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‘Victims of the justice system’ left to rely on free help from lawyers let down by courts, judiciary and legal aid, blasts former top family judge

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Sir James Munby pulls no punches

📸 Sir James Munby (credit: PSU)

Errors by courts and judges that left a couple’s final divorce decree potentially void was exposed in a judgment from the former head of the family division, who slammed the state for “washing its hands” of the problem it created by not granting legal aid to the parties to resolve their case.

A “fundamental failure” of the court process meant that a couple, known only as M and P, were granted a “wholly defective” divorce, Sir James Munby, who until July 2018 was President of the Family Division, said in a ruling this week, after court staff and judges failed to spot an error on the divorce petition.

The parties married in London on 19 September 2011. In June 2013, the husband, M, acting in person without help from a lawyer, submitted a divorce petition dated 14 June 2013 to the Willesden County Court.

M had ticked the box on the application stating that he was seeking a divorce on the grounds that the parties had “lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree/order being granted”.

The petition was returned to M on three occasions before the court was prepared to accept it due to errors in the application, and the petition was issued on 26 July 2013. No one had noticed that, at the time that the petition was issued, the couple had only been married for 22 months, and the statutory two-year period had not elapsed.

The error was not picked up by the two judges who subsequently granted the decree nisi and the decree absolute — deputy district judge Quin, and district judge Steel.

The husband M remarried a Brazilian citizen in 2015. In 2016 a member of HMCTS staff discovered the error with the divorce.

In a bid to put things right, district judge Middleton-Roy amended the divorce decree stating that is had been granted on a different basis, and said that the divorce decree remained valid.

The Queen’s Proctor, a solicitor representing the crown in the courts of probate and divorce, said that the district judge had no power to retrospectively amend the divorce and that the divorce decree was void.

In his judgment published this week, Sir James ruled that the initial error made the divorce decree “voidable, not void”. He said that decree remained valid and that district judge Middleton-Roy had been right to seek to amend the divorce decree in the way he had. The case also exposed similar failures in several other divorce cases.

Giving judgment, Sir James slammed the system for failing M and P, who he said are “the innocent victims of failure by the court system” and mistakes made by court staff and judges. He said:

“The focus of the hearing was, inevitably, on the difficult questions of law … But it must never be forgotten that, at the end of the day, this application affects four human beings — P, M and their new spouses — in a matter which is of transcendental importance to all of them.”

Sir James also criticised the state for washing its hands of the problem its errors had created by refusing to grant legal aid to M or P, and leaving them to rely on the good will of the solicitors and barristers who represented them without charge.

He said: “The ultimate safeguard for someone faced with the might of the state remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. So the role of specialist family counsel, and of the specialist family solicitors who instruct them, is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented.”

Munby continued: “May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the bar than when one of its members is asked to act on behalf of a client facing the might of the state. The bar, I am sure, will never fail in its obligation to stand between crown and subject. And the same of course goes for the solicitors’ profession.”

But he said: “There is something profoundly distasteful when society, when government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the state is so conspicuously unwilling to do or to provide for.”

He did criticise the Legal Aid Agency, which he said “was, no doubt, operating within the confines of a system imposed on it by others”, but he said the parties could not possibly have been expected to argue a case of this legal complexity by themselves.

“What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation,” he said.

He continued: “The state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created to the goodwill, the charity, of the legal profession. For what brought this matter to court was, to repeat, failures, mistakes, by the State, by the court system, and, specifically by judges.”

He added: “Moreover, the application has been mounted by an officer of the state, the Queen’s Proctor. Yet the state has declined all responsibility for ensuring that P is able to participate effectively in the proceedings.”

“Why should the state leave it to private individuals to ensure that hapless individuals like P and M, victims of the state’s failings, are able to obtain justice? Or is society in the twenty-first century content with the thought, excoriated well over a century ago by Matthew LJ, that justice, like the Ritz, is open to all?”, Munby said.

“It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.”

He thanked the solicitors, Sundeep Budwal and Paul Nuttall from Duncan Lewis and the barristers Janet Bazley QC and Katherine Dunseath from 1GC Family Law for their “professional dedication, commitment and sense of duty so conspicuously shown”.

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27 Comments

Anonymous

Retired judge rants

(2)(17)

Anonymous

Student dickhead complains.

