Oh no, it's happened again and this time it's worse!

Some time ago I blogged about a solicitor's identity theft.  To refresh your memories, it's here:

Markandan and Uddin

Well, now it's reported that the same thing has happened again.  What's that?  A successful theft of a six figure mortgage advance used to buy a property.  Now the last time this happened, the buyer's solicitor was held responsible.  At first instance, that's what's happened again.  The Court of Appeal, however, don't agree this time round.  There is at least one worrying new feature of the latest such scam.  The report of the Court of Appeal decision is here:

Davisons v. Nationwide

It seems that a Mr. Gill practised as Rothschilds solicitors in Birmingham.  In January 2009, another firm of solicitors, Davisons, a substantial multi office firm, also in Birmingham, received instructions to act for a buyer of a house and his mortgage lender.  Mr. Wilkes was the solicitor who dealt with the transaction.  Rothschilds Small Heath office wrote to Mr. Wilkes to say that they were instructed by the seller.  As Mr. Wilkes knew nothing of the firm, he checked to find out about them.  Rothschilds were registered with the SRA, as was their Small Heath office.  Therein lay the problem - there was no Small Heath office!  Actually, Mr. Gill, the real Mr. Gill, had found out about the entry on the SRA/Law Society website at least a month earlier and had asked for it to be removed.  It wasn't until April the next year that it was done - some considerable time after Mr. Wilkes did his check.  No explanation for the delay is apparent, but, as is now customary, we are told that changes have been made.  Well, one has to hope so.

There's a lesson for practitioners in this.  Just how often do we check the information which is being published about our firms?  I suspect that the reason Mr. Gill contacted the SRA in December 2008 was because he was dealing with the usual annual return and application for his practising certificate renewal and this led to him looking at the information the SRA was publishing about his firm.  Had this been taking place, let us say, in February, then it might have been months before he found out and did something about it.  It seems that the fraudster registered the branch office in October 2008 from an email address which Rothschild solicitors had never used.

So to cut a long story short, Mr.Wilkes completed the purchase and forwarded nearly £200,000 of the Nationwide's money to the fraudster, who promptly vanished with it. The oddity of this case is that the buyer did indeed occupy the house and the original mortgage for the seller has been paid ever since.  So there's no basis for a possession order by the first mortgage lender and the second mortgage lender does not have a registered charge to enforce!

Then the Nationwide sued Mr.Wilkes firm.  Mr. Wilkes was said to have undertaken in his retainer with the lender to obtain a registered first charge for them and had, in breach of contract, failed to do so.  It was said that his releasing the completion money without obtaining that charge meant that he was in breach of trust. He was trustee of the completion money, holding it for a specific purpose and on specific terms.  His breach of those terms was a breach of trust.  Mr. Wilkes argument was simple - I did due diligence on the "solicitor" I believed I was dealing with.  I followed a perfectly normal conveyancing protocol.  I had an undertaking from the other side to discharge the existing charge.  It wasn't my fault I was dealing with a crook!  The case turned at first instance on whether it was reasonable for Mr. Wilkes to have acted as he did.  The judge at first instance decided that he had not received sufficient to amount to an apparently satisfactory undertaking from the rogue, so he had not acted reasonably.

It probably comes as some sort of relief, therefore, to learn that the Court of Appeal disagreed.  Well a relief to solicitors, anyway.  The fact was that he did have in writing confirmation that the original mortgage would be discharged and that seemed to be from another solicitor.  He was not to know that he was dealing with a rogue.

So why is this case worse than the previous one?  Well, in this instance a competent conveyancer, taking the usual approach to a purchase, was defeated in his precautionary steps because the SRA website, which conveyancers are urged to consult, was simply wrong.  It is deeply troubling that fraudsters are aware of what they need to do to stay ahead of the game and the SRA was so lacking in alertness that he was able to get them to add credibility to his scam.  Let's hope things have really been tightened up and this sort of farce cannot be repeated.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

In praise of insurers - well, sort of.

Family lawyers rarely encounter legal expenses insurance.  It's been overlooked because most disputes within a family are expressly excluded by insurers. Doubtless this is on the basis that with over 40% of marriages ending in divorce, the chances of the insurer having to pay out are simply too great.  After all, insurance is about taking a premium for something that most likely isn't going to happen.  I was once told that just 5% of policy holders die during the term of a term assurance policy - perhaps taking out a policy is the best health measure we can all take!

By contrast, the dreaded ambulance chasers, personal injury lawyers, are well acquainted with searching out before the event insurance policies.  They come attached to household insurance policies, credit cards and occasionally other policies.  What they generally cover is all manner of civil disputes.  So if you end up in a boundary dispute with your neighbour (heaven forbid!), then your legal fees, and often your liability for your neighbour's if you were to lose, would be paid for you.

However, for the family there is some limited but potentially important benefit for their clients.  Two types of action can on occasion be funded by legal expenses policies.  In the first place, many policies cover Inheritance Act claims.  These enable a family member of someone who has died to make a claim against their estate in the event that they are left with little or nothing from the estate.  They aren't commonplace but for people who depended financially on a relative, they can be vital.  Because they are litigated in the civil courts instead of family courts, the normal rule on legal costs is that the loser pays.  This can be a major deterrent to someone who is already facing financial hardship after the death of a loved one.  With legal expenses cover, both sides costs are usually protected, up to a specified limit.  In my experience, that limit is generally more than enough to reduce the risk to virtually nothing.

More rarely, there may be cover for property disputes between cohabitants.  Often this is excluded from policies but as they also take place in the civil and not the family courts, occasionally they can be covered.  You have to look closely at just how any policy exclusion has been worded.  Again, if you can use your legal expenses policy, it can be of huge benefit as costs generally get deposited on the loser in these cases too. 

So, a word to the wise - always accept legal expenses cover when you are offered it.  Most people won't need it but then again, it's cheap and for those who do need it, it can be the best few pounds you ever spend.


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Autumn is so busy!

I've commented before about how January, commonly reputed to be the divorce lawyer's peak season, just isn't.  However, that's not to say we don't have a seasonal business - in fact it's very seasonal. It's not the New Year that brings in a need for change, though, it's the autumn.

I blame school myself.  From the age of less than five, all the way through to the end of eucation, most likely in our early twenties, we are conditioned to a fresh start each September.  I find that from late September through to mid November I have a boom in new instructions and this year has been no exception.  My theory is that once the summer is out of the way, people begin to take stock.  Bear in mind that the majority of divorces come about within 11 years of marriage and you can see that many arise, sadly, where there are school age children, so the school year is the template for family life.

This autumn has been particularly busy for me as I have started to present training seminars for BPP,one of the leading professional training organisations.  The solicitors' training year runs from 1st November annually, so October is the month when solicitors realise with horror that they need to accumulate several more hours to comply,with professional requirements.  I've been rushing round the country as a result, presenting courses for lawyers who, happily, have in the main part restricted themselves to signing up to courses which are at least of direct relevance to their practices.  In times past, I have found myself sitting in seminars on advanced family law next to conveyancing solicitors who couldn't find anything directly relevant to them on a day they could spare out of the office!

So anyway, that's my excuse for being a non-blogger for the last two months.  I intend to be back with a vengeance now.  Loads of interesting things going on in family law, and one or two other areas as well. 


