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Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

Posted on May 21, 2015 by suesspiciousminds
I think this summarises our position

I think this summarises our position

 

 

I thought of that gag this morning, and kudos to Cobb J for giving me the opportunity to deploy it.

 

Newcastle City Council v WM and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/42.html

 

When a High Court Judge asks why you haven’t filed and served a position statement, don’t do THIS

 

 

  • I return to consider some of the matters outlined at the beginning of this judgment.
  • At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

 

At the commencement of the bundle there shall be inserted the following documents (the preliminary documents) –

(a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;

(b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;

(d) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(e) skeleton arguments, if appropriate;

(f) a list of essential reading for that hearing; and

(g) the time estimate (see paragraph 10.1).

 

  • May I draw to their further attention PD27A, §4.4:

 

Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents

And PD27A para 6.4:

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk

Sadly, this is once again one of those cases where poor planning and preparation had led to massive delays for the children,  and unfairness in the process, and once again, the misuse of section 20 played a part

  • The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;ii) The children were accommodated under section 20 of the Children Act 1989 (“CA 1989”) from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;

iii) The ‘letter before proceedings’ (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);

iv) The final hearing is taking place in the 43rd week, not the 26th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);

v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that “she did not appear to understand the reasons why her children had been placed in foster care”), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;

vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;

vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;

viii) The Children’s Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.

ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt’s lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;

x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;

xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.

  • Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

 

I think that we are really close to the judiciary making human rights compensation orders in these cases – these children had on that reading been unlawfully accommodated for around 21 months, as the mother did not have capacity to consent to such accommodation.

 

Even more wretched than that, is that when the case was finally litigated, the Judge concluded that two of the children should be placed with a family member, their aunt. That could have been done much much earlier, and the children spent more time in care than was necessary. That’s a tragedy.

 

The judicial analysis and approach is excellent, and the judgment as a whole is worth reading.

 

Lest you think the whole thing is critical, the Judge was more than willing to lavish praise on those who deserved it.

 

 

  • Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
  • I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
  • Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.
  • Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance

 

 

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And we can throw in a word like “circumcision” / cos we ain’t going in for Eurovision

Posted on April 27, 2015 by suesspiciousminds

 

In Re W (Children) 2015, the Court of Appeal had to deal with an appeal arising from a refusal to grant a parent leave to oppose the making of an adoption order.  [I know that like Rizzle Kicks you are saying “Let’s snip to the good bit” – have patience, it is about a third of the way down the page]

http://www.bailii.org/ew/cases/EWCA/Civ/2015/403.html

 

As the case was being dealt with by the President (amongst others), we were always going to begin with an admonishment about Practice Directions.

I interpose to observe that this is yet another example of practice which is not merely unacceptable for reasons which ought to be obvious – the court needs to know both the author(s) and the date of such a document – but is in fact in plain breach of PD27A, para 4.2. This is not the first time I have had occasion to complain about this in recent months: see Re L (A Child) [2015] EWFC 15. I said this (para 14):

“PD27A para 4.2 states that:

“All statements, affidavits, care plans, experts’ reports and other reports included in the bundle must be copies of originals which have been signed and dated.”

This requirement, there for good reason, is too frequently ignored. For a recent, and egregious, example, see Re A (A Child) [2015] EWFC 11.”

I continued (para 23):

“This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough … The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions”.

I spelt out what those sanctions might involve. Here we merely identify the delinquent local authority as Coventry City Council.

It can only be a matter of time before the President issues an edict that prescibes a rap over the knuckles with a ruler for breaches of PD27. Or perhaps a dunces cap, constructed of foolscap paper, to be worn by those responsible for the breaches for the duration of the proceedings.

I can see that it must be irksome for a Judge not to have the signed and dated documents in front of them, this seems a far more legitimate complaint than whether the documents are on double-sided paper. But nonetheless I am adding it to my file of “The Welfare of the Bundle is Paramount” cases.

There were a lot of gripes about the original way that the trial judge managed the application, but it finally turned on this particular point:-

  1. In the first of those two paragraphs, Judge Watson said this:

    “So far as M is concerned there has been a very specific matter which has been raised and has been raised consistently throughout the proceedings and that is that for some reason he was not circumcised. I do not know the reasons for that. It could well be to do with the time and the age he was when he was taken into foster care, but for whatever reason he was not circumcised. The social worker has indicated in her statement that on 3 September there was an agreement that M should be circumcised and I am satisfied that it would be in his cultural and religious best interests to be circumcised. It is what his parents wish and it is a wish which ought to be recognised and perhaps should have been recognised before to date [sic].”

