Outside juristicion hypothetical

Molloys Clondalkin

Hi Guys
Me and some friends were chatting recently and the subjuct of child maintenence came up
Not having kids Im pretty unaware on such matters but one thing two of them disagreed on Id like to get cleared up

Apparantly the max amount of maintenence a judge in the childrens court can issue is 650 per month (this was said to him by the judge)
but due to an over sight a previous judge signed off on a much higher cost. It was a different Judge the second time and he brought it to the courts attention straight away as the amounts involved were out of the courts Juristicion.

Que arguemnts in the pub at the weekend over who is liabe for the repayments.

My two cents was that if said ex partner either didnt or couldnt pay back the excess would it be down to the courts and if they refused his counsel would be liable (because thats what he was paid for).

so who is responsible for a judges mistake? is it seen as either a miscarrige of justice? Or because no one went to jail is there a much less term used for a situation like that?
and what rights are there for someone to claim back monies that never should have been paid for in the first place? who pays etc surely its not the ex's fault because she only did what the Judge said and recieved monies awarded to her. should she have to pay that back or will the state have to cover the costs of a Judges mistake?

dermot_sheehan

Interesting issue.

Payment under a mistake of law normally gives rise to a right of restitution against the party that has benefited by the mistake. In the example though, it's payment under a District Court order that was made without jurisdiction

In A v. Governor of Arbour Hill the Supreme Court held that court orders are still effective, even if made without jurisdiction, the party adversely affected must challenge or appeal the orders in question within time.

Whether a solicitor or barrister could be considered professionally negligent for not spotting that a District Court judge made an order that was outside his jurisdiction is an interesting question. The test is whether a reasonably competent legal practitioner in the field would have made that mistake.

Considering the District Court judge him or herself made the mistake as well and was previously a legal practitioner, I'd be of the view that it was an error that was not necessarily indicative of negligence. Errors and mistakes happen yet don't always give rise to a claim in negligence.

Molloys Clondalkin

Cheers for the answer so its not as simple as party x automaticaly getting a refund he has to take a civil action to claim back excess amounts?

CIARAN_BOYLE

Molloys Clondalkin wrote: »

Cheers for the answer so its not as simple as party x automaticaly getting a refund he has to take a civil action to claim back excess amounts?

He would have to take a civil action but it would be in his best interest to ask for a refund explain the situation and see if the person gives the money to avoid costs

Molloys Clondalkin

To be honost I doubt the other person has the cash saved!
I do think its unfair he woud have to do this to right a situation started by the court also that the ex may have to pay costs toward represenation (not to mention the overpayments).

I think a system where the judge can strike out the first ruling amount replace with a second amount and instruct a system of payments to recoup the overpayments should be in place.
I know for some of that its not that easy but I like to pretend I live in a great country somedays !!

ResearchWill

Molloys Clondalkin wrote: »

To be honost I doubt the other person has the cash saved!
I do think its unfair he woud have to do this to right a situation started by the court also that the ex may have to pay costs toward represenation (not to mention the overpayments).

I think a system where the judge can strike out the first ruling amount replace with a second amount and instruct a system of payments to recoup the overpayments should be in place.
I know for some of that its not that easy but I like to pretend I live in a great country somedays !!

The first post stated it was a situation that did not happen. Anyway it seems now it may have happened. While I believe the limit in DC is 150 euro a week per child and 500 per week for spouse. Your original post stated the judge erred in giving an over payment in relation to the child, well with out knowing the amount or the time period, why would any father want to take money back from his child, because that is what he is doing.

But on the first question, you can't sue the Judge, the fathers own legal team should have known better and could be liable. But the easiest way is to go back to the original judge fix the order under the slip rule, then work out how much was paid, and how much should have been paid and get an order to confirm the person is in credit by that amount.

Offy

ResearchWill wrote: »

Your original post stated the judge erred in giving an over payment in relation to the child, well with out knowing the amount or the time period, why would any father want to take money back from his child, because that is what he is doing.

With respect ResearchWill this statement makes the assumption that the money was actually spent on the child, this is not always the case and certainly not the case in my experience. Judging from boards.ie and my life I would say a lot of mothers do not spent all maintenance money received on their children. In my situation it works out at about 25% of maintenance paid gets spent on my daughter so if it were me in the position stated by the OP why should I not claim back the overpayment? The fact that 'you can't sue the Judge' is an outright shame IMO.

