NLJ's team of circuit and district judges answers questions on criminal, civil, insolvency and family law.
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30 November 2007
Affidavits: source of information and belief
Q In In re J L Young Manufacturing Company Limited [1900] 2 Ch 753, the Court of Appeal held that an affidavit of evidence given on information and belief without indicating the source, was inadmissible as evidence whether on an interlocutory or final application. CPR 32PD4.2 (2) still requires an affidavit to indicate the source of any matters of information and belief and 18.2(2) provides the same in relation to witness statements. Is Re J L Young still good law or has something in the CPR or the civil evidence legislation eroded its effect?
AWe regard Re J L Young as still good law although more honoured in the breach than the observance. The requirement has been carried through into CPR PD32 and in respect of both affidavits and witness statements. An objection to an affidavit on the ground that there has been non-compliance with this requirement is a perfectly proper one.
Silencing conduct in ancillary relief
Q Can a party to an ancillary relief application be debarred from relying on “conduct” at the final hearing on the ground it would be disproportionate or inappropriate because it is a “needs” case?
A At all stages the court and the parties must seek to further the overriding objective of dealing with the case justly: Family Proceedings Rules 1991 r 2.51D. A party cannot be prevented from pursuing a relevant allegation if they wish to do so (provided they raise it properly as an issue in the proceedings), but the court may control the manner in which it is pursued and the unreasonable or disproportionate pursuit of an issue might result in an adverse costs order. A party who first seeks to raise an issue of conduct at the final hearing, without any notice to the other party may be refused permission to do so if the other party would be prejudiced or if to allow it would be contrary to the overriding objective.
Witnesses: in or out?
Q What practice should now generally be followed about factual witnesses in civil and family cases remaining in or out of court until they testify?
A There is no hard and fast rule in the civil or family jurisdictions. As to the former, it all depends on the circumstances of the case. Some judges prefer the witnesses outside so that their evidence may be seen as truly independent rather than influenced by anything they have heard. But with the pre-hearing service of witness statements (except sometimes in small claims) this preference may have lost its appeal. The default position is that the witnesses are allowed in unless their exclusion can be justified. As to the latter, since these proceedings are heard in private, the default position is that witnesses remain outside unless there is good reason for them to be in court.
Statutory demands and unliquidated claims
Q Is service of a statutory demand a proper course where there is a well established claim for breach of contract worth at least £750 in general damages, but there is a substantial dispute about whether the claim has a value of much more than £750?
A It is not a proper course, even if the claim is undisputed. A claim for damages is just that, and is almost always a claim for an unliquidated sum. The Insolvency Act 1986, s 267(2) (b) provides that the petition debt or debts must be “for a liquidated sum payable to the petitioning creditor”. Hope v Premierpace (Europe) Ltd [1999] BPIR 695, while not exactly on the point of contractual damages, bears out that a petition may not be presented where the sum claim is unliquidated. There is often confusion because the definition of “debt or liability” for the purpose of a winding up petition is much wider (see Insolvency Rules 1986 r 13.12).
Loss of earnings on small claims track
Q If the successful party to a small claim has taken the court hearing day as part of his annual holiday, can he be awarded more than £50 for the day if his actual daily net rate of pay exceeds that amount, in the event of the court dealing with the costs on the basis that the unsuccessful party has behaved unreasonably?
A Having found that a party has behaved unreasonably, the court may order such further costs as it may assess (CPR 27.14(2) (g)). Limits on the amounts allowable under CPR 27.14(2) (a) to (g) are then removed, subject to reasonableness, and the allowance for a lost day’s holiday—which may not always be regarded as a reckonable loss in non-small claims situations— can exceed the £50.
14 September 2007
Claim form postal service delay
Q What does it take to displace the service deeming provisions of the Criminal Procedure Rules (CPR)—the current postal disarray? Surely the time has come for the court to say that the continued application of these provisions is a violence to common sense.
AIt would take an amendment of the CPR or a decision of the Court of Appeal! However, the latter is unlikely. In a slightly different context, the point did trouble the Court of Appeal in Barnes v St Helens Metropolitan Borough Council [2006] EWCA (Civ) 1372, [2006] All ER (D) 303 (Oct) but the principle is that the occasional deeming of service, when the reality is that the claim form was delayed or lost in the post, is the price to be paid for having a regime that provides certainty as to the service date to be taken.
If the court was satisfied that service had not been effected on the deemed date or at all and that the defendant had a real prospect of successfully defending, it would set aside any default judgment which had been entered. This is subject to the defendant applying to set aside with promptness after discovering the existence of the judgment.
