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'Deeply regrettable'. Those were the words the Rt Hon Michael Gove, Justice Secretary, used to describe the error on a version of the Ministry of Justice's (MoJ) online Form E.
The MoJ's April 2014 version, no longer available, miscalculated assets by not properly taking into account liabilities. Mr Gove said that up to 17,000 people might have been affected.
He added to the information offered initially by the MoJ website which said, giving an email address, 'An error has been identified in the automatic calculations used in the version of the Form E (Financial Statement) available on the HMCTS Form Finder website...The current online version has been corrected. We are urgently investigating this issue and will be writing to anyone affected as soon as possible.'
The issue soon got a moniker, 'Form E-gate'. The media predicted that 'thousands of couples who had settled their divorces in the last 20 months may have to re-open negotiations' (The Guardian). A number of family lawyers were quoted and did little to put the issue in perspective. It’s worth trying to do that.
Five per cent of financial applications, or ancillary relief matters, go to a fully contested hearing. 95% settle beforehand. To formalise such a settlement, a draft consent order application must be filed. A court will only consider that if it is accompanied by certain information, including financial details, not in Form E format, which may have already been filed and served, but a Form D81 statement of information, instead. Hopefully this reworking would uncover any glitch.
Even where a matter is contested, a Form E is just a snapshot. There is after all, an ongoing duty of full and frank disclosure on each party who would typically update their financial positions in advance of a financial dispute resolution hearing or a trial. In preparation for a hearing, advocates normally transfer Form E data into a spreadsheet, which would also be likely to uncover any errors in a MoJ form. But how many solicitors rely on its rather clunky version?
One quote was 'not a single solicitor, barrister or judge in the whole of the UK had noticed this error'. Frankly, few qualified lawyers worth their salt would use a government on-line form. This is partly due to the poor track record government departments have with IT, for example the Child Support Agency. It is due to the fact that specialist family law solicitors invest in good quality bespoke software to make it easier for their clients.
When one begins to drill down into, so called, 'Form E-gate', with all its media hype, it looks a bit like the mythical 'Divorce D-Day' which reappears every January and has family lawyers and PR firms vying with each other to shout about. Harsh? Perhaps.
So what is really going on after Michael Gove’s apology? My enquiries of HMCTS reveal that all courts that hold divorce files are currently undertaking a review of all their financial cases. The exercise has, of course, found practitioners' own non-MoJ Forms E, which are not affected by the problem, as well as different versions of the MoJ’s online item. I understand that this widespread check is ongoing and the results are not yet known. What is clear is that the MoJ's Form E1, used in applications under Schedule 1 to the Children Act 1989, is unaffected.
What if the financial relief application is ongoing where there is an offending MoJ Form E? Those who have contacted HMCTS have been told that judges will be made aware that the issue will need to be dealt with in the proceedings. Indeed, a circular went out to the judiciary last Friday (18 December 2015).
As for next steps we wait and see.
The upshot of this sorry episode is that many of those who have relied on the free on-line MoJ form, will be litigants in person, without access to legal aid. They will not be able to afford advice on how to address the problem.
As Jo Edwards, chair of Resolution, put it, 'It is unfortunate that so many self-represented litigants have relied upon the Government's online Form E tool and now potentially face having their cases reopened. This illustrates yet again the desirability of litigants having access to at least limited legal advice.'
Whatever the extent of the problem, Michael Gove is right to say that it had affected people 'at what is inevitably a very stressful time in their life'. Just in time for Christmas, too.
Tony Roe is a solicitor and family law arbitrator at Tony Roe Solicitors, Theale, Reading, Berkshire
0330 161 1234