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Interview with Valentine Le Grice QC

Senior family barrister at 1 Hare Court, member of Queen’s Counsel, and prolific writer, Valentine Le Grice QC talks to us about life, literature and why divorce lawyers are a lot like gynaecologists.

First of all, could you introduce yourself?

I am Val Le Grice, I have been a barrister since 1977. I’ve specialised in family law since 1979 and I’ve been Queen’s Counsel since 2002.

Are you any relation to Charles Valentine Le Grice, the priest and writer?

I am the direct descendant of Charles Valentine Le Grice who was my great, great, great grandfather.

He was an associate of Charles Lamb, Samuel Taylor Coleridge and their ilk? 

He was at school with Charles Lamb and at Cambridge with Lamb, Coleridge and Wordsworth. My elder son, Charles – also Charles – was at Cambridge some years ago – not reading English, reading philosophy at that stage – and one of the English dons came up to him and said: “You’re Charles Le Grice, aren’t you?” and he said “Yes.” And he said: “Your ancestor was a really bad poet.”

What did he say to that?

Charles was a bit surprised. I think it’s fair to say that Charles Valentine was not a great poet. He had a good use of words but he wasn’t very inspired.

He was a priest, wasn’t he?

Yes, he was a priest and that took him to Cornwall where he married a widow and my part of the family have been in Cornwall ever since, in Trereife. There’s a picture of it just outside my office.

But you take after Lamb and Coleridge by being a keen writer. 

I am. I try to write. I’ve wanted to write for quite some time and about four years ago I set my mind to writing a novel, which so far as anything is ever finished I have finished: it has a beginning a middle and an end and 89,000 words. But that doesn’t mean it can’t be improved. 

Can you tell me anything about it or is it top secret? 

Oh no, it’s not secret at all! Reducing the plot as far as I can, the hero – Jerry, Jerome – is looking for a child whose mother dies during the course of the book and whose father is a Roman Catholic priest who has never seen his child and is also a cousin of Jerry’s. Once a year on her birthday the mother has sent the father details to update him on what’s happened to the child. On her thirteenth birthday, the father, Evelyn, doesn’t receive the letter and asks Jerry to try and find Faith, the child. Through various twists and turns her eventually does so. 

How far have you got with that – are you published, do you have an agent? 

No, I’m looking for an agent. So far, the book’s been rejected by agents, though when I first sent it to agents it was not good enough. Since I’ve edited it quite considerably, it’s now had several positive rejections, if that’s not a contradiction in terms. Two agents have shown quite an interest in it and been quite complimentary about it, but I still haven’t found one.

Some of the best writers have combined creative writing with a more solid profession: Keats, William Carlos Williams, Arthur Conan Doyle (doctors), Kafka (worked in insurance), Bram Stoker was a PA to an actor and he worked as a business manager in a theatre. How do you manage to balance the two? 

I think the difficulty that I had in years gone by is that I was very busy and though I wanted to write it was very difficult to settle down to any extended period of writing. Recently I’ve had more time available – fewer commitments to children in particular, and therefore I got going with it. I think writers traditionally have normally had another job because they’ve needed the money, though some are easier to combine perhaps with writing and others.

You did a degree in English to begin with. Which came first: literature or the law?

I had always considered law, but I felt that if I’d read law…I was almost certainly going to become a lawyer but I felt that I was young at the age of 17 to take that decision, particularly because my father was by profession a solicitor, and I felt that I’d been…not pressed towards law but directed towards law and quite wanted to take my own decision. I also felt, rightly, that three years of reading English was going to be less demanding and more interesting than three years of reading law.

Do you have any favourite writers or works?

I was at Durham where we did a lot of Middle English so I have a certain fondness for ‘Sir Gawain and the Green Knight’. In more contemporary terms I’m a great admirer of Dickens, I’m also a great admirer of TS Eliot, but there are others.

Did you ever consider doing anything else as a profession?

Not really. I felt by the time that I’d left university that I wanted to do law and come to the Bar. I then found it something which appealed to me and therefore having found a place to practise, which then, as now, was not particularly easy, it’s not something that I’ve wanted to change. It can be quite exasperating – the hours can be quite overextended – but I’ve always felt happy with it.

And you chose the Bar rather than being a solicitor. Did you think that it had a perfomative aspect to it? 

I think because I was attracted to advocacy; my father, though he practised happily before the Second World War, had difficulty finding the type of job as a solicitor that he wanted after he was demobbed in 1946 or 1947, and then he had a rather negative view about the solicitors’ side of the profession. Looking back on it, I think I should have considered being a solicitor more seriously than I did but I think I would have chosen to be a barrister nonetheless.

As both a lawyer and a writer, do you have any thoughts on the issue of press access to the family courts, and indeed transparency in the family courts in general? Mostyn J and Munby J have recently been at odds about this. 