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

The most important blog I'll ever post

 If you're a woman, you need to read this.  If you're not, if you have a family member who's a woman, you need to read it too!

The Walk for One Million takes place on Sunday 7th October 2012 at Knebworth Park.  It's all about Ovarian Cancer (OC).  OC kills over 6,500 women in the UK each year.  The survival rate is just 36% after five years. To put that into perspective, the five year survival rate for breast cancer is 85%, and quite rightly, the breast cancer charities aren't resting on their laurels!  As is so often the case, the key is early diagnosis and this is where there has been a big problem with OC. 

In 2005, my mother and my younger sister both died of OC, within seven weeks of each other.  My mother survived eight years after her diagnosis.  She didn't go through all the available treatments - by the time her cancer became resurgent, it just wasn't appropriate.  By contrast, my sister survived just about two years, despite accessing all the mainstream treatments and at least one experimental one too.  The difference, at least in part, was that my mother's GP was appreciably quicker to recognise the symptoms she was suffering and made an urgent referral to a consultant of the correct discipline, whereas my sister was less fortunate.  She was eventually referred to a gastro-enterologist, but without the urgency.  It was this consultant who realised who she needed to see and the disease was already well advanced.

This needs to change.  The purpose of the Walk is to raise awareness of the disease and its symptoms with the public and with the medical profession.  If women and those who treat them know the warning signs, there is a much better chance that sufferers will diagnosed quickly and receive life saving treatment.  Please take the time to read about it at this link and visit the links in the text:

Diagnosing and treating ovarian cancer

Can you help this link to go viral?  Think about tweeting, posting on facebook, linkedin, your own  blog or anywhere else. 

We shall also be raising funds for the continuing work of the charity in supporting sufferers and their families, raising awareness and researching treatments.  I shall be walking as part of the fifteen strong Team Sarah, remembering my sister, who died almost exactly seven years ago.  Please feel free to donate by visiting this link:

Donate to Target Ovarian Cancer

The popular press is getting a huge amount of flak these days for the misbehaviour of journalists.  It's only fair, therefore, to give credit where it's due.  The Daily Mail, in its Femail section, has been reporting regularly on the disease, it's symptoms and how it is dealt with.  I can't recommend it highly enough for its single minded determination to make a difference - why not make the time to read some of the articles they have produced?

The Daily Mail on Ovarian Cancer


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Revenge is, well, undignified actually

There's been something of a minor surge in stories of people taking revenge on the ending of their marriages lately (it is the notorious silly season, after all).  First there was the man who destroyed his wife's collection of designer handbags (plus shoes and clothes, of course) when she left him for a man she met while on holiday:

The handbags

Now there's the tale the husband scattering his wife's underwear along the public highway:

The underwear

Intimate information is another quite common tactic, such as intimate photos of your formerly loved one:

The compromising photo

And there's always a constant diet of cases of cutting furniture and household effects in half because "that's fair".  Another favourite is publishing intimate photographs and videos of the person you see as having betrayed you.

I always wonder though, do these perpetrators really feel better as a result?  More to the point, do they look better to their friends and families?  For myself, it really speaks of immaturity.  However hurt you feel, lashing out to cause suffering and for no other reason, is just about as undignified and humiliating as it gets.  You show yourself as out of control and spiteful.  Sure, I understand why Mr. Plews, the handbag husband, is annoyed.  There must have been some relatively serious spending going during the marriage and on the face of it, there was a distinct lack of frankness from his wife about the new man in her life.  Nevertheless, there is no dignity in revenge.  Mr. Plews and these others come across as people unable to control themselves and the essence of living in a civilised society is exercising self control, especially with people who offend, hurt and annoy you. 

It's probably worth noting that the underwear scatterer, Mr. Klutch, had just been served with a protection from abuse order by the court, to protect his wife.  This rather suggests that the problems between them had  been of a pretty significant nature event before then and that Mr. Klutch had been operating outside the normal boundaries even of hurt and upset husbands.

It's clear from these tales that courts are intolerant of this type of behaviour, and so they ought to be.  English courts are just as capable of punishing this abuse as American ones, and of making orders intended to prevent it.  Abusive behaviour takes an almost endless variety of forms, only limited by human ingenuity.  The law is astute to be over prescriptive.  If property is damaged or spouses and partners put in fear or distress, there are orders available to prevent future repetitions and penalties for those who perpetrate those acts.


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Where does a profession end and a trade begin?

 A colleague of mine drew my attention to an article last week in the Law Society Gazette.  He was frankly perturbed and shocked by what he had read and I was disgusted.  It's about referral fees and you would have thought that an accident lawyer like my colleague would have been able to take it in his stride, but not a bit of it!  You can read the article here:

Solicitors demand a kickback from barristers

It seems that the referral fee culture has extended the range of its corruption right into the solicitors' profession.  Solicitors requiring barristers to hand over a proportion of their fees for work done, or else they don't get the job.  It all sounds a bit supermarket, doesn't it?  You know, we want to run a special offer on crisps, so the crisp supplier has to drop his price by 50%?  Mind, at least the consumer gets cheap crisps that way, unlike the solicitor's client!

Why is it that solicitors refer work to barristers anyway?  There are two main reasons - to gain the benefit of the barrister's specialism for their client and to save their client cost.  If a solicitor starts selecting a barrister on the basis of how much the barrister will pay the solicitor to get the work, this is all going to go horribly wrong.  Let me explain why.

1.  Expertise.  When I am managing a client's case, there are often times when I need an in depth view of the law on a specific issue.  I pride myself on being a broad spectrum practitioner.  Specialism has its own dangers.  It has been defined as knowing more and more about less and less.  Or as I sometimes see it, as expanding one's ignorance at least as quickly as one's knowledge.


As a broad based lawyer, I can often see interactions which a specialist might miss - the interaction of divorce finances and insolvency, for example.  However, there are frequently times when my client needs someone who has total mastery in depth of an area of law - cue the barrister.  So my selection criteria are simple.  Who is it that has that specialist knowledge?  Put it another way, who is it that knows a lot better than I do?  Furthermore, having good counsel available throughout the country means that I can act for clients regardless of location.  The modern world of email and teleconferencing means that I am available to clients up and down the country and even abroad.  Any court hearings can be attended by independent counsel.  So expertise, both of solicitor and counsel, now become far more available to clients who are no longer restricted to using whichever firms are located near to them.

Now add to that a new selection criterion, who will give me a substantial kick back?  Immediately I cut out of the equation a set of experts who would otherwise be well placed to assist my client - i.e. the ones who refuse.  My client's available choice has been cut back sharply so that I can make money without working for it.  What's more, the most highly regarded and in-demand barristers are the ones who are likely to have the least incentive to say yes.  They have well established reputations and are not going to have to pay to secure work.  This almost certainly means that refusing work to barristers who refuse to pay for it will mean the client gets the lesser experienced and able barristers and not the best available expertise.  In short, the client loses out so the solicitor can cream off an additional profit.

2. Saving cost.  I select the right level of barrister for a particular job.  Not every case justifies using the most highly rated QC.  In fact most of them don't.  I'm looking for the right level of experience and expertise which can be bought at the right sort of price.  Family finance cases are about money, pure straight and simple.  Expend too much in legal fees and the whole exercise becomes self defeating.  On the other hand, you can spoil a ship for a ha'porth of tar, so spending wisely on good representation can more than pay for itself.  Using the right barrister can often be more economic than dealing with a hearing myself, even setting aside the issue of expertise.  Frequently they can charge a lower fee than my time would demand. 

