Keren Lomas v Leo Trott

• Jurisdiction: Bermuda
• Judgment Date: 08 April 2009
• Docket Number: Appellate Jurisdiction 2009 No. 5
• Date: 08 April 2009
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Appellate Jurisdiction 2009 No. 5

BETWEEN:

KEREN LOMAS

Appellant

and

LEO TROTT

Respondent

Ms J Snelling for the Appellant

Respondent in person

The following case was referred to in the judgment:

M-T v T [2006] EWHC 2494

Maintenance payments for child paid into attorney's office - Use of some funds for legal fees

JUDGMENT of GROUND, CJ

1. This matter comes before me on appeal from a decision of the learned Magistrate, Wor. Tyrone Chin, of 24th October 2008, in which he gave judgment for the respondent against the appellant in the sum of $5,023.61. The particulars of Mr. Trott's claim, which was dated 11th June 2008, were -

"Lomas & Co. were paid funds for child maintenance then admitted in writing that funds were not used to support the child. Funds were misused by Lomas & Co. and not for the intended purpose. See attached documents including Matrimonial Causes Act references 1974 sect 31(6)(e)(f)."

There was no breakdown of how the precise sum claimed was calculated.

2. The background to the claim is that Mr. Trott was engaged in divorce litigation in the Supreme Court with his former wife over maintenance, both for herself and for the child of the family. The appellant, Ms. Lomas, practicing under the name of Lomas & Co., was the wife's attorney. In April 2007 1 the Registrar made what appears to be an interim order that -

"The Petitioner [Mr. Trott] do pay to the Respondent [the wife] on 22nd day of each month into the office of Lomas & Co. periodical payments for the Respondent and the one child of the family . . . in the monthly sum of $1,000."

The payments were backdated to commence on 22nd March 2007. The sum ordered was not apportioned between the wife and the child, although it should have been. It is not, therefore, possible to say how much of that monthly sum was attributable to maintenance for the child. However, the Magistrate was told of a later order in which $433.33 was ordered to be paid to Lomas & Co. for the benefit of the child alone, with no element for the mother. That order was not produced in Court, but there was no dispute about its existence.

3. It seems that the payments under the Orders were duly made by Mr. Trott to Lomas & Co., but that some or all of the sums were then appropriated by Ms. Lomas to the payment of the mother's legal bills with that firm. The case before the Magistrate proceeded on the basis that that was done with the wife's consent.

4. The trial before the Magistrate took an unusual course. At the close of the complainant's evidence in chief, Ms. Lomas, who at that stage represented herself,

made a submission of no case to answer. From the record, the gist of that submission was -

"Mr. Trott paid the money into my office as ordered to do so by the Registrar of the Supreme Court and that is the end of the matter. He cannot dictate how Mrs. Trott uses the money."

The learned Magistrate rejected that submission "as the monies paid by Mr. Trott to Lomas and Co. does have a component referring to [the child] in the first paragraph of the above mentioned order." At that point, somewhat oddly, he then allowed Ms. Lomas to cross-examine Mr. Trott, although she confined that to establishing the terms of the subsequent order, under which the payments for the child alone were quantified at $433.33 per month. Mr. Trott was then allowed to re-examine himself, which he did at length, albeit more by way of a final speech. Ms. Lomas herself then elected not to give evidence (an election she should have been put to before making her no case submission).

5. In appears from Mr. Trott's own evidence that Ms. Lomas's explanation to him was that she had appropriated some or all of the monies paid to her to the payment of legal fees owed by the wife. Indeed he produced a letter of 21st February 2008 from her to him 2, in which she stated that -

"Lomas & Co. will be able to provide a printout of the trust account showing what payments have been received for and on behalf of [the child] which, by agreement with Mrs. Carroll-Trott, have been applied to her indebtedness with this office."

However, it seems that Ms. Lomas did not produce this at the trial. Nor did she produce the agreement under which she made the deductions, claiming privilege. That stance obviously caused the Magistrate...