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Custody battle costs father $129,000

A father who racked up a legal bill of $129,000 in a custody battle for his child has been ordered by a court to pay his former lawyers in full.

The man, who has already paid $65,600 to Marshall Diel & Myers, must now stump up an outstanding $63,893, according to a Supreme Court decision by Puisne Judge Stephen Hellman.

The father claimed in his defence to a civil lawsuit filed by Marshall Diel & Myers that the fees he was charged between 2009 and 2011 were “unreasonable” and that he should have been advised by the firm to represent himself in the Family Court, rather than pursue the custody case in the Supreme Court.

He alleged the “failure” to give the “correct advice” was a breach of the law firm’s contractual duty to act with reasonable care and skill in the best interests of their client.

But Mr Justice Hellman found that Marshall Diel & Myers did act with reasonable care and skill, noting that the father did not have to follow the advice he was given and could have acted for himself in the Family Court or the Supreme Court.

“Or he could have instructed a less expensive firm of attorneys,” wrote Mr Hellman in his judgment.

Mark Diel, managing director of the law firm, told The Royal Gazette: “This is a simple case of [the father] not wanting to pay the fees that he incurred. He was given a bill every month. He never queried the bill.

“He made numerous promises to pay that bill. He has had this matter outstanding for over five years.

“It’s not like we have jumped down his throat. I’m hopeful that we will [recover the fees]. If you use a telephone, you run up your cellphone charges and you pay it.

“If you run up an electricity bill, you expect to pay it. What’s the difference with a legal bill? [The father] just doesn’t want to pay years after the event.”

The man hired Marshall Diel & Myers in January 2009 in a bid to get his child returned from overseas to Bermuda. Georgia Marshall, a director of the firm, initially handled the case, securing his son’s return within ten days.

The matter was then passed to another director, Adam Richards, who acted for him until March 2011, when Marshall Dill & Myers ceased representation due to non-payment of fees.

During the two years it dealt with him, according to the judgment, the law firm applied to stop representing him several times due to non-payment of fees and did “come off the record” during the summer of 2010 for that reason.

Mr Diel told this newspaper the client persuaded the firm to continue representing him, promising to pay his bills.

In June 2011, it obtained a default judgment against him for the unpaid legal fees but this was set aside in March 2014, when the father was granted permission to file a defence arguing that the custody proceedings should have been brought in the Family Court.

The case was heard earlier this month by Mr Justice Hellman, who concluded: “This is an unfortunate case in which something has gone badly wrong with the relationship between the defendant and his attorneys. It is a matter of regret that the parties were unable to reach a reasonable compromise over the plaintiff’s outstanding legal fees. Even at this late stage, perhaps they still can.”

He noted the defendant signed an agreement with the law firm giving him 30 days from receipt of a bill to question any item on it. The agreement said if the bill wasn’t queried, it was accepted as “accurate, due and owing”.

The judge said though the father may have made generalised complaints about his fees, he didn’t question any specific items or dispute that he was liable to pay his bills, within the 30-day timeframe.

“That is sufficient to dispose of this case,” he wrote.

The judge added: “I am satisfied that the defendant is under a contractual duty to pay the legal fees for which he has been invoiced.”

The father, who is now represented by Kamal Worrell, declined to comment on Mr Justice Hellman’s judgment but thanked Chief Justice Ian Kawaley for transferring the case to the Family Court in March 2013, where the custody row was ultimately resolved.

He also praised the Department of Child and Family Services for “their professionalism and the way they handled my son, putting him first” and the Family Court panels which dealt with the matter.

The man added: “In due course, my lawyer is going to deal with how I move forward from here.”

The Royal Gazette is not identifying the defendant in this case in order to protect the identity of his son.

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Judgement made: Puisne Judge Stephen Hellman (Photograph by Glenn Tucker )