Court made a mistake - not sure what to do.

Hi
Sorry this is long....
I have just received a letter from my solicitor to say that the court "omitted" to send the co respondent in the divorce petition any divorce papers at all - so my stbx returned his Acknowledgement of Service months ago, I have been to the court to swear my affidavit (at the beginning of March), and was just waiting for Decree Nisi date to come through and now told the divorce cannot proceed because of this mistake. The court is sending the paperwork to the co respondent, but I have been told that I will have to go back to court after this has been done to swear a new affidavit and that the divorce hasn't really got anywhere in all these months because of this mistake. I am vey upset as it is holding up all the financial issues and things are getting very very difficult for me and the children - stbx won't do anything now, and is blaming me and my "useless solicitor" for all this mistake.
I rang my solicitor to find out if the court would look at the case sooner (instead of another 3 month wait once they have all the paperwork), they said no there was nothing they could do, they also said that they should have picked this up but they didn't(that the co respondent papers hadn't been served).
As I first contacted the solicitors nearly a year ago, the only thing that has been done is the divorce petition has been put to the court - my stbx and I are able to discuss things (just), but because there are a lot of financial assets /pension etc I didn't feel I wanted to do a diy divorce. As i'm not working I got first level legal aid, my solicitor has said they have applied for 2nd level (to enable them to help me at court). However they have refused to do any further work (no phone calls/letters etc) until the lsc approve the next lot of funding - and i've been waiting nearly 6 months for this to come through. I feel that the solicitor hasn't been very helpful, my stbx keeps asking me when things will get sorted out. I'm not sure whether I should look for a new solicitor as I get legal help (or should do). I just feel as if the court/solicitor can make mistakes and i'm stuck with the consequences and I haven't done anything wrong. My stbx and I are sorting out the finances, we've been to mediation - my solicitor refused to discuss figures/paperwork etc from the mediation due to the lsc funding not being agreed for the next part - it is making things very difficult - I feel like i'm not really represented by my solicitor, and that as there are assets that I will be repaying the legal help once settlement is sorted out but I won't have got any advice.
I'm at my wits end trying to sort all this out, as well as the benefits agency and children etc.
Any advice on what I should do would be really welcomed.
Sorry for the long post, Kind regards
Choccy x

Why was the co-respondent names at all? It is not good practice to do so - did your solicitor advise agaisnt this at the start?

Your solicitor should have checked the papers to ensure that they have BOTH acknowledgments before they moved on with the Affidavit. They are not responsible for the court having failed to send out the papers, but they are responsible for not checking before they let you swear your affidavit, and they should now sort this out.


Is the co-respondent likely to coooperaet and to return an acknowledgment? If not,
it may be that it would be simpler to ask permission to amend the Petition to remove the co-respondent's name. If your STBX agrees to this it may be possible to ask the court to dispense with re-service of the petition on your stbx. You would still have to re-swear the affidavit but it may cut down on the delay.

As this seems to be due to mistakes by your solicitor they should do the work needed to correct the mistake without waiting for legal aid. It is however reasonable for them to wait until the legal aid is in place before they go ahead in relation to other issues such as children or finances, as they will notget paid unless they do, and it isn't reasonable to expect them to work for nothing.

However, if they are not willing to correct the probems caused by the mistake with the petition and especially if they also did not advise you against naming a co-respondent in the first place then I would consider whether to change solicitors, as that does suggest to me that you may not be getting good advice.

In the first instance, you should look at your client care letter to see what the complaints proceedure is, and see whther there is someone more senior (a department hed, for instance) who you can contact to riase your concerns - it may be that your file could be transferred to someone more senior within the firm (which is likely to be easier that trying to transfer the legal aid to a different firm)

Also, although LSC can be VERY slow, 6 months is a long time - have you tried telephoning the LSC directly to ask what stage your application is at? Have you heard anything from the LSC (requesting aditional details, for instance) If it has been 6 months since the application was sent off, and you have had nothing, then I would be wondering if the LSC had lost the application.

