Sir Nicholas Wall said:

“Allegations of sexual abuse were first made by the mother and not by X [the child]… X was coached by the mother to make allegations of sexual abuse against the father.”

He explained his decision to sit in open court as follows:

“The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

Now the father has been publicly exonerated in national news reports. The damage done to him has been corrected, although I expect that there will always be some people who believe him guilty. That is the way of the world. The child now lives with him, and Vicky Haigh may make no applications to the court about the child for two years. She is living in Ireland, having given birth to a second child there to evade concerned social workers.

Vicky Haigh’s sexual abuse allegations were examined and rejected by two judges at previous High Court hearings, which took place in private. However the allegations were also repeated elsewhere. Yesterday Sir Nicholas Wall sentenced Elizabeth Watson, a private investigator engaged by Vicky Haigh, to nine months’ imprisonment for contempt of court.

Sir Nicholas Wall said that Vicky Haigh had been “wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others”.

The Court could not have come out more strongly against Vicky Haigh and her supporters. There will still be those who side with her. As for me: based on what I have read in the newspapers today, I find this to be one of the most repugnant cases I have ever come across.

I am sorry to say that it is not the only case of women behaving badly that I have encountered. Over the years I have, on occasion, come across other women who are prepared to stoop this low. There is, perhaps, a taboo about discussing women who behave badly. But during a family breakdown both sexes can behave towards each other with conduct so bad, it beggars belief. So in this post, which I understand is likely to prove contentious, let’s look at how women can behave. Fortunately such cases, in common with those of men who stoop similarly low, are rare.

Sometimes, I have found myself acting for a less sinister version of the mother whose conduct was laid bare in the High Court yesterday. At our first meeting she will tell me, in graphic detail, about her suffering at the hands of her monster of a husband. She and the children are at his mercy. She will be intelligent and persuasive. However as the case goes on, and the excuses for not settling come thicker and faster, it becomes apparent that far from being the victim, she is in fact in complete and utter control of the family’s situation. For example, she will do all she can to ensure that the father never sees his children at all. She will make arrangements for all their free time. She will have ready excuses for why he can’t have the children for contact when he comes to collect them. She will always blame him for this state of affairs, ultimately because of what he has done to her. It will never, ever be her responsibility. Perhaps she makes him jump through hoops of fire because he has left her, and this is “payback time”. Perhaps she feels that she hasn’t had enough money from him, so he must pay.

In such cases, there is little doubt that once I twig what is really going on, and the extent of her determination to stop him seeing his children becomes clear, she will likely part company with our firm. We cannot continue to act for a client who is playing out a charade for revenge, who lacks insight, and who has no comprehension or concern of what she is denying her own children: the right to a relationship with their father.

Such people portray themselves as victims, their partners as predators when nothing could be further from the truth. The perceived wrongdoings in a relationship should have as little impact upon the children as possible, but every effort we may make to resolve the situation falls on stony ground. This particular client has no intention of settling with the father, none at all. The intention is to completely alienate the children from the other parent.

(Don’t overlook the fact that even if we don’t see eye to eye with a client, another firm of lawyers will. An individual will have his or her own version of what is happening, and everybody has the right to have a case heard by the court – which is as it should be.)

I have also acted in two cases of a type rarer still, for innocent fathers who never faltered in their accounts of what had happened. In one case, the mother made an allegation of paedophilia -whereas it was the mother herself who was the paedophile. She had lost control of herself and, emboldened by all the steps the court and social services were taking to protect the children from the father – removing him from his home and allowing him the strictest possible supervised contact – she sexually assaulted one baby on a day when the father could conclusively prove that he’d had no contact with the child. The children were ultimately removed from the mother by social services, and placed with their father.

In another case, the father had to move out of his home following allegations of violence, which he disputed. There followed an arduous battle for contact with his children. Ultimately the father was successful, but the struggle wore him to a frazzle. It was a lengthy case, and our firm ended up doing the last part of it pro bono. The mother made all the nastiest allegations that she could, did all she could to avoid giving him any contact, then permitted only the most limited contact. She almost got away with it, hoping he would give up – but with our support, he did not.

There are, I am very sorry to say, those who are so driven by a desire to punish their former partners that they will do anything to hit back. Anything at all.

