ANDRZEJ BOJARSKI
FAMILY LAW BARRISTER, ARBITRATOR AND MEDIATOR
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Has Forum Shopping Had its Day?

3/21/2014

10 Comments

 
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London is regularly referred to as the ‘divorce capital of the world’, principally because the law in England and Wales is felt to favour the economically weaker spouse.  It is generally felt that the wife of a rich man is likely to be better off getting the divorce resolved in England than elsewhere.  If possible, London is the obvious place to go for such a spouse.  (I have written here before about the ‘race to divorce’ this can create.)

We have seen another phenomenon in recent years too: domestic forum shopping.  That is when a divorcing party who lives in England or Wales, but outside London, brings his or her case in London or another distant court in the hope of a better outcome.  Often parties choose to have their divorce dealt with in the Principal Registry of the Family Division rather than at their local County Court.  Sometimes this is because they have decided to instruct London based lawyers, and the London court is cheaper and more convenient for the lawyers to get to than a County Court far from London.  Other times, the parties have lawyers in their hometown but one of those lawyers decides to issue the proceedings in London.  Increasingly we have seen firms traditionally based outside London, opening offices in London to serve the work they are issuing here.  In very high value or complex cases, especially those with an international element, this is understandable.  Those cases need the expertise of a High Court judge.  But quite often the cases do not meet those criteria.  They are often not ‘big-money’ cases involving millions, but what I call ‘middle-money’ cases which could be dealt with just as easily by a local District Judge in a local court.  The reason for issuing in London?  Generally, a perception that the judges in London are more willing to make larger provision for the wife than in provincial courts.  The consequences?  The London court is extremely busy and the waiting times for hearings are very long.  The costs are often higher too.

Is this going to change?  I think there is a reasonable prospect that it will, for three main reasons. 

First, the recent Law Commission report on Matrimonial Property, Needs and Agreements, has noted that there is an unacceptable difference in approach to the assessment of ‘needs’ in courts around the country, especially in the Principal Registry and High Court in London compared to other courts.  The Law Commission has proposed that the Family Justice Council prepare clear guidance to judges as to how needs should be assessed.  Once this is done it is hoped that this will be adopted in a way similar to the Judicial Studies Board’s Guidelines for the Assessment of Damages in personal injury claims.  The brackets set by those guidelines are rarely strayed from.  Once the family guidelines are in place it might be expected that the current regional variations in approach to quantifying financial settlements might diminish to the point that there is no advantage to choosing one court in favour of another.

The second factor is a clear policy on the part of the judiciary to move more work to specialist court centres outside London, and to encourage more litigation generally to be conducted by lawyers and by judges based outside London.  In October 2013 the Lord Chief Justice, Lord Thomas, spoke about this in the Birkenhead Lecture a Gray’s Inn.  He noted the extent to which litigation in all areas of work seemed to gravitate towards London despite the presence of specialist courts around the country.  The effect on this on fees was noted.  In a recent Divisional Court case he had sat on the parties included the Coal Authority and Welsh local government authorities.  The Coal Authority instructed the Sheffield branch of a national law firm.  The hourly rates charged by that office were partner £198.12, solicitor grade C £170.69, trainee £96.52.  The local authorities instructed the London office of the same solicitors.  The hourly rates of the London officer were partner £510, solicitor grade C £221, trainee £148.75.  The court noted that ‘we have seen their work and the work is of exactly the same standard; indeed the Sheffield one can be said to be a little better.’  Ouch!  It seems likely that parties in civil cases who unreasonably instruct London lawyers or unreasonably issue proceedings in London may fail to recover the extra costs this incurs.  In financial remedy proceedings after divorce, however, costs are rarely awarded against the other party, so this may be more difficult for the courts to control.  Nevertheless, it is a factor where pressure is likely to be brought to bear.

Third, from April 2014 (assuming everything comes together in time) there will be a single Family Court for England and Wales. No longer will each area have its own family county court, with the Principal Registry and Family Division of the High Court being separate courts in London.  These courts will all be unified, theoretically making it easier to ensure that cases are heard and administered in the court centre which is most appropriate for the parties.

I expect there to be less tolerance of ‘forum shopping’ within England and Wales in the future.  It might be time to remind yourself where the local County Court is based!


10 Comments
Fiona Cameron-Greenslade ( make it anonymous please)
3/30/2014 09:32:21 pm

Interested to see your article.
I have just HAD to move my 4 year divorce financial actions to the PRFD in London, from Nottingham County Court after some really dreadful experiences and DJ decisions there.
My solicitors in Nottingham had gone bust at a mid point, and I had tried to represent myself after that- the Nottingham county court-my local one- made 3 horrendous decisions/orders that I had then to appeal.
I gave in and hired London solicitors Levinson,Meltzer Piggott-as my ex was in London.
They were shocked /appalled at the orders that had been passed "against" me,as the orders had neither followed legislation or professional practice,and had fundamentally contravened my right to any fair hearing/outcome etc.
It was and is very shocking to hear.I didn't have much money...I have had to borrow money from friends to fight a non-paying ,recalcitrant ex husband or go bankrupt with a daughter to support and he is a high earning "self -Employed"( clichés abound)...and then I found out I was also fighting the local court system
I have been to see my local MP,Ken Clarke, to tell him about these situations. I am not the only women to have found this with Nottingham, I have 4 other friends with similar stories.....
I am appalled that this is not an unusual situation here...
SO off to London now....
No wonder people are having to resort even in "ordinary" cases, to a court that I am hoping can follow legislation and practice and fairness,and be on the ball to avoid the time/money and court wasting practices that everyone is aware of! I am waiting for my first hearing date in the PRFD...SO we will see -I truly hope they are on the ball as they are reported to be! THank You for your article

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    Andrzej Bojarski

    is an experienced family and divorce lawyer with an international profile as an advisor and advocate in the most difficult family cases. He also applies his skills to resolving family disputes by alternative dispute resolution.  Regularly called upon to lecture and write on family law issues around the world, he also provides legal commentary by social media.

    © Andrzej Bojarski. Unauthorized use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrzej Bojarski with appropriate and specific direction to the original content.

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