access to justice

Litigants in Person: Guidelines for Lawyers

The Bar Council, CILEx and the Law Society have prepared  guidelines to  assist lawyers when dealing with litigants in person. diyLAW is convinced that reading these guidelines will also be extremely useful for LiPs to get a better understanding of the way the Law works.

Many litigants in person feel the system is against them. This document is a substantial effort to ensure the process works for all parties, most particualy for LiPs. If you are a litigant in person we encourage you to read these guidelines and try and follow the process laid out in your case


Please click on this link to access the document:

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Litigants right to fear high legal costs, says government research

by Dan Bindman

of Legal Futures


The fears of litigants about the high cost of legal representation were borne out by their experience, government-commissioned research has found.

The qualitative research, carried out by Ipsos Mori for the Ministry of Justice, accompanied the government’s response to its court fees consultation and aimed to discover whether they would have been deterred from starting proceedings if fees were set at higher levels.

It questioned 54 civil claimants and family applicants, including individuals and small businesses, and covered those who were privately paying, funded by conditional fee agreements (CFAs) and legal aid, and litigants-in-person. As the government no doubt hoped, the survey concluded that most claimants did not consider court fees a barrier to taking a case to court.

However, a section on self-funded represented parties supported the argument that fixed fees in litigation could help to mitigate consumers’ fears about spiralling cost. The researchers said litigants often began with the perception that representation was expensive, a view that was reinforced when initial quotes were supplied.

They also found, in both civil and family cases, that self-funded claimants and applicants “tended to find that the final costs were higher than expected”, confirming their initial misgivings about price. The survey explained this was because “they had typically believed that the case would be completed sooner and would involve fewer court appearances, and less involvement from a solicitor”.

The researchers conceded that this might not be the view of the majority of civil litigants given that many settle before a hearing.

Fear of up-front costs drove many litigants to seek representation under a CFA and they reported that they would not have been able to afford representation if they had not found a solicitor willing to act for them on that basis.

Unsurprisingly, the researchers concluded that their findings suggested that “legal costs could be a potential deterrent to bringing cases to court for those who do not have sufficient earnings or savings to pay such costs independently”.

Among litigants-in-person, many claimants seeking relatively small amounts of money were content to proceed without representation, but some who wanted representation and could not afford to pay for it, decided to self-represent rather than drop their case.

In the above context, “low awareness” of court fees was common and they were not considered crucial in decision making. The fees “were perceived to be a relatively small element of the total costs of going to court”.


Please refer to the original article here.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

LiPs help LiPs with #DIYLAW

On 8th of December 2017 diyLAW attended the Civil Justice Council's  National Forum on "Access to Justice for Litigants in Person."

Here is a summary of our previous leaflets we presented at the Forum:

The forum brought together 130 judges, lawyers, advice workers, academics, regulators, civil servants and others to discuss progress made on improving access to justice for litigants in person (LiPs). Please find the forum`s summary here published by the Civil Justice Council

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

About Equity

We need to talk about Equity……even if only here in the general sense.

If you look in a dictionary for the meaning of “equity”, the definition you are likely to get will encompass such things as ‘fairness’, ‘impartiality’, ‘being just’.  Look further down the entry and you might see something along the lines of “a branch of law that developed alongside the common law and is concerned with fairness and justice”.  You might even see something like “a system of jurisprudence supplementing and serving to modify the rigor of the common law.”

All well and good, but what does that mean when talking about the law of Equity.  At first glance the branch of law that is Equity can seem intimidating – it has its origins in history which makes it appear out-dated and no longer relevant; it comes full of abstract and technical terminology, apparently making it  difficult to access.  Everyone knows what it means to steal something, committing a crime; everyone has an idea what contracts arise.  However, while we might recognise words such as fairness or impartiality, it is often problematic to put these concepts into legal practice.

Equity arose out of historical accident, progressing from the petitioning of the 13th century Lord Chancellor for remedy on the grounds of conscience and fairness outside the strict rules of the Common Law, to the development of the distinct court of Chancery (heavily criticised in Dickens’ Bleak House) and finally to the combination of the common law and equitable jurisdictions into one Supreme Court.  What this means in practice for the litigant is that all judges are able to administer the Common Law or Equity regardless of the forum in which the claim has been brought.   That being said, certain matters are assigned to the Chancery Division (for example claims relating to land, mortgages, administration of estates, probate business, certain intellectual property rights, bankruptcy, partnerships).

So, Equity stands alongside the Common Law, but it remains a body of law in its own right.  The “trust” is perhaps the most easily recognisable and important development of Equity.  It is, perhaps, also the ultimate and blatant example of what is meant by Equity interfering with the strictness of Common Law.  The trust acknowledges that property rights can extend beyond legal title and that ownership can be separated between the legal management and control of the asset and the equitable right to benefit and use that asset.  However, beyond the recognisable consideration of the use of trusts in the context of private tax planning, family property and wealth, Equity and the trust can (and does) provide legal solutions not only in the context of family disputes, but also in the commercial arenas of conveyancing, investments, fiduciary relationships, market transactions, insolvency and charities to mention a few.