Abandonment after service
Q Apart from an application under the Children Act 1989, can proceedings be “withdrawn” once served as opposed to dismissed or discontinued?
A Strictly speaking, civil proceedings cannot be withdrawn if they have been served. Once served, if the claimant is not to proceed with them then they should be “dismissed” under court order—which will presumably be by consent and the consent order would deal with costs, or “discontinued” by notice. The latter course would raise an entitlement of the defendant to his costs.
As you say, proceedings under the Children Act 1989 can be withdrawn after service with leave and the position is the same for proceedings under the Adoption and Children Act 2002.
Costs of discontinuing party
Q Is the court empowered to make an order for costs in favour of a claimant after the claimant has discontinued civil proceedings? I realise it would be a rare case in which such an order might be merited.
A Yes. In Fox Gregory Ltd v Hamptons Group Ltd [2006] EWCA Civ 1544, [2006] All ER (D) 47 (Oct)—as the title suggests, a dispute between estate agents—the claimant issued an application for interim relief over which the defendant eventually capitulated and the claimant discontinued on the basis that it had achieved what it had wanted.
It was held that the claimant was entitled to its costs. If, however, discontinuance followed a contractual agreement reached between the parties which was silent on costs, it is almost inconceivable that the court would exercise its discretion to award costs to the discontinuing party.
Property adjustment—then bankruptcy
Q Following the recent cases on the ability of a bankrupt’s trustee in bankruptcy to have a property adjustment order set aside in certain circumstances, is there any action that the spouse or former spouse of the bankrupt can take before her ancillary relief hearing, during it or afterwards which would obviate or reduce the risk she faces?
A
It is dangerous to try to predict from the authorities (see Mountney v Treharne [2002] EWCA Civ 1174, [2002] All ER (D) 35 (Aug)
Hill and another v Haines [2007] EWHC 1012 (Ch), [2007] All ER (D) 72 (May) and
Avis v Turner [2007] EWCA Civ 748, [2007] All ER (D) 309 (Jul)) what exactly might happen in any other case. Each case will turn on its own facts where there is a conflict between a spouse’s interests and those of the general body of creditors of the other spouse.
The main bases on which a trustee may seek to attack a property adjustment order or transfer of property made before a bankruptcy order are the Insolvency Act 1986 ss 284(1), 339 and 423 which cannot be pre-emptively shut out. Those advising a spouse who is to benefit from a transfer of property—whether by order in matrimonial proceedings or otherwise—need to consider these provisions carefully and have regard to the scope of the relief available and time limits which apply to each kind of relief.
An application to ratify a transfer made during the period provided for by s 284 will generally fail. The time in which a trustee may apply for relief under s 339 is limited to five years up to the date of presentation of the petition. By contrast, s 423 is very wide in its scope and unlimited in time.
There is nothing that a spouse can do to eliminate all risk that anything agreed or ordered in ancillary relief proceedings may be undone by a later application made in bankruptcy proceedings, in respect of the transferring spouse.
However, there are obvious steps a spouse can take to minimise the risk of a transfer being upset:
- Give full value for the transfer and to obtain proper valuations to substantiate that that is the case. A spouse is in no worse a position than anyone else acquiring property.
- Check that no petition has been presented so that s 284 will bite.
- Ensure that the transferring spouse makes full disclosure of his financial position and to secure evidence of his solvency at the relevant time.
- Ensure that the property transfer itself does not render the transferring spouse insolvent.
15 June 2007
Costs: contract v small claims regime
Q Does the small claims restricted costs regime override a contractual entitlement to costs in favour of the successful party?
AThere is a strong case for saying that the court simply has no power to take a contractual entitlement to costs into account when applying CPR 17.14 (“The court may not order a party to pay…costs except…”) which may be usefully compared with the less prescriptive CPR 451.1 dealing with fixed costs (applying fixed costs “unless the court orders otherwise”—see Church Commissioners v Ibrahim [1997] 1 EGLR CA in which it was held that a right to indemnity costs in a tenancy agreement should displace fixed costs, but this is a pre-CPR decision). Whether a contractual entitlement would be enforceable by a fresh claim to sweep up the difference between the indemnity costs and the small claims restricted costs ordered has not been decided. There are respectable arguments both ways.
Matrimonials: late answer
Q Is it necessary to obtain leave from the court to file an answer out of time where special procedure directions for trial have neither been given nor requested?
A The time for filing an answer is specified by the Family Proceedings Rules 1991 (FPR) r 2.12(1). This period may only be extended by agreement between the parties or by court order. FPR r 2.14 contains a general restriction which applies once directions for trial have been given, but it does not affect the time requirement in r 2.12. Accordingly, if there is no agreed extension, the court’s leave is required to file an answer out of time, even where directions for trial have not been given.
