Friday, 26 August 2016

WILL CARE

It's not a good idea to prepare a will for someone else when it says you will scoop most of their property. In a case last week, the High Court ripped up the will of an accident victim who had been awarded over £1 million in damages. The judge was satisfied that the victim had not sufficiently understood its contents.

The will had been drawn up by the victim's live-in carer who was paid by the local authority and gave the carer 95% of the estate. It had not been read out to the victim and gifts to family members and charities which had been made in a first will nine months earlier had been completely removed. Under the court's order, the earlier will takes effect.

In the world of wills there's too much scope for underhand activity - new wills being drawn up at the behest of those who exercise too much influence and wills going missing so that a previous will is implemented or the intestacy laws kick into action as they apply when there is supposedly no will.  

A will can be deposited with the Probate Registry and kept there for a one-off fee of £20. That cuts down the opportunities for fraudulent activity after your death. An earlier will can't make it and neither can a claim that there was no will. 

Wednesday, 24 August 2016

NEVER GIVE UP

A High Court decision in a libel case the other week demonstrates that while there is life, there is hope. It was alleged that the defendant had written and sent two letters which were defamatory of the claimant. He denied he was the author or sender. But the defendant failed to deal with correspondence from the claimant's solicitors (called Wright Hassall who the defendant came to unjustifiably accuse of unprovoked harassment!) and then to take essential steps in the proceedings which followed. His serious and significant default led to the claimant obtaining a judgment against him which, if it stood, would quite possibly have led to a five figure award of damages with a liability for the claimant's legal costs on top.

The defendant asked the court to set the judgment aside so that he could defend the case. To succeed, he had to show he had a real prospect of winning the case if the judgment went. However, failing to act promptly in making an application for a judgment to be set aside - three and a half months here - will more often than not be fatal to the application being granted even though the defendant might have won the case if the judgment was set aside. 

The High Court judge decided that the defendant did have a real prospect of successfully defending. But what about his delay? The judge bore in mind that the defendant had hoped the case would simply go away; he had no spare funds to spend on lawyers and litigation; and he is the sole carer of his invalid wife. There were also some unsatisfactory aspects to the handwriting expert report on which the claimant was relying and there was a special point relevant to defamation cases in which the primary object was to achieve vindication of the claimant's reputation. It is that if the claimant has secured a judgment through the defendant's default as here, those ill disposed towards the claimant may find it easier to dismiss the outcome and not accept it as a vindication.

So, by the narrowest of margins, the judge did set the judgment aside allowing the defendant to defend but the defendant must pay the claimant's legal costs which have been thrown away by his inertia.




Tuesday, 23 August 2016

VERY INTERESTING

Fewer businesses are being sued in the county court for the money they are said to owe. Figures just out reveal that the number of registered judgments in England and Wales fell by 19% in the first half of this year. The hike in court fees for starting a case is almost certainly a major factor in the drop but perhaps there's a canny factor at work on the part of creditors. 

Creditors usually have six years to start a county court claim from when they should have been paid. The debt will almost certainly clock up interest in the meantime at the rate of a thumping 8%: slightly more if one business is in debt to another business and even more if the contract says so. So long as your debtor does not look like becoming insolvent, the idea of sitting back and watching that interest mount up may be an attractive one. The ultimate judgment will itself attract interest for so long as it goes unpaid if for at least £5,000.

The cheap alternative to suing is serving the debtor with a statutory demand which is not issued through any court and so does not attract a fee. It is a precursor to bankruptcy or winding up proceedings which do cost loadsamoney but, with a bit of luck, the debtor will react by settling for fear of being wiped out by a bankruptcy or winding up order.

For those with very modest capital and income, it may be possible to get a waiver of court fees for starting a case (and taking other steps in the case). An application can be made for what is called fee remission. It's all in Breaking Law.


