Have you ever felt frustrated by the Courts’ reluctance to use its powers to enforce disclosure? In the latest round in the long running bout of Hart v Hart, HHJ Wildblood QC sitting as a Deputy High Court Judge has sentenced the Husband (H) to 14 months imprisonment for contempt for failing to produce documents … Continue reading
A Larke v Nugus request is a request regarding the circumstances of drafting a Will. The starting point is the case of Larke v Nugus (1979) 123 SJ 327. It is a case I sometimes use when advising probate clients. The case held that the professional who drafted the Will should provide information about the drafting and … Continue reading
Although now a fact of life for personal injury lawyers since its introduction in April 2013, one aspect of QOCS (Qualified One Way Costs Shifting) has given rise to uncertainty: namely the thorny issue of how “fundamental dishonesty” is defined and how the term also applies to the Criminal Justice and Courts Act 2015 (“CJCA”). … Continue reading
Change to the small claims track limit Reform to personal injury claims is a hot topic at present, with significant pressure being placed on low-value claims. Most notably government ministers decided recently that there will be an introduction of whiplash reforms in April 2019. There was news on 23rd February 2018 that the Small Claims … Continue reading
Firstly, the question of whether the factual matters that have been, or may be, the subject of a criminal prosecution should also be litigated within family proceedings is always to be determined on a case-by-case basis. Secondly, a fact-finding hearing should only be embarked upon where it is both necessary and proportionate to do so. … Continue reading
The prospect of one party receiving an inheritance is often cited in financial relief cases as a reason to depart from equality. But to what extent is the court likely to take it into account? What factors are relevant in assessing what is sufficiently certain and what is impossibly vague? The decision in Alireza v. … Continue reading
In my August 2017 article I considered the Cafcass document ‘Guidance on the use of professional time to benefit children’ (‘the Guidance’) in the context of private law children proceedings. While Cafcass believes it is crucial that the work it carries out before and at the First Hearing (FHDRA) should continue unchanged, it proposes to … Continue reading
Identifying the problems One social worker who took part in a recent study of Child Protection Practice with Romani and Traveller children declared that ..”it is virtually impossible to get a foster carer or adoptive parent who can meet the child’s cultural needs. The opportunity to get a perfect match is impossible. I know of … Continue reading
The purpose of this article is to explore in the context of Financial Remedy, the extent to which the law has evolved, if at all, since the case of Xydhias v Xydhias [1999] 2 All ER 386 especially in relation to the rather vexed question of whether the parties have entered into a concluded agreement, … Continue reading
As is well known, in cohabitation cases the court is seeking out the parties’ intentions in relation to their property. Where a declaration of trust exists, this is conclusively binding. Where none exists, the court must rely upon what was said and done to establish intentions. So far, so straightforward. But what happens when it … Continue reading
The enforceability of a credit hire agreement has consistently led to a flurry of litigation in the sticky web of dispute surrounding credit hire. There have been several cases in recent years that have attempted to clarify this difficult area of law. However the sheer volume of updating cases has at times caused more confusion … Continue reading
Last month, Sir James Munby published his 18th View from the President’s Chambers. “The on-going process of reform – Financial Remedies Courts” expands upon the 17th View (“divorce and money – where are we and where are we going?” [2017] Fam Law 607) and the “President’s Circular: Financial Remedies Courts” [2018] Fam Law 91. The … Continue reading
There has been a very useful recent decision on global maintenance. Global maintenance is the mechanism by which the Court makes an order that provides for an overall award of maintenance but allows for that award to be reduced by the amount of child maintenance paid under the statutory CMS system. Arguably a global maintenance … Continue reading
I had been dealing with a longstanding family finance case. Husband and wife had almost reached agreement on what to do with the joint assets following separation. Then tragedy struck; the husband died. Acting for the wife, and in discussion with my instructing solicitor, we agreed to pursue a claim under the Inheritance (Provision for … Continue reading
The interference with a right of way (via obstruction) can be of incredible nuisance and annoyance to someone who relies on that right of way for access to property or land. The problem is even more acute in built up areas where there may be no other means of access, no alternative route and no … Continue reading
THERE IS A 6-WEEK LIMITATION PERIOD WITHIN WHICH A GRANT OF PLANNING PERMISSION CAN BE CHALLENGED VIA THE METHODS OUTLINED BELOW. IF YOU THINK YOU WOULD LIKE TO CHALLENGE SOMEONE’S PLANNING PERMISSION CONTACT BECKET CHAMBERS FOR SPECIALIST PLANNING ADVICE ASAP. ________ When planning permission is granted for a local development or a neighbour’s extension despite … Continue reading
