Civil way: 29 June 2007

NON-MOL NON-POA

Molestation a crime

Breach of a family non-molestation order (NMO) becomes a crime on 1 July 2007 in relation to conduct on or after that date as ss 1 and 4 of the Domestic Violence, Crime and Victims Act 2004 are implemented, along with the Family Proceedings (Amendment) Rules 2007 (SI 2007/1622) and the Family Proceedings Courts (Matrimonial Proceedings etc) (Amendment) Rules 2007 (SI 2007/1628). As we go to press, the commencement order which includes transitional provisions overlapping from the rules is yet to be made. It seems almost certain that the commencement of s 12 will be delayed because of prison overcrowding. It extends powers for the making of a restraining order. All this spells the end of the s 47 power of arrest for non-molestation under the Family Law Act 1996 (FLA 1996) in relation to any alleged breach of an order made after 30 June 2007. The police (if so inclined) will instead arrest on grounds of reasonable suspicion of the new s 42A offence. The full offence is doing anything prohibited by the NMO without reasonable excuse so—did he do it and, if so, can he show a reasonable excuse? This will render the respondent susceptible to an arrest for conduct such as intimidation, harassment or pestering which would not normally attract a power of arrest under the current regime. The new offence will be triable either way with up to five years’ imprisonment and/or a fine attractable on indictment and 12 months and/or a fine on offer summarily. Either way could spell gross delay.

“It’s good to talk”

In the case of an ex parte NMO, it will be sufficient that the respondent was aware of the existence of the order (say, by telephone) without personal service. Arguably, the respondent to an on-notice hearing could offend without being aware that a NMO had been made.

Single jeopardy

A breach may still amount to a contempt but double jeopardy is prevented. If there is a conviction, the conduct cannot be punished as a contempt and, if punished as a contempt, there can be no conviction for the new offence. That leaves the possibility of a contempt application after a criminal dismissal but with the probability of a strike out as an abuse.

Exclusion: OO or NMO?

A NMO may refer to molestation in general or to particular acts of molestation or both. It is sometimes used to prevent molestation by attendance at a home which is outside the scope of an occupation order because the parties have not lived there together or at some other address such as the applicant’s place of employment which would similarly be outside its scope. Breach of an occupation order (OO) will continue to be dealt with as at present with the power of arrest procedure staying in place. An OO and a NMO order may still be sought in the same application but, if both are granted, separate orders will be perfected. Where an exclusion order would be available as either an OO or a NMO, the latter may be the more attractive to the applicant if other non-molestation relief is sought.

Intimacy without cohabitation

Instead of resorting to the Protection from Harassment Act 1997 or common law nuisance for relief, a person who has not cohabited with the alleged molester may in future be able to use FLA 1996. The definition of ‘“associated persons” is extended thereby opening it to an applicant where the parties have or have had an intimate relationship with each other which is or was of significant duration.

LAWBITES

Driving a Roller on the never, never
All credit agreements are set to become regulated under the Consumer Credit Act 1974 when the £25,000 ceiling for regulation does a disappearing trick. Of course, there will be exceptions. The sexiest is potentially for high net worth customers and we discover who will qualify from the Consumer Credit (Exempt Agreements) Order 2007 (SI 2007/1168) which will be coming into force on 6 April 2008. Footballers, football managers, footballers’ agents, football pundits, WAGs? Any individual whose net income is at least £150,000 and/or has net assets of at least £500,000. This could apply to 250,000 people and the exception is aimed at allowing private banking services a degree of flexibility to offer a wide range of services—which is nice. No doubt the high net worth exemption will become a status symbol.

“Get me to the BBC”

When judgment has been reserved, the likelihood is that counsel will be sent a copy of the draft judgment before it is formally handed down. Should he hide it? Tell the spouse or partner? The answers are in CPR PD40E para 2.4 and for guidance of what that intends go to DPP v P [2007] All ER (D) 246 (Apr). Disclosure of the draft should be limited to the solicitors directly involved in the case. It may be that the conducting solicitor will need to consult with a supervising partner or, if he works for an organisation, with a more senior solicitor. It is inappropriate, however, for there to be a wider dissemination of the draft. If there is any doubt about publication elsewhere, permission should be sought from the judge. Oh and the parties can be shown the judgment—in confidence and on the para 2.4 terms. 

And here is the service news 

On an application for a retrospective extension of time for service of a claim form under CPR 7.63 the attempts at service after the expiration of the time limit for service (generally, four months) are irrelevant. The Court of Appeal made that clear enough in Drury v BBC and another [2007] EWCA Civ 497, [2007] All ER (D) 384 (May). It was also suggested that there was no duty on an employer to assist a claimant to serve proceedings on an employee (in this case, the employer was the BBC and the employee was a programme editor). Further, a potential defendant is not obliged to help a claimant to serve documents on him. He should not make life difficult but he need not give any positive assistance and he certainly is not under any obligation to forgo his legal rights.

