Was the President of the Family Division right in Williams v Williams?

This case has attracted media attention over the last few days. Divorce proceedings are now administrative since the dawning of no-fault divorce. The process is managed through an online portal which is, in the main very efficient. In the case of Williams and Williams a junior fee earner had accessed the wrong client’s file on the portal and applied for the final divorce order without the client’s knowledge or consent.

The final divorce order was granted 21 minutes after the application was made. Great news that the system is so efficient but not such great news that when an error is made there is no time to correct it. In the days of paper applications and real people available by telephone at the Court an incorrect application could be retrieved by often helpful Court staff.

I feel for the fee earner concerned in the case of Williams. She must have felt awful when she realised her error.  Her firm applied for the final order to be set aside for mistake, but the Judge refused to set it aside on the grounds of public policy, broadly saying that when final orders are made by the Court the parties and the public need to be able to rely on those orders. There were no procedural mistakes, the Court did the right thing in granting the application. The mistake of the solicitor is between the solicitor and client and no one else.

I agree with the decision. When a person has a solicitor acting for them their opponent and the court rely on the words and actions of the solicitor as being made with instructions from the client. We and our client are the same entity. Our words are our client’s words. An application for a final order of divorce is made with the express agreement of the client. When the order is made, the opponent, the Court and the public can rely on it. 

In the case of Williams although the Williams’ wanted to be divorced they had agreed to wait until after finances had been resolved by final order before applying for the final order of divorce to end their marriage. This is a sensible position which many take. What has happened here is that the marriage has ended before finances are resolved – this could potentially be very problematic particularly if one or other of the parties dies before the financial order is made. If any financial loss is suffered by the client the solicitors will have to make good. Given the firm involved, who I won’t name here, I am guessing a lot of money is at stake which could lead to a hefty claim against their insurance policy.

The moral of the tale is that the Court will not correct solicitors’ mistakes. We must check, check, and check again when working on the Court’s online portal. If we get the wrong client, then the computer will say ‘NO’ when we ask the Court to put right a mistake.