Legal Updates

In the increasingly complex world of the private client lawyer there are many challenges, both old and new. This month we will consider four of these potentially challenging areas and review what recent developments have occurred. 

Capacity

The longstanding test to establish if someone has mental capacity to make a Will is set down in “Banks v Goodfellow 1870”. However, since the Mental Capacity Act (MCA) 2005 came into force there have been several (unsuccessful) cases challenging whether the MCA should replace the “Banks” case as the test for mental capacity. For the moment the “Banks” test remains the one the Courts will use and, in simple terms, establishes that a person must:

In last month’s publication of our journal, there was an article on the “Top Three Legal Myths’, which included the myth regarding cohabitation, i.e. of there being no such thing as a ‘common law wife’, or a ‘common law husband’, or indeed a ‘common law marriage’, that is to say a couple who are living together, with or without their children, and are not married or under a civil partnership. As was shown, the conception of such a thing is, in fact, a misconception – and it can be a serious one at that. If that relationship breaks down, such couples have extremely few rights when it comes to aspects such as finances, property and most seriously of all, the children of their relationship,

Many of us have a basic understanding of some aspects of the law, but there are a few areas where myths seem to persist. For example, is there such a thing as a Common Law wife or husband? Does a Will guarantee your wishes will be followed after your death? And if you break the law unwittingly because you genuinely didn’t know the action you took was illegal, the courts will be lenient. These are three commonly held beliefs – but how accurate are they?

Let’s take a look at each in turn: 

Myth 1: ‘Common Law Wife or Husband’.

Have you ever thought that living with a long-term partner gives you ‘legal’ rights in law similar to that of a married couple?

If so, then you are wrong! There is no such thing as a ‘common law wife or husband’.

Partly because of the pandemic and perhaps because of years of chronic under-investment, the UK court system is under pressure. Case numbers are rising and the time taken for claims to reach trial is increasing year on year. More use of alternative dispute resolution is seen as a solution, so there is a proposal to make it compulsory in commercial disputes. We will consider the case for this and compare how compulsory mediation has worked in family matters where it has been a feature for nearly 10 years.

Matrimonial disputes and mediation

This is the third and final article this year on reforms to civil procedure where we will outline the Court’s expanding use of online case management systems.  

The digitisation of County Court processes has been evolving over several years. While the Damages Claims Portal (the Portal) has been described as a “pilot” since 4 April 2022, it has been mandatory for ‘damages only’ claims to be issued digitally by firms.

In a previous article on reforms to civil litigation, we looked at the expanding use of fixed costs. This month, we will consider the Civil Justice Council (CJC) review of pre-action protocols.

If you have studied one of our courses covering this area, you may recall that a protocol sets out what must be done in a claim before any legal proceedings commence. There are currently 17 specific protocols in force that apply to a wide range of claims, including:

• Personal injury
• Professional negligence
• Construction disputes
• Housing disrepair
• Defamation
• Package travel and debt claims

Even when there is no specific protocol for a particular type of claim, you are still expected to follow the Practice Direction on Pre-Action Conduct.

This month we will consider some changes to Part 45 of the Civil Procedural Rules (CPR) that will affect how legal costs are recovered in some civil cases. These changes were first suggested in the 2013 Jackson report, which considered whether more proportionate costs could be achieved with changes to procedures. Following consultations in 2019 it is now expected that in October 2022 there will be a significant development in expanding the use of fixed costs making way for the creation of “intermediate” cases. 

The introduction of “no-fault” divorce at the beginning of 2022 brought one of the biggest changes to matrimonial law for 50 years. There are more changes afoot; this month we will consider one reform that has already been enacted and one that like “no-fault” divorce is long overdue.

Legal age of marriage

The long-anticipated era of “no-fault” divorce came into force on 6 April 2022, nearly two years after the passing of the Divorce, Dissolution and Separation Act.

Under the new system, couples will no longer need to make allegations about the conduct of a spouse. Instead, either one or both spouses will be able to make a statement that the marriage has irretrievably broken down. This statement will be enough to prove that the marriage has come to an end and will allow the Court to make a Divorce Order.

Some civil disputes could be characterised as emotionally charged, but few are as contentious and hard fought as matters involving the home. This month we have two examples of highly contested cases and a call from the court for compulsory ADR.

First, we will consider a boundary dispute over 17 inches of land where the legal costs ran to over £200,000. These figures speak for themselves, but if you had any doubt, the circuit judge who heard the case confirmed that the cost was “beyond my comprehension.” He was also critical of the fact that both parties wanted the claim to be heard in the multi-track (reserved for claims worth more than £25,000) when it was a small claim (i.e. valued at less than £10,000, where costs would have been limited).