Friday, 19 August 2016

THE LIGHT TOUCH

Maintenance orders are not cast for ever in stone. Either side can ask the court to change the amount payable on a variation application. When they do, how far does the court have to go into the background to the original order? Does it have to start from scratch  and consider everything afresh? That was thought for some time to be the case. But the Court of Appeal has just scotched that idea with a decision on 10 August 2016 in a case where the former husband was after a reduction in his liability to pay his former wife £2,000 per month which had been ordered just six months previously. 

The Court of Appeal has ruled that the court was not bound to consider everything afresh. A light touch review which focused on the relevant factors could be enough. To go back to the start would be disproportionate. I fancy that this ruling will lead courts in the future to particularly concentrate on any changes in the circumstances of each since the original order was made.

The same principles applied in relation to the court's obligation on a variation application to consider whether to alter the period for which maintenance is due to run, said the Court of Appeal.  It looks like a light touch consideration will do and I would expect that the closer the variation application is to the original hearing, the lighter that touch will be.

OK, you want to know how the former husband got on? On his variation application, he had secured a reduction in maintenance to £1,750 per month because the former wife's income had risen since the original order. The Court of  Appeal refused to reduce it further.






Thursday, 18 August 2016

TIGGER BACK HOME

You know about the microchipped cat Tigger who vanished in 2012.  Three weeks ago his Staffordshire owner Karen Young heard from the microchip database to which another lady had applied to be registered as Tigger's owner. Mrs Young could not extract details of the other lady from the database people because of data protection legislation. So Mrs Young had the police intervene and now Tigger is back with Mrs Young. The lady who handed him back insists that she bought Tigger in good faith in 2012.

Where do you stand legally when you lose your property or you have lent it out and whoever has it will not hand it back, be it an animal or a diamond ring? As a general rule, you have six years to sue in a civil court for its return. Those six years start from when it was picked up by someone else or from when it should have been returned to whoever you entrusted it. If you don't sue within the six years then you lose your ownership of the property. The fact that whoever now has the property acted in all innocence and even paid someone for the property is irrelevant. The court might be prepared to extend the six years where whoever has the property has concealed the fact that they have it.

But the position is different when the property has been actually stolen. Then the owner does not lose their ownership after six years and could sue the original thief and anyone who comes into possession of the property - whenever. Pin back you lugholes for the exception. It's when someone has purchased from the thief and acted in good faith. Then the purchaser can only be successfully sued within six years of their purchase.

In the case of Tigger, it is unlikely that the lady who returned him would have had any defence to a claim for his return by Mrs Young, despite her innocence in the affair, and she was prudent to have returned him. 

Tuesday, 16 August 2016

STORE DETECTIVES AND TRAFFIC WARDENS KEEP OUT

If you are not allowed a word in edgeways at home, you might try and assert your authority in court by becoming a magistrate. It may not only be criminal cases you will be trying but cases with family issues such as those involving the welfare of children. 'Becoming a Magistrate in England and Wales: Guidance for Prospective Applicants' has just been updated and you will find it on www.gov.uk

You need to be at least 18 but if you have clocked up 65 years of not being allowed to speak, you have as much chance of being appointed as a store detective or traffic warden because they are among the select band of persons who are ineligible for appointment. Seeing a camouflaged store detective at work while out today reminded me that their legal powers to detain are no greater than those of a private citizen. If they force you to go with them (after you failed to show them a receipt because you were not given one and the goods were in your back pocket because you didn't want to spend five pence on a plastic bag) and it transpires you have stolen nothing, they and their employers are vulnerable to a  claim for damages for false imprisonment. That's a subject I take up in Breaking Law.

See you in court?

