Exchanging Contracts

A binding contract comes into existence on exchange of contracts, after which neither party can withdraw incurring the liability for breach. Therefore necessary to check all o/s queries have been dealt with before exchanging (‘the point of no return’) .
The actual time when a contract comes into being depends on the method used to effect exchange.

Authority to exchange: Once a solicitor has his clients authority to exchange he may then do so choosing which ever method he deems appropriate. Exchanging without clients authority can lead to the solicitor being liable to the client in negligence.

Exchange usually initiated by the buyer indicating the buyer is ready to commit himself. Where the purchase of one property is dependant on the sale of another the solicitor must ensure that exchange of contracts and completion are synced in order to avoid leaving the client with two houses or none at all.

Telephone exchange

• Most common method of exchange.
• The quickest way of securing an exchange of contract.
• Contract in effect as soon as solicitors agree that exchange has taken place.
• After the telephone call, a physical exchange of documents occurs through the post.
• HOWEVER if one party decides to withdraw, it’s all too easy for them to deny the contents of the phone call. Without which no contract can exist.
• To avoid any problems must agree prior to exchange to adopt The Law Society formulae. And an accurate attending note recording the telephone conversation must be made as soon as possible:
• Formula A: Used where one solicitor already holds both parts of the contract before exchange.
• Formula B: this is used where at time of exchange each party’s solicitor is still in possession of his own clients signed contract.
• Formula C: designed to be used in a chain transaction.

Personal exchange

• Rarely used.
• The solicitor for each party meets usually at the sellers office to exchange.
• Contract exists from the moment of exchange.
• Although not practical as solicitor office may be physically at great distance from each other.
• Has benefit of seeing the others contract before exchange and can therefore be checked to make sure they’re identical.

Postal exchange

• Exchange takes place once seller solicitor receives signed contract and deposit. After which he sense the clients signed contract.
• Exchange deemed to have taken affect once seller posts his clients signed contract (Adams v Lindsell (1818)).
• However a postal exchange is not recommended where a chain of transactions take place. Due to the possibility of contract may get lost in the mail.

Document exchange (DX)

• Most solicitors belong to a document exchange (private postal system).
• Postal rules do NOT apply to DX. And unless contract states otherwise, the contract comes into existence when the seller’s part of the contract is received by the buyer.
• The contract is made when the last copy of the contract is deposited at the document exchange.

Fax exchange

• Standard Conditions does not permit fax to be used as a valid method of service of a document.
• An exchange by fax is not a valid exchange of contracts under s2 LPA (Misc Provisions) Act 1989.

Email

• At the moment contracts for sale of land must be in writing so cannot be entered into electronically via email or via the internet.
• However government proposals for electronic conveyancing would allow contracts to be made electronically. Under which there would be only one copy of the contract which would be stored and ‘signed’ electronically.

BLP - Partnership Liabilities

A partner who acting within the authority granted to him (s5 PA1890):

• Will bind his fellow partners and
• Make any debts so incurred by him partnership rather than personal debts (thus also binding the other partners).

In contract if a partner acts outside his authority then any debts will be his alone.

Liability of partners for partnership debts

Each partner is both jointly and severally liable to outsiders for any act or omission committed by any of the partners/employees in carrying on the partnership (s9-12 PA 1890). A third party has the option to sue:

1. The partnership (meaning each partner is liable).
2. All the partners in their own names.
3. Any one or more of the partners in their own name.

For the full amount of his loss, depending on which the 3^rd party believes to be the most successful course of action. Allowing the 3^rd party to cherry pick the most affluent or easily accessible partner and pursue him.

Liability of new and retiring partners

Under s17(1) of PA 1890: “A person who is admitted as a partner into an existing firm does not thereby become liable to the creditors of the firm for anything done before he became a partner.” Unless the new partner enters into an agreement to that effect.

Under s17(2) “A partner who retires from a firm does not thereby cease to be liable for partnership debts or obligations incurred before his retirement.”

Unless

17 (3) “A retiring partner may be discharged from any existing liabilities by an agreement to that effect between himself and the members of the firm and the creditors”.

A retiring partner could also request his fellow partners (and creditor if possible) indemnify him against any historic debts unsettled at the date of his retirement. However whether or not such an indemnity is granted and the terms it sets out will depend on the strength of the outgoing partners bargaining position.

ALTHOUGH a partner has no liability for debts incurred after he ceases to be a partner (s17(2) PA 1890) this can be overturned. And thus he must be careful that they do not:

• Allow themselves to be held out (s14 PA) as still being a partner or
• Permit 3^rd parties to continue in the belief they are still partners (s36 PA).

This can be done by ensuring his name is removed from all partnerships documents. As well as under s36 PA give notice both generally to the world at large through an advertisement in the Gazette. Allowing a retiring partner to escape liability for future debts. And if possible under s36 (1) write to the firms actual clients notifying them of his retirement.

