Marilyn Stowe Blog

When only the High Court will do

Hindsight is a wonderful thing

My last post concerned a court case which turned into a disaster. My colleagues in our Children’s Department have told me that in these complex cases, the court system, especially in the lower courts, isn’t always equipped to cope, not least as there may be long delays in finding court time to hear the case.

Our court system is far from perfect. There is also not only a lack of court time, but very often a lack of funding for the parties and the requisite experts, and there is an acknowledged shortage of experienced judges to hear such cases.

My advice on the previous post was that case should be immediately transferred to the High Court, because once there, I have found generally (but not always) time can be found if urgently required, with more expertise at the helm.

When exactly should cases be transferred to the High Court?

On 3^rd November 2008 the President of the Family Division issued a Practice Direction (2009 1FLR 365) in relation to allocation and transfer of proceedings to the High Court. The stated intent is to ensure that the criteria for the transfer of proceedings are applied in such a way that the proceedings are heard at the appropriate level of court, and that “proceedings are only dealt with in the High Court if the relevant criteria are met.”

Reference is made to “timeliness” with the intent being to avoid delay. But that is not all that matters. At para 5.1 the requisite criteria are set out in domestic child related cases and finances and at 5.2 other matters such as cases involving complex foreign elements. Interestingly it also states: “proceedings will not normally be suitable to be dealt with in the High Court merely because of …intractable problems with regard to contact” – but that makes sense. Only the most serious cases need to take up the valuable time of the High Court.

Such a situation arose recently in a financial case. In P-v-P (2009 1FLR 696) (ironically heard in the month before the issue of the practice direction) there was a 34-year marriage, two adult children and an agreement between the parties for a clean break with their assets to be equally divided. The true valuation of their 41% interest in a private company held in a discretionary trust proved to be difficult to ascertain. The overall asset base was estimated at about £5million but in view of the complexity of the valuation both parties sought a transfer of the proceedings to the High Court.

The district judge refused to make the order.

Thereafter things degenerated into a court-managed fiasco. Adjournment followed adjournment and the valuation finally obtained via a single jointly appointed expert of £730,000 appeared to be hopelessly at odds with an offer for the shareholding of between £2.4m and £2.8m by the other significant shareholder. Time passed by, and the case finally came before Mrs Justice Baron on an interim point on 23^rd October 2008, over four years after the marriage came to an end.

She issued this advice: “Where parties consider that the case merits a High Court judge, it would seem to me that a district judge should be slow to retain the case. Moreover if a district judge decides to retain the case, parties should appeal that direction if they consider it to be wrong.”

Hindsight is however a wonderful thing. Cases in the region of £5million are routinely dealt with in the court below and presumably the district judge thought at the time, that a valuation would not prove too difficult to obtain, and the parties had agreed an equal split. Presumably the parties too thought on balance the issues could be worked through and that the added expense and potential additional delay in the High Court dealing with a routine case, simply wouldn’t be worth it- it’s hard to say.

The overall point however, is made in the Practice Direction. There are cases, both in relation to finances and children that should be heard in the High Court. If you think this may apply at any time to your case, don’t hesitate to ask your solicitor to consider carefully with you all the potential advantages and disadvantages of a transfer and an appeal if it is initially refused by the judge.

Not every case is worth the additional costs, and not every case would benefit from a transfer or be necessary – but, with the benefit of hindsight, it is clear that some cases – from a specific point – should never been heard anywhere else and justice would have been better served.

Photo credit: balloon58 by Kentfield

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4. McCartney divorce: Lucky Heather Mills?
5. Checkmate!