Categories
Comment

Ten Commandments of Financial Remedy Notes

1. Minimum 40 paragraphs for a First Appointment; 90 for a FDR;

2. Tone should never deviate from rant. Work those adjectives – there is no such thing as delay, only disgraceful delay;

3. Figures on the schedule should read like the bottom line of a sight test: practically invisible to the human eye;

4. When it comes to adding colours, the more the merrier. Make your schedule look like a TV test card;

5. Your client is a modern saint. The other side is engaged in a criminal conspiracy;

6. Always confuse gross and net incomes. Gross for other side: net for your own;

7. Never cite one case when eight will do;

8. Property particulars: out of budget and off the market;

9. Never identity the issue until paragraph 60. Then disguise it;

10. No matter hopeless your case, always threaten costs.

Categories
Comment

Sauce for the Goose: A primer on legal clichés

It is a truth universally acknowledged that no financial remedy hearing can properly conclude until one advocate has declaimed “…the wife must cut her coat accordingly”, or how “…sauce for the goose is sauce for the gander”, or “going forward”, the husband “…having made his bed must lie in it”.

In Politics and the English Language (1946), George Orwell wrote: “As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse”.

One imagines Orwell sitting alongside a judge hearing a First Appointment or FDR, squirming while submissions are made.

This article is not intended as a pious sermon against clichés – not least because the writer is in no way qualified to give such advice. It is a consideration of five of the more unusual sayings that have become commonplace, to the extent that they are frequently cited in court as though they have quasi-legal authority: “Q. Why is this property suitable?” “A. The wife must cut her coat accordingly”.

Stacking shelves at Tesco

It’s not clear who first coined the cliché “stacking shelves at Tesco”, or why that supermarket was mentioned. ‘Stacking shelves at Sainsbury’s’ works just as well, but maybe the point is that the brand values of Sainsbury’s have always been a bit aspirational whereas Tesco represents value and honest hard work. Hence, entrepreneurs on Desert Island Discs boast about having started out stacking shelves at Tesco, because this establishes their no-nonsense origins and their can-do graft.

In court, asking a wife if she’d be willing to stack shelves at Tesco, is the equivalent of calling magistrates “Your worships”: the mark of inexperience. It’s normally also a low point in the hearing. Not because it isn’t arguable, but because it effectively says “I now realise I’ve forgotten to present evidence on earning capacity, or take instructions, but this way I’ll at least get the ball back over the net”. Alternatively, it’s the answer frequently given from the witness box to “What do you say your ex-wife should do”; followed by the judge putting on a pained expression and the other advocate loudly harrumphing.

Sauce for goose is sauce for gander

The point is a simple one: “what is fitting for the husband should also be fitting for the wife” (acc. Brewser’s Dictionary of Phrase & Fable). Hence, if the husband has made provision in his schedule of outgoings for £6,000 on holidays, why should not the wife have a similar allowance?.

Quite how this expression has become so embedded in family law parlance is unclear, particularly as sauced goose is rarely eaten, even in the Inns of Court. The expression dates back at least to Tudor England, when in 1562 John Heywood included “…deep drinketh the goose as the gander” in his book of proverbs. In his book The English Rogue (1674) the Irish writer, Richard Head, wrote “…sawce which is good for the Goose, I hope will be good for the Gander”.

Expressed judicially, the epigram can be found in several reported judgments, including the Court of Appeal in the partnership case of Morris v Wentworth-Stanley [1999] 1 FLR 83, per Potter LJ at 93, in Phippen v Palmers [2002] 2 FLR 415 per Heather Swindells and F v F (Pre-Nuptial Agreement) [2010] 1 FLR 1743 per King J (as she then was). Most recently, in Re D (A Child) (Supreme Court Jurisdiction) [2016] 2 FLR 379, Baroness Hale commented that, in the context of the 1968 Brussels Convention, “…what is sauce for the goose must also be sauce for the gander” (para [20]).

Cutting one’s coat according to one’s cloth

Unlike television’s “QI”, a klaxon does not go off in court when an advocate says something obviously trite about cutting one’s cloth. Although it should. The underlying point is an obvious one: in adapting to changed circumstances, savings will have to be made in relation to items such as housing need or outgoings.  

