Law and Legal affairs: Presidential displeasure

Published on Friday 19 November 2010 15:50

When the Lord President rips into virtually everyone involved in a case, it is sensible to pay attention.

Only the sheriff, Wylie Robertson, was spared lacerating comment in Lord Hamilton's leading judgment in October dismissing the appeal brought by a father against a decision in Stirling Sheriff Court to deny him contact with his ten-year-old son.

Newspaper headlines concentrated on estimates that the case had cost "about 1 million, of which by far the largest proportion has been borne by the Legal Aid Fund". According to Lord Hamilton, "we were told that in cases of this kind such protracted proceedings are not uncommon. We regard this, if accurate, to be a highly unsatisfactory state of affairs."

The proof in the original action had run to 52 days of evidence, interrupted by a two-day legal debate.

The good news for the Lord President is that statistics from the Scottish Legal Aid Board (SLAB) for October 2009-September 2010 show it funded a total of 2,119 child contact cases at a total cost of 5,404,271 - an average of 2,550 per legal aid award.Sometimes both parties are legally aided so the total cost in those cases will be higher.

Most cases took one to two days. The most in which the final account has been paid during the year cost 69,878.

The case on which Lord Hamilton based his observations is clearly exceptional and it is hard to pin down the components of the estimated 1m cost. It seems SLAB is anticipating a bill closer to 400,000.

The bad news, however, is that the case isn't over yet with an appeal to the UK Supreme Court in prospect - challenging some of the sheriff's findings of fact that were accepted by the appeal court.

Apart from the arithmetic, important though it is, the judgment went on to raise more fundamental issues - for the conduct of child contact cases in particular, but also in other areas where the general public bumps up against the legal profession. What is the balance of a lawyer's obligation to his or her client and to the court - in lay terms, to check whether the client's assertions are true and relevant before banging off a letter to the other side or rattling up a writ?

In the case in point, the sheriff had excoriated both the parents involved: "Each was argumentative and intemperate; the defender (the mother] is the quicker to anger; the pursuer (the father] has been violent towards the defender - apparently a single incident which resulted in serious injury.The pursuer, the sheriff found, was often sanctimoniously dogmatic and insensitive; the defender gave false testimony - about her academic qualifications - and had made false and misleading statements to the Child Support Agency."

But the appeal court directed its fiercest fire at the legal teams. Relations had evidently become less than cordial with Sheriff Robertson. Lord Hamilton stated: "Professional advisers have a duty to take steps to identify and concentrate on, and only on, the issue - the welfare of the subject child or children. Exploration of every byway in the relationship between the parents must be avoided.

"Professional advisers have a duty not only to their clients and to the court but also, in cases of this kind, to the subject child or children.

"If, as is suggested, the present case is not atypical, it may be that the liberty which professional advisers have hitherto enjoyed in this field should be curtailed."

Suggesting there is little a sheriff can do if the respective legal teams are testing every allegation to destruction, Lord Hamilton referred to a 1992 judgment that had been similarly protracted and led to the development of practice notes for adoption cases.

He concluded: "It might well be that consideration should now be given to issuing such notes in relation to a wider class of case involving the welfare of children."

In England, there is a growing feeling that the adversarial arena of the courtroom is unsuited for most child contact cases and often encourages the parents to take up fixed, hostile positions that are not focused on the best interests of their children.

Most solicitors acknowledge that as a general proposition. But they are also privately reporting on an individual basis that they find themselves under pressure to talk up allegations of domestic or child abuse to gain some perceived tactical advantage for their client.

The code of conduct for solicitors and advocates is explicit - they must not make a statement in court without having reassured themselves of its veracity. Yet there is no such clarity about how or whether they should strive to check allegations or assertions that might drive the case along adversarial lines long before going to court.

Against a backdrop in which politicians and media sometimes blur the distinction between allegation and fact, it might be for lawyers to refresh their view of the balance of their obligations.

"We are not puppets of our clients," says Kim Leslie, partner at Digby Brown and convenor of the Law Society of Scotland Civil Justice Committee. "A solicitor shouldn't just be a mouthpiece for everything the client says.

"You should take reasonable steps to check there's a basis to any allegation and certainly shouldn't be urging a client to say things that aren't true. It is a fundamental principle that any allegation made under your name is likely to have to be proved at some point."