Fixed costs in rent possessions
Q In relation to fixed costs in possession claims, does the amount of the entitlement depend on the rent due when the claim is commenced or the rent due when the claim is heard in court?
A The fixed costs are now the same, whatever the amount of the arrears and whether the arrears have gone up or down between commencement of the claim and the hearing of the claim. The fixed allowance for the hearing is set by CPR 45.4A (1) and is £57.25.
Locating missing respondents
Q Government departments are becoming increasingly more unco-operative about assisting in the disclosure of addresses of “missing” respondents so as to facilitate service of matrimonial proceedings, even where financial and/or child care issues have to be determined. Letters to the Department for Work and Pensions seem to end up with HM Revenue & Customs (HMRC) which says it will disclose nothing without a High Court order. What can be done about procuring help and from whom?
A The arrangements for disclosure of addresses by government departments were agreed and set out in the Practice Direction (Disclosure of Addresses) [1989] 1 All ER 765, as amended (PD). However, most departments will not disclose information without a court order. The court may make an order for disclosure in cases falling within the terms of the PD or, in the case of a missing child, under the Family Law Act 1986, s 33, but not all departments will accept such an order as sufficient authority to disclose confidential information. In the case of HM Revenue and Customs, information can only be provided where the order for disclosure is made under the inherent jurisdiction of the High Court. The procedure for this is set out in the Guidance on Disclosure Orders against the Inland Revenue, issued by the President’s Office on 21st November 2003 (see Rayden & Jackson, 18th ed, para 55.121). In county court proceedings, the case should be transferred to the High Court for the purpose of the disclosure application only and an order for disclosure can then be made by a district judge of the High Court addressed to HMRC. It is cumbersome, but it works. It would not normally be appropriate to use this procedure simply to trace a missing respondent in matrimonial proceedings, since there would be no basis for invoking the inherent jurisdiction.
Costs without proceedings
Q If a claimant makes a CPR Pt 36 offer before the issue of proceedings and that offer is accepted, is the claimant entitled to his costs? It is clear that he would be if proceedings had been issued, but Pt 36 makes no comment on the costs effect of a pre-issue offer being accepted. Alternatively, if a claimant were to make a pre-issue Pt 36 offer and included a provision that acceptance was conditional on payment of the claimant’s costs would that be a valid offer for the purposes of Pt 36 or not? As a substantial amount of work is often needed to prepare a claimant Pt 36 offer it would seem fair, and in the spirit of avoiding unnecessary proceedings, if costs could be recovered pre-issue. If they cannot, one would be better off issuing and then making a Pt 36 offer immediately thereafter.
A As a matter of vires, the CPR only apply to proceedings which have by definition begun. The court may take account of conduct before issue in deciding what costs order to make but CPR Pt 36 does not apply until the claimant has issued. If the parties wish to settle before issue then that is a matter of contract. It would be a foolish solicitor who offers to settle without some provision in the contract which provides for payment of his costs.
20 April 2007
Bankrupting out of ancillary relief
Q If during ancillary relief proceedings, the respondent procures a bankruptcy order on his own petition as a ruse, does the applicant have the ability to apply for an annulment? If not, is there any other action she can take?
A The answer is a resounding ‘yes’. The Insolvency Act 1986 section 282(1)(a) provides that the court may annul a bankruptcy order ‘if it at any time appears to the court that, on grounds existing at the time the order was made, the order ought not to have been made’. The jurisdiction is wide and is expressed in the passive voice, so there is no restriction at all on who may apply. A disgruntled spouse could definitely apply.
There are three reported cases in which the jurisdiction has been exercised. In Woodley v Woodley [1994] 1 WLR 1167 CA the court said that an order procured to defeat a matrimonial claim could be annulled. In F v F [1994] 1 FLR 359 Mr Justice Thorpe (as he then was) did annul. Mr Justice Wilson (as he then was) did the same in Couvaras v Wolf [2002] 2 FLR 107 where the bankruptcy was a sham.
In a county court a district judge could deal with the petition in the matrimonial proceedings which would be an advantage.
The Bankruptcy Court will often transfer the petition to the family judge where this kind of situation arises so that there are not two courts looking at the same thing from two different
angles.
Serving notice on absent tenant
Q We regularly take possession proceedings to obtain postponed possession orders and rely on housing officers to effect personal service of the notice of seeking possession. From time to time, we need to deal with an absent tenant and I am unable to find service provisions within the housing legislation. How would things stand if a tenant were absent because, for example, he had abandoned the premises?
