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‘Flaw’ in system that allows €500k legal fees for judicial separation

Judge believes litigants are not protected from ‘their own unreasonableness’

The judge noted Mr Justice John MacMenamin, who granted the separation order in 2010, had described the woman as “not financially minded”.

A High Court judge has said there is a “serious flaw” in our legal system when it permits more than €500,000 legal fees to be correctly charged for a woman’s judicial separation.

The costs exclude the costs of separate divorce proceedings yet to be heard, Mr Justice Michael Twomey noted.

What is concering is that, in “highly personal and acrimonious” family law disputes, “where children and loving relationships are pulled asunder”, litigants are not protected from “their own unreasonableness”, to prevent them incurring inordinate legal fees.

The woman’s lawyers had sought €635,000 in fees, she did not seek to have them reduced, and a High Court Taxing Master held €508,000 of that was properly charged, he said.

Her husband’s legal costs for the separation were €127,000 and the High Court had held he had a legitimate interest in trying to ensure her fees were minimised.

The judge noted Mr Justice John MacMenamin, who granted the separation order in 2010, had described the woman as “not financially minded”, stressing that observation was not made in a critical sense but was illustrated by her apparently having no specific recollecton of substantial financial transactions to which she was a party.

‘Most unusual’

Mr Justice Twomey said he could not say whether €508,000 for one party’s costs in a judicial separation was “most unusual”. Another judge had rejected the husband’s claim the €508,000 should be further cut and held the husband made serious unsupported allegations against the woman’s solicitor for costs also “flatly contradicted” by the woman.

As matters stand, €508,000 has been properly charged in legal fees for the woman, he said. This was “an inordinate amount” of money to pay for a daily occurrence here, court-ordered marriage break-ups. A €508,000 fee would involve 1,693 hours work based on the €300 per hour used by the Taxing Master in his review. Not all fees were charged on a time basis.

If such fees were incurred by the other party, it would cost more than €1m in legal fees for a couple to separate.

Apart from the fact that if couples knew such costs could be incurred, they might make a lot more effort to mediate, and on the basis the charges were valdily incurred, there is a “serious flaw” in a legal system permitting and facilitating such fees, and such amount of time, be incurred in a separation.

England and Wales have considered whether certain trials there should be limited to two days with costs capped at £50,000, he observed.

Trust unwound

The costs exclude the separate costs of divorce proceedings initiated by the husband. The divorce case, in which the woman is seeking proper provision and wants a particular trust unwound, has yet to be heard.

There appeared to have been unreasonable conduct by both parties in the separation, he said. There were issues concerning the fees incurred by the woman and the man’s delay providing financial information added to the length and costs of the proceedings.

He made the comments in a judgment dealing with pre-divorce trial applications by the husband seeking various documents and recordings relating to her costs.

The judge directed the woman’s solicitor to swear an affidavit addressing a number of concerns. He refused other orders permitting the husband get various documents or recordings of certain hearings before the family law court or Taxing Master, saying those were not necessary to establish how much the woman had spent on legal and associated fees.

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