I can see why one might think it is controlling. Full version - of course its her decision to make and if she wants to go down this route it must come from her and not me. I doubt if you could find anyone less controlling than I am.
As for moving on with life, again that is her choice. However, there is a real trend not to put up with unreasonable behaviour and that should include solicitors who are out of order. I think it is somewhat bizarre for the legal profession to believe they are somehow above this and that special rules should apply to them.
Yes it would be worth looking at the SRA guidelines and of course any case would need to show specific evidence of malpractice rather than just provocative tones in letter even if that in itself is unnecessary.
Todays issue is yet another missive from the opposition that unless we agree to their clients absence (he is in Japan watching the rugby world cup) from the next part of the process they will take us to court tomorrow. We can't afford that of course so they get their way again. There are bigger battles to fight.
Your first post began with targeting your angst in relation to your partner’s case against the solicitor.
You allege misconduct or incompetence and that it is not good enough for them to say they were following their client’s instructions and that that explanation is “wet” and that the solicitor has a choice how to conduct themselves.
You then liken the behaviour to defending a soldier’s actions on a battlefield.
Here are some things to think about…
A solicitor is engaged to step into the shoes of their client. They also advise on the merits of the case and the legal procedure.
The client doesn’t have to accept advice and the solicitor must run with the instructions they have even if they do not believe this is the best course of action.
In family law a conciliatory approach is encouraged. However, if you are talking about finances that is less conciliatory as there is an element of horse-trading which does not benefit from an appearance of weakness. The solicitor presents the best case their client has in as clinical a manner as possible in order that it is as black and white as can be when a judge looks at it.
In relation to satellite issues such as the client being out of the country, this is something over which a solicitor has no control. Clients are always told that once proceedings have begun, they should make themselves available for court appointments. It is an endless source of headaches when clients are unavailable and the solicitor just has to work with it. This may involve putting forth as cogent an explanation as possible. Whether that stands up to scrutiny is another matter.
For instance, if a party was out of the country on business that is the explanation that would be used. If asked “could that business trip be rescheduled?” and the answer was “yes” the explanation falls over. That does not make the original explanation any less true. You mention that there is currently a Japan trip for the World – if this was booked before the court hearing it is probably reasonable to adjourn any hearing as that trip cannot be rescheduled.
In relation to misconduct, you’ll need to specify what you think that might be. Solicitors are not emotionally involved in their cases and they are frequently direct and unambiguous at the expense of being curt. That is a small price to pay for being ambiguous which helps neither party.
In relation to the allegation of negligence, that is a matter between them and their client. You cannot allege negligence on behalf of your partner as the solicitor has no duty to your partner. If the solicitor was negligent it would normally be to the detriment of their client and therefore to the benefit of the opposition. In that respect, your partner would benefit from any negligence by the solicitor and any loss to the other side would be borne by the solicitors professional indemnity insurance.
It seems to me that you feel aggrieved at the representation that your partner’s ex has received and you want to reap some revenge upon the solicitor by doing everything you can to bring them down and by ruining their career.
Unfortunately you are far too many steps away from the process. It is similar to me complaining to a carpenter about the quality of the fence installed at the property which I sold in 2012 – it’s really none of my concern.
In relation to your battlefield analogy that doesn’t really stand up. As said above, a solicitor stands in the shoes of their client and if their client is the soldier, the solicitor is a proxy solider that enters the battlefield in their client’s stead. However, whilst the client might be unaware of the rules of engagement, the solicitor is not and is required to uphold the rules.
For that analogy to work, the soldier is the client, the solicitor is standing in for the client, the Geneva convention is the Court and the battlefield is the litigation between the parties.
Of course, viewing the process as a battlefield is an emotional response whereas to the solicitor it is just another case following the same rules which will eventually end and the file will go into storage along with the others. It’s nothing personal.
There are instances where a solicitor acts in a way that is unbefitting conduct which is a serious matter. If you have any examples of this please share as there may be other avenues which you can explore beyond those which you have already highlighted.
Thank you for the full reply. Of course I am angry as I am sure most people in my position would be. I have to pick up the pieces every time another vile piece of correspondence comes in, or my partner reaches yet again for the anti depressants, or her business takes another hit because her ex will not end the matter, mediate or come within 50% of the lower bracket of the FDR figures, or her valiant efforts to try and protect her daughter from finding out her father wishes to take away the childhood home from her. etc
And it so doesn't need to be like that. The ex seems to think he has a case. Fine well bring it and test it in law. All the inflammatory provocative stuff is not necessary. But if you choose to go down that route don't be surprised if someone fights back by whatever legitimate means are available to them.
I do not think I used the word negligent and if I did I was wrong to do so. I would argue that the ex's solicitors had a responsibility to make sure that the form E was accurate in the sense that there was a previous one (when they were also instructed) and this one has significant changes in areas where there should not be changes eg the date of separation in order to portray a shorter marriage, discrepancies between the form E and the D81 which they drew up for the court. The fact that the applicant omitted 3 pensions which he had previously listed, one life assurance policy, several bank accounts still live etc is probably not the solicitor's fault as they must rely on the integrity of their client...
You did refer to negligence but I note your response.
If the client signs the form E, it is correct in the eyes of the solicitor. It is not for the solicitor to question their client in the same way as a defence lawyer should not question the innocence of their client despite clear evidence of a crime.
If there are different versions of the form E it is the signed version which is submitted to the court which counts. That is the one which will be relevant. If there are inconsistencies those must be raised at the FDA hearing and possibly followed up with a schedule of deficiencies if the replies to a questionnaire are not complete.
If the evidence is as flaky as you suggest it will be obvious to the court and the trial judge will test that evidence. Going to final hearing is not for the feint hearted and if the other side has a poor case that will be revealed at court.
Your partner is put through the mill as a consequence but settlement is only achievable when there is a meeting of minds otherwise the court will decide.
In it's simplest form, a settlement is made by the parties or the court. The former is not currently an option so the latter takes effect.
It's frustrating but if making a party see sense is like banging your head against a brick wall, don't bother as it will only cause you damage.
There are two Forms E. Both are signed. One updates the other but some details have changed or have been omitted in the latter in order to shed a different light on matters. The same solicitors represented the ex on each occasion.
They wrote to my partners solicitors stating that they were not going to provide any more disclosure on bank accounts or credit cards as 'full disclosure had already been made' and anyway it not been referred to in the questionnaire. This is nonsense and a lie. The current bank account referred to should have been disclosed as part of the form E and it should have included the 12 months up to form E and the updating disclosure. It has nothing to do with the Questionnaire. The ex has belatedly provided a single statement that was 7 months out of date. That is not full disclosure. So they (not the client) lied about it.
This is the sort of rubbish that is going on and racks up costs when they are obliged to meet the court's direction. It's not up for debate.
As for the case sadly it will go to final hearing. The ex is so rich (£10s of Millions) he does not care about the cost. I just hope for a judge who looks at just how malevolent he has been, how dishonest in disclosure and his disregard for hardship of his child's mother.