Additionally, in contrast to the strict rigours of the Common Law, and in mitigation against the apparent harshness of the Common Law, Equity has an on-going ability to develop and change.  It is this flexibility that enables Equity to respond more readily to social needs.  Given the breadth of its scope and the potential assistance it might offer the litigator in person, it is something which does need to be understood if it is to be used to its fullest potential.

However, while Equity may have its beginnings in concepts of fairness and justice, it is important to remember that Equity is not a court of good conscience or morality, it is a court of law.  Equity has its own body of legal rights and rules; a litigant wishing to claim his/her equitable rights or seeking an equitable remedy cannot just argue “justice demands it”; he/she must show that their claim is supported by the practices and precedents of Equity that have developed over time.  As was stated in the well-known case involving the administration of Farepak Food and Gifts Ltd, “at the end of the day … claims have to be based in law, not sympathy.”

So, just as with Common Law, equitable rights are exercised and remedies given only by applying well-known principles.  Some aspects of the jurisdiction are strict and technical.  However, unlike Common Law, other areas allow for an exercise of considerable discretion by the courts.  Equity is, therefore, a body of rules which is constantly being developed, moving into new fields of application, but only where the established principles allow.

This may sound like a contradiction – the court being able to exercise its discretion but in accordance with clear, and perhaps, rigid principles.  And that is perhaps the challenge of Equity, understanding the relationship between the two.

A good place to look to get a clearer idea of how Equity works is to consider some (there are quite a few) of its general principles – called “maxims”:-

Equity will not suffer a wrong to be without a remedy – where it can, Equity will step in and find a remedy when one is not available at Common Law

Equity follows the lawEquity cannot override the Common Law and it cannot ignore statute.  Nor will Equity unnecessarily depart from legal principles

If Equities are equal – the law prevails/the first in time prevailswhere there are two people with competing rights, the one with the legal right will triumph; where two equitable rights go head to head, the right created first will take priority

Equity looks to the substance not formEquity will look beyond what something is called; it will look to see the nature of what was actually undertaken (a spade will still be a spade, even if the manufacturer calls it a fork)

He who seeks Equity must do Equityif you are going to seek remedy in Equity, then be prepared to act fairly towards your opponent if you succeed

He who comes to Equity must come with clean handsif you are going to seek remedy in Equity, then make sure that your own behaviour in relation to you claim is not tainted with illegality or misconduct as Equity will not support you

Delay defeats Equitythis works just like limitation at Common Law; failing to claim your equitable rights within a reasonable time means that Equity will not come to your aid

Statute cannot be used as an instrument of fraudEquity will not deny a claimant his/her rights merely because of a failure to comply with the legal formalities laid down in statute

Where Equity and Common Law conflict, Equity will prevail – where there is a conflict between the two sets of rules in relation to the same matter, it is the rules of Equity that will take precedence

These maxims offer guidance, signposts if you will, as to how Equity might be applied and are starting points for how the court might exercise its discretion.

For the potential litigant, another good way to understand Equity is to consider what remedy Equity could provide as this is perhaps where the court has been (and can be in the future) its most inventive.  Remedies at Common Law arise as of right, but are generally couched in terms of damages, monetary compensation.  Equity, however, supplements this to provide its own remedies, albeit on a discretionary basis, when mere compensation is inadequate in the circumstances.

For instance, specific performance – while at law everyone is free to breach a contractual obligation and become liable for damages if they wish, Equity might compel the performance of that contractual obligation if those damages are inadequate compensation.  Similarly, through the injunction, Equity can order someone to stop doing or compel them to do something, where the awarding of damages to protect an existing right at law would again be an insufficient remedy.   It is Equity which now enables litigants to obtain search orders so as to secure evidence from destruction and/or disposal and freezing orders so as to prevent disposal of assets to circumvent enforcement of a legal judgement.  As a protection against contracts or transactions brought about by mistake (as to facts or law) or tainted by undue influence (whether by improper pressure or the taking of unfair advantage) it is Equity which provides for rescission, where the transaction is made unenforceable at law or for rectification, where documents can be amended to carry out the actual intention of the party or parties.  A fiduciary’s duty to account generally or for unauthorised profit is another remedy arising in Equity.  It is Equity which provides more flexible mechanisms for recovering property derived from misappropriated assets – tracing.  And beyond its use as a means of family provision and wealth protection, it is Equity’s creation, the trust, with its separation of ownership, which has provided the court with a device, the constructive trust, to provide protection to co-habitees in the acquisition of shared property.   Trust and equitable principles have also been applied to aid the safeguarding of customers’ and lenders’ funds in the face of insolvency.

As has been said previously, equitable rights are exercised and remedies given only by applying well-known principles- litigants seeking these rights or remedies must satisfy the established principles.  So when a remedy is sought, litigants will need to consider whether their claim can at a basic level satisfy those fundamental requirements – for instance, the co-habitee seeking to acquire a share in the family home, must evidence both a common intention between parties in relation to that share as well as detrimental reliance on that intention.  And what is sufficient evidence for Equity is also laid down in those established principles.  Similarly a claimant seeking to use equitable tracing to reclaim misappropriated assets must evidence a breach of fiduciary obligations to obtain a remedy.