I think the most important thing is that they should all agree, so that at least you knew what was going to happen. It’s not right that there should be one judge – and it is only one at the present moment – who invariably hears cases in public; the others in private with a greater or lesser degree of press access. And there, there is a difference I think between the different judges of the division.

On balance, I think that the cases should be heard in private. I think Nicholas Mostyn is right when he says that anonymised judgments are sufficient for the public if the public’s interested to know how the family courts operate, and I think he’s also right when he says that some of the reasons for public hearings, such as keeping the judges under the control of the press, are no longer relevant because the judges are much more carefully regulated now. Once one accepts that, I think that people are entitled to keep personal information – some of it very personal, certainly very detailed about their finances – confidential. But that is on balance – I can see the contrary argument. We certainly need to have clarity.

You’re qualified as an arbitrator and you were one of the first to qualify under the Institute of Family Law Arbitrators’ scheme. Where did your interest in arbitration arise from – for similar reasons of privacy?

I always felt that arbitration could have a role in family work, and had some communication with David Hodson – a well-known solicitor who was quite instrumental in setting it up – some time ago about it. I think that it’s a system in which people can choose who’s going to decide the case, and both sides have got to agree on that so they’re going to have confidence in the person who can do it. It is completely confidential. It can be quicker, and as it’s quicker it can be cheaper. And the parties are able to have a lot more control over how it operates. I can’t see particularly why they would want it to take place on a Saturday, but if they did, it could take place on a Saturday. If they wanted to start at 4 o’clock in the afternoon and finish at 7 o’clock in the evening, that would be their call.

Do you think that it might be the future for divorce and financial remedy proceedings, or will it always remain a bit of a niche option?

I think it will become more prominent. I think it’s a mistake to feel that it’s only for families with a good deal of money. There are various arbitrators and, depending on whom you choose, that dictates, to some extent, the fee. And with considerable control cutbacks over government spending on the court system, I think the court system is going to create its own problems and people would be quite well advised to be out of it.

What do you make of the Supreme Court judgments in Sharland and Gohil and the impact of fraudulent non-disclosure in financial remedy cases? Have you encountered a lot of this in your time?

I think there’s always been quite a lot of non-disclosure. There’s obviously also more non-disclosure than people know about because some people get away with it. That must be right – I don’t think for a moment one could suggest that everybody’s found out! The decisions [in Sharland and Gohil] didn’t really alter the law as it had previously been, but they certainly avoided any argument that Sharland in the Court of Appeal might have altered the law away from what it previously was in Livesey v Jenkins.

Do you think that spousal maintenance has been too generous to wives?

That frequently depends on whether you ask the wives or the husbands! I think that there should be legislation – I really don’t think the judges can do this, I think it’s quite beyond their authority, to be fair and with respect to them – there should be legislation which properly limited the duration of maintenance. Though I would myself contend that it should be a relatively long period of years, but I think some certainty of maximum duration would perhaps assist everyone.

You worked on the case of MacLeod v MacLeod back in 2008, which eventually went before the Privy Council. 

Yes, I did the appeal in the Isle of Man, which I won, and I did the appeal to the Privy Council, which I lost.

How does the Privy Council fit into the court system – when does one appeal to the Privy Council? 

Appeals from some bodies and jurisdictions go to the Privy Council, put simply, rather than the Supreme Court. Appeals from the Isle of Man do, I think potentially they would from the Channel Islands – I could be wrong about that. And then there are some other slightly odd appeals to the Privy Council; I don’t know much, but I have a feeling that General Medical Council appeals ultimately go to the Privy Council, but again I could be wrong about that. 

Now the case of MacLeod v MacLeod dealt with the validity of marital agreements prior to Radmacher. Do you think that the Law Commission should back this up in legislation and work to make them properly binding? 

The Law Commission has recommended that there should be legislation. I think that the concept of what is ‘binding’ I have a slight problem with. They are, I think, binding between the parties; they don’t bind the court. There’s definitely scope for premarital agreements; in the right circumstances I think they’re very good things, but they’re not a panacea which will answer every problem.

I understand that you used to do some professional negligence work; is this still something that you pursue? 

I had some experience of professional negligence in my pupillage – it wasn’t a family pupillage – I did several cases relatively early on with a very good solicitor – Clifford Bellamy, now His Honour Judge Bellamy – and I carried on doing a bit of it, but limited only to professional negligence arising from the financial consequences of divorce; I wouldn’t do anything else. I think that there has to be some input in professional negligence cases arising from divorce of family lawyers. Particularly in terms of quantum of damage, I think the prof neg Bar – excellent as it is, and it really is a very high standard – doesn’t have, of course, the day to day experience of the family courts.

