Tuesday, 18 February 2020

Nikah Divorce Defeat

The Court of Appeal has just scuppered the chance of thousands of Muslim women who have gone through an Islamic faith marriage without a civil ceremony, using the divorce laws of England and Wales to obtain financial remedies such as maintenance, property transfers and pension shares. For the background to the case see http://www.breakinglaw.co.uk/search/label/Nikah%20ceremonies

In overturning a bold and groundbreaking High Court decision, the appeal court has ruled that the Nikah religious ceremony did not satisfy legal requirements to qualify for recognition as a marriage in the divorce courts of England and Wales.

For those with a Nikah but no civil ceremony whose marriage has broken down, there are the Sharia courts to whom they can go for an Islamic divorce but such financial protection as might be available to them from following this course is likely to be inferior to what would have been available had the High Court decision been upheld. But the law which is available to cohabitees in England and Wales who have never married but have lived with their partners in a property which is in their joint names or solely in the name of the partner will be available. Breaking Law spells out what is legally possible. 

Thursday, 13 February 2020

Financial Orders On Divorce etc: Cheap Route to Getting Paperwork Done

Wanting to save legal costs on the preparation of a court order setting out what has been   agreed on property and money between you and your spouse or civil partner when the relationship has come to an end and there has been a divorce or dissolution.?  I looked at DIY orders and other ways of dealing with the situation at


There is a danger with a DIY job, as I have explained. And there is also a danger in one side not obtaining independent expert advice on the proposed order, as I have explained. But what about a cheap job from a non-lawyer or from a solicitor with either of them acting for both sides? In a simple case, this may now be possible as a result of a recent High Court decision in a called JK v MK and another [2020] EWFC 2. Whether this is possible will depend on whether, in each case, there is a conflict of interest between the parties.

In the High Court case, a divorcing couple paid £300 to  amicable (with a small a), a commercial firm which accepted instructions from them both to draft the order and associated documentation where the couple were in complete agreement with what they wanted the court to do and their financial positions were straightforward. amicable concluded that there was no conflict of interest. And so did the court which meant it was prepared to make the order as the couple asked and on the strength of amicable's paperwork. There are other non-lawyer commercial firms in the market who perform a similar service to amicable and applying the same sort of model. 

Of course, you may prefer to go to a solicitor to deal with joint instructions from you both. In a straightforward situation and with the comfort of this recent High Court decision, some solicitors may now be prepared to do the necessary on joint instructions. Unlike non-lawyer commercial organisations, they are bound by strict rules imposed by their regulators. The solicitors’ code of conduct specifically permits them to act for clients jointly where the clients have a substantially common interest in relation to the matter or the aspect of it, or where they are competing for the same objective.

I fancy that in the majority of cases there will be a conflict of interest where no solicitor or no non-lawyer commercial organisation should be acting for both sides. But, in the minority of cases, this will be okay and money can be saved.

For much, much more on finances after relationship breakdown, divorce and civil partnership dissolution, grab a copy of my book Breaking Law. Or buy one!

The activities of amicable who act for divorcing etc couple in obtaining a decree and financial remedies consent order haamicable ve just had the thumbs up from Mostyn J in JK v MK and another [2020] EWFC 2. The judgme will earn a thumbs down from practitioners who perceive a substantial loss of matrimonial work to amicus and other businesses which have the same or similar model.  
On the parties’ joint instructions and for £300, amicable helped in the preparation of the petition and the application for decree nisi and supporting statement and these were filed by one of them. In relation to financial remedies, the parties had already agreed a ‘simple’ clean break without any amicable involvement. For another £300, amicable drafted the consent order and helped in the preparation of the associated documentation which were filed under cover of a letter on their headed notepaper but signed by one of the parties.
Was there not a conflict of interest? Nobody thought so: not even the Queen’s Proctor who intervened, apparently not even the SRA which had investigated amicable and then gone on to praise them – and not even the judge who stated that joint instruction of solicitors happens in divorce cases. But how convincing are the examples he relied on in support of this proposition? Instruction of conveyancing solicitors to deal with a property sale or instruction of agricultural and tax specialists where they may be serious tax implications on the sale of a landed estate. The judge made a declaration that that amicus had not been placed in a position of conflict of interest and made the consent order which had been hanging on his decision. It was also unobjectionable for the petition to have contained amicable’s address as the petitioner’s alternative business address.
The judge inclined to the view that amicus was in a fiduciary relationship with the couple but did not need to decide the point. What he did decide was the ‘more difficult’ question of whether amicable had violated the Legal Services Act 2007 in carrying on a reserved legal activity (see NLJ 19 and 26 April 2019 p17).
Notwithstanding the conflict decision, district judges will continue to take a special interest in consent orders in joint instruction cases and cases where both or one of the parties has not received independent legal advice to ensure that they know what they are doing and that the proposed provisions fall within the ambit of fairness.
Whether solicitors will now feel comfortable with drafting consent orders and associated documentation on joint instructions remains to be seen.  I fancy most will not touch with a bargepole. 

Thursday, 6 February 2020

Coronavirus and the Law

In the wake of the outbreak of this dreadful virus, it is obvious that we should all be responsible in public.  What does the law say about irresponsibility?  Here is what I have said before - more than once - about public sneezing. The same principles would apply to coughing.