The criteria that must be met in order to render a notice to quit effective are straightforward but stringent. Many District Judges are hesitant to throw people out of their homes, even when arrears have been accrued, and will often feel bound to deny the landlord an eviction if a notice is defective. It is … Continue reading
The 2018 report of the British Association of Social Workers’s (BASW) into adoption law According to an independent enquiry into adoption law in the UK by the British Association of Social Workers’s (BASW), adoption has become a “runaway train,” almost impossible to stop. The two-year enquiry, led by Professors Brid Featherstone and Anna Gupta, gathered … Continue reading
When advising clients as to their prospects of success at trial there are a number of variables that may impact upon the outcome, one of which is the credibility of an expert witness upon whom the client’s case is reliant. Experts are of course instructed for their expertise in a certain area however as is … Continue reading
A distillation of the key points from this important guideline case concerning hair strand drug testing. On 29th September 2017 after 6 days of evidence, legal argument and submissions Mr. Justice Peter Jackson handed down a Judgment that looked at several key issues that are relevant to practitioners in public and private law family proceedings … Continue reading
In his recent Judgment in Freeborn & Another v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 Mr Justice Coulson has given a clear warning to parties that civil litigation is not to be viewed as a game, and that point-scoring and pedantics may lead to unwelcome costs’ consequences. Any such Judgment from a High … Continue reading
I could not have been provided with a better start to pupillage. I was immediately thrust into the work of a first-six pupil, shadowing members of Chambers in conferences and in court, drafting documents from attendance notes to advices, conducting legal research and considering case files. I have already been able to observe a variety … Continue reading
S.3(a)(2) of The Protection from Eviction Act 1977 serves a purpose; it shields those that let out rooms in their homes, for whatever reason, from the court processes usually required to evict a tenant against their will. These processes can be costly, protracted and stressful, and Parliament decided that live-in-landlords should not have to endure … Continue reading
I have recently observed a number of possession cases against unknown trespassers where the Judge has refused to hear the claim on the basis that service was not effective. In each instance, the Claimant had tried to effect service by attaching the relevant documents to objects to the land or property in some way (windows, … Continue reading
In bygone years it was perhaps the norm to marry young and to do so with your childhood sweetheart. However as time passes, society evolves and nowadays it is far more likely that parties will marry later in life, or multiple times. As a result there is a greater likelihood that one or other of … Continue reading
More and more often, parties within legal proceedings are using email as their preferred method of serving documents. However, the recent case of Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 provides a warning that when using such a method, steps should always be taken to ensure that the email address you are … Continue reading
Following separation, the traditional process of resolution of issues through correspondence or the court process works for many. But, whether to avoid the long delays caused by court listings, the cost of complying with directions or simply the adversarial nature of disputes, an increasing number are now seeking a more amicable resolution. The collaborative process … Continue reading
An employee alleging discrimination on the part of their employer (for example on grounds of disability) may ask the Employment Tribunal to make an award for compensation for “injury to feelings”. This is an award of damages aimed as a remedy for the hurt, humiliation and degradation suffered by the employee and will be considered … Continue reading
On Thursday 14th September 2017 the President, Sir James Munby released a Circular about the Cobb Review of PD 12J (commissioned by the President and published in January 2017). Mr. Justice Cobb had also published a draft amended PD 12J with his review, which I addressed in an earlier article for Family Law Week. The … Continue reading
On the 27th November 2017 a new Part 3A of the Family Procedure Rules 2010 comes into force supplemented by a new Practice Direction 3AA. The purpose of the new Part 3A is twofold: to set out the court’s duties and powers in relation to assisting parties whose ability to participate in family proceedings may … Continue reading
More and more we are getting clients who have started to record telephone calls, interviews, handovers, or ask us if they should do it…or not do it Covert recording in the world generally is on the up and up. Technology these days is becoming smarter and so are the people who seek to use it. … Continue reading
There has historically been a belief that direct contact between parents and children was so important that the court must do whatever it can to try and facilitate it but this is no longer the case. In Re H-W (a child) [2017] EWCA civ 154 the Court of Appeal made it clear that the Judge … Continue reading
Inheritance Act cases divide opinion amongst lawyers. Some say they are family law, some say they are probate. Some consider them to be a standalone type of case that calls for specialism in only this area of law. I happen to cover probate and family, so I do not have an opinion either way, but … Continue reading