A The key is to cater for the situation with a suitably drafted tenancy agreement which provides a machinery for service of notices by posting to the tenant at the premises or insertion through the letter box of the premises. Provided the contractual machinery is complied with, this will be effective for service of the notice in connection with subsequent proceedings in which service must be established.
Same parties—series of separate claims
Q Claimant sues same defendant in a series of claims. Each claim relates to a different invoice issued after the immediately preceding claim has been commenced and is for less than £5,000. Defence of set off is same in each claim. If claims are consolidated and aggregate sum involved is over £5,000, is there any way they can still be allocated to the small claims track without the defendant’s consent? Could they be allocated to the small claims track by not being consolidated but heard at the same time?
A The team would be inclined to direct that all claims be heard together as small claims since each raises the same defence and leave it to the defendant to apply for consolidation and re-allocation, if he wishes. If, however, all the causes of action arose before the commencement of the first claim, it would be necessary for the court to form a view as to whether the claimant was deliberately attempting to avoid an adverse costs order which might otherwise visit him in the fast or multi track. Such an attempt would probably be unsuccessful and lead to a fast or multi track allocation.
Divorce costs
Q To what extent is it appropriate for the court on a special procedure divorce to go into the history of the marriage in order to decide an issue of costs? How, in practice, can it justly deal with a case where the respondent is admitting his unreasonable behaviour but alleging at least equally unreasonable behaviour on the part of the petitioner without actually cross-petitioning? Perhaps there should be a general rule of no order for costs on the main suit as with ancillary relief.
A The general rule that costs follow the event (CPR 44.3(2)) does not apply in family proceedings and the court’s discretion about costs is therefore governed by CPR 44.3(4) which requires the court to have regard to all the circumstances, including the conduct of all the parties. Where a petition is proceeding under the special procedure and the petitioner alleges one of the fault-based facts and claims costs, the court will ordinarily award costs against the respondent unless there is good reason not to do so. If the respondent admits the fact alleged, it would be reasonable to order them to pay at least part of the costs, even if they claimed that the petitioner was also responsible for the breakdown of the marriage. Where there is a dispute about a claim for costs and it appears that the respondent may have a valid ground for objecting, the matter will normally be referred to the judge pronouncing the decree nisi or conditional order, who will determine the issue on the basis of the parties’ representations; however, in an undefended cause it is unlikely to be proportionate to conduct a full investigation into the conduct of each party. The general rule which now applies in ancillary relief cases reflects the fact that a party’s costs are generally to be treated as a liability in determining the appropriate financial order. The same consideration does not apply to the costs of the suit.
09 February 2007
Premature service
Q If the court serves a claim form by post in disregard for the request of the claimant’s solicitors that the form should be sent to them to effect personal service when they are ready, is the court empowered to set the postal service aside?
A There is no authority on whether service in this situation is bad. It may be good. The appropriate course—and the one normally adopted when the situation does arise—is for the time to be extended for filing and service of the particulars of claim (if not already served). In a personal injury claim there can be an extension for any medical report to be relied on and the schedule of loss. The duration of the extension may be the period sought by the claimant’s solicitors up to a maximum of four months from issue. If the particulars of claim have been served, the time for service of the defence can be suitably extended instead. The procedural judge is likely to be prepared to make an order on request by way of letter.
Revalue of claim
Q After the expiration of the limitation period in a personal injury claim, it is discovered that the claim form should not have limited damages to £15,000. Is it essential for the claimant to seek a formal amendment to exceed the £15,000 ceiling and, if so, does the limitation point have any impact on whether permission to amend is granted? Would an additional commencement fee be payable if permission is granted?
A The claim form would require amendment to raise the damages ceiling (with the defendant’s consent or on application). If amended, an additional commencement fee would be payable to cover the excess claimed. The limitation point will only have any impact if, on a contested application for permission to amend, it appears the amendment would involve a head of damage that arose out of a new cause of action. Limitation would not be relevant where the extra damages related to the same cause of action. If there was an amendment, reallocation to the multi-track might be ordered—the court has discretion under CPR PD 26 para 11.1—and further directions given.
Delay in default judgment
Q A claimant sues a group of defendants for the same debt on the basis that they are jointly and severally liable. Judgment is given against all but one of the defendants for a sum less than that claimed. Can the claimant ask the court to enter judgment in default against the remaining defendant who has not participated (the claimant having neglected to ask for judgment earlier) for the full amount of the claim?
