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.