There may be a remedy available to a litigant in Equity.  However, whether Equity will offer a litigant that remedy will depend on whether that litigant can establish that there has been an unconscionable abuse of common law rights and powers.  Additionally, they will also have to evidence that their claim satisfies the basis requirements of Equity in light of the remedy sought.  It will not be enough merely to argue in Equity for fairness; the litigant will need to identify and understand the components needed to underpin their claim.  And, even if the litigant is certain they have met all the requisite criteria, remedies from Equity are at the discretion of the court; there are no guarantees.

That is why we cannot ignore Equity and we need to talk about it and understand it.  This may be just the beginning.


Alison Bicknell


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

About Direct Access Barristers

In 2004, the Bar made an important change to its guidelines for practice and introduced the Public Access Scheme allowing members of the public to instruct barristers directly instead of going through a solicitor first. For those of you who have or will take the opportunity to avail yourselves of this Scheme, there are steps and certain information that you should have which will make the entire process smoother for you and your barrister. And anything that assists to make your case more manageable for your barrister is ultimately of direct benefit to you.


First, in simple language in a covering statement, call it “Instructions to Counsel” if you wish, explain what you would like your barrister to do for you – whether it is to provide advice, write a letter, draft a document or appear in court.


Second, if there is a court hearing coming up, tell the barrister’s clerk about it, giving the date or dates, even if you are just asking for advice, and mention the upcoming hearing and date(s)  in your Instructions to Counsel.


Third, if the court has ordered you to take any particular steps, tell the clerk about it, including the deadline for action, and, again, highlight it in your Instructions to Counsel.


Fourth, whether instructing counsel for a conference, to prepare legal documents, such as wills or contracts, or litigation documents, including statements of case and witness statements, or briefing counsel to appear in court, make sure to do the following:-


  1. provide all of the background documents – if the case is about a will, include a copy of the will, and copies of any previous wills, codicils, related trusts and medical information on the testator (the person whose will you are concerned with), if relevant, and available; if it is about a contract, include a copy of it;
  2. the background documents also include all relevant correspondence including all correspondence from opposing parties and their legal representatives concerning your dispute, in chronological order;
  3. all the previous litigation documents, court orders and transcripts of hearings, in chronological order;
  4. all underlying documents – for example, if the case involves financial claims concerning a party or parties, and you have bank statements and other relevant information, include this, as always in chronological order; if the case involves disputes over property, include relevant documents from the Land Registry;
  5. understand that your discussions with the barrister are confidential and the documents you have provided to her are to remain confidential unless you authorise otherwise;
  6. if you are involved in litigation in court and you have a solicitor on the court record, you must tell your solicitor to brief the barrister for court – you cannot instruct the barrister directly in those circumstances;
  7. label the section of the file that you provide to the barrister, i.e. background documents, statements of case, court orders, transcripts of hearings, other material, and paginate the pages of the file.


The rules have recently changed to allow in some instances for someone who is getting or is eligible for public funding to still instruct a barrister direct. If you don’t know if you qualify, or wish to speak to someone concerning the details involved, you might contact a solicitor who does publicly funded work,  as he or she will be able to explain about the arrangements, and will be able to carry out the means-testing required to establish that you are eligible. You can find out more information on the website. You might then wish to instruct a barrister direct.


You may also wish to consider whether you have any insurance policies that might cover your legal fees, such as your home owners insurance.


The complex issue of costs is of paramount importance throughout the course of any litigation. Recently, the Civil Procedure Rules were substantially amended to introduce a host of intricate requirements and principles. Many apply to litigants in person, at least indirectly, and need to be considered, although the new requirement to file and exchange budgets for cost management of cases does not generally apply to litigants in person (see CPR 3.13).


Finally, and most importantly, do instruct the barrister of your choice as early as possible. This cannot be overstated. If you wait until just before a hearing or you have to comply with some rule of procedure, you may end up spending additional money and time to obtain relief from any sanctions caused by your delay. Or you may lose out by being prevented from complying later on – or losing your case altogether,  if, for example, you are debarred from  (not allowed to)defending a claim against you. because you ignored previous rules and orders. Or at the least, you may risk your case not being properly prepared and the necessary evidence not being adduced in court, with the obvious attendant possibly unsatisfactory consequences. There may be also other harsh costs consequences of delay.


Moreover, there is a guiding principle, found in the Civil Procedure Rules that as soon as you are aware that you need to do something, i.e. make an application to court within existing proceedings, you should not wait. The application must be made as soon as possible. And if you haven’t started litigation but you think you have a claim against someone, you cannot “sit on your rights”. There may also be strict time limits on bringing proceedings – the Limitation Act is a detailed and complex law setting out the time frame which must be followed for issuing proceedings. Additionally, there are often other specific statutory and procedural time requirements which must be complied with. The protocols in the Civil Procedure Rules must also generally be followed. If you want the court to stop some action from occurring, or take some positive action like freezing assets or the sale of a property, this requires an injunction and must be made as a matter of urgency.





