Harmonising civil procedure rules with family procedure rules for dispute resolution

‘Tis the season, blah, blah, blah…Peace on earth and goodwill to all men…

When I first started out as a solicitor, raring to do justice, defending the underdog, and protecting the innocent, (the usual), I was struck with a variety of differing rules and regulations dependent upon the jurisdiction of specific courts to deal with various matters. The County Court had the green book. The High Court had the white book.

Lord Justice Wolf, then set in motion the Civil Procedure Rules 1998 (‘CPR’), which had, in turn, an impact upon the criminal jurisdictions, namely the Criminal Procedure Rules, and the family courts, the Family Procedure Rules 2010 (‘FPR’). It is natural therefore that the rules and culture would adapt and evolve in time, tailor-made to family law or civil litigation as the case may be. Every so often, one or the other jurisdiction re-considers developments to their respective system as to whether it can be incorporated.

I practice in a number of jurisdictions including the commercial, criminal, family, and children: private law jurisdictions. I am frequently surprised that those solicitors and barristers, who practice specialist subjects in certain jurisdictions, are not aware of the rules of other jurisdictions, and developments of law and case law on certain issues. So often, jurisdictions overlap on issues which can be determined in courts (i.e. fraud in civil and criminal courts; property disputes involving family homes in both civil and family law jurisdictions).

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I purchased a house from someone who is a fraudster and is not the true seller after all. What do I do?

You buy a property. You use solicitors or licensed conveyancers for the intended purchase.

The seller of the property also has solicitors or licensed conveyancers for the intended sale.

You found the property for sale through local estate agents.

You have inspected the property and met with the intended seller.

A price is agreed. Contracts are exchanged. There is no mortgage or any charges on the property.

Completion takes place. Your monies are transferred over to the seller’s solicitor.

You then receive a call from the Land Registry to say that…title cannot be registered because the person purporting to sell the property, is not the actual seller. It is a fraud, and the purported seller is a fraudster. Horror of horrors!

It is a criminal matter, you say.

You contact the Police through Action Fraud and receive a crime reference number thinking this can be dealt within hours of being reported.

You do not hear from Action Fraud for weeks if not months because…they are over-burdened with notices of fraud, they have insufficient funding, and insufficient people and support staff.

You look for a civil court remedy. Who do you blame?

Your lawyer? Their lawyer? The fraudster? Continue reading

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I received a default judgment. What do I do?

A claimant brings a claim. A defendant defends a claim. This subject is time-sensitive. You must act promptly to do something about, it or you may forgo your right to do so through passage of time.

This blogpost is aimed at the uninitiated who have never been involved in the court legal system of England and Wales. It can be a very daunting and frustrating experience if you do not seek legal advice.

I hope that this assists people to understand this procedure. How it starts, how it is avoided, and what to do if you receive a default judgment.

The law and procedure cited in this blogpost are accurate at the time of publication, but are subject to change as the Civil Procedure Rules 1998 (‘CPR’), are amended, or case law brings new interpretation to understanding those rules.

  1. What is a court judgment?

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The McKenzie Friend’s enemy?

If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?

Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.

The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER  1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.

Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.

Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.

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Special Measures for vulnerable witnesses are potentially inadequate in a Police and Criminal Evidence Act interview

I hope that this article is pertinent to those who act as litigants in person in criminal proceedings where they represent themselves from the outset at Police interviews.

You may be classed as a vulnerable person, but the definitions contained in the Police and Criminal Evidence Act 1984 are relatively ambiguous when defining what a vulnerable person is, in terms of learning disabilities, and other vulnerabilities.

Mental vulnerability is not always recognised by the Police, or by those who are themselves vulnerable.

The same principles as set out in this article could well apply to the approach of a litigant in person during litigation and the Court process in any environment of pressure, and it is hardly surprising that the Government are currently considering applying special measures to vulnerable people, to also apply to litigants-in-person…

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Duties of a lawyer when acting as an advocate, fraud, and defamation.

A lawyer is broadly speaking in English law, a generic term for a solicitor, a barrister, a legal executive, and a solicitor-advocate, regulated by a governing body with codes of conduct, a certificate to practice in the profession, and carrying sufficient indemnity insurance.

A solicitor and a solicitor-advocate’s conduct is governed by the Code of Conduct of the Solicitors’ Regulation Authority.

A barrister’s conduct is governed by the Code of Conduct of the General Council of the Bar.

Any lawyer who is regulated by the Law Society or the General Council of the Bar, and has a practising certificate and indemnity insurance, can be an advocate.

Barristers and Solicitor-Advocates (if properly accredited by their professional body or permission of the court), have higher rights of audience in the High Courts of Justice in civil courts, and the Crown Courts in criminal courts, to speak.

Litigants-in-person have full higher rights of audience with no qualifications or experience necessarily… Continue reading

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What happens when a claimant is in financial difficulties, or becomes bankrupt, or goes into administration or liquidation during proceedings?

This is not an unusual question. This issue arises a lot.

An individual brings a claim in the courts of England and Wales, (known as a claimant, and previously a plaintiff). For a variety of reasons, they cannot continue because they have run out of funds, or have found themselves in financial dire straits.

If you think that this is going to happen, or the claimant has financial issues, a tool in litigation is to apply for security for costs, depending upon the particular circumstances of the financial concerns, pursuant to Part 25.12 of the Civil Procedure Rules 1998 (‘CPR’).

Security for costs are monies that are paid into court to cover part or all of the defendant’s legal costs, in case the claimant is unable if he/she/it loses a case.

What if a claimant is financially impecunious? Continue reading

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