COUNSEL’S ADVICE IS NOT EVIDENCE: REALLY, ITS NOT.
There is an interesting consideration of the role of counsel’s advice in the judgment of HHJ Vincent in AZ v BZ (financial remedies appeal)  EWFC 28. In a financial remedies hearing, a judge was wrong to firstly admit, and then rely on, counsel’s advice in relation to a personal injury settlement.
“This document was an extract from counsel’s opinion. The document was neither expert opinion, nor a witness statement of fact.”
The husband was appealing a decision of a District Judge in a hearing for financial remedies. The vast bulk of the matrimonial assets had been awarded to the wife. The wife was a litigant in person throughout. One of the grounds of appeal was that the District Judge had wrongly admitted evidence. The wife had been involved in clinical negligence litigation sometime before and awarded damages. As part of her case she presented extracts from counsel’s opinion in that case. That “evidence” had been admitted by the District Judge.
THE DISTRICT JUDGE’S APPROACH TO COUNSEL’S OPINION
10. The judge found that the wife was earning around £1,000 a month as a GP’s receptionist. The wife gave evidence that she was training to become a counsellor. There was no evidence before the Court about what the wife might expect to earn in the future once qualified. The District Judge relied upon an extract from counsel’s opinion in relation to her claim against the NHS to conclude that it was not reasonable or realistic for the wife to increase her working hours in the future, whether as a receptionist or a counsellor. The wife continues to live in the four bedroom housing association property which had been the matrimonial home. The tenancy was in both parties’ names, but the husband agreed it should be transferred to the wife’s name only. The monthly rent was £680 a month.
18. Basing her opinion on the extract of counsel’s advice, the judge found that the wife would need £180,000 to cover future loss of earnings, loss of pension and other expenses, because she was not able to work at the level she had before receiving treatment for cancer, and would not be able to increase her working hours now or in the future.
THE CIRCUIT JUDGE’S VIEW OF THE EXTRACT FROM COUNSEL’S ADVICE
27. In my assessment the decision to admit the extract from counsel’s advice in respect of the clinical negligence claim at the last minute was wrong. The judge then placed significant weight upon this document as evidence of the wife’s future need. If the wife had raised at an earlier stage of proceedings that she wished to rely upon it there would have been the opportunity for full argument about whether it was admissible at all, and if so, what status it had as evidence. There would have been less room for confusion or misunderstanding as to the approach the Court should take to personal injury awards received during the course of a marriage. Instead, the judge directed herself that the test to apply was whether or not the wife’s needs outweighed the husband’s needs. However, the wife’s needs was just one factor to consider among all those on the section 25 checklist and should not in my judgement have been regarded as a decisive factor.
The Circuit Judge held that the District Judge had been entitled to allow the wife to file a section 25 statement late.
However, in my judgment the judge fell into error in her approach to the twelve-page extract from counsel’s advice in respect of the wife’s previous negligence claim. The previous directions required that the parties exchange documents they wished to rely upon concerning this claim by 28th June 2019, and significantly, four weeks before section 25 statements were due to be filed. The wife’s documents came over a hundred days’ late.
This document was an extract from counsel’s opinion. The document was neither expert opinion, nor a witness statement of fact. The husband had no opportunity to challenge its contents by asking questions of its author, whose identity was unknown. He had no opportunity to respond to it as was envisaged by the Court timetable, in the evidence he gave in his section 25 statement, or to submit other relevant evidence to the Court in response. The twelve-page extract sets out each of the heads of loss claimed in the schedule. The concluding section of the note, presumably giving advice as to what might be realistic to expect being awarded under each of these heads of loss, is missing. The advice was prepared about five years before the final hearing, so it is questionable how relevant it was to the wife’s current financial position. The best that can be said of it is that it provides some evidence of the way the damages claim was formulated.
The judge was put in a difficult situation because she did not have any information from the wife about what she might expect to earn in the future as a qualified counsellor. It is not clear upon what evidence the judge relied to find that the wife would be unable to increase her working hours in the future, there was no medical evidence about this. It appears that the judge relied substantially upon the section of counsel’s advice to make the findings she did about the level of the wife’s future financial need. In my judgment she was wrong to do so.