This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

24 hours in the life of a McKenzie friend

This is an article on 24 hours in the life of a committed and sensible McKenzie friend, Colin Phillips. We will publish the judgment that we believe is outstanding when it becomes available.



As a member of a financial support group who has been affected by the mis-selling if Interest Rate Swap Agreement or other inappropriate actions of the banks. I was contacted by a new member who needed advice in relation the actions of the bank.
In short, he had been told by his bank that (without just reason) his overdraft was called in (£180,000) and he had three hours to pay the money, clearly we don’t have that much available at such short notice. After the three hours, the bank called in the principal loan £3.5m on the basis that the company was insolvent. (Because he could not pay his overdraft (an on-demand facility).
The bank (applicant) then applied to the court for an administration order against the company (respondent). The case was set to be heard in London having been previously adjourned because of the lengthy submissions by both legal teams for the A. And the R all being far too much to be considered in the time allocated for the hearing.
Two days before the hearing in London the R legal team demanded £10,000 up front or they would not attend the hearing. R did not have this money so he decided to Act a LIP and seek a last-minute adjournment to employ a new legal team and to present new facts.
With only two days before the hearing, he asked my help to prepare for court and at the court act as a Mckenzie Friend. The court hearing was on Thursday.

24 hours as a Mckenzie Friend,  (MF).

Thursday (30.01.2014).

00.30. Got out of bed to (having had an early night at 21.00) to dress and complete skeleton argument to present to A at the hearing, working with other colleagues of the support group who had been working all day (and night) we finished the skeleton argument and had it done by 02.00.
02.30  Departed my home in Cornwall to meet with R at his home and together with his son we departed for the courts in London at 03.45. During the journey, we discussed the implications of R acting a LIP he was understandable nervous having never even been in a court before. Talk about in at the deep end!
My personal experience as a LIP is all of one failed attempt in the county court when I asked for an interim injunction against the same bank for a similar action against me. We did not dwell on my experience – (fortunately). My experience as an MF was until his case – Nil (we did not dwell on that either).
09.30 Arrived at the Companies Court in London (we made a good time on the journey) the hearing was scheduled for 10.30.
We had one hour to inform the court usher/manager that we had arrived and that R would be acting as a LIP and that we would like the Judge to accept a skeleton argument – sorry it was late but unavoidable and by the way we need the judge to agree to my acting as an MF (permission is required by the judge). All was agreed. All we had to do now was get R used to the courtroom and the environment of the courthouse and wait for the A legal team to arrive. All of us were very nervous would be an understatement.
10.25 A ’s legal team arrive ( no panic from us) when all six of them turned up 1 Barrister 1 Junior Barrister 2 Solicitors and 2 financial experts from the bank. Anyway, I gave them the skeleton argument (not our fault they turned up with only 5 mins to spare).
10.30 Court case begins MY LORD the judge is introduced he confirmed the LIP agreement, confirmed to the A that I was to be an MF and went on to permit R to allow his MF to speak on his behalf if required. This is a rare grant of permission by the judge for a lot of reasons as he did not restrict what I could say as an MF.
10.35 Judge takes 15 mins for A to read the skeleton argument (they should have got there earlier) But as they left the courtroom to ponder our application for an adjournment, it did give R time to reflect that it is now six legal experts against 1 LIP and his brand new MF so – No Pressure!!
During this interval the A barrister came to R to ask “was he relying on the new Skeleton Argument or the one produced for the last hearing” (which was adjourned). R looked at me for the answer and I did not know.. So we asked him if we had to choose and his reply was “yes –one or the other” so we agreed on the new one.
This was our first big mistake. First, we thought he must know the law and second, he was right and we had to make a choice. It turns out we were wrong on both counts. But read on.
10.50 The judge returns to continue proceedings inviting A to set out his case. Which he did, claiming that the bank had called in R overdraft he did not pay within the three hours given and so the bank called in his main loan and has (according to the bank) R was insolvent the bank has applied for the Administration Order (it was all a bit more technical than then but that case the basic case against R.
At this point, my job was to write copious notes on what he said. I was crap at that, I wrote too much and soon learned to bullet my notes on key points.
11.45 A finished his opening arguments. The judge turned to R and asked him for his reply but gave R some guidance as to  how he should respond and in so doing the Judge now asked R if we were relying on his first Skeleton Argument or the new one and he was again unsure what to say and finally said  “his new one”. The judge asked him why?  So sticking to the principle I had drummed into him to “JUST TELL THE TRUTH” he told the judge because the A’s barrister had told him he could not rely on both! At this point, the Judge asked the A’s barrister if this was right? Whereupon the barrister wished the ground would open and take him down, he was caught out big time and the Judge was not pleased at all but confirmed to R he could actually rely on both! Which he immediately agreed to do!
The importance of this decision to rely on both arguments was to become pivotal in the outcome of the hearing- Read on;
11.50 It is now time for R to stand up and tell his side.
There is no way for me to write how R was feeling.  Panic, lost. Confused, upset, are just some of the feelings but he none the less gave an excellent account by simply telling the judge the real facts of the matter in simple and plain English with no legal jargon.
He agreed he had an overdraft, he agreed to repay the overdraft but three hours is unreasonable.  He said that the bank gave no explanation or logical reason for calling in the overdraft and that if the bank wanted him to repay his loan then he would do so by selling his assets and the same with the repayment of the overdraft but he did need time to arrange for the sale of assets. However, he completely denied and showed proof to the contrary that he was insolvent.
12.05 We broke for lunch for one hour. We had a brief meeting with Jeff Lampert from Help4LiPs.
13.05 The case began again with further a reply to the R comments and then R spoke in reply to C comments.
15.00 The judge had heard everyone speak and said that he would now sum up the case and give his verdict.
This took the judge 1 hour and 30 minutes.  I will not go into the legal issues that he clearly set out and that were relevant to the case and how he should determine matters within the framework of the law.
During the judges summing up it would be impossible to describe all our feelings and once the judge confirmed our application for an adjournment was declined we were all certain that we had lost our case and once again the bank was winning.  Not for the first time that day in court our emotions very nearly got the better of us at this so manifest injustice perpetrated by the bank who I thought that we had argued our case very well and had convinced the Judge through R’s  heart rendering submission that he had worked hard all his life, He never ever missed a payment on his loan or his mortgage  or his overdraft and that the bank had clearly Engineered his default of the loan by calling in his on demand facility (his overdraft) for absolutely no logical reason. It was interesting to note that the bank confirmed in court that they had never given a reason other than the overdraft “is an on-demand facility”.
The judge has turned down our application an adjournment went on to confirm that because the overdraft had been demanded and not paid then R was in default and met the requirement of the insolvency act. When the judge said that we knew we were finished.
16.30 The judge finished his summing up and declared that given to him are powers of discretion and that whilst the facts pay point in some ways to the bank's application for an administration order being met.
He was going to exercise his discretion and NOT grant the bank an administration order provided that R did the things he said he would do in his first skeleton argument and that was mainly to repay the bank by selling the assets secured with the bank.
16.40 We had won our case.
17.30 We left London to return to Cornwall clearly elated.
23.45 I arrived back home to a much-needed cup of tea.
00.30 I got back into bed as it had been a long 24 hr day but worth every second.

