Articles

Credit Hire: Enforceability and Irving

Where the cost of credit hire is claimed as part of a road traffic claim issues of enforceability are invariably considered by the Court and the Defendant. The matter usually arises after cross-examination of a Claimant who gives evidence that they were told that some other party would pay any such costs before signing the Continue reading

When do the Rules Apply? Are Litigants in Person Always to be Held to the Same Standards as Represented Parties Following Barton v Wright Hassall?

In the well-publicised case of Barton v Wright Hassall LLP [2018] UKSC 12, Lord Sumption, with whom Lord Wilson and Lord Carnwarth agreed (Lady Hale and Lord Briggs dissenting), stated: “The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled Continue reading

Race Discrimination: Evidence & Inference after Royal Mail Group Limited v Efobi

The Court of Appeal has recently given judgment in Royal Mail Group Limited v Efobi [2019] EWCA Civ 18, Royal Mail’s appeal against the Employment Appeal Tribunal’s decision that, at first instance, a Tribunal had wrongly rejected Mr Efobi’s claim for direct race discrimination. The Court of Appeal’s decision has effectively restored the decision of Continue reading

Are the Government finally tackling Domestic Abuse and how will it help victims in the family court? The Domestic Abuse Bill.

Since March 2018 the government have been consulting for a landmark Domestic Abuse bill. It seeks to legislate to “ fundamentally change the way we, as a country, think about this insidious crime.”  The draft bill was published on 21st January 2019 and focuses on 4 main objectives, i.e. how they can: promote awareness – Continue reading

Summary of Case Law (Private Family Law: Children)

Cumulative Edition 2018 by Kevin Jackson Contents Civil Restraint Orders AEY v AL (Family Proceedings Civil Restraint Order) 18th November 2018 [2018] EWHC 3253 (Fam) Committal CH and CT 25th May 2018 [2018] EWHC 1310 (Fam) Egeneonu and Egeneonu and Anor 6th June 2018 [2018] EWHC 1392 (Fam) Egeneonu and Egeneonu 18th July 2018 [2018] Continue reading

SUMMARY OF RECENT CASE PRIVATE LAW (FAMILY: CHILDREN)

QUARTERLY DIGEST October to December 2018 PRIVATE LAW Civil Restraint Orders AEY v AL (Family Proceedings Civil Restraint Order) [2018] EWHC 3253 (Fam) 18th November 2018 Knowles J The father had engaged in long running family proceedings regarding his three children. In the current proceedings the father made a further application for a child arrangements Continue reading

Scrap Metal Dealers Act 2013

The Scrap Metal Dealers Act 2013 created a new (and rigorous) statutory framework for individuals and companies dealing with scrap metal imposing significant criminal penalties for any breaches; more local authorities are becoming aware of the additional options for dealing with sites where unauthorised activities are leading to complaints and pressure from residents (and councillors). Continue reading

Using powers to prevent anti-social behaviour to protect, not punish

The Anti-Social Behaviour, Crime and Policing Act 2014 brought with it new powers in order to tackle anti-social behaviour (ASB). It introduced, amongst other things, the Criminal Behaviour Order (CBO), the civil injunction and the closure order. Local Authorities and Police Forces, amongst other organisations can apply for these; but when thinking about these powers, Continue reading

Consideration of the Application of the Mitchell/Denton Principles and What Constitutes an Abuse of Process

Following the implementation of the Mitchell/Denton principles compliance with rules and practice directions has become far more important than it previously had been. Whilst the additional clarification given in Denton has provided a greater understanding of what is expected when seeking to apply for relief from sanctions there remain many examples of misunderstandings and misinterpretations. Continue reading

Open All Hours? Flexible Operating Hours for Family and Civil Courts

On the 16th November 2018 the Flexible Operating Hours (“FOH”) Pilots: Prospectus for Civil and Family Court Pilots was published. HM Courts and Tribunals Service (“HMCTS”) announced that early and late sittings will now be trialled over six months in civil and family courts in Manchester Civil Justice Centre and Brentford County Court, commencing in Continue reading

Life as a Pupil Barrister

Whilst only 3 weeks into Pupillage, I can tell you that I both thoroughly enjoy being a Pupil barrister and that it is unlike any job I have ever done. Becket Chambers has been immensely welcoming to me and every member of Chambers has made an effort to chat, say hello and help me with Continue reading

Annie are you OK, are you OK Annie? [at this precise moment in time whilst completing your last will and testament]

The Mental Capacity Act 2005 (“MCA”) introduced a framework for assessing mental capacity, enabling the court to assist persons who lack capacity to manage their affairs by taking decisions or by appointing decision-makers to act on their behalf. MCA is not retrospective and not relevant in considering the validity of wills made prior to 1 April Continue reading

Tattersall v Tattersall – periodical payments, enforcement before variation?

