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AR judges with recent ancillary relief work?

  • maggie
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09 Feb 11 #250637 by maggie
Topic started by maggie

"Can it be right that the man and woman in the street, when reading section 25, will gain only a superficial understanding as to how the court is likely, eventually, to determine their resources distribution on divorce ? Is it fair that in any Court Centre up and down the land, the best that can be said to clients is that Judge A or Judge B could come to different conclusions about various fundamental issues, but that they, as clients, should rest assured that whichever judge determines their case, his or her decision will remain within a band of reasonable outcomes which either judge would have hit upon?
Of course, as practitioners, many of us have known for years that there has been a void in the system in certain areas of the country of an effective appeal route when the district judge has, in the decision reached, stepped outside that reasonable band of decisions that should have been made. Hopefully in this regard, the “Money Judge” scheme being tried on the Northern Circuit will finally address this problem and ensure that at the Circuit level, there are judges available with the required “recent experience” of Ancillary Relief work as practitioners. They can confidently take some of the heavier ancillary relief cases at first instance and a regular diet of appeals from district judge decisions, without the client having to incur the costs of appeal to the higher courts or having to just bite the bullet of a bad decision."

Makes you wonder how many divorce district judges exercising their infinite discretion in all the circumstances of your case have no or at least no recent experience of ancillary relief work as practitioners.

"that reasonable band of decisions that should have been made"
So before we even sit down at FDR everyone except the couple who are divorcing knows how it will all end?
Maybe that's what our solicitors should tell us in the first free half hour and we never need see them again???

  • .Charles
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09 Feb 11 #250701 by .Charles
Reply from .Charles
It is generally accepted in the profession, from my experience, that all parties benefit from a judge who has experience of Ancillary Relief.

However, it is common for a non-AR DDJs (deputy district judges) to hear FDA and even FDR hearings. At the latter, it is also common for a DDJ to not give an opinion and to list the matter for final hearing which is wasteful in the very least.

Inevitably there will be judges that deal with cases in areas of work that they have not practised. There is training for this after all. But where a judge's input is *really* needed - such as in a FDR hearing, an experienced judge will pay dividends.

As for solicitors telling you what you should have as a settlement, this raises several issues:

(1) The solicitor can give an opinion based upon the information from their client. In *most* cases not all information is readily available. Some clients have little idea about there own finances never mind those of their spouse. To give an opinion on the final settlement can do more harm than good particularly if they are told to expect 50:50 and end up with 30:70 as they forgot to mention their £1M pension fund thinking this was excluded from the matrimonial pot.

(2) Solicitors do not have a crystal ball. A reasonable settlement is more, or less, reasonable in another person's eyes – including those of a judge. If there was a basic formula that could be applied to calculate a settlement it would be infinitely easier to deal with such disputes. In fact, there would be no disputes as everyone would have the calculations and as they would be intrinsically fair, there would never be a conflict.

If everything was straightforward, lawyers would not exist. If plumbing was straightforward, plumbers would not exist. How difficult is it to put some pipes together? (ask the layman who found his kitchen flooded when a compression fitting 'popped'). How difficult is it to draw up a divorce petition? (ask the layman who had to pay a few hundred pounds due to errors and multiple amended petitions).

Notwithstanding the above, it is possible for a solicitor to give a 'broadbrush' indication subject to the accuracy of instructions. This would be based on accepted principals in case law and the experience of that solicitor. In other cases, it is impossible to give that indication until all financial information has been obtained and processed. Even then the court can make unexpected decisions - which fall under the discretion of the court. This is not really satisfactory (to one of the parties at least) but that is the risk of litigation and going to trial.

(3) I always take issue with the 'free half hour' principle. I am against it. Solicitors have spent many years training and in practice, are heavily regulated, heavily insured and have enormous overheads. Around 70-75% of the hourly rate is overhead and the rest is profit subject to payment of VAT, income tax and national insurance.

Solicitors can be negligent even when giving free advice and Solicitors also have to go through various procedural requirements before seeing a client - free or otherwise.

It is also widely known that people who search for solicitors who offer free interviews, frequently go to more than one solicitor to 'collect' advice. This may be a shrewd move for clients but it is harmful for solicitors who have to make a profit or risk folding. If the advice is of value, why shouldn't you pay for it? If the advice has no value why are you seeking it? There are solicitors who do not like giving free advice but are forced to as it is company policy so they put little effort into it or race through the interview as quickly as possible. In this case you really do get what you pay for.

I always recommend a fixed fee interview which works out at less than the hourly rate, is not restricted in time and allows the client to ask all questions and get answers to those questions whilst also allowing the solicitor to inspire confidence. At the end of the interview the client will have lots of information, will feel better and will think "if I do need a solicitor I am definitely instructing him/her".

A last comment on the issue. If you go to a new supermarket, do you insist upon trying their home brand line of foods before deciding to buy? If you instruct an accountant to prepare your tax return, do you ask that they balance the books for free so that you can see whether you want them to continue? It amounts to the same thing.

(4) Solicitors carry out the work that is required from them. If you feel the cost is too high, you can do the work yourself. It is a basic principle that a client can end the retainer with their solicitor but a solicitor cannot end the retainer with their client without good reason e.g. failure to discharge bills as they fall due, dishonestly etc.

I have heard clients say that their solicitor should have refused to carry out work, should have told them to follow a different path in proceedings (different paths can be offered but the decision is ultimately the clients once the pros and cons or each has been explained) or carried out work that was not required of them.

On this forum a member accused his solicitor of breaking up his marriage by requesting that he bring the marriage certificate to the first appointment. I'm not sure how the initial telephone call went but I'm fairly sure it started with "I'm thinking of divorcing my wife" followed by "You'll need to bring in your marriage certificate if you have it". What happened after that is anybody's guess but there was a period of at least three months where the client could have called a halt to proceedings before the Decree Absolute was granted.


So before we even sit down at FDR everyone except the couple who are divorcing knows how it will all end?
Maybe that's what our solicitors should tell us in the first free half hour and we never need see them again???

A final comment on the above. Most couples who divorce do so amicably. Other couples go through mediation which is successful and others still go through their family or religious community to broker a settlement.

At the point where a person accepts that a legally qualified person is required to intervene in their case, it is a sure-fire indication that matters have advanced beyond a solicitor simply giving advice and sending their client away to live a happy life. I would suggest that whilst solicitors cost a lot of money, it is through necessity that they do the work that they do. With hindsight lots of people will say that they could have sorted the matter out themselves but hindsight is a wonderful thing. Knowing the outcome of a trial in advance would influence the parties' decision making process but going back to point (2) above, the solicitor does not have a crystal ball. If s/he did, they would almost certainly charge you half their fees for use of said ball!

Strayed off the point a little there but I like to give an opinion from the other side occasionally.


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