Fraud: A Criminal Claim brought by the CPS or by Private Prosecution?

You may or may not know this but currently, resources are limited by Government cuts, and Home Office budget restraints as to what statistically must be fulfilled by respective Police forces to receive further funding, to fight crime.

There has been stiff criticism and an inference of constitutional corruption whereby some crimes are favoured above others to satisfy Home Office statistics.

On many occasions, those who approach me for legal advice, have been rejected by the Police, following complaint, for one or more of the reasons set out below:

1. The Police lack resources to deal with such economic crime;
2. This is a Civil matter, and not in the public interest to pursue;
3. There is insufficient evidence to secure a conviction to a criminal standard;
4. The Police force who received complaint, do not have an economic crime team, or fraud team;
5. The Police Officer found the facts too complicated, and shelved the complaint hoping the victim would go away.

The Lord Chief Justice of England and Wales recently commented in the Court of Appeal Criminal Division, as follows:

‘…there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions…’. R (Virgin Media Limited v Munaf Ahmed Zinga [2014] EWCA Crim 52.

I do not seek to explain in any great detail by way of this blog post, fundamental differences between Civil Law and Criminal Law procedure, or the Court systems, costs or timing. I have done that in other blog posts.

I intend by way of this blog post, merely to touch upon why the common law right to bring a private prosecution was correctly enshrined and retained under Section 6 of the Prosecution of Offences Act 1985 which states:

‘Prosecutions instituted and conducted otherwise than by the Service

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage’.

Theoretical Instability:

What if resources fell so low, that the Police and other enforcement agencies were rendered ineffective to address economic crime, and so in terms of economic crime, an absence of Lawyers, and absence of Law enforcers, and a lack of Court resources to effectively manage such economic crime?

The likely answer is that crime increases because there is no deterrent, or prevention measures. Isn’t it easier for those criminally minded, to develop further ways to obtain money dishonestly, where there is no pressure to stop it? Does this not then breed further criminal schemes by others searching for the proverbial elusive buck?

It necessarily follows that there will be instability in society and criminal networks will increase in stability. New business structures will emerge based on corruption…Or has this been developing for years? We will all fall to the dark side.

The worst case scenario: A total breakdown of Governmental control, chaos and anarchy.

The Crown Prosecution Service: The CPS

I have heard from more cynical and successful Defence Barristers that CPS actually stands for: ‘Couldn’t Prosecute Satan’.

I disagree. There is nothing wrong with the Crown Prosecution Service per se, but there is a major problem with the resources they have to determine and manage cases.

It is true that sometimes the Police do not present the evidence properly because of a poor investigation. In almost all cases where I have acted for the Defendant, this has not been the case at all, but rather, the Police are let down because of poor preparation by the CPS because they are over-burdened with hundreds of cases.

Anyone who goes to a Magistrates’ Court will plainly see an Advocate for the CPS generally looking flustered, with a huge case-load of cases to be heard, being harassed by Defence lawyers trying to cut deals, seek adjournments, challenge evidence, seek applications for no case to answer.

So?

With the current state of our economy as it is, it is time to reflect upon the previous words of Lord Bingham in Jones v Whalley [2007] 1 AC 63, where he said: ‘A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate the alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest’.

The Lord Chief Justice, citing Lord Bingham’s views, further commented in R (Virgin Media Limited) v Munaf Ahmed Zinga [2014] EWCA Crim 52 ‘…as Parliament has authorised the bringing of such prosecutions, we do not consider it desirable to add to the debate. It is evident that private prosecutions by charitable or public interest bodies such as the RSPCA are common. Furthermore public bodies such as the Financial Services Authority also rely for their authority to prosecute on the general power of a private individual to prosecute…It is now also evident that commercial organisations regularly undertake private prosecutions….’

A Private Prosecution:

Having established therefore the previous common law right to bring a private prosecution, further considered recently by the Lord Chief Justice of England and Wales, the next hurdle for a private prosecutor is an immediate back-lash firstly from the proposed Defendant or their legal team, that a case of fraud could be brought in the Civil Courts as well as the Criminal Courts, and that the Civil Courts are more appropriate.

