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.

Background.

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.

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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

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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

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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

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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

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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.

Advocacy

Yesterday, I delivered my keynote speech to law students at Brunel University, prior to running my Advocacy course this term. Here are some of the more salient points, I felt I should share, in terms of presentation, attitude, and delivery.

Adversarial advocacy is a polite contest between two sparring advocates seeking to persuade a Judge to prefer their argument, to that of their opponent.

You win by presenting a perceptively persuasive, and irresistible argument within the rules by not misleading the court, not losing your temper, and keeping a cool head, despite a Judge's questioning, berating, or anything else going on in a court at the time.

Understand and hone your skills of perspicacity: an ability to understand things quickly and make accurate judgments, especially in relation to the attitude and perceptions of the usher, the clerk, your opponent, your client, and the Judge. All of these people are linked. If you are excitable and arrogant outside of the doors of the court, it is gossip for the usher who tells the clerk, who tells the Judge, so be polite and respectful of everyone in the process. There is no need to ever be rude to court staff. Conversely, shmoozing has its place at appropriate times, but being a sycophant only seeks to annoy.

Watch the Judge's pen. Attune the speed of your delivery so that notes can be taken, and good points are not missed. A Judge asleep is a bad thing...A Judge who stops writing is a bad thing. A Judge who looks at the ceiling is not a good thing. A Judge who stares intensely at you is not a good thing.

Get into a rhythm when advocating. Try to deliver your points in threes. Stories naturally have a beginning, a middle, and an end. What is easy on the ear, is an argument that is put simply and unequivocally, and brings with it a sense of logic. Delivery having regard to the tone, and pitch of your voice, with adequate pauses, makes for receptive listening.

Be aware of your poise. Don't be a diva. Be humble, yet firm. Confident, but not arrogant. Be respectful, cool, calm, and collected. No over-dramatics. Don't become too emotional. Don't be intense. Rather, be measured in the presentation of your delivery. No hands in pockets; no fidgeting, no playing with your phones, no twirling of pens. All sound and movement can be seen from a higher vantage point where Judges usually sit, and it detracts from what you seek to say and is an unwanted and unnecessary disruption. The apparent ultimate standing angle in which one is likely to be most persuasive is 84.5 degrees. Good luck with that.

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.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Success Story of a diyLAW Volunteer

– getting pupillage: be yourself

It took Krishma Patel a series of trial and error interviews before she was offered pupillage

I never imagined getting pupillage would be this difficult. It took me four years of hard work, hundreds of applications, hours of practising interview questions and weeks on end reading about scintillating legal topics and current affairs.

While studying law, I participated in a mooting competition in my penultimate year. From the moment I stood up to present my first argument, I knew that I wanted to be a barrister. I decided at that point that I would do everything in my power to get there.

I went on to study the Bar Professional Training Course (BPTC) at Nottingham Law School. During the course of this year, I attended numerous pupillage talks and networking events. I realised that I had to start thinking outside the box - everyone had got firsts, done a number of mini-pupillages and had marshalling experience.

Early this year, I started volunteering with a company called Help4LiPs (helping litigants in person - now diyLAW). I wanted to play a small part in helping those who had been hit hard by the legal aid cuts. After volunteering (and networking non-stop) for a few months, the opportunity arose to help a litigant with a case. The litigant was claiming a sum of £12m from a bank. I drafted the witness statement for his hearing at the Court of Appeal. If I had not networked as much and hadn't committed myself to volunteering with the company, the chance to work on a case of such magnitude would not have arisen until very late in my career (if at all).

I have three key tips that I hope will help you to attain pupillage:

• First, I encourage you to think outside the box in terms of legal experience. In all of my interviews, the panel didn't want to talk to me about my glittering array of mini-pupillages. They were much more interested in the work I did at Help4LiPs (now diyLAW).

• Second, start your applications early. The practice form on Gateway (the online application service for pupillages) is available much earlier than applications open. It will take you a number of drafts before you are content with your final version. This year it took me nine drafts until I was happy.

• Finally, and most importantly, be yourself in interviews. Obviously make sure you are professional and courteous at all times but don't try to be someone you aren't. You don't get a second chance to make a first impression.

