Being Prepared For Negotations 1st, December , 2020

While it might seem like a good idea to have your ‘day in court’, most family lawyers will advise negotiation via an exchange of emails and perhaps a meeting or two to try and hammer out an agreement should be enough to achieve a settlement.

When dealing with financial cases this type of negotiation is often successful and once an agreement has been reached, a formal contract can be entered into.

If negotiation does not work then it is possible to refer the case to mediation where a neutral family mediator will try and help the parties to reach an agreement that suits them both.

In a minority of cases, however, and particularly in situations where the value of the matrimonial property is high a deal cannot be reached, and it is necessary for the case to be decided by the courts.

This is not a decision to be taken lightly as the legal fees on either side can be very high indeed.

It is not possible to ask the courts for a decision on financial matters without also seeking a divorce. A divorce action is raised and within that action, there is a request for payment of a capital sum.

There is a choice to raise the court action in either your local Sheriff Court or in the Court of Session which is the highest civil court in Scotland.

It is competent to raise any divorce action in the Sheriff Court, however high the capital sum is sought. In practice, however, the most valuable and complex cases are raised in the Court of Session.

The decision to raise a court action in the Court of Session has considerable consequences as far as the level of fees is concerned. Not only does each party have to pay for their own solicitor, but they also have to pay for an advocate and in some cases, there will be yet another solicitor involved who is employed by the original solicitor to assist with the case and acts as a local agent, particularly if the case is raised at the Court of Session in Edinburgh and the instructing solicitor is based elsewhere in Scotland.

Fees for divorce work are based on the time that the various legal professionals spend on the case. Solicitors charge by the hour, and advocates charge by the day.

In the Sheriff Court and defended court action which goes to Proof (the contested hearing at the end of the case) can cost tens of thousands on each side.

If the decision is to raise the case in the Court of Session and the case is lengthy and complex the total fees could be hundreds of thousands of pounds on each side.

In a few cases, despite the remarkable level of these fees, it is worth raising the case in the Court of Session. The reason for is usually that there are millions of pounds in matrimonial assets at stake.

If a decision is made to raise such an action it is obvious why you need to be prepared. If the case does not go well and an award of expenses is made against you not only are you liable to pay your own expenses, but you have to pay the other party’s expenses too. 

Getting Prepared

So what preparation and what steps can the client take to increase their chances of success?

It is essential that you select your solicitor and your advocate carefully. They must have extensive experience in conducting many similar cases in the Court of Session. It probably goes without saying that they should specialise in family law but beyond that, a crucial attribute is attention to detail.

In Scotland, when cases are above a certain value a great deal of importance is placed on written pleadings. This rather archaic word means that a client’s case has to be written down in detail. In turn, the other side is allowed to respond in detail. All pleadings have to be supported by documentary evidence. In addition, the written valuations of the various matrimonial assets have to be lodged with the court. If something is not included in the written pleadings it may very well be excluded from consideration by the judge

Where there are valuable assets, the importance of obtaining accurate valuations which support the case is essential. Often each side will instruct expert valuers who will give evidence in court as witnesses. Often the valuations provided by these expert witnesses are quite different and the judge has to decide which valuation they prefer.

In a recently reported case where the total matrimonial assets exceeded £10,000,000, by far the biggest asset was the defender’s restaurant business which traded from a number of different properties. Expert valuers were instructed by both parties and gave evidence in court as to the value of the business. Their valuations were calculated differently with the defender’s valuation being far less than the pursuers.

During the course of the evidence, it became clear that the defenders expert witness was not truly independent and had had business dealings with the defender previously. For this and other reasons, the judge preferred the evidence of the pursuer’s expert witness and the higher valuation was accepted.

When there is so much at stake it is important that every detail of the case is prepared with great care to ensure that the risk of losing such a case with all the serious implications in respect of expenses is minimised.

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