The second hurdle, having overcome the evidential and public interest tests as prescribed by CPS guidance notes before bringing criminal proceedings, is to convince the Court not only of your intentions as Prosecutor, but also that the case has been brought responsibly, and not frivolously, or is a vexatious claim.

The purpose of the Criminal Courts, are not to be used to blackmail a Defendant, or to seek vengeance or revenge. If you are bringing a claim in any Court, that must NEVER be an underlying factor, or else you will find yourself looking at a claim for malicious prosecution, interference with business, defamation, amongst other recourses for bringing criminal proceedings without merit to a criminal standard.

Why opt for Criminal Courts instead of Civil Courts?

The matter was considered briefly in William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984),

“The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.”

The purpose therefore of bringing criminal proceedings rather than civil proceedings are to maintain stability of the Government, and social stability, by punishing offenders and deterring them, and others from offending.

Following natural Laws of Justice, Justice must be seen to be done.

Let’s face it, there are just too many instances of cases where there was criminal wrongdoing, but nothing was done about it for any number of reasons as set out at the beginning of this blog post, amongst others.

Bringing a private prosecution should not be about seeking damages, but above all, to uphold the Law of the land, and to prevent the baddies from getting away with it, and to prevent others thinking about baddies from doing anything naughty.

Conclusion:

In conclusion, a private prosecution should be considered most carefully before being pursued. One can not go too far wrong if you adopt the CPS guidelines .

Bringing a private prosecution should be first and foremost to punish those who have committed a criminal offence/s, and not to gain a financial advantage or use those proceedings as a bargaining chip.

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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Your Rights - Your Personal Data

diyLAW are grateful to Ishika Patel, one of our brilliant volunteers, for her article on the impending changes in Data Privacy and Data Handling. This is for general 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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Your Rights - Your Personal Data

The General Data Protection Regulation (GDPR) will replace the current Data Protection Act 1998 from 25 May 2018, which governs the processing of personal data.

What is personal data? Personal data is any information relating to you, where you can be directly or indirectly identified, including your name, identification number, address or bank account details.

What is a data controller? A data controller is a person (individual or company) that determines the purposes and means of processing your personal data.

What is meant by “processing”? Anything that is done to, or with your personal data e.g. collecting it, or storing it.

I’m still confused – give me an example. Say you want to open a bank account with X BANK. You will normally be asked to fill in an application form. Filling that form with your name and address, means you are providing them with your personal data. X BANK is, therefore, the data controller. Your name and address are your personal data. X BANK collecting that information means they are processing it.

So how does the GDPR affect me? Why should I care?

The GDPR gives you more say over what these companies/individuals can do with your personal data. It also introduces bigger fines for data controllers that do not comply. This article discusses the different rights you have under the GDPR, including the right:

1. to be informed
2. of access to your own personal data
3. to correct your personal data
4. to erase your personal data/right to be forgotten
5. to restrict processing
6. to data portability
7. to object
8. not to be subject to automated decision making and profiling
9. to be notified of a data security breach.

Right to be informed

You have the right to receive certain information from about the processing activities of your personal data. This information is usually provided in a Privacy Notice – check the data controller’s website, or just ask them if it isn’t clear to you. Information can include the purpose of using your data, your rights as described in this article and your right to make a complaint to the Information Commissioner’s Office.

When should information be provided?

If the data is obtained directly from you, then the information should be provided to you at the time the data is obtained.

If the data is obtained indirectly, say from a third party, then the information should be provided either:

• within a reasonable period after obtaining the personal data (within one month at the latest);
• if the personal data will be used to communicate with you, at the latest at the time of the first communication; or
• if the data controller intends to disclose the personal data to another recipient, at the latest at the time of the first disclosure.

Right to Access your personal data

You have the right to:

• obtain confirmation that your data is being processed; and
• access to your processed personal data.

The information should be provided to you within one month of the request.

Are there any fees?

Access to your personal data should normally be provided to you free of charge but if your request is unfounded or excessive, the data controller may either:

• charge a reasonable fee to provide the information or take the requested action; or
• refuse to act on the request.

Additional copies may also attract a further charge. 

