The Law Commission has proposed that pre-nuptial agreements gain legal status within England and Wales. The possibility has been widely welcomed by family lawyers.
The issue has been talked about for some months, and it is now looking like any relevant reforms that result from the discussions may soon come into effect. The Law Commission’s recent report calling for the move is the result of consultations stretching out over three years.
Currently, pre-nuptial agreements can be treated by courts as a factor in deciding how to assign assets in divorce cases, but they are not legally binding and have no set-in-stone status in law. The commission’s report includes a draft of a bill which would change this, allow agreements that are legally binding to be made by couples who are getting married. In the event of their marriage failing, this would result in much greater security for both partners regarding the way their assets will be disposed.
If a bill in line with the Law Commission’s draft should be passed, courts will have no authority to deviate from the terms of qualifying pre-nups when disposing of a couple’s assets as long as the terms provide adequately for the needs of both partners and for any children.
In order to qualify under the terms of the draft bill contained in the report, a pre-nuptial agreement must meet the following criteria:
- It must be signed at least 28 days before the wedding takes place.
- It must not involve fraud, misrepresentation, or undue influence.
- It must contain a statement that the couple understand that the agreement is binding and cannot normally be altered by courts in the event of divorce.
- Both partners must have received legal advice, and undertaken full disclosure.
If any of these conditions are not met, the agreement will not be entirely voided. However, it will not be strictly binding and there will be greater discretion for courts to deviate from the terms when disposing of assets.
James Carroll, co-chair of the family law committee of the Law Society, stressed that this does not make all pre-nuptial agreements into documents that will be absolutely binding in every circumstance. He clarified: “Parties can choose to opt out of sharing non-matrimonial property, but they will not be able to contract out of providing for each other’s needs.”
Many lawyers predict that there will now be a surge in demand for pre-nups, although opinions differ as the to likely extent of this.
According to a recent report, the UK has surpassed New York to become the world-leading international legal services centre. TheCityUK’s Legal Services 2014 report says that New York remains the home of the world’s largest market for domestic law, but the UK is now the biggest centre of international law.
Approximately 7% of revenues for law firms around the world are taken by UK companies. This makes the UK the largest market in Europe by some distance, and the largest in the world by a smaller margin. The UK is also home to three of the world’s five largest law firms when judged by number of employees. Alternatively, if judged by total revenue, the UK houses four of the world’s ten biggest firms. The UK currently also houses offices of more than 200 foreign legal firms.
In 2012, legal services contributed £20.4 billion to the UK economy, accounting for 1.5% of the country’s total GDP. Gross revenues for UK law firms were £38.5 billion in the 2012-2013 financial year, showing growth of 5% in this period.
Another claim the report contained is that London is the world leader in dispute resolution. This applies collectively to al forms of dispute, such as mediation, arbitration and litigation. Over 19,000 commercial and civil disputes were resolved in London in 2012, with approximately 4,700 of these being international. Furthermore, out of all corporate arbitrations across the globe, 40% of governing law is English law and London is widely viewed as the preferred arbitration centre.
According to Desmond Hudson, chief executive of the Law Society: “This report reinforces that the UK continues to lead the way. To remain the destination of choice for legal services, we need to invest in infrastructure, invest in skills and reduce the regulatory burden.”
Furthermore, large law firms in London are likely to have larger, more extensive global networks than their counterparts in other parts of the world. This is perhaps linked to a claim in the report that the current slow rates of economic growth in established markets is likely to drive law firms towards overseas expansion to generate fees.
Nicholas Lavender QC, chair of the Bar Council, said: “These figures demonstrate how important the UK’s legal services sector is to our economy and to the economic recovery.” Lavender went on to say that “English law remains one of our most significant exports and continues to ensure the UK plays a leading role in global commerce.”
There have been changes to civil litigation funding and costs that are worth noting for the clinical negligence sector.
The reforms made by Lord Justice Jackson’s reforms have affected practitioners in the field, as well as their clients, although they were particularly aimed at the personal injury sector and not so much at medical negligence. Now, after eight months, those changes to civil litigation funding and costs in England and Wales start to have serious impact on clients with less valuable claims.
After legal aid for clinical negligence claims have been removed, firms’ cash flows have also come under pressure, following the removal of legal aid for clinical negligence claims. In order to make up for lost revenue after Jackson’s reforms, personal injury firms are branching out into clinical negligence and competition rises up.