BLP - Partnership

Intro

Partnerships are created by two or more people “carrying on business in common with a view to profit” (s1 PA 1890). They do not necessarily need written agreement between partners for it to exist. In the absence of an agreement they are governed by PA 1890.

No registration is required. Altho do have to inform HMRC within 3 months of commencing business. Lack of registration and limited regulation mean Partnerships can keep internal affairs private and in theory is cheaper to run.

They are however taxed as self-employed people therefore have to pay income tax.

Legal Status of Partnership

All partners share in responsibility for debts and obligation of the partnership. Their liability is joint and several (any partner of the business can be called upon by a creditor to settle a debt. Which can ultimately leading to partner becoming bankrupt).

It is the partners themselves who are the business and it is they who are and who will be responsible personally for what is done in the name of the Partnership. Thus no protection is offered to partners from 3^rd parties. Therefore no need for a 3^rd party to request a personal guarantee when lending/ offering credit to a partnership. The partners are already personally liable for all partnership liabilities.

Partnership Agreement

Is whatever the partners agree between themselves therefore can be oral or in writing express or implied. A Partnership exists as long as:

• Existence of a contractual intention and
• A relationship capable of satisfying required of s1 PA based on intent.

Partners are also free to agree any restrictions they like between themselves within their agreement and thereby bind themselves contractually even if such agreement curtails the rights given to them under PA 1890. However what they can’t do is restrict the protection given to third parties under PA 1890.

Under s19 PA 1890 partners are free to vary the terms of the agreement if they so choose. But only if all the partners unanimously agree to its amendments.

No matter what form the Partnership Agreement takes it’s always a private document and may be kept confidential between partners. It does not appear on any public register unlike those of a limited company and no third party has the right to demand to see it.

BLP - Entering into contracts, agreements and arrangements

It is common for directors to have the authority to enter a wide range of contracts. Such authority comes from Table A art 70:

70 … the business of the company shall be managed by the directors who may exercise all of the powers of the company.

Therefore subject to CA 06, the companies own Memorandum & Articles directors can make a decision without requiring member approval.

HOWEVER under s190 CA 06, a director or a person connected with a director buying or selling an asset for/from the company and that asset is “a substantial non-cash asset” will require approval by the members by ordinary resolution. Either before the contract is entered into or entered into subject to members consent.

Test for a substantial non-cash asset (s191)

• An asset worth less than £5,000 is never substantial.
• An asset worth in excess of £100,000 always will be substantial.
• An asset worth between £5000 - £100,000 will be substantial, if it exceeds 10% of the company’s asset value (or net asset value).

A connected person with a director of a company is (s252-253 CA 06):

• A member of the directors family.
• A corporate body he’s connected to.
• Child of director
• Parents

Therefore before directors can purchase an asset under art 70, which is a substantial non-cash asset, they must first obtain the consent of the members consent by ordinary resolution or at least make it a condition of the contract that approval being obtained from members.

OTHERWISE the transaction is generally voidable at the Company’s request whilst those “liable” must account for any gain and indemnify the Company in respect of any related loss (s195 CA 06).

The Role of the Solicitor At the Police Station

Under s58 PACE 1984 a suspect detained at the police station is entitled to free legal advice and to be represented.

The solicitor role at the police station is to protect and advance the legal rights of their client (Code C Para 6) confidentiality.

The initial telephone call may happen at any time from the custody officer advising a suspect has been arrested and needs a solicitor. He can only give you the suspects name and offence committed. You MUST speak to the client:

• Advise the client to confine his conversation to Yes/No answers in response to your questions.
• Confirm he wants you to represent him
• Advise any advice given is free.

DO NOT ALLOW CLIENT AT THIS STAGE TO GIVE HIS VERSION OF EVENTS!

Tell client:

1. When you’ll be attending and what you’ll do.
2. Not to talk to anyone about the case.
3. Not to agree to be interviewed or sign anything, not to give samples or take part in an identification parade without you being there.

The solicitor MUST attend the station immediately if:

• The offence is serious
• And interview or samples need to be taken straight away.
• The client is vulnerable.
• The client complains of being mistreated.
• Representations need to be made about the clients detention.
• The client needs to speak to the solicitor in confidence.

Other steps that need to be taken:

1. Check the law: check the legal elements of the offence the suspect has been accused of so you’re aware of what needs to be proven to prosecute your client.
2. Check old files: in case your firm has represented the client before and what was the outcome of those proceedings and if it’s of the same type of offence. The will also reveal if clients vulnerable.

On arrival at the police station

The custody office is the first person you speak to, giving you basic information about the circumstances. You should also view the custody record and detention log (Code C para 2.4) recording all significant events since the clients arrival. Use the custody record to obtain your clients basic info and:

1. The alleged offences for which the clients been arrested.
2. Time of detention and reason for authorisation (Delay).
3. Any significant comments made whilst at the station.
4. Any samples which may have already been taken.
5. Any identification procedure taken place.
6. Any interview already taken place.
7. Client under any physical/mental disability requiring appropriate adult.
8. Any illness client suffering from or requires medical attention. Or suffering from the effects of alcohol or drugs.
9. Any significant items found on clients person or premises.
10. If clients been in detention for six hours or more, any details of detention reviews and reason why client continued detention has been authorised.

