popping your towel on a sunlounger to bask in English justice

Every once in a while, looking up from a life of flea-bites, crack cocaine and bureacracy, it is nice to see how the other half live.  This post is sponsored by Dentists of England, as there may be some grinding of teeth amongst the readers.

Chai v Peng 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1519.html

These are divorce proceedings going on in the High Court. So far, the husband has spent about £1.1 million on lawyers, and the wife nearly £1.3 million.  Thus far, they haven’t even resolved whether the divorce and financial proceedings will be heard in Malaysia or England.  That’s right, they’ve spent nearly £2.5 million just arguing about where the argument will take place.

That includes a round-table meeting in Paris (although all of the lawyers are from London), which cost in total £88,000  and you have to inspect the judgment very very carefully to glean any constructive benefit out of that meeting

As an example, Mr Bishop instances the costs of the trip to Paris this very week. I have been told that the total amount to be billed by the husband’s solicitors, Payne Hicks Beach, will be £19,250 plus a small amount for hotel expenditure. Baroness Shackleton of Belgravia charged herself out at £620 an hour for ten hours, making £6,200. Her assistant, Mr Parry-Smith, was charged out at £245 for ten hours, making £2,450. Mr Bishop himself charged a fee of £10,000. There were some travelling costs totalling £650, making the total of £19,250. By contrast, on the wife’s side, the accountant employed by Vardags was charged out at £11,500; Mr Todd charged £25,200; Mr Yates charged £12,600, and the two solicitors from Vardags charged in aggregate £16,220. Those figures total £65,520. It is right to say that they are inclusive of VAT whereas no VAT was charged to the husband. Additionally, there were certain travel and hotel disbursements on the wife’s side making the total £68,000. So Mr Bishop says that if you compare the approximate £20,000 that the husband incurred on this day meeting in Paris with the £68,000 that the wife incurred, it really just goes to show how excessive and profligate her lawyers’ expenditure has been.

If you aren’t a family lawyer and are thinking how outrageous it is that your lawyer earns that sort of money, they don’t – your lawyer is as open-mouthed about those sums as you are. And is probably wishing that they hadn’t decided that ancillary relief sounded dull when they forged their career path.

[That did sidetrack me, on realising that the husband’s solicitor is a Baroness, to wondering whether in terms of etiquette the QC and perhaps even the Judge  have to bow to the solicitor if she stands up… probably not in Court itself, but I wonder about how it all works elsewhere]

A lot of this particular hearing was taken up with an exceedingly technical matter – the wife had issued her petition here and there had been a huge dispute about the basis on which she claimed jurisdiction. Her lawyers, hoping to cut through some of that, had a redrafted petition, and wanted to ditch petition 1 and proceed with petition 2.  It seems that there is not scope to withdraw a petition (fairly uniquely amongst litigation, almost any other application can be withdrawn) so effectively the Court would have to dismiss petition 1.  The husband, though wanting the entireity of the divorce petitions in the UK to go away, didn’t want the wife to be able to ditch petition 1 (because presumably his argument on jurisdiction was stronger on petition 1)

This might be my favourite line of the week

• By their written submissions and during the course of Mr Bishop’s oral submissions today, we have heard the familiar metaphors of floodgates, and coaches and horses, with some other metaphors, including trying to enter the proceedings by a different back door, and trying to reset the clock. The most colourful metaphor, in paragraph 47 of their written document, is as follows:

“To file prematurely is the equivalent of laying one’s towel at dawn upon the sun lounger of the English court and returning at high noon to bask in the warmth of the law of England and Wales on divorce and financial remedies.”

To be fair, whilst that line is brilliantly evocative, it probably cost the husband a few thousand pounds to draft and refine.