The phrase relates to the practice of purchasing cloth from which garments such as coats are to be cut out. It can be found in Heywood’s 1594 proverbs: “I shall cut my cote [sic] after my cloth when I have her”. Also, in John Dryden’s “Wild Gallant”: “I love your wit well, sir; but I must cut my coat according to my cloth.”

Judicially, it appears in the judgment of Mrs Justice Macur in M v W (Ancillary Relief) [2010] 2 FLR 1484 at [50], Potter P in MD v D [2009] 1 FLR 810 at [56], and TL v ML and  Others (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263 at para [112] where Nicholas Mostyn QC (then sitting as a deputy high court judge) noted that the wife will “…have to cut her coat in accordance with EUR 544,000 worth of cloth”.

Meal ticket for life

A periodical payments order made without a term is generally described by lawyers as “joint lives maintenance” and by the Press as a “meal ticket for life”; particularly in relation to “landmark” cases such as Wright v Wright [2015] EWCA Civ 201 which turn out to have little, if any, legal significance. The case of Wright, an application for permission to appeal, is authority for precisely nothing (see Practice Direction 9 April 2001 [2001] 1 WLR 1001, para 6.2).

Few people, aside from those who received Luncheon Vouchers (between 1946 and their abolition in 2013), will have seen a meal ticket. The term, in the literal sense of a ticket admitting to a dining hall dates to the nineteenth century. In the figurative sense, in terms of financial dependency, it dates back to the turn of the twentieth century.The expression was used by Lord Justice Purchase in Scallon v Scallon [1990] 1 FLR 194 at 201: “I wish to say a word about ‘clean break’ which is a phrase which arises since the amendments to the 1973 Act were introduced to ensure that, where there were short-term marriages, one party should not get what is described as ‘a meal ticket for life’ upon the dissolution of such a marriage”. It appears also in Lord Justice Ward’s judgment in C v C (Financial Relief: Short Marriage) [1997] 2 FLR 26 at 46 and in MD v D (supra) at para [41].

Copper bottomed assets and the plum duff

In the seminal case of Wells v Wells [2002] 2 FLR 97, Lord Justice Thorpe commented that, where there is to be a clean break, and the family assets include both available and illiquid assets, that there should be a fair sharing “…by a fair division of both the copper-bottomed assets and the illiquid and risk-laden assets” (para [24]). The expression can also be found, per Mr Justice Coleridge, in the case of Smith v Smith [2007] 2 FLR 1103 at para [30].

The concept of “Wells sharing” was expanded by Mr Justice Mostyn in FZ v SZ and Others (Ancillary Relief: Conduct: Valuations) [2011] 1 FLR 64 in which the earlier decision in GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108 is cited; at para [64] “…It therefore follows that a Wells  sharing is the only way of achieving fairness. Indeed, it would seem to me that this should become standard fare where a case has a significant element of deferred or risk-laden assets. For why should one party receive most of the plums leaving the other with most of the duff?”

“Copper bottomed” refers to the eighteenth century practice of fitting copper on the underside of hulls, to protect ship from shipworms and infestation by barnacles, and has come to mean reliable. Plum duff is a variety of Christmas pudding; specifically, duff is a steamed flour pudding. 

Marital acquest

Finally, by way of contrast, the joker in the pack: “acquest”; a term of art, unknown out of its legal context, which has gained extraordinary traction in family law over the past 14 years.

The first reference to this term in an English family law report was by Nicholas Mostyn QC (sitting, as he then was, as a deputy high court judge) in the case of GW v RW (supra) at para [38]: “…I have stated above that in the Court of Appeal in Lambert v Lambert[2003] 1 FLR 139 reliance was placed on the practice of the New York courts of dividing the marital acquest equally after a marriage of long duration. The statute there is similar to ours, save that the court’s dispositive powers are confined strictly to ‘marital property’”.

The term (which does not appear in Lambert) derives from the definition of community property in the French Civil Code, article 1401 (“…des acquêts faits par les époux  ensemble ou séparément durant le marriage”). Some European countries such as France operate a “community of acquests” civil property regime whereby property acquired by inheritance or gift is excluded from joint ownership (Law Commission Paper 198, para 4.7).

The term has taken root, largely as a result of cases in which Nicholas Mostyn QC appeared as counsel (Miller; McFarlane; McCartney v Mills McCartney) or sat in a judicial capacity (GW v RW, Rossi), to describe assets built up during the marriage save by inheritance and gift. Otherwise, the word has fallen out of usage.

