Wednesday, 30 January 2013

STRIKE OUT PLEASE??


I happened to be enlightened by a Member of the Bar (Sundeep Virk: Cornwall Street Chambers) toda as to a new substitution within the civil procedure rules, essentially giving judge’s a much wider discretion to refuse to give relief to a litigant who has been sanctioned (usually) for non compliance with court directions.

With the risk of stealing the limelight from Sundeep, I have taken the liberty (with his permission of course) to publish his well considered comments on the matter:

“…as well as legal aid going in April 2013, so will CPR rule 3.9 which will be deleted in its entirety and substituted with the following wording which has been approved by Rule Committee:

 
'On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need -

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and court orders.'

This is a somewhat stricter rule as it leaves judges with a wider discretion to refuse relief, which is the intention of the high judiciary who seem to have had enough of matters being struck out for one reason or another, but principally for non-compliance with court directions, and the district courts granting relief after conducting a “tick box” exercise following the current 3.9.

If relief is sought then there will be the need for an application which will have to be supported by evidence. I presume that many of the factors in the current 3.9 will feature in post 1/4/13 applications for relief from sanction, for the initial period at the very least.

In Fred Perry (Holding) Ltd (1.2.12) (CA) Jackson LJ did not fault Henderson J for conducting a tick box exercise, but refusing relief from sanction, said that the current 3.9 gives the court a discretionary power to grant relief against sanction and whist the court must consider all the factors set out in the current 3.9, it was not simply a matter of the court ticking all the boxes to show that consideration has been given. Jackson LJ went on highlight the amendment that is due to replace the current 3.9.

Interestingly where relief is not granted after a matter is struck out due to the negligence of solicitors; the only proper recourse would be to sue that solicitor in Professional Negligence.”

Sundeep Virk is a barrister and practises from Cornwall Street Chambers in Birmingham. His profile can be viewed by clicking on the following link: www.cornwallstreet.co.uk/index.php/.../9.../144-sundeep-virk

Saturday, 26 January 2013

THE ULTIMATE SANCTION

Ironically, perhaps one of the most key roles I undertake as a family solicitor is to step aside from being a lawyer, and recognise, on a human level, that the client is often coming to you at a time when they are amidst a hugely emotional and stressful period in their life. It is a simple fact that some people find it easier to come to terms with a marital breakdown than others.

For many people the financial consequences which flow from a marriage (and subsequent separation) can (understandably in my view) often be the source of the most troublesome thoughts. Indeed I often represent those people who are striving to achieve a 'clean break' so that they can live their life outside of the metaphorical prison that is spousal maintenance. It is my job to seek to achieve my client's aims and to manage these expectations in accordance with the current law.

It won't surprise you, however, that a minority of people, regardless of circumstances, seemingly never come to terms with the prospect of financially maintaining a spouse after divorce and to divide assets which they see as the fruits of their sole labour....Comments such as "I will never pay her (usually a her) a penny" and "I bought our house, she is not having anything" are all too familiar.

It is against this background that I found some resonance in the decision of Mr Justice Moor in the case of Young v Young [2013] EWHC 34 (fam).

THE CASE

The case concerned applications made by Mrs Michelle Young (who was represented by Queens Counsel) to commit Mr Scot Young to prison for contempt of court and, secondly, to activate a suspended committal order made in 2009. The issue for Mr Justice Moor, which I will turn to in due course, emanates (as they usually do in cases of this nature) from an extensive litigation history.

In brief summary, Mrs Young contended that the Mr Young was worth £400 million, which were made up of undisclosed assets. Mr Young said that he was penniless. As is her right, Mrs Young put various questionnaires' to Mr Young, which he repeatedly, despite court orders requiring him to do so, neglected and failed to properly answer. It led to by Mrs Justice Parker committing Mr Young to prison in June 2009. She did however throw a lifeline to Mr Young by suspending the sentence for 92 days to enable him to answer the questionnaires'. Mr Young then failed to respond within the time limits, contending that he had been detained under the Mental Health Act.

Then came the real body blow to Mr Young. On an application made by Mrs Young for Maintenance Pending Suit, in December 2009 she was awarded a sum of £27,500 p/m, payment of her rent and the children's school fees. He has never made a single payment and arrears now stand at just short of £1million.

The case wet stale for over a year and it took a further year for the Court to rule in October 2012 that Mr Young was to provide, amongst other things, replies to those questionnaires filed in 2009. Mr Young was told that he would face prison if he maintained his refusal to comply.

THE DECISION