ADjourned finding of facts hearing=lost barrister fees!

[yosemite78]

I have waited almost a year for a finding of facts hearing. It’s taken me this time to save for the barrister fees. The hearing was only listed for 1 day back in March last year and as I was LIP I didn’t question this. My barrister told me last Friday thst it’s unlikely to go ahead and will probably be used as a pre trial hearing. This is because there is not enough time to hear 4 witnesses, a video interview and possibly tape interview. So, it looks like I’ll have lost almost 2 grand as she feels it will be listed for a 2 day hearing. Is there any way I can claim this back as surely the court should have picked this up at the paper review a few weeks ago? The other side will also lose a similar amount I’d imagine due to no fault of our own. I have no idea how I will afford the fees for a 2 day hearing in another few months ....

Can't claim it back as the time allocation/estimate is a judicial function. I'm a bit confused though. Is the hearing on March? If you have time, agree with the other side an adjournment without the need to brief a barrister as if a one day hearing is going ahead.

Or agree to cut the hearing down to a directions appointment, so Counsel's fees can be reduced accordingly.

Whilst time allocation is a judicial function, the judge in setting the listing time has to be guided by the advocates as to how long the case needs.

It drives me mad how often advocates will give a ridiculously short estimate in order to get a hearing sooner, when they can't possibly think the judge can get through it all in that time.

Or indeed, inflated time estimates to try to delay decisions being made.

No sorry, it was ordered back in March for a ffh but the hearing is tomorrow. I can’t understand how it’s got this far and nobody picked up on lack of time. Maybe if I’d had legal rep from the start it would have been properly listed?:only reason I did not is because I cannot afford it and now it’s worrying me to death that I have got to find another 2-3k as I have already paid the barrister to tmrws hearing and she will have prepared for a hearing, even though she believes it will not go ahead.

Has the hearing happened already or is it in the future? If it is in the future, it may be possible to adjourn the matter and have it relisted for two days without the need for a hearing, this may be possible to do by way of written request and a consent order if both sides agree. If the court wants a hearing, the fact finding can be relisted as directions and you can represent yourself or see what counsel’s fee would be and decide. If you didn’t want to go alone you could even ask for a pupil to accompany you who will be much cheaper, you don’t need a lot of experience to deal with that kind of hearing.

Even if it has already happened, I would query the fees charged as being for a full fact finding as it didn’t take place, although counsel may have had to prep for it just in case. I would certainly speak to their chambers about this and try to negotiate something.

MrsBertBibby thank you. The other side is in agreement to the time being used as a pre trial review as also does not want to waste costs. His solicitor emailed the court Friday but when I chased it up at 4pm they had not even processed the email. Doubt it will be put before the judge until later today, and then judge may not agree. I am assuming the barrister will have started to prepare already as hearing tmrw so she won’t reduce her fees. (Excuse the grin emoji in last post, typo or something as it’s not funny in the slightest!)

Oh I see your reply now. It is possible for courts to split the hearing too, so you have day one tomorrow and get as far as you can and then have the second day on the first available date. It has disadvantages of course, but the court does do it and if finances are an issue I would ask counsel to push for this. Everyone will be there and ready to go including witnesses so it makes sense to crack on. Often counsel love an excuse to delay contested hearings in my experience so I would make it very clear you don’t want to adjourn for two days in the future.

Thanks RainbowWaffles. I’m assuming the same judge with hearing the second day if it was indeed split? Yes, witnesses all ready to go, including school safeguarding lead. She’s taking time out of work and it would be awful if she spends whole day and not even called to give evidence because we’d run out of time. I’ll push for that as it’s gone on for too long and my life is in limbo

If the hearing is tomorrow, then your best hope is that the judge can find a second day close enough to be happy to start now. Your barrister will want paying for the second day, but it will be far less than what you pay for the first day as the first day fee includes all the prep, whilst the second is just the court time (called a "refresher").

Sorry just saw your post, yes the same judge would preside over the second day. The good thing is if you start tomorrow then you don’t have to accommodate any of the witnesses you get through so just the parties, counsel and the judge are likely to need to be available.

Well it goes from bad to worse! Just got back from court. Hearing adjourned as judge decided hearing is ineffective and not enough time. It’s now re listed to take place in 4 weeks, 2 day hearing. I cannot possibly find the funds to pay for a barrister. The Barrister I had today was very thorough and I felt at ease with her but she’s not available on the new dates! She phoned her chambers who confirmed they have no other direct access barristers available. I’ve also tried a couple and they don’t have any one free! I’m freaking out massively as I do not know what to do. I can’t afford the extra fees going through a solicitor would cost. What happens if I cannot get a barrister in the next 4 weeks? It’s so stressful

Didn’t the court take the dates of the advocate into account when relisting and didn’t they check they or someone else from chambers can cover the hearing? What did you barrister advise you to do? I am always amazed that people on this board ask for advice when they have already paid someone to represent them. It’s totally unfair you paid for counsel and are now left with this shit show to sort out yourself. Ask you barrister how to fix it.

