Up for an Update? Padden v Bevan Ashford rides again!

Diligent readers of the blog will remember me commenting on Padden v. Bevan Ashford Solicitors. You can quickly refresh your memory on the case revolving around the free half hour here:

The end of the half hour free interview?

You’ll never guess what’s back in the courts – 

Padden v. Bevan Ashford

That is correct, the re-trial of Padden v Bevan Ashford has taken place, and back to the Court of Appeal again! 

My gripe with the first Court of Appeal decision was that I considered that it just didn’t have regard to the realities of giving  a half hour free advice.  The course the Appeal Court said should have been followed just doesn’t reflect the realities of day to day life in the High Street.  Reading between the lines of the HHJ Vosper’s decision, which was under appeal, I have a feeling he had at least some sympathy with that view.  He couldn’t go behind the earlier decision of the Court of Appeal, that the newly qualified solicitor (now known to be a Ms. Shinner) had been deficient in her first meeting with Mrs. Padden, but at paragraph 16 we get a different flavour of that first meeting.

The judge notes that the claimant was “evidently distressed and in a rush to be back home as soon as possible”. So quite how much attention Mrs. Padden was giving to what Ms. Shinner had to tell her is doubtful.  Despite this, Ms Shinner took pity and decided to help. A human lawyer!  One who wanted to help a person in distress – not quite conforming to popular stereotype, one might say, but more common than is generally realised.

“Ms Shinner advised the claimant that she was not doing the right thing, and advised her not to sign any documents. Ms Shinner must have based that advice on her appreciation that paying off Mrs Partridge might not stop a criminal prosecution.” So the judge, upon looking with care at what happened at that first meeting realises that Ms. Shinner’s advice was focussed more closely on the key issue than perhaps the Court of Appeal first time round had realised.  If only Mrs. Padden had chosen to follow that advice!  Both she and her solicitors would have been so much better off.

The judge also said, “I find that Ms Shinner told the claimant that she was taking a huge or a big risk, and the risk to which Ms Shinner was referring was the risk that Mr Padden would face criminal charges despite the claimant's giving away her interest in the assets.” I guess this is as close to saying that she wasn’t so very negligent as a judge could reasonably get, given the earlier decision, and I commend this analysis.

Now what happened after Ms. Shinner ended her involvement was rather more of a problem, unfortunately.  A colleague wrote to confirm that “I am satisfied that this signatory understands the nature of this Deed and its meaning and effect and to the best of my knowledge has freely consented to it without undue influence or duress or in reliance upon misrepresentation.” (emphasis added).  It’s the italicised section which really seems problematic.  What’s more, he doesn’t seem to have made a note of that meeting, so he couldn’t remember what happened at it.  This was a very serious certification to have made and the lack of a record of that advice was critical.  The whole episode shows that routine certifications should not be readily available.  A solicitor has to spend serious time finding out what the whole transaction is about.  A serious charge should be made as there are serious consequences for the solicitor who gets it wrong – over £67,000 worth of consequences, actually!  Oh and the other thing?  Free advice?  So many of us now will just say no. 

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.

Is getting engaged detrimental?

I see that my old friends at Baxter Caulfield have recently entertained themselves with a successful visit to the Court of Appeal over a decision of our local County Court in a property dispute between a woman and her fiance.  You can find the judgment here:

Smith v. Bottomley and his company

Now on the face of it, this is, dare I say it, just a routine cohabitant dispute.  The story seems to be that the parties formed an intimate relationship in 1992.  They got engaged and had a child together, who was born in 1994.  In 1995 they broke up and Ms. Smith moved out, never having quite got round to marrying.  In 2001 or 2002, after having re-formed their relationship, they became engaged again but again never quite getting in front of a Registrar.  In 2002, they bought a house together, with a trust deed specifying their respective shares.  Mr. Bottomley got the greater share as he made the greater initial contribution to the purchase.

