appealing final order or negligence case against barrister

Hi, has anyone experience of successfully appealing a final order in a 'needs' case, and was it worth it in the end?

Or

Has anyone experience in bringing a negligence case against their barrister in relation to a final hearing outcome (financial), and was it worth it in the end?

I ask as I am considering both routes, having just been on the receiving end of what I feel was an unnecessary and brutal outcome.

Thanks.

Appealing an order is difficult as there needs to be good reason for this. Without good reason it is not possible to appeal if you merely dislike the outcome.

You mention this is a needs case - are you the person with those neds or was the other party?

Negligence is a difficult path to pursue. The range of orders that the family court can make is wide. This means that even if a barrister has been negligent, that action might not have any damage.

Having said that negligence claims are made and do succeed but the the threshold is high.

Charles

Hi,

Thanks for your reply, and to everyone who contributes to this site. I have been going through divorce for three years and found the resource invaluable.

Yes, I do not like the outcome, but I also feel it is grossly unfair. However, it would be good to get others take and experience, as I have only a week left to make an appeal if I do.

My experience of the whole system, and judge is that your case is purely subjective, and the fact they have wide discretionary powers means they do not seem to have to justify to anyone their decision. In my view there should automatically be a sense check from another judge on any final order given, in every case, to ensure that it is indeed not on the face of it grossly disproportionate or unfair. (Probably a topic for another time).


Situation

H.46, applicant (Me)
W.34, respondent
Child from the marriage 6 years old.
My child from previous relationship 16 years old. (Lives some of the time with me, and I pay CM).
Together for 6 years in the relationship, of which we were married for most of it.
Filed for divorce – May 2020
FDR – Nov 2021
Final Hearing – Sept 2022

Home £535k
Mortgage £231k
Help to buy equity loan £107k
Matrimonal debts (deemed to be so by judge)
My name – £60k (loans & credit cards built up during marriage)
Her Name- £24k (14k legal fees on credit cards, and 10k soft loan)

Her net income £3,000 (Made up from salary and various benefits)

My net income £3,500 (Income from own ltd. company via salary and dividends) £45,000 gross.
I pay child maintenance for daughter of £272pm.

My pension – 100k (80k built up during marriage)
Her pension – 7k (built up in marriage)

No other assets.

Her fees – 14k
My fees – 22k


Other factors;
My son, was diagnosed with ASD, he attends mainstream education, with a moderate level of support. He is doing well and is on the mild end of the spectrum. However, her barrister painted the picture that he had special needs and a high level of dependency, that ultimately required the necessity of a property with garden for W. and him.
Whilst I of course want him, and any child to have a garden. The final award of the judge in her view, meant that more (most) of the equity should be given to W, as it would mean she would have just enough to buy a property with a garden. Rather than a reduced amount which could have meant we both came away with no debt, she still would have had enough to buy a good flat in a good area, although I would not have had a deposit, I would have had no debt.

Myself or barrister were not prepared for this angle and as such I had only prepared flats for property particulars, and had no evidence in regards to his level of support or condition; W. had filed school reports, and an after school report in the bundle, and all her own property particulars were houses with gardens.

(W. initially wanted to remain in FMH on Mesher basis (60/40 split at 18 in her favour), and wanted £900 pm spousal maint. With 30% of my pension).

(I wanted home to be sold, all debt to be repaid, equity to be split equally, Clean Break. Both to be able to afford property, albeit I accepted that she would need most of the equity due to her mortgage capacity. So assumed a small deposit for a flat would suffice for myself).





The outcome;

House to be sold, from net proceeds;
£160,000 equity to her
£28,000 equity to me to repay some of the matrimonial debts.
Which leaves me with £32,000 debts. (All deemed matrimonial, most of which are high interest credit cards that I have no means to currently refinancing or repaying).

No cost order, however she has enough to repay her costs and still buy a property.

£550 pm Global Maintenance order to youngest is 18, with no bar (so possible extension).

25% of my pension from the period we were married.




My questions;

• I would like to get the perspective of others, as to if this is a case that stands out as being grossly unfair? (I obviously feel it is) And is it ultimately worth the time, effort, stress, financial risk of fighting for what ultimately is in my opinion circa £30,000? (The matrimonial debt I have been left with). I am thinking if I do, I will do it myself this time.

