Part 3 Costs Management

<<< Newest Blog Article

Commentary and references on current civil procedure rules.

Section 2 of Part 3

Imbalance of funds is probably grounds for a case management order

<<< Newest Blog Article

*Complete the online enquiry form and see if I can help you.*

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Part 44 General Rules about Costs

<<< Newest Blog Article

Commentary and references on current civil procedure rules.

44.2(6)g

Awarding interest on pre-judgment costs will be unsual, e.g. in really long cases.

<<< Newest Blog Article

*Complete the online enquiry form and see if I can help you.*

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Part 36 Offers to Settle

<<< Newest Blog Article

Commentary and references on current civil procedure rules.

36.10

Multiple defendants. 1 defendant accepts Part 36 Offer.  Asbestos is a divisible condition and therefore the the recoverable costs are (1) common costs divisible by the total number of defandants) + (2) costs specifically incurred re specific defendant.

<<< Newest Blog Article

*Complete the online enquiry form and see if I can help you.*

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

No Relief from Sanctions Civil Procedure Rule 3.9 – post Mitchell an update

<<< Original Article

Generous

Clear example of lower courts protecting their judicial discretion and not towing the line (application to extend time after it passed):

Fair

Claim dismissed as sanction for delay (15 year delay resulting in compromise of evidence and likely unfair trial) – would not have been any different under old CPR 3.9

Notice of Funding by letter and not Form N251 is a trivial breach; relief provided from the date notice rectified

Claim struck out for non-payment of court fees per CPR 3.7; relief provided

  • [Watch this space for a reference; it is my own ongoing case]

Towing the Line

Application to vacate trial date dismissed (author of misfortune in delaying self-help; court not coming to the aid of a LiP)

Failing to file a witness statement!  A friendly consent order re-setting the timetable overridden by the court of its own initiative

Application to extend time to file an appeal notice – no specific sanction listed but Rule 3.9 applies

Prejudice is no longer a reason to allow or disallow relief

Application to extend time to serve expert evidence not allowed – draconian consequences are a fact of life post-Jackson and the importance of the original order not being in an “unless order” form is of little significance – critically, what would otherwise be a good reason was trumped by the lack of reason for the delayed application for relief

Failure to serve a Notice of Funding is not trivial; relief not provided

Relationship between Rule 3.9 and 3.1(7) (vary court order)

Re-consideration of an order made under r3.9 will usually be under 3.1(7) and compliance following sanction coming into effect following an unless order does not amount to a material change

Relationship between Rule 3.9 and 3.3 (Court’s power to make orders of its own initiative)

Relationship between Rule 3.9 and 52.3(5) (Seeking permission to appeal at hearing after paper application refused)

CFA not served re Detailed Assessment proceedings resulting in uplift not being recoverable

<<< Original Article

*Complete the online enquiry form and see if I can help you.*

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Divorce Law

Marital breakdown does not mean unavoidable familial and financial trauma.  It is important to approach the tidy up exercise post-divorce constructively, with patience and an open mind.  Divorce law is a non-legal phrase that usually relates to the 3 most important items that need to be resolved at the end of a marriage:

  1. The actual “divorce”, which is the legal recognition of the end of a marriage crystallises in the form of a “decree absolute”.  This is important as it allows you to legally marry again.  This is usually the easiest part of the divorce process – it usually means modest court and legal fees and a wait of a number weeks.  The law is clear and set out in the Matrimonial Causes Act 1973 – blameworthiness on the part of one or the other for the breakdown of a marriage is almost irrelevant in most cases.
  2. Children.  If there are children involved, whether or not the husband and wife are biological parents, then the issue of who the children should continue to live with and what kind and level of contact should be enjoyed with the other will need to be dealt with.  The law is set out in the Children Act 1989.  The most important principles include: the welfare of the child is of paramount consideration; any delay is likely to be prejudicial to the child’s welfare; no order principle: no order should be made unless it is better for the welfare of the child.  In the first instance, parents should attempt to settle this issue consensually.  If that fails, attempt to negotiate a settlement with the assistance of legal advisers – you will be surprised how often a legal reality check proves successful.  Finally, there is the option of issuing proceedings in court.
  3. Finances aka Ancillary Relief.  The importance of this final item must not be underestimated.  Whether or not either party to the marriage brought assets into the relationship or assets were built up during the term of the marriage, whether one party has a substantially greater income than the other or not, any legally advised settlement is likely to mean there is a short or long term adjustment (I prefer not to call it a redistribution) to the main assets in the marriage whether they are: the family home; pension; right to the greater income of the other; family heirlooms; the dog, etc.  E.g. if a wife has given up work to look after the home or children, she is likely to be entitled to maintenance payments or a capital sum in lieu, if a wife inherited or is shortly due to inherit wealth, the husband may be entitled to a share.  The law in this area is fluid and a fair settlement requires a careful review of the particular history in each case.   Once again, the best approach is often to reach a consensual settlement between the parties after receiving legal advice.  Rarely is it appropriate to split everything 50/50!

