Monday, 28 May 2012

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 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.

Thursday, 17 May 2012

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 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.

Thursday, 10 May 2012

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 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.

Wednesday, 9 May 2012

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 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.

Tuesday, 1 May 2012

The Leveson enquiry

I have a big birthday this year - I have so got to have one of these!

a lawyers ideal present

Blog Disclaimer: Nothing in 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.

Is marriage a good thing? Should it be encouraged?

There's a lot of excitement about Sir Paul Coleridge and his Marriage Foundation at the moment. Sir Paul is a High Court judge in the Family Division and sits in very heavy weight family finance and children cases.  He sees the proliferation of divorce as a pernicious and damaging feature of modern society, which needs to be rolled back.  The Foundation he has started is a first step in reestablishing marriage as a durable and indeed permanent relationship.  Well, that's the plan anyway.

Just have a look at how the Telegraph and Mail have presented the new initiative:

The Telegraph

The Daily Mail

Let me put my cards face up on the table - I've been married for just a few months short of 25 years now and I'm in no kind of hurry to change that.  However, for over 16 years I have been a divorce and family lawyer for at least 50% of my working day, so I'm not exactly unfamiliar with why marriages fail.  I regard divorce as being a bad thing - an admission of failure.  However, I am entirely certain that sometimes it's an entirely necessary thing.  Often I have wondered how it is that a client has persevered with a marriage which has been clearly very damaging to him/her and, very often, her/his children.  Abusive relationships are not something to hang onto and in fact we know that abusive behaviour is learned and cascades down the generations if someone doesn't take action to break the cycle.

The truth is, some people really try hard to maintain a marriage and others just have little if any real reason to bail out.  One thing I am certain of - by the time people reach me, it's far too late to put the marriage back together, 95 times out of 100.  As a result, I simply don't sit in judgment on my clients.  That's not my function.  I don't have to believe in the inherent justice of my client's cause to do a really good, professional job.  I'll do that for anyone at all.  Some people have difficulty understanding that - they want me to affirm my belief and personal commitment to their cause.  I can't do that because if I start doing so, I will end up assessing and judging my clients and that wouldn't be right.  I'll always advise them on the strengths and weaknesses of their case but I won't pass moral judgment on the choices they're making.

Now whatever your marital status, you'll have your own take on things.  At the other end of the spectrum from the Daily Mail lies Natasha Phillips of Researching Reform.  She comments on it here:

Researching Reform

So in the blue corner we have the Mail saying that this judicial initiative is something the country has needed for years and in the red corner we have another commentator saying that it renders Sir Paul unfit for judicial office!  Quite a polarisation, you may think.

Unfit for the profession.

I confess that I am becoming more and more troubled by the number of occupations which are now deemed to be closed to people who in good conscience find themselves either uncomfortable with a part of the duties of the job or find them unconscionable altogether.  Midwives who are against termination cannot seek duties which do not include management of abortions, registrars who do not approve of civil partnerships likewise and now judges who are less than starry eyed about divorce seem to be in the firing line.

If I were disabled, I would have a right to expect reasonable adjustments by my employer to enable me to continue working, and this might include allocation of duties.  If an employer institutes a policy which prevents female employees from accessing some sort of benefit, for example because they generally have greater family responsibility, they run the risk of being found to have acted in a discriminatory fashion and be liable for compensation.  However, if you are found not to share the opinions of our liberal elite, you run the risk of being deprived of your very livelihood.  Natasha, in reply to one comment on her post, is saying that the mere fact that Sir Paul has a jaded view of divorce means that he is clearly incapable of implementing the law and complying with his judicial oath.  Therefore, he's got to go.

I'm sorry but I just can't agree.  I worry that we're losing the right to disagree.  Why can't we allow people some scope to be who they are?  Why is it vital to impose our own world view on others?  That's the very antithesis of liberal democracy, so why is it happening?  Why on earth is it so unforgivable to promote healthy and fulfilling marriage, especially where the proponent is someone who has direct, relevant and downright comprehensive knowledge of the alternatives?  So not everyone is going to succeed in building those marriages - we divorce lawyers are there to help them.  But there's no reason why we shouldn't aspire to the best and do anything we can to build and support it, is there?

Judges should be passive

What I think Natasha wants to forbid is judges becoming proactive and she is insisting that they remain reactive.  On her terms, a judge is allowed only to deal with the individual and not the general.   Sir Paul is effectively saying that his conviction is that a good marriage is a good thing and benefits society generally and children in particular.  This may be based substantially on his experience as a judge and dealing with the unfortunate individuals who have appeared before him, which would mean that he is applying his knowledge of the particular to draw conclusions of general application.  Why should he not be entitled to do this?  Having seen first hand the misery which broken relationships bring, why should Sir Paul not be entitled to try to do something to help people avoid them?

Other people's insecurities

The real issue with Sir Paul's Foundation, it seems to me, is that it treads on a lot of people's corns.  Quite a number of people with failed marriages seem to take it as an implied personal criticism if someone raises marriage as an ideal.  Likewise, there seems to be extreme insecurity with those who cohabit and are not married.  Of course in the latter case, insecurity is justified as their legal position is hugely different from those who are married.  I suppose it's the idea that society might sit in judgment on our relationships and their failures and say that we have fallen short of the mark which makes some react with what verges on hostility.    And in the face of hostility, I don't have the most optimistic feelings about Sir Paul's chances of engaging with the unconvinced!

Blog Disclaimer: Nothing in 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.