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
It has been more than a decade since Miller/McFarlane and it has taken the demolition of White Hart Lane to stymie the chants about Mr. Parlour’s need to take subterranean public transport. And yet, the concept of special contributions is still not put to bed. Blame the lawyers. In Work v Gray [2017] EWCA Civ … Continue reading
As any civil lawyer will know, a fundamental aim of the “Jackson Reforms” was to limit parties’ expenditure on costs in an attempt to keep the costs of litigation proportionate to the value and issues at stake. Since 2013 parties in multi-track cases (generally speaking those with a value over £25,000) have been required to … Continue reading
Many of us will have experience of section 28 of the Matrimonial Causes Act 1973 (‘MCA 1973’). Regular reference is made to section 28(1A) which allows the court to prohibit any application under section 31 to extend the term of a periodical payments order. We all regularly use section 28(1), which provides that the remarriage … Continue reading
As is often the case when a new procedure is introduced, the requirements and boundaries of that procedure are often tested in several different ways to enable practitioners to find its limits, to that extent costs budgeting has been no different. Case Law In Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA … Continue reading
Peter Jackson J has used a recent case to remind practitioners of the need to adapt normal working practices when dealing with a litigant-in-person. The case, reported as Re B (Litigant in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam), involved the alleged abduction of a child. The father was represented, the mother was … Continue reading
Family analysis: In C v G, a mother successfully sought the return of her two children from Madagascar where they were living with their father after being wrongfully removed from the UK. Marie Crawford, barrister at Becket Chambers, explains why the judgment is helpful in restating the law in this area of family practice. Original … Continue reading
Marie Crawford considers the orders a court might make at a first hearing dispute resolution appointment. I decided to look in detail at the First Hearing and Dispute Resolution Appointment as a result of a recent experience in a Tier 1 family court, where there appeared to be some confusion as to what orders the … Continue reading
“A grave and widespread problem….” is how Wilson J (as he then was) referred to the question of how can a spouse, usually the wife, who is ineligible for legal aid but has negligible capital, secure legal advice and representation in order to pursue her rights against her husband. [Sears Tooth (A Firm) v Payne … Continue reading
The case of Gore v Naheed [2017] EWCA 369 was recently decided in the Court of Appeal and considered the issue of costs when one party has failed to mediate. The facts of the case centred around a right-of-way dispute with the Claimant seeking an injunction against the neighbouring Defendant. In the first instance, the … Continue reading
When preparing a brief for a small claims trial it is not uncommon to read that “Counsel is instructed to seek unreasonable conduct costs”. Quite what such unreasonable behaviour amounts to is not defined by the CPR and this has in turn led to spurious applications being made and uncertainty over what behaviour the court … Continue reading
Article 1 of the Family Law Arbitration Children Scheme Arbitration Rules 2016 (1st Edition, effective, 18th July 2016) “The Family Law Arbitration Children Scheme (“the Children Scheme”) is a scheme under which disputes concerning the exercise of parental responsibility and other private law issues about the welfare of children may be resolved by the determination … Continue reading
The issue of setting aside a Consent Order in the context of non-disclosure was revisited in the recent case of Norman v Norman [2017] EWCA 120. The case, heard by the Court of Appeal on the 19th of January 2017, with Lady Justice King delivering the approved judgement, was an application for permission to appeal … Continue reading
A Beddoe application is a type of application to the court, made by trustees, for directions. The trustees ask for permission from the court to litigate (or continue to litigate) against someone not a party to the proceedings. There is a main application, which is the substantive case itself, and the Beddoe application. Common Beddoe … Continue reading
The Lord Chancellor announced on the 27th February the reduction in the discount rate to minus 0.75%. The change came into force on 20th March 2017. This is likely to result in a rise in a successful Claimants’ personal injury compensation payment. Many Claimants will therefore be keen to withdraw Part 36 offers previously made. … Continue reading
SOME areas of law allow the lawyer in question to deal with something nice. For example setting up a new business, buying a house, or receiving an inheritance from an unknown relative who left a handsome sum to a client. That last example would fall under probate law. Lots of probate however is less pleasant. … Continue reading
Throughout a marriage, more often than not, the parties see themselves as a team, contributing either financially or otherwise for their common good. On divorce, self-interest habitually becomes the priority. However, more frequently than one would hope, the intention of a party can be to make their former spouse suffer, indeed in some instances that … Continue reading
The presumption of contact can now (explicitly) be displaced As a result of the work of the All Party Parliamentary Group on Domestic Violence (APPG) after the publication in January 2016 of the influential Women’s Aid report entitled ‘Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the … Continue reading
Testamentary freedom has long been recognised in English law, the ability of an individual to dispose of their assets as they wish. Default intestacy provisions apply where there is no will however the testator’s intention as provided for in their will takes priority. The only qualification to this rule is that now contained within the … Continue reading
Forfeiture can be a difficult labyrinth to navigate. One aspect that often proves problematic is ensuring that any right to forfeit a lease arising from a breach of the lease is not waived by the landlord. Given the numerous ways that such a right can be waived it is possible to do so inadvertently, which … Continue reading
In my view there are many reasons why we lawyers should be getting serious about the collaborative process. The first is the over-stretched, over-burdened and under-resourced Court Service, which means that clients have to wait longer than ever for the resolution of their case. The second is the ever-more-limited resources of clients, and the difficulty … Continue reading