Now Mr. Bottomley had acquired other property down the years.  In 1985 he had bought The Coach House, where he had lived and where he still carried on his business.  He had bought some land adjoining it in 1995 and in 2000 he bought a property called The Mill.  The Mill was transferred to a company Mr. Bottomley formed in 2002 and later in the same year, the company sold it for a substantial profit.

Ms. Smith claimed "When I agreed to move back in with him again he said he would put everything 50/50. The agreement covered everything. He said he wanted to give me peace of mind. Coach House Properties [the Company] was [Mr Bottomley]. He said everything we have is 50/50; he did not go into detail. The company was Mr Bottomley."

Why is this important?  Well, because they weren't married of course.  Had they been, the legal title of the assets would be relatively academic as the court in divorce proceedings possesses the power to order the transfer of ownership from one spouse to the other, or the sale of property and payment of a lump sum.  They weren't, so it couldn't.  All Ms. Smith would be entitled to would be what she owned as a matter of law.

Once the company had sold The Mill, it bought The Barn.  It still owned this at the time when everything came to an end.  In 2010, the parties separated again, this time for good.  Ms. Smith brought an action claiming a half share of the Barn.  There are two interesting legal points in the Court of Appeal decision.  The first, which they fail to provide an answer for, is about detriment.  A promise, on its own, is not binding against the person who makes it.  For it to be enforceable, the recipient of it needs to show that she did something to her detriment in reliance on the promise.  So what did Ms. Smith do which was detrimental to her?  "she (i) agreed to marry Mr Bottomley and (ii) gave up her independent accommodation, in which she had lived since the end of her first period of co-habitation with Mr Bottomley."  Well, that was her case, anyway.

How can it be argued that agreeing to marry someone amounts to detriment?  If she gave up a promising career to further the engagement, that might make some sense.  If she gave away property of her own in reliance on her new-found joint ownership, that might too.  Just getting engaged - well, I can understand why the judge at first instance seems to have skated straight over it in his judgment.  How anyone seriously thought that could be good enough is something I struggle with. In fact, the judge ignored completely the lengthy submissions from both barristers on the subject of detriment but it is an essential element of the test to decide if Ms. Smith had acquired any ownership of the property.  Frustratingly though, the Court of Appeal ducks this very issue itself, saying,  "It is not necessary in this judgment to consider the distinct question whether, in any event, a promise to marry could in principle constitute sufficient detrimental reliance to found a claim to a constructive trust."  I really don't see that it's so difficult.

Likewise, while they lived apart, Ms. Smith rented a house to live in.  When they reconciled, she gave up the tenancy but in what way was this to her detriment?  Instead of paying rent for accommodation, there is nothing to suggest that Mr. Bottomley was charging her to live in the house he owned.  Surely she was better off, not worse off?  No detriment means no claim and this is well-established law.

The second interesting element was the ownership of The Barn.  It didn't belong to Mr. Bottomley - it belonged to his company.  As we have all recently been reminded, in no uncertain terms, by the Supreme Court no less, (Prest v. Petrodel), the two must be distinguished from each other.  Even on Ms. Smith's account of things, Mr. Bottomley made the promise, not the company.  The Court considered Petrodel and noted that it could not be said that Mr. Bottomley's company simply held The Barn on trust for him.  So for this second reason, the appeal was allowed.  Now it may seem a little too unusual to have wider application, but in recent times, particularly in relation to high value properties, companies have been increasingly used to own real property.  Sale of company shares do not carry stamp duty in the way that property transactions, so it has clear tax advantages.  We may actually see more of these complications cropping up in the future and Prest v. Petrodel being applied in circumstances which weren't envisaged at the time.

P.S. As an aside, I was relieved on a professional level to see the Court of Appeal graciously deciding that Mr. Bottomley's solicitors should not be criticised for failing to point out a deficiency in Ms. Smith's pleading of her case.  It's bad enough making sure your own client's case is properly put without being expected to argue the other side's case too!  After all, we do have an adversarial system of justice and solicitors are obliged to act in the best interests of their client, not their opponent.

