The Form E Fiasco

There has been a lot of hype about the so-called Form E Fiasco. If you have been in a darkened room pretending it is not January and are unaware, this relates to the discovery by a McKenzie friend that the MoJ's own Form E Form, which automatically tots up net income and capital for you, contained a formula error and was failing to deduct liabilities from assets, leaving those who used the form looking better off than they were, potentially (in theory at least) leaving them with a reduced award.

Whilst this is a c*ck up of pretty epic proportions by the MoJ (how difficult can it be to check and double check these things before publication?), personally I think this is all a bit overblown, like the Divorce Day rubbish that comes out every January...

Firstly, I doubt very much that very many represented litigants will have been affected by this because solicitors do not generally use the MoJ forms (probably partly because they are thought likely to be unreliable, and partly because solicitors have bespoke paid-for software which does all sorts of whizzy stuff and is much more user friendly).

Secondly, even where there was an error in a form, I doubt very much that very many such errors will have gone unnoticed by the Judge. A judge will have gone through the figures, noting down headline figures him or herself, taking this from that, working out different permutations in terms of splitting up assets and dividing liability, risk and burdens. It is possible that in cases where liabilities are small a judge might not spot the error, but if that is the case then the error will probably have made little or no difference to the outcome as financial remedy cases are broad brush discretionary exercises not precise mathematical calculations. In cases where the liabilities are significant enough to make a difference - for example a party has a massive credit card liability that has a big impact on the options available to the court - I would be really surprised if a judge had failed to spot the adding up was wrong. I'm not saying it will not have happened but the suggestion that there will be thousands and thousands of wrong divorce settlements I think is probably not going to be borne out when this has all worked its way back through the system. But that would make for dull news so we'll probably never know.

The boring reality is that just like in the Sharman and Gohil big money case - any error whether intentional or otherwise has to be "material" in order to reopen a case that has been concluded. That means it has to be demonstrably something that would or might have made a difference. If the judge has failed to notice that in fact you owe your gran £100 and so your capital is in fact £399,900 instead of £400,000 - well, frankly it ain't gonna make a blind bit of difference.

No doubt the MoJ / HMCTS / Judiciary will in due course set up some sort of system for dealing with the cases where it is said the error should lead to reopening, and to weed out those which do and don't require a full rehearing. But I fear that some people will be disappointed if they think it means that by some fluke accident they can have a second bite of the cherry. They may well end up doubly disappointed, and if their other half is represented there might be costs consequences.

One of the things I have wondered is this : the original error was spotted by a McKenzie friend, who has proudly observed that none of the lawyers spotted it (for reasons that I've given my view on above) - it stands to reason that no other McKenzie friend noticed this error either. I wonder what sort of redress a litigant would have against their "professional" McKenzie friend if they failed to check the form before submission as compared to a lawyer that had failed to check it?

I think the position is this : there is no regulatory body to complain to. There might be a claim in contract but I imagine in most cases there is no written contract, so the terms will be terms only those which were agreed verbally or which are implied by virtue of consumer law and regulations (such as reasonable skill and care - but what is reasonable skill for a McKenzie?).

I think it is pretty unlikely that there would be any claim in negligence, or at best this would be a risky proposition - one would have to persuade a court to imply a duty of care, and to determine the standard of care - again what is reasonable skill and care for a McKenzie friend?

Naturally, I'm not pretending to give legal advice in this post, I am merely musing on how this example perhaps illustrates the risk that people expose themselves to when they pay an unqualified, unregulated, uninsured "professional" to do the job of a trained, insured, regulated professional. Hopefully no such claims will have to be brought because the MoJ will devise a scheme that will mean no loss is suffered, but there may still be legal costs incurred by some parties that would otherwise have been unnecessary and it remains to be seen who will bear those costs - MoJ / HMCTS, litigants or their representatives or advisers. I have seen law firms advertising on twitter saying they can help people who have fallen foul of this software glitch, some of which have in my view potential to give false hope. That makes me uncomfortable, but no doubt some people will benefit from some proper legal advice as to whether or not their case is one of those which really does need to be looked at again, or whether they should just move on with their life and worry about more important things.

5 thoughts on “The Form E Fiasco

  1. People don’t use the MoJ Form E because it is a long and complex form which realistically you can’t complete in one session, so you really need to be able to save your answers. You can’t do that with the free Acrobat Reader or substitutes; you need Adobe Acrobat which costs £££lots. So people use alternatives wherever available.