A The position could depend on the basis on which the claimant partly failed against the participating defendants. If failure was due to a limitation defence, the claimant might be on strong ground in seeking a judgment for the full claim against the non-participating defendant. If failure was due to an inflation of the claim, the court might consider it perverse to allow entry of a judgment for the full amount against the non-participating defendant. Should the claim stand automatically stayed under CPR 15.11 (as is highly possible) the court could restrict the amount of the default judgment as a term of the lifting of the stay.
Dragging matrimonial feet
Q What sort of delay in the prosecution of an undefended divorce petition would justify its strike out for want of prosecution.
A Where the respondent seeks a divorce and has grounds to do so, there is no practical problem for him because he can present his own petition. The prohibition of a second petition without leave relates to a second petition by the same party while the first petition remains extant. If the respondent does not want a divorce, he will need to satisfy the court that the petition has not been prosecuted with reasonable expedition to give the court discretion to strike it out. The court would have to consider all the circumstances of the case including the length of and reasons for the delay and any prejudice to the respondent. A comparatively short delay might suffice if an adultery petition is not pursued and the parties continue to cohabit for more than six months. Where there is no question of a bar arising, and no other relevant factor, a significant period of time would have to elapse before the court could conclude that the petitioner was failing to prosecute the cause. Where the petitioner is in a position to apply for directions for trial but fails to do so without good reason, it would be open to the court to make an ‘unless’ order.
Postponed possession
Q Does the new style postponed possession order for secure tenancies also apply to a protected assured tenancy where a housing trust has taken over as landlords the stock of a local authority and a tenancy that was originally secure?
A The new style postponed possession order can be made where the tenancy is either secure or governed by the Housing Act 1988 (HA 1988) and an order is made on a discretionary ground. This is because the relevant wording of s 85 of the Housing Act 1985 is identical to the relevant wording of s 9, HA 1988. However, CPR PD 55 Pt IV only applies to secure tenancies. If a postponed order is made in a non secure tenancy the landlord must apply by application on notice for an order to terminate the tenancy before issuing a warrant, unless the court has given case management directions effectively incorporating the Pt IV procedure into the order. This does not include disapplying the defendant’s right to apply to have the order set aside if it is made without a hearing.
08 December 2006
Producing too late under power of arrest
Q If a person arrested under a Family Law Act 1996 power of arrest is not brought before a court within 24 hours, must they be released from custody?
A Yes. They are no longer in lawful custody and must be released. If they are not released by the police, they should be released when they are brought before a judge or other ‘judicial authority’. However, they will still remain in jeopardy of an ‘on notice’ application by the party in whose favour the injunction has been granted for them to be committed to prison for contempt. But non-production
before the court should not arise. If the person arrested cannot be produced at the normal courtroom within the required time, production at a ‘convenient place’ is permissible. In calculation of the 24 hours, Christmas Day, Good Friday and Sundays are excluded.
Late defence before judgment
Q A defence is received by a county court after the time for its delivery has expired but before judgment in default has been entered. Is permission required to file out of time?
A Not only is permission to file a defence out of time not required but the filing effectively prevents the entry of a judgment in default of defence.
Accelerated possession document missing on service
Q How serious a deficiency is non-service of a copy of the notice under s 21 of the Housing Act 1988 on the defendant with the accelerated possession claim form? Is the court likely to set aside an order made on paper in such a case because of non-service where a defence was not filed in time?
A Failure to file the notice would render the claim unsuitable for the accelerated procedure (CPR 55.12). Assuming the notice was filed, a copy, along with the other documents referred to in the claim form and which must be filed, should have been served on the defendant with the claim form. Non-service would not afford a defence to the claim but if the defendant is seeking to set aside the order that was made to file a late defence on other grounds, the court might accede to the application, taking account of the non-service.
Naming wife petitioner
Q In the case of a wife’s petition for divorce, should she be described in the first paragraph, which pleads the marriage particulars, by reference to her maiden surname or her married surname?
A Appendix 2 of the Family Proceedings Rules 1991 (SI 1991/1247) requires a petition to state the names of the parties to the marriage or civil partnership and the practice direction issued by the President on 5 April 2005, provides that where a party has changed their name since marriage, by deed poll or otherwise, the name currently being used by the party should appear first on any petition,
answer and statement of arrangements followed by ‘formerly known as ABC’. Documents issued by the court should also describe the parties by their full current name.
These provisions taken together mean that it is the wife’s current name which should
appear in para 1 of the petition. If she has taken her husband’s name on marriage and not subsequently changed it, that is strictly the name to be included in para 1. However, the purpose of these provisions is to enable the court to be satisfied that the parties are identical with the persons named in the marriage certificate and provided that is apparent from the names given—whether married or maiden name—Appendix 2 is sufficiently complied with.