Once you have obtained the basic info you need to speak to the investigating officer to obtain:

• The facts of the offence.
• Disclosure
• Significant statements.
• The next step in the investigation.
• Previous convictions.
• Any witnesses & if they gave statements and likely to attend court.

The client

• The solicitor needs to identify himself to the client and his role and provide free advice and has no connection with the police but to protect his rights. And anything he is told by client will remain confidential.
• Inform the client of what you’re been told about the offence the client has allegedly committed. As well as informing the client of the substantive law and what the police need to obtain a conviction.
• The clients instructions; getting his version of events.
• The nest step the police intend to take. Usually to take part in a recorded interview.
• Prepare the client for interview. Whether to answer questions or not or simply prepare a written statement if client is to give a ‘no comment’ interview.

The solicitor must aim to:

1. Investigate the prosecution case.

2. Obtain info to assist in the conduct of the defence.

3. Avoid client giving evidence which might strengthen their case.

4. Influence the police not to charge or

5. Create a favourable position for the client.

Liability at Common Law

Negligence places a burden upon the claimant to prove:

1. The D owes him a duty of care.
2. The D is in breach of that duty.
3. The breach has caused consequential losses reasonably foreseeable.

Establishing liability for road traffic accidents:

Road users have a duty of care to avoid causing injury to others who maybe injured by their actions. The standard of care is that of the ordinary skilful driver. Drivers owe a duty to take reasonable care to ensure the safety of their passengers.

Funding: Many firms offer a free initial half-hour interview, where they will form a view as to the viability o a PI claim:

• Conditional fee Agreement: Under s58 of the Courts and Legal Services Act 1990, a solicitor and client can agree that the client will pay his own solicitor costs under certain agreed circumstances (usually upon winning).
• After the event insurance: Insured against having to pay the other sides costs and disbursements as well as own. Usually taken out once legal action is required and before proceedings have commenced,

The clients proof of evidence not to be confused with the clients witness statement. The function of the proof is to obtain the fullest possible detail from the client. Usually taken at the end of the interview.

Limitations

• Has the 3 years limitation period expired? If so the solicitor should consider issuing protective proceedings immediately.
• Or request for the limitation period be disapplied.
• When was the client aware of his injury and cause of action.

Steps to be taken to kick start RTA claim:

1. Get the CFA signed
2. Gather evidence (medical records)
3. Issuing letter of claim.
4. Contact witnesses.
5. Deal with any mitigating losses.
6. Consider money laundering.
7. Do an MID search or DVLA search.
8. Obtain a police accident report, from the Criminal Justice Support team.
9. Instruct a doctor
10. Proof of Evidence

Pre-action protocol -Letter of claim: Nominate a medical expert to be agreed by both parties and draft a schedule of loss.

Children

The Welfare Principle must be considered by a court when making an order in regards to a child: “The childs welfare is paramount consideration” (s1 (1)).

The Statutory Checklist under section 1(3) of the Children Act 1989 the court must have regard in particular to:-

1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
2. His physical, emotional and educational needs
3. The likely effect 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 question to be relevant, is of meeting his needs
7. The range of powers available to the court under this Act in the proceedings in question.

Parental Responsibility (PR): all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property (s3 (1) CA 1989). It gives the parent responsibility for taking all the important decisions in the childs life. However ‘parental authority ceases in respect of any aspect of a childs upbringing about which the child himself is sufficiently mature to make decisions for himself’ (Gillick v West Norfolk & Wisbech Area Health Authority [1986]).

Section 8 orders usually made in respect of children are:

• Residence Order: Settles with whom a child shall live. Usually with someone who has PR, but can be made to a non-parent which will automatically grant them PR for as long as the residence order is in affect (s12, CA 1989). A residence order can be made to more than one party (shared residence) where the court will specify the number of weeks and holidays the child spends with a particular parent. HOWEVER they court shall only do this where it is within the welfare of the child to do so.

• The RO provides the child cannot be known by any new surname without: (1) written consent from everyone with PR, or (2) permission from the court.
• Also where a RO is in force no one can remove the child from the UK for longer than a month without either: (1) written consent of everyone with PR, or (2) leave from the court.
• Breach of a RO is contempt of court and an offence under the Child Abduction Act 1984.

• Consent Order: Requires the person with whom the child lives to allow child to have contact with person named in the order. There is a presumption in favour of the child having contact with both parents unless there’s a good reason NOT to. Courts will look at circumstances to determine the level, frequency and duration of contact or even left as ‘reasonable contact’ to allow the parties to decide themselves. ALTHO a contact order can also be made to prevent contact with someone (Nottinghamshire County Council v P [1993]) alternatively this also be achieved by a prohibited steps order.