Sunday, 14 August 2016

THE KRAY TWINS

Old Street Magistrates' Court in East London has been converted into a boutique hotel, imaginatively called The Courthouse. My old clients Ron and Reg Kray used to patronise the site but they were guests under compulsion. I am sure the service there now will be impeccable but in the unlikely event that you have a slight complaint, please do not demand money back with menaces but follow my  advice in Breaking Law

Saturday, 13 August 2016

RITZ v GREASY SPOON

Where were you dined during your relationship? One of the factors the court must take into account when dealing with property and maintenance issues at the end of a marriage or civil partnership is the standard of living which the parties enjoyed before the breakdown. The lifestyle sets a level or benchmark that is relevant to the assessment of the independent lifestyles that the parties are to enjoy in the future. That is how one judge has explained it but with another judge declaring last year that as time passed, how the parties lived before the breakdown did become increasingly irrelevant.

In another case in March 2016 the judge indicated that the longer the period which the court reckoned one of the parties should be maintaining the other the less likely that the level of maintenance would reflect the former standard of living. That was the approach adopted by the High Court judge in a 'big money' case five weeks ago where she ordered a lump sum payment in favour of the wife reflecting what the wife would fairly need of just over £53m. Cool. The husband was terminally ill and died three weeks later.

So where the party who is to dip into their pocket has the resources, the standard of living will be factored in but will become less significant as the maintenance period grows older. 'Caviar and chips, please, but can I order just egg and chips when I come back in ten years' time?"

Wednesday, 10 August 2016

"CAN I SPEAK TO AN UNBUNDLER?"

You may have heard of plans for an on-line court for civil claims. Don't get agitated if you prefer to use your fingers for back scratching rather than mouse clicking.  That on-line court is four years off at least. Anyway, the recently published report on recommendations for the court advocates parties taking advantage of unbundling services from lawyers once it kicks in.

Unbundling? Yes. Eh? Well it is already here. You get help from a lawyer for a case in which you are involved but not for the whole case or you might find yourself bankrupt. You ask a solicitor or  a barrister to assist for bits of the case only but otherwise you handle it yourself. These bits might be advice before you start as to the strengths and weaknesses of your position or you might take in the lawyer just for the final hearing when you need an expert cross-examiner to expose your opponent as a bare faced liar. 

The lawyer could be a solicitor or a barrister. An increasing proportion of barristers is now prepared to accept direct instructions from a client for unbundling services. When a barrister is used in this way it is no longer necessary to incur possibly double fees by going to the barrister through a solicitor.

Breaking Law fully explains how the unbundling system works. 

WHAT DOES A GRECIAN ACCIDENT EARN?

When considering a holiday abroad within the EU, check whether the country's courts are generous or mean on traffic accident payouts. That's because if you have an accident in another EU state and the other driver was to blame but uninsured, our Motor Insurers Bureau will pay you what the driver's insurers would have had to pay according to the law of where the accident occurred. 

The Supreme Court has just decided that it is the foreign level of compensation which will apply and not the English level. This is bad luck for the victim driver in the case as her accident occurred in Greece and you get lower compensation there than you would get in England. Perhaps stay in Macclesfield or Wigan and hope the drivers there take reasonable care and are usually insured.

Monday, 1 August 2016

GETTING YOUR OPPONENT TO PAY YOUR LAWYERS

You have made an application for some financial order in a family case and you are in need of a lawyer. You have tried every means of hiring one but in vain. You just haven't got the money to pay. But your opponent does have enough money to pay or contribute towards your legal costs. You may be able to obtain a legal services order which requires your opponent to do precisely that. You would have to show you just cannot obtain the money from anywhere else, not even from borrowing. The court is unlikely to expect you to sell or mortgage the home in which you live so as to raise cash.

A High Court judge has just made a legal services order in favour of a mother who was seeking financial provision for her child under the Children Act 1989. The father who is her opponent is extraordinarily wealthy and is legally represented. The mother has no resources or income of her own and she cannot reasonably obtain legal funding from elsewhere to see her case through. The court wanted to ensure that mother and father were on an equal footing in the proceedings. The father was ordered to pay 85% of the mother's legal costs so far incurred and expected to be incurred in the proceedings.