NHS and Government banned >>
Internet bankruptcy >>
Telephone hearings healthy >>
Court approval on ancillary relief >>
Depression for property market and couples >>
LAWBITES
What a waste!
The effect a costs order would have on a party is not generally a relevant consideration as to whether, in principle, such an order should be made. How about the effect of a wasted costs order against a legal representative? Okay for the effect to be taken into account, because the order was in the nature of a punitive sanction.
In R (on the application of Hide and others) v Staffordshire County Council [2007] EWHC 2441 (Admin), [2007] All ER (D) 402 (Oct) the solicitor advocate in jeopardy might have been unreasonable and negligent in the conduct of litigation but the evidence was that an order for wasted costs would carry a significant risk of causing her to become bankrupt.
HELD No order. Phew!
Protoproj
A claim by consultant engineers for its fees in respect of two construction projects. Was it covered by the pre-action protocol for construction and engineering disputes? Yes. In Cundall Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust [2007] EWHC 217 (TCC), [2007] All ER (D) 89 (Oct) Mr Justice Jackson ruled that the claim constituted an “engineering dispute” for the purposes of the protocol notwithstanding that it might be characterised as debt collection.
Sick names
It may surprise you but some businesses are seeking to capitalise on the perceived goodwill of the NHS brand by using “NHS” in their company or trading name—or, even more surprising, “Government” (which was previously prohibited on 10 July 2007 under regulations which ran out because they were not considered by Parliament in time). Without secretary of state approval, both were banned on 6 November 2007 by the Company and Business Names (Amendment) (No 2) Regulations 2007 (SI 2007/3152) which was just one day after they were made.
Approval is also required by any person with a place of business in Great Britain carrying on business here with a name that includes that specified expression or word. If there was already a “Government and NHS (Catering and Sanitary Supplies) Ltd” out there, fear not as it will be exempted. There are transitional provisions relating to transfers.
Eeeeeasy Peasy
The government is considering the removal for debtors of the strain of a personal attendance at an insolvency count court or the High Court to procure an order for their bankruptcy.
The proposal is that the Insolvency Service would make the order administratively in the absence of the debtor and upon an online or postal submission of a petition and statement of affairs. The current post-bankruptcy process would remain untouched. What a dreadful idea—a further devaluing of the process which can only give yet more encouragement to debtors to go the entrepreneurial way, perhaps without proper advice and not always appreciating the long-term consequences. A consultation paper is out, and responses on the back of a credit card please, by 11 January 2008.
“IT’S FOR YOU JUDGE”
Predictably, the number of CPR telephone hearings took a leap in mid-2006 and in the last seven months British Telecom (an approved provider along with Legal Connect) tells us it has been handling an average of 2,160 hearings a month. The CPR telephone hearing scheme is now nationwide (though the Royal Courts of Justice do not play and Gee Street has yet to get hooked up).
The allocation of hearings to the blower may now be left to staff at some courts, which makes it all the more important for practitioners to indicate on their application notice when they want the telephone (top left) in any qualifying case unless they have an invincible fear of the invention. The presumption in a qualifying hearing—interim applications, case management conferences and pre-trial reviews with a time estimate of less than one hour, so 60 minutes is without and 59 minutes is within—is that the telephone will prevail.
The enigma is that litigants in person (except where all the parties fall within this class) do not displace the presumption although some procedural judges may be persuaded that because of the nature of the case, this is sufficient in itself to get the parties in. British Telecom says it will take litigants in person from an address other than their home or place of business. And, be it a professional or litigant in person, mobile telephone participation will be accepted. However, this is not recommended because of the risk of poor reception and, in any event, judges may have different ideas unless the litigant in person (or, for that matter, a legal representative) is locked up on remand in a police or prison cell.
“It’s for you, darling though I’ve told them you are watching ‘Newsnight’ but they say you’re the duty judge so that’s tough”
Those who seek relief ex parte are under a duty to make full and frank disclosure. The burden in this regard is a heavy one. Further, the burden and the duty on the legal representative is all the more onerous where a telephone application is being made to a judge who has none of the papers in front of him and knows nothing of the case. R (on the application of S A Lawer v Restormel Borough Council [2007] EWHC 2299 (Admin).
