NEWS

June 8, 2018
I am being prevented from having contact with my grandchildren – what can I do?

I am being prevented from having contact with my grandchildren – what can I do?

When relationships break down and children are involved, this can affect the children in a number of ways. Not only can it have an impact the relationship they have with their parents, but also their relationships with members of their extended family.

Family Courts recognise the important role that grandparents often have in the lives of their grandchildren so there is something you can do if a problem arises. The court will usually expect to see that you have tried to reach an agreement before making an application. However, if contact has broken down and you are unable to agree a way forward, you can apply for something called a Child Arrangements Order.

Some people have a right to make this application automatically (for example, a parent, guardian or someone with Parental Responsibility). For others, they first have to ask the court for permission (also referred to as ‘leave’) to make the application. Usually, grandparents have to apply for leave to make an application.

Leave to apply.

When you apply for leave the court will consider things like the nature of the application, your connection with the child as well as any risk that the application you want to make will disrupt the child’s life so much that they would be harmed by it. The court will also consider the merits of your application for a child arrangements order at this stage. You should be aware that the law is slightly different if the child is looked after by the Local Authority.

Importantly, if the court gives you permission to make your application, it does not necessarily mean that your application will be successful but it does mean that you are now entitled to make your application. You can then apply for an order that sets out the time that you spend with the child.

Application for a Child Arrangements Order.

A child arrangements order is an order which defines where the child should live, the time the child should spend with someone or otherwise have contact with them. This does not just mean face-to-face contact but can also include ‘indirect contact’, for example the exchanging of letters, emails or text messages, as well as things like Skype or FaceTime calls.

When making a decision about a Child Arrangements Order, the court’s paramount consideration will be the welfare of the child. When making a decision, the court will consider something called ‘the welfare checklist’ which includes the following things:

  1. the wishes and feelings of the child (considered in light of their age and understanding)
  2. his physical, emotional and educational needs
  3. the likely effect on him of any change in his circumstances
  4. his age, sex, background and any characteristics of his which the court considers relevant
  5. any harm which he has suffered or is at risk of suffering
  6. how capable each of his parents, and any other person in relation to whom the court considers the questions to be relevant, is of meeting his needs.

The court will be assisted by an organisation called CAFCASS (Children and Family Court Advisory and Support Service) who represent children and make recommendations they believe to be in the best interests of the children. A CAFCASS officer will often call you before your hearing to ask questions about your application, or may ask to meet with you at court when you arrive. CAFCASS will then make recommendations to the Judge.

If you require assistance with any aspect of your application, follow our step-by-step guide to contact our clerks who will match you with the barrister who is best able to help you.

By Kirsten Japp | Family and Children

May 31, 2018
What is a Specific Issue Order?

What is a Specific Issue Order?

A Specific Issue Order is made under section 8 of the Children Act 1989 (‘CA 1989’). It can be used to determine questions about a child’s upbringing, for example, where a child should go to school (state or private), to change the child’s name/surname, in relation to medical treatment or in relation to a prospective geographical move for the child. A Specific Issue Order will need to be applied for in the event that a person with parental responsibility is not prepared to give consent and thus the Court needs to determine the issue.

When deciding a Specific Issue order, what does the Court need to consider?

In deciding the issue, the child’s welfare will be the court’s paramount consideration. The court must have regard to the welfare checklist, as set out in CA 1989.

When can a Specific Issue Order not be made?

CA 1989 sets out the circumstances in which the court should not make a Specific Issue Order, including when the child is adopted, in the care of the Local Authority and in any way, which denies to the High Court the exercise of its inherent jurisdiction.

How to apply for a Specific Issue Order:

CA 1989 sets out the categories of applicant who can apply for a Specific Issue Order without obtaining permission from the Court to do so. Any person who is not automatically entitled to apply requires the permission of the court to make such an application.

The applicant must file a Form C100.

The procedure governing an application for a Specific Issue Order is contained within the Family Procedure Rule (FPR 2010) Part 12 and in FPR 2010, Practice Direction 12B.

Note that attendance at a Family Mediation Information and Assessment Meeting (‘MIAM’) is compulsory before an application for a Specific Issue Order can be made. There are exemptions to having to attend a MIAM and the relevant exemption must be confirmed in the Form C100. Where the exemption relates to an allegation of abuse, violence or harm, a form C1A must also be filed.

In the case of a Court Hearing:

A First Hearing Dispute Resolution Hearing Appointment (‘FHDRA’) will be listed and the parties to the application are required to attend. The Specific Issue may be resolved at the FHDRA if agreement can be reached. Otherwise, the case will be listed for a Dispute Resolution Hearing (‘DRH’) and then a final hearing, if required.

If you are in need of legal support to guide you through the steps of having a Specific Issue Order created, our Public Access specialist family barristers can help you with all aspects of your case. Read our simple step-by-step guide, then get in touch with our clerks who will discuss your particular needs and match you with the barrister best able to support you as you make arrangements for your children.

By Camilla WellsFamily and Children

May 22, 2018
What is a Prohibited Steps Order?

What is a Prohibited Steps Order?

A prohibited steps order (a PSO) is an order that prevents a certain type of action from taking place.

In Family cases it is usually applied for by one parent against the other parent, but it can be made against anyone even if that person does not hold parental responsibility for the child and can be made against an individual who is not even a party to the proceedings.

A PSO can deal with a very wide range of issues. Typical examples include to prevent a parent from removing a child from the country or from moving home to another part of the UK. It can be used to prevent the removal of a child from its main home or residence, from the care of the other parent or perhaps, anyone to whom that parent has entrusted a child’s care (for example a Grandparent, or from the child’s school or nursery). It can also be used to prevent a child coming into contact with an individual the Court considers should not have contact with the child or to prevent a change of the child’s surname.