Conclusion

No advocate, however eloquent, can avoid using clichés altogether. However, we would all do well by resisting the temptation to resort to such easy, hackneyed phrases as “sauce for the goose”, “cutting one’s coat/ cloth” or “meal ticket”.

In Politics and the English Language Orwell proposed six rules which, if anything, apply more forcefully now than they did 70 years ago:

  1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print;
  2. Never use a long word where a short one will do;
  3. If it is possible to cut a word out, always cut it out;
  4. Never use the passive where you can use the active;
  5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent; and
  6. Break any of these rules sooner than say anything outright barbarous.
Categories
Procedure

The Road Ahead (Shortened)

President’s Guidance on Covid and the Family Court

The Guardian used to have a feature in its Saturday magazine: the Digested Read. This would involve John Crace summarising a book in about 700 words, and then (in “the Digested Digested Read”) condensing that summary into one or two words, like the final round of the hat game. “The Mandibles”, Lionel Shriver’s 800 page futuristic novel about the USA: Digested Digested Read = “The Unreadables”.

This blog is a Digested Read of “The Road Ahead: The Family Court and Covid 19”, a route map from the President of the Family Division, Sir Andrew McFarlane P, setting out how the family court will operate in the next six months or so. (Answers on a postcard as to what font McFarlane P is using: I’ve never seen it before)

“The Road Ahead” follows compendious guidance from:

In “The Road Ahead”, McFarlane P acknowledges that we are, in effect, all directed out:

“§16 The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time… I agree with this overwhelming view” 

So, in the absence of further directive or prospective guidance (with one exception: see § 17 of The Road Ahead re: joint letter to the judiciary) , what are the takeaway points from The Road Ahead?

  1. In terms of social distancing restrictions etc it is clear that we are all in for the long haul: “…likely to remain for many months to come” (§ 1)… “…it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021” (§ 5, emphasis added);
  2. This elongation of the timescale for a return to normality must now be reflected in case management decisions. The need to achieve finality in family cases, and the detrimental effect of delay “…must form important elements in judicial decision making alongside the need for fairness to all parties” (§ 6). In other words, the courts should be less willing to adjourn cases since an adjournment will likely involve inordinate delay;
  3. The backlog of cases, already significant before March 2020, means that the court must face a new “reality” that “for a sustained period” a high volume of cases must be determined in a fair, just and timely way “in sub-optimal court settings” (§ 9);
  4. This is particularly acute in children cases where “…the need to avoid delay will always be a most important factor and may be determinative in many cases” (§ 12);
  5. The family court will be moving from working remotely to hybrid hearings (where some participants attend court and the others engage remotely) and, increasingly, attended hearings;
  6. The court buildings are due to reopen over June and July, on a reduced capacity basis (i.e. following risk assessments, only a limited number of courtrooms will be considered appropriate for attended, social distanced hearings, with a limit on the number of attendees in each courtroom etc) (§§ 19,20);
  7. The call on these courtrooms will be significant (from across the board) and enquiries may be made about the availability of space outside the court estate such as conference rooms (§ 21);
  8. In terms of video conferencing, Cloud Video (CVP) is favoured by HMCTS and is being prepared for widespread use across the jurisdictions. Microsoft Teams is available for use by many judges; Zoom is not. (§ 23)
  9. The following “very firm steer” is provided:

a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.
b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.
c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.
d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.
e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.
f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available

10. Perhaps the most significant part of ‘The Road Ahead’ relates to case management

§ 43 If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear. 

11. Between §§44 and 46, McFarlane P notes:

§ 44 Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings. 

§ 45. Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them. 

§ 46. Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court. 

§ 48 In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning. 

12. With the objective of encouraging stricter case management, the court sets out a lengthy ‘COVID Case Management Checklist’, (A) narrowing the issues, (B) regarding the Hearing Format and (C) optimising the fairness of remote hearings. All of which should be read in detail in advance of a directions hearing.

The digested, digested read? “Carry on regardless”

Alexander Chandler, 9 June 2020

Categories
Comment

Under the bonnet of the Daily Mail Law Reports

RM v TM [2020] EWFC 41, Robert Peel QC (DHCJ)

There’s nothing the Daily Mail likes quite as much as reporting a divorce case with judicial condemnations of costs which are “eye-watering”, “astonishing” or “absolutely barmy”.