So what made you choose family law? 

Best offer I got.

As simple as that? Was family law considered less heavyweight back in the 1970s than it is now?

As I have said from time to time, divorce lawyers have one thing in common with gynaecologists and that is that gynaecologists are not held in great respect by the medical profession generally, who feel that they can, in some areas of their work, charge quite large fees for doing fairly simple work. Within the legal profession I think there’s a similar approach to divorce lawyers; they feel that it’s not that difficult and they can charge quite large fees and some of the work is pretty easy. In consequence of which you never come across a gynaecologist or a divorce lawyer who is described as intelligent, industrious, or any of those types of epithets; all that anyone ever says of a gynaecologist or divorce lawyer is that he or she is ‘fashionable’.

As to back in the times when I was starting I had no particular desire to be a family lawyer, but in my second six months of pupillage I started doing some family work and I found it more interesting than I expected, so when I discovered that there was a vacancy at what was then 1 Mitre Court Buildings and is now these chambers 1 Hare Court, I felt that contrary to what I might have expected when I started at the Bar that I would apply for it.

Have you had any particularly difficult courtroom experiences in your years of practice? 

The obvious answer to that is yes, quite regularly! The first substantive appeal I did to the Court of Appeal was in front of the late Lord Justice Ormrod – probably the best judge in family cases of all the years that I’ve been in practice…certainly one of the best; it might be unfair to put him above a couple of others, but it wasn’t an easy tribunal. I was very junior really at the time, and we didn’t have written arguments then, so I was making my principle argument and I could tell that Roger Ormrod was uninterested in this because he was staring at the ceiling and drumming his pen on the bench. So in time-honoured fashion I said “I see that my first point doesn’t benefit from repetition so I’ll move to my second argument.” This got a response from Roger Ormrod, though not the one that I expected. He sat upright, looked me straight in the eye, put his pen down on the bench and said: “Mr Le Grice, if you’ve got a second point in this appeal you’ve got a more vivid imagination than me.”

How did you come back from that?

I won on the second point as it happens. But it was a small point…

I’m told that you have some interesting stories of divorce lawyers in the past having to prove adultery…

There’s a story I sometimes tell of my grandparents’ divorce, where, in accordance with the traditions of the time – though my grandmother was living with the man who subsequently became her second husband and my grandfather had not committed adultery – because they’d sorted everything out by agreement, quite often the terms of the agreement then – this was before the Second World War – was that the husband would give grounds to the wife for divorce. So, solicitors had their experts then as now, but then, not now, included amongst the list of experts were professional co-respondents. So my grandfather’s solicitor found a professional co-respondent and they went to Brighton together, and she offered my grandfather two rates – I’ve no idea what the figures were – but the higher one was to commit adultery and the lower one was to create a presumption of adultery. My grandfather certainly took the cheaper rate, so that he slept on the sofa and then in the morning – in those days tea was brought to your rooms – and when the tea was brought in the morning he got into bed with the co-respondent, the door was opened, the tea was brought in and the photographer then came in and took the photograph.

One of the things that my grandfather said about this – and there’s no particular secret about this history – was that he had dinner with the lady and as an opening conversational gambit he asked her what had brought her into this particular line of business, to which he got the perfect answer, though it’s a difficult piece of lateral thinking, but once I give it I think one can see it’s a perfect answer: “I’m saving up to get married.”

There’s a certain irony to that. I have heard of professional co-respondents, but were the courts not privy to that sort of thing? Did they just not really mind? 

The judges knew it was happening all the time. I think particularly in the immediately post-war years – this was pre-war. But the impression one gets tracing through the history of judicial divorce since 1857 when it was introduced, is that the judges – first of the probate, divorce and admiralty division, more recently the family division – most of them have been ahead of society’s attitudes rather than behind, and I think that a lot of judges knew that these collusive divorces were happening, but it didn’t particularly worry or upset them. They took a pragmatic view.

Do you have any stories you wouldn’t mind sharing?

There are two I suppose. One relatively short that’s always stuck in my mind. In my fairly early days of practice I was quite young, perhaps quite naïve, I don’t know. I was doing a case for a solicitor who didn’t know much about divorce at all so I was taking the instructions from a very early point in the proceedings. The circumstances surrounding the breakdown of the marriage definitely mattered more then – this was back in the early eighties – and I could tell that the husband and wife had had a fairly open marriage. I was for the wife, and I asked her: “would you say that your husband has committed adultery more often than you?” to which I got the reply “I certainly hope not.”