    This has been reported as a “software error” which implies something geeky. It was not; it was simply a failure to deduct liabilities from assets. But consider what the programmer was faced with:

    Current value of your interest in the family home A
    Current value of your interest in all other property B
    Current value of your interest in personal assets C
    Current value of your liabilities D
    Current value of your interest in business assets E
    Current value of your pension and PPF compensation assets F
    Current value of all your other assets G
    TOTAL value of your assets (Totals A to G less D):

    Now A to G inludes D, so if we deduct D from A to G, we effectively ignore the liabilities. So the geek did his job correctly!

    Paul Magrath has suggested MoJ really should have a proper online form for this, like for self assessment tax etc. I agree. The current PDF form is of use to no-one.

    Oh, and yes, some real live people should have been tasked to check the form. That’s called beta testing.

  2. 1.
    Even if a solicitor does not use the MOJ software, there would be opposing parties using it at times.

    So it might be expected that a solicitor you are paying, would check the other sides Form E is correct and is not simply made up and/or incorrect.

    Therefore either solicitors do not check the other sides Form E or do not do it thoroughly, as they would have noticed the software was not working correctly too.

    It is typical of the slap dash attitude often taken by those involved, to say it does not matter anyway as the Judge would pick it up. If you are paying a solicitor, then you would expect the solicitor to pick up errors from the other sides Form E calculations, surely.

    I don’t see why the McKenzie Friend who picked this up, should not be “proud” of doing so, good for them. I am sure if a solicitor had noticed it, they would have trumpeted it from the rooftops.

    Other McKenzie Friends as solicitors may have their own software as well, or I guess the vast majority simply do not offer that service of checking the Form E. Not sure why McKenzie Friends should be singled out.

    As McKenzie Friends ‘assist’ with documents etc. and do not represent their clients or act as solicitors regarding documents, the risk is always going to be with the client ultimately I would assume.

    I have done a quick Google, and very quickly found numerous McKenzie Friends who are ‘insured’.

    A quick Google also shows that many are in organisations that provide regulation for McKenzie Friends.

    Again, Google is our friend, as I see there are McKenzie Friends who are qualified barristers or solicitors but who are not practising. There are plenty with other relevant qualifications and experience.

    Let’s face it, if in the end we are simply expecting the Judge to find any errors anyway as you mentioned, a chimpanzee might as well accompany the party to the case.

    If a party did have solicitors and that solicitor did not pick up the opposing sides errors in their Form E which are the result of the MOJ software, is that solicitor at risk of sanctions.

    • Hi Mostable.
      I expect solicitors would check the figures. In cases where a party is represented normally the solicitors would prepare a schedule of assets with all the calculations in it and the court is likely to have relied on that. I don’t imagine in the context of a hearing that most people would expend much energy agonising over why there was a simple mathematical error on the form – that often happens through human error, and once corrected I suspect people forget about it. I certainly don’t think it doesn’t matter – what I mean is that it is unlikely to have any adverse impact because one way or another the correct figures are likely to be used.
      Indeed other McKenzie friends may have their own software, but given their lower hourly rates (sometimes) and set up I doubt many have paid for services. Indeed the risk is always with the client – the question is whether the client appreciates that risk. Yes some McKenzies are insured – but how many and what are they insured for – again to what extent does the client understand the increased exposure to risk? Same point goes for McKenzies who are well qualified or v experienced – there is no basic standard so some are neither qualified nor experienced – nor skillfull. It is difficult for litigants to navigate the market.
      I would imagine that if a party was represented and their solicitor relied on the form and failed to check it AND it resulted in a loss to the client there might be legitimate grounds for complaint / negligence / contract action (although I can imagine a defence being run that it was reasonable to rely on the MoJ’s form and that therefore it was not a breach of the duty of care). I doubt it would be a misconduct issue in itself.

  3. “I would be really surprised if a judge had failed to spot the adding up was wrong” – Really? If that was the case, why wasn’t this problem spotted much earlier than 20 months in by a judge and not by a McKenzie friend. Just think for a minute about what you’re saying, if they judge had found the error and pointed it out, the litigant would have said “I used the MoJ form” and the error would have been exposed, but it wasn’t.

    The fact that none of the people paid to spot these errors and deliver justice to the parties actually did spot it is a sad indictment of a system where people are lazy because their jobs are secure. I assume nobody will be sacked for this avoidable error? Nobody will be going back through judges notes to see if they could have spotted the mistake, but didn’t?

    • See my previous reply. I just don’t think this proposition reflects the reality of a trial and the things people are actually worrying about.

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