Now add into the mix the idea that I'm going to demand of the barrister that s/he pay me 20% of his/her fee.  What will happen to fees?  Will the barrister meekly settle for a 20% income cut?  Of course not - prices are bound to shoot up to compensate.  And who will be paying those increased fees?  Some remote insurance company, as in accident claims?  No, it's going to be my client.  So by demanding a cut of counsel's fees, I would have significantly increased the cost of the case to my client - the person whose interests I am supposed to be protecting.  And what added value has my client received from me?  Well, zip all, naturally.

Let me make myself clear - I already consider that my profession has gone to the dogs.  Practices have grown up already which I find obnoxious.  Solicitors are shamelessly trying to overcharge in contentious matters, from what I can see.  If this practice becomes widespread, then it will simply show how utterly careless of their clients' interests solicitors have become.  No, there is no way I will ever be persuaded to join in.  My clients can have the benefit of counsel at a proper price.  I shall do my work and charge for it - I shall leave counsel to charge at a proper rate for theirs.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Pay peanuts, employ......?

I have to say that it was with complete incredulity that I read an advert in the Law Society Gazette last week.  I recognise that I am a little unusual in that I take the time to read the magazine.  So many lawyers I know seem to take a particular pride in not having the time even to remove the wrapper.  Unfortunately, that risks meaning that the recipient also doesn’t have the time to keep up on changes in the law and practice, which is bad news for their clients.

Anyway, there was this job ad.  I wasn’t really looking for a job, so I guess that I just stumbled across it.  It was placed by a company called CrimeDirect Ltd.  It’s situated in North Shields in the North East, so I did wonder just what direct crime it was in the business of providing.  Actually they serve criminals rather than supplying crime, directly or otherwise.  And, I hasten to add, those who are merely suspects and who may be, and often are, entirely innocent.  Specifically, they have the contract to advise persons arrested and being held at a police station.  The advice is provided over the phone rather than face to face.

It’s clearly a demanding job.  They want duty solicitors and accredited police station representatives to apply.  As I used to have the dubious distinction many years ago of doing just that myself, I read on.  The applicants will work three shifts per week.  Each shift lasts a full 12 hours!  Presumably there will be meal and comfort breaks, though this isn’t specified.  Shifts run from 9 am to 9 pm and from 9 pm to 9 am and you have to be prepared to work both – you can’t just opt for one or the other.  The service has to run 365 days of the year, so you have to be prepared to work on any bank holidays, including Christmas, if that’s when you’re rostered.

All this is, just as I say, very demanding.  As a solicitor or accredited representative you will have certain educational qualifications.  A solicitor will have a degree.  A representative will have passed what I rather hope is a rigorous written examination and practical assessments.  If you a degree, presumably you have student debt.  So what can you expect for this demanding job, supported by your previous studies and qualifications?

£15,000 per annum.  That equates to 8 quid an hour.  For enormously unsocial hours and conditions.  The national minimum wage, I would remind you, dear reader, is just over £6 per hour.

The candidates will be expected to advise suspects on matters related to their freedom from imprisonment, so that’s a huge responsibility.  If a suspect exercises his/her right to remain silent after taking their advice, that advice could potentially be picked over at length in court.

I don’t know which is worse – that someone actually advertises this salary, presumably in the belief that it constitutes fair remuneration – or that they may actually find staff prepared to work on these terms.  Just what will they be getting for this money?

Back in the early 1990's, there was the Royal Commission on Criminal Justice.  It was instituted after a number of prominent miscarriages of justice.  It identified various common features of these - a failure by the prosecuting authorities to give proper disclosure, a lack of legal advice in custody, forced or false confessions.  So the government of the day responded by limiting the obligation on the prosecution to provide disclosure and reducing access to legal advice.  Oh, and altering the right to remain silent by qualifying it.

And now, without enacting anything, the legal advice to be given may be by an underpaid member of staff at the end of a 12 hour day, having worked all through the night.  Perhaps even after a switch between an early shift and a late shift, with whatever effects that has on mental alertness and functioning.

I gave up criminal law and legal aid work over 10 years ago - why?  Well, for one thing because my family had to put up with the disruption to family life of my being on call and being called out at all hours of the day and night, and the money just didn't make it worth it.  But that doesn't mean that I stopped caring about justice, and there'll be even less of that around if this proves to be a "success"!

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

The referee's decision is final - even for the referee

 Judges aren't allowed to dither.  Judges have to decide.  And once they've decided, that's it.  They can't change their minds a few weeks later and turn back the clock.  If they've got it wrong, the most they can do is give permission to one party or the other to appeal it.

L-B children

This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case.  On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries.  In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved.  Not only was the decision clear, it was obviously very important indeed.

The local authority prepared a care plan for the two children of the family.  They were both to stay for the time being with their mother's parents.  There would be a final hearing in February to decide what the best long term arrangement would be.  Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.

In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case.  She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured.  So there was no longer a finding that the father had been responsible at all.  Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it.  The appeal which was filed was effectively a request for further explanation of the change of mind from the judge.  When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.

The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that.  It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it.  The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal.  But there has to be finality at some point.  Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.

In fact, this case now, sadly, will go to further appeal by the look of it.  The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either.  The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of.  A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

What do the National Secular Society and the Christian Institute wholeheartedly agree on?

Poles apart, you'd say, wouldn't you?  Well, they, together with noted campaigner, Peter Tatchell, want to see section 5 of the Public Order Act amended to remove the word 'insulting'.  This has all suddenly gained added topicality with the recent John Terry prosecution.  You can read the judgment here:

John Terry


Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress.  With John Terry, he admitted calling Anton Ferdinand "f...ing black c..." or perhaps "f...ing k......d".  I don't know that anyone could realistically say that this was anything other than insulting.  As the District Judge pointed out, whether or not JT is a racist was irrelevant.  True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.

The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI.  What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression.  I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not?  The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone.  To put it another way, should swearing constitute a crime? 

There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact.  At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon.  One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher.  Continuous repetition of that challenge should cause an alteration to the behaviour.  Well, that's the theory anyway.

Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender.  An example is the law of libel.  This exists to deter people from making defamatory and false statements against others.  The criminal law simply doesn't intervene in this area and never has.  No one suggests that it should.  Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest.  Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.

Of course it's not JT's language which bothers campaigning groups.  It's the uneasy thought that plenty of people all too easily take offence at their campaigning.  Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!

In fact, the campaigners have set up a separate website on the topic here:

Reform section 5

I particularly recommend a viewing of the victims page - some of them really do beggar belief.

The key statement of the right to free expression is set out in Redmond-Bate v. DPP.  You can read it here:

Redmond-Bate

The central sentiment and statement of principle comes late in the judgment.  It's one of the great legal expositions of human rights and how they should be honoured.

" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."

It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution.  Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed.  The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable.  If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying.  After all, we could still show them a red card as an alternative.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Vicky Haigh - an update

Just to update my earlier post about the Mail article on Vicky Haigh, it seems that my surmise was correct - new life in an earlier and dormant case came about because of a partially successful appeal by Ms. Haigh against sentence.

No judgment has been made public but this report appeared in the Worksop Guardian.