• Where there has been violence, the court mist consider: (1) the past and present conduct of both parties, (2) the effect of the violence on the child and the residential parent, (3) the motivation of the parent seeking contact and (4) in cases of serious domestic violence, the ability of the offending parent to recognise his past conduct and be aware of the need to change & make a genuine effort (Re K (Contact: Mothers Anxiety) (1999)).
• Violence usually establish by holding a fact finding hearing; which once decided can not be disputed.

• Prohibited Steps Order: directs that a certain step which would otherwise be exercised in PR shall not be taken by that person without the permission of the court. The prohibited action must be specified in the order. Prohibited steps order is limited to matters which come within PR.
• Specific Issue Order: gives directions in order to determine a specific question or to resolve a specific dispute over exercising PR. Usually used to settle arguments over:

• School child should attend.
• Medical treatment child is to receive.
• Religious upbringing.

The ‘no order’ presumption under s 1 (5) of the CA 1989:

“The Court shall not make any order… unless it considers that so doing would be better for the child than making no order.”

Disposal of assets

Preventing the disposal of assets: possible to seek injunction under s37 (2) (a) Matrimonial Causes Act 1973 preventing a party from disposing of property. Although it’s usually easier to protect it by registering a matrimonial home right (s30 Family Law Act 1996).
For a s37 injunction, an application for financial relief under MCA 1973 (for limp sums/property adjustment order) is required. Granting an injunction if other party is about to make a disposition with intent of defeating the claim for financial relief or by impeding its enforcement.

If the disposition is already made, under s37 (2) (b) a court can set aside the disposition unless made to a bona fide purchaser.

Matrimonial home rights (s30 FLA 1996) protect a non-owning spouse against eviction from the matrimonial home. Which terminate upon the death of the owning spouse, unless directed by the court to continue beyond this even (s33 (5) FLA). Matrimonial home rights should be registered thereby binding any subsequent buyer.
A search by Index Map search @ Land Registry will reveal if the property is registered at which point an “agreed notice” should be placed on the register. If unregistered a Class F land charge should be registered against the name of the owning spouse.
Under s30(3) FLA a lender is obliged to accept payment from a non-owning spouse (also applies to rent payments). Once the matrimonial home rights have been registered they are binding on trustee in bankruptcy and on creditors. Although the trustee may apply to the court to have these rights terminated.

Pending Land Action: can be done once proceedings have commenced in relation to property. A request for a property adjustment order in the prayer of the petition is effective beyond the termination of marriage.
REGISTERED LAND – Unilateral notice in the proprietorship register.

1. Check to see if its registered via an Index Map Search.
2. Register an agreed notice in the Charges Register.

UNREGISTERED LAND – Registering a pending action against the name of the owning spouse. This prevents new deals with the property taking place without the non-owning spouse finding out.

Cohabiting Family

Couple who live together without getting married or entering into a civil partnership are cohabitants.

Occupation order by cohabitants maybe brought under s36, where the respondent is entitled to occupy the home (by virtue of a beneficial estate/interest, contract or by statue). The home must be or have been intended to be the couples home.

Once granted s36 (13) provides that the applicant is provided the same protection as a spouse under s30 (3)-(6). Therefore any landlord or mortgagee must accept payment towards the mortgage or rent.

On the break up neither party is entitled to claim or maintenance, lump sums or a property adjustment order. Maintenance can however be claimed for any children of the relationship.

In a dispute over ownership/occupation of the home it’s possible to seek a declaration of ownership under s14 of the Trust of Land and Appointment of Trustee Act 1996 (TLATA).

Jointly owned property intentions to ownership should be clear from deeds. Either can apply for an order of sale under s14 of TLATA 1996. Proceeds divided equally among parties.

Legal estate in one name only: the other party will have establish a claim in equity; by establishing a resulting or constructive trust or by proprietary estoppel. If successful non-legal owner will be entitled to a share in the property as determined by the court. Interests based on direct contributions i.e. to the purchase price have been dealt with under resulting trusts! Interests based on wider equitable principles i.e. because its just and equitable are clearly just and equitable are clearly constructive trusts or proprietary estoppel.

Section 14 and 15 of TLATA 1996 gives the court powers to deal with disputes of land subject to trust. Section 14 gives the court power to make an order that reflects the underlying nature and purpose of the trust. Section 15 sets out things the court must take into account:

1. Intentions of persons(s) who created the trust.
2. The purpose for which the property is held.
3. The welfare of any minor who occupies or may reasonably be expected to occupy trusts property as his home.
4. The interests of any secured creditors (mortgagee).

The court must also take into consideration: if she can maintain the property itself and afford to pay bills and mortgage etc. If not the court may also order a sale of the property.

Divorce Law and Procedure

A petition for divorce can not be presented before a period of one year from the date of marriage (s3, MCA 1973). In order to discourage over hasty decisions to end a marriage. The English courts have jurisdiction to hear a divorce suit only where both parties are habitually resident & domicile in the England and Wales.
However a solicitor should also bear in mind the alternative solutions to protect a client during the first year: a decree of nullity or judicial separation is NOT affected by the one year rule.