An application for a PSO can be issued either on its own or during the course of other Children Act Proceedings; usually when one parent applies for a Child Arrangements Order (which determines where a child lives and how much time it spends with each of the parents). When an application is issued, notice of the application is usually provided to the other parent by the Applicant unless there are good reasons (usually safety) as to why ‘notice’ should not be given. These will need to be justified by the Applicant at the first hearing.

There are some restrictions on making a PSO. They cannot be made in respect of any child aged 16 or above unless there are exceptional reasons and even then it will not have effect beyond the child’s 18th birthday. Also, a PSO cannot be made in respect of a child in Local Authority care and every PSO order should be time limited.

When a Court considers making a PSO, the welfare of the child is the paramount consideration and the Court will, at each stage, have regard to the following (a) the welfare checklist as set out in S.1 Children Act 1989, (b) that for an application to be successful it must be better for the child for an order to be made than to make no order and (c) that delay in deciding matters is contrary to the welfare of the child.

If you require assistance with any aspect of a PSO, please follow our simple step-by-step guide to contact our clerks who will put you in touch with the family lawyer best able to help you. 

By Bruce Tregoning | Family and Children

May 4, 2018
I am adopting a child: when might I need an adoption lawyer?

I am adopting a child: when might I need an adoption lawyer?

Adopting a child is a momentous and life-changing time filled with both excitement and trepidation. Adoption fundamentally alters the legal relationship your child has with you and the making of an adoption order is one of the most significant orders that can be granted in the Courts of England and Wales.

Adoption orders can be made in a variety of different circumstances: adoption by a stepparent, private adoption (directly with the birth mother), or public adoption (fostering to adopt, i.e. adopting through the local authority) but in each case the Court is concerned with whether making the order is in the child’s best interests taking account of the rest of his or her whole life. It is often the case that prospective adopters represent themselves or, where an adoption agency is responsible for the placement, rely on the local authority who is involved to pursue the case before the Court. However, for many prospective adopters getting legal advice and instructing their own lawyer is absolutely vital.

Instructing a lawyer can help to make sure that you are able to navigate the technical requirements which must be fulfilled to make sure that the application can proceed as smoothly as possible. It can also be reassuring to know that you have access to advice to help guide you through the process of pursuing your order.

Over recent years a number of important cases have emphasised the need for Courts to take great care to make sure that adoption orders are only made where they are necessary. This has led to an increase in the number of adoption order proceedings, which have become fully contested, often involving the child’s birth parents. These can be some of the most difficult cases for the Courts to resolve and can be a challenging and stressful time for prospective adopters. Instructing a lawyer makes sure that you have someone on your side to advise you, reassure you, and represent you in Court.

In the case of adoption proceedings, it is essential to have the utmost trust and confidence in your legal representative and this can be a very personal choice. Our experienced Public Access family Barristers can advise you on all aspects of your case and represent you in Court if necessary.

If you are ready to instruct a family lawyer to help with your adoption, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will discuss your needs and match you with the barrister best able to support you as you proceed with your plans to adopt.

April 27, 2018
Divorce: Basic steps to getting financial orders

Divorce: Basic steps to getting financial orders

Divorce cases can be extremely complex and emotionally draining. It can be possible to come to an early agreement through mediation or negotiation, but even the most amicable divorce can lead to disputes around finances.

If on divorce the parties cannot agree to share the assets and property from the marriage than one of them will have to apply to the court for financial orders.

The orders that can be applied for are:

  1. an order for maintenance pending the outcome of proceedings
  2. a lump sum order
  3. a secured provision order
  4. a property adjustment order
  5. a periodical payments order
  6. a pension sharing order
  7. a pension attachment order
  8. a pension compensation sharing order
  9. a pension compensation attachment order

The application for financial orders is submitted on a Form A which is available to download or from your local family court office. A fee for submitting the Form A is charged which is currently £255.

Once the application has been processed the court will issue directions for a First Directions Appointment. This sets out the preliminary steps to be taken and a fixed court appointment before a Judge.

This process and the further steps set out below are similar in all cases regardless of the nature and extent of issues, or the value of your assets.

The main procedural steps are:

Full and frank financial disclosure

This is carried out by a series of detailed statements made on a standard form called a Form E, which can also be downloaded or otherwise obtained from the court office. Each party completes one of these forms and exchanges it with the other party. It covers property, bank accounts, pensions, income etc, all supported by documentary proof. Once each party has exchanged their Form E the other party can request further information in the form of a Questionnaire. The judge will consider the questionnaires at the first appointment and direct which questions need to be answered to ensure that the issues are relevant and proportionate to the costs.

First Directions Appointment (FDA).

This is an evidence gathering hearing. If the parties cannot agree the value of assets then the court will consider whether the parties need to instruct an expert to value property, such as a chartered surveyor. If there is a family business or tax issues then an accountant may have to be instructed. The court will also consider whether more information is required on pension assets, if they are available. As stated above the court will also consider the Questionnaires.  The purpose of all this is to ensure, as far as possible, that the court and parties have all the evidence for the Financial Dispute Resolution hearing so that agreement can be reached.

The financial dispute resolution (FDR) hearing.

The purpose of the FDR is to encourage settlement without the need for a final hearing in which the judge will decide the issues on contested evidence. The advantage is that settlement will cost the parties less. The FDR is an opportunity for the parties and their lawyers to negotiate at court and to benefit from the input of the judge. The judge will have seen all the papers, including offers and counter offers exchanged. The hearing will last for approximately one hour. Parties will need to attend court an hour beforehand to facilitate discussions and negotiations. They don’t need to give evidence at this hearing. The judge will listen to legal submissions from both parties. The judge will then give guidance on any matters in dispute and will assist the parties by giving an indication as to the likely order the judge would make if determining the case. Importantly, the judge at the FDR will not be able to conduct the final hearing. This is to encourage open negotiations at the FDR and for the judge to give a view.