Setting off against judgment
Q Can a specified debt be set off against a judgment? Is the position any different in relation to setting off an unliquidated claim?
A There can be mutual set off of judgments and the parties may properly agree a set off of an admitted debt. On an application for a stay of enforcement proceedings, a court might permit a set off of an admitted sum. Different considerations would apply if the contra-debt was not admitted or was for an unspecified amount. Depending on the facts, there would be an element of judicial discretion that would be applied.
Delayed decree absolute application
Q Is there a rule of thumb about what period of delay in applying out of time to make a decree nisi absolute would warrant a direction that the application should be served, before it is determined, on the party against whom the decree nisi was made?
A A hearing on notice is only likely to be called for if it appeared that the decree nisi should be rescinded or there is some issue about a child born after decree nisi. The district judge may, for example, consider refusing the decree absolute where post-decree cohabitation leads to the conclusion that the marriage had not in fact broken down at the time of the decree nisi. The length of cohabitation required for this will depend on the circumstances and the original grounds. A period of more than six months cohabitation post-decree has been held to bar decree absolute where the decree was granted on the basis of adultery: Biggs v Biggs [1977] Fam 1, [1977] 1 All ER 20; and decree absolute has been refused where there was a period of three years’ cohabitation after a decree based on five years’ separation: Savage v Savage [1982] Fam 100, [1982] 3 All ER 49. However a period of over six months’ cohabitation following a behaviour decree does not necessarily justify refusing decree absolute: Court v Court [1982] Fam 105, [1982] 2 All ER 531.
29 September 2006
Final charging order
Q Can a final charging order in relation to a registered title that is suspended by the court be registered at Land Registry?
A We have never encountered a suspended charging order and doubt that one can properly be made. If made, we can see that it could prove impossible to secure the registration of any entry at Land Registry arising out of it unless and until the terms of suspension were breached. What is not uncommon is for a condition to be attached to the charging order that prevents an application for an order for sale so long as the defendant pays the sum secured by the charging order by prescribed instalments. There should be no registration difficulties with a charging order of this kind.
Enforcing within 14 days
Q If a consent judgment requires payment within 14 days, can the judgment creditor apply for an interim charging order before those 14 days have expired where the judgment debtor openly acknowledges he will not be settling the judgment during that period?
A No. Section 1 of the Charging Orders Act 1979 only applies where an order is required “for the purpose of enforcing the judgment”. Until the 14 days have passed there is nothing to enforce. The consent order should have said “payable forthwith” and the best the claimant can do is apply for an emergency freezing order. However, since the judgment debtor has done nothing wrong by saying he will stick to the letter of the judgment, such an application is unlikely to succeed without other supporting evidence of an intention to dissipate assets.
Questionnaires to all
Q CPR 26.3 appears to require the court (unless it dispenses with the need) to send out allocation questionnaires to all defendants even though they might not all have filed defences. Is my interpretation correct and, if so, what is the point in this?
A We agree with your interpretation but the absence of a defence does not necessarily mean the party concerned has nothing to say about case management directions. The general rule, then, that just one defence filed means allocation questionnaires go out to all defendants makes sense. A sanction against a party who has not filed a defence for failing to serve a questionnaire may be unlikely and the procedural judge could well dispense with a questionnaire to a party who had filed neither an acknowledgment of service nor a defence and had given no other indication of an intention to participate in the claim.
Costs on special procedure
Q Is it permissible for a judge, when certifying entitlement to a decree of divorce under the special procedure, to certify an entitlement to an order for costs even though the respondent objects in his acknowledgment of service, where the basis of the objection is completely misconceived, eg because the respondent does not have the money to pay?
A The Family Proceedings Rules 1991 r 2.36(3)(a) enables the district judge to certify an entitlement to an order for costs if he is satisfied that an entitlement exists. This is not conditional on there being no objection to an order for costs. If not so satisfied, the judge will give the objecting respondent notice under r 2.36(3)(b) to attend on the pronouncement. Therefore, the answer to the question is “yes” and the judge might, when certifying an entitlement, indicate that the ground for objection is not, in law, a good one. But the respondent still has a right to be heard on pronouncement even though an entitlement has been certified. The certificate is not an order.
Bank charge claims
Q I have a client who wishes to make a claim against a High Street bank for the return of “unfair” charges. He is not jumping on the current bank charges bandwagon and has a meritorious case. My concern is that he will end up as one of a series of test cases and be at considerable risk on costs whereas his case ought to be small claims tracked. Should I—and he—be concerned and what is generally happening with these cases? Is this credit hire all over again?