The ideal Daily Mail Law Report (‘DMLR’) involves divorcing parties who have litigated themselves into penury, preferably illustrated by an urbane (and classically inspired) quote from the judge, e.g. Kavanagh v Kavanagh (unreported, save at DMLR [2012] 19 September), where DJ Million described the parties’:

“…wrecking the ship of their marriage then turning their attention to the lifeboats”. … The ship of marriage may founder but this couple have driven theirs full tilt onto the rocks.”

On 5 June 2020, the DMLR once again struck gold.

Under the headline “The couple who spent £600,000 squabbling for two years over their divorce are left with just £5,000 each after legal costs“, the case of RM v TM was “reported”, with several juicy quotes from the trial judge, Robert Peel QC (sitting as a Deputy High Court judge), including that:

“There may be worse examples of disproportionate and ill-judged litigation – but none spring readily to mind.”

“It is hard to express what a calamitous waste of resources this has been.”

Unusually, the Daily Mail’s version was published at the same time as a Bailii report of the actual judgment, at [2020] EWFC 41, so it is possible to cross-reference the two, to provide some legal analysis to this extremely sad case, and to understand how intelligent people instructing specialist legal teams can end up with an outcome like this.

The judgment is not an especially long one, but for the purpose of this blog (and with apologies for numbering each point), it is possible to extract the following relevant background:

  1. At the heart of this case was a dispute over two family companies in which W held a minority 24% shareholding, but otherwise had no involvement (‘…a sleeping partner… uninvolved at strategic and operational level’ (§ 7));
  2. From 2005 until the July 2018, H was employed as Managing Director of one of the companies. He resigned amid allegations about his conduct as MD which led at one stage to his arrest for alleged malfeasance: “…the dispute between the company (and thereby W’s family) and H rapidly spilled over into the divorce and became a proxy war in the Family Court” (§ 12);
  3. The financial proceedings began in September 2018. From the outset, this was high octane litigation: H applied (unsuccessfully) for an interim order for sale of the family home, interim maintenance (“maintenance pending suit”) and a legal services payment order. When the parties exchanged their financial statements (“Forms E”) H contended W’s business interests (i.e. 24% of the two family companies) were worth £2m; W asserted they were worthless;
  4. H applied for an expert to value W’s shares. Fatefully, this application was refused (per “§ 19 With the benefit of hindsight, in my view an expert report should have been directed. The parties were at least £2m apart as to the value of W’s shareholding. Liquidity was an issue. Even if non-marital (which was disputed), the illiquid capital was potentially a resource to take into account. The court must consider the whole picture; it is hard to see how the case could have been fairly determined without this evidence.).
  5. H appealed the decision not to allow expert evidence (which was refused on paper) and then appealed again.
  6. Meanwhile the parties locked horns on whether these shares were in any event marital (W contended that, as they had been gifted to her by her parents, they were non-matrimonial; H asserted they were marital and shareable; W said in which case she could (“as a shield not a sword”) raise allegations of H’s misconduct); they also engaged in issues relating to alleged misappropriation of monies due to the children;
  7. At a pre-trial review, the court belatedly ordered an expert to value the shares, and purported to restrict the specific issues of misconduct (excluding allegations of H’s alleged malfeasance)
  8. The final hearing (2-6 September 2019) overran. Indeed only W’s case was heard in those five days. The court directed a further hearing in November 2019 and controversially allowed further inquiry into H’s alleged financial misconduct (this went beyond the PTR recital of the ‘conduct’ issues). H invited the judge to recuse himself (refused), and then appealed this non-recusal and the direction for further inquiry;
  9. Mr Justice Mostyn granted H permission to appeal, which was listed before Mr Justice Moor on 24 January 2020 (causing a postponement to the November hearing). Moor J allowed H’s appeal against the judge’s handling of the hearing but refused the recusal appeal: the hearing was remitted back for final hearing before a different judge. Moor J directed that if W intended to rely on conduct it must be specifically pleaded.
  10. H was dissatisfied by Moor J’s direction that allowed W to enlarge her ‘conduct’ argument, or the recusal decision, and appealed to the Court of Appeal (who refused permission). An FDR took place before Cohen J and a fresh 5-day final hearing was listed before Robert Peel QC (DHCJ).

