Legal Updates

In June a landmark case involving a husband hiding his assets from his wife finally worked its way to the Supreme Court.

Michael Prest is a wealthy oil trader. A High Court judge ruled in 2011 that he was worth at least £37.5 million at the time. His former wife said he may be worth much more, but in any event the judge, Mr Justice Moylan, ordered Michael Prest to pay his former wife £17.5 million. Now although the figures are large, there is nothing otherwise remarkable about the judgement, except that Mr Prest tried to hide behind company law to avoid paying the £17.5 million divorce settlement.

An exclusion clause is a type of clause that appears in a contract when one party tries to limit or exclude itself from liability. If the law did not prevent it, then large companies would use and abuse these clauses to protect themselves. Consumers have already “agreed” to hundreds of terms and conditions when they buy goods and services, so the laws protecting them from unfair exclusion clauses are important. In this article we will review what statutory controls are in place to protect consumers and consider recent changes to the law.

The two key statutes that control the use of exclusion clauses are

• the Unfair Contract Terms Act 1977, and
• the Unfair Terms in Consumer Contracts Regulations 1999.

The Unfair Contract Terms Act 1977 (UCTA)

The Criminal Court System of the United Kingdom is widely regarded as being one of the most complicated in the world. The main reason for this is that it was not designed all in one go, but rather it expanded, adapted and developed over the course of more than 1,000 years. To further complicate matters, the four individual nations which make up the United Kingdom have 3 different legal systems between them, meaning that there are 3 different criminal justice systems operating within the borders of one country. For now, we will only focus on the system which is in place in England and Wales.

Divorce proceedings are often messy and complicated as couples and their lawyers seek a ‘fair’ division of assets and wealth accumulated during the course of a marriage. The more straightforward cases end in a 50/50 split of assets and wealth, but different circumstances call for different rulings. A decision made recently by the Court of Appeal has made headlines because it ordered a consultant to surrender all of his accumulated wealth to his ex-wife. This is a completely unorthodox situation, but it was deemed to be the fairest option for the ex-wife and children involved.

Criminal Law and Practice is not a subject that is included in the Legal Secretaries Diploma course, and the reason for this is that when the course was first devised, it was geared to the most common areas of law that are practiced in the average firm of solicitors, as this would give the student the best chance for finding a job.  However, Criminal Law and Practice is provided by the Institute as a Higher Diploma Course and it is a very interesting area to work in.

The Court of Protection is the specialist court dealing with the property, money, physical welfare and sometimes even the liberty of those without the mental capacity to make their own decisions. These “protected persons”, usually known in the Court Rules as “P", range from very young children to the very elderly, and the Court’s decisions take in many forms of mental incapacity, from brain damage and severe autism to Alzheimer’s disease and other forms of dementia.

‘Title Insurance’, ‘the Protocol’, ‘Transaction’, ‘HIPs’ (Where on earth did they get to?) and now the ‘Conveyancing Portal’. Those of you who work in conveyancing departments will undoubtedly know all about this latest development – the ‘cure all’ for conveyancing ills. But … I wonder.

The portal has been created to speed up the conveyancing process. But it’s not really a new thing – this trying to speed up conveyancing. Once it really took off, there’s been no stopping it. I remember my first introduction to the notion that, to most people, the conveyancing process was somewhat akin to wading through a vat of cold treacle. I remember, as a young lawyer, someone saying to me, “Why does everyone moan about the high Solicitors’ costs for conveyancing but they don’t moan so much about Estate Agents’ fees?”

In a unanimous ruling in March 2015, the Supreme Court agreed that Nadine Montgomery should succeed in her claim against the Lanarkshire Health Board. Nadine had given birth to a boy who developed severe disabilities stemming from complications during the birth in October 1999.

Mrs Montgomery won over £5 million compensation in her major damage suit after her son suffered brain damage due to birth complications, claiming that medical professionals neglected to fully inform her of the risks involved with giving birth as a type 1 diabetic. It is recognised that when diabetics give birth to babies that are larger than average, it puts those mothers at higher risk of complications.

Like most areas of legal practice, civil litigation has been affected over the past few years by the cuts in public spending. Following the withdrawal in April 2013 of legal aid for most civil claims, there are many people who are unlikely to be able to afford to pay privately for a solicitor to advise them. To help these clients, the Law Society published guidance on 19 March 2015 for solicitors called ‘unbundling civil legal services’.

Normally when a litigator uses the word ‘bundling’, he or she would be talking about the process of getting all the documentation ready for a trial. The term ‘unbundling’ has an entirely different meaning. Unbundling could be compared to the concept of ‘pay as you go’ or ‘a la carte’ legal services. The fees that a solicitor charges a client (called the retainer) are limited to particular stages in a civil claim. Some examples of unbundled legal services include:

The Data Protection Act (1998) includes legislation to protect the personal information of Internet users to ensure that they are not exploited illegally online. This is the only real legislation which exists in the UK to protect individuals from what goes on online, and it is only scratching at the surface when it comes to Internet safety. Victims of cyberbullying, websites containing illegal and indecent images of children or minors, plagiarism or illegal sharing of intellectual property, and other online content which can be considered illegal are not protected, censored or restricted in the same way that our credit card details might be, and this is causing a huge degree of controversy over Internet use.