The problem is that it is much easier to believe these types of allegations, because in certain cases, they are true. There are fathers who do abuse their children. And because the allegations can be true, we think they must be true. We desperately want to protect the innocent children who are at risk.

And these accusers know it. So do the courts and social services, who need no reminding of obligations that can make front-page news. They have to make decisions in cases where the “facts” may not exist at all or can be swept away, if examined with greater care. But how many courts and local authorities have all the resources to do this? They struggle to do their best. And they are not helped by these types of cases.

Such cases remind me of the circumstances I came across when I became involved with Sally Clark’s case. Sally Clark finally walked free from court on her second appeal against convictions for murder of her two babies, three years after her original conviction. Because two babies died in her care, it was argued, they must have been murdered. And she must have done it. The jury and even the Court of Appeal agreed. Only after the most careful digging, to unearth what had really happened, did the truth come out.

And that’s the problem. When serious allegations are made against an innocent man, the tendency is to believe that “there is no smoke without fire”. His back is up against the wall. He can have the entire system ranged against him, as two of my clients did.

Thankfully in the Vicky Haigh case (and in my clients’ cases too), justice has ultimately been done. A wicked vendetta and a misguided campaign have been caught and stopped.

The price that may ultimately be paid, if social services and the courts relax their vigilance and get it wrong, is by a child or another parent. And how easy it is, to get it wrong.

UPDATE 05/09/2011: The judgments have been published in relation to Ms Haigh and Ms Watson. After applying to purge her contempt, Ms Watson has now been released from prison. Instead, a  two-year suspended sentence has been imposed by the court.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) (22 August 2011)

and

Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (29 August 2011)

Image credit: Toulouse-Lautrec.

When the second wife of Russian oligarch Boris Berezovsky was granted a “quickie divorce” at the High Court last week, Frank was contacted by a number of journalists for expert comment and analysis. His comments, about the Berezovsky case and also about the UK’s much vaunted reputation as the “divorce capital of the world”, have since appeared as far afield as Russia and Australia!

Divorce tourists face judicial rethink

Frank Arndt, head of international practice at Stowe Family Law, said: “There is a perception that wives can achieve a fairer settlement in England and importantly there are obligations here for full and frank disclosure of assets belonging to one party, which there may not be in some countries. Often husbands see divorce as a business deal and look at which jurisdiction is best.” Continue reading»

Boris Berezovsky’s wife granted “quickie divorce”

Frank Arndt, a lawyer at Stowe Family Law, which specialises in big money divorces, said: ”The Berezovskys were married for 18 years, have two teenage children and, although estimates of the couple’s fortune vary, it is indeed likely that any settlement eventually awarded to Mrs Berezovsky will dwarf the £48 million awarded to Beverley Charman in 2008.” Continue reading»

London seals reputation as divorce capital as oligarch faces £100 million payout to ex-wife

[Frank] Arndt said Berezovsky may use what is known in the legal profession as the “stellar or genius” argument used by Charman, in which he said his wife had made no financial contribution to the fortune he had built up in the insurance market during their marriage. His case resulted in a discount from the 50:50 position: a high court judge ruled Charman should have 63.5% of the couple’s wealth rather than half because of his special contribution to building it up and because the assets he was keeping were riskier than those which went to his wife.” Continue reading»

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.

The judgment in the latest installment of the never-ending divorce saga that is McFarlane  v McFarlane, (2009 EWHC 891) landed on my desk yesterday morning. A judgment from Mr. Justice Charles, it is characteristically lengthy. Thirty-five pages in length, it takes a long time to read . It takes even longer to consider the meaning and impact, this judgment being his Lordship’s interpretation of what the House of Lords may have had in mind (but never expressly stated) by a “deferred clean break”, payable at some stage in the future, by Mr McFarlane to his former wife.

I was in two minds whether to write about the latest twist; after all, what relevance does any of it have to those of us who live relatively modestly in the real world? However, this case has wider implications. It reminds me of a seesaw. On one end: the stay-at-home wife and her children. On the other: the working wife and her children. In the middle, sliding from one end to the other: the husband. Does English family law substantially favour the stay-at-home wife, at the working wife’s expense? Does it curtail a second wife’s freedom to leave her job and become a stay-at-home mum?