P.P.S  Just on reflection, perhaps the most surreal part of this case is where the Court of Appeal considers the issue of agreeing to marry and detriment.  In deciding firmly to sit on the fence, the Court said, " The answer is likely to depend upon the particular factual circumstances: for instance, did acceptance of one offer of marriage preclude acceptance of another, competing offer which foreclosed the offeree from protecting his or her financial position more fully by accepting the competing offer?"  How Jane Austen is that?  I have a vision of a young lady pondering the many offers from her various suitors, comparing their prospects and estates before making up her mind whose is the most appealing!   Was this really happening in the 20th century, still less the early 21st?

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.

Open all hours - Technology has taken over our lives!

A few years back, I was unable to make it to a school parents evening, so I phoned to arrange an appointment to discuss my son’s progress with one of his teachers. I asked to speak to the head teacher but she was too important to speak to me. Instead I was given an appointment with one of the members of the management team. Throughout the meeting I became more and more irritated by the patronising tone which was directed at me. The deputy told me that I was asking for flexibility from the school that lawyers and accountants wouldn’t give to their clients. Now this was the last straw.   Needless to say, the conversation got slightly heated after this. I had to tell him, “Actually, I am a lawyer, and after I leave here (at 8 pm) I will be meeting with a client who cannot meet me during normal working hours - because she is a teacher!” That silenced him. 

I was annoyed by the mere suggestion that the head teacher couldn’t see me because it was out of normal working hours and that a lawyer would be exactly the same. It is simply not true. The days are long gone when lawyers worked from nine till five, five days a week, with six weeks holiday and Friday afternoons on the golf course. Through the giving of mobile numbers and e-mail addresses, lawyers have made themselves much more accessible to their clients at all hours and in all places.  For our clients, if not our families, so much the better! 

But with increased accessibility comes increased liability it seems.  David Hodson reports at this link on a decidedly troubling development.

http://www.familylaw.co.uk/articles/DavidHodson210613-954

This will writing lawyer opened electronic communications from his client over a weekend but because it was a weekend, he did nothing with them.  Basically, he completely ignored the client’s son when he knew that his client was nearing the end of his life. That element of urgency makes the key difference.  I don’t read this case as declaring open season on a lawyer’s weekends and I don’t see it as warranting interruptions to family life without exceptional cause.  However, a lawyer who wants to treat his or her time out of the office as being sacrosanct will have to learn to ignore the insistent, siren calls of the computer and blackberry!

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.

Utopia Ltd - not so much G and S as UKSC

One of the least known of the Gilbert and Sullivan light operas is Utopia Ltd.  You can read a synopsis of the plot here - in fact to make sense of this post, you'll need to!

Utopia Ltd

So, it's all about avoiding legal consequences, you see.  The King of Utopia will be blown up by the constitutionally appointed Public Exploder if the constitutionally designated Tribunal, the Wise Men, instruct him to do so.  How does the King avoid this?  By incorporating himself as a Limited Liability Company, he has made himself immune to the existing powers of the law of his land.  The King can be blown up, but his acts are now no longer his but those of a limited stock company and that can merely be wound up, not blown up.  No more prospect of the law of his land delivering life changing ending consequences.

And so to family law, which is what this blog is about.  We've just had the Supreme Court adjudicate on Prest v. Petrodel.  You can find the judgment here:

Prest v. Petrodel

The facts are set out in paragraphs 11-15.  In essence, the Husband here was alleged to use a number of companies which he controlled as his private piggy bank.  When his marriage unravelled, his wife obtained an order for financial provision in English proceedings.  He failed to comply so she sought to enforce, at least in part, by forcing his companies to transfer to her title to seven valuable properties they owned in England and Wales.

Put it another way - the claim is that the Husband was using limited liability status to avoid having to comply with the orders of an English court.  Not so very different from the newly incorporated Utopians really.  The Matrimonial Causes Act 1973 enables the Court to make orders transferring money and property from one spouse to the other.  As no one marries a company, a sort of virtual personality, only a real person, this excludes the property and money of a company from the court's direct control.  At first instance, the High Court was having none of it.  Moylan J seems to have decided that because the Husband had the power to make the companies part with their assets to satisfy the Court's judgment, he could order him to do exactly that.