The final hearing

The final hearing is the last resort and can be very costly for parties. Both parties will most likely have a barrister to represent them at final hearing, which involves preparation of a trial bundle submitted to court in advance and preparation of legal skeleton arguments. Both parties will be required to give evidence under oath and face questions from the other party’s legal representative. The final decision will be made by the judge with reasons given in a judgment.

How do I instruct a divorce barrister?

Our Public Access Barristers have a wide range of experience of divorce law. They can advise you on all aspects of your case and represent you in Court if necessary.

To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the family barrister best able to accommodate your needs.

By Nigel Taylor | Divorce and Finance

April 6, 2018
How do I restore a dissolved company to the register of companies?

How do I restore a dissolved company to the register of companies?

If your company has been struck off the register of companies, there are various options available to you: 

There are 2 ways of re-instating a company. The easy way is by administrative restoration. You will find the procedure, forms and cost here and a fee, currently £100, is payable to Companies House. 

If you are not eligible for the administrative method (for example because the company was struck off more than 6 years ago) you will need to get a court order to restore the company. The process is short but technical, and at the time of writing, the court fee is £308. You can find further details of the procedure here. 

A Part 8 claim form is issued with a witness statement which must include certain pieces of required information. Evidence of service of the application, any undertakings and the agreed consent order are also filed. The court procedure involves the Registrar of Companies who is represented by the Treasury Solicitor – (whose attendance might require you to pay costs of around £250 or more) – and can involve some negotiation. Information about the company can often be found free of charge at  Companies House. Whilst you may feel confident in tackling the administrative method yourself, our team of experienced commercial lawyers are able to help when an application has to be made to the court – both in drafting papers and representing you in court. 

To get in touch with a member of our Direct Access legal team, first read our simple step-by-step guide, then fill in the online form for our clerks to advise you on your next steps. 

By Paul Ashwell | Contracts and Debt Recovery

 

March 23, 2018
What is a Child Arrangements Order? 

What is a Child Arrangements Order? 

Over recent years the terminology for the orders governing where children live and who they spend time with has changed. What was once ‘Custody’ and ‘Access’ became ‘Residence’ and ‘Contact’ Orders. Since 2014, Contact Orders and Residence Orders have been replaced with Child Arrangements Orders. These orders can be obtained from Family Courts if parents can’t agree on the best arrangements for their children or where one, or both, parents want to have their arrangements set out in a formal Court-approved order. 

Different arrangements can apply in different situations and Courts will always seek to make the best possible decisions for children. The best interests of these children will always be the paramount consideration of the court.  

What type of Child Arrangements Orders are available? 

There is a huge variety of arrangements which can be put in place. Where the most serious concerns arise the time children spend with a parent could be restricted, or provided only in a supervised setting such as a contact centre. At the other end of the spectrum there are cases in which the Court considers that the care of children should be shared between their parents. 

There are two main types of Child Arrangements Order: a “live with” order (which replaced Residence Orders), and a “spends time with” order (which replaced Contact Orders).  

“Live with” orders tend to be made to a parent which whom a child spends most of their time and who may be considered their primary carer. “Spends time with” orders are there to make sure a child is able to see a parent and this might include time at weekends, after school or nursery, or overnight stays. Child Arrangements Orders are also used to set out how children spend their time during school holidays which might involve longer periods of contact. 

With permission from the Court, in appropriate circumstances, it is also possible for Grandparents (or other relatives) to apply for a Child Arrangements Order. This might occur if the grandparent wishes to spend time with their grandchild, or if the child cannot be looked after by their parent it may become necessary for them to live with another relative. These decisions can be put in place through a Child Arrangements Order. 

Legal advice on Child Arrangements Orders 

Cases regarding your children — or grandchildren — can be emotionally charged and the technicalities and procedures can be complicated. Many people feel more comfortable with the support of a lawyer and it’s important to make sure that if you do take this route you choose someone with the specialist experience needed to give you the best possible advice and representation.  

Our Public Access family Barristers are experienced lawyers and advocates, who can advise you on all aspects of your case and represent you in Court. Our clerks can discuss your particular needs to make sure you are matched with the barrister best able to support you as you make arrangements for your children. 

To get in touch with a member of our team, first read our simple step-by-step guide, then our clerks can advise you on your next steps and put you in touch with the family lawyer best able to accommodate your needs. 

By Anita Mehta | Family and Children

 

March 23, 2018

Litigant in Person’s status is clarified by the Supreme Court

Legal professionals and litigants-in-person alike will be interested in the recent Supreme Court decision in Barton v Wright Hassall LLP [2018] UKSC 12 which is likely to affect how litigants-in-person are treated by the court when considering compliance with CPR rules and practice directions.


Background

 The case was brought after Mr Barton, acting in person, purported to serve a claim form and particulars of claim by email on the defendant’s solicitors, Berrymans Lace Mawer, the day before expiry of the four month period allowed in CPR rule 7.5.

Mr Barton had failed to obtain permission prior to service on Berrymans who refused to acknowledge service. The claim form expired unserved and the action became statute-barred.

Mr Barton then applied for an order for retrospective validation of service under CPR rule 6.15(2). In order to succeed he needed to demonstrate a good reason to grant the application.


Decision

 The Supreme Court dismissed the appeal by a majority of three to two. Lord Sumption gave the lead judgment and agreed with the decision of the Court of Appeal below. Lady Hale and Lord Briggs provided a dissenting judgment.