You can also contact some solicitor firms. You are all prepared and ready to go so they may either agree to take your case and have a solicitor represent you (they also conduct advocacy and can be just as good as counsel) or ask if they can instruct a cheap barrister maybe even a pupil on your behalf. Direct access counsel need to be a certain seniority and this more expensive than those less experienced. An enthusiastic pupil could probably do a decent job in a fact finding, I have known some excellent ones. If it’s a choice between self repping or having a pupil, I would definitely go with the pupil. They are obviously cheaper. The solicitor will charge a fee, but if they don’t have to do much they may agree a low fixed fee and if you can get a cheaper barrister, it may work out okay. Just be honest with the solicitor firm that you are very price sensitive and see what they can offer! It depends what part of the country you are in, London, there are loads and you can get pretty good rates but I know in some regional areas where there is less competition the rates aren’t so good.

They came back with 3 dates, first one in 4 weeks time and last date in June. Judge said he wanted to continue case but accepted if it meant a delay he was happy for a different judge. Now have a recorder whatever that is?! I wasn’t present when the advocates went back to finalise a date. I did tell my barrister I needed more than 4 weeks to find money having just forked out 2k on her fees and she said she’d ask judge to consider this. Apparently he made some money about “bank of mum and dad” which pisses me off as my mum isn’t in a position to support me financially. My barrister told me to try chambers all over the midlands and get someone with around 10 years experience due to the complexity of case?! Ive had one quote so far of 3.5k which I cannot afford. I feel so incredibly depressed. It’s not my fault the court made a balls up listing it for one day (with 2 direction hearings also listed in same court?!!!!) I was prepared and ready to go with barrister. Now I have no idea other than quitting my job and claiming legal aid! I could give up so easily, it just seems so unfair and no body gives a s@it at court !

Recorder - Barrister or Solicitor who sits part-time as a Judge

Sorry - I don't do family. I do do direct access crime though.

I don't think I would keep a full trial fee when I knew before a hearing that it would only be a PTR (and then found out I couldn't do the final hearing). This will depend on the terms of your original arrangement though.

Good luck

Options:

1. Write to court and other side and see if they will agree for hearing to be adjourned for first available date after (insert how long you need to get money together, but also be realistic).

Don’t rely on this so as well...

1. It’s ok for your barrister to say you need x years call - well if you can’t afford that it’s silly advice. I’d be ringing chambers and saying your budget is x and see what barrister you can get. You are the client so check what they can offer. Often a junior barrister can be more eager/keen if it’s something more senior- they will work harder.

1. You could try women’s aid and see if they have any solicitors/barristers they know who will do work pro bono or even if you could pay in installments.

1. Raise some cash - sell things. Any chance of a 0 per cent interest card and pay off in a few months

So sorry you are going through this. Court budgets are overwhelmed and things can adjourned all the time; however, Some judges don’t think of the consequences either and we have these awful situations.

That’s so frustrating, regardless of what the judge said it is for counsel to push back after his joke and say erm no she needs more time. If you don’t mind me asking, what is the context of the fact finding roughly- application and facts? Even if it’s very complicated, I would doubt you need someone 10 + call, this would be reserved IMO for serious allegations such as harm to the child in care proceedings etc and very extreme contact/ residence cases.

In any event, you have a hearing in 4 weeks and cannot afford it. Your expensive counsel you paid 2k for has seemed to facilitate coming back to you with nonsense about bank of mum and dad and no workable advise as how to fix it. You made it clear you couldn’t afford it so calling all over the show asking for senior counsel isn’t really a solution is it? Apparently expensive barristers aren’t all that. Honestly though, years of call isn’t everything, you get some shit hot youngsters and some crappy old timers. There is an element of luck. With this kind of notice anyone experienced and decent will most likely be booked up. Someone younger and inexperienced is better than you doing it yourself, they will know plenty!

I doubt you could quit your job and get legal aid in time anyway. I would speak to some solicitors and see what they can do. Plus if you can agree something with one of them they can always write to the court and request an adjournment on the basis of change in representation citing the fact there is insufficient time for a new person to now prepare properly. Counsel is instructed to rep you at hearings, but solicitors provide litigation support also so are better placed to help resolve this now in terms of advising you of options and potentially trying to move the hearing. Just ring around and see what they say, I would be amazed if nobody can help you. I really feel for you, you paid loads and seem to have got stitched up.

Options are basically a) see what you can do for 4 weeks time- someone cheaper or b) try to adjourn the case to give you time to sort more expensive representation.

it sounds awful and I constantly put people off going to any court hearings at all as time after time we will all expect one day and it ends up we have to go back to court sometimes 6 times as so many new thing arise. It's a bit like surgery - you start on the hand and discover the knee needs treatment to and it goes on and on.