Not so, decided the Supreme Court.  The companies owned the assets and they were legal persons in their own right.  They were not parties to the marriage and so the Divorce court had very little power over them.  Right enough, if they had been set up as a device to frustrate the court and nothing more, the Court would not allow that to frustrate the Court's order, but Lord Sumption said,

"there is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company's separate legal personality."  (My emphasis.)

When the companies were formed, there was no existing financial order.  The Husband was not engaged in strategy to avoid complying with the court order at the time he formed the companies as they long pre-dated the marriage breakup.  They had been formed apparently to manage tax liabilities or something similar.

"Whatever the husband's reasons for organising things in that way, there is no evidence that he was seeking to avoid any obligation which is relevant in these proceedings."

So where did that leave the Wife?  Well on the face of things, the court could order the Husband simply to transfer the shares in the companies to her, or some of them at least.  This would be a property adjustment order under s.24 of the Matrimonial Causes Act 1973.  However, where companies are incorporated abroad, there is no guarantee that the foreign jurisdiction will enforce such an order against the Husband if he failed to comply.  In this case, it is very clear that compliance with court orders was not a major priority with this Husband!  He had conspicuously failed to comply with court orders to provide disclosure, as had the companies under his control.

However, the Court did find an alternative route to enforce its order.  As the companies acquired property, sold property and paid out money entirely at the Husband's behest, they were deemed to hold their assets on trust for the Husband.  A trustee holding property in England and Wales can be forced to comply with an order imposing an obligation on a beneficiary of the trust.  The companies owned seven properties in the UK, so they can be, and were made to transfer these to the Wife in part satisfaction of the £17.5m odd which she was entitled to under the order.

So what do we learn from this?

1.  You can get a court order against a company in divorce proceedings only where you can show that the only purpose for setting up the company and acquiring property through it was to defeat the court's jurisdiction.  Yes, I did mean to put two "onlys" in that sentence - they both count.
2.  You may still be able to lay your hands on the company's assets even where you can't satisfy 1 if you can show that it has acted effectively as a trustee for your ex, but complications will definitely arise where there are other share holders or creditors as their interests are separate from the ex and must be protected.
3.  Orders of English courts are commonly regarded as far more generous to the economically weaker party than orders from courts abroad, but there is the important matter of enforcement.  If the assets lie abroad, the other jurisdiction may not necessarily enforce the English order.  Half a loaf by consent may ultimately be better than no bread after a fight.
4.  Matrimonial litigation is no different from ordinary civil litigation in one key respect - the first and most essential question is, where's the money?  If you don't have a satisfactory answer to this question, there's no point in even starting court proceedings - they'll only make you poorer.

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.

Legal Aid reforms - fundamentally misguided.

I steer well clear of examining political and legal issues in religious or ethical terms.  These are very much matters of personal conviction and opinions differ in the extreme.  However, I was particularly struck by a post on the renowned blog run by Archbishop Cranmer, which you can read here:

Brother Ivo blogs on Legal Aid

 It's difficult for me to add anything much to what is very eloquently set out here.  The Churches have recently pontificated on welfare spending and cuts in benefits.  I suppose to some modest extent there might be some argument that Holy Writ places a burden on society to provide material support to the destitute and deprived, but this falls well short of prescribing the extent of that support and the manner in which it should be delivered.  However, following Brother Ivo's exposition, I can easily see how the Church can properly have major issues about the withdrawal of legal aid from so many areas of our justice system.

I confess that recently I have been distinctly irritated by a few cases where I have encountered legally aided opponents.  Cases where single issues have been the subject of completely unnecessarily wide ranging enquiry.  Cases where applications of no merit whatsoever have been issued and pursued.  However, irritating and inappropriate as these have been, to react by barring access to legal advice to all but the very well off is entirely disproportionate and is entirely counterproductive.

