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.
Showing posts with label costs. Show all posts
Showing posts with label costs. Show all posts
Wednesday, 13 March 2013
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.
Wednesday, 9 May 2012
Would you rather your solicitor suspended you or terminated you?
Of all the tawdry squabbles I deal with, few are more bitterly disputed than attacks on a solicitors entitlement to be paid. So of course, I love them! Now the concept of your solicitor as Arnie, the Terminator, may not spring to your mind, nor as a sort of latter day Pierrepoint (Albert Pierrepoint). However, the distinction between being suspended or terminated, it's now clear, could be worth a lot of money!
The law recognises that solicitors are in a particularly good position to be able to overcharge their clients and it has given clients the right to have costs reviewed in detail either by an external assessor (via a remuneration certificate) or by a costs judge. The rules which apply to these applications are fairly complicated and in some respects favour the solicitor, who knows (or should know) what they are. However, there was a very sobering judgment some time ago in a case called Buxton v. Mills-Owen. This ultimately resolved in the solicitor's favour, but only after it reached the Court of Appeal. However, what the court accepted was that if a solicitor doesn't have a valid reason to terminate a retainer, he/she can't charge for any of their work at all! In other words, if a solicitor doesn't see a case through to the end and doesn't have a good reason for baling out, he/she has to refund all the fees charged up until that point.
And that's what occupied the Court of Appeal in a recent case reported here:
Cawdery Kaye Fireman & Taylor v. Gary Minkin
The court, to cut a rather long story very short, had to decide whether a client was entitled to a refund of all the fees he had paid. It was a case in which the client had fallen out with his solicitor during an application for a non molestation injunction and ouster order - a pretty commonplace family law situation. The firm gave a costs estimate of £3,000 plus VAT and then very shortly afterwards increased it to £3,500 plus VAT - a little over £4,000 at the time. However, barely a fortnight later, the client received a bill for just short of £5,500 in total - over a third more than the estimate.
What occupied the court then was deciding exactly what had happened next. According to the client, the solicitor terminated the retainer because he didn't pay the whole of the bill. Where it all gets rather bizarre is that the shortfall on what he had paid was just over £2,700 out of a total of just over £5,700. And this went to the Court of Appeal, remember! The client asked the court to assess his solicitor's costs. The assessing judge did two things - first of all he said that the retainer had been wrongly terminated, so the solicitor should reimburse all his costs. Secondly he said that if he was wrong about that, he would assess the bills. He reduced them to the figure of just over £5,700 - a reduction of just over 20%. £7 more than 20% actually. Once the court has reduced them by over 20%, it's the solicitor who has to pay all the costs and in this case the client's costs amounted to £17,650!
The solicitors appealed. The Court of Appeal agreed with them that what they had actually done was suspend the retainer pending payment of their bill, not terminate it. It was the client who had terminated it because they wouldn't take any further steps until they were paid. As a result, the client remained liable to pay them the £5,700. However, the solicitors were still lumbered with the costs of detailed assessment, which amounted to more than three times the amount they recovered. Now I daresay that the client would have had to pay the costs of the appeal, amount unknown. So who were the losers? Clearly both of them! Sadly, not unusual in litigation.
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.
The law recognises that solicitors are in a particularly good position to be able to overcharge their clients and it has given clients the right to have costs reviewed in detail either by an external assessor (via a remuneration certificate) or by a costs judge. The rules which apply to these applications are fairly complicated and in some respects favour the solicitor, who knows (or should know) what they are. However, there was a very sobering judgment some time ago in a case called Buxton v. Mills-Owen. This ultimately resolved in the solicitor's favour, but only after it reached the Court of Appeal. However, what the court accepted was that if a solicitor doesn't have a valid reason to terminate a retainer, he/she can't charge for any of their work at all! In other words, if a solicitor doesn't see a case through to the end and doesn't have a good reason for baling out, he/she has to refund all the fees charged up until that point.
And that's what occupied the Court of Appeal in a recent case reported here:
Cawdery Kaye Fireman & Taylor v. Gary Minkin
The court, to cut a rather long story very short, had to decide whether a client was entitled to a refund of all the fees he had paid. It was a case in which the client had fallen out with his solicitor during an application for a non molestation injunction and ouster order - a pretty commonplace family law situation. The firm gave a costs estimate of £3,000 plus VAT and then very shortly afterwards increased it to £3,500 plus VAT - a little over £4,000 at the time. However, barely a fortnight later, the client received a bill for just short of £5,500 in total - over a third more than the estimate.
What occupied the court then was deciding exactly what had happened next. According to the client, the solicitor terminated the retainer because he didn't pay the whole of the bill. Where it all gets rather bizarre is that the shortfall on what he had paid was just over £2,700 out of a total of just over £5,700. And this went to the Court of Appeal, remember! The client asked the court to assess his solicitor's costs. The assessing judge did two things - first of all he said that the retainer had been wrongly terminated, so the solicitor should reimburse all his costs. Secondly he said that if he was wrong about that, he would assess the bills. He reduced them to the figure of just over £5,700 - a reduction of just over 20%. £7 more than 20% actually. Once the court has reduced them by over 20%, it's the solicitor who has to pay all the costs and in this case the client's costs amounted to £17,650!
The solicitors appealed. The Court of Appeal agreed with them that what they had actually done was suspend the retainer pending payment of their bill, not terminate it. It was the client who had terminated it because they wouldn't take any further steps until they were paid. As a result, the client remained liable to pay them the £5,700. However, the solicitors were still lumbered with the costs of detailed assessment, which amounted to more than three times the amount they recovered. Now I daresay that the client would have had to pay the costs of the appeal, amount unknown. So who were the losers? Clearly both of them! Sadly, not unusual in litigation.
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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