Monday, November 24, 2014

Mini Book Review: Financial Remedies Practice, 2015 Edition


Financial Remedies Practice, 2015 Edition

The @eGlance Guide

£99.95 - Published by Class Legal: November 2014

I'm afraid I don't have time at present to do a full review of this, the fourth edition of Financial Remedies Practice, so here instead is a quick 'mini review'.

For details of previous editions and what the book is about (the title is rather self-explanatory, even if one of the authors, Mr Justice Mostyn, insists (quite correctly) upon still referring in his judgments to 'financial remedies' as 'ancillary relief'), see my previous reviews here, here and here.

Key changes in the 2015 edition are listed on the back cover as follows:
  • a "major overhaul to bring the book up to date with the momentous changes wrought by the implementation of the single Family Court and the continuing flow of important cases";
  • the revised PD 27A relating to bundles and the restraints on pagination, extent and other matters now being vigorously enforced by the judiciary;
  • the ‘Statement on the efficient conduct of financial remedy final hearings’ now in operation when the hearing is before a High Court judge;
  • changing approaches to sanctions for breach of procedure in the wake of the CPR decisions in Mitchell & Denton;
  • media reporting of financial remedy cases and the Judicial Proceedings (Regulation of Reports) Act 1926;
  • ongoing changes to allow for family arbitration; and
  • the Commentary has been thoroughly revised to explain and clarify all aspects of the new Family Court procedures such as gatekeeping, allocation and routes of appeal.

Contradicting what I said in my review of the last edition, the book has actually shrunk from 713 to 665 pages. I'm not entirely certain how this has been achieved, as the coverage of the subject appears to be as comprehensive as ever. I don't know whether this is a case of 'less is more', but personally I find it somewhat a relief that a textbook has reduced in size.

Another obvious change is that the book, along with the updates at www.familyprocedure.com now seeks to cover one calendar year rather than straddling two, which I think is less confusing.

As I said above, this is not intended as a full review. However, my short time with Financial Remedies Practice 2015 confirms what I said in my last review: "if you specialise in financial remedies ... then FRP certainly seems to be approaching the status of 'essential', as claimed on the back cover."

Financial Remedies Practice is available from Class Legal here. As with the last edition, a £20 discount is available if it is purchased along with Class Legal's @eGlance electronic toolkit and resource for money cases.

Friday, November 21, 2014

Take your mind off the by-election


No doubt many of you will be disappointed at the by-election result. Still, I'm sure Hairy Knorm Davidson will get another chance. Meanwhile, why not take your mind off of things by reading my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which include:

Relentless litigation... again - As demonstrated by the case Lindner v Rawlins.

Completing the circle - Confirming the obvious: those who provide legal advice will have to be trained, regulated and insured.

Breaking the cycle of incessant litigation - A few ideas that might help.

The complexities of modern family relationships - As demonstrated by the case C v S.

Have a good weekend.

Thursday, November 20, 2014

Lunar Mission One: Get involved

Nothing whatsoever to do with family law, but for a child of the Apollo era who has long been disappointed by the subsequent loss of public interest in space, here is something that will hopefully re-invigorate the older generation and inspire the younger:



For more information about Lunar Mission One, go to the website, here. To make a pledge towards the project, go here.

Wednesday, November 19, 2014

Family Lore Clinic: Enforcing a consent order after the other party has died


As usual, the term 'consent order' is taken here to mean the order setting out the agreed financial/property settlement on divorce. In fact, what follows applies equally if the settlement order is not made by agreement, but imposed upon the parties by the court.

So long as the divorce has been finalised, the death of either party will generally have no effect upon the terms of the order, and those terms can therefore still be enforced. The exception to this is any maintenance order, which will terminate upon the death of either party (although any unpaid arrears of maintenance prior to the death should still be recoverable). Other orders, such as orders requiring one party to pay a lump sum of money to the other, can still be enforced.