Moral of the story: Always be honest and tell the truth and don’t ever give up trying if you know you are right and been served an injustice.


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Family Law Mediation

– what you need to know


Family mediation is a form of Alternative Dispute Resolution (ADR) which helps you reach decisions about things that are important for you and your family, without having to go through the court process.

The Benefits of Mediation

Mediation gives you the opportunity to take your time and think about the issues that are important to you, whether it be arrangements for your children as they grow up, how to deal with money within the marriage or options of where you will live. The process moves at your pace, which ensures you can carefully consider each issue rather than rushing through it.

Mediators will listen to you to find out what is important to you, and help you make your own choices about how to move forward. Once you and your partner are satisfied with the decisions you have made, you can then instruct a solicitor to complete the legal formalities.

You can also consult your own solicitor during the mediation process, to check that the choices being taken are in your best interests.

Mediation Information & Assessment Meeting (MIAM)

Mediation has become a more central part of family law since the changes in law which now require you to attend a Mediation Information & Assessment Meeting (MIAM) before issuing an application to commence financial proceedings or proceedings under the Children Act. This assessment meeting gives you the opportunity to see how mediation works, and allows the mediator to work out with you whether mediation will be suitable for you and your family. The mediator should discuss how many sessions you may need, how much they cost and whether you are eligible for legal aid to pay for mediation.

In most circumstances, whomever is applying to the court for a financial order or a child arrangements order will have to attend a MIAM. The other person involved is also expected to attend, but they do not have to go to the same meeting as you. There are exemptions, particularly if domestic violence has arisen within the relationship.

If everyone agrees at the first appointment that mediation would work well, you will book further mediation sessions. It normally takes between three and five meetings to come to an agreement, depending on the issues in question.

Mediating with Children

Older children are now also becoming part of the mediation process, if mediation is about child arrangements. If the mediator you have chosen is happy to do so, they can talk to the children of the family about what they would like to happen, so that the parents can make decisions which take into account their children’s wishes as well as their own.


Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Information to support your case

- obtaining it or having to disclose it


It is thought that ”information is power” and making information available to the court and the parties to a claim has long been an integral part of the litigation process. Historically, the court of equity was the initial conduit for the process of the disclosure of information, ”discovery” as it was. It used to be that, at common law, a party could not be a witness in his own case – neither the claimant nor the defendant could be their own witness (!). As a result, the earliest bills in Chancery sought discovery of facts relevant to the claimant’s (then called the plaintiff) case to assist in achieving fair and equal judgment. With the passage of time, although the aims of discovery were recognised as valuable for litigation, its development led to onerous obligations on both parties, in terms of time, risk and cost. Often, it became a weapon which was capable of producing, in equity, as much of an injustice as it initially sought to guard against.