Vicky Haigh Appeal

So there was some reduction in the sentence but it what remained was very substantial.  I'm not going to pontificate as to the wrongs and rights of this - I wasn't at the hearing so I just don't know.  I'm starting to think that the only proper place to criticise a judge's decision is in the Notice and Grounds of Appeal.  Commentators should perhaps limit themselves to calling for law reform or supporting further appeals, if warranted.  Attacking a judge's decision in a specific case outside the court's procedures is fraught with danger and it's all too easy to become hostage to the partial truths and partisanship of those close to one party or the other.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Will the parents grow up before their children do?

Some years ago I appeared in a local county court for a mother in a Children Act application brought by the father.  The solicitor on the other side was a local practitioner of many years experience and asked me if we could go in to see the judge without clients first of all.  I agreed and we went in before the judge, an equally experienced family law judge.  My opponent introduced the case by saying, "This is one of those cases, ma'am, where we should all devoutly hope that the parents grow up before their child does."  Instantly, the judge knew exactly what to expect!

I had my attention drawn to this report from the Telegraph recently and it triggered my memory of that afternoon.

Childish adults

My instinctive response was, oh yes, we've all been there.  Thorpe LJ was just voicing what we have all thought so many times in the past.  Why on earth do intelligent people expose themselves as acting in what can only be considered an immature way in front of a number of independent professional people?  The whole atmosphere is so often one of tit for tat. Isn't it too undignified for words?

“It seems to me almost puerile; these very rich people distrusting and disliking each other intensely, so somebody has to come into the nursery to make some rules to dissipate all this nonsense.
“I simply cannot understand how the parties can litigate with such profligate extravagance.”

We aren't told what this pair have spent in legal fees so far.  I know I harp on about this, but it is quite important really.  I tell all my clients - I will advise you, as best I can, how much you could realistically hope to benefit by if you take your case to the next stage.  I will also tell you how much it will cost to get there.  If the first number isn't considerably larger than the latter, then there's no point in carrying on any further.  Unless, that is, you would rather I had the money than either you or your ex.

In this case there seems to be another factor to take into account.  The wife is saying that the original order, which gave her £26m, just isn't enough.  She seems to have managed to get that order overturned and is now waiting to go back to argue for more.  For whatever reason, she won't settle for more money than the vast majority of us could spend in several lifetimes.  Having lived with countless clients through the whole trauma of contested financial proceedings, I find it very hard to understand why someone who is to benefit from that sort of wealth wants to go through the whole thing all over again.  Why?  To be awarded still more money which you are unlikely to have time to spend before you die?

In 1985, we are told, the couple were penniless.  Now they can each leave their marriage with at least £26m.  Surely that's enough?  The saddest element, as always, is when you see that they have two teenage daughters.  What is the effect on these two of seeing their parents squabbling like this and being derided by a senior judge in such demeaning terms?
 

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Something new(ish) in the Vicky Haigh saga

Some little while ago I blogged about Vicky Haigh and others and reminded myself and any readers of the vital need to preserve confidentiality in children proceedings.  To my considerable surprise, I find that the Daily Mail is back on the topic.

Vicky Haigh, the latest

For those of you who haven't been following this story, Vicky Haigh is serving a prison sentence for breaching a court order that she have no contact with her oldest daughter.  The order was made because two judges separately concluded that she had made up false allegations that the child's father had abused her and she had then sought to persuade the child to repeat these allegations.

I really can't see why this article has been published.  There is no new material in it.  Vicky was sentenced over six months ago now and this was reported at the time.  The article itself is a masterly piece of fence sitting by the journalist. On the one hand there is a sentimental tone, apparently sympathetic to the plight of a mother separated from her child.  On the other hand, there is no criticism of the original decisions by the court that Vicky was author her own fate by treating her ex and her child in the way that she did.

So why the big article now?  I really have no idea.  Why do I return to the topic then?  Well it's because of one quotation which gives me some unease - "There are those who believe Victoria has been unjustly treated. Among them is MP John Hemmings, who says her imprisonment is ‘ridiculously harsh sentencing for what was a minor technical breach of a court order’."

Attacks on judges

There used to be an axiom in football - the referee's decision is final.  To go by what you see at football matches these days, that has long ceased to be the case.  A good friend of mine from times past was a rugby league referee.  He told me that at all levels of that game, the players, without exception, addressed him at all times as "sir".  His decisions were not attacked, whether or not they were good ones.  Of course, there would be days when his decisions were not perfect - after all, he is merely a human being.  It was recognised, though, that someone had to have the final responsibility to make the decision and clearly that couldn't be one of the players.

I have grave reservations about publicly attacking or criticising decisions by judges.  Do I always agree with them?  Certainly not!  Like any advocate, there are days I leave court shaking my head in puzzlement or exasperation.  But I'm not prepared to make public pontifications about how shoddy a decision may be.  Ultimately, the judge's decision has to be final.  Someone has to put an end to the fractious toing and froing and that job goes to the judge.  It definitely does not go to any politician!

The fact is that John Hemmings was not present at the trial and didn't hear all the evidence.  It cannot be for him, therefore, to second guess what the judge should have decided.  The reality is that the judge was in a much better position to form a view and did so.  What's more, it was his job to do this and no one else's. 
  
Update - it seems that the reason for this case reaching the press again is to do with Vicky Haigh's appeal against sentence.  I haven't located the judgment yet but it was reported in the Telegraph by Christopher Booker.  You can read it here.

Vicky Haigh - Christopher Booker

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Austin Kemp calls for........

My late mother had a rather odd ambition in life - she wanted to call for something.  She used to read the newspapers and wonder aloud just how it was that public figures could "call for..." something or other.  She always fancied having a go herself.  You know the sort of thing, I'm sure - "today the Archbishop of Canterbury called for...a ban on green bin bags," or whatever.  Sadly , so far as I am aware, my mother never quite fulfilled her ambition.  I hope to do a little better.

Last week, the Chair of the Family Bar Council, Nick Cusworth QC, called for reform to divorce law.  You can read about it here:

Nick Cusworth QC

Well today, Austin Kemp echoes his call for wide ranging modernisation of the Matrimonial Causes Act 1973 to give divorcing parties more certainty about what they can expect in terms of financial orders.

Perfect justice?  Perfect confusion!

There are certain legal terms I deeply distrust.  The court's inherent jurisdiction - "I don't know of any authority which specifies that a court can do this but I want this order anyway."  A general equitable remedy - much the same as inherent jurisdiction actually.  A broad discretion - "I can order pretty much what I want and don't have to explain why."

It's that last which I have the greatest problem with.  The judges in the High Court and Court of Appeal seem to love their broad discretion, conferred by the Matrimonial Causes Act, but it makes the issue of how to advise divorcing couples pure misery at times.  What is a party entitled to as their share of the matrimonial assets?  Whatever is fair.  And what is fair?  What the judge on the day thinks is fair.  Well that's a great help, that is.

The right to know what the law prescribes

The philosophy of criminal law is quite instructive here.  The purpose of criminal law is not to punish offenders.  It is to prevent certain unacceptable behaviours from happening in the first place.  So it is of paramount importance that the law should be so clear and unambiguous that anyone can reasonably be expected to understand what it is that they should not be doing.