Grounds for Divorce
“Irretrievable breakdown of marriage” s1 (4), MCA 1973. In order to prove the petitioner must satisfy one or more of the requirements under s1 (2) MCA 1973:

s1 (2) (a) adultery and petitioner finds it intolerable to live with the R. The two elements require to prove this is:

1. (i) adultery.
2. (ii) Intolerability.

You can only commit adultery with a member of the opposite sex and therefore does NOT apply to Civil Partnerships. The test for Intolerability is subjective: applicant need only be convince the court that the applicant finds it intolerable to live with the respondent. Which is usually sent as an assertion in an affidavit. With cohabitation: applicant can’t rely on adultery if the parties cohabit for a period of 6 month from the date of discovery of the adultery (s2 (1) MCA 1973). This allows the parties a chance to reconcile.

S1 (2) (b) behaviour: respondent behaved in such a manner that the petitioner cannot reasonable be expected to live with the respondent. Objective test: ‘cannot reasonable be expected to live with R’. Court must make a judgement about R behaviour. Taking into account the history of the marriage as well as personalities.
In an undefended case the court will look for 3/6 examples of behaviour (his first, worst & last) i.e. physical violence, verbal abuse (inc insults, threats, nagging), demanding sexual intercourse too often or not agreeing to intercourse at all. Cruelty, failure to provide money for food, affection or attention.
Merely falling out of love or being incompatible will NOT be sufficient.

S1 (2) (c) desertion: the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the petition. There must be an intention to desert and bring the union to an end. The petitioner must NOT have agreed or consented to the separation. Nor must the respondent have had just cause to leave. And the leave must be continuous.

S1 (2) (d) two years separation with consent: parties lived apart for a continuous period of at least 2 years and respondent consents. Elements required (1) Separation (2) respondents consent.
A separation of the spouses living apart or living completely separate lives. A mental element requires spouses to regard the marriage as a mere shell and never intending to live with the other spouse.
Consent of the respondent must be acquired. Preferably in writing or given at the hearing to the district judge signed. Usually given in the acknowledgement of service form returned by the respondent. Respondent can withdraw consent at any time before decree nisi. However even after the decree nisi the respondent may withdraw consent by application to the court, who can rescind the decree if they are satisfied applicant misled the respondent.
Cohabitation of up to 6 months can be disregarded.

S1 (2) (e) 5 years separation: parties lived apart for a continuous period of at least 5 years. No need to obtain applicants consent. No defence except to deny separation or prove grave hardship under s5 MCA 1973. But maybe delayed to consider respondents financial position.
Grave hardship: dissolution of marriage would result in grave financial hardship to the respondent and maybe wrong to dissolve marriage.

Nullity is a declaration that a marriage is either void from the outset or voidable in which case its valid until the decree is obtained. Not effected by the one year rule. A marriage will be void in situations which inc:
a) Where the parties too closely related.
b) Either party was under 16yrs at the time of the ceremony.
c) Either party was already lawfully married (s11, MCA 1973).
If a marriage is void, it never existed.

Service of Petition: must be served on the respondent. Method of service usually by post, including copy of:

1. A notice of proceedings (M5) general exp of divorce procedure.
2. An acknowledgement of service (M6) proof of service.
3. A copy of the statement of arrangement for the children (M4) attached to respondent copy of petition.

Alternative Method

• Personal service by court bailiffs. Usually for a small fee + inc a small description/photo. Bailiffs serve the document personally and file a certificate of service. Which can be used as evidence of service if the acknowledgement is NOT filed by the respondent.
• Service through the petitioner (r2.9 (2) (6)) a process server is instructed or the petitioner’s solicitor.

Funding In Family Law Cases

A solicitor can not enter a conditional fee agreement with a client in relation to family proceedings. However public funding maybe available where the clients of modest means. Section 8 of The Access to Justice Act 1999 establishes the funding code for funding individual cases.

Effect of public funding: to serve immediate notice upon the court and other parties the original public funding certificate. As a result the solicitor owes duties to the Legal Service Commission and must report any acts of unreasonableness by the client. Duty to LSC overrides the solicitor’s usual duty of confidentiality.

Statutory Charge: Where services have been funded by the commission this should be considered as a loan to the funded person. They will have to repay it through contributions from capital or disposable income. Applies where property is recovered or preserved.
It does NOT apply in the following cases:

• Where you do not gain/reap money or property in dispute.
• Where you recover all your costs from the other side.
• To maintenance payments.
• To the first 2,500 or 3,000 of any money/property you gain.
• Where you’re being advised by a solicitor while attending family mediation (req ‘Help with Mediation’ certificate).
• Advice given under “Legal Help”.

Sears Tooth Agreement- An agreement to assign any awards for financial relief to the firm in order to pay their fees.

Maintenance Pending suit: a court awarding a sum of maintenance pending suit at such a level as to include money for legal fee’s. However this is usually a last resort.

