Nigeria: Dispute over return of children
A law firm was negligent in failing to prepare for a three-day hearing or instruct counsel for it, a Family Court judge has ruled in making a wasted costs order.
Hannah Markham KC, sitting as a deputy High Court judge, said Slough firm Burnham Law also acted unreasonably in expecting the instructed barrister, who could not attend the hearing, to find new counsel.
The case involves a father’s application for an order that two children are returned to Nigeria, from where he asserts they were unlawfully removed last June. Burnham Law is the only participant in the litigation now named by the court.
At a hearing on 4 December, the court rejected the mother’s application for an adjournment and the final hearing was due to start 12 days later. On 6 December, the firm was told of this and that counsel could not attend the hearing.
However, the mother was not represented by solicitors or barristers on 16 December amid confusion over her attempts to switch law firms, and the hearing could not proceed.
Judge Markham found that Burnham Law knew nothing about the mother considering moving to a new firm until the morning of the hearing – and even then it did not actually happen. It therefore remained on the record at all times.
Burnham Law submitted that counsel should have found a replacement for the hearing. This was, the judge said, “wholly misplaced and demonstrated a failure to understand the basic process undertaken between solicitor and counsel and the manner in which counsel are instructed by solicitors”.
She continued: “I make the clear observation that all solicitors instructing counsel must ensure that they do so in this fair way, and in a timely fashion. It is the responsibility of solicitors to comply with their regulatory duties so that counsel can comply with theirs and the clients be properly represented and court time is not wasted.”
The judge found that Burnham Law failed to take “any steps to prepare and send a brief to counsel”, did not prepare and lodge a trial bundle for the hearing – as per an earlier order and the rules of practice – did not arrange for a witness bundle, did not ensure the court had the contact details of witnesses giving evidence remotely, and did not comply with directions the court made on 4 December.
Further, the problem with finding counsel ought to have been shared with both the father and the court in the week before.
Judge Markham ruled that Burnham Law was negligent, “in that they did not act with the competence reasonably expected of ordinary members of the profession in the preparation of this case”.
The firm also failed to meet the requirements of the SRA code of conduct that solicitors comply with court orders, do not waste court time, and provide a competent and timely service to clients.
Judge Markham ordered that Burnham Law should pay the entirety of the father’s counsel’s costs for the hearing, which included preparing the case as she was instructed through the direct access scheme.
It also had to pay the father’s costs of travelling from Nigeria as well as counsel’s costs for drafting the skeleton argument for the wasted costs hearing. Burnham Law “made no offer to settle until mid-way into this hearing”, she noted.
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