  2. The final paragraph of her judgment underwent some revision. In the draft transcript sent to her for approval, Judge Watson was recorded as having said this:

    “I am therefore going to say that I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the adoption order in relation to B. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

    As approved by Judge Watson the final paragraph reads as follows:

    “I am therefore going to say that I will refuse leave to oppose the adoption but I will not make a final adoption order until I am satisfied, in M’s case, that the circumcision has taken place. I will make the final adoption order in relation to B in 7 days time. In M’s case I will make the adoption order, but that will not take effect until he has been circumcised. I hope that makes it as clear as it possibly can.”

  3. I have already set out Judge Watson’s order in full. So far as relevant to this point, the key parts of the order are these:

    “upon the court indicating that the Adoption Order for M will be made upon written confirmation to the court that he has undertaken a procedure for circumcision

3 The court has approved an Adoption Order in respect of M such order to be made upon notification of the procedure as set out above.

 

And that, of course, is the Court making an Adoption Order on a conditional basis, which is not allowed.

 

  1. The first relates to M’s circumcision. It is tolerably clear from the order, though the language of the judgment (whichever version one takes) is unclear and, to my mind ambiguous, that Judge Watson did not on 29 September 2014 make an immediately effective adoption order in relation to M. According to the language of the order it “will be made” and is “to be made” upon the happening of the specified event. In other words, perfection of an adoption order in relation to M was expressed to be subject to what as a matter of law is properly described as a condition precedent, namely that M be circumcised. Ms Bazley and Ms McGrath submit that the court cannot properly make an adoption order effective only on satisfaction of a condition precedent. As they ask rhetorically, what is to happen if the condition precedent cannot be satisfied? Does one treat the condition precedent as determinative, with the consequence that the child is not adopted – and if so, what is to happen? Or does one treat the decision for adoption as determinative and, in effect, ignore the condition precedent? They pose the questions not for the purpose of inviting answers but in order to demonstrate that such an order is not merely unworkable in practice but also wrong as a matter of principle. How, after all, does an adoption order subject to such a condition precedent meet the ‘adoption as a last resort’ principle spelt out in the authorities?
  2. In the event the issue has arisen in a very practical way because Ms McGrath told us on instructions that the local authority has been unable to identify any NHS hospital or private clinic willing to perform a circumcision on a child of M’s age, absent medical reasons for doing so – a position, we were told, that is unlike to change.
  3. I agree with Ms Bazley and Ms McGrath. Paragraph 3 of the order is irretrievably flawed. It is in a form which is wrong as a matter of substance. No adoption order can be made expressed to be subject to satisfaction of a condition precedent. Accordingly, in relation to paragraph 3 of the order the appeal must be allowed on this ground also.

 

Nicely argued. You can’t really say that adoption is the last resort (but only if the child no longer has a foreskin).

The underlined bit is odd –  there are a great many male children who have such an operation without there being any medical reasons – we can see the parental desire for this procedure was religious / cultural – so wouldn’t that be your starting point for having the process undertaken?

I can’t find from the judgment how old M was – certainly under the cut-off point for adoption. If he was say five or six, I can see why a GP / hospital consultant might be nervous about the procedure without medical cause. But surely it was a solveable problem. It was perhaps fortunate that the appeal arose, as otherwise this child would have been in a Schroedinger’s Cat style limbo – he can’t be adopted without the circumcision, but the LA can’t get the circumcision done. And no simple vehicle for taking that back to Court to vary the order, and they could have run out of time to lodge the appeal. It could have been very problematic  (which is a major reason why you can’t attach a condition to the making of an adoption order)

 

The other two legal quirks in the case were these.

 

Firstly, in the care proceedings, nine days before the final hearing on a younger sibling JE  began, the parents produced a letter from an Aunt who wished to care for the children.  That led the Judge to decide that the case could not be concluded, but that he could conclude that neither parent could care for JE

  1. On 1 September 2014, Judge Cleary gave judgment following what had been intended to be the final hearing in relation to Je. He explained why finality had not been achieved. For present purposes there are two matters to be noted.
  2. First, Judge Cleary recorded his inability to get to the bottom of what had happened in relation to the various assessments of Aunt A. In his judgment he referred in scathing terms to the fact that the case worker “had a woefully inadequate grasp of what was going on, a wholesale lack of relevant papers and no, or no clear knowledge of the passage of information to and from Belgium”. He commented, “It was, as the caseworker conceded, a fiasco.” He directed a further assessment of Aunt A by an independent social worker who I shall refer to as ISW.
  3. Secondly, Judge Cleary ruled out both parents as carers for Je:

    “I have quite enough information in respect of the parents, and enough evidence to require me to conclude that neither [the father] nor [the mother] is in a position to care for Je, and I therefore conclude that a North Yorkshire declaration is appropriate.”

