Saturday, January 29, 2011

Judicial criticisms

Further to my last post, the Jones decision also raised a couple of other interesting points, both of which have been reported elsewhere.

Firstly, Joshua Rosenberg has pointed out the Court of Appeal's criticisms of Mr Justice Charles, who is apparently "the most appealed-against judge in the High Court Family Division and the one whose judgments are overturned the most". Lord Justice Wilson said that he had spent days trying to understand the 484-paragraph judgment delivered by Mr Justice Charles, and quoted barrister Ashley Murray who had said in Family Law:
"There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles."

To which Lord Justice Wilson commented: "Mr Murray's introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite." Excellent stuff.

Secondly, Sir Nicholas Wall P in his supporting judgment made a point that I have made on Family Lore many times, and that has been picked up by Bloomberg. He said (at paragraph 69):
" seems to me unfortunate that our law of ancillary relief should be largely dictated by cases which bear no resemblance to the ordinary lives of most divorcing couples and to the average case heard, day in and day out, by district judges up and down the country. The sums of money – including the costs - involved in this case are well beyond the experience and even the contemplation of most people. Whether the wife has £5 or £8 million, she will still be a very rich woman and the application of the so called "sharing" and "needs" principles may look very different in cases where the latter predominates and the parties' assets are a tiny percentage of those encountered here."

Well said - as someone who spent his career acting for 'ordinary' clients of 'average' means, these words strike a particular chord, especially when I consider the amount of time I spent at seminars and elsewhere studying the intricacies of the latest decisions, an exercise that often seemed utterly academic.

Another big-money case reported yesterday was also the subject of judicial criticism, with some similarity. In Goldstone v Goldstone & Ors [2011] EWCA Civ 39 Lord Justice Thorpe quoted Hedley J in the court below, who had "summarised the litigation in vivid language" thus (at paragraph 42):
"1. This case is about whether Sonia Jayne Goldstone (the wife) should receive from Sampson Robert Goldstone (the husband) a sum of around £4 million or one around £11 million (or something in between) by way of ancillary relief in divorce. This issue has generated prodigious litigation involving so far five judges in the Division having made substantive orders which has brought the case but into the forensic foothills. In the future there lies a two day disclosure hearing, a ten day preliminary issue hearing and a seven day final hearing with who knows what beyond that in terms of appeal and enforcement.

2. The three days that have been expended before me have been part of the foothills skirmishing. In argument presented by three eminent Queens Counsel I have been conducted through six lever arch files of documents, two lever arch files of authorities, all supplemented by other documents as the arguments unfolded. In addition we consulted Rayden and Books both White and Red. In the fulsome erudition to which I have been treated no stone has been left unturned; indeed I occasionally wondered if stones appeared in the way simply for the purpose of being turned. I have throughout the argument sensed (in my innocence in these recondite areas) that the essential issues may not be all that complex notwithstanding the learning that has been generated."

Lord Justice Thorpe continued: "I share his concerns. In this court I notice that the richer the family the more imposing becomes the litigation team. They strive not only with great skill but also with great extension of all conceivably relevant issues. The bills incurred by the families mount to shocking summits, even if the totals remain a relatively small percentage of the overall fortune." Well said again, although sadly I doubt very much whether these words will make the slightest difference to the conduct of future cases.

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