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FAMILY LAW PROCEEDINGS: Equity Solicitors v Javid [2009] EWCA Civ 535

Date:20 MAR 2009

(Court of Appeal; Wilson LJ and Holman J; 20 March 2009)

The wife in divorce proceedings could speak only Sylheti. She sought legal representation, wishing to defend the decree nisi. A solicitor who spoke Sylheti agreed to act for short while, but as the firm in which he was a partner did not have a legal aid franchise, he did so on a pro bono basis and also offered to find legal aid firm to take the case. He filed a notice of acting before attending court for a directions hearing. The solicitor personally contacted another firm with a Sylheti speaker, and arranged with them that they would attend the forthcoming hearing on the wife's behalf. Two days before the hearing the solicitor personally delivered the case file to the new solicitors, and wrote to both the wife and the court, explaining that he was being replaced by another firm and that accordingly he would not be attending the hearing. The replacement firm did not attend court either, and the husband's solicitors sought and obtained a wasted costs order against the first solicitor; the judge ruled that the first solicitor had failed to follow the proper procedure, and appeared to quote from the solicitor's letter to the court to the effect that 'We have removed ourselves from the court record'. The first solicitor appealed.

The appeal would be allowed. The judge had failed to quote the letter accurately; in fact the letter had contained no reference to removing the firm from the court record. It had been wrong and unfair to characterise the solicitor as having 'foolishly' put himself on the court record; he could not have represented the wife at all without doing so, and he had generously been representing her pro bono. In the circumstances the solicitor had been fully entitled to rely on the replacement firm filing the notice of change, rather than waiting for a notice of change; a partner in one firm was entitled to rely upon assurances given to him orally by the senior partner of another firm. This was a cautionary tale against hasty and insufficiently considered applications for wasted costs orders. It had been ill judged of the husband's solicitors to proceed after finding out the lengths to which the first solicitor had gone to assist the wife in the proceedings. The case was also an object lesson to judges, in that if a judge was to place decisive reliance on a letter, he or she must either quote it accurately or at least summarise it with a punctilious degree of care.