A A large number of such cases have been issued. We understand that some have been identified as test cases but are unaware that any of them has yet been tried. Your client may wish to delay issuing proceedings until the outcome of such a case is known, but it does seem unlikely at this late stage that his claim would be identified as a test case. Even if that was proposed, he would be able to make representations. None of the team members would be inclined to push a claim forward as a test case where the claimant objected though, of course, their views do not bind other judges.
Mitigation of sentence
Q Is it a valid mitigation argument for an advocate to pray in aid that one particular sentence against another will result in a longer period for the conviction to be spent under the Rehabilitation of Offenders Act 1974?
A We do not think this would generally be a good point. The appropriate rehabilitation period is simply an inevitable result of the appropriate sentence. There might be circumstances where a defendant will be unable to pursue his chosen or preferred career until the rehabilitation period is over, but that will probably form part of the usual mitigation and so would be marginal at best. The point might also tip the balance in favour of a conditional discharge.
04 August 2006
Divorce without a marriage certificate
Q What procedure should be followed and what written evidence might have to be filed at court where the petitioner does not have and cannot obtain a marriage certificate relating to her foreign marriage?
A If the petitioner is seeking to prove a marriage which is alleged to have taken place outside England and Wales, then—apart from specific statutory provisions—there are two routes:
(i) by the production of a certificate or other document issued under the law of the country in question, or a certified copy of an entry in a register kept under that law (Family Proceedings Rules 1991
(SI 1991/1247), r 10.14); or
(ii) if there is no certificate or the existence or validity of the marriage is disputed, by adducing evidence of the marriage ceremony, coupled with expert evidence that the ceremony described created a marriage which is valid under the law of the country in which it was celebrated.
For a description of these requirements and of the various statutory exemptions, see Rayden and Jackson on Divorce and Family Matters, 18th ed (2005), paras 7.10–7.28.
Personal service but missing
Q In respect of a document required to be personally served, is there any way that service can be dispensed with if the defendant is evading service and he does not seem to be living at his last known residential address?
A Given that the requirement for personal service implies that the court will need to be satisfied that the document has come to the party’s actual attention, it is highly unlikely that service would be dispensed with unless there is strong evidence that the person to be served is aware that an order has been made, or that there is a court document intended to reach him and that he is deliberately avoiding service. However, service by an alternative method may be directed. The court would still need to be satisfied that the method to be used was likely to bring the document to the party’s actual attention. If, like the majority of the population, the person to be served has a mobile telephone then service by text can, and often is, ordered as an alternative means of service.
Bankrupting despite a charging order
Q In a bankruptcy petition, is the failure to plead the holding of security in the form of a final charging order on the debtor’s beneficial interest in his matrimonial home an omission that will prevent the making of a bankruptcy order? Also, is the use of bankruptcy proceedings in such a situation an abuse when the value of the security is sufficient to cover the bankruptcy debt and the petitioner could have sought an order for sale?
A The Insolvency Rules 1986 (SI 1986/1925) r 6.8(1)(d) requires the petitioner to state that the debt is for a liquidated sum payable immediately or at some future time, and that in either case—subject to the Insolvency Act 1986 (IA 1986) s 269—the debt is unsecured. That rule, therefore, has been breached.
IA 1986 s 269 provides that a debt need not be unsecured if the petition contains a statement that the person holding security is willing to give it up if a bankruptcy order is made or if the security is valued and the petitioner wishes to proceed to seek a bankruptcy order for the part of the debt which remains unsecured. Again, however, the petition appears to breach this rule.
The petition could be amended, re-verified and reserved to comply with the section and the rule and this would mean an adjournment. A dismissal would probably be harsh and perhaps disproportionate.
What if the petitioner seeks and obtains a bankruptcy order in the absence of the debtor so that the order is made in ignorance of the true position? Setting aside the question of whether his conduct might amount to a waiver of the security, the breaches would be enough to warrant an annulment under IA 1986 s 282(1)(a), which either the petitioner or the debtor could apply for.
Delayed judgments
Q Is it a fact that judges are now required to deliver their reserved judgments within two months? Can a complaint be made if the time limit is not adhered to and if so, to whom? If there is a delay in fixing a date for judgment that is convenient to all legal representatives, should judgment be formally handed down within two months even if a date for later argument on costs and other consequential matters is outside the two months?
