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CHAMBERS NEWS:
FOUR NEW MEMBERS. We welcome four new members to Chambers: Andrei Szerard (1986 call) practices entirely in Family Law, as does Norman Moss (1990 call) - they both join us from Goldsmith Building. Catherine Ellis (2003) combines Family and Civil (largely housing and landlord & tenant - residential and commercial). Tony Martino (1982 call) joins us as a door tenant, with a practice in Media & Entertainment, Copyright and Trademarks. He is Professor of Law at Duke University, North Carolina and a Visiting Fellow at King’s College, Cambridge, as well as being Editor-in-Chief of the Entertainment Law Review.
NEW LAW TO WATCH OUT FOR:
(Please note: Every care has been taken in the preparation of these notes, but the authors do not accept liability for any loss, damage or inconvenience, whether caused by negligence or otherwise, that may be caused to any person reading the same. You should not rely on the contents of the articles or notes as advice for the purposes of any particular case. They are for general information purposes only.)
General updates:
Try www.lawbriefupdate.com for a regular newsletter.
Family:
NEW!! Arrangements for the new courts at Gee Street, London EC1, have been made for trials in designated cases in the PRFD and the Family Division of the High Court. Click above to learn about the facilities available and see the important directions applicable there.
NEW!! Practice Direction on Court Bundles - coming into force 2nd October 2006. Make yourself familiar with this important new direction - there are dire penalties for non-compliance! Look out too for the new timetabling provisions regarding the filing of bundles in court and delivery of bundles to Counsel. There are important tasks for Barristers’ Clerks to perform as well.
NEW!! Article by Abigail Bennett: “Re G - Changing the Face of Parenthood?”
Round-up of the latest family cases and materials by Emily Beer.
Guidance Notes to the Adoption and Children Act 2002 Click here for this note by Jessica Redford.
Parental Responsibility - Father .v. Lesbian Co-Mothers:
Abigail Bennett has recently appeared in the High Court in Re D (Contact and Parental Responsibility: Lesbian Mothers and Known father) (Number 2), soon to be reported in the Family Law Reports. This case examines the implications for the father’s application for parental responsibility where the child was resident with her lesbian co-mothers. Click here for Abigail’s note. A longer article will follow in due course.
Costs in Ancillary Relief - New Rules ; Farewell to Calderbank
The Family Proceedings (Amendment) Rules 2006 come into effect on 3rd April 2006. Applications for ancillary relief, applications under s10(2) Matrimonial Causes Act 1973 or applications under s48(2) Civil Partnership Act 2004 arising before that date will continue to apply the former rules.
Under the amended Rules the general rule will be “no order for costs” in ancillary relief proceedings. However, the court will be able to make an order for costs at any stage of proceedings where appropriate to do so because of the conduct of a party in relation to the proceedings.
In deciding whether to make such an order the court must consider :
A. Any failure to comply with a relevant Rule, order or practice direction;
B. Any open offer to settle;
C. Whether it was reasonable to raise, pursue or contest any particular allegation or issue;
D. The party’s manner of pursuing or responding to the application, allegation or issue;
E. Any other relevant conduct in relation to the proceedings
F. The financial effect on the parties of any costs order.
Another important new feature is that no offer to settle which is not an open offer will be admissible at any stage of the proceedings, except as provided under Rule 2.61E (filing of all offers and responses with court prior to FDR). This marks the end of Calderbank letters in ancillary relief.
Civil:
Housing - Landlord’s possession claim .v. Tenant’s right to buy : procedure
In Basildon District Council .v. Wahlen [2006] EWCA Civ 326 the Court of Appeal has ruled that such competing claims should as a rule be heard together, so that the merits can be investigated as a whole; it should not be a matter of one side racing to get its judgment before the other can. The judge must carry out a balancing exercise, weighing the merits on each side. He must explain the way he carries out this balancing exercise and give reasons for for deciding which claim should prevail.
Compensation Bill : Negligence/Breach of Statutory Duty. Claims Management Services
This Bill has three aspects. First, it deals with the standard of reasonable care in cases of negligence or breach of statutory duty. The object of the proposal is to enable courts to avoid setting so high a standard of care that it deters people from undertaking “desirable activities” or discourages them from undertaking functions in connection with such activities. An example of areas where this might apply could be the supervision by teachers of children engaged on extra-mural activities. The bill proposes that the court may have regard to this deterrent effect of potential liability when deciding whether the defendant should have taken the steps or precautions suggested by the claimant. This provision will not apply to breaches of statutory duty where liability is strict.
Secondly, the Bill provides that an apology, an offer of treatment or other redress shall not of itself amount to an admission of negligence or breach of statutory duty. One hopes that this will especially make itself felt in the field of clinical negligence.
Lastly, the Bill makes detailed provision for the regulation of the claims management services industry. The provision of “claims management services” is defined in such a way as to include (amongst others of course) both branches of the legal profession, but they will undoubtedly be made exempt from regulation by the proposed Regulator, having their own machinery for regulation. “Claims” is widely defined, and includes claims for compensation, restitution, repayment or any other remedy or relief in respect of loss or damage or in respect of an obligation. The claim may be by way of legal proceedings or by other means, such as the Employment Tribunals, the Criminal Injuries Compensation Scheme, the Financial Ombudsman Service etc. These proposals will hopefully mark the demise of the less scrupulous operators in the industry; but whether the intended Regulations will rid our daytime TV screens of those interminable adverts asking if we’ve had an accident at work remains to be seen.
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