"If you walk through the courtroom door, the outcome cannot be guaranteed”
June 18, 2010 2 comments
I have been reading a judgement that has recently been handed down by brand new appointment to the High Court Bench, Mr Justice Mostyn. I have been eagerly looking forward to what he has to say from the Bench and I’m pleased to say he certainly has not disappointed this reader. In this case he touches upon a subject that is often considered taboo, namely the competence of some of our judiciary. I should emphasise from the outset my own belief that the vast majority of our judges are indeed highly competent and experienced.
But Mr Justice Mostyn appears to be unhappy with the actions and findings of a District Judge below in a bitterly contested children case. That the case was fraught with difficulties, there is no doubt. But it is the manner in which it was dealt with by the judge that concerns him.
This case included a total of 17 days of hearings over a lengthy period. Thirteen other witnesses gave evidence, there were 300 pages of handwritten notes, a court transcript of the evidence running to over 1600 pages, and costs estimated at £120,000 for the father, who was paying privately. Similar sums were spent on the legal aid budget for the mother and the court-appointed Children’s Guardian.
It is unusual for an appellate court to set aside findings of fact in the lower court on the basis that the original judge is in a unique position to make those findings, having actually heard all the evidence. However, Mr Justice Mostyn set aside all the district judge’s findings and then enquired whether it was legitimate for him to conclude that “there was in fact no purpose to the inquiry at all”.
So it seems that nearly £400,000 – including a substantial sum of taxpayers’ money – was spent on a completely useless exercise. Ouch!
A High Court Judge is in a position to make his concerns about a particular judge public – as he should when the occasion warrants in order to retain public confidence in our legal system. It is important for all of us, within and outside of the legal system, to have confidence in the abilities of the judiciary and to speak out on the occasions when judges do not appear to meet the standards we expect of them.
My concern is along slightly different lines. From time to time practitioners have concerns about the decisions made by a judge, not usually in such spectacular circumstances, but when they appear to lack uniformity in line with decisions of other judges at the same level in the same courts, or elsewhere. If a judge’s decision is “plainly wrong” in terms of the case itself, then an appeal is probably the answer. But not always. The Judge may not be “plainly wrong” but the decisions coming from that judge still attract overall criticism because they are markedly dissimilar from the outcome before different Judges.
I recently attended a family law conference at which one experienced barrister, who sits as a judge himself, expressed concerns about judicial abilities lower down the scale. He told the conference audience how, when advising his clients in one particular city, when there might be 12 judges sitting on the same day, his advice would boil down to these words:
“If you walk through the courtroom door, it is a lottery as to which judge will deal with your case, and there is no guarantee as to what the outcome will be. My advice to you is DON’T walk through that door. Settle your case now.”
The standard and quality of judges making vital decisions that will affect people for the rest of their lives can not only sometimes differ from city to city, but sometimes, from room to room within the same courthouse.
One reason why I became a solicitor is that I don’t enjoy handing over control of my client’s case to an independent third party, who has to make a decision that must be fair to both sides and the outcome may not even be predictable. I much prefer to reach an out of court settlement, on terms that my client and I have negotiated together with the other side, and with which both parties are happy. The client can move on, with a tailor-made settlement – and preferably without the memory and cost of an unpleasant courtroom battle haunting them. They are better placed to establish a relationship with their former spouse that is at least cordial.
For most cases judicial input is required at the outset in order to set the timetable for the case, with the aim of keeping control of it. In financial cases within a divorce, the procedure itself is “front loaded” in terms of time and costs. This means that when a new client instructs us, a great deal of work will need to be done in order to begin to shape the case for the future. That is particularly so where the spouse is likely to be obstructive in relation to disclosure. Experienced judges do recognise and understand the problem.
In London last week at the 1KBW Party, I heard about one case where a QC and junior barrister had compiled a 100-page, 1000-question questionnaire to start a case. In the Principal Registry in London the questionnaire was allowed in its entirety. If it had been the provinces, however, this could have caused some problems particularly had the case come before a deputy district judge. The Questionnaire may have been allowed in its entirety – or it may not. Some questions may have been allowed by one judge, different questions by another.
I have additional concerns about the decision making abilities of some part-time deputy district judges, who sit in the first tier of the system and are expected, unfairly I believe, to deal with complicated family law issues. Even when they have insufficient experience of the issues, they deal with them in order to get through the court’s caseload within the time scales allotted by the court. Some of these deputy judges have little or no family law background at all. If certainty and uniformity is one aim of our justice system, deputies do not always provide it.
Some deputy judges are sensible enough and indeed brave enough, to decline the challenge, rather than make a mistake that could have a serious impact on a technically complex case. However in some cases they decide(or believe they have no choice), but regrettably, to plough on, whilst complaining about the workload. Then it can become necessary to salvage the outcome. In cases involving difficult children matters, or the investigation, determination and distribution of millions of pounds between couples, this should not happen. But I am afraid sometimes it does.
In our court circuit in Harrogate, there was a court report produced in 2007 (York: Family Courts Report, April 2006-March 2007), which commented specifically on the amount of additional work that our family law firm had introduced to the court. Sensibly, the court administrators have dealt with this situation by ensuring that there are almost always two full-time district judges available to deal with the vast majority of our work. They adjudicate at every stage of a case, and the judges have seniority and experience. Consequently we can be confident that our clients’ cases will be met with the skill, expertise and objectivity they require the outcome being uniformity and certainty. That is not to say these judges do not give us an easy ride, and nor should they. They are demanding and perceptive, applying high standards. So much so, that in one recent case involving the hearing of a contested children application, in which both clients and the children were living in Southeast Asia, both parties (the other being represented by London lawyers) were content for the Harrogate court to adjudicate. The outcome resolved the problems that the parents had encountered in every respect.
However up and down the country, as practitioners know only too well, outcomes cannot always be predicted with confidence – and we witness the lottery that the barrister at the conference described. This is a prickly and difficult topic, one which practitioners do not usually have the opportunity to air in public for fear of offending the judiciary. But if concerns in relation to the lack of uniformity and certainty are not made public, they are unlikely to be fully addressed or corrected.
June 18, 2010
Categories: Family Law