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9. McKenzie Friends in McCartney v Mills

9. McKenzie Friends in McCartney v Mills

Heather Mills parted with her solicitors and decided to act as litigant in person with the help of no fewer than three McKenzie Friends.  The question is, would she have received a larger settlement with legal representation?

McCartney v Mills

There cannot have been in the public arena a judgment more widely read than that of Mr Justice Bennett in McCartney v Mills [2008] EWHC 401 (Fam).  It is not intended to revisit the full decision in that case here, but to make reference to some bare facts.

The hearing took place over six days.  The marriage lasted six years and there is one child of the family (now four years old).  The wife sought compensation for loss of her career opportunity, as she stated that their cohabitation, a matter that was not agreed upon, and subsequent marriage caused her to forego a successful and lucrative career.  She placed great weight on the contribution she claimed she had made to the marriage, and asserted that the husband’s conduct should be taken into account and reflected in her award.  She valued her claim at £125 million.

The husband submitted that his case was fundamentally straightforward.  He claimed that, because of his enormous pre-marital wealth and the brief duration of the marriage, the wife’s claim should be determined by reference to the principle of need alone.  Those needs fell, in the husband’s case, to be fairly assessed not predominantly by reference to the standard of living during the marriage.  The husband also claimed that there was conduct that the court should take into account and asserted that the wife’s award should be reduced commensurately.  The husband’s open offer was £15 million, which took account of his proposed deduction for conduct.

Both parties made it clear that they wanted a clean break, both under the Matrimonial Causes Act 1973 and under the Inheritance (Provision for Family Independence) Act 1975.

Mr Justice Bennett stated that, ‘the husband’s evidence was, in my judgment, balanced.  He expressed himself moderately, though at times with justifiable irritation, if not anger.  He was consistent, accurate and honest'.  Bennett was, however, less than complimentary about the wife’s evidence, describing her as ‘a less than impressive witness’.

In making his decision, taking into account each of the matters in section 25(2) of the Matrimonial Causes Act 1973, and the decision in Miller v McFarlane which was summarised by the Court of Appeal in Charman v Charman [2007] EWCA Civ 503 (2007) 1FLR 1246, Mr Justice Bennett said: ‘I would highlight paragraph 70, where the Court of Appeal said: ‘Thus the principle of need requires consideration of the financial needs, obligations and responsibilities of the parties …; of the standard of living enjoyed by the family before the breakdown of the marriage …; of the age of each party …; and of any physical or mental disability of either of them…'.

Mr Justice Bennett awarded the wife a lump sum of £16.5 million which, together with her own assets of £7.8 million, took her total award to £24.3 million.

McKenzie Friends

Heather Mills parted company with her solicitors in early November 2007, and was assisted at the hearing by three McKenzie Friends: her sister, a solicitor-advocate and an American attorney.  The question on most journalists’ lips on the release of the judgment was whether, and to what extent, the wife might have achieved a higher award if she had not been a litigant in person.

Arguably, this particular wife did not share many of the attributes of a non-famous litigant in person and, in spite of her specialised McKenzie Friends and advice from former solicitors and counsel, the judge criticised the wife’s closing submissions.  He also noted that much of her evidence was not just inconsistent and inaccurate, but also less than candid: ‘If the wife feels aggrieved by what I propose, she only has herself to blame.  If, as she has done, a litigant flagrantly over-eggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget’.

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