Hi Bagpuss
Firstly thank you for your reply.
I wasn't advised against naming the co respondent although the adultery my husband and her were/are comitting really is the only reason for the divorce. The co respondent is willing to co operate - my stbx has said they will return the Acknowledgement of Service as soon as they receive it so no problems there.
I will contact the lsc myself as you have suggested and see what is happening with my application. There have been no requests for further information from them - all the information was sent to them months ago and nothing has changed from the first level funding which was agreed. I have attended 3 mediation appointments with stbx (which he paid half of - the other half being charged to my legal help which I will have to repay).
My solicitor has said nothing about correcting anything, and even said that they would charge for drafting a new affidavit (not sure why the old one can't be used).
I just feel that my solicitor doesn't seem to have done/or be doing anything. If I ring them they don't call back - now I know it's because of the funding.....however this isn't my fault, I even asked if I paid myself would it make things go along a bit quicker, but was told I couldn't do this as I couldn't get the money back. Feel i'm stuck between a rock and a hard place, stbx has a high salary and no worries about paying fees etc, yet I seem to be stuck with a 2nd rate service as I can't pay. Although if I knew how much it would cost I might be able to pay a bit to get things moving.
I'm not sure what else to do, it's awful being in limbo and the children are now finding it very difficult which is hard for me to deal with.
Thanks again
Choccy x

With an adultery Petition the normal practice is to say that "the respondent has committed adultery with an unnamed woman" Law Society guidance is that a co-respondent should be named only in exceptional circumstances.

If the original affidavit was rejected because your solicitors did not check that the correct acknowledgments had been received hen you should not have to pay for this to be corrected. Your solicitor should correct THEIR OWN mistake without charge.

I would check your client care letter (which should give you details of th complaints proceedure)and make a complaint.

Also, if you are waiting for legal aid this is likely to be a better time to try to change solicitors than if you wait until it is granted, and then change, as because of the way in which legal aid is paid many solicitors are reluctant to take on cases part way through.

Hi
Just to update, i've contacted the LSC, only to be told that they have not received an application!!!!!
They searched under my name and date of birth and have NO records of any application having been made.
I'm now completely at a loss as to what I should do. I have rung my solicitor and asked that they ring me back (they are in court this morning). So i'm not sure if I will get a call back or not.
Where do I stand in terms of proceeding with the divorce with a new solicitor? do I need to get any files etc? can I request these from my solicitor? and do they have to give me them?
Also will it mean I have to apply for legal help again? as it's a new solicitor? I feel very disillusioned about the whole process, and very upset that I seem to be being treated so badly.
Oh well. Maybe this time next year I might be divorced......
Also would it be easier to represent myself?
Choccy x

Im afraid as always TBaguss is correct, it was a mistake to do so, the guidance is only to name a Co respondent only if the adultery will be disputed, if you have a confession statement just don`t do it.

If the adultery will be disputed use unreasonable behaviour was/is/recently involved in an inappropriate relationship with another man/woman, this amounts to the same thing but no proof is needed.

Call the solicitor ask to speak with the complaints department or the senior practitioner, did they apply for a legal aid certificate and when, if they did and the lsc lost it ask if the will apply for an emergency certificate given the circumstances, it doesn't hurt to ask.

Yes you can change solicitor if you can find one willing to take it on, but if you do be swift as TB said its more complicated when the case is open and moving, as of now you don`t even have a live Petition so it should be straight forward.

If the divorce is all you need and you can scrape £179 together Wiki can do it for you, my own divorce with them took 16 weeks start to finish including a Consent Order, it would have been even quicker if it were not for a pedantic judge.

You could always call the wiki helpline for some advise over options, i hear they are very helpful.

Hi Dukey and Bpuss
Thank you for replying again.
Latest news.....
I had a phonecall from my solicitor, they are going to contact the court to see if the new paperwork when it gets to the court can be looked at more quickly - given the mistake wasn't mine and further delay is causing problems for me and the children.
Also the solicitor is not concerned about co respondent as she is not going to oppose the divorce, so that won't cause further delay(although it already has).
I told the solicitor that the LSC had no record of me, to be told there wouldn't be until they processed the new paperwork, not sure what to believe really. However solicitor has agreed to look at the financial stuff from mediation and ring me on Thursday about it, so hopefully something good from that at least.
I still feel I should change solicitor, but will wait until I hear from them on Thursday before I make a decision.
I feel very cross that this is taking so long, that if I could afford to pay it would be dealt with much more quickly(solicitor agreed with this) - and given that I will have to repay any legal help I get I feel I should be getting a better service as I am in effect paying for it.
Oh well, got to ring the CSA next......
Thanks again
Choccy x