Reasoning

At paragraphs 9 and 10 of his judgment, Lord Sumption set out the main factors to consider when granting retrospective validation of service:

  • Whether the claimant took reasonable steps to serve in accordance with the rules;
  • Whether the defendant or his solicitor knew of the contents of the claim form when it expired;
  • What, if any, prejudice the defendant would suffer from validation of the non-compliant service.

Paragraph 18 of the judgment is particularly useful for those who appear against litigants-in-person where there is purported non-compliance with CPR rules or practice directions.

Paragraph 18 reads:

Dissenting Judgment

The dissenting judgments of Lady Hale and Lord Briggs allowed the appeal considering that Mr Barton’s service fulfilled the purposes of ensuring that the contents of the claim form were brought to the attention of the person to be served and notifying the recipient that the claim has been commenced against the defendant on a particular day.

Lady Hale and Lord Briggs decided that Mr Barton’s circumstances would provide good reason for validation unless there were specific circumstances which swung in the balance against validation (paragraph 38).

However, Lord Briggs stated:

 

Discussion

Lord Sumption’s judgment seems to allow for some leniency towards litigants-in-person when it comes to case management decisions and how hearings are conducted, for example, giving unrepresented parties longer time limits for compliance with case management directions or assisting unrepresented parties to present their evidence during trial. However, when it comes to compliance with CPR rules and practice directions, the clear message is that litigants-in-person should be treated the same as represented parties.

Nevertheless, the message is tempered slightly by the last sentence of paragraph 18 referring to ‘inaccessible or obscure’ CPR rules and practice directions. It is not clear what parts of the CPR are to be considered ‘inaccessible or obscure’ for the purposes of litigants-in-person complying with rules and practice directions but it is assumed that the relevant parts will be identified on a fact-specific, case-by-case basis.

Indeed, both leading and dissenting judgments made tacit admissions that CPR provisions relating to service by email might need to be reconsidered and, to that end, the judgment was referred to the Civil Procedure Rules Committee. Although it could be said that the reference to the Rules Committee is a result of the prevalence of email communication since the rules on service were last considered.

In any event, it is suggested that the starting point for the courts would be to consider any parties’ failure to comply with CPR rules and practice directions without reference to whether a party is represented or not.

Similarly, in the dissenting judgment, Lord Briggs accepts that Mr Barton’s status as a litigant-in-person itself did not provide him with a good reason for the court to grant his application. Accordingly, this would support Lord Sumption’s analysis that CPR rules and practice directions’ failures should not be validated with any reference to parties’ represented or unrepresented status.

Interestingly, the courts may already be taking a tougher approach to compliance given the recent judgment in Reynard v Fox [2018] EWHC 443 (Ch) (08 March 2018) where HHJ Matthews (from paragraph 44) applies the principles in Barton referring to the “unanimous” decision of the Supreme court on the position of litigants-in-person.

Mr Reynard’s claim against the defendant, his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the conduct of the defendant as such trustee in bankruptcy was struck out under CPR r 3.4(2)(a) for re-litigating issues which were decided in a previous application under section 303 of the Insolvency Act 1986. HHJ Matthews commented, at paragraph 46:

“You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.”

March 22, 2018

Lauren Godfrey settles multi-million pound company law dispute

Lauren Godfrey settles multi-million claim for alleged breach of directors’ duties and restrictive covenants.  Representing  the departing directors the settlement negotiated by Lauren enables those directors to continue their new business.

Lauren Godfrey | Contracts and Debt Recovery

March 9, 2018
Shareholder disputes – FAQs

Shareholder disputes – FAQs

I’m a minority shareholder in a company. It is being run in a way that is unfair to me. Perhaps I’ve been excluded from management. Maybe business has been diverted to another company. Or my co-director is receiving an excessive salary. What are my shareholder’s rights?  

These are the kind of problems that often arise within “quasi-partnership companies”. These are small, unlisted companies that are like partnerships, with few members and few directors. Our team of commercial barristers have a wealth of experience in dealing with these kinds of issues and can help if you feel you have been a victim of unfair dealings.   

What is the process and who can apply 

Unfair prejudice is assessed using an objective test. A staring point is whether the Articles of Association and any shareholder agreement have been complied with. The procedure is that the member files a petition to the court under section 996 of the Companies Act 2006 and a detailed witness statement which includes all the necessary formal information about the company as well as full evidence about the unfairly prejudicial acts. The Companies (Unfair Prejudice Applications) Proceedings Rules 2009 can be found here and the form the petition takes is shown in the Schedule. Formal information about the company can often be found free of charge at Companies House.   

When it comes to dealing with a claim of unfair prejudice, Section 994 of the Companies Act 2006 gives a special remedy to: 

[1] a “member”, that is, a shareholder who has been usually, not always, registered, 

[2] of a company  being run, or will be run, in a way that is “unfairly prejudicial 

[3] to the interests of himself or herself [and perhaps other members too]. 

So to be clear, this procedure cannot be used by a director who is not a shareholder.  

What resolutions are available?  

This process is time consuming. A court fee, currently £280, is payable in the High Court. At this point, before or after the first hearing, the legal proceedings are often adjourned to give the parties an opportunity to resolve their differences. This is usually achieved by mediation or another method of ADR [Alternative Dispute Resolution]. Everyone has an incentive to sort out the dispute by consent because an actual trial of a petition involves a great deal of preparatory legal work including service of points of claim and points of defence. It is time consuming and expensive. If a trial cannot be avoided, the judge has the widest discretion to impose a suitable solution, which is often (if the prejudice is substantial and there is deadlock) achieved by the compulsory buy-out of the minority shareholding according to a prescribed valuation process. If the company is profitable it is in no-one’s interest to wind it up. 

