THE GENERAL DUTY ON LAWYERS TO INFORM THE COURT IF IT IS OBVIOUS THAT THE TIME ESTIMATE IS INCORRECT

There is a judgment today on BAILLI in a family case. The case appears to be subject to reporting restrictions so I do not propose to link to it, or even name it, until these are clarified.  However what is important to all practitioners is the duty the court imposes on parties to ensure that time estimates, even those put forward by a judge, are realistic and remain realistic.   The case also contains some interesting observations in relation to delay and the (unusual) failure of a judge to perfect a written judgment.

“…there is a general duty on counsel and solicitors to inform the court if it is obvious that the time estimate is incorrect. Failure to do so is likely to result in the case not being heard and this plainly could have substantial costs implication”

THE CASE

The husband was appealing a financial award in a family case.

THE JUDGMENT ON APPEAL

“Mr Justice Francis :

1. 1. This is my Judgment in respect of an appeal by  … (to whom I shall refer in this Judgment as “the husband”) against an order made by His Honour Judge O’Dwyer in the Central Family Court in March 2018 following a draft judgment which was circulated on 19 December 2017.

   2. At the hearing below and on appeal before me, the husband was represented by Valentine Le Grice QC and the Respondent …  (to whom I shall refer as “the wife”) was represented by Nicholas Wilkinson of counsel. The appeal hearing took place on the 19 December 2018. Tragically, only a few days later, and completely unexpectedly, Mr Le Grice collapsed and died. Much has been said and will be said by others elsewhere but I cannot commence this Judgment without first paying tribute to one of the great, and greatly admired, family lawyers of his generation, and extending our deepest sympathy to the loved ones left behind.

Delay

1. This case has been beset by delay. The original hearing took place on 24, 25 and 26 July 2017. The case overran and so there were two further days on 20 and 21 November 2017. The Judge circulated a draft Judgment on 19 December 2017 and he asked for any suggested amendments to be provided to him by 8 January 2018. Although these amendments were provided, albeit a few weeks late, the Judge has never circulated a perfected Judgment.

2. Mr Wilkinson, for the wife, sent a draft order to Mr Le Grice on the 12 January 2018. After some reminders, Mr Le Grice returned an amended draft order on 6 February 2018. Counsel were unable to resolve the parties’ remaining differences and agreed that it would be necessary to have a further hearing. This further hearing took place on 7 March 2018. Mr Le Grice sought permission to appeal on behalf of the husband but this was refused by the Judge. No perfected Judgment was handed down. Mr Le Grice emailed the Judge’s clerk enquiring about the final Judgment on 15 March, 20 March and 26 March 2018. On 5 April 2018, Mr Le Grice’s clerk hand-delivered a letter for the Judge at the Central Family Court which enquired about a final Judgment, enclosed a further copy of the agreed amendments and repeated an earlier offer to carry out the amendments. No reply was received to that letter.

3. Thus it is that we have neither a final version of the Judgment nor an agreed order, still less a sealed order. For the purposes of this appeal I treat the draft Judgment dated 19 December 2017 as the Judgment and I treat the draft order prepared by counsel as the order under appeal.

4. The failure to produce a sealed order led to considerable difficulties in the husband’s solicitors issuing their notice of appeal. Mr Wilkinson, for the wife, contends that the notice of appeal should have been issued within 21 days of the decision, in this instance being either the draft Judgment or the draft order. It is, of course, the case that pursuant to rule 30.4(2)(b) FPR 2010, the husband had 21 days from the date of the Judge’s decision to lodge an appellant’s notice. Mr Wilkinson initially contended that the imposed time limits should have been adhered to and that, as no application has been made by the husband for permission to vary the time limit for appeals, permission should not be granted. However, I was told by Mr Le Grice, and accept, that the court office would not issue, and therefore would not date or seal, the husband’s notice of appeal without there being in place an order which was under appeal. Accordingly, it seems to me that it would be unfair and prejudicial to the husband to hold the relevant time limits against him in circumstances where those acting for him have done all they reasonably can to progress the application for permission to appeal. Upon hearing Mr Le Grice’s explanation in full, the wife did not maintain her objection in this regard. I anticipate that these are extremely unusual circumstances, it being mercifully rare to have a situation where the Judge fails to perfect either his Judgment or his order. In the unlikely event that this should ever happen again then I suggest that, if repeated attempts to persuade the judge to finalise his order fail, the matter is taken up with the office of the President of the Family Division.

5. Baker J (as he then was) considered the notice of appeal on paper and on 8 August 2018 he ordered that the application for permission to appeal against the periodical payments order included in the order of HH Judge O’Dwyer dated 7 March 2018 was to be listed for an oral hearing with the appeal to follow immediately if permission was granted. He listed the appeal for one day, plus half a day’s pre-reading. As soon as I saw the papers in this case on 18 December 2018 it was apparent to me that it would be impossible for this case to be heard and a Judgment delivered in one day. I have a bundle containing almost 400 pages as well as a bundle of 19 authorities from Mr Wilkinson and 5 authorities from Mr Le Grice. Further authorities were handed up during the course of the hearing. My options on 19 December 2018 were either (a) to adjourn this case for a proper listing or (b) to hear it but reserve Judgment. Neither of these options was satisfactory but it seemed to me that, given the history of delay referred to above, adjourning it for what would have been very many months would have been contrary to the interests of justice. My delay in delivering this reserved Judgment, whilst advertised clearly to the parties, has been a consequence of a full diary throughout this year to date. Whilst I accept that in this case the time estimate was initially made by Baker J (who disagreed with the longer time estimate suggested by Mr le Grice) , there is a general duty on counsel and solicitors to inform the court if it is obvious that the time estimate is incorrect. Failure to do so is likely to result in the case not being heard and this plainly could have substantial costs implications.”