Graham Coy, Mundays
Young v Young: How not to litigate
2 December 2013
The Young divorce case raises serious questions for big money family battles
There was an enormous amount of press speculation and excitement leading up to the final hearing of Michelle Young’s financial claims against her former husband, Scot. To a very large extent, that excitement was not fulfilled.
For Mr and Mrs Young, the legal profession, the judiciary, the family justice system, the current legislative background and, above all, for their children, it is hard not to reach the conclusion that the litigation and its conclusion were a disaster. The notable exception was Mr Justice Moor, whose judgement was clear, comprehensive and balanced.
Just a brief look at the facts shows why.
Michelle Young was convinced that her husband had deliberately hidden his fortune so that neither she nor the courts could have access to it. She was seeking an award of £400m. She was awarded £20m.
Scot Young suggested that he was bankrupt and had debts of £28m. During the course of the proceedings he was committed to prison on two separate occasions for contempt.
By the time the final hearing started earlier this month there had already been 65 preliminary hearings. Five would have been normal.
While Scot Young represented himself, Michelle Young had been able to obtain some litigation funding. Estimates of her legal costs varied from £4m to £6.4m.
There must be a considerable amount of doubt as to whether Michelle Young will ever receive a single penny of her award. There must be at least a possibility that Scot Young will face further sanctions if he maintains that he has no money and does not make the payment that he has been ordered to make.
It would be quite easy to dismiss this case and the questions that it poses on the basis that it was exceptional and the facts are very unlikely ever to be repeated. To do so, would be to close our eyes to some very fundamental problems.
Amongst those are whether there is sufficient judicial control in “big money” cases such as these; why did 65 separate hearings take place, why were the legal costs aloud to escalate in the way they did.
Still more fundamentally, is there a need for “root and branch” reform of the way in which lawyers and judges approach resolving financial disputes? The current legislation is over 44 years old and there has been no serious consideration by the legislature for nearly 50 years as to whether the provisions of what is now the Matrimonial Causes Act 1973 require reform.
In the intervening period, various different approaches have been adopted by the judiciary, for example to reflect changes in society and to redress what was seen to be an imbalance and a discriminatory approach to the weaker financial party usually, but not always, the Wife.
Have we, however, gone too far? Have we led the financially weaker party to expect too much?
Is there a need for clarity and more certainty?
The Law Commission is in the process of finalising its recommendations; its report is due in the early part of 2014. Will the Law Commission grasp the nettle? If it does, will this Government or any other Government legislate?
While we await answers to those questions, solicitors, barristers and the judiciary need to think very carefully about these issues so that never again will a High Court judge be able to comment, as Mr Justice Moor did that, “in many respects, this is about as bad an example of how not to litigate as any I have ever encountered”.
Last week was designated dispute resolution week by Resolution, the organisation that represents the vast majority of specialist family solicitors in this country. The level of animosity generated by this litigation was immense and one final question which everyone involved in the family justice system needs to ask themselves is, “isn’t there a better way of resolving cases like this?”.
Graham Coy, family law head, Mundays