Most of Lord Jackson’s recommendations were put into effect on 1 April by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, flanked by new Civil Procedure Rules. Those changes include the removal of legal aid for clinical negligence and the removal of fee agreements where in case of a win, the losing side has to pay the success fee. In the Post-Jackson rules, claimants will now pay it out of their damages. Furthermore, before the winning claimant had the right to recover after-the-event litigation insurance premiums in their entirety However, now only the insurance premium for expert fees can be recouped from the losing defendant. Finally, there would be much stricter control on the amount being spent by claiming to bring medical negligence claims to an English court, in accordance to the new costs and case management rules. Budgets will have to be set before the start of the court process because if costs exceed the value of the claim, they might be considered disproportionate, and therefore disallowed or reduced.
The Mitchell case remains the strongest signal yet of the courts’ very tough line on compliance with these new costs budgeting rules. The case was heard before the Court of Appeal on 7 November. Clinical negligence lawyers did not have a lot of hope but still were eagerly awaiting the final decision. The claimant lawyers in Mitchell were heavily penalised for failing to file their costs budget on time, with their costs reduced to court fees alone and relief from sanctions denied. After all, this pessimism was justified, because the appeal was dismissed.
Over £130million going towards litigation cases against the Ministry of Defence can paralyse the UK’s defences, according to a liberal research group.
According to Policy Exchange, the continuous legal assault against the Ministry of Defence, with 5,827 legal cases in 2012 to 2013, can instantly take up all the resources of the military. According to legal professionals, the commonly used “weapon” in legal challenges pertaining to military action and personnel activities was the European Convention on Human Rights.
The UK was both involved in the fighting in Afghanistan and Iraq. The legal assault increased in volume right after the wars in both countries. Combat Immunity, as long as the Law of Armed Conflict is observed, protected the military from any form of complaint during the conflict. However, because legal issues of negligence and duty of care must be kept in check with military action, the Military faced plenty of legal attacks.
According to military law experts, no personnel is above the law, but they must guarantee to limit many of their own rights. Their report recommended that the government must effectively define Combat Immunity to help military personnel take decisions without fear of violating laws. They must also exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act, which is also a common “weapon” of legal assaulters.
Other recommendations said that the United Kingdom must put down the European Convention on Human Rights during military operations and that legal aid should be removed from lawsuits.
However, the plan is still in contest because many legal representatives pointed out that civilians have a right to complain against military groups who had committed grave offences and the laws give them the capability to do so.
According to them, some legal cases are not meant to get compensation or gains from cases, but rather cases filed by family members to ensure the safety of their sons and daughters who have gone to war.
Chris Grayling the Justice Secretary has declared an end to plans which proposed to award contracts for legal aid to the lowest bidder in an aim to minimize the bill the government has to shell out on legal aid. In a newspaper interview the Justice Secretary stated that the change is due to a deal which has been agreed between himself and the Law Society.
Adversaries of the initial idea had been opposed it as they believed that such a policy will inevitably have a damaging effect on the criminal justice system in England and Wales. Despite this change of heart regarding the way contracts are awarded the remainder of the cuts in the legal aid sector are due to go ahead as planned.
In a speech to the House of Commons the Justice Secretary revealed that households who have over £3,000 in monthly disposable income will not be eligible for legal aid as well as no longer providing such funding to prisoners. The cuts would also affect immigrants who have been residents in the United Kingdom for less than a year as they will be denied legal aid in civil suits.
In searching for ways to minimize the £2bn yearly bill by £350m which the government pays out in legal aid, ministers had proposed the introduction of price competitive tendering. Clive Coleman the BBC’s legal correspondent labeled the proposals as controversial and stated that the quality of legal services is bound to be effected by the winner of the ‘race to the bottom’.
Although the bidding format for legal aid contracts has been abolished the remainder of the money saving plans will go ahead in a push by the government to save money from the UK legal system which has been labeled as the costliest in the world.
The current numbers of legal aid providers in the United Kingdom stands at 1,600 with potential for more should companies meet the minimum quality criterions. Plans by the government will put a cap on the contracts for solicitors working in police stations which will alone save 17.5% nationwide.
Moreover, a committee will be assembled to seek new ideas on how minute hearings can be avoided by resolving them over e-mail or video link. The final draft of proposals will be subject to a 6 week consultation period before the plans come into force.
The Law Commission has recommended that the defence of insanity should be abolished due to that fact that it no longer functions as it was designed to back in the 19th century. The Government was informed by lawyers responsible for suggesting reform that mentally incapable people are often subject to trial in court due to the decayed and no longer in date rules on fitness. Moreover, a recommendation to scrap the defence of insanity has also been made to the government due to it too being out of date and misplaced in the law and that those convicted persistently avoid its use.