In so far as delay was concerned, for a time, at least, it seemed that jurisprudence and argument was trying, hard as it might, to imply the possibility of a time-bar: the high-tide being illustrated by Rossi v Rossi & Rossi [2006] EWHC 1482 (Fam) and S v S [2006] EWHC 2339 (Fam). This was, … Continue reading
The case that has caught the attention of the sensationalist press recently is that of Graham and Maria Mills. Divorced in 2002, Mrs Mills was at that time awarded a lump sum of £230,000 and periodical payments of £1,100 p.c.m.. Some 15 years later, the Court of Appeal was considering her application to vary the … Continue reading
An equitable account is often tagged on at the end of a cohabitation claim as something of an after-thought. It is usually pleaded as a way to recover occupation rent, but it can be used more widely. Ahead of the Becket Chambers Cohabitation seminars in March 2017, here is a summary of the principles in … Continue reading
The Court of Appeal has recently given its decision in the case of Watts v Stewart [2016] EWCA Civ 1247, and in so doing has provided a useful reminder of the distinction to be drawn between a lease and a licence. The case is also a restatement of the Street v Mountford principle that the … Continue reading
Sometimes when a barrister says he (or she) will “dine out on a case” it’s literally true. I was instructed recently in a landlord and tenant case involving the commercial lease of a fast food premises; my client was the tenant who had acquired the lease of a vacant fish and chip shop; the lease … Continue reading
Having only done a few FDAC cases in Kent so far, it may be too soon to tell, however I have to say that my experience of the process and that of my clients was extremely positive. For a guide to FDAC, how and why it was set up and what it does, you cannot … Continue reading
There were 2 financial remedy cases decided, one in the High Court and one by the Privy Council just before the Christmas break and in case anyone missed them in the mad festive preparations I am going to take this opportunity to briefly summarise them The first case of Goyal v Goyal [2016] EWHC 2758 … Continue reading
The Court of Appeal has recently looked at the consequences of mistaken payments. The judgment in the case of Leslie v Farrar Construction Ltd [2016] EWCA Civ 1041, handed down on 1st November 2016, provides a useful summary of the position facing parties who wish to reclaim overpayments made in the course of a contract. … Continue reading
As 2017 fast approaches, it is likely that most personal injury practitioners will be facing the New Year with some trepidation. On 11th November it was announced that Lord Justice Jackson has been asked to review the situation with regards to civil litigation costs. Amongst other things, the suggestion is that proposals will be made … Continue reading
On Thursday 27th October 2016, Becket Chambers hosted a seminar spanning a wide range of civil topics covering recent case law and updates. The aim of the seminar was to bring together Local authority lawyers, civil practitioners and other professionals. One of the cases discussed at length during the course of the seminar was the … Continue reading
Parties are advised that if they do not attempt mediation or other forms of ADR then there may be cost consequences, but what are those consequences in practice? Conversely, if one party has been trying to mediate throughout proceedings but has been met with refusals by the other side, is there anything they can do … Continue reading
The President’s Guidance in relation to split hearings issued in May 2010 stated that split hearings “…are taking place when they need not do so and are taking up a disproportionate amount of the Court’s time and resources..”. Court time and resources have, if anything, become even more scarce today in 2016 so how can … Continue reading
Lawyers are repeatedly reminded of the need to comply carefully with the various (and often onerous) requirements of the Civil Procedure Rules. Any deviation from their path can lead to heavy sanctions for the defaulting party and a stern telling off in Court. The Court of Appeal’s approach when considering the application of CPR 39.3 … Continue reading
Identifying The Problem Court proceedings involving the phenomenon of the ‘excluded parent’ can take many forms. Such cases are variously described as parental alienation/ hostility, intractable contact, chronic litigation disputes etc. There is no definition of these terms but as practitioners we encounter them quite regularly and we recognise them when we see them. Getting … Continue reading
Initiated by the President (Munby, not Trump!), the Sussex Settlement Conferences pilot begins in January 2017, beginning in Brighton but with the aim of extending across Sussex. This new process can be applied to any Family Law case – public or private – to aid resolution. It seems that the potential for the process to … Continue reading
In Re W (Minors) [2016] EWHC 2226 (Fam), Mostyn J provides guidance in respect of the duration of without notice orders. This case concerned three sets of proceedings by the parties following the breakdown of their relationship: High Court proceedings issued by the father; an application by the mother for a non-molestation order in the … Continue reading
A common sight in most, if not all, long leases of residential property is the phrase ‘such consent not to be unreasonably withheld,’ but what does that provision actually mean? The High Court recently considered the point in relation to assigning or underletting a lease of residential premises. Case Law The case of No.1 West … Continue reading
Whilst addressing the Chartered Institute of Arbitrators at its recent mediation symposium, Lord Justice Briggs set out his recommendations for the future of the civil dispute resolution process. Briggs proposed a three-stage process whereby cases would first be referred to an automated ‘triage’ where the merits of the case would be considered, followed by arbitration … Continue reading
In many cases clients are keen to obtain Decree Absolute, the final stage of the formal divorce process. For some it’s a time to grieve, for others a chance to host a Divorce Party. There are some circumstances, however, when there are good reasons to delay it. One such reason may be the risk to … Continue reading
The Becket Chambers Commercial Team deals with all types of business organisation- from listed companies to sole traders. A surprising number of disputes come from partnerships, when two or more friends or relatives have set up a business informally, and there is, later, a disagreement as to what each partner may, or may not do. … Continue reading
I was reminded recently in a case that it is possible to obtain financial support under Schedule 1 of the Children Act 1989 in certain circumstances. The facts in my case were that the Parents were divorced and there had been no financial orders made. The Father had the care of the children on an … Continue reading