Up for an Update? Padden v Bevan Ashford rides again!

Diligent readers of the blog will remember me commenting on Padden v. Bevan Ashford Solicitors. You can quickly refresh your memory on the case revolving around the free half hour here:

The end of the half hour free interview?

You’ll never guess what’s back in the courts – 

Padden v. Bevan Ashford

That is correct, the re-trial of Padden v Bevan Ashford has taken place, and back to the Court of Appeal again! 

My gripe with the first Court of Appeal decision was that I considered that it just didn’t have regard to the realities of giving  a half hour free advice.  The course the Appeal Court said should have been followed just doesn’t reflect the realities of day to day life in the High Street.  Reading between the lines of the HHJ Vosper’s decision, which was under appeal, I have a feeling he had at least some sympathy with that view.  He couldn’t go behind the earlier decision of the Court of Appeal, that the newly qualified solicitor (now known to be a Ms. Shinner) had been deficient in her first meeting with Mrs. Padden, but at paragraph 16 we get a different flavour of that first meeting.

The judge notes that the claimant was “evidently distressed and in a rush to be back home as soon as possible”. So quite how much attention Mrs. Padden was giving to what Ms. Shinner had to tell her is doubtful.  Despite this, Ms Shinner took pity and decided to help. A human lawyer!  One who wanted to help a person in distress – not quite conforming to popular stereotype, one might say, but more common than is generally realised.

“Ms Shinner advised the claimant that she was not doing the right thing, and advised her not to sign any documents. Ms Shinner must have based that advice on her appreciation that paying off Mrs Partridge might not stop a criminal prosecution.” So the judge, upon looking with care at what happened at that first meeting realises that Ms. Shinner’s advice was focussed more closely on the key issue than perhaps the Court of Appeal first time round had realised.  If only Mrs. Padden had chosen to follow that advice!  Both she and her solicitors would have been so much better off.

The judge also said, “I find that Ms Shinner told the claimant that she was taking a huge or a big risk, and the risk to which Ms Shinner was referring was the risk that Mr Padden would face criminal charges despite the claimant's giving away her interest in the assets.” I guess this is as close to saying that she wasn’t so very negligent as a judge could reasonably get, given the earlier decision, and I commend this analysis.

Now what happened after Ms. Shinner ended her involvement was rather more of a problem, unfortunately.  A colleague wrote to confirm that “I am satisfied that this signatory understands the nature of this Deed and its meaning and effect and to the best of my knowledge has freely consented to it without undue influence or duress or in reliance upon misrepresentation.” (emphasis added).  It’s the italicised section which really seems problematic.  What’s more, he doesn’t seem to have made a note of that meeting, so he couldn’t remember what happened at it.  This was a very serious certification to have made and the lack of a record of that advice was critical.  The whole episode shows that routine certifications should not be readily available.  A solicitor has to spend serious time finding out what the whole transaction is about.  A serious charge should be made as there are serious consequences for the solicitor who gets it wrong – over £67,000 worth of consequences, actually!  Oh and the other thing?  Free advice?  So many of us now will just say no. 

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.

Open all hours - Technology has taken over our lives!

A few years back, I was unable to make it to a school parents evening, so I phoned to arrange an appointment to discuss my son’s progress with one of his teachers. I asked to speak to the head teacher but she was too important to speak to me. Instead I was given an appointment with one of the members of the management team. Throughout the meeting I became more and more irritated by the patronising tone which was directed at me. The deputy told me that I was asking for flexibility from the school that lawyers and accountants wouldn’t give to their clients. Now this was the last straw.   Needless to say, the conversation got slightly heated after this. I had to tell him, “Actually, I am a lawyer, and after I leave here (at 8 pm) I will be meeting with a client who cannot meet me during normal working hours - because she is a teacher!” That silenced him. 

I was annoyed by the mere suggestion that the head teacher couldn’t see me because it was out of normal working hours and that a lawyer would be exactly the same. It is simply not true. The days are long gone when lawyers worked from nine till five, five days a week, with six weeks holiday and Friday afternoons on the golf course. Through the giving of mobile numbers and e-mail addresses, lawyers have made themselves much more accessible to their clients at all hours and in all places.  For our clients, if not our families, so much the better! 

But with increased accessibility comes increased liability it seems.  David Hodson reports at this link on a decidedly troubling development.

http://www.familylaw.co.uk/articles/DavidHodson210613-954

This will writing lawyer opened electronic communications from his client over a weekend but because it was a weekend, he did nothing with them.  Basically, he completely ignored the client’s son when he knew that his client was nearing the end of his life. That element of urgency makes the key difference.  I don’t read this case as declaring open season on a lawyer’s weekends and I don’t see it as warranting interruptions to family life without exceptional cause.  However, a lawyer who wants to treat his or her time out of the office as being sacrosanct will have to learn to ignore the insistent, siren calls of the computer and blackberry!

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.

Legal ombudsman gives good advice to divorcing couples - shock horror!