I don't see why the same shouldn't apply elsewhere.  If the law is uncertain or unclear - and when it comes to finance in divorce, it's all of that - it seems almost to demand that only a judge can decide on what terms a couple separates.  In my view, however, the courts should be the destination of last resort.  To make court hearings unnecessary, it is vital that the present regime is radically reformed to give the clearest possible guidelines and rules to enable parties, with the aid of lawyers if necessary, to work out what each of them should have and what each of them should pay.

Yes, there will be some cases in which one or other of the parties can legitimately feel hard done by.  But there is an old saying, "hard cases make bad law", and it happens to be true.

Community of Property

Nick Cusworth is promoting a law of community of property.  This exists elsewhere in Europe - quite widely actually.  What is says, broadly speaking, is that property I had before I was married belongs to me alone.  Property I acquire through my efforts during the marriage is joint.  Property I acquire after the marriage is over belongs to me alone.  Property inherited by me during the marriage is mine.

Subject to one or two amendments, I think this is perfectly fair and should become the way we do divorce in England and Wales too.  So what are the critical amendments?

Well, firstly, my park bench principle should never be infringed.  If the outcome would leave one party living on a park bench where the other one has surplus resources, that's fundamentally unjust.  So there will have to be a power of the court to make additional provision for one party based on need alone.  Not fairness, not needs generously assessed, because we know where they lead.  Just need.

The second departure is justified by what is referred to as the compensation basis.  Some spouses give up lucrative careers in order to bring up their families.  They allow the other spouse to prioritise their careers instead.  In clear cut cases of this nature, and I emphasise the clear cut aspect, there can be justice in one party being required to continue to pay the other as compensation for losing the chance of that high earning career.

Apart from that, I don't see any inherent unfairness in a community of property regime and I see plenty to complain about in the system we have operated in England and Wales for the last forty years.  Change is long overdue.


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Same sex marriage and polygamy

In all the contention about same sex marriage, one issue was brought up on what might be termed the religious side of the debate, namely that to legislate for same sex marriage would lead to pressure to legalise polygamy. Now this has been described as a cynical ploy by those in favour of the government's proposal and I wasn't sure at first whether this was a genuine concern or not. Thinking through my earlier conclusions about devising and recognising separate religious and civil marriages, I rather think there may be some substance to what is being said.
Neil Addison published an article recently on the subject which you can see here:

Same sex marriage and polygamy - where's the link?

Now I'm not sure that there will be great pressure to recognise polygamy in English law, but giving religious marriage a separate and recognised status may do that quite unintentionally. Have a look at this:

Polygamy in the UK

Already it seems that there are increasing numbers of Muslims living polygamously and they are able to do this without infringing on their religious obligations because it is expressly provided for. Giving a legal status to the nikka means that polygamy gains a status in law which it does not and cannot have at present. On the other hand, if you choose to protect the present position by forbidding multiple wives either civilly or religiously, do you risk being seen to interfere in matters of religious observance? But, you may say, the practice of nikka in some quarters is already infringing on the legal position and we have chosen to do nothing about it. Why not allow Muslims to do whatever they choose? They are consenting adults, after all.

Is polygamy wrong in principle? As to that, I'm firmly with the British Colombian Chief Justice;
"polygyny contravenes women's rights to equality with the male, harms and impoverishes their children, and .... the practice harms ALL society in that it pits younger, poorer men against older, richer males in the search to collect women as concubines in their harems. (Mother Nature has not even made two women for every one man.)  Every man who helps himself to four wives is robbing three other men of the chance to have a wife and family of their own, thus making polygyny an anti-social act. As well, while the man has a choice of sexual partners every night, the women must line up and take their turn, just as if they were cows waiting to be serviced by the bull. Moreover, only the first, legal wife and her children are entitled to share in the man's income, pensions, health, dental and vision coverage, etc. The remaining women and their children are on their own, and face poverty. "

Even to consider altering the consistent monogamous stance of English law for as long as there have been records is, so far as I am concerned, unthinkable. Equally, however, to allow some individuals to circumvent the law is unacceptable. If this is happening, and in the light of the BBC report there is every reason to think that it is, the time has come for it to be confronted. As I mentioned previously, an entirely parallel jurisdiction is being constructed and this must be to the overall detriment not only of individuals who may be pressured into accepting it, but also for society as a whole. To me, this is a far more pressing issue than same sex marriage. I really do wish sometimes that politicians could get their priorities right.

 Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

How to make something really simple expensively complicated.

Some of you may have noticed the increasing hysteria, whipped up by newspapers and politicians, over the cost of car insurance.  Even I have emerged from my ivory tower long enough to blench at the cost of renewing the insurance on my family runabout. Drastic steps, we are told, need to be taken to bring down the cost to insurers of accident claims.  Chief among these are:

1.  Damages for sore backs and necks - usually averaging somewhere in the region of £2,500 per claim;
2.  Credit hire claims - where the victim of an accident hires a car on credit until his/her own is repaired or paid for as a total loss;
3.  Legal costs - which are now fixed in many cases at as little as £1,200.  The major element under attack is the payment of a referral fee, many of which went to the insurers in the first place, by which a solicitor acquires a client  at the outset.

Sweeping costs changes have been recommended to reduce the costs of accidents to insurers, in order that they can pass on the savings in lower premiums.  No or reduced success fees for lawyers.  Reduced fixed costs for the more valuable claims - up to £25,000 perhaps.

And then comes the next great cost inflator - and just like referral fees, it comes from the insurers themselves!

Royal and Sun Alliance

Coles v. Hetherton

What should an insurer pay for a car to be repaired?  Now you would think the answer to this is blindingly obvious - the amount it cost for the garage to repair it, duh!  Well it seems that this is not so.  Let me explain why.

RSA came up with a cunning scheme to make a profit from repairing cars instead of just from insuring them.  All with relatively little need to fix them themselves.  What they did was this; first they set up a company called RSA Accident Repairs Ltd.  Then they assigned to it a trading name - MRNM.  Doesn't look too much like RSA, does it?  MRNM opened six garages to do motor repairs and 15% of the repairs carried out on RSA policy holders' cars were carried out in those garages.  Or to put it another way, 85% weren't.

Those 85% were repaired at independent garages, who duly invoiced MRNM, for the work they had done.  Then MNRM billed RSA an amount which invariably exceeded what it had paid to the garage.    Then, of course, RSA demanded that the other driver's insurer pay the MRNM charges, not the garage's.  "RSAI accept that the model described generates income for MRNM which is a company in the same group as itself, though not a subsidiary."

So how is this justified?

RSA has two justifications for this system.  In the first place, it says that a private individual would never get the preferential rates it can negotiate with repairers due to its buying power.  It doesn't see why that benefit should be passed to the other insurer - it retains that benefit by this system.

Secondly, it points out that other insurers have different methods of ensuring a similar outcome, such as charging garages a referral fee for passing their drivers to them for the repair work.  RSA is just generating a profit for a group company by a slightly different route.  Obviously a garage which has paid a referral fee to get the work has to recoup it by increasing the cost of the repairs, in just the same way that a law firm does when charging for the personal injury work arising from an accident.

And the legal analysis?

Well it seems that this is actually quite complicated.  The judge points out that the measure of damage is actually the reduction in the value of the car resulting from the accident.  Commonly this is taken as being the reasonable cost of repair because after a repair, clearly the value of the car will have been restored to its pre-accident level.