Let me explain. The McFarlanes litigated themselves all the way to the House of Lords in their original divorce. They split their capital roughly 50:50. Both came away with about £1.7 million. Both purchased substantial properties for more than £2.5milllion apiece.

In Europe the wife’s claims would have ended there. In England and Wales, however, Mrs McFarlane’s income needs still had to be met – and at the time there was insufficient capital to provide a clean break divorce. (NB. If any case shows how important it can be for a husband to try and obtain a clean break settlement in his divorce, it is this one!)

The divorce was dragged through four courts, yielding various decisions about the ongoing maintenance to which Mrs McFarlane was entitled. Her actual needs were estimated at £150,000 – £180,000 per annum. However the final arbiter, the House of Lords held that, as she had given up her career as a solicitor to care for the couple’s three children, she should receive more in recognition of her lost earning capacity. The House of Lords confirmed a higher award of £250,000 per annum, substantially in excess of her needs – with no cut-off point.

The words “relationship-generated disadvantage” became a buzz-phrase, until Mr Justice Coleridge pointed out that the phrase did not actually exist in statute. This prompted the President of the Family Division to issue a clarification in which he made it clear that in big money cases, the issue of “relationship-generated disadvantage” would arise simply as a strand or element of fairness. Precisely!

Mr McFarlane has remarried, to a partner at his accountancy firm. They have a son, who is now three years of age. Mr McFarlane’s career has continued to flourish. In 2007, one year after the House of Lords’ judgment, his former wife issued an application to the court for increased maintenance for the children, who are now aged between 13 and 20. She subsequently applied for an increase for herself and capitalisation of her maintenance claims. Last week the judgment was handed down…

The court has a duty to consider if a clean break is possible; if so it can, if it wishes, order payment over a term of years after which a clean break will occur. That is what Mr Justice Charles did, but he made an order to fund an eight-year, deferred clean break, all payable out of the former husband’s post-divorce income – to which his second wife contributes, and his first wife does not.

From 25 June 2007 (when Mrs McFarlane issued her original application for an increase), Mr McFarlane must now pay his former wife:

40% of his net income up to £750,000

20% of his net income up to £1 million

10% of his net income thereafter, until 31 May 2015 when maintenance stops and Mr McFarlane retires.

The judge calculated that this would give Mrs. McFarlane an unearned tax free income just shy of £350,000. As he backdated the award by two years, there will be the differentials to pay for those two years as well. In eight years’ time she could have received around £2.5 million.

What a whopping award! It makes you wonder why Mr McFarlane doesn’t just throw in the towel and live off his second wife’s income. It also makes you wonder how hard it is to earn this kind of money – and if this is sufficiently appreciated by the court. It certainly doesn’t grow on trees if all those professionals I represent or see on trains and planes, sweating profusely, banging on laptops, e-mailing and making non-stop mobile calls on a 24/7 basis are anything to go by!

From now on, the first Mrs McFarlane must have one of the highest unearned, tax-free incomes in the country. It amounts to £200,000 more than her needs as found by the Court.

So I ask myself the question: is the carve-up of Mr McFarlane’s income truly representative of “fairness”? Is this what the House of Lords intended? I ask this because in the same case, the High Court and the Court of Appeal were far less generous to Julia McFarlane. I must say, I find it hard to see why there should have been an adjustment in the current payments.  The wife’s compensation claim is one strand in the element of fairness.

Turning back to the seesaw: we must not forget the very substantial contribution of the second wife to Mr McFarlane’s post-divorce income, running the home and – as the judge acknowledged – taking on the brunt of the couple’s childcare while holding down her top-flight job as a senior partner at Deloitte.

I am certain that many first wives will rejoice at the huge financial success of one of their number. No doubt there is considerable sympathy for a wife who has been abandoned with children, and relatively little sympathy for the second wife. But several years ago the first Mrs McFarlane came out of the marriage very well, financially. She has now done even better, long after the divorce. One may feel that by now, she could – and should – be providing far more appropriately for her own future, off her own bat.

Second wives are frequently castigated by the first family, and are frequently left to bear the brunt of the marital breakdown alone. The husband sits helplessly in the middle of the seesaw. Second wives have complained to me that their husbands never overcome the guilt of leaving their first wives. Instead, these men allow themselves to be turned into tireless “dogsbodies”, to try and demonstrate to the world that they are nice guys after all. Meanwhile, first wives complain that these men are under the thumbs of their second wives and do not pay as much as they should to them and their children.

