2017

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 →

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 →