What do I need to do to get my information?

Write to the data controller including the following information:

• full name, address and contact telephone number;
• any information that the data controller can use to identify you from others, for example, a bank account number;
• details of the information you require including dates where relevant.

It will also help if you say that you are making a “Subject Access Request”.

Also have a look on the data controller’s website, as they may have a form available for you to fill in which you may find easier.

Right to correct your personal data:

You have the right to:

• correct inaccurate personal data; and
• complete incomplete personal data.

What should I do?

Write to the data controller and be clear about exactly what the issue is. Your request must be responded to within a month. This can be extended by two months if the request is complex. If no action is being taken, this should be explained to you including your right to complain to the Information Commissioner’s Office and to a legal remedy.

Right to be Forgotten/erase your personal data

You can request the deletion or removal of your personal data where, for example:

• it is no longer necessary for the purpose the data was originally collected/processed;
• you withdrew your consent and no other legal justification for processing applies;
• you object to processing for direct marketing purposes (e.g. to be contacted through advertisement);
• it was unlawfully processed; or
• it should be erased in order to comply with a legal obligation.

Your data should then be erased without delay unless the data controller has to keep it, for example, for legal reasons.

Restriction Right

You have the right to restrict the processing of your personal data when, for example:

• you are disputing the accuracy of the personal data;
• the processing is unlawful;
• the data controller no longer needs to process the personal data but you need the personal data for a legal claim;
• you object to the processing and the data controller is considering whether its legitimate interests override yours.

Data Processing Objection Right

You can object to data processing under certain circumstances, including for example:

• direct marketing purposes (i.e. advertising through, for example, email); or
• scientific, historical research or statistical purposes.

If you object, a data controller must stop processing the personal data unless the data controller either:

• demonstrates a compelling legitimate ground for processing the personal data that overrides your interests.
• needs to process the personal data in relation to a legal claim.

Data Portability Right

This allows you to, for example,

• obtain and reuse your personal data across different services; and
• transfer your personal data to another data controller.

Data controllers must comply with such a request within one month. This can be extended by two months if the request is complex but data controllers must inform you of this and explain why the extension is necessary. If no action is being taken, they must tell you this and why including your right to complain to the Information Commissioner’s Office and to a legal remedy.

Automated Decision Making Objection Right

You have the right to not be subject to automated decision-making, including profiling, i.e. making a decision solely by automated means without any human involvement. Profiling is a form of automated decision-making intended to evaluate certain aspects of you, such as predicting your performance at work, health or reliability.

Automated-decision making is allowed in certain circumstances, for example, if you consent to it or the data controller is allowed by reason of law.

Notification of a breach:

If a breach of your personal data is likely to result in a high risk to your rights and freedoms, you should be notified directly without undue delay. The notification should:

• describe the nature of the breach
• name and contact details of the data protection officer or other contact person;
• the likely consequences; and
• the measures taken to address and mitigate the breach.

There are some exceptions to the notification, including when the data controller has taken steps to ensure your personal data is no longer subject to a high risk.

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The above is a summary of your rights under the GDPR. There is also additional helpful guidance on the Information Commissioner’s website.

Ishika Patel

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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.

Post-Brexit Litigation in the EU (Portugal)

Please note the below article has been updated.

As we have just voted for BREXIT, this may be an opportune moment to relay my very limited experience of litigation in Europe.

I, and the Lloyds Banker director who sponsored Heritage on the London Stock Exchange purchased IPO shares in a major Heritage supplier in 1987. When Heritage was closed by Lloyds in 1996, I needed these shares. I was asked: "What shares"? by the owner of the company, who had arranged the share purchase for us. This, at that time, was particularly hurtful.

Although these were bearer shares, we had a receipt from a member of the Lisbon stock exchange that they were holding these shares. We took the matter of the "What shares" to the Portuguese Stock Exchange (CMVM), who investigated.

Their investigation concluded that a criminal act had been committed against us. But as this was more than 10 years before the Complaint and Portugal has a limitation period of 10 years on Criminal actions we could not bring that action. The CMVM suggested we bring a civil action, which they would support, one that was not subject to such a limitation period.