Bad value

 The trial judge in determining the rent on a new business tenancy claim in Trans-World Investments Ltd v Dadarwella [2007] EWCA Civ 480, [2007], All ER (D) 355 (May) left out of account the rent under the old lease and the rent of a comparable adjoining property, contrary to the landlord’s invitation that he should have regard to them. He did so on the grounds that there was no evidence of the circumstances in which the rents had been negotiated. He was wrong to have done so. It is for the party who challenges the relevance of the passing rent or the comparables to adduce evidence of the circumstances relied on to show that the rents were not relevant factors in the valuation exercise.

Money for medics 

A major agreement on medical report fees has been concluded between 10 insurers and eight medical reporting agencies through mediation by the Civil Justice Council, on the back of an appeal to the Court of Appeal which has now been withdrawn. The participating insurers include Zurich, Norwich Union, Allianz, Direct Line, National Insurance and Guarantee Corporation. Among the participating medical agencies are Doctors Chambers, Mobile Doctors, Medico-Legal Reporting and UK Independent Medical Services. The agreed cap on fees relates to personal injury claims (road traffic and employer and public liability) where the level of general damages, anticipated by the claimant when the report is commissioned, does not exceed £15,000. The agreed rates for payment within 90 days of invoice (the figures in parenthesis are for settlement after 90 days) are: for GP report without notes £195 (£220); for GP review of notes £50 (£55); for orthopaedic report including review of notes £425 (£465); for accident and emergency report including review of notes £375 (£410); for an addendum—cost + £25 (cost + £30); and for obtaining each set of medical records—cost charged by data provider + £25 (cost charged by data provider + £30).

Practical but painful 

There must be good reason under CPR 6.8 for alternative service to be ordered. It is not a precondition of an alternative service order that service by a CPR permitted method is impractical. The court must have in mind the horrendous cost of litigation today, the hurdles thereby created in the way of obtaining justice on the part of those with limited means (and, in particular, those with limited means facing litigants with abundant means) and the need to ensure that cases proceed expeditiously. Mr Justice Lightman in Albon (trading as N A Carriage Co) v Naza Motor Trading SDN BHD and another [2007] EWHC 327 (Ch),  [2007] All ER (D) 154 (Mar).  

POWERFUL WEAPON HITS TARGET

- An “unless order” takes effect without the need for a further order if the party to whom it is addressed fails to comply with it in any material respect. In Marcan Shipping (London) Ltd v Kefalas and another [2007] EWCA Civ 463, [2007] All ER (D) 277 (May) (in which Carlco Ltd v Chief Constable of Dyfed and Powys Police [2002] EWCA Civ 1754, [2007] All ER (D) 244 (Nov) was not followed—so there) Lord Justice Moore-Bick spelt out the consequences of this situation.
- It is generally unnecessary and inappropriate for a party seeking to rely on non-compliance to make an application for the sanction to be imposed because the sanction prescribed takes effect automatically on the failure to comply. A request for judgment should be filed under CPR 3.5(2).
- If CPR 3.5(2) does not apply (because, for example, the sanction does not relate to the whole statement of case) then a CPR 3.5(5) application will be required. But then the court’s function will be limited to deciding what order to make to properly reflect the sanction which has already taken effect. Unless the party in default has applied for relief or the court decides for some exceptional reason that it should act of its own initiative, the question whether the sanction ought to apply does not arise.
- If it is thought that the court should not have made the unless order in the first place, the right course is to challenge or appeal but it may be better to make all reasonable efforts to comply and to seek relief in the event of default.
- If a party in default wishes to escape the consequences of an unless order he must apply for relief from sanction under CPR 3.8.
- Before making an unless order the judge should carefully consider whether the sanction is appropriate in all the circumstances. This most powerful weapon should not be deployed unless its consequences can be justified.

OOOH, OGDEN

The Ogden Tables have just been revamped after three years and published by the Government Actuary’s ­Department (see www.gad.gov.uk/Other_Services/Compensation­_for_injury_and_death.htm where you can download the whole extravaganza). Is this something to do with organ furniture? Far from it. The tables aim to facilitate the calculation of compensation for future loss. The late Sir Michael Ogden QC who gave them his name—why they were not called the Tables of an Inter-disciplinary Working Party of Actuaries, Lawyers, Accountants and other interested parties is an enigma—said this when they were first published: “When it comes to the explanatory notes we must make sure that they are readily comprehensible. We must assume the most stupid circuit judge in the country, and before him are the two most stupid advocates. All three of them must be able to understand what we are saying.” That the assumption of judicial stupidity was not reserved for registrars (the forerunners of district judges) is no doubt attributable to their then modest jurisdiction. The new edition:
- Extends guidance on calculation and adopts a new methodology for assessing appropriate deductions to be made to the working life multiplier dealing with contingencies other than death, including the assessment of a claimant’s residual earning capacity after an accident. New research reflected demonstrates that people without disabilities spend more time out of work than had previously been thought. The reflection means that some claims for loss of earnings are likely to come down.
- Gives guidance for dealing with variable future loss and expense. Where, say, the claimant’s lost earnings would have changed on a sliding scale or due to promotion or the care needs will change because a family member is no longer available to help, the “split multiplier” is advocated and illustrated by examples.
- Updates the mortality rates used in calculating the tables to those underlying the latest set of national population projections for the UK.