This is a mistake I made time and time again. In interviews I always tried to come across as the person I thought the chambers wanted me to be. In my last interview, I thought I'd see what happened if I was myself. And guess what, I was offered pupillage. To my surprise, they must have liked me. It is a huge relief to know that during pupillage at my chambers I don't have to pretend to be anybody that I am not.

I am very sympathetic to all of those going through applications on the long hard hunt for pupillage. But do not give up. I am proof that with sheer hard work and determination you can do this.

Good luck.

Krishma Patel

This article was originally published here.

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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.

Benefit from Being a diyLAW Volunteer

Adam Marley, Law Graduate

After 5 years' studying at the Open University while working full time as an airline steward I finally achieved my Law Degree. After the initial elation of receiving my certificate and graduating in front of my family at The Barbican, I was left wondering 'what now?'.

I had spent about 20 hours a week studying over the course of my degree and after graduation, I had all this extra time on my hands. I stumbled across an advertisement asking for volunteers for an organisation providing help and information for people representing themselves in legal proceedings.

I sent off my CV and was called for an interview a couple of days later. The office arrangement was simple, resources limited, but one thing there was no lack of was enthusiasm for the project. I accepted the offer of being taken on as a volunteer and worked on a number of small pieces of work before I picked up a major project to write How-To guides for couples going through divorce and dissolution of civil partnership proceedings.

I was put in touch with a qualified barrister who guided me and provided feedback on my work. Her encouragement was really gratifying and her experience helped me to adapt my academic knowledge and apply it in practice.

Through my contact with Help4LiPs (now diyLAW), I had the opportunity to make contacts in the legal profession, attend meetings and conferences and explore the legal field. Help4LiPs (now diyLAW) is pleased to work with the Brent Community Law Centre which provides legal services to the community in North West London. I am privileged to be working closely with a senior solicitor, assisting her with her caseload and learning the practical application of the law as well as the legal processes that take place behind the scenes. I have had the opportunity to conduct case conferences and meet with clients, as well as to attend court and tribunal hearings. I have seen cases through to their conclusion and have seen the great impact our work has had on the lives of the people we have helped.

In addition to the opportunity at the Law Centre, I am also still involved with Help4Lips (now diyLAW) on a day to day basis. As part of their online strategy, press releases are sent out at regular intervals. I help to source relevant materials for the program coordinator to use. I am also involved in interviewing new volunteers and helping to formulate strategy.

The experience that I have gained through my contact with Help4Lips (now diyLAW) has been stimulating and enjoyable. I can see the effect of the work I do and that is what maintains my commitment.

Krishma Patel, Law Graduate

Help4Lips (now diyLAW) – My experience
I started as a volunteer with Help4Lips (now diyLAW) in February 2014. I was quickly introduced to the team who were very supportive and friendly. My first task was to contact law firms to persuade them to produce guides for litigants in person in different areas of law. This was a challenging and interesting assignment – it allowed me to build my communication and interpersonal skills.

Through my work with Help4LiPs (now diyLAW), I was able to gain exposure to the Brent Community Law Centre, where I also work as a volunteer. I currently assist in the promotion and development of the Young People’s Law Service in Brent. This has included organising talks and speaking at schools as well as organising and participating in fundraising events. It is a varied role, providing the opportunity to meet a range of individuals.

In addition to this, at Help4LiPs (now diyLAW) I was provided with an opportunity to assist a LiP with a long-running case relating to banking and insolvency law. It is a relatively high profile case and had I not been working with Help4LiPs, I believe that the opportunity to work this closely on such a large and complex case would not have arisen. It has allowed me to build drafting and analytical skills, both of which will assist me in my career at the Bar (when I get there!).

Aside from all of the above, working with Help4LiPs (now diyLAW) has allowed me to form and build a network of contacts. Everybody at Help4LiPs (now diyLAW) has been extremely supportive of my career aspirations and have always put me forward if and when any interesting opportunities arise. It has genuinely been an invaluable experience with so many interesting people. I really have learnt so much!