At this point, it is worthwhile drawing breath and noting how litigation can get out hand. This was not a case where one party was always in the wrong. H’s application to instruct an expert was initially refused but ultimately succeeded. His appeal against the original trial judge’s handling of the September final hearing was successful (albeit not on every ground). Against that, there were numerous applications and hearings – 13 in total – where H was not successful.

However the parties’ costs, funded by litigation loans, rose inexorably so that by the final hearing in May 2020 the “only asset of significance is the proceeds of the FMH [former matrimonial home] of which £630,000 remains” and the parties costs amounted to £214k (W) and £251k (H) – excluding other liabilities. In addition, W held her shares (which the court valued on a ‘quasi-partnership’ basis, i.e. without discount, at £320k), H had pensions worth £500,000 and W had pensions worth £229,000.

Outcome and two legal points

The court’s decision was that the proceeds of sale of the FMH should be divided £337k to H and £220k to W. Net of costs, this would leave H with £5,423 and W with £5,368. This would enable H to rehouse for £250k using his mortgage capacity of £128k and £125k he could commute from his pension (§ 80). W had a mortgage capacity of £132k but the court was satisfied that her family would assist to buy suitable accommodation, and proceeded on the judicious encouragement/ Thomas v Thomas basis (§ 81).

Two points of legal interest may be noted:

(a) Stretching resources

Firstly, the court cited with approval the time honoured guidance of Thorpe LJ in M v B [1998] 1 FLR 53 (paramount consideration of ‘stretching resources’ to meet both parties housing needs where possible’) but commented:

[76] In Piglowska v. Piglowski [1999] UKHL 27Lord Hoffmann, commenting on M v B, said: “This is a useful guideline to judges dealing with cases of a similar kind. But to cite the case as if it laid down some rule that both spouses invariably have a right to purchased accommodation is a misuse of authority.” Although not an iron rule, to my mind the dicta in M v B apply self-evidently in the majority of cases, and certainly in this one.

(b) Judicious encouragement

The court reviewed the law on judicious encouragement (i.e. seeking to persuade W’s family to provide financial support) and applied the following principles:

(i) The starting point is that there is absolutely no obligation on a third-party family member to provide funds from his or her personal resources. As Holman J vividly said in Luckwell v Limata [2014] EWHC 502 at para 6: “I wish to stress with the utmost clarity that neither the wife’s father nor her mother are under the slightest legal obligation whatsoever to pay a single penny to, or for, their daughter, nor their grandchildren, nor, still less, their son-in-law.” This statement is wholly consistent with law and fairness. The court’s function is to distribute the parties’ resources, not the resources of wider families; see paras 66 and 67 of Alireza v Radwan [2017] EWCA Civ 1545.

(ii) That said, on occasions wider family members may show themselves prepared to assist, willingly and under no pressure from the court to do so. Two distinct scenarios spring to mind;

(a) Whether a spouse’s family will be likely, if requested, to come to his or her aid in meeting specific needs personal to the spouse in question and;

(b) Whether a spouse’s family will be likely, if requested, to come to his or her aid in making a payment to the other spouse to assist in bringing financial remedy proceedings to a conclusion.

(iii) The first scenario is not uncommon. If means are available, the wider family, although under no legal obligation to do so, may willingly help with buying a house or meeting income needs if the alternative is homelessness and penury. But the evidence of willingness to do so must be clear. Mere speculation, or optimistic assumption, is insufficient.

(iv) The second scenario is rarer, for obvious reasons, although it can unlock cases and bring about settlement. For example, the family of a spouse may offer to pay the receiving spouse a lump sum to avoid sale of the marital home. Again, in my judgment, there must be clear evidence to justify such a finding. Speculation and optimistic assumption will not suffice.

(v) The court should not place pressure on the third party who is perfectly entitled to decline to provide support. As Deputy High Court Judge Nicholas Mostyn QC (as he was then) said in TL v ML [2005] EWHC 2860 at para 101:

“The correct view must be this. If the court is satisfied on the balance of probabilities that an outsider will provide money to meet an award that a party cannot meet from his absolute property then the court can, if it is fair to do so, make an award on that footing. But if it is clear that the outsider, being a person who has only historically supplied bounty, will not, reasonably or unreasonably, come to the aid of the payer then there is precious little the court can do about it.”

