Book recommendation: Forever Rumpole: The Best of the Rumpole Stories by John Mortimer

Forever Rumpole – a hilarious new selection of the very best Rumpole stories by John Mortimer. Horace Rumpole lives alongside Mr Pickwick and Bertie Wooster as one of the immortal comic characters in English fiction. With his curmudgeonly wit, his literary allusions, his disdain for personal ambition and his lack of pomposity, he has, in the words of the Daily Telegraph, ‘ascended to the pantheon of literary immortals’.

Available from Amazon.

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July 29, 2015   Posted in: News  No Comments

Gulati v MGN [2015] EWHC 1805 (Ch)

In Gulati v MGN, Mr Justice Mann considered the costs consequences of a withdrawn Part 36 offer for an amount which the claimant had beaten at trial. The offer was made well before trial and withdrawn at the end of the 21-day period of acceptance.

The claimant proceeded at trial to obtain damages for more than the amount offered and consequently argued that notwithstanding its withdrawal, the costs consequences of the Part 36 offer were that costs should be assessed on the indemnity basis. Mr Justice Mann rejected that submission. He held, at paragraph 22 of his judgment, that: “It therefore seems to me that, as a beaten offer, Ms Frost’s one-time Part 36 offer has no great significance. It could play a part in a general assessment of the reasonableness or unreasonableness of the defendant’s conduct, but it cannot be elevated to a position comparable to a living Part 36 offer merely because it has been beaten”.

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July 28, 2015   Posted in: Case Reports  No Comments

Monday morning with Alex Williams’ cartoons

qccartoon
This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email infoatqccartoondotcom  (infoatqccartoondotcom)  .

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July 27, 2015   Posted in: Cartoons  Comments Closed

Weekend video: Becoming a Barrister – Q&A

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July 25, 2015   Posted in: News  Comments Closed

Book recommendation: The Great Defender: The Life and Trials of Edward Marshall Hall KC, England’s Greatest Barrister by Edward Marjoribanks (Author) and Gary Bell QC (Introduction)

When Sir Edward Marshall Hall died in 1927 it was the end of an era. Tall, strikingly handsome and charming, the barrister was the finest advocate ever seen in the English criminal courts. Known as ‘The Great Defender’ as he fought tooth and nail for his clients, those in the shadow of the hangman’s noose were often saved from execution by his dramatic and eloquent defence. His closing speeches to rapt juries were legendary and there was never a free seat in the public gallery or on the press bench when he was in the Old Bailey. Marshall Hall did not win every case – the ‘brides in the bath’ murderer George Smith and poisoner Frederick Seddon were sentenced to death – but not without a fight from the amazing advocate. One of his finest victories came in 1894 when he saved the life of Marie Hermann, a former Austrian governess who had resorted to prostitution to feed her three children, one of whom was blind, after her husband abandoned her. Charged with the murder of an elderly client, even she believed she would be hanged. Marshall Hall gave an impassioned plea to the jury which ended with him, with tears on his cheeks and pointing to her in the dock, begging, ‘Look at her, gentlemen of the jury, look at her. God never gave her a chance. Won’t you?’ They did, and she was found not guilty of murder. Despite success in court, Marshall Hall’s personal life was tragic. His first wife, Ethel, whom he adored, informed him on their honeymoon that she could never love him and died in agony following a botched, secret abortion after getting pregnant with her lover’s child. This biography, written by his friend Edward Marjoribanks, with an introduction by criminal barrister Gary Bell QC, details many of the advocate’s famous trials and his life outside court.

Available from Amazon.

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July 22, 2015   Posted in: News  Comments Closed

An Easy Guide to Marriage and Relationship Breakdown

Consideration was given for the editing and publication of this post.

So you have decided to separate. What are the essential legal things you need to know? The following has been provided by Selachii LLP and is intended to be a brief guide.

Divorce: The Basics

If you are married then you may wish to take divorce proceedings, although there are other options, such as entering into a separation agreement with your spouse.

There is only one ground for divorce: that the marriage has irretrievably broken down. However, you must prove irretrievable breakdown by showing one of five things:

  1. That your spouse has committed adultery (usually proved by them admitting it).
  1. That your spouse has behaved unreasonably.
  1. That your spouse has deserted you for a period of two years.
  1. That you and your spouse have been separated for two years and your spouse consents to the divorce.
  1. That you and your spouse have been separated for five years.

Briefly, the procedure for a divorce is that one party will file a divorce petition with the court. The court will then send a copy to the other party, along with an acknowledgement form for them to complete and return to the court stating whether or not they intend to defend the divorce (defended divorces are extremely rare). If they do not defend, then the petitioner can apply for the divorce to proceed. If there are no problems, the court will fix a date for the pronouncement of the decree nisi. Six weeks after the decree nisi the petitioner can apply for the decree absolute. Again, if there are no problems, the court will send a copy of the decree absolute to each party. It is normally possible for the divorce to go through without anyone having to attend the court.