The truth is that the involvement of good lawyers, especially in family disputes, is of immense value in sorting out otherwise intractable problems.  To leave judges and magistrates without any effective access to other team members, who can set to work outside court to enable parties to see sense and negotiate a route out of their relationship, is not going to save money, it's just going to transfer the cost elsewhere.  The cost will now be incurred in a court system which is already desperately under-resourced and unable to provide a proper service.  In one very prominent court, it is already taking at least three months to secure a one hour hearing.  Justice delayed, I remind you, is justice denied.

This doesn't just apply to the legally aided party, by the way.  As unrepresented parties clog up the courts - and they most certainly will do that - the queue the privately paying parties will find themselves in will be that much longer and slower, and already it's too long and slow.  The person paying top dollar for the best legal representation will find that their cases are every bit as slow moving as everyone else's.  Yes, I am carrying on in the frontline of litigation but I can see that it's going to be even more distressing for my clients than it has been up until now.

P.S.  Just to move from the abstract to the particular, there's this post over at Researching Reform:

What happens when.....

This seems to be a real life example of things getting out of control, with no obvious recourse for the parents to help them identify where to turn for advice and help.

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.

Legal ombudsman gives good advice to divorcing couples - shock horror!

A week or so ago, the Legal Services Ombudsman published a report on complaints against lawyers.  Sadly, family law is a major contributor to his case load.  Am I surprised?  Not greatly.  I encounter a good number of indifferent family lawyers.  I have the privilege of presenting training courses for BPP, one of the leading national training organisations, which gives me the opportunity of discussing and passing on to other family lawyers my main concerns.  As is clear from the report, clients are deeply concerned about costsand this is a major source of complaint.  I believe that is all too often insufficient focus by both solicitor and client on managing cases to keep cost to a minimum.

The great news for professional and client alike is that the Ombudsman has published a highly sensible guide to getting the most out of a professional relationship between solicitor and client.  You can find it at this link:

Using a divorce lawyer - ten helpful tips

So I thought I'd have a look at the tips the Ombudsman gives, one at a time, of course.

Tip one.
Consider what you want from the legal process - AND BE REALISTIC!
Sorry to shout but this is important.  The biggest single dispute in divorce usually concerns money.  Your money.  The more of your money you spend in legal fees, the less you get to keep.  Very often a solicitor will be telling a client something the client doesn't want to hear.  The law does not punish one spouse for being bad, nor does it set out to reward the other for being good.  The purpose which the court sets out to accomplish is simply to enable the couple to live separately from each other.  It's a matter of arithmetic and it's a matter of practicalities.  For those who are deeply hurt, this is not what they want to hear.

And that's where problems can arise.  A client can put a lawyer under severe pressure to try to obtain an outcome which is just not achievable.  When costs get racked up and that outcome is dismissed as unrealistic, the client complains.  Both client and solicitor may have to share the blame.  The client has not been prepared to accept good advice.  The solicitor may have been intimidated by the client and persuaded into presenting a case which is just not viable.  Solicitors must have the courage to withstand pressure and be the bearer of bad news if need be.

Where I become decidedly irritated is when I am faced with a solicitor who is doing work which cannot benefit their client but for which someone - quite often the taxpayer, under a legal aid certificate - is paying.  The classic example for me is the lengthy and purposeless questionnaire.  For instance, if the only asset of a marriage is a house and neither spouse can realistically be ordered to pay maintenance to the other, questions about how either of them spends their income are entirely irrelevant.  You can spend hours crafting such a questionnaire but it has no value to the client.  It can be decidedly embarrassing when a judge looks at your questionnaire and simply dismisses it out of hand.

Fighting for what you can't get is emotionally draining, ultimately devastating and a waste of money.  If that's your position, your solicitor is doing you the biggest and most altruistic favour by telling you early on, before the damage is too great.




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.

They're all after your money!

I had my attention drawn to this article in the Telegraph by John Bolch of Family Lore.