But what is the reasonable cost of repair?  Is it the amount actually paid to put the damage right or is it the amount the car owner would have had to pay if the insurer hadn't negotiated a better deal?  You can read the judgment if you wish, but I can tell you that it goes over a number of cases stretching back more than 120 years and which in the main part seem to concern ships.  The judge concluded that the actual amount paid to fix the car does not determine the level of compensation to be paid for the reduction in its value.

What should be done?

Parliament is already legislating in this area.  It's declared intent is to protect the interests of car owners by driving down premiums.  Good.  So let's see if our MP's are actually prepared to do just that.  Why leave this in the hands of the courts and cases about ships from the 19th century?  Just enact a nice simple bit of legislation which provides that the measure of damages in a motor accident which can be recovered for the repair of a car is what it actually cost to fix it.

The stupid thing is this - all these cunning schemes, demanding referral fees and the like, increase the amount of money sloshing round the motor insurance industry, but don't improve the insurers' profitability.  Every referral fee received by an insurer simply has to be paid out again as suppliers add it to their own charges.  There's a huge oncost but no additional benefit for anyone.

Is it too much to ask that insurers revert simply to insuring drivers against known risks and leave fixing their cars to mechanics?



Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

How many types of marriage are there? How many should there be?

This week sees the end of the period of consultation for the proposed introduction of same sex marriage.I have been thinking this over ever since the proposal was first mooted.  From a family lawyer's perspective, I am coming to conclude that the law of unintended consequences is likely to kick in if this is enacted and rather more trouble is going to come out of it than was ever foreseen.  Let me explain what I mean.

Religious marriage and civil marriage.

In its consultation document on same sex marriage, the government says, "Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony."

They then go on to say, "From [these] discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done."

So I got to wondering, is this right?  Are there two different types of marriage recognised in law, religious and civil?  You know, I don't think there are actually.  And what's more, as I have thought this through, I think it's enormously important that there shouldn't be.

The Marriage Act 1949 (as amended)

The Marriage Act 1949 governs marriages in England and Wales.  It has been amended down the years but it cannot be simplified in the way that the Government's consultation suggests.  Part I of the Act deals with who can and cannot be married.  Part II deals with marriage in the Church of England.  Part III deals with marriages under a Superintendent Registrar.  Now that looks like the establishment of two separate types of marriage, religious and civil, until you look at s.26, which falls in the Registrar's half of the draw.  This sets out the Registrar's authority for marriages in various establishments, including synagogues and Friends Meeting Houses (Quakers).

So the extent that there is a distinction in law, it's between Church of England ceremonies and all the rest.  In fact, the longer you look at the Act, the less easy it is to make any clear cut separation into the two categories which the Consultation suggests.

This came to the fore recently in a High Court decision which concerned what the "husband" and the "wife" at the time saw as a valid marriage  but which wasn't.  You can read the judgment here -

Dukali v. Lamrani

The parties in this case went through a ceremony at the Moroccan embassy which they believed, and were advised, was valid in both English and Moroccan law.  As Holman J determined, though, it wasn't.  As a result, English law makes no provision for the wife on the ending of the relationship.

But why is it important?

Well, whether you like it or not, various religions teach uncompromisingly that same sex sex is morally wrong.  As marriages can presently be celebrated in a variety of religious premises, if same sex marriage is approved, on the face of it, it would be a clear breach of equality legislation for a church to refuse a same sex marriage ceremony to a gay couple. So the state would be seen to have legislated in a way which requires a religious body, presently entitled to institute a valid marriage, to do so in a way forbidden by its religious rules.

By trying to establish two separate identities for marriage, the government clearly hopes to sidestep this issue.  But will it work?  As I say, I don't believe that the Marriage Act is open to this interpretation anyway.  The only real distinction arising by virtue of the Act is valid marriages and invalid ones.  Any ceremony or celebration which does not comply with the provisions of the Act simply isn't a marriage.

Even if the Act did draw a valid distinction, this doesn't solve the problem.  Neil Addison is a practising barrister who happens also to be a Catholic.  He has pointed out on his blog that European law doesn't permit different treatment.

Religion law blog

He cites an authority to the effect that the European Court "reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage."  To be quite honest, this should come as no sort of surprise at all.

So as far as I'm concerned, to provide for same sex marriage, the government will first of all have to legislate for there to be two forms of marriage - religious and civil. This is the only way I can see for there to be two separate systems and might, and I would emphasise that this is by no means certain, might allow for religions to continue with ceremonies which excludes same sex couples.

The law of unintended consequences

I was quite shocked early this year (I think it was) to read an account of a family law seminar at which a solicitor from a leading practice, who is himself a Muslim, stated that probably around 85% of Islamic marriages are not valid in English law.  I have since asked one or two practising Muslims of my acquaintance if this accords with their perceptions and they confirm that if anything, it's an underestimate.  Muslim couples are going through a ceremony at the mosque, which is valid in the religious context, but they are not then going through the formalities needed to register themselves as a married couple according to the law of the land.

This in turn means that women in particular are at risk of losing out.  As they have no recourse to the divorce courts of the land, they are left reliant on the sharia courts only if the "marriage" fails.  So by the back door, we find different communities living according to entirely different jurisdictions and principles.  I really struggle to think of anything more divisive!

All citizens of the country should be subject to the same law.  Everyone should have the same rights before the law and all should have identical responsibilities.  This, I believe, is of fundamental significance and is a bedrock of society.

I therefore would hotly oppose any proposal which separates and legislates for different forms of marriage.  There should be one form and one only.  There should be nothing to encourage the legitimisation of a separate religious status which deceives parties into thinking they have legal protection and recognition when they do not.  Indeed I would go further - I would much prefer to see legislation outlawing ceremonies which purport to be valid marriages when they simply aren't.

Are two separate jurisdictions feasible?

At present, we have one simple question at the outset of a divorce case - are the parties married? Without a marriage, there can't be a divorce.  Without a divorce, there can't be any invocation of or reliance upon the financial provisions of the Matrimonial Causes Act.

Now if we have separate forms of marriage, the courts risk becoming reliant on religious bodies deciding whether parties have been validly married or not.  And as we all know, religious authorities seem quite skilled at disagreeing even on the fundamentals of their own beliefs!  Is this really what we want?

The alternative is simply to say that as with the present day Islamic marriage, it will just have no legal recognition and no access to remedies on divorce.  For me, that would be the worst possible outcome.  Already we see at least one community withdrawing into itself in this area of law.  We should be legislating against this, not to encourage it.  A fractured and divided society is highly dangerous - both history and current affairs should make this entirely clear.  I think there needs to be a much more careful and reflective approach to this whole question.  If the price to be paid for this proposal is to drive certain communities to turn in on themselves and opt entirely out of the civil law, this would be far too costly.




Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Contraception anybody? Or, if you're not married, how do you get your hands on his money?

I recently had my attention drawn to a case reported in 2010 about an unplanned pregnancy.  Of course there are any number of these happening all the time.  This one, however, ended up with the parents facing each other in the High Court.

DE v. AB

It's pretty hard to have sympathy for either parent here.  As Baron J explained: " It would seem that the mother was convinced that she was in love and that the father's intentions were honourable. He, on the other hand, considered the relationship to be casual and merely sexual."  Nothing too striking there then.  Just another commonplace story of a naive mother and uncaring father, it would seem.