Molloys Clondalkin

ResearchWill wrote: »

The first post stated it was a situation that did not happen. .

No the first post stated I dont have kids and it was the result of a converstion in the pub.

Its not my place to say about what the money was spent on it could have been coke and hookers for all I know what it was spent on is besides the issue, I agree about not being able to sue the Judge it is a shame as it was his error that caused a lot of finacial hardship and stress to said person. I do think leave to sue the state (like a liability system) should be in place and then the court an seek redress from the party that benifited.
and I agree (which was my original argument in the pub) that his counsel shoud be held liable for not spotting the mistake.
By the way what is the "slip rule" ?

ResearchWill

Molloys Clondalkin wrote: »

No the first post stated I dont have kids and it was the result of a converstion in the pub.

Its not my place to say about what the money was spent on it could have been coke and hookers for all I know what it was spent on is besides the issue, I agree about not being able to sue the Judge it is a shame as it was his error that caused a lot of finacial hardship and stress to said person. I do think leave to sue the state (like a liability system) should be in place and then the court an seek redress from the party that benifited.
and I agree (which was my original argument in the pub) that his counsel shoud be held liable for not spotting the mistake.
By the way what is the "slip rule" ?

You gave the thread the title Hypotethical leading me to believe it was a what if situation.

If the matter involved the state in some way that is criminal matters then you can sue the judge and Ireland and the attorney general as the state will pick up the damages and costs.

But in this case the judge made an error, I wonder did the judge intend to give the spouse an amount as well. Hence why the correct thing is to have the matter listed before the same judge, point out the issue and have him clarify the amount. I find it really really difficult to accept that no one in the court pointed out to the judge he was acting outside his jurisdiction. Even if you are for the plaintiff you would point out the error if you are aware of it, so to save your client grief in the future.

Molloys Clondalkin

I imagine he intended to give an amount there was a little more to the story.

His overdraft was taken into consideration by the plaintiffs counsel as extra income. I mean an overdraft is a loan facility not income its automatically taken out at the next months wage lodgement.

I think he got shafted well and truley and now that the current Judge has made everyone aware of it he should claim for the money back. be it n a lump sum or credits etc.

ResearchWill

Molloys Clondalkin wrote: »

I imagine he intended to give an amount there was a little more to the story.

His overdraft was taken into consideration by the plaintiffs counsel as extra income. I mean an overdraft is a loan facility not income its automatically taken out at the next months wage lodgement.

I think he got shafted well and truley and now that the current Judge has made everyone aware of it he should claim for the money back. be it n a lump sum or credits etc.

To be honest, taking an overdraft into consideration as income is just beyond stupid. I don't think the guy is telling you the full story. If there was 1 judge, 2 solicitors and 2 barristers involved in this and no one spotted the many issues, all basic stuff is beyond belief.

Molloys Clondalkin

ResearchWill wrote: »

To be honest, taking an overdraft into consideration as income is just beyond stupid. I don't think the guy is telling you the full story. If there was 1 judge, 2 solicitors and 2 barristers involved in this and no one spotted the many issues, all basic stuff is beyond belief.

Ive no reason not to believe him as he does pay out a substantial amount
but I do think its ridicoulous I think its 1 judge 1 soliciter and his barrister.
If it was me in that scenario Id be wanting blood!!

ResearchWill

Molloys Clondalkin wrote: »

Ive no reason not to believe him as he does pay out a substantial amount
but I do think its ridicoulous I think its 1 judge 1 soliciter and his barrister.
If it was me in that scenario Id be wanting blood!!

Why I said 2 solicitors and 2 barristers, in this jurisdiction if a solicitor or barrister is aware a judge is making a mistake they should inform him. So 5 lawyers either ignored a number of issues or had no clue what they where up to, either option is scarry. Worse still when error is shown up noone sorts it out, beyond belief.

castie

He said a 2nd judge corrected the amount did he not?
So would make me think something was up with the original judgement.

Unless Ive misunderstood the posts.

