Legal Updates

On the Legal Secretaries Diploma course, one of the first topics that is studied is judicial review. This is a process that allows the courts to review the legality of actions taken by public authorities. Although nearly 2,500 judicial review cases reach the court every year, there are only a handful which really highlight how the process protects the rights of the individual against the state. This month we are considering one of these rare examples with the case brought by Ed Bridges, who has taken the South Wales police to court for their use of facial recognition technology.

One of the areas studied within ILSPA’s Legal Secretaries Diploma course is the law of negligence. This month we will be considering how the law in this area has developed and highlight some recent changes to the law on when a duty of care is owed.  

 The 1930s approach – “Love thy neighbour”  

Ever since the case of Donoghue v Stevenson in 1932 created the law of negligence, the test to prove that a defendant has been negligent has been a simple 3-part formula:-  

1) The claimant must be owed a duty;  

2) That duty must be breached; and  

3) The breach must cause the damage.  

This test is sometimes referred to as the “neighbour principle” and its creator, Lord Atkin, broadly based the principle on the biblical concept of treating your neighbour as you would like to be treated.  

We last reported on the topic of no-fault divorce in October of last year following the sad case of Tini Owens. The case highlighted a longstanding problem with divorce law which forces parties to find blame if they want to guarantee that the court can give permission for a divorce. Mrs Owens found herself in the ludicrous situation of trying to leave a loveless marriage described as “wretched” by one judge, however it was not found to be  wretched enough to satisfy the irretrievable breakdown requirement of current divorce legislation.  

Last autumn we considered the impact of a 2018 ruling by the Supreme Court about the state of relationships in Britain. Specifically we reviewed how the law on civil partnerships was to be changed to allow couples of the opposite sex who did not wish to get married to have some legal recognition. In the case, the Supreme Court made a declaration that the current law was not compatible with Human Rights legislation. As a result, the government confirmed that it would change the law to allow any couple to register as civil partners. Unfortunately the rules contained in the Civil Partnership Act 2004 (CPA 2004) have not yet been changed.

The Solicitors Regulation Authority (SRA) was established in 2007 as an independent body responsible for regulating the 180,000 Solicitors in England and Wales. The SRA’s purpose is to protect the public by ensuring that Solicitors and those working for them meet very high standards. The key way that the SRA does this is by publishing and enforcing Principles for the profession and a Code of Conduct contained in the SRA Handbook. This month we will be considering the biggest change to the Handbook since it was introduced in 2011.

Ever since the concept of proportionality was introduced to legal costs as part of the Woolf reforms in 1999, the courts and legal practitioners have wrestled with what this actually means. As part of Lord Justice Jackson’s package of reforms in 2007 the test was set out in the Civil Procedure Rules (CPR) Part 44. This part of the CPR provided that only costs which were considered proportionate to a case would be allowed. Costs which were considered disproportionate would either be disallowed or reduced even if the costs were reasonably or necessarily incurred.

To give a bit more clarity about what the courts consider when deciding whether costs are proportionate, they will look at:

(a) the sums at issue in the proceedings;

(b) the value of any non-monetary relief in the proceedings;

This month we are considering a further push by the government to make the conveyancing process quicker and cheaper. Currently the home buying process takes, on average, between three and four months from the date an offer is accepted until the transaction is completed. Part of the reason it takes this amount of time is because buyers and sellers can struggle to communicate basic initial information. In addition, this failure to communicate well can affect the number of transactions that fail to reach the completion stage. 

This month we are returning to the topic of no-fault divorce. When we last wrote about this, we examined the sad case of Mrs Tini Owens who was not given permission to divorce her husband despite it being an entirely loveless marriage.

In the Owens v Owens Supreme Court case from July 2018, the current failings of the system were highlighted. The Supreme Court ruled in July that the 68-year-old could not divorce her husband and escape her loveless marriage until a period of five years had elapsed. She and her husband, Hugh Owens, had been living separate lives since 2015. Mrs Owens will have to stay married to her husband until they had been separated for five years before she will be allowed to divorce him.

This month we are examining the impact of a June 2018 ruling by the Supreme Court on the state of relationships in Britain. More to the point, we are considering how the ruling could lead to a change in the law on civil partnerships.

A civil partnership is a legal union between same-sex couples. If you are a civil partner, you are entitled to the same treatment as a married couple on a wide range of legal matters. The problem that the case highlighted was that only same-sex couples can enter into a civil partnership. Those opposite-sex couples who do not wish to get married but want some kind of legal recognition are not allowed to form a civil partnership. Now, however, this may change.

This month we are considering a case recently heard in the Court of Appeal involving the law of private nuisance. The case is significant because it is likely to affect how those working in conveyancing deal with some of the searches that are obtained when property is purchased.

The key facts of the case were as follows:

•           Mr Williams and Mr Waistell (“the Claimants”) were the owners of two adjoining semi-detached bungalows located in South Wales.

•           Network Rail owned the land immediately behind the Claimants’ properties.

•           On an embankment on Network Rail’s land was a large stand of Japanese knotweed.