In many cases, the second family’s standard of living slips. The pressure to keep earning, to keep two families living well on one income means that a second wife can have no choice but to keep working. Her desire to stay at home and look after children can be thwarted by the large monthly payout to the other household. The resulting bitterness, pressures and remonstrations – “why is she doing nothing with her life, when I’m working like this to keep them in luxury?” – can destabilise even the strongest second marriages.

I wouldn’t dream of denying Mrs McFarlane her fair share. However from a personal perspective as a working wife and mother, who has always contributed to the family budget, overall I believe that Julia McFarlane’s latest award is excessive. I also believe that it pays scant regard to the impact of this award, in a number of ways, upon Mr McFarlane and his second family.

Image credit: rachelvoorhees.

This speech has been widely commented upon, and I have noticed that responses from members of the public tend to fall into one of two categories. Either they back his views about marriage, or they simply dismiss what he says because they believe that he has failed to move with the times and fails to understand the new types of family that are in existence today.

My own view is straightforward. Society has changed beyond recognition during the last 30 years. The family unit made up by a working father, a stay-at-home mum and two children is no longer the norm. Both parents now tend to work because they need or wish to do so. Couples are generally marrying later, if at all. Within many families, there are fewer children. There are different types of families now: there are many more step-parents and step children. There are same sex parents. Varying numbers of parents, grandparents and other relations now play their parts in children’s lives.

I don’t believe that law can stop family breakdown, but I do believe it can legislate for the consequences of that breakdown. And so back I come to my old soap box: we urgently, desperately, need law for cohabiting couples. I can only reiterate (again) that many cohabitants – including those who visit my offices – are horrified to discover that at present, there is little legal remedy available to them.

I would add this: when a marriage breaks down, the court must be satisfied about the arrangements for children before there can be a divorce. When cohabiting partners split up, no such provision exists. If there are any children, they slip under the radar. This simply isn’t right.

Speaking from personal experience, I cannot agree that Sir Paul Coleridge QC is out of touch. I was one of many solicitors who used to brief him on behalf of my clients when he was a barrister in practice at Queen Elizabeth Buildings in London. He was urbane, charming, funny and… brilliant. Clients adored his manner and the results that he obtained. He was never arrogant, unlike so many in his position; he was never selfish, boorish or unpleasant. When he went to the Bench and became Mr Justice Coleridge, I thought he went too soon. In my opinion it was a terrible loss to the family Bar in general, and to many of my clients.

I love being a lawyer (and I really mean that) because I believe that, in my own small way, I help people go through some of the worst times of their lives and come out the other side whole again. Yes, I also like to get paid. But the sense of satisfaction I feel from the thanks I receive, and from the practice that we have been able to build up because people trust us and know that we will do our best, far outweighs it all. I genuinely enjoy helping people. I enjoy having a gift for being a family lawyer – and I think it is a gift – when I am useless at many other things. That is why, through thick and thin, day in, day out when people suggest taking it easier, I never can and doubt I ever will.

I’m certainly not alone in this feeling. Thousands of other family lawyers out there share these motivations. Perhaps when you are a judge, this feeling that you are helping others goes. You do make decisions that affect people’s lives, but I’m not sure the same sense of self worth, the same feeling that you are doing your bit, remains. By crossing over from advocate to judge, you become part of the system. The nature of your contribution changes.

When I read Sir Paul’s speech I was a little sad for him, because he is such a brilliant man and although he feels deeply distressed and dispirited by what he sees as a High Court judge, there is little that he can do about it.

Working on family law’s frontline, I know that just as surgery cannot prevent disease, law cannot prevent family breakdown. I accept that. Day in, day out, like an ant, working alongside lots of other ants, I keep at my job and do what I can to help.

Image credit: Doug88888.

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

Will there be blood on the courtroom carpet this week?

As Sir Paul McCartney and Heather Mills face one another other in court this week, Sir Paul will be flanked by some of the country’s toughest lawyers. Ms. Mills, meanwhile, has elected to represent herself. To my way of thinking, having represented a client in a similar scenario only last week in London’s High Court, to go into court unrepresented is as foolhardy as anyone could ever imagine.