The judge was there addressing the second of my suggested two scenarios, but in my view his remarks apply with equal force to the first scenario.

(vi) In either scenario, where the evidence shows, to the requisite standard of proof, that third party family members will likely provide financial support to one or other of the spouses, that, in my judgment, constitutes a resource that a court is entitled to take into account. To do otherwise would be artificial. As to the sort of evidence which the court will evaluate when deciding upon the likelihood of future assistance:

(a) Usually the court will look to see whether bounty has been provided in the past, in what quantity and over what amounts of time, as evidence of a pattern.

(b) Additionally, the court can look at specific offers of long-term future financial support made to a spouse before or after marital breakdown.

(c) Offers of interim provision to tide the spouse over with assistance towards legal fees and income needs during the period of litigation will be of very limited evidential relevance to the question of whether long-term future support will be forthcoming. Usually such payments are transitory in nature, designed to assist the recipient spouse with the demands of the litigation.

(d) Absent clear evidence establishing (i) a track record of historic payment and/or (ii) reliable representations of future subvention, the court will be hard pressed to be satisfied of this class of resource.

Ultimately, however, the judgment resounds with the quotation that appears in the DMLR:

§98 This self-defeating litigation is now over. It is scarcely credible that at the end of it all, they emerge with about £5,000 each of liquid assets, having incurred nearly £600,000 of costs, but such is the reality. There may be worse examples of disproportionate and ill-judged litigation, but none spring readily to mind.

Alexander Chandler, 7 June 2020

Categories
Law

Where the judge goes too far…

Serafin v Malkiewicz [2020] UKSC 23

It isn’t easy being a judge. It isn’t easy getting to grips with the factual and legal complexities of a case, listening to evidence, weighing up the parties’ cases and reaching findings of fact on credibility. The task is more difficult where a case is badly or incoherently pursued, or where one or more parties acts in person. (Those two categories are not mutually exclusive). Or where a judge is faced with the pressures of an inadequate time estimate for a hearing, additional cases being added into the list or the occurrence of one or more of Sedley’s Law of Bundles.

Judges tempers occasionally snap. They are, after all, human.

However, sometimes it goes well beyond that.

Serafin was a claim for libel arising out of articles published in a Polish language newspaper (Nowy Czas/ New Time) which called into question the claimant’s reputation as a businessman.

The trial took place before Mr Justice Jay in October/ November 2017, best known for his role as leading counsel (as Robert Jay QC, prior to his appointment in 2013) for the Leveson inquiry.

By the time of the trial, the claimant (Jan Serafin) was acting in person; hardly an easy proposition in a libel claim involving considerable legal and factual complexity (the article in dispute was alleged to have had thirteen defamatory meanings/ imputations (titled ‘M1’ to ‘M13’), listed before a High Court judge in the QBD, and where the claimant’s first language was not English.

Once the wheels of justice had finished grinding, the claim was dismissed in its entirety. Mr Serafin (who re-instructed his lawyers) appealed to the Court of Appeal on three main grounds, the last being the judge’s conduct of the trial (i.e. ‘serious procedural or other irregularity’: CPR r.52.51(3)(b))

Court of Appeal

The Court of Appeal (Lewison, McCombe, Haddon-Cave LLJ) allowed the appeal, both on substantive grounds relating to the trial judge’s legal rulings (which fall outside the scope of this blog [a.k.a. defamation is not my area of law]) including that the judge was wrong to find that the statements complained of were already in the public domain. The third ground (judicial unfairness) was addressed by the Court of Appeal in its judgment, in a passage (from §108 to 118) which begins, somewhat portentously:

“[108]…It is a fundamental tenet of the administration of law that all those who appear before our courts are treated fairly and that judges act – and are seen to act – fairly and impartially throughout a trial

The court reminded itself that it is wrong for a judge to descend into the arena and give the impression of acting as advocate (§ 110), before concluding that:

“[114]…It will be immediately apparent from reading these extracts (in particular the passages which we have underlined) that the Judge’s interventions during the Claimant’s evidence were highly unusual and troubling. On numerous occasions, the Judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying. One is left with the regrettable impression of a Judge who, if not partisan, developed an animus towards the Claimant.