Anoud Said Abu Odeh, Law Graduate

After graduating with an LLB Law degree from Queen Mary, University of London, I went on to certify as an attorney in the State of New York. One of the requirements that candidates need to fulfil before completing their certification is 50 hours of pro bono. It was very difficult for me to find a programme or project that suited the type of pro bono work New York would accept. I was finally put into contact with Help4Lips (now diyLAW), which made available to me different options of projects and placements that I could work on to complete my hours.

I completed my hours at Brent Community Law Centre. Help4Lips (now diyLAW) helped me get into contact with them and arranging my pro bono placement with them was very simple, efficient and straightforward. BCLC was very flexible with me in terms of dates, working hours and even gave me the choice as to which department of law I would like to work with.

I chose to work with the immigration department at BCLC. The immigration solicitors at the centre were very engaging and their approach with volunteers was very hands-on, which ensured that I learnt a lot while working at the centre. They allowed me to work on a multitude of tasks with them, such as meeting clients – I even interviewed a potential client on my own – researching and organizing documents of evidence for trial, answering the advice line and administering the centre in general. I was given an induction of the center on my first day, introduced to the staff and was readily provided with any assistance I needed; whether it was simply how to operate the computer system at the center or whether it was something a little more complex and substantive, such as how to conduct research in search of evidence for a certain case. Most of our work focused on helping clients with their asylum claims.

BCLC is a small centre that is visited by many different clients every single day. The work ethic and commitment of all the solicitors and volunteers to the operation of the centre, its clients and their needs was inspiring and abundant. Helping the many people that came knocking on its door on a daily basis in urgent need for legal advice was extremely gratifying. On top of that, everyone at the centre was very friendly and I felt like I was amongst friends rather than colleagues. I would recommend a placement at BCLC to anyone.

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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.

Legal Abuse Syndrome

Karin Huffer

Legal Abuse Syndrome (LAS) is a form of post-traumatic stress disorder (PTSD). It is a psychic injury, not a mental illness. It is a personal injury that develops in individuals assaulted by ethical violations, legal abuses, betrayals, and fraud. Abuse of power and authority and a profound lack of accountability in our courts have become rampant.

The book, Legal Abuse Syndrome written by Karin Huffer is the result of her experiences for
over twenty years as a marriage and family counsellor in private practice. What is unique
about this book is that it addresses the victims of legal abuse from a psychological therapeutic
perspective. The objective is to move the victim beyond their predicament into positive action
and thinking. Ms. Huffer illustrates the abuses with the cases of seven victims of Legal Abuse
Syndrome, detailing their pain and suffering and the various stages of the therapy they have
undergone for recovery of their emotional health.

Ms. Huffer found that many victims of the legal system suffer from Post-Traumatic Stress
Disorder. She identified this as Legal Abuse Syndrome, brought on by the abusive and
protracted litigation, prevalent in our courts. According to Ms. Huffer you may be suffering
from Legal Abuse Syndrome if you feel deeply disillusioned and oppressed as a result of your
experience with the legal system; if you feel you were frustrated in obtaining justice; if you feel
your dreams and plans for your life were torn from you by a system that is supposedly there
to protect your rights and property; if you fear that the system will defeat you at every turn and
there is nothing you can do about it, and if you feel that you have been victimized several
times over, by the perpetrators, by lawyers, judges, bailiffs and other court personnel. As a
consequence you may suffer from tension and anxiety, recurring nightmares you may feel
emotionally an physically exhausted, numb, disconnected and vulnerable.

A central point of Ms. Huffer’s book is that the victims in America are not only assaulted by
crime, but also by the abuses of power and authority administered by tax dollars intended to
provide due process of law for the protection of civil rights. Ms. Huffer observes that not only
does the justice system move slowly, but delays are used as strategy by attorneys to weaken
their opposition economically and emotionally and to provide hefty fees for attorneys. Ms.
Huffer notes that when courts fail as a consequence of officially sanctioned wrongdoing it
leaves victims and vigilantes in its trail. The rage of these victims accumulates when they are
not provided a satisfying place to turn to. She concludes that the enormous betrayals and
inefficiencies that make up bureaucratic post-crime experiences are literally attacking the
emotional health of the nation. She recommends that the community of American citizens
adopt the following:

