“There is no such thing as justice – in or out of court.”
In this post I’m going to elaborate a little on a point I made in a post here a couple of weeks ago. When I wrote about the long-running debate regarding the issue of publicity in private family proceedings I said that I am a little uneasy with Mr Justice Holman’s approach to the issue – requiring financial remedies cases listed before him to be conducted in open court – because it has the effect of saying to the parties: ‘resolve this out of court or face having all of your dirty linen washed in public’. As I said then, like it or not, parties do have a right to have their cases adjudicated by the court, and they shouldn’t be discouraged by such judicial blackmail.
The debate has, of course, come to a head again recently because of Mr Justice Mostyn’s comments, both in the DL v SL case that I mentioned in that post and in the Appleton and Gallagher case, discussed by Marilyn Stowe in this post. In connection with that debate it has been reported, not for the first time I think, that high net worth divorcees are opting for settlements rather than facing the loss of their privacy by going through contested court proceedings. I’m sorry, but I just don’t think that this is right. Whilst it is of course quite right that we should encourage couples to settle their disputes by agreement, no one should be forced to do so.
Quite apart from the fact that, as citizens of this country, we are all entitled to have our disputes adjudicated by a court, there are some cases that just aren’t suitable for settlement, whether by negotiation or some form of dispute resolution.
For example, we all know that there can be imbalances between the bargaining positions of parties to family disputes, with the ‘stronger’ party dominating the ‘weaker’ party. Of course, a good lawyer or mediator will try to take account of this and smooth out the imbalance, but sometimes this just does not happen – the weaker party would rather settle for a less advantageous outcome than challenge the stronger party. And sometimes it just isn’t possible to recognise that there is an imbalance. Such cases should be dealt with by the court, rather than by settlement.
Now, we all know that these days there are huge pressures upon court resources (we are reminded of it frequently), both in terms of time (especially with the increase in litigants in person following the legal aid cuts) and money, in the present economic climate. Obviously, settling matters out of court preserves those resources and therefore, as I said above, I am all for encouraging parties to settle – I spent my whole career doing that, where appropriate. And that is the point: where appropriate. Sometimes, for various reasons, it just isn’t appropriate to settle out of court.
In short, what I object to is the transformation of the carrot into the stick. Whereas before parties were encouraged to settle with promises of more appropriate settlements, savings in time, costs and stress etc., now that carrot seems to have been replaced by the stick of public humiliation and the broadcasting of our private affairs (including our finances) if one is foolhardy enough to ask the court to resolve one’s dispute.
Like it or not, we are all entitled to our day in court.