the judge ignores service rules

Hi.

My wife filed a financial remedy application using a solicitor. Her claim has been issued by the court, FDA hearing was time tabled, but I was never served in accordance with the proceedural rules. (It should have been served outside of the jurisdiciton).

I wrote to their solicitors 3 times, and to the court twice warning them of this. FDA hearing arrived but I did not attend because as I understand it no service equals not start to any litigation. The judges held court in my absence, took no notice of the previous 5 written warnings, and ordered me to their costs.

There are many case law emphasising that proper service is essential and non-negotiable rule. On top of this the 6 months service priod has expires too. This means I have the right to ask for this claim to be (must) set aside.

Question: given that the judge does not give a damn about proceedural rules, the rules and case laws are weighed in my advantage, solicitors are not specialised enought and I can not afford a barrister, there is a rescheduled FDA on the way: can some one please tell me what to do?

Many thanks.

Pay the costs and attend the FDA.

If you had not known when the FDA was then fair enough but it sounds like you knew when it was but didn't get paperwork. You could and should have attended to draw the court's attention to that.

thank you for this advise.

case law says that knowing is not the same or a substitute to being served and that proper service is an absolute must to mark a "bright line" of the start of the process. I also draw every ones attention by writting to them several times. Furthermore case law also says that given sufficient time, handling of the matter by legally trained solicitors, leaves no good reason for a judge to exercise his powers to over ride rules in this regard.

Ultimately if proper service is not made how is one to know !!!

I welcom your comments.

Regards.



I welcome you views on these points

But it is clear that you did know as you wrote to them five times about it.

Thnak you for your comment.

I gues my thinking is along the lines of proceedure integrity. That is consistent application of proceedural rules to ensure justice and safe guarding against the potential prejudice to litigating parties !!

Practitioners like a solicitor I spoke to tell me this too that "it is clear that you did know" but barristers, from my research, tend to follow this point from the legal principal perspective which argue as below:

1- if case law exists in similar situation that delares knowing is not enought.
2- if case law exists in simlar sitation that declares that rules are there to be applied.
3- ... that if there exists a potential of prejudice due to improper service then that is a good reason to adhear to the rules
4-... that if there exist no good reason NOT to conduct proper service than the rules must apply

I would add 5 to this that in my first divorce applicaton that was emailed, posted, and was presented in the MPS hearing, the judge did insist on proper service first !! In my second divorce application my solicitor too insisted on proper service which we undertook using the high courts foreign service section in accordance to the hague convention.

Am I wasisitng my time thinking that none of the reasons and evidence stated above should apply to my case and that I should not challege improper service and now jurisdiciton? In other words should the two volumes of the white book be thrown out of the window? Should I accept this much blatent discremenation for want of a better word?

Yes you are wasting your time I'm afraid.

You knew about the hearing but rather than devoting your time to the hearing you wanted to throw a spanner in the works. That is how the Court will view your behaviour.

You may well need to refer to the Family Procedure Rules which is the starting point for family litigation. The White Book is generally used for civil litigation although the Civil Procedure Rules do have a hand in family proceedings in some circumstances.

The Court Service is financially straitened and has been for a number of years. The wide case management powers of the Court are often used - sometimes questionably - to move cases forward as appears to be the case here.

If you want to appeal the order you should do so without delay. However, you need to bear in mind that you may have to request permission to appeal (this is likely), you may not get that permission and it will cost time and money which could be diverted to dealing with the proceedings which are inevitable. Ultimately has there been any prejudice? You knew about the hearing and other than not being formally served, what is different? That is the question which which the Court will require an answer.

Charles

Thank you charles for taking time to reply.

I note you are a platinum member and therefore I am glad to have received your reply. I am also glad that you have mentioned " sometimes questionably - to move cases forward as appears to be the case here."

I must admit I have difficulting accepting this dichotomy where high/appeal court roulings emphasise the need for proper service. I am gussing that these are to do with civil lithigation rather than family proceedings.

I guess I need to grow up, so to speak, and move away from this idea of absolute justice and universal standards and accept that whenever you way ends up in a court in England you must accept that you are at the mercy of the judge regardless of the rules. It is a little hard since I was sujected to comply with this rule in my divorce application and then was ordered to pay a £4000 costs for not attending FDA when I was not in attendance.

Regards..