1. Oppression and abuse of power are injurious to the health of the victims. Domination by abusers of bureaucratic power threatens the very functionality of the public and private sections in our country.
2. Victims are not self-interested, narcissistic folks who sit around and wallow in their losses. They are courageous individuals who face their pain and care to right the wrongs. They participate in the collision of evil and good as it is classically intended in order to achieve balance. Denial is popular, but far less responsible.
3. Trust is a social staple that must be protected just as earth and water must be protected to provide for survival. When trust is damaged the community suffers and society as a whole will eventually falter and collapse (Bok). Veterans of crime must exude zero tolerance for lying in courtrooms, lying in political campaigns, lying to cover-up, and deceptions through omission and non-performance by public officials and public servants.

A new cause of action that is a new basis for lawsuits is being accepted by the courts allowing
cases to proceed on claims of "organic brain injury" caused by traumatic stress. An article
appeared on this on November 11th of 2002, in the National Law Journal.

Harassment related emotional distress is being recognized in the work field upon which
lawyers are now suing. To read the article by Joni Johnston, Psy.D. There is no reason why
the same facts and reasoning should not apply to the harassment inflicted on victims in a
lawsuit.

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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.

Preparing for Divorce

As of April 2013, almost all legal aid funding for family law cases came to an end, with the majority of families unable to afford any legal representation.

The courts are already faced with unrepresented baffled litigants acting in person, which, in itself, causes delays and expense to the judicial system because the court has to spend time explaining legal procedures to litigants acting in person.

Lawyers who know the law can offer specific advice and recommend legal actions that are tailor-made and appropriate for each individual case, however to help the reader.

A divorce is never an easy process to go through. With emotions high, finances at stake and, if children are involved, their custody up in the air, it is understandable that finding agreeable ground is not always an easy process.

If you have or are contemplating filing for a divorce from your partner, it is always good to know what to expect throughout the procedure and what things you may be able to prepare for. Whilst there is no guarantee of a smooth and problem-free process, it is important to understand the consequences and consider every possibility before acquiring a divorce.

Whilst there is no such thing as a ‘simple divorce’, acquiring the services of a good lawyer will ensure that your divorce is carried out fairly and in consensus with all parties involved. Ensure you acquire the services of an established divorce specialist lawyer, as their experience and expertise will help to guide and advise you throughout the process.

What many people are unsure of is what a divorce will actually involve. Amid tales of costly, argumentative and outrageous disagreements, the process itself is far less intimidating and constructive results can be achieved responsively.

What many people want is a quick and resolved resolution, you might not be aware that there are different ways to get divorced.

Mediation and Collaborative Family Law both aim to give the divorcing couple more control and more of a say in what happens. They’re not soft options, but there’s been lots of positive feedback about the fact that these approaches can be less damaging emotionally (and sometimes less expensive) than the traditional route to divorce.

Here is a basic guide on what you can do to help prepare for the divorce process.

1 Gather Financial Information:

If you are able to organise your finances before the divorce is underway, you can begin to gain control over the financial expectancy of the divorce. Obtaining a divorce is not cheap and the longer the procedure goes on, the more legal costs can begin to add up.

Outline any debts you owe and make sure you have invoices and receipts of purchases and bills as well any account information. It may be worth closing or freezing any joint accounts, in order to prevent your spouse from using the account as well as running up charges that you may be held responsible for. This will protect both parties involved.

2 Don’t Move Out:

This may go through your thoughts and unless there is a form of abuse, by moving out you could inadvertently affect the outcome of your divorce.

By moving out, you could affect the interest that you have in property. It is important to remain strong and should you have no alternative but to move out, continue to pay a portion of your mortgage payment and document your contributions. This can affect a decision on property distribution as well as child custody.

3 Children Are Always The First Priority:

It is important to remember this at every stage of your divorce. Remain on your best behaviour as a divorce can often mean being put under a microscope. Ensure you do nothing to affect the outcome and don’t provide your spouse with ammunition.

A divorce can be a stressful process for all involved, and none so more so than for the children involved. Consider their needs at all times and ensure that their requirements are met. Don’t stop being a parent!

This article was contributed by Camilla Choudhury – Khawaja.

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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.