Lump Sum Orders can be made as an additional instalment to provide the other party with funds from which they can pay legal fees in anticipation of future litigation.

Bank loans: borrowing money in order to meet legal fees. However there will be conditions attached to such a loan and will vary from one bank to another (i.e. where the client can offer security or a favourable opinion from counsel on the outcome of litigation).

Useful Forms:
CLS APP3-Application for CLS funding Certificate: General Family Help.
CLS APP5-Application for CLS Funding Certificate: Special Children Act Proceedings.
CLS APP7-Applicationm for General Family Help and Legal Representations in Family Proceedings.
Controlled work 1 form: Application for CLS Funding Certificate for legal help and help at court.

Domestic Abuse

Generally covers cases of personal violence, threats, intimidation and harassment. Court Action is not the only remedy, a solicitor letter warning the perpetrator to desist from his behaviour or face court action may act as a deterrent.

Under FLA 1996 there are two types of orders available:

a) Non-molestation order (s42): for the protection of parties and children. Prohibits the respondent from molesting the applicant or a child. Also covers pestering and harassment. Can be granted on application by any associated person or a free standing applicant. S42 (5) specifies the court needs to consider the health safety and well-being of the applicant and any child. An order will be granted if the applicant can show a genuine need for protection. Orders can be made for specific period or until further orders/indefinite s42 (7).

b) Occupation orders (s33 and 35-38): excludes the other part from occupation of the home/specified area. Both spouses and cohabitants can apply. ‘Associated persons’ are defined under s62. Under s33 an applicant has an existing right to occupy the home if she is entitled to occupy by virtue of a beneficial estate, interest, contract statutory entitlement. The home must have been intended to be the home of the applicant and the person with whom she associated (Resp). Where the above requirement is met, the applicant can apply for an occupation order which may:

• Require the resp to allow the applicant to enter and remain in the home or part of the home.
• Regulate the occupation of the home by either or both parties.
• Prohibit, suspend, restrict the respondent exercise of his right to occupy the home.
• Require the respondent to leave the home.
• Exclude the respondent from a defined area.

Factors the court must consider (s33(6)) including circumstances:

1. Housing needs and resources of the parties and any child.
2. The financial resources of the parities.
3. The likely effect of making an order or not making an order on the health, safety of the parties and child.
4. The conduct of the parties.

S33 (6) is subject to the ‘balance of harm’ test: an order shall be granted where it appears the applicant or any child is likely to suffer significant harm attributed to the respondent conduct, unless:

• The respondent or a child is likely to suffer significant harm if the order is made; and
• The harm suffered by the respondent or child is greater or greater than the harm suffered by the applicant.

Emergency Application (s45) under FLA 1996 makes it possible to protect the applicant either on the same day or the day after. Allowing the court to make both non-molestation and occupation order without notice to the respondent. Where it considers it to be ‘just and convenient’. Taking into account:

• Risk of significant harm to applicant if order not made immediately.
• Likelyhood of applicant being deterred/prevented from making an application if order not made immediately.
• Whether there is a reason to believe respondent is avoiding service and delay will prejudice applicant.

The courts are generally reluctant to grant orders where the respondent has been given no notice.

NOTE: ANY ORDER MADE WITHOUT NOTICE IS TEMPORARY, THE SOLICITOR MUST OBTAIN A HEARING DATE FOR FINAL

Undertaking (s46): a full hearing can be avoided by the respondent giving an undertaking, i.e. a promise to the court. The applicant often accepted the undertaking since it was made voluntarily & therefore more likely to be complied with.

However the court will not accept an undertaking on an application for a non-molestation order where the respondent has previous used or threatened violence.

Procedure: Under part IV of the FLA 1996 solicitor can bring an application either at the family proceedings court can not deal with cases where there is a dispute order applicant right to occupy the house (s59). This can only be deal with at the county court. But only in divorce county court or family hearing centres. Any application made by an under 18 must be commenced at the High Court.

Note: Occupation orders can’t be dealt with by the Family Proceedings Court.

Obtaining a non-molestation, occupation order without notice:

• Grant Emergency Legal Representation but only if applicant or child is in immediate danger of significant or imminent danger. Before application will be brought before the court.
• Telephone the court to make an appointment before the judge/magistrate if necessary.
• Telephone a process server to attend court to serve it on the respondent.
• Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Why without notice?

Obtaining a non-molestation or an occupation order on notice

• Grant Emergency Legal Representation.
• Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Sworn to be true. Notice of issue of Legal Representation. Where the application is ancillary to a divorce under Legal Help, a notice of acting must be included.
• File the application in duplicate.
• On filing the court fixes a hearing date which will be inserted in a notice of proceedings (FL402). The respondent must be given two clear days notice of this date.
• Prepare the draft order(s)required on FORM FL404 or FORM FL404a.

Magistrate's vs Crown Court

What will be taken into account by the Magistrates when deciding whether they can deal with an either way offence?