  4. The legal significance of this is that North Yorkshire was a 2008 High Court authority thought by some (me) to have been a pragmatic solution to a tough situation and being hard to justify given what the Court of Appeal said in Re G that it is no longer a linear ruling out process. North Yorkshire is exactly that – the Court ruling out the parents and then having a later hearing to consider an alternative carer/ adoption. I thought North Yorkshire was dead in the water after Re B, R B-S and particularly Re G.

The President gave it an unexpected kiss of life in Re R, but in that case the Court had not been asked to determine that issue and it had not arisen, so his remarks were at best obiter.  Here however, they are ratio and are binding.  It is official, North Yorkshire declarations are compatible with adoption.  (I can’t see how, but I don’t make the rules, I just write about them)

That is a reference to the decision of my Lady, then Black J, in North Yorkshire County Council v B [2008] 1 FLR 1645. That case is still good law: see Re R (A Child) [2014] EWCA Civ 1625. As I said (para 67):

“Re B-S requires focus on the realistic options and if, on the evidence, the parent(s) are not a realistic option, then the court can at an early hearing, if appropriate having heard oral evidence, come to that conclusion and rule them out.”

So in principle Judge Cleary was entitled to proceed as he did and there has been, so far as we are aware, no challenge by either parent to his decision.

 

Flowing from that, just days after the Court had ruled both parents out as carers for JE but embarked upon an assessment of the aunt, by happenstance, the leave to oppose adoption hearing took place, before a different Judge, Judge Watson.

At that time, the ISW had not reported on the aunt as a potential carer of JE (and she was also putting herself forward as a carer for B and M).  Two days after the leave to oppose hearing, the ISW report DID arrive, ruling the aunt out as a carer.

 

At the time of the leave to oppose hearing then, Judge Watson knew that Judge Cleary had ruled out the parents as carers for JE, but had directed an assessment of the aunt, and the outcome of that assessment was not known.

There’s quite a law anorak debate about whether the findings and decisions of Judge Cleary were binding on Judge Watson, or whether they were a starting point that she was entitled to rely on, but could deviate from if there were reason to do so.

  1. Judge Watson was entitled to take as a starting point, as the factual baseline, the various findings set out by Judge Cleary in his judgments of 12 December 2012 and 31 January 2013 and the fact that on 1 September 2014 Judge Cleary had ruled out the parents as prospective carers for Je: see In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 and In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. The same approach applies (see Re Z, para 32) whether the matter is before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. So Judge Watson was entitled to rely on Judge Cleary’s decision on 1 September 2014 even though it arose in the context of the proceedings in relation to Je being heard by a different judge whereas the proceedings before Judge Watson related to B and M.
  2. A judge can revisit earlier findings and depart from them if there is good reason to do so. The approach was indicated by Hale J, as she then was, in Re B, page 129:

    “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

    In Re Z, I said that I agreed with that, though adding (para 33) that one does not rehear a previously determined issue:

    “unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge.”

  3. It is not clear to me that Judge Watson was ever invited to go behind Judge Cleary’s decision on 1 September 2014. In any event, I cannot see that there were any solid grounds for challenging his decision. Judge Watson, in my judgment, was entitled to feed that decision into her overall appraisal of whether – I am leaving Aunt A on one side – there had been any change in the circumstances of the parents.
  4. What Judge Watson said in her judgment on the point was this:

    “sadly for [the mother], on 1 September of this year she was ruled out as a potential parent and carer for Je.

    That of course is a matter of weeks before this decision that I have to take and it is very difficult for me in those circumstances to satisfy myself that she has made those solid and significant changes an her circumstances which would justify me granting her leave to oppose the adoption.

    …

    His Honour Judge Cleary also ruled [the father] out as a prospective carer for Je. Again I am in considerable difficulty in seeking to accept the submissions made by [him] that he has also made an improvement and a significant change in his circumstance such that would justify the grant of leave to oppose the making of an adoption application because that does not accord with the judgment of HHJ Cleary.

