Monday, 15 December 2014

Who Bears The Costs?

Family law litigation is often attendant with high emotion and all too often lawyers who put amassing fees ahead of acting in and advancing the best interests of the client.  One such matter found its way to the desk of Daniel Soames on the day it was due in Court.

Conference In Chambers
Upon being apprised of its history, he was not surprised to see that the client thought she could act for herself to save herself some considerable money in the process. However once the first conference between Mrs Cudmore, her solicitor and Daniel, got reasonably underway, Mrs Cudmore found she was well out of her depth and understood nowhere near enough of the crucial matters and issues to continue to act for herself.

During that conference, in an attempt to give Mrs Cudmore an appreciation of the reality of the world into which she had now ventured, Daniel shared with her his observation of the realities of judicial appointments.

“Mrs Cudmore, as careful as any government might be in selecting its candidates for judicial office, the one criteria that can never be predicted and it may even be the most important, is the effect judicial office and its attendant power will have on the individual office bearer.  Accordingly you need to accept the reality that now Federal Magistrate Cloak has charge of this matter, he can do pretty much whatever he likes with it and in my experience, that is precisely what some judicial officers do.

“Cloak FM has a reputation of being an interventionist judicial officer and my knowledge of and friendship with him is no guarantee that any bee he may get in his bonnet about your case is able to be controlled by us, if he determines that a particular result ought occur in this case.  Some people seek to justify or at least rationalise that behaviour with the explanation that it is behaviour that seeks to encourage people to settle their matters, rather than have judges decide them in Court.  I offer no opinion on that theory. Feel free to make up your own mind in respect of it.”

Daniel continued, “Notwithstanding that you say you have reached agreement with your former husband in respect of the property settlement and the orders you want the Court to make in respect of that property, I expect Cloak FM will tell you that he needs to be satisfied as to the justice and equity of the orders sought by the litigants and that will involve him assessing the material that has being placed before the Court. If he feels that the relevant material provided is not sufficient, then he will not make the orders and will adjourn the matter to allow proper material to be filed and served.

“The material in your case appears to have been prepared entirely by you and in my view may well be seen by the Court as being deficient. That could lead to the orders not being made and an adjournment of the matter to improve that material, as I have just indicated. That will be a judgement call by Cloak FM and we will only know his view on it when he tells it to us.  For your sake I will endeavour to convince him that no adjournment is necessary.

“That adjournment may also lead to a costs order, which would probably be made against you, if the adjournment was thought necessary by the Court and once again that will be a matter purely in the discretion of the Court.  Having said all that, I will do what I can to finalise this matter for you today.”

Court - Day 1
Once the matter came on in Court Cloak FM was not happy with the material filed by Mrs Cudmore, whom he openly observed was a litigant who prepared the documents by herself at the relevant time, even though she had legal representation in the early stages of the matter from a firm who proudly touted that they possessed an accredited specialist in family law on staff.

Cloak FM said, “The material filed by the mother did not satisfy the criteria of justice and equity in property settlement matters, so even though the parties have apparently agreed on a settlement and the orders they sought from the Court, the matter will have to be adjourned, so that the material of the mother could be amended to reach the relevant standard.”

Cloak FM made enquiries of the mother and her preparation for the application, particularly in relation to her legal representation and the assistance and advice that was given to her by her former legal representatives.

Cloak FM: “I am inclined to order the costs of the adjournment be paid by the former solicitors of the mother, particularly as they were apparently accredited family law specialists.  Those costs would not only be the costs of the of the adjournment of the mother, but also the costs of the father.”

“I make Orders requiring the attendance of those solicitors to the Court on the next occasion this matter is before me and will hear them on the issue of costs. It is unlikely that I will be persuaded against making the foreshadowed costs orders. The quantum of those orders would be significant. I expect, perhaps $12,000.”

Court - Day 2
When the matter again came before Cloak FM he was satisfied the material of the mother now met the requisite standard and the consent Orders sought by the parties were made by the Court, without further delay.

His Honour then said, “In terms of the costs issue, I take the view that the solicitors who had previously acted for Mrs Cudmore, the mother, did not properly discharge their professional duty in advising the mother in relation to this property settlement, nor did they take proper instructions from the mother to properly prepare and advance her property settlement matter.  Accordingly the employed solicitor handling the matter and the supervising partner, who was an accredited specialist in family law, would be jointly and severally liable for the costs thrown away as a result of the inadequate preparation of the material of the mother. Those costs would be fixed in the amount of $12,000.”

His Honour continued, in open Court, “I will happily tell all of my colleagues of:
The standard of preparation undertaken and advice given by this firm;
The delay that inadequate preparation and advice necessitated; and
My response to that unsatisfactory professional behaviour.
I will also encourage my colleagues to take a similar approach, should such behaviour present itself in their Courts.”

Outside Court
When the matter was finalised in Court Daniel, Mrs Cudmore and the solicitor adjourned to one of the nearby conference rooms to discuss the proceedings and the impact upon Mrs Cudmore.

Daniel said to Mrs Cudmore and her solicitor, “Ordinarily one might expect to hear a little chatter in the back of a Court when matters such as this are proceeding. However on this occasion there was an unusual, almost deathly, silence and the audience appeared to be captive, as well as more than a little stunned, by the proceedings.  Perhaps Mrs Cudmore this might lead to some solicitors actually taking their responsibility to you and those like you more seriously.

“What it means in reality for you is, for all intents and purposes your former solicitors will make a significant financial contribution to your legal costs for these proceedings. I expect that was an outcome that was in no part on their radar when they took on your case and when they were acting for you.”

“It is one thing for a judicial officer to threaten such an Order, it is quite another for them to actually put it into practice.  Needless to say it is an Order and an approach I endorse wholeheartedly.  I expect your current solicitor will receive correspondence from your previous solicitors in the near future in relation to that costs Order.”

“If either of you have any trouble in relation to that costs Order, please do not hesitate to contact me and we can discuss whatever problems might arise.  Other than that and the logistics of implementing the Orders that were just made by the Court, this matter is finalised.  If neither of you have any other questions, then we are all free to go.”

The solicitor said he had no questions and was happy with the outcome.

Mrs Cudmore said, “I have no questions and I am happy with the outcome. I am also very happy that I got you two as my legal representatives because I realised that after everything that had gone on, I was well out of my depth. There was no way I could not have done justice to my case on my own.”

Daniel said, “Well then I think I will return to Chambers. Thank you both for the brief and I wish you both well.”

Daniel then walked alone back to his Chambers.