Which we did: CMVM were true to their word.

We found a firm of what we had believed to be solicitors that offered to take it on contingency. This firm proved to be Brazilian, not Portuguese. They had no rights of audience before a Lisbon Court. The contingency arrangement did not apply to another firm we needed to represent us in Court.

We thought the additional firm were barristers. They were not, so the contingency arrangement did not apply. We learnt Portugal did not have solicitors and barristers, they just have advocates.

We then instructed a small English firm that was going to relocate to Portugal. They did not appear to have any interest apart from charging us a monthly retainer. We then instructed an English firm, with an office in Lisbon. When we attempted to get a problem resolved through the English part of the firm, we found out it had split from its Portuguese arm.

The Banker at this stage dropped out of our side of the litigation. I contacted the Portuguese Chamber of Commerce and was introduced to a proper firm. I finally started to begin to comprehend the Portuguese process.

I learnt that there are virtually no litigants in person in Portugal.

No need for Help4LiPs.

If you bring an action or defend an action, you pay your own costs: win or lose.

Portugal has very few LiPs. The ones they do have allegedly normally win, as the Judges feel sorry for the mess they are making of their case. This is the comment of my advocate, who may not be entirely neutral.

I visited Lisbon again in 2012 and gave oral evidence. Portugal employs the inquisitorial method, so I was cross-examined by a lady judge, who was trained to be a judge. She had not previously been an advocate, so had a different approach. When my evidence did not agree with the Defendant, I was sat down next to him, with an interpreter on my other side. The Judge asked us both questions, which I answered through my interpreter. The judge repeated a comment a number of times after listening to the defendant. When I asked my interpreter what the judge had said, I was told she had said: "that is incredible". The Judge found it so incredible that she fined my opponent 800 Euros for litigating in "bad faith".

Litigating in "bad faith" and the matter being proven to a criminal level, my opponent lost the case, but won the Appeal. I was asked to prove a negative, that I had not collected the shares.

With the assistance of a number of academics (aided by Bertrand Russell's teapot) the Supreme Court accepted my pleading that I could not prove a negative.

I finally won in 2016 a case that had started in 1987.

Meanwhile, my opponent had gone through yet another divorce and allegedly had no money. I am now about to get part of one of his pensions at the rate of 400 euros a month.

Moral of the story, in the EU (Portugal) as in the UK:

AVOID LITIGATION, IF YOU POSSIBLY CAN!

Jeff Lampert

founder of diyLAW

How do people without legal training deal with having to go to court?

Help4LiPs is developing an interactive game, ‘Virtual Litigation - The Game’ which gives LIPs the chance to virtually take their case through the entire justice process, and get a feel of what litigation is all about.

The article was published on Legal Cheek website.

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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.

About Misrepresentation

I have been dealing with a very complex case involving misrepresentation and thought I would share a few pointers in respect of this complex are of contract law.

The law in misrepresentation can be very complicated because not only are you dealing with the effects of Contract Law but as a result of losses which may be sustained due to the breach of the contract you have entered into there may also be a claim in Tort. Torts are civil wrongs resulting in an injury or harm constituting the basis for a claim by an injured party.  The first aim of tort law is to provide compensation for the damages suffered by you and to deter others people from committing similar acts. Among the types of damages you as the injured party may recover are: loss of earnings capacity, loss of income etc and these include both present and future expected losses.

A Misrepresentation is a statement of fact which is made by a party/parties or their agent in respect of the terms etc of a contract which induces another party/ies to enter into the contract but which does not form part of the contract.

The misrepresentation must relate to some existing fact or some past event ( e.g.: if A was selling a property to B and stated that the area of land being sold was 400 sq metres when it was in fact 300 sq metres then this would be a clear misrepresentation of the facts).

You must remember that a misrepresentation does not render a contract voidable unless it was intended to cause and has in fact caused the party to enter a contract. It must have produced a misunderstanding in your mind, and that misunderstanding must have been one of the reasons you were induced to make the contract.  Therefore you will have no claim for misrepresentation if you did not:

(a) know of its existence

(b) allow it to affect your judgement or

(c) was aware that it was a false statement.