Fast forward to the 21st Century and the reforms brought about by ”Access to Justice” and the Jackson recommendations. Discovery, now renamed ”disclosure”, is still considered a vital element of litigation. It is recognised that there are substantial overall benefits to the exchange of information at an early stage of the proceedings - ensuring equality of access to evidence and possibly facilitating early settlement when parties have clarification of the strengths and weaknesses of their case. Discovery was, however, also ripe for reform given the perceived problems with the often disproportionate costs involved (and the possible, resulting undermining of access to justice), the practicalities of putting together often formidable court bundles (which were then largely unlooked at during a trial) and the ever-increasing need to deal with information contained in an electronic format.

So, what is disclosure? According to the Civil Procedure Rules (the ”CPR”), disclosure is merely a formal statement that a ”document exists or has existed”. And what is a document? The definition here includes ”anything in which information of any description is recorded” - written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases) are covered. Also covered is material not readily accessible (for example, electronic documents stored on servers and backup systems) as well as electronic documents which have been deleted. However, it is important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable. 

It is possible, in certain circumstances, for this disclosure to occur before proceedings have even been commenced. There are specific pre-action protocols across a range of dispute types as well as a general Practice Direction covering pre-action conduct. In these, potential litigants are actively encouraged to disclose relevant documents informally at an early stage (albeit only those documents which support their claim). The objective is to provide parties with ”sufficient information …to allow them to understand each other’s position”. The aim is to aid the potential parties to make ”informed decisions about how to proceed and possible approaches to settlement, possibly avoiding litigation completely”. These pre-action protocols carry much weight with the court. Knowledge of the requirements suggested by them and subsequent compliance with those suggestions is an important consideration for any potential litigant. The court has a discretion to order sanctions against a party in the face of non-compliance – in relation to disclosure, refusing to release documents has led to cost consequences for the non-compliant litigant.

Additionally, the court has various statutory powers (depending on the court/tribunal or the nature of the claim) to order disclosure from a potential party to subsequent proceedings. Under CPR31.16, there are a number of criteria that need to be satisfied for the court to consider an order for what is called pre-action disclosure - the application is between the likely parties to subsequent court (rather than arbitration) proceedings, the documents are going to be disclosable in those proceedings in any event, pre-action disclosure would be beneficial in terms of fairness, assisting in resolution of the dispute without proceedings and the lessening overall costs. Even if these criteria are met, the court has further discretion as to whether to grant such an order. 

In exercising this discretion, the court will consider things such as the nature of the claim, its potential merits and the clarity of the issues involved, the costs (both in granting the order and the impact of not granting the order), the documents sought (their volume and nature), whether the information is available from other sources, and the previous conduct of the parties (this is where compliance or non-compliance with pre-action protocols in relation to disclosure may also impact positively/negatively on a litigant’s application).

  Any documents disclosed at this pre-action stage (whether informally under a pre-action protocol or by court order) can generally only be used for the purposes of the anticipated proceedings.

Once proceedings have been commenced, the court has a further power to order disclosure against a person who is not a party to those proceedings themselves. However, there are limitations as to when such orders may be made. The information sought must only be available from the third party. Additionally, the documents to be disclosed must be likely to support the applicant’s case or adversely to affect the case of another party to the proceedings and disclosure must be necessary to dispose of the claim fairly or to save costs.

Again, even if these criteria are satisfied, it is still the court’s discretion as to whether the order will be made. For instance, no order for disclosure against a 3rd party will be given if compliance would be injurious to public interest. Nor will it be given if the definition of the document or the class of documents is not sufficiently clear and specific in the application itself. The court will also consider the interests of the non-party to protect his privacy and the confidentiality of the documents against the interests of the party seeking disclosure. This is a remedy of last resort; such an order is not going to be given routinely as the court will need to balance the rights of the 3rd party against the need of the applicant in relation to the case (the ability for it to be dealt with fairly or to save costs).

There are other well-established situations (either pre or post the issue of proceedings) where an equitable remedy involving disclosure may be ordered against 3rd parties by the court in very specific circumstances, seeking to achieve very specific results. For instance, these include:-

(a) Norwich Pharmacal orders – where an application can be made for disclosure of documents and/or information from a 3rd party who, while a non-party to the litigation, is somehow involved or mixed up in the wrongdoing (innocently or otherwise), and
(b) search orders (formerly Anton Pillar orders) - a form of mandatory injunction from a master or district judge in the High Court. Such an order allows for entry to the defendant’s premises to search for, copy and remove documents and/or material in relation to the dispute. The aim is to prevent evidence being lost or destroyed. However, given the nature of the application and its potential impact, the application must be based on a very clear case with clear evidence of the document in the defendant’s hands as well its possible destruction.