I would like to begin the process – how do I start?  

The best place to start is usually to have a conference with one of our barristers in which we can discuss what has gone wrong and what the solutions might be. That might be followed up with a letter drafted by the barrister to the majority shareholder explaining what they need to do if a petition is to be avoided. If court proceedings are unavoidable we can draft all the documents and represent you in court. 

To instruct a member of our experienced legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

March 6, 2018

Richard Ager successfully represents Mother accused of parental alienation.

The children, aged 9 and 11, refused to see their father alleging that there had been aggressive behaviour on his part and treating them differently.  The father says the children have been alienated. After a contested hearing the court found the Mother had done all she could to promote contact, that the children were genuinely concerned about their Father’s behaviour and orders him to attend a parenting course as recommended by Social Services and , should the children want it, contact supervised in a contact centre

Richard Ager | Family and Children 

February 23, 2018
What is an order for periodical payments? 

What is an order for periodical payments? 

In terms of divorce and separation, a periodical payment order is the term for spousal maintenance i.e. ongoing (usually monthly) payments made by one party to the other.  The Court has the power to order that periodical payments will commence upon granting of decree for divorce as part of the parties’ financial remedy proceedings.  Prior to that, the Court has the power to order ‘interim maintenance’ or ‘maintenance pending suit’. 

There is not a fixed calculator to guide the amount of spousal maintenance.  Whether the Court makes a periodical payment order and indeed, the level of this maintenance depends on the circumstances of the case.   Fundamentally, when considering an order for periodical payments, the Court will need to determine: 

  • What are the parties’ incomes, or earning capacity; 
  • What does each party need; 

The Court will assess whether the payer has sufficient income to meet their needs, and whether they should make a regular payment to help the other party meet their needs.  The Court will then go on to assess the term of the payments.  They can be short-term orders to assist the weaker party to transition to independence, or long-term if such a transition is not possible.  An order for periodical payments may not extend beyond the joint lives of the parties or the re-marriage of the individual receiving the maintenance.

If you consider that you may be entitled to an order for periodical payments, or you may be liable to pay spousal maintenance, it is worth getting early advice from a lawyer about what a Court would likely order.  The level and term of spousal maintenance is one of the most complex and fraught types of application before the Family Court, and there are many types of financial orders that can be applied for.  

Our specialist Clerks can match you with a family barrister who best fits the demands of your case. Read our simple 4-step guide to instructing a Direct Access Barrister, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Anita Mehta | Divorce and Finance

February 9, 2018
Freezing orders and seize and search injunctions – what you need to know

Freezing orders and seize and search injunctions – what you need to know

Contract law is complex and multifaceted. Our team of barristers has considerable experience of commercial disputes at all levels and will be able to help you understand and take relevant action on any challenges you might be facing.  

Our overview of freezing orders and search and seize orders reveals some of the complexities.

What are freezing orders and search and seize orders 

Freezing orders and search and seize orders are aggressive and expensive steps in litigation. Some important points to note: 

  • Both orders are injunctions, that is, an order of a judge telling someone to do or not do something.  
  • Refusing to obey an injunction is contempt of court.  

freezing order freezes a person’s assets to prevent them being disposed of, so that they will be available to pay a court judgment. If an injunction is granted, the defendant will be ordered to make a statement disclosing his assets. After the first “without notice” hearing a second, “with notice” hearing will take place within 14 days. The defendant will be present and can say to the judge that the order ought not to have been made at all, or is too wide and should be limited in amount. You can see a specimen order here.  

search and seize order is a very serious and even more aggressive injunction which can only be made in the High Court. These are often carried out early in the morning and commonly known as “dawn raids”. The aim is to preserve evidence or property relevant to court proceedings. The defendant is ordered to let the applicant’s solicitors enter premises, search them for anything named in the order and to take photos and samples. An expert will search computers. Often the defendant will also be ordered to disclose where things are. To obtain a search and seize order you need an extremely strong case at first sight, very serious damage for you, clear evidence of possession of something incriminating, a real possibility of destruction of that thing, and likelihood that the harm caused by the order will be proportionate to the object of the order.  It is extremely time consuming and expensive to prepare to apply for the order and to carry it out. You can find a specimen order here.  

What does the procedure involve?  

The procedure for both is that an application notice with draft order is issued, a fee paid, and an affidavit supporting it is made for the court to consider. This happens at a hearing which takes place without notice to the defendant.  

Full and frank disclosure of all relevant facts is required – and if it is not given, any injunction may not stand. An applicant must give the court an undertaking – or solemn promise – to pay the defendant for any damage caused by the order. If there is not already a legal claim underway the applicant will have to start one immediately and pay a fee depending on the amount claimed. 

What legal expertise is necessary? 

All the drafting of court papers in either of these cases demands specific legal expertise and this is where our team can help. Our barristers, with their considerable experience in these matters, will also be able to represent you in court. And in carrying out these orders you will need experienced solicitors with specialist knowledge whom we can help you to find. 

Our barristers are able to tackle the most challenging commercial cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

January 26, 2018
How do I find a good divorce lawyer? 

How do I find a good divorce lawyer? 

Divorcing can be a challenging, stressful and emotional process. Each case is unique and though it can be possible to come to an early agreement through mediation or a negotiated settlement, cases can sometimes be more complex and require Court hearings. Even the most amicable divorce may see disputes arise when it comes to resolutions about the things that matter most – your children, your home and your financial security.  

It’s therefore crucial that you find a lawyer who is able to provide you with the support and advice you need and, where necessary, to represent you in Court. The choice of who to instruct is a decision for you alone and it is important to find somebody who you feel comfortable working with in order to get the best possible outcome in your divorce. 

