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LAZY LAWYERS LOOKOUT
CPRules, OK!
“I’m telling you they don’t.” “They do. I’ll throttle you with an insolvency practitioner if you deny it again.” “They don’t.” The Insolvent Companies (Disqualification of Unfit Directors) Proceedings (Amendment) Rules 2007 (SI 2007/1906) came into force on 6 August 2007 and settled it. Applications under the Company Directors Disqualification Act 1986 other than for disqualification orders (for leave to a disqualified person to act in connection with company management etc) are governed by the CPR and in particular, the PD Directors Disqualification Proceedings. There is also clarification as to when a claim form versus an application notice is required for a director’s disqualification type matter.
For phoenix lovers only
The Insolvency (Amendment) Rules 2007 (SI 2007/1974) which came into force on 6 August 2007 have tightened up the principal rules on account of a problem highlighted in First Independent Factors and Finance Ltd v Churchill [2006] EWCA Civ 1623, [2006] All ER (D) 427 (Nov). Eh? It’s to do with phoenexism. That’s enough.
In the family
A comprehensive review of family fees is ongoing. And if you think you know what that means, you are probably right. For the moment, content yourself with the Family Proceedings Fees (Amendment) (No 2) Order 2007 (SI 2007/2175) (FPF(A)O 2007) which came into force on 1 October 2007.
n Family non-legal aid/public funded detailed assessments previously costing a flat court fee of £250 will be charged a graded fee dependent on the profit costs claimed so, for example, £300 for up to £15,000 and £5,000 for plus £50,000.
- The High Court swearing fee doubles to £10, plus £2 per exhibit.
- Search fees are up from £25 to £40 for a Principal Registry got at a decree absolute, or parental responsibility agreement and from £10 to £40 for searching a county court or district registry index.
- The civil copy document increases—see Civil Proceedings Fees (Amendment) (No 2) Order 2007 (SI 2007 2176) (CP(A) (No 2) O 2007) and NLJ 21 September 2007 p 1312—are mirrored and an e-document will set you back an extra £2 at £5.
Roll up, free claims, petitions etc
A new scheme has been introduced from 1 October 2007 for remission of civil and family fees (see FPF(A)O 2007 and CP(A) (No 2) O 2007) based on two distinct tests. As to the first—along the lines of the old one—there will be automatic and full remission where the applicant is receiving a prescribed means tested benefit or can demonstrate that their gross household benefit is below a threshold that probably entitles them to a benefit. The second—and new—test is more detailed and based on a simplified version of the means test for legal aid. It will take account of both gross income and fixed outgoings. The applicant could be required to pay a contribution towards the fee linked to a fraction of their disposable income.
Honoris causa—it could be you!
The Ministry of Justice is looking to recommend up to four people for appointment as silks. Nomination forms should be in by 2 November 2007. An appointee must be a qualified lawyer or legal academic who has made a major contribution to the law of England and Wales outside practice in the courts. Writing a legal column for 25 years? Thrice times, nay (though District Judge Gold QC invites you to drinks to celebrate...).
That special relationship again
A more effective regime for recognition and reciprocal enforcement of child and spousal maintenance orders between the UK and US was introduced on 1 October 2007. It will work at a US federal level replacing the previous arrangements with individual states. Go to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (SI 2007/2005); the Recovery of Maintenance (United States of America) Order 2007 (SI 2007/2006); the Family Proceedings (Amendment No 3) Rules 2007 (SI 2007/2268); and the magistrates’ courts (Reciprocal enforcement of Maintenance Orders) (Miscellaneous Amendments) Rules 2007 (SI 2007/2267) and enjoy. An order made here may not be varied or revoked in the US and vice versa. There are transitional provisions.
Working judges (fit for purpose)
Full time chairmen of employment tribunals become Employment Judges on 1 December 2007 (see The Tribunals, Courts and Enforcement Act 2007 (Commencement No 1) Order 2007 (SI 2007/2709)) if you are interested and can take time off from drafting age discrimination claims. To be precise, the primary legislation states that they may be so referred to. No, don’t.
CHILD CASES: NEW POWERS
The first commencement order under the Children and Adoption Act 2006 (SI 2007/2287) brought ss 6 and 7 into force on 1 October 2007. They’re all about the family assistance order (FAO), risk assessments and disclosure on child support appeals.
FAOs more flexible
The maximum period for which an FAO can be made is doubled to 12 months and the need for exceptional circumstances to justify an order is removed. If an order under the Children Act 1989 (ChA 1989), s 8 is made concurrently with a FAO, the court may direct that the FAO officer is to prepare a report (unsurprisingly branded a FAO report by amendment rules—hold on a few seconds for those) on such matters relating to the FAO as the court may require. These may include whether the s 8 order ought to be varied or discharged. The Family Division’s President has issued Practice Direction (Family Proceedings) (FAOs) [2007] All ER (D) 59 (Sep). It provides that before making an FAO the court must have obtained the opinion of the appropriate officer (given orally or in writing such as in a ChA 1989, s 7 report) about whether or not it would be in the child’s best interests for the order to be made and, if so, how it could operate and for what period. Any person whom the court proposes to name in a FAO must be given an opportunity to comment on an officer’s opinion.
