Can husband's old counsel refuse to hand over evidence

[cannotseeanend]

Hi there
I've just been taken to trial for a final hearing, as the respondent.
My husband asked for 50% of everything including sale of family home. 18 years marriage, 4 kids. He left me to have an affair with another married woman. Judge gave me 62% which includes family home.

Now husband also left me from another EU country to go and live with his lover in the UK. In court he presented an affidavit from the the family lawyer he sacked just before the trial, via a direct access barrister who who obtained the affidavit from the former lawyer. My husband is taking me to his 7th appeal hearing in another EU country to try and annul the several judgments against him ordering the children maintenance. He is several kkks in debt now.

I need to obtain a copy of this affidavit. His former lawyer has refused. The court are being slow to respond. The EU court requires this affidavit, as it is crucial evidence proving my husband's case against having to pay his children maintenance is not valid. I am very frustrated that no-one wants to hand over this affidavit. Here are the words from the former lawyer. Is this lawyer allowed to deliberately withhold her affidavit, putting the onus on the court to give me that affidavit (court just so slow to respond to my request).

Any ideas of what to do next with no-one willing to hand over this piece of evidence. I asked for it at time of trial, I was denied even the ability to see this affidavit, it was not in the court file - which I incidentally NEVER got a copy off and had to share a copy of with the applicant!!!! I know the affidavit exists as the judge read it out, then discarded it as evidence, saying it was a one-sided representation of a phone call between me and the former lawyer. It was indeed that, but it also recorded the crucial piece of evidence which might mean the 7th appeal against having to pay maintenance might fail and finally I can enforce the judgment meaning my kids might finally get some maintenance.

Thanks

"We are no longer instructed by Mr XXX and his files have been archived.

We are sorry for any inconvenience caused but we are not in a position to talk to you on the telephone either.

If you require any copy documents they can be obtained from the Court or Mr XXX direct."

If it wasn't too long ago, would it be worthwhile you writing to the judge who heard the case, asking for their recollection of what the affidavit said? They may have made notes.

I wrote to the judge over a month ago, I wrote again, then I wrote again. I am losing patience. This same court took 5 months to react to a D11 application to return the keys of the family home, during which the home took quite some damage through non occupation and I have absolutely no confidence, the court is just so terrible, I got justice at the final hearing but getting there with the lack of wanting to talk to someone like me self-representing, it has sent me to the depths of ability to continue through this.

I checked with the barrister's clerk who confirmed that a former counsel is bound NOT to supply me with the affidavit, if the barrister doesn't want to hand over his client's evidence of the affidavit, then the only person who might is the court. So there is my problem. The court are slow slow slow or just lose emails, letters, then they complain I email too much. I only email because they refuse to react 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th time. Just how long are respondents supposed to wait for things? This certainly is not justice.

It may take a few weeks for the judge to get round to replying.

The judge has had 6 weeks to reply already and this is evidence needed to defend my next trial for maintenance where again I am the respondent. I keep stressing the urgency. Just why is it so slow and why was I not allowed a copy of the affidavit at trial? I just do not understand.

I suspect you need to make a formal application to the court for a copy of the document. Did you have a lawyer at the time? Have you checked with them whether they have the affidavit? If not you should probably phone the court office and ask them what's the procedure for applying for a document from the court file. But bear in mind that they don't necessarily keep the files for that long.

If it was his lawyer then I wouldn't imagine they will give it to you. Your lawyer, current or old, will be able to obtain it unless it's client confidential.

It is very hard to extract documents from the court. Usually you would have a bundle with all documents in for each hearing which your side, husband's side and court has so everyone has everything.

If it was put into an English court hearing I believe it is a public document even if the judge did not like it. However it seems hard to get hold of them. Even journalists find it hard. Was it really an affidavit by the way rather than a witness statement?

Who gave the affidavit?
"I know the affidavit exists as the judge read it out, then discarded it as evidence, saying it was a one-sided representation of a phone call between me and the former lawyer. "

So it was your husband's statement/affidavit talking about a phone call between you and a former lawyer of the husband? Whose statement was it -your husband's ex lawyer or your husband's? Was it disallowed from being in evidence because it was wrong or defective or hearsay or something or was it allowed in?

I had no lawyer, only a direct access barrister.
I protested to the judge I did not get a copy of the bundle. My barrister got a copy and as I only met him 30 minutes before the hearing (coming from abroad), I never got to see the bundle. In any case, the affidavit wasn't on the judge's bundle, either barrister's bundle. It was handed separately to the judge on the 2nd day and only the judge got a copy, not my barrister. Didn't realize the significance of this until after the trial. Since then, have been trying to get both the judge and the other barrister and the author of the affidavit to hand over a copy of the affidavit. 6 weeks later, the court have admitted the judge hasn't bothered to look at my formal request for the affidavit. There is only 1 single judge left dealing with 2 judge's work loads, the actual trial judge has retired.

No I don't know if it was an affidavit as I was refused a copy of it when I asked to see it - the barrister conveniently said he couldn't give me it as he had left it in his car, gave it to the judge after the 2nd day, on the 3rd day the judge read it out, then said it was inadmissable evidence and was discarding it, but he never gave me nor my barrister a copy of it, it wasn't until after I left the court and came home that I realized I should have asked when it was read out. The other barrister said it was an affidavit, the judge said it was too. I can only guess they were right.

The judge disregarded it as evidence as it was an account from the ex-lawyer of a conversation I had had with her over her client (my husband's) status where he'd abandoned me. The judge said it was unfair as it was a one sided record of a telephone conversation. So I think that was sensible. But it was also half correct, and it is quite crucial as evidence in the court case my husband has launched against paying maintenance at home where the family live and where he abandoned, as it records me stating the facts and the ex-lawyer records those facts accurately, yet my husband is now denying those facts to try and get out of paying maintenance and is going to sue the local council here!!! So it might have been disregarded by UK judge, but it is much needed by the other judge here. And yet I cannot get anyone to hand over the copy of it, because the ex-lawyer and husband don't want to admit the facts which will mean the other court case will crumble. The UK lawyer arranged my husband's lawyer here at home.

I might just have to give up and give a witness statement to the court recording the telephone conversation. I have emails as well to back it up. But having my husband's own UK lawyer accidentally tripping her own ex-client up is going to mean more than my statement.

Have you filed a complaint against the court. Part of the appraisal system marks them down for complaints received so they have massive fits. You could try just asking about their complaint procedure and see if that speeds them up.