Sorting out arrangements for children

When a couple separate they will need to sort out arrangements as to with whom any dependent children will live, and what contact the children will have with the other parent. There are no hard and fast rules as to arrangements for children – the important thing is what is best for those particular children. They may, for example, spend most of their time with one parent, or they may share their time with both parents.

If arrangements cannot be agreed, then an application can be made to the court for the court to sort out the arrangements by making a child arrangements order.

Child maintenance

When parents separate they should if possible try to sort out child maintenance arrangements between themselves by agreement. However, if they cannot reach an agreement then an application can be made to the Child Maintenance Service.

The Child Maintenance Service will calculate how much the non-resident parent should pay, by reference to a formula. It can then collect the maintenance from that parent and pay it to the parent with care of the child. The Service reviews the payment amount every year.

Generally, child maintenance payable through the Child Maintenance Service will last until the child reaches the age of 16, or while the child is aged under 20 and is in full-time secondary education. However, child maintenance can be arranged through the courts for older children in tertiary education.

Sorting out finances on divorce

When a married couple separate they will need to sort out a financial/property settlement, including what is to happen to the former matrimonial home, the division of any other money or property, whether one party should pay maintenance to the other and what should happen to any pensions.

If these things cannot be sorted out by agreement, either party may apply to the court for the court to sort them out. The court will then require both parties to disclose full details of their means, so that it can decide what type of orders would be appropriate.

Alternatives to court

It is not always necessary to go to court to resolve a family law dispute. The matter can be resolved by agreement, by a variety of means, including:

Negotiation between the parties – Usually with the assistance of solicitors.

Mediation – Whereby a trained mediator will help the parties to reach an agreed settlement.

Collaborative law – Whereby each party appoints a collaboratively trained lawyer and then the parties and their lawyers meet face to face to try to agree a settlement.

Note that if an agreement is reached sorting out finances and property following a divorce, it will be necessary to request the court to incorporate the agreement into a court order.

Domestic violence

No one should have to put up with domestic violence, which includes not just physical violence but also other forms of abuse, such as controlling behaviour.

If you are a victim of domestic violence, then you can apply to a court for an injunction order. The order can take one or both of two forms:

A non-molestation order – preventing the abuser from using or threatening violence against you. A breach of a non-molestation order is a criminal offence.

An occupation order – requiring the abuser to leave the house, or preventing them from returning there. Occupation orders usually have a ‘power of arrest’ attached to them, which means that the police may arrest anyone breaching the order.

Issues for unmarried couples

When they separate, the law treats unmarried couples differently from married couples. There are two things in particular to note:

Firstly, if he was not married to the mother a father of a child does not automatically acquire parental responsibility for the child. He can, however, acquire it in various ways, for example if his name is on the child’s birth certificate, if the mother agrees to him having it or if a court grants it to him.

Secondly, the rules relating to sorting out finances on divorce do not apply to unmarried couples. One party cannot claim maintenance for themselves from the other, and any property will generally remain with the person who owns it. It is possible in certain circumstances for one party to make a claim against the other’s property, but the rules relating to such claims are complex, and legal advice should definitely be sought before making a claim.

Glossary of common legal terms

Affidavit – A written statement, sworn by the writer to be true.

Child arrangements order – An order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and/or when a child is to live, spend time or otherwise have contact with any person.

Clean break – A financial/property order on divorce that ends all financial ties between the parties.

Consent order – An order made with the agreement of both parties. Usually refers to an order setting out an agreed financial/property settlement on divorce.

Contact – Refers to contact between a child and the parent with whom the child does not usually live. Includes visits, overnight stays and other types of contact such as via telephone, letters, texts and internet.

Decree absolute – The order finalising a divorce.

Decree Nisi – The order stating that the parties are entitled to a divorce.

MIAM – Abbreviation for ‘Mediation Information and Assessment Meeting’, used to see whether mediation could be used to resolve a dispute, rather than going to court. Anyone wishing to make an application to the court is required to attend a MIAM.

Parental responsibility – Defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.

Pension attachment – An order following divorce, stating that one party will receive part of the other party’s pension, when the other party receives it.

Pension sharing – An order following divorce, transferring a percentage of one party’s pension to a pension in the name of the other party.

Periodical payments – Another term for maintenance.

Petitioner – The party who issues the divorce proceedings.

Property adjustment order – An order following divorce, adjusting the ownership of matrimonial property.

Respondent – Refers to the party who did not issue the court proceedings.