There is no clear age at which children can give evidence in family court proceedings. Section 1(3) of the Children Act 1989 sets out a check-list of factors the court is required to take into account when making a decision which affects the welfare of a child. The first of these factors is “the ascertainable … Continue reading
In a terse and succinct judgment approved by the President, Mr Justice Mostyn has made it clear that the Family Court has the power to order one party to indemnify the other in respect of a mortgage liability (CH v WH [2017] EWHC 2379). In CH v WH [2017] EWHC 2379 the parties owned two … Continue reading
This is a question I am asked quite regularly, by clients anxious about contact, despite the efforts they have made to achieve an acceptable Child Arrangements Order. There are a number of ways that I seek to reassure them. Enforcement of Orders There are a number of provisions set out within ss11I-11P of the Children … Continue reading
In my experience the answer to this is a resounding “Yes”. Round-table meetings have become increasingly popular over the past few years, although it is less clear whether this is due to an increased emphasis on a collaborative approach or down to the current court listing difficulties. To take part in round-table meetings you do … Continue reading
In September 2017, the 14th Edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases were published. This new addition has been updated to take into account inflation since the 13th Edition (which was published September 2015). The award across all categories has been increased in line with the … Continue reading
It is easy to get so used to the ‘standard’ procedure for financial provision claims that little attention is given to the accelerated procedure when a variation application comes around. It often happens that the parties – and the court – fall into the usual routine of extensive disclosure, questionnaires and, inevitably, cost. But a … Continue reading
It is common practice for married, or even unmarried, couples to enter into what are commonly referred to as mirror wills, the usual format being that they will each leave their respective estate to the other on death and thereafter to any children they may have should the other predecease them. In the event that … Continue reading
The recent case of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26, is a helpful reminder that, although it is assumed that parental consent is needed before a child can be accommodated under S20, this is not always the case. Although the case concerned an appeal in relation to claims made … Continue reading
This article highlights the problems that can arise when appropriate Cafcass safeguarding checks have not been carried out and the court decides, acting upon erroneous advice from a very senior court legal adviser, to make an order for interim contact of its motion. The mother, who was initially legally aided but later became a DPA … Continue reading
The Landlord and Tenant Act 1954 regulates the way in which business tenancies can be terminated. Importantly, it gives business tenants security of tenure. However, that security has been called into question recently in the case of S Franses Ltd v The Cavendish Hotel (London) Limited [2017] EWHC 1670 (QB). In July 2017, judgment was handed … Continue reading
In the case of Birch and Birch [2017] UKSC 53 the Supreme Court decided that a consent order made in 2010, under which the wife undertook to discharge the mortgage on the family home in return for the husband giving up his interest in it could be revisited by the court. The brief facts are … Continue reading
Within the recent case of Jones -v- Oven [2017] EWHC 1647 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered the issue of “new” witness statements filed outside of the directions previously made by the Court. In this particular case, the Claimant sought to serve two additional witness statements on the day of the … Continue reading
In discussions with various professionals, I have been surprised with the number of people who immediately switch off at the mention of data protection. Well, perhaps not surprised, but troubled. That observation has led me to this article. The purpose of this short article is not to offer any advice or explanation on the current … Continue reading
The Chief Executives of Cafcass and Cafcass Cymru have issued new guidance on the use of its officers in private and public law children proceedings. The document, functionally entitled ‘Guidance on the use of professional time to benefit children’, has been issued with the approval and support of the President of the Family Division and … Continue reading
The decision of the Supreme Court on the 26th July 2017 in R (ex parte Unison) v Lord Chancellor [2017] UKSC 51 marks the very welcome end (at least at the moment) of fees in Employment Tribunals, declaring the Fees Order which introduced the fees “unlawful under both domestic and EU law because it has … Continue reading
Some interesting case law regarding s. 20’s has hit the scene and it is worth reminding ourselves exactly what s. 20 is, and what it means for our clients: To remind ourselves of the law, and for ease, I have written out only the parts of the section which are generally what are needed to … Continue reading
I recently had a hybrid Child Arrangements Order, Specific Issue Order (Schools) and Schedule 1 Children Act case where the Husband/Father argued that because the Financial Remedy final order had referred to the issue of school fees in the preamble, recording that the Wife would endeavour to pay half and that the parties would review … Continue reading