Then, in the Willesden County Court, in a case that was meant to be a fairly short final hearing of a financial case, I knew that my client was coming to court with a psychiatric social worker because my client was a voluntary patient under the Mental Health Act. I arrived at Willesden, I’d not met her before, and I was discussing the case with her. I stopped, she didn’t say anything, she was completely silent. I was trying to get her confidence and asked some easy questions: I think it was her date of birth I asked her, which I knew from the papers. That did get a response, but it wasn’t entirely what I’d expected, because she starting singing the 23rd psalm to the tune of Crimond. And when she got to the end she went back to the beginning and started again. It didn’t seem to me that she could really swear the affidavit that she needed to swear, or give evidence or indeed give instructions. So I said to my solicitor’s representative that I thought we’d better go and discuss this outside the conference room. You could still hear the 23rd psalm in the background. And my solicitor was standing slightly behind me, and interspersed with the sound of the 23rd psalm, I heard a sort of deep sighing sound and a bang and I turned around and I saw that my solicitor was breathing heavily and banging his head against the wall.

So there we are: I had a professional client who was behaving, at least, oddly, and a lay client who was acting certainly very oddly. My opponent came and said that he could see that I was in some difficulties and could his solicitor help, so I said: “Perhaps your solicitor might take my solicitor to the robing room, I think my solicitor’s had an unfortunate turn!” The case was then called on and my opponent and I went in and said that for various reasons the case really couldn’t go ahead and it was adjourned. As I came out from this brief hearing my client was still singing the 23rd psalm, my solicitor was back from the robing room looking a little less than hunky-dory but certainly better than he had been looking. My client then made to leave Willesden County Court, so I said to the psychiatric social worker: “Mrs _____ is leaving”. She said: “Well I can’t stop her, she’s only a voluntary patient.” I said: “I dare say you can’t stop her if she’s a voluntary patient, but my absolutely free legal advice is that if you don’t follow her and she throws herself under a train at Willesden junction, your authority is likely to be responsible.” That was a difficult day at court!

Did you ever find out what was wrong with the solicitor?

I did. Actually the case was a return of Judith Hughes, now Her Honour Judge Hughes. Judith took the case back, and the solicitor, who was junior – I think he was either a very junior assistant or even a trainee – had found this case, which was not altogether straightforward, stressful and the firm thought, rightly, that he was better directed towards non-contentious work.

If you could unilaterally enact one reform in family law, what would it be? 

I think that it would probably be to limit the duration of maintenance.

Do you have any idea of the duration? Or would it be on a case by case basis?

I think that for five years, or until the youngest child is eleven – obviously the age at which children move to senior school – whichever is the longer. But I would draft the legislation in such a way that the maintenance during that period or the division of capital at the beginning of that period could take into account the weaker financial position of the wife; if it be the case after the end of the five-year period. I think it would avoid the at best desultory experience of seeing variation applications, one way or another, many years after the marriage, but with the caveat that I’ve given, would, I hope, give an appropriate level of genuine financial independence to the weaker economic party during the period that it was paid. 

What else do you predict for the future of family law?

I don’t predict that’s going to change; I don’t expect much in the way of legislation, though there some would say there’s a strong argument for reforming the law on cohabitation though as it happens I’m not one of them because I personally take the view that people should be free to cohabit without acquiring any financial responsibility. Unless they have children, in which case Schedule 1 of the Children Act probably achieves its purpose. But just about any significant reform to family law is going to take quite a lot of parliamentary time, which is very valuable – there’s a lot for parliament to do – and secondly, more likely, I think, to lose votes than to gain votes.

It’s interesting if one looks back, as I had to quite recently for a lecture, to the Law Commission report before the 1970 changes – so basically the current financial law; it was then amended in 1984 – it was a very thorough report, acted upon; the Law Commission does very thorough reports, some of which have managed not to be acted upon. If one reads, as sometimes one does, through Hansard, the parliamentary debates on the great reforms to divorce law of the end of the sixties, beginning of the seventies, the level of parliamentary debate is very, very high, informed by the fact that there were then quite a lot of practising lawyers who were members of parliament. But it’s not only they who were contributing towards the debate, the debate was just of a standard which I just don’t think one could expect in parliament now because of the pressures that there are on members of parliament in other areas.

There is a no-fault divorce bill that’s had a 10 minute reading in parliament… 

Yes. It would be a good idea to have no-fault divorce. Pragmatically, it goes back rather to what I was saying about the collusive divorces under the old law. Pragmatically, anybody can get divorced by filling in a ‘behaviour’ petition which they’ll be able to swear to the truth of – ‘state the truth of’ nowadays – where the allegations, though petty, will be sufficient to get themselves divorced. But I do know from speaking to solicitors that with some of their clients the fact that there is ‘fault’ for divorce – and assuming neither party has committed adultery or will admit to it, so it is ‘behaviour’ – they do find that upsetting. And I can understand that, because, for the client, they haven’t seen all the other cases.

 

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