For those unfamiliar with the facilities at the Royal Courts of Justice, let me describe the atmosphere in the sombre courtroom. . Until a final deal is signed and approved by the Court, a fully fought contest could yet take place. Even an agreement reached “in principle” does not guarantee a done deal – and could still break down.

The courtroom is imposing. The High Court judge, Mr Justice Bennett, will sit on a raised dais, without robes or wig. Ranks of lawyers will be seated opposite him. The formidable Queen’s Counsel Nicholas Mostyn, who pulls no punches – he once fearlessly cross-examined an entire opposing team of lawyers, including one by video link while she holidayed in Japan – will sit on the front row. I do not expect him to spare Heather Mills. Behind them will be the barristers and solicitors.

The junior lawyers assisting with the case will bring up the rear. Teetering piles of files, all numbered and paginated, will be stacked on the desks. Individual sets will be placed before the judge, every one of the lawyers and both parties involved. Microphones will be suspended from the ceiling, for an accurate taped record of the hearing. The air will be cold; the atmosphere will be tense and thunderous.

When Heather Mills steps into this courtroom, she will face her husband, this menacing phalanx of lawyers ranged against her, and the judge – who will, I expect, keep the proceedings strictly private. It is only then, I suspect, that she will begin to realise what she is in for. In this courtroom, there will be no prisoners and if an agreement is to be made into a final order, she will be expected to sign up to a draconian agreement drafted by Sir Paul’s lawyers. In my experience there will be a lot of argument about the period of time over which payments are to be made. It isn’t easy for anyone – even Sir Paul Mccartney – to raise a multi-million pound settlement within weeks. It is in his interests to stretch it out as long as possible. In the meantime, agreement must be reached about paying interim maintenance and interest until the payment is made in full. Fine tuning will be needed so that the deal does not become imbalanced in one party’s favour. There will be declarations as to property ownership and contents, tax indemnities, warranties and assurances. There is also likely to be an agreed form of ‘gagging’ clause, – a tough negotiation in itself, if Heather wishes to continue to be a “celebrity”. Then there is child support and other payments for Beatrice. A lot of work must be done. For Heather Mills, the most important point of any consent order, is what is not included and needs to go in, to protect her interests. For Heather Mills to negotiate such an order on her own, pitted against a range of London’s top lawyers, would be lunacy.

But what if there isn’t a settlement? What would she be facing then? Ms. Mills will be up against those some legal brains, which have been finely trained in what is too often an unbelievably vicious process. She will open her mouth before a judge who will not shrink from making the most robust of judgments against her. And she will not be allowed to interrupt.

She seeks an enormous financial settlement, but she will have to put her emotions to one side and deal with her case by reference to the law. I doubt that even she appreciates how difficult that will be. All the fire will be directed at her. The Judge will listen courteously to her arguments, and he will assist her through this process, but at the end of the day, the Court will make a “reasonable” award, and no more. It is extremely unlikely that Heather Mills has the legal skills, or even the case, to come away with anything more than a “reasonable” figure – even if she hopes for more.

Indeed, if she decides not to settle, I think she is in great danger of receiving an award that is significantly less than the settlements that were allegedly offered on previous occasions. If the judge’s award is less than the amount previously offered by Sir Paul, she may also be ordered to pay her husband’s legal costs. The costs of this case are reportedly £2million on each side. Paying two sets of costs could significantly deplete any award made.

Admittedly, Ms. Mills’ experiences representing herself in court, up against her idolised husband and the pillars of the legal establishment, could have all the makings of a great film. She could even play herself as the heroine. However, I fear that single-handed battle in the High Court is a labour for which she is ill-qualified. Even if she does settle, she could succumb to an unbalanced deal that she will regret for the rest of her life. With this in mind, a movie version may end up resembling the McCartney Chainsaw Massacre – with Heather Mills as the victim.

“The client walked away with millions – and I used the case as the basis for a storyline in The Archers.”

The hardest cases – the tricky, nerve-wracking ones that need a bit of brain power – are always the most interesting. I like to play “intellectual chess”! One such case was when a client’s husband told her, out of the blue, that he was leaving. He complained that he was fed up with her spending, and claimed she was “sending him bankrupt’”. He refused to give her his new address, but told her to contact him at his business. She suspected that he was having an affair with her (newly divorced) best friend.

