Could she have had a second bite of the cherry?

Clearly, Heather Mills was distraught when she stood on the steps of the Royal Courts of Justice and ranted about her award, the judgment and her treatment at the hands of the English court.

There are those in her camp who argue that the judgment was an extraordinarily cruel dissection of her crude attempts to present her case as a litigant in person, against the man who is arguably the best matrimonial finance barrister in the country. Quite why Heather Mills chose such a course of action is a mystery. But choose it she did, notwithstanding the fact that at present, a major criticism of English law in this area is that no-one can say with absolute certainty what the parameters are for settlements in short marriage, “big money” cases. There are so many possibilities. And so I wondered if, despite all the vitriol aimed at Heather, she has actually been an innocent victim of very unclear law?

When I read the judgment and noticed that the parties owned homes abroad, I wondered hypothetically what her position might have been if the facts had changed a little. What if Sir Paul McCartney, instead of being a homegrown superstar, had been a superstar in a foreign country?

If he had divorced her in that country in order to protect his financial position, knowing that the law of that country was much more favourable to him than elsewhere, and she had received only the tiniest fraction of his wealth, could she have come back to England and tried again? Could the courts - the same courts that made this week’s judgment - allowed her a second bite of the cherry and awarded her more?

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 We had a dilemma on our hands. Had the client’s former solicitor participated in a deliberate, criminal deception?

In my last post I mentioned the Solicitors Regulation Authority known as the SRA, which governs conduct amongst lawyers. The SRA requires lawyers to report any possible breaches of professional standards. Those who do not heed the reporting requirement can in certain circumstances also risk criminal proceedings.

I must confess, the SRA’s stipulations and its determination to ensure that my profession’s standards are upheld have been playing upon my mind. I have recently encountered a professional ethics problem that puzzles me profoundly.

My firm was instructed by a new female client to take over her divorce case. The divorce itself, including financial considerations, was being conducted abroad. The English solicitor previously appointed by the client, and with whom she had become “dissatisfied”, is a partner in a major firm. This lawyer had been coordinating the proceedings abroad and this is not uncommon in jurisdictional cases.

The husband was represented by solicitors in England who were also coordinating the overseas proceedings. Furthermore, both parties retained lawyers in the country in which the divorce was taking place.

When we took instructions from the wife, she instructed us that she was not wealthy at all. She enjoyed a modest income, and modest capital. It was a mystery why she had chosen to issue proceedings abroad, especially as she was having to pay two sets of expensive lawyers. However, the client was very determined. We began work.

However, shortly afterwards a couple of my colleagues were reading the files, which had arrived in pristine condition and very promptly from the previous solicitors. They informed me that we had a dilemma on our hands. This struck me as an understatement, once I had seen the files for myself.

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