In deciding whether pre-action disclosure or disclosure from a third party would be appropriate, the court is looking to balance finding a resolution to a dispute without recourse to actual proceedings as against assisting with an applicant’s nebulous claim. The court’s various powers in relation to requiring the disclosure of information (whether pre-proceedings between the parties or from a 3rd party) are important considerations for a potential litigant. Knowing and understanding the jurisdictional criteria that need to be established for any such order are important tools in the litigant’s arsenal.


Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

The myth of “common law marriage”

– Equity’s role in providing redress

According to the Office for National Statistics, the number of opposite-sex cohabiting couples in 2013 was almost double the figures from 1996.   In relation to opposite-sex cohabitation, the statistics do appear to confirm a substantive shift away from marriage.  For same-sex cohabiting couples, the increase over the same period is believed to be in excess of 400% (even allowing for the introduction of civil partnership in 2006.)

In a recent, 58% of the respondents thought co-habiting couples who live together for some time “probably or definitely” had a “common law marriage” which gave them the same legal rights as married [or civil registered] couples.  This is despite extensive media coverage across a variety of platforms stressing that cohabitation, regardless of its circumstances and length, does not bring with it a general protected legal status.  The Ministry of Justice has even funded a “Living Together” campaign to address this common misconception seeking to make cohabitants more aware of their legal status (or more accurately their lack of legal status) and how to protect themselves.

In the 2011 census, 10% of adults indicated that they were cohabiting – many are likely to be doing so without realising the full consequences of their position.

While MPs, the Law Commission, senior members of the judiciary and family lawyers may strenuously argue the point (both for and against a change in the law), the fact remains that for those increasing numbers of cohabitees (whether opposite or same sex) there remains no legal recognition of their relationship and therefore, no guaranteed or even presumed rights to ownership of each other’s property when that relationship breaks downs.  Nor is there any statutory guidance regarding the division of assets in these circumstances (compared to on divorce or dissolution of a registered partnership).

It is possible for cohabiting partners to contemplate (however painful it might be to do so) the possible breakdown of their relationship and agree for themselves the ownership of their joint home.  However, in the absence of this foresight, when, on relationship breakdown, property disputes escalate into litigation, cohabitees are reliant on the courts making orders based on legal rules arising from Equity.  There is some perception that, given the current social environment, a more sympathetic judicial approach might be evolving when it comes to the assessment of the property rights of co-habiting partners.  However, as one Supreme Court justice highlighted “the absence of legislative intervention [makes] it necessary for the judiciary to respond by adapting old principles to new situations…..not an easy task.”  However, as another member of the judiciary has also said, “[judges have to] ignore human sympathies and apply the law”.

So how does the judiciary approach these disputes between cohabitees?  What is the law that guides their decision making? They look to Equity’s most recognisable creation, the trust.

 A trust gives rise to a split in the ownership of the property forming the subject matter of the trust.  This split relates to the separation between the “legal” interest in the property – the public face of ownership, associated with the responsibility to manage and control that property – and the “beneficial” interest of the property – those who are actually to benefit from the property (i.e. have a right to occupy, a right to the sale proceeds and/or rental income).  The holder(s) of the legal interest are the trustees while those with the beneficial interest are, unsurprisingly, called the beneficiaries.  The trustees are under a duty to look after the property for the benefit of those beneficiaries. It should, however, be noted that having a “beneficial” interest in the property does not necessarily mean that those beneficiaries have equal interests in that property.

For cohabitees, this trust structure can mean different things depending on the circumstances relating to the “legal” ownership of the property:-

  • It is possible for cohabitees to buy property together and for both to be named as the legal owners.  While they are joint, “legal” owners, they may also be beneficial owners of the property.  In the absence of any contrary evidence (i.e. an express written statement by the beneficiaries), there is a presumption in law that the beneficial interests are to be shared equally.  However, it may be the case that, in the circumstances, one beneficiary will have (or believe that they are entitled to) a larger share. 


  • It is also possible for only one cohabitee to be named as the sole legal owner.  While there may be a very sound reason for this to have occurred and the sole legal owner may be very clear that he/she has legal ownership for the benefit of both cohabitees (again by way of written document expressly stating this),  it is also a scenario which can give rise to significant dispute. The presumption here is that the beneficial interest mirrors the legal interest – there is no presumption of joint beneficial ownership – and one cohabitee (the one without the legal interest) will find him/herself having to provide sufficient evidence for a judge that a trust actually does exist and they are entitled to some kind of beneficial interest.

As there is no legislation to guide the court, it is equitable principles established in case law that will determine the circumstances and evidence that the court will be looking for to see if a beneficiary is entitled to a larger beneficial interest or is entitled to a beneficial interest at all.

An important consideration to remember is that if the cohabitees agree for themselves the nature of the beneficial interests in their joint home and then documented this in a written deed, the court is unlikely to look beyond this agreement (unless there is a clear error or undue influence). However, more often than not, cohabitees, in the initial glow of their relationship, look at sorting out legal issues as unromantic and there is no agreement to provide clarity and stress-free resolution.