When a person dies their financial affairs will be handled by their personal representative, who will administer the estate and apply for probate. It will be their responsibility to discharge any liability of the deceased party under a consent order. Accordingly, if you want to enforce an order against a deceased party, you should contact their personal representative. The personal representative will usually be a close relative of the deceased, or their lawyer. If probate has been granted, you can find out who they are by searching for a will or probate record here, although you may need to act before probate is granted, as the deceased's estate can be distributed once probate has been granted.

If you require further information or advice regarding enforcing a consent order where the other party has died, you should consult a specialist family lawyer.

Monday, November 17, 2014

Costs Cap


Mostyn J calls for fixed pricing in ancillary relief cases - Family Law Week, 17th November 2014

(I hasten to add that the above is not directed specifically at Mostyn J, whose views on costs caps prior to being appointed to the Bench are not known to me.)

Saturday, November 15, 2014

Committal judgments should be published

John Hemming MP
A summary of Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477 (14 November 2014).

This was essentially a challenge to the decision of Theis J in London Borough of Ealing v Connors to commit Margaret Connors to prison for 28 days for contempt of court, for breach of a collection order. The challenge took the form of an application for a writ of habeas corpus. Collins J refused to issue the writ, describing the application as being "hopeless" and "entirely misconceived". The matter was then appealed, and the President, giving the leading judgment in the Court of Appeal, agreed that the application was devoid of merit.

The application for the writ was issued by campaign group Justice for Families Ltd, whose Chairman is John Hemming MP. Mr Hemming appeared before Mr Justice Collins, but did not fare well, as this extract from the transcript indicates:
"MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.

MR HEMMING: Yes.

MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is --

MR HEMMING: Without the ability to contact her. That's right.

MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.

MR HEMMING: Yes, we don't know, do we.

MR JUSTICE COLLINS: No, we don't

MR HEMMING: And that's the difficulty of the situation of people in prison in secret --

MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.

MR HEMMING: So that's what you recommend, basically.

MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless --"
Sir James Munby P
In the appeal the President began by considering two preliminary points. Firstly, the issue of representation of a company at trial by an employee - Mr Hemming had failed to comply with the rules, but the court agreed to hear the appeal "as a matter of indulgence". Secondly, the issue of the locus standi of the appellant, upon which the President concluded: "In my judgment, this is not a case in which the appellant had any business applying for a writ of habeas corpus."

Moving on to the grounds of appeal (which can be found listed in paragraph 11), the President found that there were two very simple reasons why the appeal was quite hopeless:

Firstly, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal.

Secondly, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end.

In the circumstances, the appeal was dismissed.

That, however, was not the end of the matter. As the President pointed out, Mr Hemming's wider complaint related to the fact that, according to his own investigations, many committal judgments have not been published (on BAILII), as required by the practice guidance. "This, if true," said the President, "and every indication is that unhappily it is true, is a very concerning state of affairs." The President therefore reiterated the guidance, and gave further gudance regarding the listing of cases where there is no committal application before the court.

The President did, however, add one final observation:
"I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly [these were other arguments put forward by Mr Hemming] or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound."

Friday, November 14, 2014

Jamboree bag*


Another mixed bag of topics pontificated upon by yours truly this week on Marilyn Stowe’s Family Law & Divorce Blog included:

The liability to support children - And the consequences for failure to do so.

Reaching a conclusion from the wrong direction - The issue of McKenzie Friends, particularly those who charge for their services.

Running up costs… and paying them - A look at the cases J v J and SB v MB.

Challenge to Scottish named person scheme - And my views on the scheme.

Have a good weekend.
__________________

*For those too young to understand the reference in the title, Jamboree bags were bags of mixed sweets and toys purchased by children in my youth - you never knew what you got until you opened them. Happy days.