Pensions on divorce

Now I'm sufficiently long in the tooth to remember the first foray into pensions by divorce law in the late nineties.  This took the form of pension earmarking -  a cumbersome and risk laden exercise for any court.  Back then, divorce lawyers were given severe warnings by pensions actuaries that they faced negligence claims from disgruntled clients if they didn't get an expert report (and a very expensive one, I may say) from an actuary, valuing the transfer value of any pensions.

For those of you who don't know, the transfer value is a theoretical figure which is supposed to be what it would cost to buy a given bundle of pension rights on the open market.  It's underpinned by a number of assumptions, such as how long a person is likely to live and what rate of return can be realistically expected on investments pending retirement.  Of course, this becomes relevant only in relation to what are now called defined benefit schemes (final salary or average salary schemes).  This is because these produce a certain set of benefits which then have to be valued.  A defined contribution scheme (money purchase, private pension policy) doesn't need this exercise.  This is because the contributions are used to buy investments which have a value at any given moment in time and this can be disclosed.  The investments are used at retirement to buy whatever benefits can be afforded at that point.

So, anyway, we were all going to be negligent if we didn't use actuarial valuations.  Except we weren't.  The courts very quickly got fed up with reports assigning fabulous values to pension schemes - money that simply wasn't available to the parties until retirement and wasn't available to them to buy a house now, for example.  The only use for such a report was limited to two scenarios:-

1.  Where there was to be a set off - i.e. where one party would keep the pension but concede a greater share of other assets by way of compensation.  For this to be fair, there needs to be a fair value assigned to the pension asset.

2.  Where identical outcomes are being sought from a given pension fund.  Until now, the same pension fund would give different pension benefits to a man compared with a woman.  This was because a woman would be expected to live longer, so an identical sum of money would be spread more thinly.

Now as to the first, I have to say that set off arrangements are pretty rare.  Usually there just isn't enough for one party to be bought off in this way.  What's more, to allow one party to have immediately available money and the other party to have to wait years before actually benefiting is plainly inequitable.  I'm just not seeing this happen often.  And that means that I have very little need of actuarial reports!

As to the second, this is how Liverpool Victoria pithily sum up a fundamental change in how pensions are to be dealt with in the future:-

"From 21 December 2012, new European gender law has meant that men and women are to be treated the same when it comes to annuity rates."

In other words, the fact that women live longer does not mean that they can be paid less.  Instead, men will have to receive less in order to equalise the pensions that women receive.  So there won't be any gender variation to compensate for and there will consequently be no need for a report quantifying the difference! 

The big marketing push by pensions actuaries - and the Telegraph report is nothing more than that - is frankly overstated.  Set off is rare and gender difference is vanishing, so what would the point of a report be, other than to keep reporting actuaries in the style they are accustomed to?

There is one sentence in the report I find particularly puzzling:-

"Solicitors have advised that divorcees could stake a claim up to 12 years after the legal separation has been settled."

How?  If the order has been properly drafted, it just isn't possible to come back at a later date to change it at all.  If it was the result of negligent advice, the limitation period in professional negligence is six years, not twelve.  What am I missing?


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.

Unreasonable behaviour

This morning my son sent me this youtube clip.

Now this led me to consider the most frequently used ground for divorce, that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, aka unreasonable behaviour.  Now on the evidence of the video, I don't see that the husband would have much of a problem - it must be unreasonable for either spouse to take active steps to enter into a relationship with another person while still married.  However, here's the conundrum - is the husband's act of trashing the car unreasonable behaviour or is it a natural, predictable and reasonable response to a seriously provocative act?  Can his wife cite it as a reason for divorcing him?

To become rather more lawyerly, we now know from Imerman v. Tchenguiz that even within marriage, spouses seem to have some right to confidentiality.  To put it another way, a spouse can act unlawfully by seeking to uncover material or information which the other spouse has maintained confidentially - crudely put, secrets which one spouse has kept from the other.  So does this wife have a reasonable expectation of privacy in relation to her online shenanigans?  Would your answer be different if she had had the commonsense to use a different name online to conceal her identity?


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.

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.