This couple enjoyed a lavish lifestyle. At their swish, £3 million home, they employed a groom, a gardener, and domestic help. The wife kept ponies in a paddock and stables, and the home also had a swimming pool and tennis court. There were no children. The wife, a former model, now passed her time horse riding. The husband liked to play golf and was often seen in the company of her best friend, who was also a keen golfer.

In “Big Money” cases, as with others, assets are identified, valued and divided up. In this instance, because the couple had been as poor as church mice when they had wed and their wealth had been built up during the marriage, a straightforward 50/50 split looked to be in order. When the husband’s solicitors wrote to me, however, it became clear that he loathed his wife.

The husband gave a different version of events. He insisted that his wife’s incessant spending had brought him to the brink of bankruptcy. His company was failing. The house was fully mortgaged, save for about £300,000. There were no savings. Around £50,000 had been run up on credit cards. There were no pension arrangements, as income had been swallowed up by his wife’s profligate expenditure. He had a decreasing income of £100,000 gross per annum. He offered his wife yearly maintenance of £40,000 – although he said that he was unable to guarantee this sum in the long term – plus the sum of £200,000 towards a house. His solicitors warned that if she did not accept his “generous” offer, he would take her to court and make her pay the costs. The parties had very different stories. Which of them was telling the truth?

In England and Wales, a party found guilty of “litigation misconduct” can be ordered to pay the other sides’ legal costs, even though the general rule is that each party pays its own. This meant that if my client litigated fruitlessly when she could have settled before proceedings were issued, she would have to pay her husband’s bill of costs. This would further reduce the pot she had been offered – and presented a real risk she could end up with next to nothing at all.

In the meantime, there was also the problem of how her own legal costs would be met. With no assets of her own, save for a heavily mortgaged property, she could not afford to litigate. Of course, the husband knew this – and was gambling that her straitened circumstances would influence her reaction to his proposal. One solution was to take the husband to court for interim maintenance, to include a hefty monthly payment for costs if bank funding was unavailable. Given the lack of equity in the home, funding was not available; given the husband’s reduced income, neither was interim maintenance. An alternative was what has become known as a ‘Sears Tooth’ agreement. This is a document signed by client and solicitor. When such an agreement is made, the solicitor agrees to fund the case. The client assigns her settlement to the solicitors, and at the end of the case her bill of costs – as agreed or assessed by the court – is debited from it. However, in very difficult cases such as this, with no apparent assets, a Sears Tooth agreement is useless.

The client was adamant. Her husband was lying. He had millions.

What did I do? I believed her and decided to take on the challenge. I took on the case on a ‘Sears Tooth basis,’ even though I knew it could turn out to be worthless. Then I set to work.

With the invaluable help of Frank Arndt, a German colleague of mine who speaks several languages, we monitored the husband’s undisclosed business activities throughout Europe. A lot of hard work was involved, but the internet provided a useful source of assistance. We uncovered a spider’s web of trade activity.

About a year later, when the case came before the High Court, the husband capitulated after the first day. He settled and paid our costs in full.

How did I finally get him? With an inspiration that struck at 3 ‘o’ clock one morning. I had been awake, worrying about for how much longer we could progress the case. The costs had been mounting, with little to show for our work. Then I remembered a single entry I had noticed on one of the husband’s bank statements. The statements all showed that he was heavily overdrawn. However, the entry itself provided an important clue. I realised that the husband had to have a second business in England.

After we took a calculated risk, subpoenaing the husband’s new girlfriend, it emerged that she had no wish to give evidence in court. The truth came tumbling out. The husband did have two businesses. One was a limited company, with accounts lodged at Companies House. The other was a “shadow” business, owned by his girlfriend but run by him. The business registered with Companies House had been deliberately plunged into decline by the husband, so that he could minimise his wife’s maintenance. All its profits and growth had been diverted to the undisclosed “shadow” business.

The case was a triumph for us. It required nerves of steel; what seems easy in retrospect is never easy at the time. As I mentioned, I enjoy games of intellectual chess. On this occasion, it was a pleasure to chase the husband – into checkmate.

Our client walked away with several millions. And me? Some time afterwards, I was approached by the producers of the BBC Radio 4 soap, The Archers.  The producers wanted a convincing matrimonial storyline for duplicitous, fictional businessman Matt Crawford. This case provided a perfect starting-point…