Civil way: 16 February 2007

LAWBITES

Leave before notice

The Court of Appeal has ruled on a procedural issue in the first case to reach it on the adoption alternative—the special guardianship order, see Adoption and Children Act 2002, s 115(1), 155 NLJ 7202, p 1808. In R (a child) (special guardianship order) [2006] EWCA Civ 1748, [2006] All ER (D) 299 (Dec) it held that where leave to apply is required, leave must be obtained before the applicant can make the substantive application or give the local authority notice of the intention to apply. On receipt of a notice, the authority must investigate and report.

No precedent for a PP precedent 

The wife applied to vary a nominal periodical payments order and the district judge decided she deserved £16,500 per annum, which he then proceeded to capitalise at £202,000 under the Matrimonial Causes Act 1973 (MCA 1973), s 31(7B). The husband argued on appeal that the wife should have established the condition precedent to a variation, namely that despite her best endeavours, her attempts at self-help—getting a job—had failed. That’s how it was in N v N [2006] EWHC 3269 (Fam), [2006] All ER (D) 292 (Dec). Mr Justice Charles said there was no such condition precedent to be met. The language of MCA 1973, s 25 which applied, precluded it.

The family way 

The Family Procedure Rule Committee is a glutton for punishment. It will be going public for the second time when it meets in central London on 2 April 2007. Anyone after an invitation to attend may obtain a short application form from Judith.Evers@hmcourts-service.gsi.gov.uk. Lay representatives particularly welcome. Only joking.

THE SOUND OF SILENCE

Here are some quotes for the office blotter:
 “…a party to litigation is not obliged to be the nursemaid of his opponent"—Lord Justice Staughton in Indian Endurance (No 2), Republic of India v India Steamship [1996] 2 Lloyd’s Reports 12, [1996] 3 All ER 641.

 “Heavy, hostile commercial litigation is a serious business. It is not a form of indoor sport and litigation solicitors do not owe each other duties to be friendly (so far as that goes beyond politeness) or to be chivalrous or sportsmanlike (so far as that goes beyond fair). Nevertheless, even in the most hostile litigation (indeed, especially in the most hostile litigation) solicitors must be scrupulously fair and not take unfair advantage of obvious mistakes…The duty not to take unfair advantage of an obvious mistake is intensified if the solicitor in question has been a major contributing cause of the mistake.” Mr Justice Walker in Ernst & Young v Butte Mining plc [1996] 1 WLR 1605.

“I don’t think he knows”

So where did that put the consent order in Thames Trains Ltd and another v Adams [2006] EWHC 3291 (QB), [2006] All ER (D) 96 (Dec)? The parties had concluded over the telephone a compromise agreement for the settlement of a claim for damages by Michael Adams for grave injuries suffered when a passenger in the Ladbroke Grove crash of October 1999. Unbeknown to the solicitor for Thames Trains (TT) while conducting the telephone conversation in question, a letter offering to settle on less favourable terms than those agreed—damages of US $500,000—had been faxed to his office by Adams’ firm of solicitors earlier the same day but it had not been put before him due to a systems error in his office. That faxed offer had only been sent after TT’s solicitor had told Adams’ solicitor that there was no more money available, whereas it turned out otherwise. Adams’ solicitor did not mention the fax to TT’s solicitor during the conversation in question. At that stage she did not know if it had in fact been received by his office. Should she have spoken?

Fax of life

Mr Justice Nelson in Thames Trains said that there was no general duty upon one party to litigation to point out mistakes of another party or his legal advisers. There was a duty to be scrupulously fair (dealing with another solicitor or litigant in person). A breach of the rules of professional conduct did not of itself give rise to a cause of action.

Whether Adams would be estopped from asserting the validity of the consent order would depend on concepts of unconscionability, honesty and responsibility, the expectations of a reasonable man and the detriment to the party making the mistaken assumption. On the facts, Adams’ solicitor had not been under any duty to speak. She was entitled to stay silent, act in her client’s best interests and accept the increased offer. Had she been asked a specific question she may have been required to answer it but she was not. She did not encourage TT’s solicitor’s mistake save by her silence. The claim by the defendants to Adams’ own claim in a separate action for the consent order to be set aside on duty, estoppel, mistake and unconscionable conduct was dismissed.

WANTED CROSS-EXAMINER

An applicant in person sought parental responsibility and contact in relation to his daughter in Re H, L and R [2006] EWHC 3099 (Fam), [2006] All ER (D) 96 (Dec). But a step-daughter alleged that the applicant had sexually abused her as a child. The step-daughter was now an adult and vulnerable. With the applicant in person, who was to cross-examine the step-daughter? That was the conundrum for Mr Justice Roderic Wood

Advocate for daughter’s guardian?

The daughter and step-daughter lived together. The guardian thought it wholly inappropriate that the daughter’s advocate should undertake cross-examination. The judge agreed.

CAFCASS Legal?