(19)(1)

Anonymous

Anonymous prick in comments gets beating

(1)(11)

Anonymous

Except….they don’t.

(10)(3)

Anonymous

Wanna bet, big mouth?

Anonymous

Yup!

No beating… I win!

Anonymous

With a stinking attitude like that it’s only a matter of time before you get a slap. Cock.

Anonymous

Student keyboard warriors are so cute.

Tell me about your extra curricular activities and predicted grades, hun.

I’m dying to know!

Anonymous

While Judges are themselves immune from civil suit, HM Courts Service is not.

All we need is someone brave enough to push to establish a duty of care from HMCS to the court users, and there would be liability in negligence.

That would make people take notice.

(7)(0)

Anonymous

Don;t see why they were negligent. It was the applicant that could not film in the form.

(2)(3)

Anonymous

I’ll explain to help you then. A ground for the application was that the couple were living seperately for at least the statutory 2 year period. At the date of filing the application, the statutory period had not passed. The judges should have noticed this when assessing the application in light of the staturtoy requirements.

(9)(1)

Anonymous

So? The judge was entitled to rely on the statement by the man that the period had expired. If he does not want to make accurate representations that’s his fault, the judge is entitled to rely on them.

(0)(3)

Anonymous

To be fair, you should be able to expect the judge to check this fairly basic point when it is needed to determine whether a statutory period has passed. This is especially the case when parties are not represented.

Frankly

Not everyone is impecunious. They think they can do it themselves because the form’s In English & they speak English, so why should they pay money to a solicitor or barrister- especially when the establishment is blowing smoke up their arse they DIY law works.

(0)(7)

Anonymous

What?

(3)(0)

Anonymous

Agreed. You certainly couldn’t with that dismal level of English.

(4)(0)

Anonymous

Now that’s how to write a judgment

It actually brought tears to my eyes!

(9)(0)

Anonymous

He takes a long time to say not a lot.

(4)(3)

Anonymous

Like most lawyers.

(2)(3)

Katy Carr

Surely this is a case in which it would be appropriate to make an ex gratia payment from public funds?

(2)(0)

Anonymous

Why should hard working taxpayers pay? These people filled in the form improperly and gave misleading information. Their problem.

(1)(3)

Andrea Calland

Mine is a completely different subject but still let down badly by the legal system. I was stung by a solicitor. They were supposed to be acting for me with regard to A,B and C relating to different med neg issues. When no causation came back with regard to my now destroyed spine….they dropped me withat regard to B and C and said “I’m sorry but we can no longer act for you. Issues B and C had nothing at all to do with A.
Can I ask, Why did they drop me and no longer represent me??? I’m baffled as they gave no excuse and also left me out of time to pursue it elsewhere. Now I have to live with something and someone in the mirror that I dont like.
Ivery been in touch with cosmetic surgeons and it’s going to cost ME around 13000 pounds to get my reflection back to ME. I was given prescription eye drops that has damaged my sight, only slightly. I could read without glasses but now I can’t.
The surrounding tissue is damaged and im left with ‘old woman’s eyes. This was never me and still isn’t. They blame me for having mental thoughts and anger issues and actually wanted to PRESCRIBE powerful anti psychotic drugs. Don’t make me laugh. My life was great before all of this happened.
Truly let down. I could go on but that’s just the tip of the iceberg.
I now have no fingernails nor toenails becoz of being lax and have ended up with an auto immune problem. Tests which I asked for 3 yrs ago and denied. Now it’s positive and I’ve suffered since 2013 and still am suffering. I hate my life.
Horrible

(2)(3)

Anonymous

I am sorry that has happened to you and you feel that way.

(2)(0)

Anonymous

As a top rate taxpayer sick of seeing spending wasted I do not support legal aid being available in any matrimonial matters unless there is a child in danger. It is just not necessary.

(6)(1)

Anonymous

I think I could stomach it extending to a situation where the State tells 2 people they’re now bigamists because the courts were wholly incompetent in handling their case. And where they paid the not insignificant court fees.

(3)(1)

Anonymous

I couldn’t stomach it.

(2)(1)

Anonymous

Are you a top tax payer with an intimate knowledge of Family law and procedure? Or just someone who looks at contracts and thinks they are special?

(0)(0)

Comments are closed.

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