    Three weeks [sic] Judge Cleary was unable to accept that there had been a reversal, what I described as a sea change, in [the father’s] approach to the findings and to his involvement in the findings made by Judge Cleary in relation to the parenting of all of the children, but particularly the older children. I was not the judge who heard the fact-finding hearing and I must accept that if Judge Cleary made those findings and concluded the welfare of the children could not be best served by considering placement at home for the children that, if not appealed, is binding on this court, as it is of course on Judge Cleary when he made the decision in relation to Je, and again reviewed that decision in September and concluded that the changes were not significant and that Je could not be returned to the care of his parents.

    I cannot accept that in the light of the findings of His Honour Judge Cleary as recently as 1 September that there has been this change in circumstances, this improvement in the father’s position that would justify the granting of leave to oppose the adoption.”

  5. It might have been wiser if, instead of using the phrase “binding on this court”, Judge Watson had chosen words that better reflected the legal position, but taking these passages in the round, and reading them in the context of the judgment as a whole, I do not think that Judge Watson either misdirected herself in law or proceeded in a manner that was not open to her.

 

The orders were overturned and sent back for re-hearing, but for all of the legal high-concept and anoraking and argument, it was the Judge’s decision that M should be circumcised before the adoption order was finally made that really won the appeal.

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A heartbreaking case of staggering genius

Posted on April 15, 2015 by suesspiciousminds

 

It isn’t really heartbreaking – when you read about how two people are arguing about how to divide a fortune of £144 million it stirs up the expression ‘my heart bleeds’, but it is a case where Holman J tackles the word ‘genius’   – and his approach interested me.

Gray v Work 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/834.html

 

It so happens that I agree with Holman J that the word is massively overused.  Just as a quick random sampling – 458,000 hits for “wayne rooney genius” and 35 million for ‘george north genius’  – both of whom are exceptionally talented and gifted sportsmen, but they aren’t geniuses  (geni-ii?)

  1. Paragraph 80 of Charman, excerpted in paragraph (vi) above, is one of several authorities that employ the word “genius”. It appears also in Lambert, and very recently in Cooper-Hohn, and in other authorities in which the court has debated whether the person claiming a special contribution possesses the quality of “genius.” I personally find that a difficult, and perhaps unhelpful, word in this context. To my mind, the word “genius” tends to be over-used and is properly reserved for Leonardo Da Vinci, Mozart, Einstein, and others like them. It may lead, as it did in this case, to the rather crude question to (in this case) the husband: “You don’t describe yourself as a genius, do you?” Not surprisingly, the husband, like any person with a modicum of modesty, was rather nonplussed by the question. Oscar Wilde is famously said to have declared that he had nothing to declare but his genius. More modest, even if exceptionally talented, people may be slow to make such a claim.
  2. What I understand is meant by the word “genius” in this context, and what is required for a claim to a special contribution to succeed, is some “exceptional and individual quality which deserves special treatment.” See Charman at paragraph 80. But the fact that judges have used the word “genius” in this context does tend to underline how exceptional, individual and special the quality has to be.
  3. It is clear from the above propositions and the outcome in other cases that hard work alone is not enough. Many people work extremely hard at every level of society and employment. Hard work alone lacks the necessary quality of exceptionality. Further, to attach special weight to hard work in employment risks undervaluing in a highly discriminatory way the hard work involved in running a home and rearing children.
  4. It is clear also that a successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time, or benefiting from a period of boom is not enough. It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skilful that past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.

 

[I think personally I would go with Da Vinci, Mozart, Darwin and Einstein, and I don’t tend to use genius for anyone else – I know that my definition is narrow. {I wrestled with including Orwell, but had to finally conclude that this would open the door to too many others. If Sherlock Holmes had been a real person, would he have been a genius? Just short, I think.}  It would be a definition which means that the special contribution ancillary relief test would not be met for anyone, were I deciding it, since those four men are long gone. And actually it conflicts with the second definition in the dictionary