May be the one who charges 3.5k would take payment instalments over a year. It certainly all sounds very difficult for you. is it a divorce case?

MyLearnedFriend thanks for filing me in on the recorder. Do they handle complex cases then?

WoodlandOaks thanks for your advice, I agree that a junior barrister could do just as good a job and will look into this option.

RainbowWaffles the hearing is to deal with allegations of child sexual abuse. My son displayed sexualised behaviour for a long time before finally telling me he’d seen naked people at videos at his dads house (after I told him off for trying to push his groin in my face). He was 4 at the time, now just turned 6. He did make partial disclosure to social worker and to school safeguard but father claims I coached him. If I’d done this I’d have made sure he’d made a disclosure to the police then I probably wouldn’t be going through all this now. I cannot afford to take on more debt as come July I could be made redundant as the department I work in within NHS is privatised! Obviously I need to do what I can to protect my child from further harm but It’s so overwhelming with just 4 weeks to sort this, esp as I have to go to work and do not get phone reception in the hospital. I just do t know how I’m going to pull it off. When I had my conference with barrister, I specifically asked her about how the video evidence of my child’s ABE interview would be played and she said it would, there are no provisions. The main reason it’s been adjourned today is because there was not enough time to watch this video evidence or the audio evidence of the father’s police interview I wish she’d told me to raise this with the court 2 weeks ago as I could have saved the 2k on today’s wasted hearing.

Sorry Xenia , I will find out if I could pay in instalments over a year perhaps . It’s worth a shot!

You mention you would have made sure he made a police disclosure but then say the dad had a police interview- so it must have been reported to the police if he was interviewed? Anyway, that isn’t the point of the thread, I just wonder what the outcome of the police investigation was.

But yes, family hearings that are essentially findings of fact about criminal issues such as this are viewed very seriously and usually dealt with someone fairly senior. I can see why the recommendation was made. The judge’s attitude in listing this so soon despite your clear position re: financing is also astounding. The point about finding someone of suitable experience to conduct this hearing at such short notice notwithstanding financing remains.

If you don’t want to consult a solicitor, which still remains my advice as per above (the seriousness of the allegations doesn’t change your position, you can afford what you can afford)... write to the court and ask for it to be relisted at a later date, outline all of your efforts to retain suitable counsel and explain your financial predicament, you can state that you note a June date was one of three suggested and that is what you would like to re list to. If possible, give the court dates to avoid for the attendees so they have as much info as possible, send a copy of the letter to the other side and let the court know you have sent it to them too so they can respond.

Thanks for all the good advice. Father was interviewed by police, despite the fact my child made no disclosure to police during interview. This wasn’t surprising, as it took the police over 7 weeks to interview him!

I think I will write to the court and ask for an adjournment first as last and outline my concerns. I cannot afford to jeopardise anything by not having suitable representation. Id also prefer it to be heard by the same judge but that’s probably unlikely to happen.

I doubt any judge would want the pain of you self repping at a complex and serious fact finding. Judges don’t like litigants in person and the best of times so if it’s a choice between you representing yourself or an adjournment for you to have counsel they should go for the latter! Make it clear in the letter it is in the interests of justice for the hearing to be administratively adjourned to the later date. Good luck.

Oh and complain to the chambers about the fee being for a full contested hearing when it was only a quick adjournment coupled with the fact that the instructed counsel and indeed nobody else in chambers can now take your case. They might knock some money off.

If it was a direct access barrister when did you instruct them? Shouldn’t it have been well in advance? Because really they should have noticed before last night that the hearing would probably not be effective. Have you asked if they would take a reduced fee? A lot of barristers won’t but I very often will do so, within reason, so might be worth an ask. Even a small reduction would make a big difference to you.

Sorry this has happened. Court listing is outrageous. Also write to your MP, people don’t realise how underfunding the courts and pressures on court time has such a negative impact on people.

The other thing I would say is if you can’t get another representative, the recorder should be pretty good at examining the evidence and wanting to get to the bottom of it themselves. If they’re any good, and most are, they’ll go out of their way to ensure you’re not at a disadvantage if you’re unrepresented. Try not to worry too much if this happens.

Absolute bloody irony is, and I say this with no disrespect to the OP, but if she represents herself at the adjourned hearing that may well mean 2 days aren’t enough

barrister told me she had no choice but to prepare as if hearing would go ahead which I assume means no chance of part refund!

I instructed the barrister about 3 weeks ago. Up until that point I was still hoping to get something back from advocate/pro bono.

Mctufty I completely agree, if theyd listened and just gone with the end of March at least, that would have given me more time to secure funds/suitable barrister and not wasted court time. The other dates which were available today may well be gone if they agree to adjourn so they’ve created more problems! And yes, I have no idea how to conduct a Ffh so would probably take me all week in court, that would go down a treat! I just wish there could be a tiny bit of reason and not automatically think I’m trying to be awkward and not think of the child’s interest.