Friday, 13 April 2012

Ouch! That hurt.

A case called F v. F has just been reported in the High Court before Mrs. Justice Macur.  It starts with the following:

" This ancillary relief dispute has been the subject of 3 substantive directions hearings and conducted at final hearing by specialist matrimonial leading and junior counsel on each side, instructed by specialist matrimonial solicitors and costing the husband and wife £2.4 million between them. Both the husband and wife have been surrounded by a legal entourage of at least 5 personnel throughout the 8 days of proceedings in court. I regret that these statistics have not ensured compliance with rules of evidence, the Pre-action Protocol and Family Proceedings Rules 2010 or the spirit of Practice Direction 25A effective for proceedings commenced post 6 April 2011."  (my emphasis throughout)

There's no way of avoiding it - that is, to say the least, highly embarrassing for any professional involved in the case.  Then it gets worse:

" In these circumstances the raised emotions, distrust, entrenched positions and consequent waste of court time were entirely predictable. The position has not been ameliorated by the apparent disinclination of Counsel to communicate throughout the hearing save in the Court room itself culminating in the necessity for me to direct the exchange of written closing submissions before I was addressed on the same since otherwise "the usual practice" of providing them just at the moment when the address began would have been followed.  It is difficult to conceive that either party can have their expectations realistically managed in such a scenario."

So it continues throughout a truly biting judgment, much of it entirely predictable, some of it specific to the case:

" The wife's budget for the purpose of establishing her maintenance needs was opened as "aspirational". It is entirely unrealistic and without historical basis or reasonable future projection."  Nothing terribly new there, then. 

" I refused permission to admit as evidence in the case that part of the wife's sole expert addendum report which dealt with his opinion of "indexation" of the 1993 value of Franklin. It was not sanctioned by Court order nor considered in the pre-trial review, nor consented to by those representing the husband. It was triggered by the invitation of the wife's leading Counsel to re-consider a concession made in the first expert meeting. Its inclusion within Mr Mathew-Jones addendum report was tantamount to ambush reminiscent of the approach taken to the valuation of the life interests in Peyton Place. The husband was not in a position to gainsay the opinion expressed by seeking his own expert in the time frame imposed by receipt of the report and the date of the final hearing."  So, ambushed by an expert report for which permission had not been sought or given - not really a matter of unusual complexity, surely?

" I make clear, as I did on several occasions during the hearing, that I dismiss any hearsay evidence from my mind.  The contents of solicitors' notes, the parties' accountant's notes or the memory of the managing director as to what the husband said to them at the time of making the agreement are inadmissible as evidence of the truth of the contents of the husband's conversations/instructions. The maker of the statements, the husband, was always known to be available and has been called to give evidence. The fact of the conversation is only relevant to rebut any allegation of recent fabrication, which is not alleged here. It is therefore inadmissible. Regard to these rules of evidence would have obviated the need to produce the voluminous documents or associated witnesses.

"The fact that I have determined the issue in favour of the husband does not deflect my criticism of the husband's solicitors for failure to consider the need to make on-going "full and frank disclosure" of documents relevant to issues in the case.  It is not for Leading Counsel for the husband to pronounce the issue "closed" or to rely upon the lack of specific direction for disclosure of such documents at the pre-hearing review."

" No doubt in support of this proposal the wife attempted to adduce evidence of Dr Simon Turner, a "strategic consultant". I requested Mr Pointer QC to reconsider his expressed intention to call this witness. He did so. I make clear that I would have refused to admit the evidence on a number of bases:
(i) no permission was sought/granted for it to be admitted as an expert report; (ii) it expresses opinion whilst expressly acknowledging lack of expertise;
(iii) it expresses opinion upon company issues which are irrelevant to my consideration and, I may say inherently offensive in the context of a very successfully run company and likely to engender resentment between present board members and the wife who has sought to introduce it. My decision on the outcome of the share agreement is not influenced by the business experience/acumen of the wife nor her ideas for the future of the company. In short a pointless, costly and counter-productive exercise."

And then perhaps worst of all....
" Mr Pointer QC in his closing submissions is dismissive of the exercise conducted by Mr Adams-Cairns. For the reasons outlined in paragraph 57 above I agree there is no question but that this expensive exercise was futile. This may have explained why no steps were taken by those representing the wife to seek clarification of the joint expert report but for the fact that the wife attempted to produce a sole "expert" report on this issue into evidence on the first day of the hearing without any notice to the husband and subsequently dispatched that report to Mr Adams-Cairns when I had refused to admit it. This behaviour, whether in ignorance, neglect or disobedience of civil/family rules of procedure amounts to malpractice and has the effect of conflating raised emotions and suspicion. There is absolutely no mitigation for the wife's solicitor sending to Mr Adams-Cairns the report that was ruled inadmissible. Its only purpose, objectively viewed, would be to seek to influence the opinion of Mr Adams-Cairns."

So here's my question - what exactly did the husband and wife get for their £2.4m legal fees?

One of the solicitors in this case has on its website not one but two articles headed "What makes a top divorce lawyer?"

Well, according to Macur J, perhaps the following?

1.  Disregard for basic rules of evidence - i.e. the hearsay rule;
2.  Disregard for the correct procedure for using expert evidence;
3.  A failure to comply with the pre-action protocol for finances on divorce;
4.  A failure to ensure the provision of full and frank disclosure;
5.  A failure to generate realistic expectations;
6.  Malpractice;
7.  Pointless, costly and counterproductive exercises.