Whether  you have a phobia of seeking legal advice or you generally consider legal advice is not financially efficient, on at least step 3, you must seek legal advice.  If for nothing else, to guard against further claims in the future from the same ex-marital partner.

Watch this space as I share with you the key principles underpinning the 3 most important issues in divorce law.

*Complete the online enquiry form and see if I can help you.*

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Accountants Adding Value and Instructing Barristers

Did you know the rules have changed and you can instruct barristers on behalf of your clients (or yourself)

Flow Chart: Solicitors instructing Barristers v Accountants instructing Barristers

 Flow Chart

The Legal Landscape is Changing

The legal landscape is changing; in particular how solicitors and barristers work with each other.  The emphasis is on opening up access to the expertise of barristers to a limited number of professions – previously, the exclusive domain of solicitors.  As accountants, you can now add value to your mainstream services by instructing barristers on legal matters on behalf of your clients avoiding incurring solicitor fees and charging for your assistance.

Anybody can apply to have a Licence for the purposes of instructing barristers.  Accountants have the benefit of a licence by default[1] (a deemed licence).

The Rules

Pursuant to changes to the Code of Conduct applicable to barristers, in particular r.401(a)(iii) and the Licensed Access Rules, accountants (along with a limited number of other esteemed professions) may instruct barristers on behalf of their clients under the Licensed Access Scheme.

Advantages

Looking at the flow chart above, you will see that the restrictions are a limited obstacle in resolving most legal disputes, which are settled outside of the court.  This early intervention:

  • Saves money on legal fees;
  • Saves time, which can be better invested in the client’s own business;
  • Avoids the risk of litigation, in particular, the costs of the other side and
  • Saves goodwill between business partners.

As accountants, you are in a unique position to assist lay clients.  You have an intimate knowledge of the client’s business and receive early notice of brewing legal disputes.  An early intervention often means settlement by agreement is all the more likely between disputing parties and critically saving goodwill between business partners.  This allows you to add value; earn goodwill; and charge for your assistance.

How to Instruct a Barrister under the Licensed Access Scheme?

  1. Contact the barrister or his chambers and book a conference
    – Assist the client in bringing together the paper work that may be relevant to the issue in dispute, e.g. if there is a dispute within a partnership, the partnership agreement.
  2. Attend a conference with the barrister (cost, circa £300 – £500)
    – Only the lay client has to attend.
  3. Receive written advice (cost, circa £500 – £2,000)
    – The advice will cover agreed issues, e.g. chances of success or next steps.
  4. Attempt to settle matters by negotiation
    – The client or you can then conduct negotiations with a handle of the strengths and weaknesses of the client’s legal position.

What happens if matters do not settle through negotiation / mediation etc.

Consideration will need to be given as to whether court proceedings should be issued.

Note

At all times, it is incumbent on the barrister to keep under review whether it is in the interests of the lay client to be represented by a solicitor and advise accordingly.

Ordinarily, barristers cannot conduct correspondence, e.g. letters to the other side negotiating.  However, we can provide advice on carrying out correspondence or e.g. draft letters.

This general restriction provides further scope for you to assist the lay client beyond the initial instructions and charge for your assistance.

Full List of Licensed Clients Deemed to be Authorised

Part I – Accountants and taxation advisers

1. The Association of Authorised Public Accountants
2. Association of Taxation Technicians
3. The Association of Chartered Certified Accountants
4. The Chartered Institute of Management Accountants
5. Institute of Chartered Accountants
6. The Institute of Chartered Accountants in Ireland
7. Institute of Chartered Accountants in Scotland
8. The Chartered Institute of Taxation
9. The Institute of Financial Accountants
10. The Institute of Indirect Taxation

Part II – Insolvency practitioners

1. Insolvency Practitioners Association

Part III – Architects surveyors and town planners

2. The Architects Registration Council of the UK
3. The Architects and Surveyors Institute
4. Association of Consultant Architects
5. The Royal Institute of British Architects
6. The Royal Institution of Chartered Surveyors
7. The Royal Town Planning Institute