There are various forms of misrepresentation; the two most serious of which are

(a) Fraudelent Misrepresentation.  In the leading case of Derry v Peek, Lord Herschell, stated that the definition of fraudulent misrepresentation was if a false statement was made

(1) knowingly, or

(2) without belief in its truth, or

(3) recklessly, careless whether it be true or false’,

The Judge went on to state that the rule is accurately and comprehensively contained in the short formula that a fraudulent misrepresentation is a false statement which, when made, the representor (the person asking you to enter the contract) did not honestly believe to be true.

And;

(b) Negligent Misrepresentation.  For negligent misrepresentation to exist there has to be two elements to an agreement:

1. There must be a fiduciary relationship between you and the party you are entering into an agreement with.   e.g  Between you and your Solicitor, or, you and an architect
2. There must have been a negligent pre-contract statement made.

Two leading cases in negligent misrepresentation are Hedley Byrne & Co Ltd v Heller & Partners Ltd and  Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp and if you read these cases they will give you an overview of what constitutes negligent misrepresentation.

You must remember that if you knew that a representation made by a party to an agreement you enter into was false prior to your signing such agreement you cannot state that you have been misled by the statement and therefore cannot bring a claim for damages or have the contract set aside.

A misrepresentation does not render a contract voidable unless it was intended to cause and has in fact caused the a party to enter a contract. It must have produced a misunderstanding in your mind, and that misunderstanding must have been one of the reasons which induced you to make the contract.  It is the general rule that if you can prove that there has been a misrepresentation then you may be able to have the agreed contract set aside (this is called recission of a contract).  Misrepresentation makes a contract voidable and not void.

DO NOT PRESUME THAT BECAUSE YOU BELIEVE THERE HAS BEEN A MISREPRESENTATION THAT THE CONTRACT IS NOT A GOOD CONTRACT. A CONTRACT WILL REMAIN VALID UNLESS AND UNTIL IT IS SET ASIDE BY YOU (the representee) .

Once you have discovered the misrepresentation you can decide whether:

1. to continue with the contract;  OR
2. set the contract aside.

Lord Atkinson set the position out clearly: “Where one party to a contract expresses by word or act in an unequivocal manner that by reason of fraud or essential error of a material kind inducing him to enter into the contract he has resolved to rescind it, and refuses to be bound by it, the expression of his election, if justified by the facts, terminates the contract, puts the parties in statu quo ante and restores things, as between them, to the position in which they stood before the contract was entered into”.

Having decided to progress with or terminate the contract you cannot change your mind, there are of course always exceptions to the general view but I am just going to deal with the general rule in this article.

If you have sustained financial losses (such as loss of income, etc.) as a result of being induced to enter a contract through misrepresentation  you may be able to make a claim under both common and statutory law under section 2 (1) of the Misrepresentation Act which provides that:

“where a person has entered a contract after a misrepresentation has been made to him by another part thereto and a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.”

It should be noted that this sub-section assumes all non-fraudulent statements to be negligent and puts the burden on the maker of the statement to disprove negligence.

It is very important that  if you decide to bring proceedings for losses suffered by you in a  claim for misrepresentation that you do the following:

Prepare the claim form stating clearly that you are alleging not only misrepresentation but also fraud and negligence, this ensures that you cover all possible scenarios, especially if you are unsure whether the misrepresentation would be considered to be fraudulent or a negligent statement. You must then set out clearly the following matters in your statement of claim where you wish to rely on them in support of your claim:

(1) any allegation of fraud,

(2) details of any misrepresentation,

(3) details of all breaches of trust (negligent misrepresentation),

(4) notice or knowledge of a fact,

(5) any facts relating to mitigation of loss or damage,

(6) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(7) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky attach or serve only the relevant parts of the contract or documents.

(8) Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.

(9)Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

(10) In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain a statement that the action is not one to which section 141 of the Consumer Credit Act 1974 applies.

As stated this article is just an overview of this vast subject and is for information purposes only.

Deborah Aloba

Affordable Law For You Limited

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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.