ResearchWill

castie wrote: »

He said a 2nd judge corrected the amount did he not?
So would make me think something was up with the original judgement.

Unless Ive misunderstood the posts.

Yes the second judge changed the amount, we are not sure if that was on appeal or if it was relisted before the second judge. The issue that has not been fixed is the over payment, no one has it seems come up with a solution for that.

Which again makes me think the OP is not getting the full story from his friend. In that when the matter was corrected either on appeal or on relisting in DC, no one brought up the issue of over payment.

I can understand 1 lawyer making a mistake, but 5 seems really really really bad. On a difficult area of law I could understand but the issue here is basic stuff, even if you are not a lawyer you can find the DC limits on citizen information web site.

If I was the OP's friend and this happened to me there would be letters to the president of the DC, the law society and the bar council.

daenerysstormborn3

This is where a solicitor's PII comes in useful.

Molloys Clondalkin

The amount hasnt been corrected yet as it has to be brought to the high court for amounts over 650 (thats the limit for the childrens court).
The other party was not willing to accept a less amount so the Judge could not sign off unless it was below the threshold. It was an appeal and when the case was being called and the second Judge seen the amounts involved brought it to everyones attention that he could not deal with the case.
He gave everyone some time to try and reach a compromise but that did not happen.

@castle
Yes the first Judgement was for 900 euro per month which was more than that court was allowed to sanction. it was an appeal to reduce payments that was brought and a different Judge resided on that case.

I should get him to write isnt there an ombudsman for this scenario??

ResearchWill

Molloys Clondalkin wrote: »

The amount hasnt been corrected yet as it has to be brought to the high court for amounts over 650 (thats the limit for the childrens court).
The other party was not willing to accept a less amount so the Judge could not sign off unless it was below the threshold. It was an appeal and when the case was being called and the second Judge seen the amounts involved brought it to everyones attention that he could not deal with the case.
He gave everyone some time to try and reach a compromise but that did not happen.

@castle
Yes the first Judgement was for 900 euro per month which was more than that court was allowed to sanction. it was an appeal to reduce payments that was brought and a different Judge resided on that case.

I should get him to write isnt there an ombudsman for this scenario??

OK just to clarify a few things the children's court is where criminal cases are heard in relation to minors. A limit of monthly payments paid per child is in the District Court. Appeals from the District Court are heard in the Circuit Family Court.

There is nothing stoping the plaintiff in this case to abandon the DC case and bring the matter in the Circuit Family Court or indeed in the High Court and payments of 900 euro's are possible to make.

On appeal the Circuit Judge would have reduced the amount to the jurisdiction straight away no matter what the plaintiff (applicant said). While I do not practice in family law none of this adds up.

BTW what ombudsman? Also if this has happened as you said and the matter has not been resolved, your friend should be changing solicitor and barrister straight away.

Molloys Clondalkin

Cheers for clarifiying those I think thats my misunderstanding as opoosed his.

Ill ask him when I see him but I know that he went in to get the amount reduced and the amount he wanted was under the limit but the amount she wanted was over it.
The Judge gave them ten mins to try and reach an agreement and she walked away from negotiations.

re the Ombudsman it was my question is there one for these scenarios who can you complain to to make sure this doesnt happen again.

And I already told him to change barrister!!!!!

ResearchWill

Molloys Clondalkin wrote: »

Cheers for clarifiying those I think thats my misunderstanding as opoosed his.

Ill ask him when I see him but I know that he went in to get the amount reduced and the amount he wanted was under the limit but the amount she wanted was over it.
The Judge gave them ten mins to try and reach an agreement and she walked away from negotiations.

re the Ombudsman it was my question is there one for these scenarios who can you complain to to make sure this doesnt happen again.

And I already told him to change barrister!!!!!

Again that does not add up, often a judge will say I'll give you 10 mins reach an agreement, but one party can't just walk away then, if they do the Judge makes his mind up and sets the amount. If he had already said the limit is x, he would set the amount at x or below, even if a party walked away.

The people to complain to are as I set out earlier, the president of the district court, re the judge, the law society re the solicitor and the bar council re the barrister.

But to be honest, I don't think your friend really understands what's going on as the story just does not really add up, so he should get new independent legal advice before complaining anyone, just to make sure he understands the whole situation.