A Judgments in family cases should be delivered within one month and in civil cases within two months although judges will strive to deliver within shorter periods, particularly in cases involving the welfare of a child. If a complaint is felt to be justified it may be made to the presiding judge of the circuit concerned. A judgment may certainly be delivered within the target period with argument over all relevant matters to take place later.
Assessment tracking
Q What is the point in allocating an assessment of damages to the fast track, apart from extracting an allocation fee from the claimant?
A The opportunity to extract a fee plays no part in judicial decision making. But there are good practical reasons for allocating an assessment to the fast track. Allocation imposes a salutary cap on the recoverable costs of the hearing. It also allows for the imposition of a trial window, categorises the case in a way that is helpful to the court’s listing office and ensures the claim is not treated as a disposal within CPR practice direction para 12.4.
12 May 2006
Unverified defence
Q I find that courts are sometimes reluctant to strike out a defence on the ground that it does not contain any, or a fully completed, statement of truth. It is said that the defendant cannot rely on the defence as evidence of any of the matters set out in it, Civil Procedure Rules 1998 (CPR) r 22.2(1), and that this is a sufficient sanction. But this surely does not preclude the defendant relying on factual evidence of matters referred to in the defence, subject to the factual witness statements containing proper statements of truth?
A The common order in this situation is that the defence should stand struck out if the defence verification requirements of CPR Pt 22 and PD 22 are not complied with by a specified date. However, the court does have a discretion and, particularly in small claims, r 22.2(1) may occasionally be considered an adequate sanction. Of course, that sanction would not preclude factual matters contained in the defence being repeated in the witness statements but so long as the latter are properly verified by statements of truth, this must be an outcome that is unobjectionable.
Divorce costs
Q The background to a divorce petition based on two years’ separation with consent may be the respondent’s culpable behaviour. Is there any reason why the petitioner should not pray for costs in this situation with a view to a short investigation by the court when the decree is pronounced, if costs are contested, as to whether the respondent should pay?
A There is nothing to prevent the petitioner praying for costs but, in the absence of consent to an order for costs, the respondent might well make their consent to a decree conditional on withdrawal of the costs prayer. In that event, the district judge would be precluded from certifying an entitlement to a decree so long as the costs prayer was extant. Further, it is inappropriate for the costs prayer to be converted into a vehicle for a conduct enquiry. It is open to the petitioner to seek the respondent’s concurrence in a suitable costs order in return for no amendment of the petition to rely on adultery, unreasonable behaviour or desertion.
Dilatory applicant on ancillary relief
QOn an ancillary relief application, what action can be taken against an applicant who fails to file and serve a Form E, and then fails to comply with an order backed by a penal notice requiring her to file and serve?
A What is sauce for the respondent gander is equally sauce for the applicant goose. If the respondent fails to file information the court will draw the adverse inference that he has so much money that he can meet any order the court is minded to make. The same should apply to the applicant. The proper inference is that the applicant has so much money that there is no question of needs or reasonable requirements arising. So the best tactic is for the respondent to apply for a final order setting out in detail the terms which he considers reasonable. Depending on the circumstances these may include a lump sum or transfer of property order which reasonably reflects the contribution made by the applicant. The proper inference from the applicant’s silence is that the applicant has already adjusted without undue hardship to the termination of the marriage so a clean break clause can be included. A less certain alternative is to apply that the application be dismissed with an order for costs against the applicant and an order that the applicant shall not be entitled to make any further application until those costs have been paid.
Debtor to attend for questioning
QOne leading textbook suggests that the court has no discretion to refuse to order a judgment debtor to attend court for questioning under CPR Pt 71 where he is in default. Is this really so? Say it is pretty obvious that the judgment creditor wants to make things thoroughly uncomfortable for the judgment debtor, or there has been a recent attendance already with no reason to suppose that any material change in the judgment debtor’s financial circumstances has occurred?
A Some may say that it is not entirely wrong for a judgment creditor “to make things thoroughly uncomfortable for the judgment debtor”, particularly if the debtor is of the “won’t pay” rather than “can’t pay” variety, but on the other hand it must be contrary to the overriding objective to deal with a case justly if that were to entail a judgment creditor subjecting a debtor to a multitudinous number of successive attendances at court under CPR Pt 71.
CPR r 71.2 appears to confer no discretion; r 71.1(5) clearly says that if the procedural requirements are met the order to attend court “will be issued”. But that relates merely to the issue of the order, which is a function delegated under r 71.2(4) to a member of the court staff. If a judge were of the view that there was an abuse of the system then that judge could use the case management powers in CPR Pt 3 to stay the application after it had been issued either generally or until such time as the creditor had explained to the court why he was making a second or subsequent application under Pt 71.
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