Risky
Where an officer is performing any specified duties and is given cause to suspect that a child might be at risk of harm, he must now make a risk assessment for the court. The President has issued the separate Practice Direction (Family Proceedings) (Risk Assessments under the Children Act 1989, s 16A) [2007] All ER (D) 58 (Sep). It provides that the duty to provide the assessment to the court arises irrespective of the outcome of the assessment and so even after a conclusion that there is no risk of harm, the assessment is to be given and in reporting the outcome the officer is to make clear the factors that triggered the decision to carry out the assessment.
Up the rules
The Family Proceedings (Amendment) (No 2) Rules 2007 (SI 2007/2187) and the Family Proceedings Courts (Miscellaneous Amendments) Rules 2007 (SI 2007/2188) which both also came into force on 1 October 2007, extend the principal rules to cover FAOs and risk assessments. In relation to the latter, they allow the court to consider whether or not any information should be deleted before it is served or whether service should be delayed to prevent risk of harm to a child.
The principal rules deal with when information can be disclosed from family proceedings relating to children without disclosure amounting to a contempt (see 155 NLJ 7191 pp 1314–15). This has caused problems with cases before the Child Support Appeal Tribunal being adjourned, to enable people bursting to make a disclosure having to seek the necessary permission from the family court. The amendment rules permit automatic disclosure for certain purposes including a child support appeal. Court leave is also dispensed with for disclosure, eg of court reports and judgments, to adoption panels in care and placement proceedings.
PRE-ACTION NOSEPOKING
Some useful guidance from the Court of Appeal on CPR 31.16 pre-action disclosure and the special costs provisions that apply in SES Contracting Ltd and another v UK Coal plc and others [2007] EWCA Civ 791, [2007] All ER (D) 410 (Jul). The applicant had secured a disclosure order after a contested hearing for which the respondent had relied on extensive witness statements which, according to the judge below, “looked impressive and intimidating”. But the respondent had declined to go so far as to produce any of the documents of which the judge ordered disclosure. The respondent was ordered to pay the applicant’s costs. It appealed that order.
Applicant pays—general rule
CPR 48.1 provides for a general rule on these applications that the applicant should pay the respondent’s costs but that the court may make a different order having regard to all the circumstances, including the extent to which it was reasonable for the respondent to oppose and whether or not there has been compliance with any relevant pre-action protocol. Lord Justice Moore-Bick said that these costs provisions implicitly recognised that it will not be unreasonable for the respondent to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. In this case, the judge’s exercise of discretion had been flawed. There was ample material to justify a departure from the general rule having regard to the judge’s well-founded criticisms of the respondent but not to the extent of requiring it to pay the applicant’s costs, including the costs of preparation of the application. A no costs order was substituted.
CPR 45th update—first course
The latest update was effective on 1 October 2007, reflecting changes made by the Civil Procedure (Amendment) Rules 2007 (SI 2007/2204), which we have already met by way of a chef’s introductory treat in relation to the new mental capacity law—see NLJ 21 September 2007 p 1313, and with a plethora of PD revisions.
Possession—pleading and postponing
n If a claim for possession in respect of residential property let on a tenancy relies on statutory grounds, then they must be specified in the particulars of claim—on and off line.
n PD55, s IV is devoted to orders fixing a date for possession after a postponed order has been made but then breached. We have suggested that a postponed order can be made not only for a secure tenancy but for an assured tenancy where a discretionary ground applies. The proposition is recognised by an amendment to s IV which applies the section to the fixing of a date for possession in the case of an assured tenancy order made under the Housing Act 1988, s 9(2)(b).
More appealing
The time for appealing an authorised court officer on a detailed assessment of costs is increased from 14 to 21 days.
Kids’ stuff
PD21 is amended to improve the procedure on investment of children’s funds. At the approval application, the judge is to be provided with a CFO form 320 (initial application for investment of damages) and the court will later send form 212 (request for investment decision) to the Court Funds Office. Any evidence or information which the litigation friend wishes the court to consider regarding investment, is to be given to the judge on approval. On awarding damages at trial, unless the damages are very small and it is appropriate to order them to go to the litigation friend to be put into a building society account (or similar) for the child, the trial judge will direct payment into court with the placing of the damages in the special investment account until further investment directions have been given. The trial judge will also direct an application—to be fixed within 28 days if so inclined—to a master or district judge for further investment directions.