A week or so ago, the Legal Services Ombudsman published a report on complaints against lawyers.  Sadly, family law is a major contributor to his case load.  Am I surprised?  Not greatly.  I encounter a good number of indifferent family lawyers.  I have the privilege of presenting training courses for BPP, one of the leading national training organisations, which gives me the opportunity of discussing and passing on to other family lawyers my main concerns.  As is clear from the report, clients are deeply concerned about costsand this is a major source of complaint.  I believe that is all too often insufficient focus by both solicitor and client on managing cases to keep cost to a minimum.

The great news for professional and client alike is that the Ombudsman has published a highly sensible guide to getting the most out of a professional relationship between solicitor and client.  You can find it at this link:

Using a divorce lawyer - ten helpful tips

So I thought I'd have a look at the tips the Ombudsman gives, one at a time, of course.

Tip one.
Consider what you want from the legal process - AND BE REALISTIC!
Sorry to shout but this is important.  The biggest single dispute in divorce usually concerns money.  Your money.  The more of your money you spend in legal fees, the less you get to keep.  Very often a solicitor will be telling a client something the client doesn't want to hear.  The law does not punish one spouse for being bad, nor does it set out to reward the other for being good.  The purpose which the court sets out to accomplish is simply to enable the couple to live separately from each other.  It's a matter of arithmetic and it's a matter of practicalities.  For those who are deeply hurt, this is not what they want to hear.

And that's where problems can arise.  A client can put a lawyer under severe pressure to try to obtain an outcome which is just not achievable.  When costs get racked up and that outcome is dismissed as unrealistic, the client complains.  Both client and solicitor may have to share the blame.  The client has not been prepared to accept good advice.  The solicitor may have been intimidated by the client and persuaded into presenting a case which is just not viable.  Solicitors must have the courage to withstand pressure and be the bearer of bad news if need be.

Where I become decidedly irritated is when I am faced with a solicitor who is doing work which cannot benefit their client but for which someone - quite often the taxpayer, under a legal aid certificate - is paying.  The classic example for me is the lengthy and purposeless questionnaire.  For instance, if the only asset of a marriage is a house and neither spouse can realistically be ordered to pay maintenance to the other, questions about how either of them spends their income are entirely irrelevant.  You can spend hours crafting such a questionnaire but it has no value to the client.  It can be decidedly embarrassing when a judge looks at your questionnaire and simply dismisses it out of hand.

Fighting for what you can't get is emotionally draining, ultimately devastating and a waste of money.  If that's your position, your solicitor is doing you the biggest and most altruistic favour by telling you early on, before the damage is too great.




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.

Litigants in person 1

There's been a High Court case reported recently which has some interesting observations about people who represent themselves.  You can read it here:

Maloney v. Filtons Ltd.

Now the case itself is a bit of a rare specimen which concerns the receiver of some property - not a commonly encountered set of facts or law (well, not for me at any rate!).  The interesting bit of the judgment is in the preamble.

"Until shortly before the trial the Defendants were represented by solicitors and had Leading Counsel...", "Throughout the hearing the Defendants were represented by one of its Directors, a Mr Moshin Kothia. Mr Kothia presented his case extremely lucidly and tenaciously and I pay tribute to his efforts in that regard. However, Mr Kothia, of course, is not a lawyer and it follows that things were missed of a legal nature which would never have occurred to him as a non lawyer."

Now there's the rub.  It rather looks as if the Defendants ran out of money to employ expensive lawyers shortly before the trial.  Their director seems to have done really a very good job in the circumstances and the judge was clearly very complimentary towards him.  However, it's a matter of simple commonsense that an experienced specialist lawyer is always going to be at a considerable advantage in court.  If that were not the case and our profession were simply a matter of smoke and mirrors, we'd have been exposed as snake oil salesmen years ago.  Please resist the urge to add an obvious comment about lawyers at this point!

"This case as this judgment will show demonstrates the difficulties a court faces at a trial when one party is unrepresented."  "It is always difficult to assist the litigant in person without giving the represented parties the impression that they are being punished for having representation."

The judge explains how it falls to him to ensure that the Defendants' case is properly aired at trial where the Defendants don't have competent trial counsel.  In other words, the judge has a great deal more to do. But as the judge makes clear, he cannot and must not descend into doing the Defendants' job for them.  There's a very difficult balance to strike and inevitably there will be times when the balance ends up skewed in one direction or the other.

With the impending demise of Legal Aid for family cases, I confidently predict that the present trend for parties to appear in court without legal representatives is going to increase dramatically.  It does absolutely nobody any favours.  Self representing litigants, as I understand the new terminology is going to be, will be at a disadvantage.  Judges will have to undertake far more case analysis and questioning of witnesses.  Lawyers, as the Claimant's QC in this case, will have to tutor the lay party in court procedure at their own client's expense.  New challenges for all - the timid should start looking for the exit doors right 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.

Is marriage a good thing? Should it be encouraged?