"An assault and battery are known to the civil law of England and Wales as a trespass to the person. If an unprotected sneeze is directed into your face then I regard that as such a trespass. It's probably also the tort of negligence. It could be either or both when, though not directly aimed at you, the sneezer is aware of your presence and the sneeze is emitted so close to you that they should have foreseen that you might catch something from them.

Proving that it was a result of the sneeze that you were struck down could be the obstacle to a successful civil claim for damages. You would have to prove that it was more probable than not that the sneeze was the cause of your illness. Physical closeness, the absence of prior symptoms, the velocity of the sneeze and the stage at which the symptoms began to manifest themselves will be among the major factors for consideration. The further away from you was the sneezer, the weaker your case.

A good sneeze can certainly travel at 60 to 80 miles per hour for up to 20 metres but research published in 2015 suggested that droplets from sneezes - and coughs - may travel 200 times further than had been thought. The incubation period for whatever is to follow the sneeze is around 24 to 48 hours.

Of course, you cannot make a civil claim unless you know the identity of the sneezer. Don't attempt a private arrest. For more on overcoming this obstacle and draft particulars of claim for a sneezing claim for damages, see my book Breaking Law. No warranty is given that you will succeed but let's hope someone does..... soon"

CPR Changes From March/April 2020

This is for civil procedure anoraks in England and Wales and anyone who has been told by the court that their acknowledgment of service of the claim form or defence was sent in too late and so the claimant has obtained a default judgment against them.

Here's a snapshot of changes to be made to our civil procedure rules by the Civil Procedure (Amendment) Rules 2020 (SI 2020/82). From 6 April 2020, an acknowledgment of service or defence sent in to the court late will still bar the claimant obtaining judgment in default when requested after its receipt .  Assume, for example, that you had to put in your defence by 6 February 2020 but failed to put it in until 13 February 2020 and on 24 February 2020 the claimant asked the court to enter a judgment against you for £10m because your defence had been received by the court after the deadline. It's  now clear that from 6 April 2020 the court will have to tell the claimant to get on their bike and that your defence will be valid. Say that a similar situation arises before 6 April 2020. There are conflicting court decisions as to what should happen although my guess is that the position should be the same. The issue is due to be decided by the Court of Appeal later this year.

Other changes coming into force on 30 March 2020. 
*Where on an appeal the court is deciding challenges to both the merits of a judgment and an order for costs made along with that judgment. it will be open for both challenges to be dealt with together and for offers made under Part 36 of the Civil Procedure Rules to be mentioned. A bit technical that one!
* The accelerated procedure for a landlord to obtain possession of a house or flat will no longer be available for demoted assured shorthand tenancies or where any of the tenancy agreements under which the tenant has occupied have not been in writing. And the procedure will not be available unless the tenancy was entered into before 28 February 1997. The landlord will still be entitled to bring proceedings where accelerated possession is unavailable but the procedure will take longer. 
*The pilot scheme for charging order applications  to be dealt with by non-judges is made permanent. A non-judge decision can be challenged to a district judge within 14 days of notification of the decision and the district judge will now be able to direct a hearing of the challenge.

Wake up!!!!

Thursday, 23 January 2020

Parking Ticket on Private Land: Escape for Keeper

No valid permit displayed on windscreen. No parking ticket purchased. Car parked for too long. Car not parked in a designated bay. For these and a multitude of other reasons, whoever controls the parking on private land and public car parks may try and clobber you with a parking charge. That's the polite way of referring to a penalty.

Perhaps the conditions for parking were clearly set out on 10,000 notices displayed on the land or in the park. Perhaps they were broken. But, say, though you were registered as the vehicle's keeper, you weren't the driver and were in Outer Mongolia  or Macclesfield at the relevant time? If, as will usually be the case, the parking control people don't have a clue on the identity of the offending driver, they are often in a position to clobber you as the registered keeper.

But there is one crucial thing they have to ensure is done before the registered keeper can be legally liable and they frequently slip up on this. It is to get the notice to keeper which they will send out, in the hands of the registered keeper within 14 days of the transgression. More often than not it will be posted to the keeper. However, when it is not received within that tight period of 14 days the keeper will have a cast iron defence to the charge and any county court claim which might be brought in an attempt to enforce payment. An appeal to the parking people ought to be successful.

The law to rely on is paragraph 9(5) of the fourth schedule to the Protection of Freedoms Act 2012. And a very fine schedule it is.

Court Fee Refund Scheme Announced

Around eighteen months ago, the Ministry of Justice coughed that some litigants had been overcharged the court fees they were being made to pay for taking certain steps in civil and insolvency cases. I told you about it in this blog and and what to expect at -

On the basis that it is better late than never, the promised refund scheme was  announced a few days ago and is now up and running. If eligible, you can make your refund claim on a special form which you can access along with guidance at https://www.gov.uk/guidance/claim-a-court-fee-refund  Interest on the amount refunded will be paid at the grand rate of 0.5%.

The relevant fees must have been paid between 22 April 2014 and 31 March 2018 and the most common overcharges are likely to have been on issuing  certain insolvency applications and asking for Court of Protection bills of costs to be assessed.

But in so far as the overcharge in issuing a county court claim for the stage 3 procedure under either of the two pre-action protocols for low-value personal injury cases is concerned, the refund scheme notably overlooks these. They are still being considered. Don't hold your breath.

Wednesday, 22 January 2020

Late Tax Return: Escaping Penalty

The deadline for putting in your tax return is 31 January 2020. You won't make it? Penalty, interest, grief?

Sleep tight.