Instructing a family barrister directly 

Many people are not yet aware that it is now possible to instruct a barrister to advise or represent you during your divorce without going through a solicitor first – through what is known as the Public Access Scheme. A Public Access barrister is an expert in their field of law who specialises in advising clients and providing representation for them at Court if necessary. They can also assist in drafting documents, and their Court experience as a specialist advocate gives them the knowledge to help you to understand your options and give you realistic advice about your prospects. Our barristers can also offer you advice on mediation as well as providing the mediation service itself.   

It can often be more practical and cost-effective to let a barrister handle your case directly through this public access scheme, than to use a solicitor.  

Our award-winning, specialist legal Clerks are well placed to help match you with a family barrister who best fits with the demands of your case and you will be able to discuss your particular needs to make sure you find the best lawyer to represent you. You will be able to discuss the work that you require help with and agree fees in advance so that you know where you stand. However, not all cases are suitable to be handled by a Public Access Barrister, in which case we would refer you to a solicitor with the expertise you require. 

How to choose a divorce lawyer

When selecting your barrister, there are a number of things you should bear in mind:  

  • Make sure you choose a specialist in family law. A specialist will have the relevant knowledge and experience to handle your case effectively. They will be up-to-date on changes in the law and recent pertinent rulings. 
  • Ensure you feel comfortable with your barrister. The divorce process could take a number of months or it could take much longer – so it is essential you have the right person supporting you. At the initial consultation, pay attention to whether the barrister listens carefully to your information and concerns, whether you are comfortable opening up to them and whether you feel confident in their abilities. And if you would prefer a male or female barrister to take on your case, make sure you state this when you first speak to the clerk.  
  • Find out what other people are saying about them. Read testimonials from former clients to give you an idea of the barrister’s experience and take into account any relevant legal accreditations. Our practice is graded Tier 2 on the Chambers & Partners Legal 500 list – a prestigious ranking system which provides a clients’ guide to the best law firms in the UK. We’re very proud of this ranking, which underlines the superb reputation of our practice.   
  • Allow plenty of time. Barristers’ diaries get filled up well in advance with court bookings, so approach the lawyer of your choice in good time to allow them to consider your papers and advise you accordingly. This will ensure you are dealing with someone you are comfortable with and confident about, rather than someone who is available to work with you at the last minute.  
  • Ask lots of questions at the initial meeting. A good barrister will appreciate this approach. Ask us about our practice and experience. Think about what you want from your barrister – whether you need mediation, advice on your case, answers to a technical question, or representation in court 

What do I do now 

Choosing a lawyer is a very personal choice. You need to have the utmost trust and confidence in the person advising and/or representing you as they try to make the process as straightforward and stress-free as possible for you. 

If you are ready to start the process of instructing a divorce lawyer, read our simple step-by-step guide then get in touch with our clerks in our central Brighton office who will be able to advise you on what to do next.

By Anita Mehta | Divorce and Finance

January 18, 2018

Bruce Tregoning successfully represents father

Bruce Tregoning represented a Father against whom 14 allegations of serious abuse (including sexual abuse) against his two children had been made by the mother; necessitating a 4 day fact finding hearing involving several professional witnesses attending Court including a NYAS Caseworker (Guardian). He successfully persuaded the Circuit Judge to dismiss every single allegation made against the Father in the schedule of allegations produced by the mother resulting in no findings being made against the Father and to order at the end of the case, both overnight contact between the children and their father and substantive holiday contact.

Bruce Tregoning | Family and Children

July 24, 2017

Stuart Wright successfully represents HMO landlord

Stuart Wright successfully represented a HMO landlord in a civil action against him by a former tenant accusing him of harassment, unlawful eviction and failure to comply with the statutory deposit protection requirements.

Stuart Wright was instructed on a direct access basis to represent the landlord at the trial. Following successful cross-examination of the tenant by Mr Wright the claim was dismissed in its entirety, with the County Court Circuit Judge concluding that the tenant was an unsatisfactory witness and that his claim was not a genuine one.

Stuart Wright | Property

 

June 22, 2017

Should matrimonial assets always be shared between the parties on an equal basis?

What about when the case involves a ‘short marriage’?

The Court of Appeal has recently handed down judgment in the case of Sharp v Sharp [2017] EWCA Civ 408. The lead judgment is by Lord Justice McFarlane who describes the issue to be grappled with as follows:

‘In White v White [2001] 1 AC 596 (‘White’) the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The present appeal requires this court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. Although the possibility of a relaxation of the sharing principle in such circumstances has been described in earlier cases, this is the first occasion that the point has arisen directly for determination at Court of Appeal level since White and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618 (‘Miller’).’ (see paragraph 1)

The wife was a trader and the husband worked in IT. They initially both had basic salaries of around £100,000pa, but the wife received annual bonuses of around £10 million pounds during the marriage. The marriage lasted for around 6 years, including 18 months of pre-marital cohabitation.

McFarlane LJ considers in depth the relevant legal cases, which is outside the scope of this news article.

McFarlane LJ was clear at paragraph 75 that:
‘Nothing that is said in this judgment is intended in any manner to unsettle the clear understanding that has been reached post-White on the approach that is to be taken to the vast majority of cases. The focus of the present appeal, which is very narrow, is upon whether there is a fringe of cases that may lie outside the equal sharing principle.’

However, the court held that in a case such as this:

‘…fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.’ (see paragraph 97)

The court limited the husband’s total share to £2 million from a total pot found to be £6.9 million at first instance, but excluded the wife’s liquid capital from being part of the matrimonial assets for equal sharing. The husband received one half of the capital value of the two properties (his share was £1.3 million) and was provided with an additional award amounting to £700,000 to reflect a combination of the following 3 factors:
‘(a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife’ (see paragraph 114)

In the writer’s opinion, this case is likely to add to, rather than settle, the on-going discussion about the applicability of cases such as White and Miller to the division of matrimonial assets between the parties in ‘short marriage’ cases.