• Has any one ever been successful to appeal any such case?

• Could it stand the test of appeal?;
i)on the basis that the judge did not (in my view) preform a proper ‘critical analysis of my needs’. And the fact I cannot now not meet my outgoings in the interim period, or indeed when the house is sold. (My outgoings are more than my income, as I have been left with high levels of monthly debt repayments each month, rent, CMS, and now Global Maintenance which starts when the house is sold).
I am also currently paying the mortgage and HTB, until the house is sold.

ii)That too much emphasis has been placed on the W. needs. And her ability to buy a property with a garden.

iii)The level of inequality is not justified.

• In regards to the Global Maintenance, the judge did not mention indexing. The draft order has come back from the other side and they are now trying to add it to be linked to RPI. Given the premise of the order I have said that I do not agree to this. Has anyone experience of this, or is it down to what the judge finally says when it is sealed?

• Lastly, in hindsight (what a wonderful thing), I wish I was LIP and saved my legal fees, as I would nearly be debt free now! However, I do feel that my barrister was not prepared for critical arguments in relation to my sons needs, nor did he challenge the judge as to the fact I would not be able to meet my outgoings if left with so much matrimonial debt. I feel given the huge fees I have paid, this could have been a very different outcome if it was prepared for, presented/argued differently on the day. Do I have a case of negligence against my barrister, has anyone ever proved ‘financial loss’ as a result of not being represented effectively in a final hearing?

Thanks for reading this far, and any replies.

I will caveat everything that follows by saying 1) I am not a lawyer of any kind and 2) I am not divorced yet and have no direct experience of the court process. What will follow is largely an awareness of the law and its application to the extent that I understand it and which is largely based on work experience before my career took a different direction! However, what I can perhaps offer is an impartial look at your situation and some suggestions that may help (all of which involve consulting with someone suitably qualified).Having gone through the facts of your case and making my own assumptions (please correct me where I am wrong), I don’t think the outcome is the fault of your barrister or the judge. They both worked honestly with the facts that were presented to them. Nor was it the fault of your wife’s barrister. The reason your case did not go as planned was because your wife lied to everyone and they believed her. You need to understand what the role of the barristers and the judges are. The role of the barrister is to present your case in a court room, they are representing you to ensure the facts get heard. They are not there to invent clever arguments on your behalf, to do so would be unethical. Your barrister presumably asked about your child’s disabilities and you were honest with them and presumably they expected your wife to be honest – within reason - too. Clearly what happened is that your ex-wife lied to her barrister and in turn he told those lies in court, unwittingly, as her representative. In turn, the judge would have been led to believed this was a case with a child who had serious lifelong special needs and the outcome is largely in line with what would be expected, although perhaps they ought to have asked how on earth she managed to work in the circumstances.The award that your wife got looks to be consistent with someone who has a lifelong dependent child. She might be expected to work for a while whilst he can be in a special needs school and then become a full time carer when he turns 18. If she lied however, Family law in recent years seems to have moved increasingly to a position where settlements can be re-opened. I would consult a solicitor on that point first and also whether this matter can be addressed more swiftly. I’m not a solicitor but maybe it’s possible to appeal on the grounds that the facts of your son’s condition heard were wrong and maybe even perjured.The second thing I noticed was that you are self employed and subject to a global maintenance order that is extendable. That seems to be fairly common to apply to the self employed these days (although the fact it is extendable is not normal, that’s again probably based on your wife’s lies about your son and the court not wishing to predict the future as a result). I do wonder whether the judge thought there was any (or the potential for there to be any) bad conduct on your part such as building up debt or suppressing your earnings that influenced them? Something that again a solicitor ought to look at and opine on.Now, what follows is a dirty trick that I would never normally recommend except where justice demands it. What you can do is open a CMS case so that every penny in excess of child maintenance is considered as spousal maintenance. It won’t make you any better off but by my calculations it will mean she can’t call all of it child maintenance and will lose £170 of benefits a month (child maintenance is not considered, but certain benefits are lost £ for £ against spousal maintenance); this will essentially mean she will probably think it pointless to pursue an extension because it will be worthless to her (especially if you become slightly unreliable in paying, which will make her wish she just received universal credit instead. I don’t mean not paying, but sometimes paying about a week or two late so it messes up her cash flow). It will also reduce her mortgage capacity by around £10k.As to your personal finances. If you can’t overturn the decision, is an IVA or bankruptcy an option or would it impact your line of work? Obviously you would be barred from being a Director of a limited company so as a self employed person you would have to operate as a sole trader. However, it might get you out of debt faster than trying to pay it off. You could also seek an immediate variation on the global maintenance due to changed circumstances (if you open a CMS case and take paid employment, you might even get it discharged altogether)? Another one for a solicitor to opine on.

