High Court allows joint drafting of agreed orders

Divorce|January 27th 2020

The recent High Court case JK v MK and Another: Since legal aid was abolished for most private law family matters in 2013 efforts have been made to provide free or cheap legal services for those who cannot afford to instruct lawyers. 

These efforts have come from many directions. Some of them have been well-meaning but misguided, and others have been somewhat questionable, being little more than charlatans trying to take advantage of the situation to make a quick buck. But a few have turned out to be genuinely helpful to those who can’t afford a lawyer. 

And of course, the powers that be, in particular, the government, are all too eager to welcome anything that fills the gaping hole in the provision of legal services left by the abolition of legal aid. 

But care must, of course, be exercised: there are rules covering the provision of legal services. Contrary to the view of some, those rules are not there to protect the monopoly of lawyers, but rather to protect the public, by ensuring that the legal service provider gives them good advice, that is in their best interests. 

Conflict of interest

One such rule is that there should be no conflict of interest. Thus it is normally the case that a lawyer may not act for both parties in litigation, as the interests of the parties’ conflict. 

Another rule is that certain legal services may only be undertaken by a qualified lawyer. The reason for this is obvious: in order to protect the public, only someone with the necessary expertise may provide that service. 

These two rules, however, were found by Mr Justice Mostyn not to have been breached, in the recent High Court case JK v MK and Another. 

Now, having had that rather lengthy introduction, I’m going to run through the case quite quickly. 

It concerned a husband and wife who were married in 2015. They had no children. They separated in 2017 and wished to divorce amicably. They had no capital assets. Each was earning. They wanted to obtain a simple clean-break financial remedy consent order, which would ensure that neither could make any financial claim against the other in the future. They therefore jointly instructed an online non-lawyer provider to prepare the order for them. The order was duly filed with the court, under cover of a letter written on the provider’s notepaper, but signed by the husband. 

The court subsequently flagged the matter up as a potential conflict of interest, as the same organisation appeared to be acting for both parties. The court, therefore, had to decide whether there was indeed a conflict of interest. 

The second matter was then raised: had the provider, in drafting the order, breached the rule that certain legal services may only be undertaken by a qualified lawyer? The court also had to decide on this issue. 

The case went before Mr Justice Mostyn, with the Queen’s Proctor (an officer of the judiciary, who may intervene in divorce proceedings “to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued”) being invited to make submissions. 

No conflict of interest 

The conflict of interest point was not, in fact, argued by any of the parties, who all agreed that there was no conflict. The reasons for this were that this was not a case where the work done by the provider furthered the interests of one party to the prejudice of those of the other and that the provider had established a system of “red flags”, which are hoisted when certain circumstances are revealed which might well give rise to a conflict of interest, for example where there had been domestic abuse. 

As to the “certain legal services may only be undertaken by a qualified lawyer” rule, Mr Justice Mostyn found that this had not been broken. Either the consent order did not fall within the rule, as it was not one of the specified documents that only a lawyer can prepare or if it was, it had not been prepared by the provider, as the husband had filed it with the court. Hmm. I’m not sure about that. For what little it’s worth, my opinion is that the consent order had surely in reality been prepared by the provider (otherwise, why didn’t the husband and wife do it themselves?), and such a complex and important document as a consent order must surely be a document that should only be prepared for a litigant by a qualified lawyer. 

Nevertheless, an interesting judgment in the case JK v MK which, as I indicated earlier, could have important consequences for litigants who cannot afford a lawyer. 

You can read the full judgment here. 

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If you would like any advice on a family law issue, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist family lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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