The thrust of the husband’s argument was that to allow mother to strike the first blow with a dodgy petition, and then having started proceedings in England on a flawed basis got to have another crack at it would be opening the door to “forum shoppers”   (litigants who want to come to the UK for their divorce because there will be a more beneficial settlement)

But behind all these metaphors, the essential argument is that what the wife has done, and now seeks to do, is an abuse of the process, and that if I countenance it and give effect to it I would be opening the door or, indeed, floodgates, to a torrent of forum shopping divorce petitions or applications here. Mr Bishop said, indeed, that if I accede to this application I would become “the friend of the forum shopper”. I very much doubt whether there is currently any judge of the Family Division who is less of a friend of forum shoppers than myself. I have, I think, made very plain, even in my first judgment in this case, how much I deplore the legal manoeuvrings that are forum shopping at enormous expense, clogging up the courts, and deflecting from focus on the real issue of fair financial negotiation.

The Judge carefully looks at the arguments (which are technical even beyond the scope of this blog) and reaches this conclusion

• I wish to make crystal clear that my decision in this case is utterly fact-specific to the facts and circumstances of this case and no other. I am not a friend of the forum shopper. I have not the slightest desire or intention of opening floodgates or driving perilously on a coach and horses. If I thought for one moment that the wife and/or her advisers had at any stage acted in bad faith, then, of course, I would take a very different view. Mr Bishop makes plain that he makes no allegation of bad faith against Vardags, nor of course against the wife’s team of barristers. But he does say that she has acted in bad faith and that she was deliberately placing her towel on the sun lounger long before she was entitled to do so, as she well knew. I repeat, there is not a word of evidence in this case by or on behalf of the husband. I do not have the least reason to conclude that when the petition was presented in February 2013 either the wife personally or her advisers were acting in bad faith, or intending to act abusively. No doubt they foresaw the possibility of a jurisdiction race and felt that there were advantages in rapidly petitioning here. But it was, and remains, her case that the jurisdictional bases were made out and it has not in any way been established that they were not.

 

 

• In my view, on the facts and in the circumstances of the present case, no real question of principle arises despite the attractive and valiant arguments of Mr Bishop, Mrs. Bailey-Harris and Miss Cook. Rather, I do feel that in exercise of my own duties under the overriding objective and rule 1 of the Family Procedure Rules, I should enable the wife to do what she now seeks to do, which I hope at any rate may eliminate or narrow some of the areas in dispute. So, for those reasons, I do intend unconditionally to dismiss the present petition that was filed on 14^th February 2013 and the order must, of course, make express on its face that I do so without any adjudication whatsoever on any of the merits of any aspect of that petition, whether as to jurisdiction or the unreasonable behaviour alleged, or any other matters within it. I do not then need to say anything permissive at all for the wife to present a fresh petition, for she is simply enabled to go forthwith to the registry, pay the fee and do so.

The next issue was maintenance pending suit – in effect the wife taking money out of her share communal pot that would come to her eventually but were in husband’s control at present – this was to pay her legal costs. Her legal team asked for £100,000 per month, and an additional £115,000 to clear her outstanding balance.

Maybe this is my favourite line, it is hard to choose between this and sun-loungers

The original bid on behalf of the wife, in Mr Todd’s and Mr Yates’ skeleton argument, at paragraph 81, was for a little short of £100,000 per calendar month, or half a million pounds between now and the further hearing in October. That seems to me to be excessive and going beyond the bounds of what I can properly order having regard to the new legislation and earlier authority. In the light of an indication from me that I was unlikely to make an order in that sum, and indeed that if that was what Vardags and the present legal team required then the wife would have to consider instructing cheaper lawyers, Mr Todd revised his proposed figure this afternoon to £60,000 a month inclusive of VAT

It does occur to me that these plucky British lawyers are essentially liberating millions from the Malaysian economy (in the form of the husband’s assets) and ploughing them into the British economy – that’s an extra £30k tax per month for the British economy, not to mention that the £30k that is left will be spent by the lawyers on shopping, providing a valuable boost.  They need to stop going to Paris though, that’s not helping.