How the other half litigate

Family Law | 28 May 2015 0

“The one great principle of the English law is, to make business for itself.”

– Charles Dickens, Bleak House

I wrote here on Tuesday about how the abolition of legal aid for most private law family proceedings has created an underclass of second class litigants who cannot afford legal representation and are therefore at the mercy of incompetent or even charlatan legal assistance. A quick glance at a case reported last week demonstrates, in stark contrast, the other side of the coin: of how the haves, rather than the have-nots, choose to litigate.

I freely admit that I haven’t read all 107 paragraphs of Mrs Justice Roberts’ judgment in G v G, and nor do I have any intention of doing so. Frankly, I have better things to do with my time (and I wonder whether Mrs Justice Roberts felt the same sentiment). I have, however, read sufficient to tell you just what is was that occupied so much judicial time, along with the time of numerous expensive lawyers.

G v G concerned financial remedies proceedings following divorce. However, Mrs Justice Roberts’ judgment and the full day hearing that preceded it related not to the final outcome of the proceedings, but rather just to a preliminary issue regarding the admissibility of evidence.

It all began so well. In 2010 the parties managed to agree the division of the ‘global wealth’ available for distribution between them of about £15.7 million, and a consent order was drawn up to give effect to the agreement. However, at some point thereafter the wife obtained information which suggested that the husband had not disclosed all of his assets. She therefore seeks to appeal against the order.

The husband opposes the appeal, in part on the basis that the wife inexcusably delayed issuing her appeal for nearly two years after she came upon the information referred to above. In this connection the husband seeks to rely upon an email written by his leading counsel in September 2012, suggesting that the wife was then aware of the potential non-disclosure.

The issue for Mrs Justice Roberts to decide was whether, as the wife claimed, the contents of that email were privileged, in which case they should not be used at the hearing of the her appeal. After hearing ‘extensive legal argument’ from the two legal teams (one QC and another barrister for the wife, one QC and two other barristers for the husband), Mrs Justice Roberts decided that the email was not privileged, and therefore can be used in evidence in connection with the wife’s appeal.

And that, essentially, was all that was decided. The judgment does not give any indication of how much the legal costs for this one preliminary matter amounted to, but I’m sure that they would have been enough to fund a fair few legal aid cases. As for how much the total costs will be…

For me, G v G is a stark demonstration of the two-tier family justice system we now have in this country. On the one hand we have parties who are represented by solicitors and numerous counsel and take up vast swathes of the court’s precious time arguing over esoteric legal niceties, while on the other hand we have parties who are unable to access the most basic legal assistance and may fall victim to incompetents and charlatans who actually hinder their case.

Yes, I know that in cases such as G v G huge sums of money can be involved, but that does not mean that such issues are more important to those involved than the sort of issues faced by the impecunious litigant. Indeed, the impecunious litigant can quite literally be faced with ‘losing everything’, not just a part of a fortune that is many times more than enough to meet the needs of any average person.

Society, of course, isn’t equal (I have seen some argue just this week that people in this country are less equal than elsewhere), but that does not mean that our justice system should be unequal. It is surely a basic foundation of any civilised society that everyone should have equal access to justice. Sadly, as I’ve said before, it seems that our society is actually a little less civilised than it was prior to the legal aid cuts in April 2013.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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