An example of the problems caused by lack of legal aid

Family Law|October 18th 2016

The Court of Appeal’s judgment in the case Roocroft v Ball, handed down last Friday, caused a number of headlines, both in family law circles and in the national media. As I will briefly explain in a moment, it caused those headlines for several reasons, but I want to look here at something else that struck me about the case: it seems to be an example of the problems that can be caused by the government’s legal aid policy.

The case concerned an appeal against an order dismissing an application by the appellant to set aside a consent order made in 2010 in financial remedy proceedings, following the dissolution of her civil partnership with her former partner, now deceased. The consent order provided for the deceased partner to pay the appellant a lump sum of £162,000 by way of instalments and periodical payments of £18,050 per annum for two years. The application to set aside had been made on the basis that the deceased partner had been guilty of material non-disclosure, the appellant claiming to have discovered that the deceased partner had hidden business assets worth millions of pounds. The Court of Appeal found that the judge had erred in summarily dismissing the application and was wrong not to have made findings of fact as to the non-disclosure. The appeal was therefore allowed.

As mentioned, the case has been said to demonstrate several things. Firstly, it is said to prove that civil partners have the same rights as heterosexual couples, although I didn’t think that had been in doubt. It is also said to be further proof that the courts will not tolerate dishonesty, and finally it demonstrates the correct approach that should be adopted when the respondent to an application claims that the application is without merit.

What has all of this got to do with the government’s legal aid policy? Well, at the time that the consent order was entered into the appellant did not have legal representation, unlike the deceased partner, who was represented. We are not told whether she would have been eligible for legal aid (it was still available at that time), but we are told that she had previously had solicitors, but could not afford to continue to instruct them. Whatever, the fact is that if the matter had been dealt with after the 1st of April 2013, legal aid simply wouldn’t have been available, even if she had been financially eligible.

As is usual, the judge who was asked to make the consent order raised concerns about the appellant’s lack of representation. He was also concerned in relation to what “appeared to be the relatively modest nature of this proposed award”, in circumstances where he was aware that it had been central to the appellant’s case that the deceased partner was a wealthy woman.

Remarkably, the deceased partner’s solicitors dealt with the judge’s concerns by drafting a letter to the court for the appellant to sign, confirming that she was aware that she could seek independent legal advice on the terms of the order and that she had “had legal advice on the content of the documentation”. The letter also said that she was anxious to conclude matters. After receipt of this letter the order was approved and sealed by the judge.

Now, obviously this entire scenario would have played out differently if the appellant had had solicitors. At the very least, she would have been advised of the need for proper disclosure from the deceased partner. If she had still decided to go ahead, she would have been advised of the risk she was taking that she may have been entitled to considerably more, and obviously any letter sent to the court by her or on her behalf would not have been drafted by the solicitor for the other party. The court, meanwhile, would at least have been able to proceed in the certain knowledge that she had received proper legal advice.

As I said earlier, all of this happened before legal aid was abolished for most private law family matters, but my point is that now such scenarios are obviously going to be far more common. Parties to proposed consent orders are more often not going to be represented, putting the courts in a difficult position, making errors more likely and putting those parties at risk. And then one must consider the time and expense that both the court and the parties can be put to sorting out the mess.

This case is a clear example of the problems that can be caused when parties are not legally represented. Were such matters fully considered before the government decided to abolish legal aid, thereby creating far more unrepresented litigants? I doubt it.

The full judgment in Roocroft v Ball can be read here.

Image by Kevin Crejci via Flickr under a Creative Commons licence

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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  1. Andrew says:

    All very fair, John: but we are where we are, LASPO is not going to be repealed, and there will be a lot of unrepresented litigants.
    And the fact that you were not represented MUST NOT be a reason for setting aside an order even if the other party was represented. If we go down that line, sayonara to settlement. Finality must be the rule and setting aside the very, very rare exception.
    I’m not suggesting that there were not plenty of other reasons to set aside the order here, by the way, there obviously were; but I make no bones about my belief that in applications to set aside costs should follow the event – and applicants should be required to secure that liability by insurance.

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