Family law

Lump sum on variation of periodical paymentsCornick v Cornick (No 3) [2001] 2 FLR 1240, Mr Justice CharlesSince 1 November 1998, it has been open to the courts to order payment of a lump sum or property adjustment on dealing with an application for variation of periodical payments (sections 31(7A) and (7B) of the Matrimonial Causes Act 1973).Thus far, there is little case law guidance on how this power should be used.

In Cornick, Mr Justice Charles considers the question of quantification of any capital provision.

He explains the earlier Court of Appeal decision in Harris v Harris [2001] 1 FCR 68, CA; and looks at section 31(7B) through the prism of White v White [2000] 2 FLR 981, HL.The decision in Cornick (No 3) was made against the background of an order for a lump sum and periodical payments made in 1992 and increased periodical payments made by Mr Justice Hale in 1994.

By this time Mr Cornick's capital and income had substantially increased (which had given rise to an earlier unsuccessful application by Mrs Cornick for leave to appeal out of time).

By 2000 Mr Cornick's income had increased still further and his capital had risen from around 600,000 to 11,500,000.

Meanwhile, Mrs Cornick's earnings were minimal; and there was no real issue but that she could do little to improve her earnings or earning capacity.

Both parties were aged 57.

Mrs Cornick had moved to Australia where she lived with the couple's dependent children, girls aged 22 and 20.Both parties wanted the periodical payments capitalised.

Mr Justice Charles considered disposal under section 31(7B) at some length.

He rejected a simple Duxbury approach.

It is not enough, especially after White and in the light of the language of sections 25(2) and 31(7) of the Matrimonial Causes Act 1973 (court to take into account all the circumstances of the case including any change of the section 25(2) factors) merely to take a figure for periodical payments and apply a Duxbury multiplier.

Nor can the improvement in Mr Cornick's finances be ignored (just as a worsening in his position would not be).

The court must balance a proportional approach against a purely budgetary approach, that is to say, the court looks at the whole picture rather than merely adjusting Mrs Cornick's original budget.Mr Justice Charles awarded Mrs Cornick 800,000 which was based on a relatively generous approach to the varying Duxbury calculations put before him.

Of the three reported Cornick decisions - all significant in their different ways - the score is 2-1 to Mrs Cornick; and No 3 (unless there is an outstanding costs issue or an appeal), designed as a clean-break, surely brings down the curtain.Practice - incapacitated adultsPractice Note (Family Division: Incapacitated Adults) (2002) The Times, 4 January requires that all permanent vegetative state cases be issued in the Principal Registry of the Family Division.

They will be tried by the president or a nominated judge.

Claims can be issued in a district registry, but will be tried by a Family Division judge who will also give any directions.Wasted costsSection 51(6) of the Supreme Court Act enables the court to make an order for wasted costs against the legal representative (barrister or solicitor or both) of one party.

This means 'any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative....' (section 51(7); as explained by Ridehalgh v Horsefield [1994] Ch 205, [1994] 2 FLR 194, CA).

The family lawyer meets the jurisdiction all too frequently, especially when acting for publicly funded clients - see Brown v Bennett (right).Extent of liabilityBrown and anor v Bennett and ors [2001] NLJ 1733, Mr Justice NeubergerIn this case, Mr Justice Neuberger had to consider the extent of liability of legal representatives for wasted costs where legal aid is withdrawn from a claimant shortly before trial (and see R (Machi) v Legal Services Commission [2001] EWHC Admin 580, Mr Justice Ouseley - limitation on the right of the Legal Services Commission to withdraw funding just before trial).

He defined the issues for determination by the court as: (a) the scope of the wasted costs jurisdiction to make orders against barristers even though they have not ultimately appeared as advocates at trial; (b) the extent to which solicitors can rely on the advice of barristers; and, (c) the extent to which the court can assume the claimants would have proceeded to trial without the improper advice of their legal representatives.In answer to (a), Mr Justice Neuberger held that the 'right to conduct litigation' (section 51(13) of the Supreme Court Act) was a right implied by the client's retainer of lawyers and did not restrict the scope of the jurisdiction.

The answer to (b) is Davy-Chiesman v Davy-Chiesman [1984] Fam 48, [1984] 2 WLR 291, CA.

Solicitors may not blindly follow counsel.

It will be a matter of degree and of the solicitor's judgment in each case.The judge dealt primarily with (c).

He defined the question for the court as: was it more likely than not that the funded client would proceed to trial without legal aid and on the assumption that the Legal Services Commission would be told that the case had the appropriate prospects of success?Although, in this case, Mr Justice Neuberger held that the costs would not have been incurred on this test, the application for an order was refused because the pleading in the particular case could be justified and the clients here had refused to waive privilege in respect of advice given to them.Liability of former solicitorByrne v Sefton Health Authority (2001) The Times, 28 November, CAByrne answers a simpler question: can the court order wasted costs against a legal representative who has ceased to act for the client and who has neither issued the proceedings nor done any of the acts regarded as 'conduct of the litigation'? Mr Byrne's claim in clinical negligence was dismissed on limitation grounds when subsequent solicitors were acting for him.

Wasted costs were sought against his earlier solicitors.

An order could only be obtained against them for acts ancillary to litigation; but, as Lord Justice Chadwick points out, the complaint giving rise to the defendants claim was precisely that they had failed to do any such acts.

Though Lord Justice Chadwick is not reported as saying it, the defendants' claim would presumably be against Mr Byrne personally who could presumably pass it on to the offending solicitors in a negligence claim against them.Postscript I recently appeared before a district judge (not in Bristol) who, confronted by the questionnaires of parties to an ancillary relief application, declined to spend time deciding what questions should be answered.

If a party objected to a question, he or she was not obliged to answer, thus leaving it to the questioner to make a separate application.

This hardly seems to comply with rule 2.61D(2)(a) of the Family Proceedings Rules 1991: a district judge 'must determine the extent to which any questions seeking information ...

must be answered'.I was so taken aback I failed to argue the point at the time.

Is this approach common among district judges?

By David Burrows, David Burrows, Bristol