an exceptionally intelligent person or one with exceptional skill in a particular area of activity.  So in the unlikely event that I was sitting on the Court of Appeal, I would overrule my own definition as being wrong…]
The other issue of general application relates to the ever popular (and I use ‘popular’ here to mean ‘hatefully recurring and more difficult to ignore than one would ideally like’ as in “One Direction are a very popular band”) theme of excessively large bundles
  1. The parties have spent approaching £3,000,000 on legal fees and associated expenditure. For that, you get very high quality legal teams, and each of them has been very well represented, but it does not appear to have facilitated a conciliatory outcome to this case.
  2. Further, some of the spending has been, in my view, profligate and unnecessary. Ordinary people litigating in the family courts about very serious issues, such as whether their children should be adopted or returned from care or whether life support of a child should be maintained or ended, do not have the luxury of, nor, frankly, the need for, two shorthand writers in court throughout the hearing, producing overnight transcripts to which negligible reference was later made. It is an extravagance. Whilst it was a privilege to hear from two Texan matrimonial lawyers, I do not think the cost of their travel and attendance was justifiable or necessary.
  3. The bundles were excessive and proved inconvenient for me, for witnesses who struggled with them in the witness box, and at least at one stage for Mr Howard QC. At one point we had the absurdity of going to one bundle for a letter and another bundle for the reply. There was a pre-trial hearing before a circuit judge on 3rd December 2014. He had no other involvement in the case either before or after that day. Amongst many other directions, he did formally give “permission for the trial bundle to be extended to six lever arch files…” I asked Mr Tim Bishop QC, who appeared on behalf of the wife, and who was present on 3rd December 2014, whether the circuit judge had exercised his own independent discretion in agreeing to six bundles, or whether he had been seduced by counsel. Mr Bishop immediately and frankly said that the judge had been seduced by counsel and that it was not an independent assessment by the judge. It was rubber stamped. This is not how the very important Practice Direction 27A is intended to be applied. Further, the cardinal and over arching words of the practice direction are the opening words of paragraph 4.1: “The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing …” However many bundles the court may authorise, there should be no document within them which does not fall within that rubric in paragraph 4.1. I have not kept a tally in the present case, but I am confident that the total number of documents read or referred to is less than half the total of well over two thousand pages assembled in the bundles.
  4. In his judgment in L (a child) [2015] EWFC 15, handed down last week, the President of the Family Division has given due and crystal clear warning that these excesses will no longer be tolerated. What I wish to emphasise is that although that judgment related to care proceedings, every single word of the relevant part of it applies no less, and arguably more, to financial remedy proceedings.

I did rather like the language of whether in agreeing that there should be six bundles in the case, the Judge had been ‘seduced by counsel’.

I’m not sure that seduction efforts that involve allowing a Judge to permit additional lever arch files into evidence is going to be a subject matter that would particularly tempt Hollywood into incorporating it into Rom-coms, and probably it will be a while before my huge rollercoaster of a script “Pride and Pagination” gets picked up by Hugh Grant, but a man can dream.    [My action-ancillary-adventure movie starring Matt Damon  “The Besterman Cushion” is in post-production, so there’s that]

[I would have to say that having a letter in one bundle and the reply to that letter in a different one is fairly illustrative of things having gotten completely out of hand]

It is different counsel who later on posits that in the list of assets that the wife has suggested should be transferred to her contains some ‘duffs’ as well as ‘plums’  – I don’t think I am anywhere near well-bred enough to ever get away with using it; but I still liked it.

  1. The wife and her legal team have attempted to avoid the dispute as to discounts by proposing what they call Wells v Wells sharing. They have identified about 24 assets in the asset schedule which they suggest should be transferred in whole or in part to the wife, inclusive of any inherent discount. Whilst I welcome and appreciate their desire to minimise costs and potential further litigation, I am unable to accept that proposal. The present hearing has been largely occupied with the evidence and argument as to the two issues of the agreement and of special contribution. There simply has not been time, in the time estimated and allotted for this hearing, to hear either evidence or argument as to discounts.
  2. Mr Bishop says that their proposed Wells v Wells sharing list contains “duffs” as well as “plums”. But that is mere assertion. I am simply unable to engage judicially in consideration of discounts, save on an item by item basis, upon which the court would need to hear both evidence and argument.

The case is well worth a read if you do ancillary relief, or enjoy watching very well paid lawyers squabble about millionaire’s money. The husband clearly had cojones that would have been setting off the security metal detector given that they began with an offer that was 2% to the wife, 98% to the husband and over the course of the hearing shifted that.

Very sensible, to shift.

But probably not from 2% to 0%.

The wife ended up with 50%  – which one might have thought was a result that one could have guessed at without spending three million on lawyers, but I suppose if you thought you could get away with 98% of the assets it was worth a punt.

 

Yet another of those big money cases that ate up precious High Court time, for a very small fee. I do wonder if the time has come for the Court to get a percentage of the assets in dispute where one is dealing with sums over twenty five million. The ancillary relief Court fee of £255 is not touching the sides of what these cases are actually costing the taxpayer.

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