If you have a case that you would like help with then please use our easy to use ‘enquiry form’ which can be found here.

Further reading:

White v White [2001] 1 AC 596
(http://www.bailii.org/uk/cases/UKHL/2000/54.html)

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618
(http://www.bailii.org/uk/cases/UKHL/2006/24.html)

Sharp v Sharp [2017] EWCA Civ 408 (http://www.bailii.org/ew/cases/EWCA/Civ/2017/408.html)

Daniel Miller has been a practising family barrister since 2005.

He practises in all areas of family law, with a focus on financial remedy cases. He has had extensive exposure to financial remedy cases at all levels, which frequently involve disputed company assets, international issues, and trusts. He accepts work both under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.

May 2, 2017

“Freemen-of-the-land” – Go Directly to Jail (Do Not Pass Go)!

Desperate times can sometimes call for desperate measures. It is therefore not difficult to see why the suggestion that you are not bound by legislation or commercial law may be attractive to someone who has mounting debt problems or is facing eviction from their home. This is essentially what is promised by various groups of people whose theories are all based around the ‘freemen of the land’ movement in North America.

The general claim is that there is a big state conspiracy – between the government, judges, civil servants, lawyers etc – to take away citizens ‘common law rights’. This all starts from the moment your parents registered your birth. Freemen see the birth certificate as a contractual document with the state signing over the legal title of the baby. The suggestion is that there is a distinction between you as a man or woman – John, of the Family Smith – and Mr John Smith who is the legal entity owned by the state.

The suggestion is that if you do not consent to being bound by the law then you will not be bound. This way official demands for payment of fines, to appear in court etc can simply be declined. By following various freeman rituals – e.g. asking the Judge if he or she is on their “oath” / refusing to enter the Court room unless the Judge agrees that your god given rights are intact / producing a birth certificate to be the respondent rather than the man/woman themselves – then the Court will have no jurisdiction over you and the Claim will be dismissed. It sounds like a wonderfully simple way to make all of your problems go away.

The problem is that it is, put simply, nonsense.

In the 2012 case of Meads v. Meads, a Canadian Judge forensically deconstructed and dismissed freemen-style arguments in a detailed 192 page judgment. This is a long read, but essential if you have any doubt that what the Freemen are peddling is anything other than nonsense.

The real problem is that not only will the Freemen arguments not magically make everything better – they may in fact land you in contempt of court – facing imprisonment or at the very least a substantial fine.

For example, in 2015 at Sandwell Magistrates’ Court, an uninsured driver was sentenced to 14 days imprisonment for contempt of court after claiming to be a Freeman-of-the-Land and therefore outside of the jurisdiction of the Court.

Unfortunately, there are no magic cures or silver bullets when it comes to legal problems. There is no substitute for taking early legal advice from a trained professional and being represented by someone who can fight your corner in accordance with the legitimate laws of this land.

Further reading:

Meads v Meads 2012 ABQB 571 (CanLII) https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html

https://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

https://ukhumanrightsblog.com/2011/11/15/freemen-of-the-dangerous-nonsense/

http://www.birminghammail.co.uk/news/midlands-news/freeman-land-driver-jailed-contempt-10253089

http://www.bbc.co.uk/news/uk-england-merseyside-12668444

http://www.bbc.co.uk/news/magazine-36499750

http://www.eveningnews24.co.uk/news/crime/norfolk-tax-dodger-arrested-after-writing-to-queen-1-745681

April 27, 2017

How to get Title registers and Title plans from the Land Registry

 

In a dispute with a neighbour about a boundary or a right of way you need to look at up-to-date “titles” of your properties. These are the official records of ownership held by the Land Registry. How do you get them? It is easy, as Paul Ashwell explains in this step-by-step guide.

1. Go to the Land Registry via this link

2. Enter property name and post code

3. Click Search

4. Select Buy Title register and Title plan

5. Click Purchase

6. Click Create Account link

7. Click Agree [terms]

8. Enter name details,  address details, contact details and Login details.

9. Click Create Account

10. Click on link in activation e-mail

11. Return to Buy Documents page

12. Click Checkout

13. Select Payment Page

14. Enter Card details and Cardholders details

15. Click Make Payment

16. Click Continue

17. On Download documents Select documents and click

18 Click Save

19. Click View downloads

20. Open title documents

 

Paul Ashwell | Property

July 8, 2016
£11 million Ferrari dispute resolved

£11 million Ferrari dispute resolved

Simon Sinnatt and David Lewis-Hall represented a car collector in dispute over £11million 1954 classic Ferrari.

Simon and David were instructed to represent renowned car collector Mr Christopher Gardner at the 3 week trial in the Commercial Court set to start on the 18th April 2016.  The case concerned the purchase of a 1954 Ferrari 375 Plus by American billionaire Mr Les Wexner at an auction held by Bonhams at the June 2014 Goodwood Festival of Speed. The car is one of only four of its type which remain in existence.

The car was previously owned by Mr Karl Kleve, an Ohio car collector, but the chassis was stolen from him in 1989 and found its way to Belgium. Mr Jacques Swaters bought the chassis in 1990 and restored the car to its former glory.  A title dispute arose between Mr Kleve and Mr Swaters, which was continued by their respective heirs.  Mr Gardner subsequently became involved in the dispute.

The car found its way to the Bonhams auction as a result of a purported settlement agreement between the parties fighting over ownership of the car.  Mr Wexner sought to rescind his contracts with Bonhams and the sellers, alleging that he had been misled.

