Divorce funding

Inevitably a major concern for clients about to embark on divorce and related financial proceedings is how to fund their legal expenses.

 

For divorce lawyers this should always be at the forefront of our minds too – and not just because we want to get paid! Divorce proceedings can be stressful enough at the best of times but worries about costs do not help. The key is to try to keep the costs at as reasonable level as possible but also to ensure that the client is kept informed as to the costs they have incurred, the costs which are being incurred and the likely level of the final bill. The problem is that final estimates can be difficult to provide because disputes can follow so many different paths.

 

There are various funding arrangements available. Some clients have the funds or have assets that can be cashed to provide the necessary fighting fund. Occasionally family members or friends are prepared to loan money for this purpose but beware, as the court can sometimes be sceptical as to whether these loans are truly recoverable. For others loans can be obtained from banks or specialist litigation funders although it is important to avoid too high interest rates. In some cases the lawyer will be prepared to enter into a Sears Tooth Agreement which involves the lawyer deferring charges until the conclusion of the case but taking a charge over the eventual settlement to ensure repayment.

 

A further important option is that since April 2013 parties have been able to apply to court for a Legal Services Order. This enables the court to order a more financially secure spouse to make a payment or payments to the less well off spouse to fund their legal services. It is an important weapon in these post legal aid days to try to ensure that the parties are on a more level playing field so far as costs are concerned, but it is perhaps surprising that these orders are not slightly easier to obtain. A number of hurdles have to be overcome to include satisfying the court that appropriate legal services would not otherwise be available and that it is not possible for the applicant to obtain a loan or the benefit of a Sears Tooth agreement. If assets are available one would have thought that they would be better utilised in suitable cases rather than forcing a spouse to take out a loan with interest liability which will only further deplete the joint assets available for distribution. Additionally whilst the court continues to drown under the flood of litigants in person this must represent a simple way to reduce the problem.  

 

In any event for some parties a Legal Services Order is certainly an option to consider.

County Courts - The erosion of customer service.

I am currently dealing with a matrimonial case in the Family Court at Canterbury and tucked in with the latest order was a circular which said as follows:

 

“Please note that from 6^th May 2014 the court counter will shut.  You may however book an appointment to see a member of staff by dialling 01227 819267.  However, appointments will only be given for:- Applications for non-molestations and applications relating to removal or abduction of children.  If your enquiry does not fit the above, then please telephone the Court on 01227 819200 or, alternatively, email family@canterbury.countycourt.gsi.gov.uk.  There is a secure letterbox for dropping documents off at the front of the building (outside).  Appointments can be made Monday to Friday between 10am and 2pm.  Appointments will NOT be given for:- paying a fee, case specific enquiries, general enquiries, lodgement of documents, issuing applications, issuing divorce proceedings, issuing private law proceedings and collecting forms and orders”.

 

This mirrors similar arrangements which have been implemented by County Courts across the country but once again made me ponder whether there is any other service industry (which is what the County Court system is!) which operates at a profit but which provides such limited support to users.  I appreciate that staff cutbacks have made it difficult to maintain adequate counter staff, but is this level of service satisfactory.  In my previous item I commented on the challenge posed by litigants in person.  It seems to me unsatisfactory that they are expected to complete often complex forms and then are not able to hand deliver them so that they can be checked by court staff to ensure that everything is in order rather than waiting for the forms to be eventually returned by post if there is a problem.  For firms like ours we are regularly  required to issue on an urgent basis protective proceedings either where clients are seeking a lease extension under the Leasehold Reform Housing & Urban Development Act 1993 or a new business tenancy under the Landlord & Tenant Act 1954 where significant rights can be lost if the prescribed deadline for the issue of protective proceedings is missed.  It is inevitable that on occasions we receive instructions to issue at short notice and whereas historically we would arrange for such applications to be hand delivered so that the court staff could check and issue the proceedings while we waited, this option is no longer available.  We have to simply deliver the documentation which may need to be dealt with on that day and then hope that everything is in order.  It means ensuring that the staff submitting these applications are on top of the relevant rules to avoid problems occurring is very important.  It still leaves the question as to why regular users of a service industry of this kind cannot expect the service to reflect their reasonable needs.  I would also query why the timescale for appointments on a daily basis has to be so limited bearing in mind the very small number of applications which will now result in an appointment being allocated.  The staff are after all in the building.  Is it really so difficult to ensure that a time is allocated which is convenient to the users paying for the service?  In the long term time and costs can be saved by ensuring that reasonable and adequate support is available and easily accessible to litigants in person as well as assisting lawyers who continue to endeavour to deal with litigation as efficiently and economically as possible.

Litigants in Person

There is nothing like party political conference season to encourage our leading politicians to make eye catching policy announcements, often without supporting details, leaving the rest of us to ponder what the practical ramifications will be. I see that Lib Dem Justice Minister Simon Hughes has announced that we can shortly expect the Government to announce plans to tackle the issues raised by the growing number of litigants in person. I have commented in the past on the major effects that this is having as they attempt to come to grips with a system which can be complex and confusing – and that is just the court system itself never mind the underlying laws that govern the decision making process. This is at a time when the courts are subject to ever further cuts including making staff and counter/telephone support ever more limited and often nonexistent and with a constant drift to centralise the court buildings making them less accessible for service users. However whilst litigants in person may need improved support my concern remains for those who instruct solicitors to present their cases properly and promptly but face litigants in person against them. Will this issue also be addressed? Why should my clients face a larger bill than would otherwise be the case because litigants in person are clogging the system, extending waiting times and hearing lengths and missing clear deadlines apparently without sanction. I also fail to see why litigants who employ a lawyer should have greater responsibility for preparing bundles etc simply because the other side has decided to go it alone. It may be that this is desirable and on occasions the offer will be made by the lawyer but it is now often becoming assumed by the court. I have recently been fighting a case in an outer London county court where the other side is in acting in person and quite understandably is struggling. However the sums in dispute are significant. We are following the rules but our opponent is not but is constantly being allowed further chances by the Judges resulting in additional and often irrecoverable costs being incurred. I have no problem with Judges sympathising with the plight of litigants in person but what about some sympathy for those on the other side and action to protect them from the costs ramifications of litigants in person.