The CA proceeded to annex extracts from the transcript, demonstrating the judge’s “serious transgressions”.

So far, so bad, from the point of view of Mr Justice Jay. While judges periodically see their decisions overturned on appeal, and on occasion find some (often veiled) criticism of their conduct in a given case, it is vanishingly rare for pages of transcript to appear, appended with criticism to a Court of Appeal judgment.

But in part due to the incoherence of the Court of Appeal’s order, the matter did not end there. On 3 June 2020, the Supreme Court weighed in.

Supreme Court

Law on unfair trials

Between §§ 37 and 46 of the court’s judgment, Lord Wilson reviewed the law relating to unfair trials:

[40] The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge’s interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that “interventions should be as infrequent as possible when the witness is under cross-examination” because “the very gist of cross-examination lies in the unbroken sequence of question and answer” and because the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”.

41.              In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the observations of Denning LJ should be read in that context; but that their interventions during oral evidence (as opposed to during final submissions) continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair.

42.              In Michel v The Queen [2009] UKPC 41[2010] 1 WLR 879, it was a criminal conviction which had to be set aside because, by his numerous interventions, a commissioner in Jersey had himself cross-examined the witnesses and made obvious his profound disbelief in the validity of the defence case. Lord Brown of Eaton-under-Heywood, delivering the judgment of the Privy Council, observed at para 31:

“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.”

43.              The distinction, drawn expressly or impliedly in all three of the cases last cited, between interventions during the evidence and those during final submissions was stressed by Hildyard J in para 223 of his judgment in the M & P Enterprises (London) Ltd case, cited in para 38 above. He suggested at para 225 that, upon entry into final submissions, the trial had in effect entered the adjudication stage.

In relation to the previously unexplored question of how the conduct of a trial might be unfair to a litigant in person, Lord Wilson added:

“[46] … Every judge will have experienced difficulty at trial in divining the line between helping the litigant in person to the extent necessary for the adequate articulation of his case, on the one hand, and becoming his advocate, on the other. The Judicial College, charged with providing training for the judges of England and Wales, has issued an Equal Treatment Bench Book. In chapter one of the edition issued in February 2018 and revised in March 2020, the college advises the judges as follows:

“8.       Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

59.       The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer.”

Training and experience will generally have equipped the professional advocate to withstand a degree of judicial pressure and, undaunted, to continue within reason to put the case. The judge must not forget that the litigant in person is likely to have no such equipment and that, if the trial is to be fair, he must temper his conduct accordingly.”

Lord Wilson concludes at § 49

[49].              What order should flow from a conclusion that a trial was unfair? In logic the order has to be for a complete retrial. As Denning LJ said in the Jones case, cited in para 40 above, at p 67,

“No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.

As with the Court of Appeal, the Supreme Court’s judgment concludes with several pages of juicy extracts from the transcript, with the Supreme Court’s commentary which is perhaps unique in an English case (“…stops a relevant question”, “…introduces a note of sarcasm”, “… further sarcasm”, etc.)

Conclusion

So, beyond the extraordinary facts of the case, and the (possibly unique) example of a High Court judge being defenestrated in such a public way, what is the interest in the case for a family practitioner?

  1. Serafin contains a helpful precis from the highest court in the land of the expected standards of judicial conduct of trials (§ 37-46)
  2. In Serafin, the court considered to what extent this applied (or might be extended) to litigants in person, by reference to the Judicial College’s Equal Treatment Bench Book.
  3. Most of all, Serafin is a good example of the rule of law and how the adversarial system works in practice. As Lord Denning once said (cited with approval by Lord Wilson in Serafin): “No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Alexander Chandler, 3 June 2020

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A Day In The Life…

A Day In The Life… (August 2016)

What is your position and what you do on a day-to-day basis?

I am a barrister and arbitrator at 1 King’s Bench Walk, specialising in financial remedies and TOLATA claims. I sit part-time as a Deputy District Judge in London in civil and family work, and as a panel member on the Bar Disciplinary Tribunal.

How long have you been in this role and what brought you here?

