A wife fails to get rid of an application to debar her solicitors.
Facts:
Mrs Alvina Collardeau and Mr Michael Fuchs have been embroiled in a bitter divorce since separating in March of 2020. In 2022, Mrs Alvina Collardeau was awarded £37 million under a pre-nuptial agreement and more by way of child support.
Mr William Harrison was not party to any of the litigation relating to financial or custody matters. He started working as chief of staff in the family office in 2018 – working for both the husband and wife. When the marriage was breaking down, he made it clear to both that he would only work with the husband.
The wife was initially represented by Withers and then Payne Hicks Beach. Mr Fuchs was represented by Stewarts during the proceedings but, in April 2022, he investigated alternatives, one of which was the London firm Sears Tooth and moved to Harbottle and Lewis. When contemplating changing solicitors, Mr Harrison helped by seeking recommendations. He also emailed Mr Tooth and talked with Mr Tooth first before adding the husband to the call. After that call, both the husband and Mr Harrison discussed potentially instructing Mr. Tooth, although the husband decided against it.
He then spoke to Mrs Bedford of Harbottle & Lewis. The husband and Mr Harrison met her a few days later and the husband decided to instruct her on 29th April 2022. In March 2023, Sears Tooth informed Harbottle that it had been instructed by Ms Collardeau. Harbottle responded by pointing out that Mr Fuchs had had a meeting with Mr Tooth, “during which his case in respect of both finance and children proceedings was discussed in a substantive way”. Mr Tooth rejected this, saying he had neither met, nor spoken to Mr Fuchs.
In June 2023, Mr Fuchs issued an application seeking to debar Sears Tooth from acting for his wife. In August, the husband made clear he did not intend to pursue the application but Ms Collardeau only agreed to the withdrawal on certain conditions. Mr. Fuchs accepted two out of three of the conditions. In September, Mrs Justice Arbuthnot permitted Mr Fuchs to withdraw his application.
Decision:
The key issue was whether there was a strong prima facie case that the telephone call between Mr Fuchs, Mr Harrison and her solicitor did not take place and that Mr Fuchs and Mr Harrison did not honestly believe that such conversation had taken place. Knowles J was very cautious in her analysis. The expert evidence obtained by Mr Harrison, without the court’s permission, was excluded.
Knowles J made it clear that the burden of proof was on the wife to demonstrate beyond reasonable doubt that Mr Fuchs and Mr Harrison did not honestly believe that such a conversation had taken place before the wife instructed Mr Tooth. The Judge noted that “Mr Tooth’s recollection may be questioned on the basis that it would be surprising if he could recall a telephone conversation which had taken place over a year before the wife instructed him”. The reason was that, since it was an informal enquiry, the Judge did not believe it was of any significance to the solicitor.
Furthermore, she rejected the assertion that Mr Tooth would have made a note as such a statement is “apparently inconsistent with his recorded practice” based on ZS v FS. Knowles J added that “The case of ZS v FS may be persuasive in combination with other matters that Mr Tooth’s evidence of his recollection may also be fallible in this particular case.”
The Judge also rejected the claim that no phone call had taken place based on Mr Tooth’s telephone records. The reason for the rejection was that the evidence was not presented in a permissible form and there were questions as to how it was obtained. Moreover, there was no evidence Mr Tooth did not use another handset. Similarly, the email between Mr Tooth secretary and Mr Harrison was not regarded as conclusive, as the secretary could have sent such an email without consulting Mr Tooth. The Court concluded that “… it is difficult to perceive how the wife can demonstrate that the inferences she seeks to rely on are the only inferences which can reasonably be drawn from either the 24 April email or from Mr Tooth's phone records.”
The final part of Ms Collardeau’s case was that Mr Tooth could not have made a telephone call on 22 April 2022 because he was in an all-day hearing, although there was no evidence to support this, such as the time it concluded. Knowles J refused the suggestion by the wife that the litigation was motivated by exercising control over her rather than by his perception that his confidence had been breached. As a result, the Judge held “that the wife’s prima facie case is weak and evidentially flawed.” Knowles J refused permission to bring committal proceedings, declaring it “simply not in the public interest to do so”.
Implications:
The facts of this case are very specific, but two lessons can be drawn from it: first, the evidential threshold to demonstrate that something did not happen is very high, and second, judges are not prepared to take some evidence at face value. For instance, the fact that Knowles J argued that the phone record did not prove a phone call did not occur as it could have been made with another handset shows such reluctance. The final take is that committal proceedings are not in the public interest.