The warning was made by the Commission which holds the responsibility to keep an eye on the law in Britain and make recommendations where necessary as well as think of new ways to keep legislation up to date and in line with modern society. The alert by the Law Commission will force government ministers to conduct a review into the matter in order to put a stop to unjust trials and prevent further mentally incapable defendants from having to be sent to prison where they are unable to cope with the environment. The law on unfitness to plead intends to shield defendants who are regarded as unfit to stand trial and to adequately understand the process of a courtroom hearing. Currently the Law Commission believes that the threshold regarding the mental fitness of a defendant to be fit to stand trial is set at an unreasonably high level which inevitably means that a large number of defendants are tried as normal when they should be exempted.
Moreover, pleading insanity as a form of defence looks at the defendant’s state of mind at the time of the committed offence as opposed to the time of the trial. On average, in England and Wales there are thirty insanity pleas which succeed annually in the crown courts. In a published paper which is a discussion prior to the final report which will be compiled the Law Commission stated that both tests for insanity and the unfitness to plead have been formed on concepts which emerged in the 19th century and that neither of which has kept up with modern day developments in medical evidence and what it seen as acceptable in society.
Watch groups condemn an anti-terror law that could have any person entering the United Kingdom have their mobile phone data seized by UK border police for any reason. Authorities have the legal right to get personal information and keep it for as long as necessary.
The tip about the law came from Judge David Anderson QC, who published it in a blog post that also presents his concerns about the government’s powers. He will formally present his opinion with his report on the parliament Wednesday.
UK border police are also allowed by the law to detain UK citizens for up to nine hours and their possession could be kept in police custody for up to a week. Information from mobile phones and other mobile devices could be downloaded and stored by police at an unspecified length of time.
Judge Anderson points out that he finds the powers in Schedule 7 of the Terrorism Act of 2000 “very sweeping”. It allows police to stop, examine and search passengers at ports, airports and international rail terminals at any time and they could detain the passenger for questioning.
The independent judge is quite concerned about authorities exercising the right without having to explain their suspicions and the unspecified length of time a passenger’s confidential information could be kept.
Several watch groups have also called foul against the UK anti-terror law. Privacy International had pointed out that if authorities insist on keeping passengers’ information for more than a week, it is already a violation of the passengers’ personal privacies and the law is “extremely intrusive”. Human rights advocates said the new law could potentially expose the “soft” data through the Internet, which might lead to identity thefts. PI
Police practices of stop-and-question for anti-terror had led to police stopping millions of UK citizens in the streets or public areas and only 9% of arrests are being made.
Judge Anderson calls for more safeguards to protect travellers and their confidential information. He said the law can protect the UK citizens and its government, but there is a need to give a reason and definition to the powers given by the Terrorism Act of 2000.
The United Kingdom’s priority to create a special relationship with India and increase trading ties is threatened by Home Secretary Theresa May’s plan to demand upfront cash bonds from “high risk” country visitors, which included India among the listed. The bonds are reportedly set around £3000.
Numerous Indian CEOs have expressed their outrage against the new Visa law. The head of Tata UK and Co-Chairman of the CII-India Business Forum Anwar Hasan said that he and his group of hundreds of Indian companies understand the UK’s right to manage migration, but the new law introduces a discriminatory element to the contact between India and the United Kingdom. Other CEO’s expressed that the new law is a huge backlash for Britain’s efforts to woo Indian business into the country, saying that Britain is no longer interested in the deal.
Home Affairs Select Committee Chairman Keith Vaz also disagrees with Secretary May’s pilot. He said that the plans are clearly unfair and discriminatory and flies against the British Prime Minister’s intention to attract the best and brightest people to make business in Britain. He said that the new law will send mixed messages to different countries and may potentially alienate communities in the United Kingdom.
Businesses are also worried that the new Visa law may not distinguish between tourist, business or student Visas.
At a keynote speech to the Police Federation’s annual conference- amidst other matters raised- the Home Secretary announced new proposed sentencing guidelines that a mandatory life sentence should be imposed for people who killed police officers in the line of duty.
Stating that killing a police officer was “to attack the fundamental basis of our society”, she proposed that the current minimum term should be raised from 30 years to a life sentence without parole.
In her speech to rank and file officers, Theresa May said that the public “ask police officers to keep us safe by confronting and stopping violent criminals… Sometimes you are targeted by criminals because of what you represent… We are clear – life should mean life for anyone convicted of killing a police officer.”