"The mother, once pregnant, was anxious to have the child whereas the father was shocked when he learned about the impending birth. He advised her to obtain a termination."  And that's par for the course too.

Now there's an interesting freudian slip in the next line of the judgment, where Baron J, who was hearing the father's appeal against an order of a District Judge, refers to the mother as the wife - she wasn't!  That's very important.  She was entitled to be paid by the father solely for the benefit of their child - not in her own right.  So what happened first, unsurprisingly, was an application to the CSA.  It doesn't seem to have yielded very much though.  Apparently less than £300 per month was being paid at the time the High Court was dealing with the father's appeal.  Now I appreciate that plenty of parents would be delighted to receive child maintenance measured in the low hundreds each month but the other circumstances of the case rather change one's perspective on this.

The mother

Well, she had had a good job - she was 37 and had been earning £60,000 p.a. gross.  Trouble is, she had lost that job and was evidently struggling to find a new one.  Her mortgage, get this, had been £570,000 when she bought her house and she had increased it after losing her job and it now stood at £600,000.  Interest only, the mortgage cost £30,000 p.a., equivalent to the first £42,000 of income in its entirety.

By the time of the appeal, the mother also had credit card debts of over £83,000 and overdrafts of almost £28,000.  She had kept herself above water only with help from her family.  For myself, I should have thought that bankruptcy would have come as a relief, if only she had been advised to petition for it.

The father

The father was 39 at the time of the appeal.  He too had had a good job, from which he had been made redundant.  The redundancy payment, in 2004, was over £950,000, but it was a little unclear whether this was net or gross.  The father had a London house with a mortgage on it of £600,000.  Use the redundancy money to pay off the mortgage?  Nah - take a three year sabbatical from working instead!  Then have unprotected sex with mother at the end of the period and presto!  Furthermore, the father instead of paying off the mortgage, increased it to invest in a business!  By the time of the appeal, it looked as if the business had effectively failed, there would be no capital return and father was looking for a job.

Good grief!  It's not as if the parents weren't old enough to know better either.  They were in their mid thirties when all this was going on. Despite the realities of the situation, both of them told the judge that they wanted to keep their respective houses, though Lord alone knows how the mortgages were supposed to be paid.

The application

The mother applied to the court for provision under Schedule 1 of the Children Act.  Because she wasn't married to the father, she had no other claim in law.  So what can the court order?

1.  Maintenance, but only if the father (in this case) has income of more than £104,000 net p.a.
2.  A lump sum, or several lump sums.
3.  A transfer of property  to the child or to the Applicant.
4.  The settlement of property in trust for the child.

The whole point of this legislation is that it is not intended to do fairness between the parties - it is solely to make proper provision for a child. Unlike the Matrimonial Causes Act, there is no power to order the sale of property.  In the context of this case, that's quite important.

So what happened?  Well at first instance, the District Judge ordered:
1. Father to settle £250,000 on trust for the child for housing purposes.  This would revert to the father when the child reaches 18;
2. Father to pay mother a lump sum of £85,000.  £40,000 would repay her legal costs and the rest would go to reduce her debts.

Now the effect of this was that the father would have to sell his own house to be able to make the payment ordered.  The court couldn't make an order for sale, but the order to make a settlement effectively did the same.  The net proceeds of sale would amount to just £358,000, so the order would wipe most of his capital or put it beyond his reach for years to come.  So he appealed.

To a limited extent he was successful.  The High Court trimmed £45,000 off the total lump sum. This is how the High Court put it: "Assuming no further payment, the total sum which the father will have to pay from the £358,000-odd equity in his home is a total of £290,000. This will leave him with capital of £68,000 less his costs. That sum will provide him with a modest deposit for a flat for himself. Given his superior earnings and his current supposed wish to pursue work abroad, that, as I perceive it, is fair." (emphasis added).

So even when he was not married to the mother, the father is deprived of the use of the overwhelming majority of his capital for at least 16 years.  He won't recover it until he himself is 55 years old.  Still, unlike in a divorce case, he will at least be assured of recovering it one day.  By contrast, the mother finds herself guaranteed a modest house to live in until she is about 52 or so and then she has to rehouse using only her own resources.  Put it another way, she has 16 years or so to save up £250,000 to repay the father and given her saving habits up to now, that's more than a radical change of approach to life.

All this for want of a very basic precaution!




Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Litigants in person 1

There's been a High Court case reported recently which has some interesting observations about people who represent themselves.  You can read it here:

Maloney v. Filtons Ltd.

Now the case itself is a bit of a rare specimen which concerns the receiver of some property - not a commonly encountered set of facts or law (well, not for me at any rate!).  The interesting bit of the judgment is in the preamble.

"Until shortly before the trial the Defendants were represented by solicitors and had Leading Counsel...", "Throughout the hearing the Defendants were represented by one of its Directors, a Mr Moshin Kothia. Mr Kothia presented his case extremely lucidly and tenaciously and I pay tribute to his efforts in that regard. However, Mr Kothia, of course, is not a lawyer and it follows that things were missed of a legal nature which would never have occurred to him as a non lawyer."

Now there's the rub.  It rather looks as if the Defendants ran out of money to employ expensive lawyers shortly before the trial.  Their director seems to have done really a very good job in the circumstances and the judge was clearly very complimentary towards him.  However, it's a matter of simple commonsense that an experienced specialist lawyer is always going to be at a considerable advantage in court.  If that were not the case and our profession were simply a matter of smoke and mirrors, we'd have been exposed as snake oil salesmen years ago.  Please resist the urge to add an obvious comment about lawyers at this point!

"This case as this judgment will show demonstrates the difficulties a court faces at a trial when one party is unrepresented."  "It is always difficult to assist the litigant in person without giving the represented parties the impression that they are being punished for having representation."

The judge explains how it falls to him to ensure that the Defendants' case is properly aired at trial where the Defendants don't have competent trial counsel.  In other words, the judge has a great deal more to do. But as the judge makes clear, he cannot and must not descend into doing the Defendants' job for them.  There's a very difficult balance to strike and inevitably there will be times when the balance ends up skewed in one direction or the other.

With the impending demise of Legal Aid for family cases, I confidently predict that the present trend for parties to appear in court without legal representatives is going to increase dramatically.  It does absolutely nobody any favours.  Self representing litigants, as I understand the new terminology is going to be, will be at a disadvantage.  Judges will have to undertake far more case analysis and questioning of witnesses.  Lawyers, as the Claimant's QC in this case, will have to tutor the lay party in court procedure at their own client's expense.  New challenges for all - the timid should start looking for the exit doors right now!



Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

There is such a thing as common law marriage!

I give a Michael Caine "not many people know that" award to James Turner QC, who posted on a recent linkedin discussion I started (you can view it here: cohabitation cases) and confounded me with something I genuinely didn't know - there are actually legally valid marriages which are not compliant with the Marriage Act or are recognised foreign marriages.  Nope, I never knew that.

However, don't get too excited about this.  It is no help at all for those who simply live together in England and Wales.  It's one of those very rare specimens which is designed for exceptional cases.

" It relates to a marriage that has taken place..."

In other words, there is something more than just living together.  There has to be some event which signifies that a marriage has taken place.

"that has taken place otherwise than in accordance with the requirements of the lex loci celebrationis..."