A number of different claims were issued and joined together, resulting in proceedings involving 8 parties and a trial bundle running to over 60 lever arch files, to determine the fate of the car and destination of the proceeds of sale.

Simon and David were instructed as Public Access Barristers representing Mr Gardner in the negotiations between the parties who were represented by leading firms of solicitors Jones Day and Mischon de Reya and magic circle Chambers Brick Court and Blackstone.  Settlement of all claims was achieved.

Read news article here.

 

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Paul Himple, Managing Director, Go-Legal-HR Limited, shares his experience.

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Susie Mercer, Director, Romsey World of Water, shares her experience.

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Nic Allen, Director Avon Estates Ltd, shares his experience.

March 17, 2016

Small business owners can benefit from using a Direct Access barrister for legal support. Here, Joe Leach, Owner, Cowshed Recording Studio, shares his experience.

 

 
June 16, 2015

Paul Ashwell persuades judge to give landlord possession of a mobile home

A landlord let a mobile home on an Assured Shorthold Tenancy. He got into difficulty with the formalities of a claim for possession. Paul Ashwell persuaded the judge that the tenants had suffered no disadvantage and possession was ordered.

Paul Ashwell | Property

June 12, 2015

Bruce Tregoning successfully persuades Judge to accept continuation of Court proceedings brought by a father contrary to child’s best interests

Bruce Tregoning acted in a difficult case where he successfully persuaded the Judge to accept that the continuation of proceedings was contrary to the child’s best interests despite a CAFCASS Officer’s report that recommended an assessment by a child and adolescent psychiatrist was required. The Court also found the continuation of proceedings was contrary to the child’s best interests in circumstances where the Father was contesting matters but had failed to attend Court at the final hearing despite being given notice and the Final Hearing being delayed.

Bruce Tregoning | Family and Children

June 11, 2015

Matthew Heywood makes successful argument on Appeal ensuring client keeps his driving Licence

A Barrister for me client was charged with speeding and was at risk of losing his license due to the amount of points on it. However, he denied ever receiving a Notice of Intended Prosecution which eventually was fatal to the prosecution case. Matthew Heywood successfully argued on appeal that s.1 of the Road Traffic Offenders Act applied and the conviction should be quashed. The Crown Court allowed the appeal and the conviction was quashed and the client kept his driving license.

June 11, 2015

Matthew Heywood successful in a legal argument ensuring client keeps his driving licence

A barrister for me client was allegedly caught using a mobile phone whilst driving and risked losing his license. Matthew Heywood was successful in a legal argument which resulted in the court dismissing the charge. The client was awarded his costs.

May 19, 2015

Exceptional hardship successfully argued

Christine Henson successfully argued exceptional hardship for motorcyclist speeding 94 in 70mph zone including roadwork restrictions of 40mph. Due to other points on his license would have been automatically disqualified unless he proved exceptional hardship. He has kept his license.

May 19, 2015

Timothy Bergin assists father achieve Parental Responsibility

Case was listed for a fact-finding in respect of cross allegations of domestic violence Timothy Bergin acted for a father. The mother was opposed to parental responsibility and direct contact. On basis of limited admissions made by father, the Court were content not to proceed with fact finding hearing The Court  Ordered parental responsibility to the father and direct contact once father had engaged onto the Living Without Violence Programme.

Timothy BerginFamily and Children

May 14, 2015

Christopher Rice obtains family law act injunction and occupation order

Family law act injunction and occupation order. Issued by client in person with support from Worth Domestic Violence project – client not eligible for public funding.  Husband was unpleasant controlling man. Two children, one with significant needs. Anticipated fully contested case. A compromise was reached which allowed the wife to return to the family matrimonial home allowing the husband some time to vacate.

Christopher Rice | Family and Children

May 14, 2015

Paul Ashwell advises in Company dispute

An entrepreneur sold his shares in a media company with instalments of the seven figure purchase price being paid over a number of years. There was a dispute about the tax treatment by the company of payment of instalments, the calculation of the balance in his director’s loan account and the conduct of the company pending the final payment. Both company law and tax expertise were needed. The way forward was resolved in a round table meeting with the barrister, a forensic account whom chambers had recommended and the entrepreneur’s legal advisor from abroad.

Paul Ashwell | Contracts and Debt Recovery

March 2, 2015

Richard Ager and Clare Ciborowska appointed as Associates of the University of Sussex

In recognition of their contributions to the training and education of social workers we are pleased to announce that Richard Ager and Clare Ciborowska of Barrister For Me have been appointed Associates of the School of Social Work and Social Care at the University of Sussex. This builds on our many links with the University and reflects the valuable input made by these barristers in these fast changing and demanding times.

 

March 1, 2015

Ghulam Hussain: Rest in Peace

With great sadness we announce that Ghulam Hussain died suddenly and unexpectedly of a heart attack on Friday, 13 February.

His funeral took place at a mosque in Leeds on Sunday 15 February and his colleagues at Barrister For Me have expressed their sincere condolences to his wife, Rachel. An informal gathering was held at Chambers in memory of a much loved friend and colleague with the intention that a more formal memorial event will be held later for all who knew him and worked with him to pay their respects.

February 28, 2015

Anita Mehta writes the article: Schedule 1 to The Children Act 1989: Not Just for Wags

Family Law barrister Anita Mehta, a member of Barrister For Me, recently had an article published in Family Law Week arguing that Schedule 1 to the Children Act 1989 applications should not be regarded solely as the domain of footballers’ girlfriends or the extremely wealthy but as an influential tool for meeting children’s needs in a wide variety of cases.

Click here to read the article.

Anita Mehta | Family and Children