Under the terms of the Criminal Justice Act (2003), the Justice Secretary is allowed to put set out orders changing sentencing guidelines for judges- after consultation with the Sentencing Council (the body that oversees sentencing in England and Wales). Under the 2003 Act, Chris Grayling would be able to change the minimum sentence to a mandatory life term, meaning that those convicted could not be released except at the discretion of the Justice Secretary on compassionate grounds (terminal illness or similar).
Currently, such whole life sentences can be imposed in murder cases if the case is so serious that the convicted murdered merits such a sentence. There are currently 47 prisoners in England who have been given such whole life sentences, including the likes of Rosemary West and Peter Sutcliffe, the “Yorkshire Ripper”.
Despite the legal and constitutional mechanics behind such a change (ultimately introducing whole life tariffs for police officer killings would require Parliament to alter the relevant legislation), there is support for such change in sentencing.
In support, shadow policing minister David Hanson agreed with Ms May that “the killing of a police officer is a particularly heinous crime that should be punished with the severest possible sentences”, and Police Federation chairman Steve Williams was also supportive.
It was a statement that garnered great support for the Home Secretary at the Police Federation, as many police officers have been killed or seriously wounded by criminals over the last few years.
After being heckled at last year’s Police Federation conference, it was a welcome change for Ms May that rank and file police seem overall supportive of her proposals, such as allowing police to take charge of shoplifting prosecutions where the value of the goods is less than £200, and ending plans for compulsory severance. However, there is still much ill will against the Home Secretary in the police over cuts and reforms to police services.
It is to be hoped the Home Secretary’s several proposals and will win police support, when implemented, restore public trust in the police.
In another damaging blow to the Serious Fraud Office (SFO), the financial crime agency was recently reprimanded in court.
In a pre-trial case management hearing (the actual case will not be heard before April 2014) , Mr. Justice Elder commented that “those kind of delays are completely unacceptable,” upon hearing that the SFO had taken six weeks to reply to questions from the brothers over the procedures used in their arrest last year, and the search of their premises. “It is a matter of extreme regret that it took the SFO from December 3 until the end of January before putting in train real attempts to deal with disclosure.”
The claimant the claimant Tchenguiz brothers put forward their application for a judicial review over delays in getting answers as to SFO behaviour over their arrest last year, and the search of their premises. The agency had taken six weeks to reply to the brothers, who are suing over their arrest last year.
The agency had arrested the brothers last year in conjunction with investigations into the collapsed Icelandic bank Kaupthing. In a judicial review action brought by the brothers, the arrest and search warrants were found to be invalid, and mistakes made by the agency in their investigations were revealed, to stinging criticisms from the judge. The brothers were successful in their judicial review, and are now suing the SFO for £300m in damages.
In response, SFO barrister Dominic Dowley QC apologised for the delay, and cited the instruction of new solicitors as the reason; the SFO is now instructing City firm Slaughter & May. However, the judge also found fault with the Tchenguiz brothers. Mr. Justice Eder criticised the Tchenguiz brothers for not properly detailing their claims against the SFO, stating that there was “serious deficiencies” in their case preparation. In particular, he singled out Robert Tchenguiz’s legal time for failing to comply with the court mandated timetable of disclosure.
It is yet another judicial rebuke for the SFO. In the initial judicial review last year, serious mistakes were uncovered at the agency in the handling of the investigation. More recently, it was alleged that former chief Richard Alderman (who will be called to give evidence in the case) has signed off on up to £1m in exit payments for three senior outgoing staff, without Whitehall approval, whilst director of the SFO. Shadow Attorney-General Emily Thornberry has called for an investigation of Mr. Alderman for malfeasance in a public office. The instructing of Slaughter & May as solicitors for the SFO at great cost to the taxpayer is also questionable. In the background of such allegations, and the ongoing legal battle with the Tchenguizes lies the (now defunct) spectre of the long drawn out investigation into dealings between BAE Systems and Saudi Arabia, which were dropped several years ago, giving rise to criticism.
Mr. Alderman was replaced by David Green as director of the SFO last April. Of the Tchenguiz case, Mr. Green said last week that it was a “wake-up call” for the agency. “It represented a significant failure in the quality of our decision-making… In response, we have restructured the organisation, building in layers of quality control.” Amidst such scandals, it is clear that Mr. Green has a long way to go to restore public and government confidence in the SFO and its abilities to tackle serious financial crime. A resolution to the case brought by the Tchenguizes would be a welcome start in restoring the reputation of the SFO.