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.