Applying for a Divorce using Behaviour

diyLAW are grateful to Whitney Akinnayajo, an LLB student at Arden University, for her article in support of public legal education. This is for general 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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Life can present a range of unpredictable and unexpected circumstances. Sometimes couples grow apart and over time feelings between spouses change. If you have come to the realisation that your marriage has broken down beyond repair and are considering getting a divorce, this article may be helpful in providing you with the information and tools that will enhance your knowledge regarding this process.

This article will look briefly at the divorce process as well as the legal grounds for divorce, with a particular focus on the ‘behaviour’ ground. This is by far the most common ground for divorce in England and Wales, but can also be the most unclear, thus it is the hope that this article will provide a clear understanding as to what it entails.

Please find some keywords surrounding this topic accompanied by their definitions at the close of this article.

How to get a divorce

In England or Wales, you are entitled to get a divorce if you’ve been married at least a year and your relationship has permanently broken down. However, your marriage must be legally recognised in the UK; this is inclusive same-sex marriage. You also need to have permanent residence in England or Wales.

If you need more time before making the permanent decision of getting a divorce, you can get a legal separation so that you can live apart without ending your marriage.

Starting a divorce application

To start your divorce application (formerly known as a divorce petition), you must have your marriage certificate as this needs to be filed in court to start the beginning process. If you have lost your marriage certificate, you can obtain a copy from the General Register Office. https://www.gro.gov.uk/gro/content/

If you were married outside of England and Wales, you will need to get a certified copy of your marriage certificate from the country where you were married.

You can start your divorce application in any divorce County Court. However, it is best to choose a court that is close to where you live because you may need to make several visits to court before the divorce is completed.

To file your divorce petition at court, you will need the following divorce form; which is the official application for a divorce, dissolution or (judicial) separation (D8).

Link below:

https://formfinder.hmctsformfinder.justice.gov.uk/d8-eng.pdf

Grounds for divorce

To issue divorce proceedings you must have valid grounds. Under the laws that govern England and Wales, irretrievable breakdown is the only ground for filing a divorce. You can prove that your marriage has irretrievably broken down by establishing that one of 5 things has taken place.

• Adultery- You must prove that your spouse has had sexual intercourse with another person of the opposite sex and that you find it intolerable to live with your spouse. (This ground is not available for same-sex marriages. Instead, extramarital sexual activity in same-sex relationships falls under the behaviour head.)
   
• Behaviour- You must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.
   
• Desertion- This is where your spouse has deserted you for a continuous period of at least 2years.
   
• 2 years separation with consent- You or your spouse can issue divorce proceedings if you have been separated for at least two years and the other party agrees to the divorce.
   
• 5 years separation without consent- If you and your spouse have been living apart for at least five years then, either of you may issue divorce proceedings without the other party’s consent.

If one of these 5 things have not occurred, then divorce will not be able to take place.

Behaviour

The ground for divorce that will be focused on in this article is ‘behaviour’; often referred to as ‘unreasonable behaviour’. As stated in the introduction, this is one of the most common grounds for divorce in England and Wales.

Behaviour is used so frequently because;

• Consent from your spouse is not required
   
• There is no specific time period that you must wait before being able to use this as your reason for divorce

Nonetheless, in saying this, you will still need to have been married for a minimum of 12 months before you are able to file for divorce.

Proving Behaviour

To prove that you have the appropriate grounds for divorce using behaviour, you must show that your spouse has behaved in a way that you cannot reasonably be expected to live with.

But what constitutes behaviour that you cannot reasonably be expected to live with?

There is a special test to apply:

1. Would a right-thinking person – this is a person with ordinary moral standards – the average person walking past in the street
    
2. Considering everything about each spouse and the whole marriage
    
3. Think that the other spouse has behaved in such a way that this spouse cannot reasonably be expected to live with her or him

Therefore, when thinking about behaviour, it may be helpful to imagine what the average passer-by would think if they witnessed the behaviour that you have described take place in a public place.

Would the average person think that the behaviour was unacceptable or unreasonable to live with? Would they think it was normal behaviour between spouses? Would they be shocked by the behaviour?