I know very well from first hand experience just how demanding some wealthy clients can be.  It is often unfair to impute to the professional representatives the unrealistic or obstinate stances adopted by their clients.  However, when you spend six and even seven figures on your lawyers, listening to a judgment like this one must be an enormously dispiriting and even shattering experience.  As for how the lawyers felt......

Blog Disclaimer: Nothing in 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 April 2012

When it comes to generosity, I’m with Scrooge – almost!

Judges coin phrases and lawyers seize on them.  They adopt them with the fervour that a devout follower of religion applies to the words of his or her chosen prophet.  They seek to apply them in any given situation.  And often there comes a rude awakening, when another judge dismisses the earlier legal catchphrase and says that it was always misconstrued, misapplied or simply wrong in the first place.

One such phrase, to which I am now completely sensitised, is "needs, generously assessed".  It grates my nerves because I have a view about generosity.  I simply don't see it as being my place in life to be generous with someone else's money!  Equally, I am completely unconvinced that the law empowers any judge to be either.  The phrase first appeared in the notorious Miller and MacFarlane cases back in 2006.  The House of Lords, no less, said that part of the court's job in reaching a fair financial settlement between a husband and wife was to determine the needs of the parties, "generously assessed".

Now it's very basic to say that it's s.25 of the Matrimonial Causes Act 1973 which sets out what the court has to take into account when carrying out the job of crafting a suitable order.  The way the section refers to needs is this, to be exact:

"the financial needs, obligations and responsibilities which each of the parties to the marriage has..."

In other words, there's no mention of generosity!  Now we've seen previous elevations of judicial commentary to almost the status of holy writ (well statutory status anyway) previously.  For example, for 24 years the phrase "reasonable requirements" held sway, following something said in a case called O'D v. O'D in 1976.  The House of Lords killed that phrase in 2000 in the famous and revolutionary case of White v. White.  The Court said, "Confusion might be avoided if courts were to stop using the expression 'reasonable requirements' in these cases..."  By these cases, it meant big money cases in which there was more than enough in the pot to meet both parties needs, with a surplus left over.

Now the oddity is this, it was the same case which actually coined the phrase I so dislike -

"The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative." (my emphasis).  The Court wasn't approving that term - if anything, it was critical of the concept and its use.

As a result, I was encouraged to have drawn to my attention a case called Robson v. Robson.  Here, the Court of Appeal looked at exactly the phrase used in White v. White and added as follows:
"Confusion will be avoided if resort is had to the precise language of the statute, not any judicial gloss placed upon the words, for example by the introduction of "reasonable requirements" nor, dare I say it, upon need always having to be "generously interpreted". (my emphasis)

I therefore live in hope that the day will come when I can forget this latest judicial gloss and what it might mean for those few very wealthy clients, whose marriages, sadly, have run their course.

Blog Disclaimer: Nothing in 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.

Monday, 2 April 2012

Now an award winning divorce lawyer!

I've often noted, with a cynical sneer, those businesses who insist on calling themselves award winning.  Lawyers, of course, are not immune to this form of vanity publishing.  They hold their own private awards dinners at which they honour each other in sometimes abstruse and downright arcane categories.  The Oscars for legal geeks, but without tributes to make up artists!  I suppose that if I were awarded something by my industry peers, I'd suddenly lose my cynicism and take pride in the fact that members of my own profession held me in conspicuously high regard - but that hasn't happened yet.  Shame.

However, this weekend I was honoured by the people who count far more than your professional peers - the sort of people who actually use the professional services of divorce lawyers.  So if you look at the following link, you should find me fairly easily - I'm the one called jonathancj, obviously.

 Wikivorce awards

What's Wikivorce all about?

Wikivorce came about when its founder went online to look for information to help him with his own divorce and found himself having to put together fragments of information from a variety of sources.  He decided that it would have been far more helpful if they had all been in one place and set himself the task of constructing that resource.  Quite quickly it moved from being just an encyclopedia of information to a community of people talking about what they had learned from their own relationship failures and passing on useful information.  The great benefit of this is that it has moved to being more of a tailored advice service, albeit informal in nature, rather than leaving it to individuals to try to apply generic information to their own specific circumstances.  It does not hold itself out as giving legal advice but most of the members of the site have themselves experienced separation and can help with the emotional side of the separation as well as the practical side.

And why is it important?

At the awards dinner, the site founder highlighted the effects of the withdrawal of legal aid from family law.  More and more people will be trying to negotiate quite a complex web of law and procedure without the aid of a specialist who is familiar with how it all fits together.  Where on earth can they turn?  How can they learn what to expect at a first hearing?  Is mediation really a good idea?  What is a hearing really like?  Who can they ask these questions when they simply cannot afford to pay a solicitor to advise?

For so many questions, the internet is the first port of call now.  You're thinking about a major purchase?  Google product reviews.  You have a technical question on any particular topic?  Google it.  Search for help with divorce and the first page of the results will bring up Wikivorce and you have access to a community of people happy to help and with first hand experience.  No, it can't substitute for the direct help of your own solicitor.  For the best level of help, you need someone like me.  But if that's just not an affordable option, Wikivorce will stand in the gap.  It remains the case that the helpful people online will often advise other users that they really need to get a solicitor - there's a limit to what they can do to help - but there's no doubt at all that people using the site will be much better prepared for the procedure than those who try to go it alone.

Blog Disclaimer: Nothing in 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.