This case involved two parties who had married in 2000 and subsequently separated in 2010. The marriage produced one child who continued to reside with the wife. On 10th December 2012, a final financial remedy order was made dividing the capital unequally in the wife’s favour in order to enable her to purchase accommodation for Continue reading

Thy Will Be Done. Maybe…

Those readers who follow legal stories in the press will not have failed to notice a spate of cases concerning end of life decisions. Last month, the Supreme Court ruled that an application may no longer be needed for an order to withdraw life-sustaining treatment for a person with a ‘prolonged disorder of consciousness’. “An Continue reading

Prohibited Steps Order- when breaches don’t always lead to action

Prohibited Steps Orders are often regarded as a protective means available to a parent who has concerns about another party involved with their child. Whether the issue be the removal of a child from the jurisdiction or simply an order preventing an individual from undertaking a certain act, perhaps naively, Prohibited Steps Orders are used Continue reading

Order for Sale: Purchase by a Co-Owner or Sale on the Open Market – Stuck Between a Rock House and a Hard Place

Many claims under the Trust of Land and Appointment of Trustees Act 1996 (“the Act”) seek an order for sale of the property in question, however it may be the case that the claimant does not want the property to be sold, but instead to retain it as a sole owner, effectively removing a co-owner Continue reading

Financial Remedy: Pension Overview, Off-Setting and Duxbury Re-Visited

The purpose of this article is to provide an overview of the Court’s approach to pensions in financial remedy proceedings generally and revisit specific issues such as pension off-setting and Duxbury calculations raised in my previous article published in July 2016 under the title, “Financial Remedy: Pension Values and Offsetting – Quo Vadimus”. PENSION OVERVIEW Continue reading

Divorce Petition Jurisdiction: Never Thum Your Nose at the Rules

The stress and cost of financial remedy proceedings are often overwhelming for couples unfortunate enough to have to endure them. However spare a thought for those for whom jurisdiction is in issue; the parties effectively have to fight over the correct jurisdiction in which to have the fight. The Court of Appeal recently considered when Continue reading

Disability discrimination and possession proceedings

Background Paragon Asra Housing Limited (“the Appellant”) is a provider of social housing. Mr Neville (“the Respondent”) was an assured tenant of the Appellant. Under Clause 3 of the Respondent’s tenancy agreement there were a number of- quite standard – obligations. These included: – barring him from using the flat for illegal or immoral purposes; Continue reading

Upward variation of periodical payments after the recipient’s financial recklessness – an answer at last!

In February 2017 I wrote an article on the case of Mills v. Mills [2017] EWCA Civ 129 (http://becket-chambers.co.uk/2017/02/28/upward-variation-periodical-payments-recipients-financial-recklessness-political-hot-potato/) which considered whether capital needs could, in effect, be revisited in a future application to vary periodical payments. The case has now been reconsidered by the Supreme Court; here I provide a reminder of the original Continue reading

Crisis in Family Justice?

Is the family justice system in crisis? Yes says Sir Andrew McFarlane, the new president of the Family Division of the High Court, who took over that role in July 2018. Sir Andrew was speaking at the launch of a Care Crisis review, an independent study by senior lawyers, social workers, charities & academics into Continue reading

Relocation – stating the resident parent will be ‘unhappy’ is simply not enough to justify relocation.

re M (A Child) [2017] EWCA Civ 2356 Introduction In a lead judgment from Jackson LJ the Court of Appeal have reiterated the guidance in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 that “an analysis of some sophistication and complexity” is required before granting an application for relocation. This case makes it Continue reading

Draft revised Practice Direction 27A – Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)

Sir James Munby, President of the Family Division, has announced that a final approved draft of the revised Practice Direction 27A (which awaits only formal signature by the relevant Minister) is due to come into force on 23 July 2018. The basic PD27A remains as before but with some minor changes. The three main changes Continue reading

Costs against Public Authorities in Non-CPR Civil Proceedings in the Magistrates’ and Crown Courts – Heads They Win, Tails You Lose

R (on the application of Perinpanathan) v City of Westminster Magistrates’ Court and Another [2010] EWCA Civ 40 is the current leading authority on the question of costs in civil matters brought in the Crown or Magistrates’ Court by a public authority. It applies and extends the principles in City of Bradford Metropolitan DC v Continue reading

(Assured) Landlord and Tenant in Potential Agreement? Sweet Surrender

Once there has been a breakdown in the landlord and tenant relationship, and the landlord wants to seek possession, the default route is the instigation of formal possession proceedings. A problem that assured and assured-shorthold landlords are starting to encounter more frequently, however, is the Section 21 debarment that results from a failure to comply Continue reading