Examples of Behaviour

As stated above, there are varying levels of seriousness to behaviour. Individuals may see some issues as more hurtful to their marriage than others do

Below is a list of allegations which can amount to behaviour which a spouse cannot be reasonably be expected to live with:

• Devoting too much time to a career
• Refusing to get a job
• Relying on you financially
• Financially irresponsible e.g. failure to support the family, household costs
• Having no common interests
• Pursuing a separate social life
• Being antisocial
• Lack of emotional support
• Lack of support in general, around the house, in your career etc
• Refusal to discuss/work on issues within the marriage
• Not wanting to engage in any sexual or physical acts/relations
• Partaking in a sexual activity with another person which falls short of sexual intercourse
• Violence / Physical abuse (e.g. hitting, scratching, punching, biting, strangling or kicking)
• Verbal abuse (e.g. name calling, insults, threats, manipulation, bigotry)
• Gambling on a frequent basis and/or creating debt without your knowledge
• Drug/alcohol abuse

Some of these allegations may not be considered serious by themselves in combination with other allegations would be behaviour which a spouse cannot reasonably be expected to live with.

Structure

In your statement for divorce and behaviour, it is advised that you do not just list the examples as this will not be enough for the court to decide whether your divorce should be allowed. Instead, try to write about how this behaviour has made you feel. This will help to communicate the reality of your situation to the court.

Roughly 5 detailed examples should be sufficient.

Below are a few examples of statements that you could write when filing a divorce for behaviour:

• “My spouse has chosen to spend money on gambling excessively and has not made any contributions to the household. This has caused me to feel…”
• “My spouse stopped socialising 2 years ago and rarely leaves the house. This has made me feel…”
• “I have felt a lack of support from my spouse, particularly when he/she became made redundant. As a result, I feel…”
• “My spouse has been emotionally abusive to me, by frequently threatening me and limiting access to our joint bank accounts. Because of this, I feel…”
• “My spouse humiliated me in public in front of several people. This made me feel…”

Time limit

It is important to understand that when presenting a divorce petition on the grounds of behaviour, there is a specific time limit in place.

If you continue to live with your spouse for more than six months after the last incident of behaviour you will need to have a good reason for continuing to live with your spouse. A good reason could be nowhere to go, no money or you need a stable home for young children. If you can, try to either file your divorce application within six months of the last behaviour incident or show in the petition that the behaviour is still happening. If the behaviour is still happening the six-month time limit will not start.

Allegations can be made in relation to the time when you were living with your spouse or the period after you have parted.  

Cooperation/ Reducing acrimony

It is always advisable that spouses try to keep a civil relationship with one another during divorce proceedings where possible. This is because being civil towards each other can help prevent further emotional turmoil as well as speed up the divorce process.

This can be beneficial in helping along divorce proceedings. However, it is understood that in reality this can be understandably difficult and may not be possible or even desirable in certain circumstances (for example domestic or emotional abuse cases).

If it is possible for you to be civil, then sharing the examples of behaviour that you have listed with your former spouse before they receive them through the court is recommended.

If you are on very good terms, you could even ask your former spouse to write the examples of their behaviour themselves to minimise possible conflict. Agreeing on that the contents of the divorce application can prevent misunderstandings and avoid difficulties further along.

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Keywords

Below is a list of keywords/ terms that are widely used by solicitors accompanied by their definitions.

Adultery- Voluntary sexual intercourse between a married person and a person of the opposite sex who is not their spouse.

Allegations- A claim or assertion that someone has done something illegal or wrong, typically one made without proof.

Antisocial- Not sociable or wanting the company of others.

Consent- Permission for something to happen or agreement to do something.

Divorce- The legal dissolution of a marriage by a court or other competent body.

Irretrievable breakdown- Not able to be retrieved or put right.

Marital home- A home in which a married couple live together.

Petitioner/applicant - The person that applies for the divorce.

Respondent- The person against whom a petition/application is filed.

Separation- The state in which a couple remain married but live apart.

Spouse- Either member of a married couple

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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.

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 law – Equity 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 prevails – where 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 form – Equity 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 Equity – if 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 hands – if 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 Equity – this 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 fraud – Equity 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

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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.

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 gov.uk 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.

HELENE PINES RICHMAN

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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.

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.