Family lawBy David Burrows, David Burrows, BristolApplication of White v White in practiceDharamshi v Dharamshi (5 December 2000, to be reported) and N v N (26 January 2001, to be reported)In the above two cases, Mr Justice Mr Justice Coleridge provided two early interpretations of the judicial role following White v White [2000] 2 FLR 981, HL.

Both were relatively large money cases, and in both there was a business run primarily by the husband.

In Dharamshi the court heard argument before White had been decided, but received further written argument and gave judgment afterwards.Unquestionably White caused the two courts to reflect before giving judgment.

Lord Justice Thorpe, in a passage cited by Mr Justice Coleridge, characterised White as establishing two principles where the available assets exceed the parties needs: there must be no gender discrimination in application of the factors under section 25 of the Matrimonial Causes Act 1973; and that as a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so (per Lord Nicholls of Birkenhead in White).

Dharamshi v DharamshiIn Dharamshi, on the husbands appeal, the court reviewed the decision of the judge below: namely that W should have approximately 1.3 million from family assets of around 4.8 million (following sale by the husband of his business for 4.5 million); but this figure took account of a CGT liability on the husband of a possible 1.8 million.

If the Capital Gains Tax (CGT) liability fell in, W would have around half the assets; if CGT was saved she was to have 25% of the resulting saving.

Tested in the light of White the judges decision came remarkably close to what might have been expected to be an appropriate approach (save possibly for the CGT lump sum).

The Court of Appeal therefore took the view that the order was well within the ambit of judicial discretion and disallowed the appeal.

N v N While he was still at the bar, Mr Justice Coleridge was in the case of White.

He characterised N v N as a classic of its type, saying that it illustrated some of the very real, practical difficulties which courts confront when trying to achieve the overall aim of White, and adding: The theory behind White is one thing, the actual practicalities involved in valuing, dividing up, and/or realising certain species of assets make the attaining of the White objective sometimes either impossible or only achievable at a cost which may not overall be in the familys best interests.In N v N the husband was an accountant, described as a workaholic, who had built up his firm and a couple of fast-growing companies in the services sector, such that the judge estimated the parties assets (mostly the husbands shares in the companies) at 2.6 million.

Of this he gave 1 million to the wife, a figure which would meet her reasonable needs both for housing and income.

Then, in a part of the judgement, as interesting as any, the judge set about regulating the orderly way in which payment of this sum was to be made: if the golden egg-laying goose must be sold her egg-laying abilities [must be] damaged as little as possible in the process.

White and the family businessDo N v N and White spell the end of any special protection for the small or family business? (in Dharamshi, the business was sold by the time of the hearing).

Are the strictures of Mr Justice Anthony Lincoln (B v B (Financial Provision) [1989] 1 FLR 119) and others (for example, Mr Justice Booth in Evans v Evans [1990] 1 FLR 319) at the waste of money in valuing a business which was not to be sold a matter of history? Will business valuations in their sometimes perplexing variety (see Anthony Lincoln J in B v B again) be a matter for evidence and argument all over again? Perhaps.

But in the final analysis, the lawyers must clearly enunciate the issues in the case: that will determine what is relevant for the courts consideration.

Issues stated, it is time for calm reflection on what is truly proportionate to those issues.

And finally, as with any other opinion evidence in ancillary relief proceedings, only the court can permit valuation evidence (Civil Procedure Rules 1998 rule 35.4 as applied by Family Proceedings Rules 1991 rule 2.61C; and see Barings v Coopers below).New rates for legal aid lawyersYou read it first in the Gazette; and from 2 April 2001 it is happening.

We are told that the Lord Chancellor is anxious to stem the drift or is it more like a stampede? from legal aid work by family and child lawyers (The Guardian, 19 March 2001).

So this is it: the rates for franchised family legal aid practitioners goes up by 10% (Legal Aid in Family Proceedings (Remuneration) (Amendment) Regulations 2001); though, be it noted, that is 10% on rates of nearly five years ago.

Thus it represents, in reality, only a lessening of the legal aid practitioners loss, not a real gain.

In addition Solicitors Family Law Association Accredited Specialist Panel members and members of the Law Societys Children Panel receive an amount 15% higher than the amounts generally prescribed for family work as set out in the new regulations.

For Children Panel members the certificate under which the enhancement is claimed must include proceedings in which the welfare of children is determined.

In both cases the panel member must do the work: it is not merely a question of getting his or her name on the certificate and then delegating all legal aid work to other members of staff.This uplift represents a starting-point, not a ceiling: it may be possible, as previously, to argue for an enhancement based on exceptional competence, expedition or other exceptional circumstance.The role of expert evidenceBarings v Coopers and Lybrand (2001) The Times,7 March, Evans-Lombe JThis case is a reminder that expert evidence may be excluded if it is not regarded as helpful to the court (Bown v Gould & Swayne [1996] PNLR 130).

Opinion evidence generally should be tested less by its admissibility that by its weight in the context of the case.

If the evidence went to the issue in the case, it was still for the judge to decide that issue, but he or she might yet gratefully hear expert evidence on the subject (Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195, CA).