Lawyer fails to have default judgment set aside over row for divorce fees

(CMR) Local attorney Khatidja McLean had her application to set aside a default judgment for non-payment of legal fees denied by the Grand Court recently after she claimed poor legal representation in the handling of her divorce case. She paid CI$8,600 in legal fees on a total bill of CI$40,948.50.

The court found in a January hearing that she would have to pay CI$32,348.50 in professional fees to law firm McGrath Tonner who handled her acrimonious divorce in 2018.

McLean had her application for legal aid denied prior to instructing McGrath Tonner to handle the divorce proceedings, an application for maintenance and an order to get her now ex-husband to contribute to her legal fees. She had noted that she was desperate to get the divorce completed quickly while keeping legal fees to a minimum.

Although she was not practicing during the time she was married she has since started her own firm and now works as in-house counsel for a financial services business in the Cayman Islands.

She claims that after engaging the firm in late March 2018 by November of that same year she was not pleased with “a lack of responsiveness” from her attorney Kirsty Leedam. By December 2018 she received notice from partner David McGrath that they would not be able to continue representing her if an outstanding bill for CI$2,300 was not paid.

She responded that she could pay CI$5,000 but no more and drafted several documents which were sent for their review. She also indicated that her retired parents would fund the case if costs exceeded CI$10,000.

She then applied to have her husband be ordered by the court to contribute to her legal fees. During February and April 2019 the estranged couple were in talks about borrowing money against the matrimonial home or joint property owed to assist with legal fees for both of them. However, McLean was refusing to allow the matrimonial home which she resided in to be re-mortgaged instead insisting the other parcel of land be used.

In April 2019 McGrath Tonner indicated they could no longer act for her because of lack of available funds.

She then claimed poor legal representation and that she was being overcharged by the defendants. She even claimed that they were negligent and demanded repayment of the legal fees she had already paid. McGrath invited her to speak with Managing Partner Ben Tonner which apparently she refused to do given what she told the court was “no useful response” from her previous conversations with McGrath.

In October 2019 the law firm sent her a letter before action which she did not respond do. She was then served legal papers in November. Due to a broken foot she indicated she was unable to drive and therefore could file a response in time to the write and statement of claim.

She did not send in any acknowledgement of service form indicating her intent to defend the matter and she has no real experience in litigation. The court noted that “the defendant was also unable to provide any reasonable explanation why she did not ask for an extension of time to do so.”

 McGrath Tonner applied for default judgment and it was granted in December 2019. By February 2020 she applied to have the default judgment set aside by the court and filed a counterclaim for the amount her maintenance was eventually increased by, multiplied by the number of months she says the application was delayed by the Plaintiff.

The court found that there was on reasonable explanation for the Defendant's failure to acknowledge service of the writ indicating her intent to defend and no reasonable prospect of her succeeding in the matter. Acting Honourable Justice Alistair Walters found that this was a very important procedural deadline to have failed to comply with.

He noted that as an officer of the court/qualified attorney she should appreciate the important of ignoring important court deadlines. The court also appeared to doubt her story about breaking her ankle during the two week filing period for the acknowledgement of service.

The judge did allow for her to have the fees taxed on an indemnity basis and  delay the enforcement of the judgment until McGrath Tonner could sent out costs in a Statement of Account which will be taxed by the Court on the indemnity basis.

Khatidja McLean is in House Counsel and Head of Trusts for Sterling Global Financial she previously worked at Ogier as a corporate and commercial attorney in 2008 after she completed her articles with them and was admitted to the Cayman Islands bar.

Khatidja received her Bachelor of Arts (Honours) in Psychology with a minor in Law from Carleton University, Ottawa in 2004 and her Graduate Diploma in Legal Studies with a Commendation from the University of Birmingham in 2005. She then graduated from the College of Law, Birmingham in 2006 with a Commendation in Legal Practice, and joined Ogier shortly thereafter. She moved onto to Solomon Harris in 2011 but spent less than a year there before then working for Citco Group of Companies as In-House Counsel for 11 months.

Her LinkedIn biography shares that she was self employed at her own law frim for almost 8 years before taking on her new position in June of last year.