Wednesday, November 12, 2014

J v J: Something must be done

Mr Justice Mostyn
In J v J Sir Nicholas Mostyn, clearly exasperated at yet another case with disproportionate costs, has proposed that two measures be taken to address the problem:

Firstly, fixed pricing for cases. Sir Nicholas  referred to two quotes from Lord Neuberger's 2012 lecture to the Association of Costs Lawyers:
"Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency. Moreover, it undermines effective competition in the provision of legal services, as it 'penalizes . . . well run legal business whose systems and processes enable it to conclude matters rapidly.' It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate. In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly moveable feast, simply does not reflect the value of work."
and:
"That no-one has suggested a viable alternative is something which needs to be remedied, and the sooner the better. An approach to litigation costs based on value-pricing rather than hourly-billing is one which urgently needs to be worked out and applied. Rather than treating time as the commodity which is being sold, we should be adopting an approach where skill and experience are the commodities which are sold."
Sir Nicholas envisages fixed pricing for all types of cases, but so far as ancillary relief (he still uses the term) is concerned he suggests a fixed price for each of the three phases of an ancillary relief case namely (1) Form A to First Appointment, (2) First Appointment to FDR and (3) FDR to trial.

The second measure is "for the court in ancillary relief proceedings to be able to impose at the very beginning of the case a costs cap on what may be charged by the lawyers to their client for each of the three phases of the case." "Naturally", he says, "this cap would be variable if circumstances change but the change of circumstances would have to be a big one for a variation to be allowed."

Mostyn continues:
"In my opinion only if these two steps are taken will the grotesque leaching of costs, such as has occurred in this case, be arrested. It might also have the beneficial consequence that the present volume of self-representation deriving from the wholesale withdrawal of legal aid from private family law cases is reduced. If a litigant on the cusp of self-representation knew at the start of the case how much it was going to cost for each phase then he may well opt for representation. The benefits of representation are too obvious to spell out extensively. Far more cases with the benefit of representation settle, with the resultant avoidance of the legacy of heartache that contested litigation engenders. Those cases that do fight will be on rational and properly pleaded justiciable issues. The lengthy delays in the court system caused by the explosion in self-representation may be reduced."
Difficult to argue with that.

For those lawyers worried about these proposals, he returns to Lord Neuberger:
"The drive for lower legal costs should represent an opportunity for forward thinking lawyers. If litigation is cheaper, elementary economics suggests that there will be more of it. Rather than charging high in a few cases, and driving away those with valid claims from the courts, lawyers should be able to charge realistic fees, and encourage many more clients to instruct them to fight their case. So, significantly lower legal costs should not lead to less money for lawyers, but it should lead to better value for money, and should give to our citizens what so many are currently denied, namely access to justice."
In an effort to prevent his words from simply adding to the dusty pile of "something must be done" rhetoric, Sir Nicholas stated that he would be bringing his judgment to the attention of the President, with a view to him raising 'this pressing matter' as a matter of urgency with the Family Procedure Rules Committee.

Monday, November 10, 2014

Internet Newsletter for Lawyers November/December 2014


The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue
  • Marketing – Chris Davidson of Curated Media explains how to generate business through content marketing
  • Document drafting – Ann Hemming of LexisNexis on how web technologies can improve document production processes
  • Customer reviews – Daniel Kidd shows how to set up customer review services and incorporate them on your site
  • Chambers websites – Natalie Hearn of Matrix Chambers describes the new Matrix International brand and website
  • Privacy – Paul Bernal reviews where we are 6 months on from the Google Spain ruling
  • Technology – Alex Heshmaty looks at wearable technology and how it can be used by lawyers
  • Resources – Delia Venables on international legal resources
  • A brief update on BAILII

Access the Newsletter online

Friday, November 07, 2014

Cases, cases...


This week my efforts on Marilyn Stowe’s Family Law & Divorce Blog included discussion of four cases:

Justice denied - As explained by the President in D (A Child).

Callous and cruel - Mrs Justice Hogg's description of a father's behaviour in H (A Child).

Arrangements following marriage breakdown should be handled like a family funeral - The excellent advice of Mr Justice Weir in the Northern Ireland High Court case O'H v O'H.

Staying the course for contact - Better than what the father did in F (Children; Contact, Name, Parental Responsibility).

Have a good weekend.