The Witchfinder muses on a case in which a kindly solicitor acting pro-bono was unjustly punished.
I was flattered when the Daily Mail picked up my story on the jailing of WM – a woman who can now be named as Wanda Maddock. Their work is impressive. However her case is by no means the only injustice perpetrated in the Birmingham Family Courts.
The legal system is undergoing cuts. Not as some left wingers and vested interests say, for the purposes of undermining access to justice nor for some other pernicious reason but instead because this country is short of money. It helps that there are bloated and inefficient reaches of our legal system that may have benefited from a little judicious slashing anyway, but the grim truth is that resources are scarce indeed.
In this new environment where lawyers, like many professionals, must put up with falling revenues those who take time out to do pro-bono work should be praised and recognised.
Sadly, in Birmingham the saying that ‘no good deed goes unpunished’ seems to be truer than elsewhere. I write again on the unfortunate topic of HHJ Martin Cardinal. This time I refer to a Court of Appeal case where he was humiliatingly smacked down after wrongfully making a wasted costs order against an innocent solicitor. The judgement is available on BAILII, and is well worth reading. As ever the Witchfinder provides no more information in this article than is available in the public judgement.
At first instance the case concerned a divorce. A woman’s husband had issued divorce proceedings but the couple had been reconciled until the husband applied, years later, for a decree nisi. The wife of the marriage was a very vulnerable woman who spoke no English only Sylheti and was essentially penniless. Frightened and miserable she made her way by way of a charity to the office of a kindly family lawyer called Mohammed Sattar, these days a partner at respected Birmingham law firm Sterling Solicitors.
Mr Sattar gave a free initial consultation. Initially he said he was unable to help further, but in the face of the sobbing woman’s desperately difficult situation he agreed to act for her and filed the relevant notice with the Court. He then attended Court on her behalf for an initial hearing. As a result of the hearing it became apparent that there would be substantial proceedings. The firm Mr Sattar worked for at the time were not able to do legal aid work, but he felt that another firm he knew could take up the woman’s case.
The lawyer then went to see the new firm and handed over the file in person. Quite thoroughly he then wrote to everyone concerned confirming the transfer. What should have happened next is that the new firm ought to have filed a notice of change of solicitor, which would have removed the old solicitors from the Court record. For whatever reason, they did not do so and indeed did not attend Court with the woman at the next hearing.
The judge at that hearing was HHJ Cardinal. He was concerned by what at happened and his initial concerns were legitimate. A vulnerable, non-English speaking woman had attended Court by herself with no arrangements for her interpreter. The hearing was literally wasted – the Court could not proceed. The lawyers for the other side Cottams were rightly concerned about the costs incurred and so they applied for a costs order against the solicitors of record.
Such an order – called a wasted costs order – is very severe and amounts to a finding that a solicitor has done something seriously wrong. The making of such an order can damage a lawyer’s reputation.
This is when matters went awry. Mr Sattar set out to defend himself and quite reasonably explained to the Court what had happened – he had transferred the file by hand to another law firm and confirmed the transfer in writing. He produced his contemporary letters. His version of events is undisputed. He was, as the Court of Appeal later found (paragraph 24), ” fully entitled to rely upon what [the other firm] had told him”.
Although it was a good enough explanation for the Court of Appeal, bizarrely it was not good enough for HHJ Cardinal who found against him and ordered costs in the value of £981.13 . The Court of Appeal found many errors of law and fact in Cardinal’s judgement not least a strange misquotation of Mr Sattar – attributing to one of his letters words found nowhere within it.
Speaking in the Court of Appeal Mr Justice Holman described Cardinal’s decision as “wrong” and “unjust” before overturning the order. He said this – “I, for my part, consider that Mr Sattar was not in any way negligent in this matter and did not in any way fall below the standards of a competent solicitor. Rather, he acted as a good Samaritan and did all he could to help this vulnerable lady whilst making perfectly plain to her, to [the other side] and to the court that he could not do more. It was not justifiable to make any order for wasted costs against his firm and, indeed, he should be thanked, and I now personally thank him, for his generous and public-spirited services.”
Lord Justice Wilson added a cutting snark saying amongst other things, “This unfortunate matter provides an object lesson to us judges that, when we propose to place decisive reliance upon a letter, we should either quote it accurately or at least summarise it with a punctilious degree of care.”
This was not a close run case. This was not a technical victory. The Court of Appeal completely vindicated Mr Sattar’s reputation. This was a humiliation for Cardinal.
The Witchfinder tracked down Mr Sattar. Going on the record he said, “The decision was completely barmy. I was doing pro-bono work for a client who had been referred to me by a charity, I was forced to appeal to protect my reputation. It took over 6 months and two hearings at the Court of Appeal to overturn the decision. Substantial costs were incurred and Equity Solicitors had to bear all these costs. I had the good fortune to be a senior solicitor – a partner in a law firm – I can only imagine how devastating such a decision would be for a vulnerable litigant like someone with a disability.”
The cases of Mr Sattar and Wanda Maddock are not alone. In a different case a disabled, unemployed woman with a degenerative back problem was ordered by Cardinal to pay thousands of pounds she could not afford to her ex-husband who earned £30,000 a year. Again the decision was overturned by the Court of Appeal. Another legal practitioner from a charitable organisation who has appeared before Cardinal but is too frightened to be named described him as “totally unprofessional”.
John Hemming a Birmingham MP commented on the case, telling the Witchfinder, “My biggest concern about HHJ Cardinal is that he tries to stop my constituents from speaking to me. I believe this undermines democracy”
In the UK Family Division poor practice flourishes behind closed doors and even senior lawyers fear injustice. How long can the Government allow such a system to continue without reform?