Davy-Chiesman v Davy-Chiesman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE DILLON,THE MASTER OF THE ROLLS |
| Judgment Date | 18 November 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1118-1 |
| Docket Number | 83/0455 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 1983 |
and
[1983] EWCA Civ J1118-1
The Master of The Rolls
(Sir John Donaldson)
(Not Present)
Lord Justice May and
Lord Justice Dillon
83/0455
NO. 867 of 1980
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (PRINCIPAL REGISTRY)
(MR. JUSTICE LATEY)
Royal Courts of Justice.
MR. IAN KENNEDY, Q.C. and MR. IAN HUGHES (instructed by the Secretary General, Law Society) appeared on behalf of the Appellant Law Society.
MR. SWINTON THOMAS, Q.C. and MR. DUNCAN MATHESON (instructed by P.E. Putt, Esq., Area Secretary) appeared on behalf of No. 14 (London West) Legal Aid Area.
MR. KENNETH MACHIN, Q.C. and MR. JOHN CAUDLE (instructed by Messrs. Ralph Haeems & Co.) appeared on behalf of the (Second Respondent) Respondent.
This is an appeal with leave from a judgment of Mr. Justice Latey of the 3rd February, 1983. He then had before him an application by the Law Society made pursuant to order 62, rule 8, of the Rules of the Supreme Court in respect of the costs of certain proceedings between a divorced husband and wife. Those proceedings related to financial relief claimed by the former who was in receipt of legal aid under a legal aid certificate in which a member of the respondent firm of solicitors was the nominated solicitor. The nature of the relief sought by the Law Society will appear more clearly after a recital of the relevant facts. For the sake of convenience, although they are now divorced, I shall refer to the two lay parties principally concerned as husband and wife.
In the early 1970s the wife was a very successful business woman. She had created a chain of employment agencies both in England and other countries abroad. Her husband was also a business man. The two of them met in 1974 and began to live together in December 1974 in a house, Tudor Orchard, which the wife had bought before she and the husband had met. Their only son, Marcus, was born on the 4th May, 1976. On the 29th May, 1976 they were married. In the meantime the husband had been involved in serious criminal frauds in respect of which he was convicted in January 1977 and sentenced to six years' imprisonment. In addition he was made the subject of a criminal bankruptcy order originally in the sum of £1,250,000, although I understand that his liability has been re-assessed at something of the order of £200,000.
In January 1979 the wife presented a petition for divorce based on "behaviour", to use the shorthand term. The husband defended the suit which was heard in July 1979 by Mr. Justice Dunn (as he then was). After a three-day hearing the learned judge dismissed the petition, holding that although the husband's criminal conduct had been a cause of the breakdown of the marriage, the major cause was the wife's infatuation with another man she had met in 1978, after the husband had gone to prison. That affair had come to an end long since.
In January 1980 the husband in his turn presented a petition based on adultery with the man just mentioned. In addition to the normal prayers for dissolution and custody of the infant child, by his petition the husband also asked for financial relief of all the forms contemplated by section 23 (1) of the Matrimonial Causes Act 1973 as well as appropriate property adjustment orders under the provisions of section 24 (1) of the same Act. In so far as dissolution was concerned, the husband's petition was uncontested. There was a decree nisi in February 1980, which was made absolute in August 1980.
On the 7th January, 1981 the husband gave the usual notice of his intention to proceed in the suit for financial relief, referring to his prayer for periodical payments, secured periodic payments, lump sum and property adjustment order.
On the 7th March, 1981 the husband applied for legal aid to be heard on the questions of custody, access and financial relief. He had hitherto been represented by solicitors who are no longer concerned in any way in these proceedings. They withdrew on the 20th November, 1981. On the 1st December, 1981 the firm of solicitors, Messrs. Ralph Haeems & Co., were instructed on his behalf. A particular partner of that firm has been concerned with this matter throughout.
