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 financial order. Show all posts
Showing posts with label financial order. 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.
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 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.
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 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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