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 ....

Just had a few more thoughts:

When court proposed dates did Barrister check she could do them? Did she tell Court she couldn’t and she wasn’t sure if someone else was available and she was direct access - (which is important because not all barristers are)? Maybe I’m wrong but seems surprising if your barrister has said all that to judge they would still make you continue on date in 4 weeks? Maybe they did, but seems extraordinarily harsh and denying you access to justice.

If she had done the next hearing at least you could argue for some reduction on next hearing (on basis she had already fully prepped). Now you are going to have to instruct someone new who will have to start from scratch.

I would want to know a bit more from the barrister about what exactly was said about adjournment. I would also be going back saying asking what she suggests in your situation given you told her you could not afford counsel in 4 weeks and also no one from her chambers can replace so you are going to have to incur more costs then if you instructed her again. Her duty of care doesn’t stop at door.

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

This is true - you can’t assume a hearing will be adjourned and have to be prepared to proceed. But did she raise the insufficient time estimate early on and advise you to seek an early adjournment?

WoodlandOaks. No, she didn’t say any of the above as the first time she checked with chambers if any other direct access barristers were available was when I was sat there shell shocked at the thought of not having any rep. That was after they’d already agreed the date and the judge apparently made the comment about bank of mum?!

She did say however, she’s happy for me to pass the position statement on to someone else. (How kind when she’s sent me up the creek without a paddle).

McTufty she told me she had concerns about hearing not being effective last Thursday after she bumped into other sides solicitor at court and he also expressed concerns. She told me to get the other side to agree to time being used as ptr. His solicitor finally emailed court Friday afternoon suggesting possibility but it wasn’t even put before judge until Monday afternoon! I had no chance. What’s annoying is I asked about video evidence being played at our conference and she even told me she had concerns from this point but didn’t tell me till a couple days before. And that was only when I chased her about something else.

Preparation for the hearing is a large percentage of the first day's costs. For example, if a barrister has a two day hearing, the cost for the first day is often in the region of £2k (few years call) but the second day will be in the region of £6-700. (Both plus VAT unless they are new tenants.)

It seems unreasonable for your barrister not to have asked the judge to list the hearing for when she is available so that she could have charged you a refresher fee for the hearing, rather than a full fee - given she has already done the prep (notwithstanding she'd have to re-read over the case before the hearing). I would suggest calling her clerk and having a discussion with regards to this - pointing out the position you have been put in, in relation to costs, and asking them to refund part of the fee or provide you with an alternative (more junior barrister) for a refresher fee of £6-700 per day for the next hearing.

However, I do have to say that the position you are in is not really because of the barrister, it is because you did not have a solicitor. When you instruct a direct access barrister you are responsible for prepping papers etc and instructing the barrister about your case. If you had instructed a solicitor, your solicitor would have spotted that your case was not properly time estimated given the evidence to be heard and would almost certainly have suggested a pre trial hearing in the first instance. Your solicitor would also have been able to renegotiate counsel's fee.

Whereabouts are you in the Midlands? I'd suggest a referral to the Bar Pro Bono Unit (now called Advocate), but you will need to contact a lawyer, CAB, your MP (for example) to refer you.

Thanks justanotherlawer. I agree that if I’d had a solicitor it may not have got to this stage. The other side does though and I think the judge was disappointed it wasn’t raised by him, even though the onus is on me to prove the allegations. Anyway, there may be a silver lining. I’ve just heard from the barrister that there was some confusion with court listing as to the type of case it was (public or private I think) and it’s been booked under the wrong thing which may mean the court can’t even fit it on those dates now! If that’s the case, barrister doesn’t think it’ll be heard til June time and she’d be happy to represent me if this happen. Keeping everything crossed!!! I’m East Midlands btw ...

That's good news. And yes, for these purposes a Recorder is just as qualified as a Judge (and given the nature of the case, will have been trained accordingly).

This happens quite often. Your solicitor should have picked up on it. If you win you will be able to get your costs from your opponents (assuming that the claim is big ebooks go to attract costs, you don’t get slapped with a wasted costs order, there’s been no part 36 etc).

A Recorder is a Circuit Judge who sits part time - usually barristers. All judges (and magistrates) are trained. Racecardriver: none of what you said is relevant in a family case.

Fingers crossed that the hearing will take place in June - hopefully your current barrister will offer you a reduced fee.

racecardriver

This is a family case - very very unlikely she can get her costs back.

Update. Looks like the family court made another mistake resisting hearing 3 weeks after the adjournment. Apparently those dates shouldn’t have been made available for this matter! Realistically, does anyone know what my chances are of complaining to the court about my wasted fees and getting some money back from court. Surely someone should have realised that a 1 day hearing was not sufficient at the review they have prior to a fact finding? If they had, neither party would have wasted money on barrister fees. I am still waiting to hear from the court with new dates for a 2 and a half day hearing. Hopefully I’ll have time to get funds in place!