On the 25th February, 1982 the Law Society issued a legal aid certificate to the husband to enable him to be represented on applications for financial provision and access to the child of the family, but limited to the preparation of papers for counsel and obtaining counsel's opinion. This condition required the papers and that opinion to be referred back to the General Committee when available for decision whether the certificate should be amended or discharged.
On the following day, the 26th February, the solicitor with his lay client had a conference with counsel. It is clear from the solicitor's attendance note, which we have seen, that the first question which he raised with counsel was whether any lump sum ordered to be paid by the wife to the husband would go straight to the latter's trustee in bankruptcy. In an affidavit sworn on the 31st January, 1983 the solicitor agreed with the husband's evidence about what took place in this conference contained in an affidavit sworn by the latter on the same day. The husband said that discussion did take place about whether the trustee in bankruptcy would be able to seize any lump sum ordered to be paid to him, the priority of the statutory charge of the Legal Aid Fund, and whether it was still practicable for him to claim periodic payments from the petitioner. He went on to say that in this conference counsel had advised that it would not be possible for the husband to obtain an order from the court for a trust to be set up for the child of the marriage. Counsel said that there had been a number of decisions of the court on this topic some three years before. However, although the solicitor said that he agreed with the evidence given by the husband in his affidavit to which I have just referred, he went on to say that the purport of counsel's advice was that the petitioner was entitled to a lump sum and provided that it was wanted for a genuine need the official receiver would not be entitled to seize it. When he was cross-examined at the hearing before Mr. Justice Latey of the application from which this appeal is brought, he effectively told the learned judge that at this conference of the 26th February, 1982 counsel had advised that any lump sum which the court saw fit to order should not go to the husband but should go to trustees for the benefit of the child. This was of course contrary to the evidence of the husband in the affidavit to which I have just referred and with which the solicitor agreed in his affidavit: it was also contrary to advice given in an earlier opinion by counsel in February 1979, although this of course had not, at least by then, been seen by the solicitor. It is also to be remembered that according to the latter and the husband in their affidavits of the 31st January, 1983 at least one thing which counsel had advised was that no court would make an order for a trust in favour of the child. There has clearly been some confusion, at least in the solicitor's mind, about what counsel was advising in this conference, but taking everything into account I think it is clear that the latter was advising that no lump sum should be payable direct to the husband: if it were, then it would be taken immediately by the trustee. For my part, even though the solicitor may not have been very experienced in divorce work, I would have expected that this would have been apparent to any competent solicitor who had the fact of the husband's bankruptcy in mind. That the point was present to the mind of this solicitor is quite clear from the first question in his attendance note on this conference.
In any event, the point was made quite clear in counsel's written opinion on the 2nd March, 1982. It is necessary for me to quote specifically from it. The third paragraph was in these terms:
"The position with regard to the pending application for financial relief is somewhat more complicated. In my opinion, on the face of the Affidavits before me, he would be entitled to periodical payments from his former wife. His criminal bankruptcy effects that claim only marginally by reason of the discretionary power of the trustee to appropriate part of the maintenance payments for the benefit of his creditors. With regard to his application for lump sum provision, if he were to obtain an order for lump sum provision the whole of that sum would be appropriated by the trustee for the benefit of his creditors. However, the purpose of Mr. Davy-Chiesman in making this application is to obtain a home for himself and a home in which he could have his child to reside with him. He could, in my opinion, succeed in that application not by obtaining a lump sum order but by obtaining an order that money be settled upon trustees to purchase for his use a house. That, undoubtedly, in my opinion, would be the appropriate course for Mr. Davy-Chiesman to take in this particular matter."
Counsel then went on to deal with a possible application for periodical payments and returned to the question of any lump sum payment and the position of the trustee in bankruptcy later in his opinion where he wrote:
"With regard to Mr. Chiesman's application for lump sum provision that would undoubtedly constitute after-acquired monies which the trustee would be able to appropriate for the benefit of...
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