does not go to any politician!
The fact is that John Hemmings was not present at the trial and didn't hear all the evidence. It cannot be for him, therefore, to second guess what the judge should have decided. The reality is that the judge was in a much better position to form a view and did so. What's more, it was his job to do this and no one else's.
Update - it seems that the reason for this case reaching the press again is to do with Vicky Haigh's appeal against sentence. I haven't located the judgment yet but it was reported in the Telegraph by Christopher Booker. You can read it here.
Vicky Haigh - Christopher Booker
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 5 July 2012
Austin Kemp calls for........
My late mother had a rather odd ambition in life - she wanted to call for something. She used to read the newspapers and wonder aloud just how it was that public figures could "call for..." something or other. She always fancied having a go herself. You know the sort of thing, I'm sure - "today the Archbishop of Canterbury called for...a ban on green bin bags," or whatever. Sadly , so far as I am aware, my mother never quite fulfilled her ambition. I hope to do a little better.
Last week, the Chair of the Family Bar Council, Nick Cusworth QC, called for reform to divorce law. You can read about it here:
Nick Cusworth QC
Well today, Austin Kemp echoes his call for wide ranging modernisation of the Matrimonial Causes Act 1973 to give divorcing parties more certainty about what they can expect in terms of financial orders.
Perfect justice? Perfect confusion!
There are certain legal terms I deeply distrust. The court's inherent jurisdiction - "I don't know of any authority which specifies that a court can do this but I want this order anyway." A general equitable remedy - much the same as inherent jurisdiction actually. A broad discretion - "I can order pretty much what I want and don't have to explain why."
It's that last which I have the greatest problem with. The judges in the High Court and Court of Appeal seem to love their broad discretion, conferred by the Matrimonial Causes Act, but it makes the issue of how to advise divorcing couples pure misery at times. What is a party entitled to as their share of the matrimonial assets? Whatever is fair. And what is fair? What the judge on the day thinks is fair. Well that's a great help, that is.
The right to know what the law prescribes
The philosophy of criminal law is quite instructive here. The purpose of criminal law is not to punish offenders. It is to prevent certain unacceptable behaviours from happening in the first place. So it is of paramount importance that the law should be so clear and unambiguous that anyone can reasonably be expected to understand what it is that they should not be doing.
I don't see why the same shouldn't apply elsewhere. If the law is uncertain or unclear - and when it comes to finance in divorce, it's all of that - it seems almost to demand that only a judge can decide on what terms a couple separates. In my view, however, the courts should be the destination of last resort. To make court hearings unnecessary, it is vital that the present regime is radically reformed to give the clearest possible guidelines and rules to enable parties, with the aid of lawyers if necessary, to work out what each of them should have and what each of them should pay.
Yes, there will be some cases in which one or other of the parties can legitimately feel hard done by. But there is an old saying, "hard cases make bad law", and it happens to be true.
Community of Property
Nick Cusworth is promoting a law of community of property. This exists elsewhere in Europe - quite widely actually. What is says, broadly speaking, is that property I had before I was married belongs to me alone. Property I acquire through my efforts during the marriage is joint. Property I acquire after the marriage is over belongs to me alone. Property inherited by me during the marriage is mine.
Subject to one or two amendments, I think this is perfectly fair and should become the way we do divorce in England and Wales too. So what are the critical amendments?
Well, firstly, my park bench principle should never be infringed. If the outcome would leave one party living on a park bench where the other one has surplus resources, that's fundamentally unjust. So there will have to be a power of the court to make additional provision for one party based on need alone. Not fairness, not needs generously assessed, because we know where they lead. Just need.
The second departure is justified by what is referred to as the compensation basis. Some spouses give up lucrative careers in order to bring up their families. They allow the other spouse to prioritise their careers instead. In clear cut cases of this nature, and I emphasise the clear cut aspect, there can be justice in one party being required to continue to pay the other as compensation for losing the chance of that high earning career.
Apart from that, I don't see any inherent unfairness in a community of property regime and I see plenty to complain about in the system we have operated in England and Wales for the last forty years. Change is long overdue.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Last week, the Chair of the Family Bar Council, Nick Cusworth QC, called for reform to divorce law. You can read about it here:
Nick Cusworth QC
Well today, Austin Kemp echoes his call for wide ranging modernisation of the Matrimonial Causes Act 1973 to give divorcing parties more certainty about what they can expect in terms of financial orders.
Perfect justice? Perfect confusion!
There are certain legal terms I deeply distrust. The court's inherent jurisdiction - "I don't know of any authority which specifies that a court can do this but I want this order anyway." A general equitable remedy - much the same as inherent jurisdiction actually. A broad discretion - "I can order pretty much what I want and don't have to explain why."
It's that last which I have the greatest problem with. The judges in the High Court and Court of Appeal seem to love their broad discretion, conferred by the Matrimonial Causes Act, but it makes the issue of how to advise divorcing couples pure misery at times. What is a party entitled to as their share of the matrimonial assets? Whatever is fair. And what is fair? What the judge on the day thinks is fair. Well that's a great help, that is.
The right to know what the law prescribes
The philosophy of criminal law is quite instructive here. The purpose of criminal law is not to punish offenders. It is to prevent certain unacceptable behaviours from happening in the first place. So it is of paramount importance that the law should be so clear and unambiguous that anyone can reasonably be expected to understand what it is that they should not be doing.
I don't see why the same shouldn't apply elsewhere. If the law is uncertain or unclear - and when it comes to finance in divorce, it's all of that - it seems almost to demand that only a judge can decide on what terms a couple separates. In my view, however, the courts should be the destination of last resort. To make court hearings unnecessary, it is vital that the present regime is radically reformed to give the clearest possible guidelines and rules to enable parties, with the aid of lawyers if necessary, to work out what each of them should have and what each of them should pay.
Yes, there will be some cases in which one or other of the parties can legitimately feel hard done by. But there is an old saying, "hard cases make bad law", and it happens to be true.
Community of Property
Nick Cusworth is promoting a law of community of property. This exists elsewhere in Europe - quite widely actually. What is says, broadly speaking, is that property I had before I was married belongs to me alone. Property I acquire through my efforts during the marriage is joint. Property I acquire after the marriage is over belongs to me alone. Property inherited by me during the marriage is mine.
Subject to one or two amendments, I think this is perfectly fair and should become the way we do divorce in England and Wales too. So what are the critical amendments?
Well, firstly, my park bench principle should never be infringed. If the outcome would leave one party living on a park bench where the other one has surplus resources, that's fundamentally unjust. So there will have to be a power of the court to make additional provision for one party based on need alone. Not fairness, not needs generously assessed, because we know where they lead. Just need.
The second departure is justified by what is referred to as the compensation basis. Some spouses give up lucrative careers in order to bring up their families. They allow the other spouse to prioritise their careers instead. In clear cut cases of this nature, and I emphasise the clear cut aspect, there can be justice in one party being required to continue to pay the other as compensation for losing the chance of that high earning career.
Apart from that, I don't see any inherent unfairness in a community of property regime and I see plenty to complain about in the system we have operated in England and Wales for the last forty years. Change is long overdue.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
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