I’ve been a barrister for 20 years and have been sitting for 4 years. The thought of being called to the Bar didn’t occur until after graduation: up until then I vaguely imagined that I’d be a historian, or possibly a critically acclaimed singer-songwriter. I did my 12-month pupillage at 1 King’s Bench Walk, before joining 1 Garden Court as a tenant in 1997. Sixteen years later, in 2013, I rejoined 1KBW.

What are the people you work for/with like? Any memorable stories?

I’m lucky to have worked with, and been instructed by, intelligent and interesting people throughout my career, many of whom have become friends. In the early years of my career at 1 Garden Court – a time of plentiful and decently paid legal aid work – the junior end would go on holiday together, causing unappreciated havoc in a clerks room denuded of barristers under 10 years call. I am now happily settled as a member of 1KBW which, as well as being a leading set for financial and children work, has to be one of the most sociable chambers in the country.

In terms of lay clients, I don’t think I’ve ever acted in a dull TOLATA claim or an uninteresting ancillary relief. It is easy to take for granted the privileged position we are in as solicitors and barristers in family law. All human life is here, including the Russian wife of an oligarch who (after I had attempted to be gallant by hailing her a taxi on the Strand) said in a deadpan voice, ‘Is not necessary’, as her chauffeured Bentley drew up.

What is the best and worst part of the day for you? 

As a barrister, it helps if you like early mornings. I travel less than I used to, but I still enjoy getting to the train station at 7am, dosing up on coffee and boarding a train that was crammed with commuters on the way in, but is now almost empty as it goes out. Equally, it’s a pleasure to come back from court and have time to read on the way back home and to check my Twitter feed (@familybrief).

Without wishing to sound sappy, I don’t have a worst part of the day. Having said that, I doubt I’ll look back on being regularly woken up by a child kicking me forcefully in the jaw, with great fondness.

What adjectives best describe you?

My middle daughter was recently asked this question at school. Her reply was ‘strict, playful and tall’. To which I would only add: ‘… and committed to tirelessly achieving the best possible outcome for my client, regardless of the personal sacrifices involved’ (if any prospective instructing solicitors are reading).

What keeps you motivated?

Doing a professional job, broadening my understanding of the law, and pushing myself towards greater clarity and precision. I believe the applicable term is ‘kaizen’, according to my studies of Japanese philosophy (ie reading the blurb on the menu at Wagamama). 

I also keep in mind a story Matthew Brunsdon-Tully relates about how Lord Wilson used to tell his pupils: ‘you’ve got to make the papers sweat!’. That really is the key: being on top of your brief. 

Tea or coffee?

Coffee before 11am, tea afterwards. 

In fact, that’s a rule more honoured in the breach. My eldest daughter (now six) recently drew a cartoon called ‘The man who drank too much coffee’. In it, a woman who is possibly my wife says ‘No more coffee!’, to which I, sitting with my head in my hands, cry: ‘NO! I must have coffee’. The story ends happily. 


What would you say to anyone thinking of a career in your field?

It isn’t easy to come up with original advice. The two clichés that always apply are (1) the profession is more difficult to break into than it used to be, so don’t bother unless you are determined but (2) keep at it if you are. 

To which I would only add, keep humble. Don’t approach the law as if you’re a contestant from X-Factor. 


What song do you listen to the most?

According to iTunes, my most listened song is ‘War on War’ by Wilco. Followed by ‘For a Spanish Guitar’ by Gene Clark. (Full list available on request. I can, quite literally, bore for England when it comes to music.) 


How do you enjoy your time outside of work?

The first casualty of having children (I have three) is your social life, followed by newspapers, relaxing holidays and a car that is smaller than a tank. 

In their place (the activities, not the children), my weekend rituals involve taking the children to Kew Gardens, running the Tamsin Trail around Richmond Park, reading and cooking. Thus far, my midlife crisis has involved me entering half- and now full marathons in day-glo colours. 


If you could change one thing about the family justice system what would it be and why?

While I enjoy TOLATA work, it is simply ridiculous that the financial claims of unmarried couples are determined by reference to trust law, where the court’s objective view of a fair outcome has such a limited role. I would favour a change in the law towards the Scottish model of cohabitee rights. 

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A Short Explanation

This website is meant to be two things.

  • Firstly, an online library of the articles I’ve written over the years. These can be found in the menu.
  • Secondly, as a legal blog for financial remedy work. Let’s see how that goes.