When the court is asked to make a decision, they will be forced to interpret evidence to see if they can identify the intention of the parties in relation to the ownership of the” joint” home.

So what will the court be looking for?

Before the property was bought (or at some time later in the relationship), is there evidence of a common understanding or agreement that the property was to be shared.  Direct financial contributions in relation to the property (i.e. direct payments to the purchase, taking on the burden of/paying off a mortgage, monetarily contributing to an extension) would be a good indication of such an understanding, even if there was no explicit discussions between the parties.  These financial contributions can be taken into account in determining whether a trust exists at all (and the property is therefore shared beneficially) and/or determining the size of any beneficial interest.

Historically, direct financial contributions have been the only indicators that a court would consider to decide these arguments.  Currently, direct financial contributions are, to a certain extent, still the primary considerations in determining whether the parties did have an intention to share ownership of the property, that a trust of the joint home existed notwithstanding that the “legal” interest is only registered in one of the parties (although the court will look closely as to why the legal interest is not in the name of both). 

However, these financial contributions are not the critical factors they once were, especially in determining the size of each beneficiary’s share.  More recently, the court may arrive at its decision by taking a more “holistic” look at the parties’ conduct in relation to the property (rather than the relationship itself) during their period of ownership to determine what the parties intended in relation to the property.  In the absence of any intention being evidenced, the court will look to the parties’ “whole course of dealing” to determine what it considers fair.  The length of time that the parties have co-habited is not necessarily relevant.  However, while financial contributions will still be relevant, now courts will also take into account things such as the advice given to the parties at the time of purchase (or a re-mortgage), the purpose for which the property was acquired, the financial arrangements of the parties, how the parties discharged the property outgoings (i.e. council tax, utilities, repairs, insurance).

As with any court proceedings, the courts will have to rely on evidence to enable them to understand the situation.  Given that “context is everything”, each dispute will turn and be decided on its own facts.   It is to be anticipated that the parties will be called upon to give oral evidence (and should be prepared to do so).  Given the strong feelings that these disputes often arouse and the impact that this can have on oral evidence, courts are likely to place more weight on documents where they are available – a conveyancing file from the time of purchase (or any re-mortgage), bank statements and other financial documents from both before and after the property was bought.

For the foreseeable future, cohabiting couples are likely to remain without guaranteed rights of ownership of each other’s, or what is thought to be joint, property on relationship breakdown.  It is open to couples to regulate their relationship in legal terms should they wish to.  However, what couples must recognise is that if they do not elect to establish their rights for themselves, the mythical concept of ”common law marriage” will not safeguard them.  Upon relationship breakdown, they will be looking to time-honoured equitable principles and the concept a trust for assistance.



Alison Bicknell

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Resolving Disputes: The Wonders of Mediation

After many years of curiosity, my eyes were finally opened when I recently participated in a mediation. The dispute concerned a property which had excited 3 years of grief, 1 year of court time and tens of thousands of pounds in costs.

I am a sceptic by nature. During my lifetime I have suffered many trials and tribulations, witnessed and experienced many injustices. Indeed ‘Justice’ can often seem elusive and out of reach.

Mediation had been recommended by the Judge. Indeed mediation is recommended by the Courts as a cheap, fast and cost-effective way of resolving disputes.

At the outset, however, I had my doubts. I had rated the mediator’s chance of helping both parties resolve, what appeared on its face, an intractable dispute, which had proved beyond the reach of warring parties and had taxed the minds of their lawyers for years, as hopeless. And yet within 1 day and the expert crafting hands of an experienced mediator, the deed was done and the matter was finally resolved.

Am I astonished? Yes. Can mediation help you? Only you can decide. I, however, am now convinced.  

Prior to the mediation, it had frequently felt as if the parties were banging their heads against an unresponsive, impenetrable and impassable brick wall. The mediation, however, was responsive, fluid and dynamic. The Mediator stepped across the divide and reached out to both sides, creating pathways for both parties to explore issues and enter into a sensible and productive dialogue. Most importantly the mediator listened. The Mediator will also listen to you.

It is clear to me that Mediation has a leading role to play in the resolution of disputes. The word should be spread loud and clear. Mediation could help you.

Be warned those of you who avoid mediation. Courts can impose punitive sanctions against parties who do not mediate (see PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288). Indeed there are many stories of otherwise successful parties both Claimants and Defendants losing all or a significant part of their costs for failing to mediate.

Here is a final word from the Judiciary. Mr Justice Norris in the recent case of Bradley v Heslin [2014] EWHC 3267 (Ch) said:

‘I add my voice to that of many other judges who urge that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to  trial.’

In our case the Mediator certainly created the platform and weaved the dynamic framework upon which resolution was achieved.  

Can mediation work? Yes. I have tried it and know. Mediation successfully resolves most disputes. Mediation could also work for you.

My observation is that mediation hearings create an entirely different dynamic. It is not about winning; it is about reaching an agreement. Therefore, resolution is the only victory.

As told to Russell Evans of Resolve UK Mediation by Jeff Lampert

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.