They declined to instruct an advocate and thought that the guardian’s advocate should cross-examine. However, the judge was of the view that they could not be expected to provide an advocate in such circumstances, if at all.

The Official Solicitor? 

He declined. The judge agreed with his view that the circumstances did not qualify for his intervention.
 

The Free Representation Unit?

They did not feel able to assist. However, the judge felt that the age and experience of most barristers who generously volunteered their services to the unit was not necessarily commensurate with the need for an experienced cross-examiner where the issues were as delicate as in this case.

The judge?

In R v Milton Brown [1998] EWCA Crim 1486 Lord Bingham said that in an appropriate case it was open to the judge to ask an unrepresented criminal defendant whether there were matters he wished to have put to a witness. It would be for the judge to decide whether and how to put questions in relation to those matters. Wood J stated that Lord Bingham’s observations in the criminal case had been significantly overtaken by the passing of the Youth Justice and Criminal Evidence Act 1999 but there might be cases where the practice alluded to by Lord Bingham might be appropriate, though he felt a profound unease at the thought of conducting such an exercise in the family jurisdiction, while not regarding it as impossible.

The Attorney General? 

In Attorney General’s Memorandum 19 December 2001 [2002] Fam Law 229 there was an explicit inhibition on the provision of an advocate ‘normally’ to cross-examine. But here the Attorney General did exceptionally agree to do so following the judge’s urgent request. Phew! Despite this, it was to be emphasised that the Attorney General was not a regular port of call even where all other available options had been followed through.

Plea

Wood J urged a new statutory provision for representation, out of public funds (if necessary) analogous to that governing criminal proceedings. He could see no distinction in policy terms between the criminal and civil process. 

CONSTRUCTING AND ENGINEERING A CRACK 

Renovation works—following a tender procedure—have been carried out to the pre-action protocol for construction and engineering disputes. They may be admired before coming into force with the CPR 44th update—see NLJ, 26 January 2007, p 138—on 6 April 2007. 

The main change goes to how much and how long is to be spent on protocol compliance, with a juicy new paragraph on proportionality. Yes, the overriding objective does apply to the pre-action protocol period, we are told. The protocol must not be used as a tactical device to secure advantage or generate unnecessary costs. In lower value claims such as those likely to proceed in the county court, the letter of claim and response are to be kept simple and the costs of both sides kept to a modest level. And “…the protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required fit if the case proceeds to litigation.”
ADR: not compulsory BUT
Other changes:
 reduce the maximum period for the defendant’s response to the letter of claim from four to three months from receipt of the letter;
 provide for the pre-action meeting to take place within 28 days of receipt of the defendant’s letter of response rather than as soon as possible thereafter; andacknowledge that no party can or should be forced to mediate or enter into any form of alternative dispute resolution but also provide that whether alternative means of resolving the dispute were considered or agreed is one of the matters that any party who attended a pre-action meeting should be at liberty to and might be required to disclose to the court.

A FAIR COP

A defendant is not bound by a pre-action admission of liability. For multi-track claimants, that was the bad news out of the Court of Appeal in Sowerby v Charlton [2005] EWCA Civ 1610, [2005] All ER (D) 343 (Dec), although some hope was held out for an abuse of process or obstruction argument in Stoke-on-Trent City Council v Walley [2006] EWCA Civ 1137, [2006] 4 All ER 1230, see 156 NLJ 7243, p 1520. Different considerations should apply in fast-track destined claims because of the pre-action personal injury protocol which at para 3.9 raises a presumption that the defendant is bound by a pre-action admission.
 

Bound but not gagged

Now, multi- and fast-track claims are put on an admission par, the Court of Appeal’s plea in Walley having been heeded. Recognition is given to all pre-action admissions made on and after 5 April 2007 in proceedings caught by the three protocols for personal injury claims, clinical disputes and disease and illness. After commencement of proceedings, any party may apply for judgment on the admission but, conversely, the party who made the admission may apply to withdraw it. The entitlement to apply for judgment will be dependent on compliance with the prescribed requirements for the admission—written notice (admitting the truth of the whole or any part of the other party’s case) and the admission coming after receipt of the letter of claim or, if before receipt, a statement that the admission is made under CPR Pt 14. Withdrawal is permitted before proceedings with consent and, after proceedings, with consent or the court’s permission.

The criteria for withdrawal are taken up by the amendments to PD 14. The court is to have regard to all the circumstances of the case including:
 the withdrawal grounds relied on and whether or not new evidence has come to light which was not available when the admission was made;
 the conduct of the parties including any conduct which led to the admission being made, any prejudice that may be caused if the
admission is withdrawn and if withdrawal is refused, the stage in the proceedings at which the application to withdraw is made, in particular in relation to the trial date;  the prospects of success (if withdrawal) for the claimant; and  the interests of the administration of justice.

The personal injury protocol is amended by removal of the first sentence of para 3.9 (see above) which is subsumed by the rule change.