Hi, thank you for your reply, I really do appreciate it, and it is very insightful.

It is refreshing to hear a different perspective. When you are going through it, it is so easy to get tunnel vision.

You seem to have grasped my situation very well and have a good understanding of the process.

You are also right in that my concept of what a barrister does was incorrect. I can see exactly what you are saying, as this was literally my expectation from them, and I feel let down that it did not happen that way.

Yes, the global maintenance really hurts, especially as it is more than what the CMS would have been. So essentially there is an element of SM rolled up in it too. This is what I find really hard to accept. Why, should I have to pay her SM, when her net income is going to be approximately the same as mine, and she has come away with essentially all the equity and will have a small mortgage, and I have come away with debt, and no foreseeable way of owning another property at this time. There appears to be no justification between the interplay of the capital she received and the global maintenance. I totally understand and agree with Child maintenance.
It addition, it also is wrong that I could now be potentially hit with RPI inflation on the payments, whereas had it been with the CMS this would not have been the case. (It amazes me that this was not something the judge decided on at the time, and it still being debated just prior to the order being sealed!).

Your note on the CMS is a very interesting one. I already have a case open and will consider what you have said.

Just to clarify are you saying that when my son turns 18 as the Child Maintenance stops, she can only possibly extend the GM element for herself? (so in your example £170 per month).

I was under the impression that she can ask for an extension to the whole GM amount. The order states that it is made up of the two, but gives no specific amounts.
If this is the case, it makes me feel better. Also she surely would have to have some serious justification as to why, given we would have been divorced 12 years prior, and at that time she was given everything anyway.

You are right I can not go bankrupt or do an IVA, due to my line of work, I also want to one day maybe get a mortgage again. I potentially (not guaranteed) have more earning capacity, so my only way out of debt, is to work harder (if possible) to get myself back to zero. It feels so unjust all things considered.

It is difficult to know if I should appeal or not. My instincts are telling me to draw a line in the sand, and focus on the things I can change. Rather than potentially throw my energy and money after something that is very unlikely to work, and essentially make my situation worse than it already is. I have lost faith in the system that justice or equality will prevail.

As I own a limited company, is there anything else you could potentially recommend I do, to limit her ability to come back for more?

You mentioned you are not divorced yet, are you also going through the process of it all?

Thanks for your help.

I'm afraid when it comes to global maintenance she could extend the whole lot after your son turns 18. However, extensions are only granted in exceptional circumstances and also if she's only been receiving the benefit of £370 for three years because the rest reduced her benefits she would have a hard time arguing she needed all of it. Also, in those most extreme circumstances, let's say she has to be carer for your son. She'll get a carers allowance that is lost £ for £ against spousal and if you've been a bit slow paying sometimes (especially around Christmas!) she might prefer to rely on the state. Regular digs about how pathetic it is that she is dependent on you should push her in that direction too but don't cross a line into abuse. Just be jokey about it.

One other thing. I suspect the reason you got treated so shabbily in court is because you are self employed. Has your business made more money in the past? Have you ever been unreliable paying CM? Did the divorce take 3 years because your ex thought there were hidden assets? The self employed have a reputation for suppressing their incomes before a divorce so even if in your case it was legitimate, it might have raised eyebrows. Certainly worth talking with a solicitor about as it would have been based on prejudice rather than facts. Your case is also screaming out for a term order for maintenance and there are cases that can be cited for that.

I'm in a different situation to you in that I'm employed but a much higher earner than my wife. I've done the maths and worked out a fair settlement that sees us relatively equal until youngest is 18 but whether she accepts it is another matter. If my wife tries to pin me down on spousal rather than getting off her lazy bottom though, I'll just move to a non-remo country when my children are old enough!