But whatever marriage there was doesn't comply with the law relating to marriages in the place where occurred.

" in circumstances where it would offend public policy to require compliance with the relevant local law..."

This isn't clear until you consider the example given - two people getting married in a concentration camp.  It would be outrageous to say that if you didn't go the register office, you couldn't be married, in those circumstances!

Now all of this may sound pretty academic here in the UK.  In the rest of the world, however, it may be far from esoteric.  In some jurisdictions, marriage between people of different religions or ethnic groups are or have been forbidden.  If such a couple reaches this country - seeking asylum, for example - it is entirely right that English law should recognise their marriage.  So it does.  However, where there is nothing to prevent a couple from marrying in their own country or circumstances but they just don't do so, English law treats them as being unmarried, and why not?


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

If ever tha does owt for nowt, allus do it for theesen!

I ranted a little while ago about a Mail article which suggested that it was easy to fall foul of a property claim from your unmarried partner.  I strongly disagreed- see here just to remind yourself:

what can the Daily Mail teach us about Family Law?

A classic example of why this just isn't so has been reported in the Court of Appeal.  You can read the report here:

Geary v. Rankine

It's a commonplace story - one I've heard in different minor variants many times over the years.  Mrs. G formed a relationship with Mr. R.  They began to live together.  They had a child together.  A few years after they got together, Mr. R bought a business - a guest house.  He bought it with his savings and in his sole name.  Clearly there were two distinct assets here - the premises and the guest house business which operated from it.  After a little while, the two of them moved to live at the guest house and ran the business there.  12 or 13 years later, the parties separated.  Mrs. G claimed that she was entitled to part ownership of the guest house.

The Business

What Mrs. G said was that she had worked unpaid in running the guest house.  The judge found that she had cooked, cleaned and done much of the paperwork.  She described Mr. R as being controlling - she only got money if she asked for it and needed it.  Mrs. G claimed that she was a partner in the business and also had joint ownership of the guest house itself.  The judge decided that she was not a partner in the business.  She had not been held out as one, the accounts didn't show her to be one, she hadn't received drawings and there were other reasons and explanations which were very much to the contrary.

If you work for someone you love, that does not of itself place you in a business relationship with them.  Working for them for nothing makes sense in its own way.  Family income is used for the benefit of the family.  If Mr. R's income was used to provide for the family, working for nothing in his business increases the benefit to the family.  What it doesn't do is create any legal rights or obligations.

The Building

Mrs. G said there was a common intention that she would have an interest in the building itself.  She said that although it had been bought originally for Mr. R alone, that had changed.  What the Court of Appeal emphasised here was that it had to be a shared intention - i.e. both of the parties needed to be agreed on it.  Mrs. G pointed out that she had given up her job in London at very short notice to go and live at the guest house to help get it back on its feet.  She said that that was evidence of a common intention that they would operate and own the business together.  The judge who decided the case and the Court of Appeal were agreed that that simply wasn't enough.  Whatever she thought was the case, she had to prove that Mr. R thought the same and that was always going to be very difficult indeed.

Why bring the case?

Reading between the lines, it seems to me that there were two main motivations for Mrs. G maintaining that she should receive some of Mr. R's property.  The first was that she deserved it.  She had worked very hard over the years and did things which seem to have been beyond Mr. R - like paperwork, for example!  So she had, but that isn't how this branch of law works.  If they had been married, the court would have had no problem in saying that they had both made equal contributions to the family welfare, he by buying the place, she by working in it.  That's fine where s.25 of the Matrimonial Causes Act is in play but it's irrelevant if it's not.

The second seems to me to be that Mr. R was a difficult man to live with.  He was controlling and mean with money.  In other words, he should be penalised for not being nice enough.  Again, that's just not relevant.  Even in divorce cases, although we see that sort of reasoning often, it cuts no ice at all.

Taken together, these may make Mrs. G aggrieved but they don't amount to a legal claim.

The Lesson

If ever tha does owt for nowt......  Just because someone else has benefited from your hard work, that doesn't mean you have a claim on their property.   So if you're going to work hard, make sure that you get something for it!  Don't, whatever you do, rely on the good nature and honesty of the person you do it for.  That's what generates cases like this and the legal fees which accompany them.  I have to say, this case really doesn't set any new precedents and I find it hard to see how it ended up running the distance in the first place.


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Would you rather your solicitor suspended you or terminated you?

Of all the tawdry squabbles I deal with, few are more bitterly disputed than attacks on a solicitors entitlement to be paid.  So of course, I love them! Now the concept of your solicitor as Arnie, the Terminator, may not spring to your mind, nor as a sort of latter day Pierrepoint (Albert Pierrepoint).  However, the distinction between being suspended or terminated, it's now clear, could be worth a lot of money!

The law recognises that solicitors are in a particularly good position to be able to overcharge their clients and it has given clients the right to have costs reviewed in detail either by an external assessor (via a remuneration certificate) or by a costs judge.  The rules which apply to these applications are fairly complicated and in some respects favour the solicitor, who knows (or should know) what they are.  However, there was a very sobering judgment some time ago in a case called Buxton v. Mills-Owen.  This ultimately resolved in the solicitor's favour, but only after it reached the Court of Appeal.   However, what the court accepted was that if a solicitor doesn't have a valid reason to terminate a retainer, he/she can't charge for any of their work at all!  In other words, if a solicitor doesn't see a case through to the end and doesn't have a good reason for baling out, he/she has to refund all the fees charged up until that point.

And that's what occupied the Court of Appeal in a recent case reported here:

Cawdery Kaye Fireman & Taylor v. Gary Minkin

The court, to cut a rather long story very short, had to decide whether a client was entitled to a refund of all the fees he had paid.  It was a case in which the client had fallen out with his solicitor during an application for a non molestation injunction and ouster order - a pretty commonplace family law situation.  The firm gave a costs estimate of £3,000 plus VAT and then very shortly afterwards increased it to £3,500 plus VAT - a little over £4,000 at the time.  However, barely a fortnight later, the client received a bill for just short of £5,500 in total - over a third more than the estimate.

What occupied the court then was deciding exactly what had happened next.  According to the client, the solicitor terminated the retainer because he didn't pay the whole of the bill.  Where it all gets rather bizarre is that the shortfall on what he had paid was just over £2,700 out of a total of just over £5,700.  And this went to the Court of Appeal, remember!  The client asked the court to assess his solicitor's costs.  The assessing judge did two things - first of all he said that the retainer had been wrongly terminated, so the solicitor should reimburse all his costs.  Secondly he said that if he was wrong about that, he would assess the bills.  He reduced them to the figure of just over £5,700 - a reduction of just over 20%.  £7 more than 20% actually.  Once the court has reduced them by over 20%, it's the solicitor who has to pay all the costs and in this case the client's costs amounted to £17,650!

The solicitors appealed.  The Court of Appeal agreed with them that what they had actually done was suspend the retainer pending payment of their bill, not terminate it.  It was the client who had terminated it because they wouldn't take any further steps until they were paid.  As a result, the client remained liable to pay them the £5,700.  However, the solicitors were still lumbered with the costs of detailed assessment, which amounted to more than three times the amount they recovered.  Now I daresay that the client would have had to pay the costs of the appeal, amount unknown.  So who were the losers?  Clearly both of them!  Sadly, not unusual in litigation.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.