LOOK, NO APPROVAL
A compromise agreement is reached on an ancillary relief application. What is its status? It needs the approval of the court but it is nevertheless binding on the parties to the extent that neither party can resile from it.
The Court of Appeal in Soulsby v Soulsby [2007] EWCA Civ 938, [2007] All ER (D) 132 (Oct), was in no doubt about that. It liked that principle as previously espoused in Smallman v Smallman [1972] Fam 25, [1971] 3 All ER 717. An agreement which was subject to court approval did not mean there was no agreement at all. Its operation was suspended until approval. It was the duty of one party or the other to bring the agreement before the court for approval. If it was approved, it was binding on the parties. If it was not approved it was not then binding.
And look, no application to compromise
Soulsby concerned an agreement post-approved ancillary relief order. Instead of paying the £12,000 per annum periodical payments ordered against him, husband agreed with wife that he would leave her £100,000 in his will. He made a will and was true to his word. Then he became ill and married his cohabitee. He died that evening.
The marriage revoked the will. The wife sued the estate for the £100,000. It was contended for the estate that the absence of court approval to a post-order agreement was fatal to its enforceability. The Court of Appeal ruled that approval was unnecessary. There had been no pending application for any ancillary relief that could be compromised. The husband and wife had not envisaged going back to the court for approval. They could have done but chose not to do so. The estate was in breach of the agreement and liable for the money.
THE HOUSING MARKET MEETS ANCILLARY RELIEF
The downturn in the property market may strike at the very root of an order for ancillary relief, whether made by consent or on a contested hearing. Is there a way out for the party who may be materially worse off than they expected? Short of a reconciliation with the other party, an appeal out of time is the only way out. Alas, no doddle.
Back to Barder
Barder v Barder [1987] 3 FLR 480, [1987] 2 All ER 440—appeal out of time permitted on the basis of the changed circumstances arising from the suicide of the wife following the killing of her children—spelt out the criteria for leave to be granted to appeal out of time.
- New events have occurred since the order which invalidate the basis, of fundamental assumption, from which the order was made so that, if leave were given, the appeal would be certain, or very likely, to succeed.
- The occurrence of the new events has been within a relatively short time (in most cases no more than a few months and extremely unlikely to be as much as a year).
- The application for leave has been made promptly.
- Leave must not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in the property which are covered by the order.
The reality of realty
A rise rather than a fall in asset value had taken place in Cornick v Cornick [1994] 2 FLR 530 which was decided by Mrs Justice Hale (as she then was). She considered three possibilities.
- As to a change in value within a relatively short time owing to natural processes of price fluctuation, she said the court should not manipulate the power to grant leave to appeal out of time to provide a disguised power of variation.
- As to a wrong value at the hearing which led to an order different to the one which a right value would have attracted, leave could be granted provided the party alleging the mistake had not been at fault.
- As to something unforeseen and unforeseeable having happened since the order which has dramatically altered the value of the assets, the Barder principles may apply. However, the circumstances in which this could happen were few and far between.
The case law, taken as a whole, did not suggest that the natural processes of price valuations, whether in houses, shares or any other property and however dramatic, fell within this principle.
Though remember Warren
So a bit of an uphill struggle. But there’s always the earlier Warren v Warren [1983] 4 FLR 529 to give you hope. There, the former matrimonial home sold at a price representing a 78% increase on the valuation adopted and just eight months earlier. Because of such a gross discrepancy, leave was granted with the Court of Appeal at pains in its pronouncements to close the floodgates before they could open.
Foreseeable
The President has been reminiscing on the case law in B v B [2007] EWHC 2472 (Fam), [2007] All ER (D) 404 (Oct). This involved an order made in February 2006 on the strength of a former matrimonial home valuation of £1.25m.
In May 2006 the property sold for £1.6m albeit that the husband had by then carried out £60,000 worth of work to make it more marketable. Apart from that work, the reason for the increase was the then rising property market. Whether or not these matters had been foreseen, they had certainly been foreseeable. Leave to appeal out of time was refused.
Punditry
If it ‘aint dramatic or it was foreseen or foreseeable, you’ve had it. Better get out the valuation and Google what the experts were saying when the order was made about the future for the property market. At least by the end of it you’ll know never to trust a pundit.