Under s19 Magistrates’ Courts Act 1980 the Magistrates will take into account the following matters:

• The nature of the case
• Whether the circumstances make the offence one of a serious character
• Whether the punishment available to the Magistrates would be adequate
• Any other circumstances which appear to the court to make the case more suitable to be tried one way or another
• Representations made by the prosecution and defence

Advantages and disadvantages of being tried by the Crown Court

Advantages of being tried in the Crown Court:

• Lower Conviction rate (juries more likely to acquit than Magistrates).
• More appropriate procedure for dealing with voir dire hearings.
• Availability of non means tested legal aid. Although to be eligible for legal aid the defendant still has to pass the interests of justice test. However, the defendant must be advised about the risks of a Recovery of Defence Costs Order (RDCO) should he be convicted.

Disadvantages of being tried in the Crown Court:

• The Magistrates would deal with things more quickly.
• The Magistrates is less formal and therefore less stressful.
• If the defendant is convicted he will be ordered to pay prosecution costs which are higher in the Crown Court. In addition, he may be ordered to pay something towards his defence costs. Such defence costs will not be ordered in the Magistrates Court.
• The Magistrates have lower sentencing powers (maximum of 6 months custody unless sentencing for 2 or more either way offences in which case the overall maximum is extended to 12 months).
• The defence are not obliged to serve a Defence Statement in the Magistrates’ Court (s6 Criminal Procedure and Investigations Act 1996).

Application for Bail

Q. Who has a right to bail under S4 Bail Act 1976?

Under s4 there is a presumption that bail should be granted to all defendants up until they are convicted – unless there are grounds for refusing bail.

Q. What are the 3 most common grounds for refusing bail?

The grounds for refusing bail are found in Schedule 1 Part 1 of the Bail Act. The 3 most common grounds for refusing bail are:

• That the defendant will fail to surrender to custody
• That the defendant will commit further offences whilst on bail
• That the defendant will interfere with witnesses or with the course of justice

Q.What factors will be taken into consideration when deciding whether one or more of the grounds exist(s) for refusing bail?

Schedule 1 Part 1 Paragraph 9 sets out the factors to be taken into account by the court when considering if a ground exists for refusing bail. These are:

• The nature and seriousness of the offence and probable sentence.
• The defendant’s character, past history, associations and community ties.
• The defendant’s previous bail record.
• The strength of the evidence.
• Any other relevant matter.

Q. If bail is refused at the first hearing can further applications be made, when and to whom?

If the defendant is remanded in custody at the first hearing he will be brought back before the court within 8 days. You can then make a further fully argued application for bail. If bail is refused again then the Magistrates will not hear a further bail application unless there is some change in the circumstances of the defendant. However, the Magistrates Court will issue a “certificate of full argument”. This will enable you to make an application to a Crown Court judge in chambers.

What constitutes a fair Interview?

The police must not abuse their position of trust by conducting an interview in an “oppressive” manner (Code C para 11.3).
Oppression is partially defined by s76(8) PACE 1984 to mean torture, inhuman or degrading treatment and the use or threat of violence. And under s76 (2) (a) can be excluded.

Inducement to confess: Code C para 11.5 makes it clear no interviewer shall indicate an action the police will take if the person makes a statement or refuses to do either.

What are the risks associated with remaining silent?
As suspect has a right to silence and can not be compelled to answer questions. However if he is charged and then advances a defence at trial, there is a danger the court may draw an adverse inference against his silence under s34 CJPOA 1994. As well as the suspect failing to account for objects found on his person (s36 CJPOA) or failing to account for his presence at a particular place (s37 CJPOA).

Unlawfully obtained evidence: in a ‘questionable’ manner (including: confessions) are at a courts discretion to exclude both at common law and under s78 PACE 1984. Common law: provided the evidence is relevant and reliable its admission is not generally regarded as prejudicing the defendant’s right to a fair trial.
S18 allows the court the power to exclude evidence where it would have an adverse effect ion the fairness of proceedings.

Confession Evidence: Where a suspect makes a statement of an incriminating nature in interview, the interview is said to constitute a confession. S82 (1) PACE 1984 defines a confession.
Due to the pressure of an interview it’s possible for a suspect to confess for reasons other than the truth. For this reason the law makes specific provisions for the admissibility of confession evidence. The main provision is contained in s76 PACE and furthermore the admissibility of a confession can also be challenged under s78 PACE if its admission would have an adverse effect on the fairness of proceedings.

Stop and Search before Arrest

A person may be stopped and searched in a public place or in a place to which the public has access where

1. The officer reasonably suspects the person is in possession of
2. Stolen articles or
3. Prohibited articles

Searching the suspect after arrest: with the suspects consent or under s32 PACE where the officer:

• Has reasonable grounds for believing the suspect may present a danger to himself or others, or
• Has concealed anything on him he might use to escape from custody.
• Has concealed on him evidence which might be related to an offence.