Separation agreement – A document setting out an agreement between spouses, relating to finances and/or arrangements for their children. Used where they have decided to separate but do not yet intend to commence divorce proceedings.

Without prejudice – Words typically included in an offer of settlement to help ensure that the court cannot be informed of the details of the offer.

Useful organisations and websites

Citizens Advice – Provide advice online, by phone and in person.

Cafcass – The Children and Family Court Advisory and Support Service. Cafcass looks after the interests of children involved in family proceedings, including providing reports to help the courts decide what orders to make.

Child Maintenance Options – Provides information and support to help separated parents make decisions about their child maintenance arrangements.

Child Maintenance Service – Sorts out child maintenance when the parents can’t agree. Part of the GOV.UK website (see below).

Family Mediation Council – Provides information on mediation and details of local mediators.

Gingerbread – Charity providing expert advice and support for single parents.

GOV.UK – Government services and information website. Includes many useful resources related to family breakdown including, in particular, a section on marriage, civil partnership and divorce.

Relate – Provides counselling, support and information for all relationships.

Women’s Aid – Helps women and children who suffer domestic abuse.

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July 21, 2015   Posted in: News  Comments Closed

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2015] UKSC 38

This Supreme Court case concerns an important issue about the limitation period following payment of sums pursuant to an adjudication decision. In 2004 the respondent contractor carried out an asbestos survey for the appellant employer. The employer claimed the report failed to identify all the asbestos on site. An adjudication took place in 2009 and following the decision, the contractor paid the employer £650,000 in August 2009. In February 2012 the contractor commenced proceedings for repayment of the adjudicator’s award. These proceedings were more than six years after the survey, but within six years of the adjudication payment. The contractor based its claim on an implied term that it could have the adjudicator’s decision finally determined by legal proceedings and the money repaid. The developer counter-claimed for further losses it claimed resulted from the negligent survey. At first instance the TCC found there was no implied term and that both claims were out of time. The Court of Appeal held that there was an implied term, and that the limitation period ran from six years after payment, but that the employer’s counter-claim was time-barred. The Supreme Court dismissed the employer’s appeal. The Adjudication Scheme envisaged that the contractor had a directly enforceable right to recover any overpayment in the adjudication following final determination of the dispute in Court. The correct limitation period for this was six years from payment.

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July 21, 2015   Posted in: Case Reports  Comments Closed

Monday morning with Alex Williams’ cartoons

qccartoon
This cartoon is by Alex Williams who draws the Queen’s Counsel cartoons for The Times and in numerous books including The Queen’s Counsel Lawyer’s Omnibus. He offers almost all of his cartoons for sale at £120 for originals and £40 for copies and they can be obtained from this email infoatqccartoondotcom  (infoatqccartoondotcom)  .

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July 20, 2015   Posted in: Cartoons  Comments Closed

Weekend video: Lord Bingham – The ‘Separation of Powers’

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July 18, 2015   Posted in: News  Comments Closed

Internet Newsletter for Lawyers July/August 2015

We’re pleased to tell you that the latest issue of the Internet Newsletter for Lawyers is now published.

In this issue

  • Search engines – Susan Hallam of Hallam Internet reviews Google’s recent mobile-friendly updates and explains what you can do
  • Social media – Bill Braithwaite QC of Exchange Chambers tells us about his new social media site for lawyers
  • Legislation – John Sheridan of The National Archives brings us up to date on developments at legislation.gov.uk
  • Resources – Delia Venables describes some of the most important free library resources available in the UK
  • Sharing economy – Nick Holmes looks at alternative perspectives on the sharing economy and how it affects lawyers
  • Drones – Alex Heshmaty of Legal Words introduces us to drones and the accompanying legal issues
  • Digital marketing – Catherine Bailey on 5 of the best free digital marketing tools
  • CPD – Nick Holmes on changes to CPD requirements for both professions

Access the Newsletter online

Our new CPD / competence course for solicitors is now published

Solicitors and the Internet 2015, a brand new CPD / competence course for solicitors from Nick and Delia, looks at how the internet is continuing to change the way that solicitors work.

The course consists of 13 articles written by practitioners and other industry experts, covering new types of law firm now being made possible by the internet; new and developing software approaches for the firm; how to make the most of the firm’s website; and how lawyers are using social media.

By completing the online questionnaire while you read the materials or at the end, you can evidence the knowledge you have gained and create a certified record for CPD/competence purposes.

The course costs £80+VAT (6 hrs); packs of courses (up to 16 hrs) and multi-use pricing available.

Full details and online ordering with immediate access at www.infolaw.co.uk/cpd.

Two more courses for both barristers and solicitors will be published late August

Enjoy the Newsletter.

Regards

Nick Holmes and Delia Venables

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July 15, 2015   Posted in: News  Comments Closed