There's a lot of excitement about Sir Paul Coleridge and his Marriage Foundation at the moment. Sir Paul is a High Court judge in the Family Division and sits in very heavy weight family finance and children cases.  He sees the proliferation of divorce as a pernicious and damaging feature of modern society, which needs to be rolled back.  The Foundation he has started is a first step in reestablishing marriage as a durable and indeed permanent relationship.  Well, that's the plan anyway.

Just have a look at how the Telegraph and Mail have presented the new initiative:


The Telegraph


The Daily Mail



Let me put my cards face up on the table - I've been married for just a few months short of 25 years now and I'm in no kind of hurry to change that.  However, for over 16 years I have been a divorce and family lawyer for at least 50% of my working day, so I'm not exactly unfamiliar with why marriages fail.  I regard divorce as being a bad thing - an admission of failure.  However, I am entirely certain that sometimes it's an entirely necessary thing.  Often I have wondered how it is that a client has persevered with a marriage which has been clearly very damaging to him/her and, very often, her/his children.  Abusive relationships are not something to hang onto and in fact we know that abusive behaviour is learned and cascades down the generations if someone doesn't take action to break the cycle.

The truth is, some people really try hard to maintain a marriage and others just have little if any real reason to bail out.  One thing I am certain of - by the time people reach me, it's far too late to put the marriage back together, 95 times out of 100.  As a result, I simply don't sit in judgment on my clients.  That's not my function.  I don't have to believe in the inherent justice of my client's cause to do a really good, professional job.  I'll do that for anyone at all.  Some people have difficulty understanding that - they want me to affirm my belief and personal commitment to their cause.  I can't do that because if I start doing so, I will end up assessing and judging my clients and that wouldn't be right.  I'll always advise them on the strengths and weaknesses of their case but I won't pass moral judgment on the choices they're making.

Now whatever your marital status, you'll have your own take on things.  At the other end of the spectrum from the Daily Mail lies Natasha Phillips of Researching Reform.  She comments on it here:

Researching Reform

So in the blue corner we have the Mail saying that this judicial initiative is something the country has needed for years and in the red corner we have another commentator saying that it renders Sir Paul unfit for judicial office!  Quite a polarisation, you may think.

Unfit for the profession.

I confess that I am becoming more and more troubled by the number of occupations which are now deemed to be closed to people who in good conscience find themselves either uncomfortable with a part of the duties of the job or find them unconscionable altogether.  Midwives who are against termination cannot seek duties which do not include management of abortions, registrars who do not approve of civil partnerships likewise and now judges who are less than starry eyed about divorce seem to be in the firing line.

If I were disabled, I would have a right to expect reasonable adjustments by my employer to enable me to continue working, and this might include allocation of duties.  If an employer institutes a policy which prevents female employees from accessing some sort of benefit, for example because they generally have greater family responsibility, they run the risk of being found to have acted in a discriminatory fashion and be liable for compensation.  However, if you are found not to share the opinions of our liberal elite, you run the risk of being deprived of your very livelihood.  Natasha, in reply to one comment on her post, is saying that the mere fact that Sir Paul has a jaded view of divorce means that he is clearly incapable of implementing the law and complying with his judicial oath.  Therefore, he's got to go.

I'm sorry but I just can't agree.  I worry that we're losing the right to disagree.  Why can't we allow people some scope to be who they are?  Why is it vital to impose our own world view on others?  That's the very antithesis of liberal democracy, so why is it happening?  Why on earth is it so unforgivable to promote healthy and fulfilling marriage, especially where the proponent is someone who has direct, relevant and downright comprehensive knowledge of the alternatives?  So not everyone is going to succeed in building those marriages - we divorce lawyers are there to help them.  But there's no reason why we shouldn't aspire to the best and do anything we can to build and support it, is there?

Judges should be passive

What I think Natasha wants to forbid is judges becoming proactive and she is insisting that they remain reactive.  On her terms, a judge is allowed only to deal with the individual and not the general.   Sir Paul is effectively saying that his conviction is that a good marriage is a good thing and benefits society generally and children in particular.  This may be based substantially on his experience as a judge and dealing with the unfortunate individuals who have appeared before him, which would mean that he is applying his knowledge of the particular to draw conclusions of general application.  Why should he not be entitled to do this?  Having seen first hand the misery which broken relationships bring, why should Sir Paul not be entitled to try to do something to help people avoid them?

Other people's insecurities

The real issue with Sir Paul's Foundation, it seems to me, is that it treads on a lot of people's corns.  Quite a number of people with failed marriages seem to take it as an implied personal criticism if someone raises marriage as an ideal.  Likewise, there seems to be extreme insecurity with those who cohabit and are not married.  Of course in the latter case, insecurity is justified as their legal position is hugely different from those who are married.  I suppose it's the idea that society might sit in judgment on our relationships and their failures and say that we have fallen short of the mark which makes some react with what verges on hostility.    And in the face of hostility, I don't have the most optimistic feelings about Sir Paul's chances of engaging with the unconvinced!


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.