Searching of Premises after Arrest

• Search with the suspects consent.
• Search with a warrant in connection with an indictable offence s8 PACE 1984.
• Search the premises at which the suspect is arrested s32 PACE 1984.
• Search premises owned/controlled by the suspect, s18 PACE 1984.
• Preserved powers of entry e.g. s23 Misuse of Drugs Act 1971.

Police Officer Arrest Without a Warrant

S24 PACE 1984 where a police officer has reasonable grounds for suspecting that the person:

• Is about to commit an offence or
• Is committing an offence or
• Has committed an offence and
• It is necessary to arrest the individual for any of the following reasons (s24 (5)):
• To enable the person name to be ascertained or has reasonable grounds for doubting the name given by the person.
• To enable the persons address to be ascertained.
• To prevent the person in question from causing injury to himself or another, causing loss or damage to property, committing an offence against public decency.

• To protect a child or vulnerable person from the person or
• To allow the prompt and effective investigation of the offence of the conduct of the person.
• To prevent the prosecution from being hindered by the disappearance of the person in question.

Checklist for a lawful Arrest

• There must be legal/factual grounds for the arrest (s24 PACE 1984).
• The person must be cautioned: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence".
• The person must be informed of the reason for his arrest.
• The person should be taken to a designated police station as soon as is reasonable practicable.

Hearsay Evidence (Part 2)

Hearsay is any statement made on an earlier out-of-court occasion which is being adduced in court to prove the truth of facts asserted in that earlier out of court statement.

S9 CJA 1967 is the exception to the rule of hearsay. S9 permits a witness written statement to be read to the court without the witness attending trial where:

• The statement is signed by the maker; and
• Contains a declaration in specified words as to the statement of truth.
• The statement has been served on the opposing party
• Within 7 days the opposing party has not objected to the statement being submitted as hearsay.

If however objection is taken the court has no power to over-rule. Therefore the statement is usually agreed upon by the opposing side as there will be no opportunity to cross-examine.

S114 CJA 2003 provides ‘a statement not made in oral evidence in proceedings is admissible as evidence of any matter stated, if it comes within one of the four exceptions laid out in s114 (1)(a)-(d).

The Unavailable witness (s116) is admissible where:

• The person could have given oral evidence if h attended court.
• The person who made the statement is identified to the courts satisfaction.
• The person making the statement had the requisite capability.

S116 CJA 2003 permits a statement to be admitted where the witness is unable to attend court because:

• The witness is dead/unfit due to bodily or mental condition (s116 (2)(a) and (b)).
• Witness is outside the UK and not reasonably practical for him to attend (s116 (2)(c)).
• Witness can not be found (s116(2) (d)).

That through fear the witness does not give evidence. Under s116 it is immaterial if the hearsay statement is made orally or written. Once the conditions have been met the evidence is admitted.

Part 36 Offers

A Part 36 Offer is an attempt to set out terms which will bring the litigation to a conclusion without going to court. An offer to settle the action is made with provision for payment of costs.

You generally have 21 days after the offer was made in which to give notification of acceptance. You do not need the courts consent to accept unless the offer was made 21 days before the start of trial. Accepting a Part 36 offer after the 21 days will result in the client suffering unfavourable costs consequences.

Requirements of a Part 36 Offer

• Be in writing
• State, it’s intended to have the consequences of Part 36.
• Specify a period of no less than 21 days within to accept and the Defendant will be liable for the Claimants costs (rule 36.10).
• State if it relates to whole or part of the claim.
• State does it take into account any counterclaim.

You can use form N242A to make the offer. However once court proceedings have started this form must be used in making an offer.

Consequences of Acceptance/Refusal of Part 36

Depends on the outcome of the litigation.

• Upon acceptance (prior to proceedings at court) the parties have a binding settlement upon which either party can rely.
• If proceedings have been commenced and an offer is made, the sum must be paid within 14 days unless the parties agree otherwise in writing, failing which the claimant can enter judgement for unpaid amount.
• If a claim is not accepted, and the Claimant goes on to do better than the proposal put forward in the Offer the Defendants may be penalised by order of the Court.
• The Claimant loses her case; the general principle is that the loser will pay the winners costs. Thus the claimant will pay the defendants reasonable costs as well as covering her own.
• Claimant wins but does not obtain judgement as advantageous as offer: The loser pays the winners costs.
• Claimant wins and obtains judgement greater than offer (CPR 36.14): The loser pays the winners costs, the defendant will pay interest on any sum awarded at a rate not exceeding 10% above basic rate for some/all of the period. The defendant pays the claimants costs on the indemnity basis from the date of expiry of the Relevant Period.

Practical Considerations

The earlier a Part 36 offer is made, the greater the financial consequences. Clearly the spirit of the Overriding Objective should be considered. Placing such pressure upon the defendant should save expense, assist a more expeditious conclusion and above all protect the client's interests on the question of costs. However, the quantification of the damages must be accurate and the timing of the offer correct. Or even put pressure on the defendant to make the Part 36 offer