Language in Divorce Proceedings

A judge has reprimanded a firm of solicitors for an ‘imbecilic’ jibe.

This case involved a bicycle designer and manufacturer using a stag’s head as part of its logo. They sought an injunction to remove the logo from Rich Energy Haas Formula 1 motor racing team’s car and website. The judge agreed.

Ok, this is obviously not a family law case but it does raise some basic and relevant points.

In a case reported on 14 May 2019, a solicitors’ firm replied to a disclosure request, apparently drafted by a trainee solicitor stating:

‘This is quite frankly an imbecilic request by you.’

In her ruling, the judge, HHJ Melissa Clarke said:

‘I do not consider that there are any circumstances in which one solicitor in the course of his professional duties should accuse another in writing of making imbecilic requests.

‘That language is far removed from the professional courtesy which solicitors are expected to show each other and those they deal with. If a trainee solicitor sent the letter, as the reference suggests, the fact that it was sent in this form suggests a failure by the supervising solicitor properly to supervise.’

It did not end there…

Following a request for more information, the solicitors’ firm accused the other firm of a ‘scattergun approach of throwing as much mud at our clients in a hope that something sticks’.

The judge quite rightly reminded the lawyers that if a solicitor is alleging fraud or dishonesty then it needs to be properly pleaded (meaning it is set out properly in the court documents so the issue is clear) and added:

‘It is an act of professional misconduct to make such allegations without specific instructions and without having material which on the face of it justifies those allegations.’

So what is the relevance to the family law work we do?

Emotion is the first word that springs to mind; and it can run rife in the family law cases we do. Personal, is another word. This is very, very personal work.

What I encounter is that some solicitors make this work too emotional and too personal. On a basic level, why are firms ‘surprised’ or ‘disappointed’ when something happens or does not happen? This lazy language just serves to inflame matters. Worse still, why are allegations made of direct dishonesty against a party without any direct evidence?

All of this simply adds to the stress, anxiety and upset for the parties in what is already a difficult time for them. It also serves only to polarise the parties even further, creating extra levels of dispute and acrimony; and in turn, much higher legal bills.

People searching for a family or divorce lawyer often look, as knee jerk (may I suggest) to a solicitor who is ‘aggressive’ or even a ‘rottweiler’!

Really? Aggression itself is an emotion and a sign of weakness. But it is much, much better to be assertive, to stand up for a client, offer protection and guidance. After all, we are here to help people navigate through a relationship breakdown, look for and to promote solutions; to actually avoid or limit conflict rather than incite it.

Going through a divorce is difficult enough and it is better, in my view, to have a solicitor by your side who is professional, who sees the bigger picture – rather than one who thinks he or she is cleverer than everyone else and who is hell bent on point scoring. What does that actually achieve? Not much, according to the Rich Energy Haas Formula 1 motor racing case.