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.

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 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.