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How the precedents are set.

  • maggie
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24 Mar 12 #319828 by maggie
Topic started by maggie
www.familylawweek.co.uk/site.aspx?i=ed96642

"Final general comments for consideration by the profession

475. In making these comments I am acutely aware that
(a) in cases I hear I am not privy to discussions between the parties and their advisers,
(b) my practice at the bar was not in this field and so my relevant litigation experience is primarily in the field of disputes between shareholders and business partners and litigation relating to private companies and businesses,
(c) a great many claims for Ancillary Relief settle, (d) I only see a small proportion of cases and, save on appeals, they are "big money cases" and
(e) as demonstrated by this case (and those I mention below) the general approach, practice and expertise of those who specialise in these cases results in many aspects of them being well prepared and presented.

476. But, in three recent decisions of mine (D v D and B Ltd [2007] 2 FLR 653, R v R [2009] EWHC 1267 (Fam) and H v H [2009] EWHC 1549 (Fam)) and this case I have reached the conclusion that there were significant flaws in the results of their preparation and presentation, and it is this (and the criticisms made by Moylan J of the presentation of the case in H v H [2008] 2 FLR 2092, which I agree with) that have caused me to invite the profession carefully to consider individually, and as a specialist group, whether they should review and change their general approach to the preparation and presentation of "big money" cases.

477. At the heart of the flaws I have identified in the cases mentioned is the point that in my view there have been failures to properly identify the issues and, by reference to them, properly to identify (a) the findings the court is being invited to make and the reasons why they are relevant, (b) the facts and matters the court is being asked to find as the basis for those findings and (c) the evidence that is needed to achieve these goals. To my mind, all these steps are an essential and basic part of the efficient preparation and presentation of a case because they constitute the essential identification of the facts and matters relied on by each party and how they will set about proving them. So, they are an integral part of the process of establishing the building blocks of the case to be presented by the parties to the court as to how it should exercise its broad statutory discretion.

478. In my view, the points that the court is exercising a broad discretion, and that in assessing the impact of a number of factors necessarily has to take a broad approach, do not support a conclusion that the nuts and bolts or building blocks of litigation should be approached broadly, or with a broad brush, leaving the court, for example:

(i) to weed out and identify the relevant allegations from discursive affidavits and/or valuations or budgets that (a) do not cover certain relevant issues or items, and/or (b) do not provide proper information as to how they have been prepared and are supported,

(ii) to embark on the oral evidence without (a) the facts and matters that each side is inviting the court to find, and by reference to them (b) the factors that they assert are important to the exercise of the statutory discretion, being defined, and then

(iii) to reach findings (a) on generalised assertions and evidence and inferences based thereon, and/or (b) without central points being covered by the evidence, and/or (c) without appropriate disclosure in respect of the issues raised, and/or (d) from extreme positions adopted by the parties without proper attention being paid to the middle ground, and/or (e) by reference to a number of submissions or arguments directed at the client rather than the judge."

  • soulruler
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24 Mar 12 #319887 by soulruler
Reply from soulruler
Well that is a very excitting and encouraging judgment from my point of view.

White judgment was wrong - good I think that was obvious having been through what I still go through.

Family Law is different from Company Law, Trust Law, Contract and Equity. If you have a book on family law you will not find any section on other sections of law and the S.25 criteria relate to marital assets and do not set out fiduciary requirements and the potential pitfalls of becoming a de facto director of a company or a de facto trustee.

Hopefully this is building on the judgment from Family that no decision should be made in family proceedings that would result in another action whether that be Tort Equity or Law.

The point being that Family Lawyers are just not qualified to be advising about Company Law, Trusts or fiduciary obligations and neither are they accountants.

A decision in Family is not confined to the decisions of a judge but by all parties who get involved including those who are divorcing and those who are advising them.

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