Part IV – Engineers

1. The Institution of Chemical Engineers
2. The Institution of Civil Engineering Surveyors
3. The Institution of Civil Engineers
4. The Institution of Engineering and Technology
5. Institution of Mechanical Engineers
6. The Institution of Structural Engineers

Part V – Valuers

1. The Incorporated Society of valuers & Auctioneers

Part VI – Actuaries

2. The Faculty of Actuaries
3. Institute of Actuaries

Part VII – Chartered secretaries and administrators

1. The Institute of Chartered Secretaries and  Administrators

Part VIII – Insurers

2. The Association of Average adjusters
3. The Chartered Institute of Loss Adjusters
4. The Chartered Insurance Institute

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)


Free Template Assured Shorthold Tenancy Agreement

Free Assured Shorthold Tenancy Agreement

The best ASTs are fair and short.  My contribution to the freeware world of landlord documentation is here.

Peculiarities with the property, landlord, tenant or guarantor often need to be dealt with in individual tenancy agreements.

Landlords with a portfolio should look at developing their own “tailored” template AST to complement the way they work and their properties.  In this regard, a little bit of legal advice today can be worth a lot tomorrow.

User beware.  The writer does not accept any liability!

If any readers have questions on this post, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Judgment Summons

Judgment Summons
Pay or Else go to Prison

Introduction

A remnant of a bygone era.  The risk of incarceration on the failure to pay a debt only exists in a very narrow list of cases as preserved by the Debtors Act 1869[1].  Non-payment of maintenance payments under a divorce settlement is one of the items on that list[2].

Given the draconian nature of incarceration for the pithy matter of money and debt, it tends to be exceptionally used.  It often only raises its powerful head when other forms of enforcement have proved unsuccessful or inappropriate.

Where the debtor under a maintenance order is not paying and is self-employed, an attachment of earnings is not possible.  Further, the nature of the needs of the creditor (typically, a mother with children) and the ineffectiveness of a charging order to crystallise into regular cash means judgment summons come to the fore: if a judgment summons petition is successful, the debtor will usually be told to pay or else go to prison by way of a suspended committal order (rarely, is (s)he sent to the dudgeons at the first opportunity).

Given the rule-ridden human rights infected minefield that judgment summons have become and the general exceptional recourse that it has proven to be, this text is motivated by the desire to bring together the principal procedural and substantive rules in one place, at least, as a convenient navigating tool.

The rules and regulations

The rules are to be found in:

  • Part 33, Family Procedure Rules 2010;
  • County Court Rules 28;
  • Practice Direction on Committal Hearings; and
  • Human Rights Law (especially if you are defending).

The reason for this area being rule heavy and judges often intervening on their own volition against petitions is because civil judges do not like sending anyone to prison unlike their criminal counterparts.  If you have tripped up on a relatively minor rule, do not expect any argument of no prejudice to save you[3].

……….

Article to be released in parts.  Below is simply an indication of areas to explore.

……….

Preparing the Petition

Criminal Standard of Proof

Proving Means

Proving wilful failure/neglect

Defence Strategy

Provide no evidence.

Costs

Starting Point: Clean Sheet

Negotiation

A good time to re-negotiate.

Note for Barristers

Civil barristers, exceptionally, have to wear their wig and gown.  This is one of those occasions[4].  It is warranted by the possibility of incarceration.  Presumably, the same applies to solicitor advocates.

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)


[1] Debtors Act 1869, s.4

[2] Ibid, s.5, a non-payment of a debt or instalment under a court order

[3] Practice Direction Committal Hearings, clearly relief from formality errors is clearly theoretically possible.

[4] If anybody knows where this rule is set down, please contact me @ taj.uddin@gcp-barristers.com

Accident! Which Courtesy Car should you Accept?

You have had an accident and it is not your fault.  By the time you get home, every car hire company under the sun is offering you a “free” replacement car.  Now, your own insurance company’s preferred car hire company and the other at-fault driver’s insurers have joined the race and they each want you to accept their offer of a hire car .

Those who are not drivers or been involved in a car accident will find this story alien.  Those who have had an accident, will find this article all too familiar.  The important thing for everyone is to know the basics for when the worst happens – the likelihood of any one of us being involved in a car accident, through no fault of our own, is very high.

Which offer should you accept?

Nothing less than a comparable and adequate substitute!

The law allows you to recover the costs of a comparable replacement car – after all, you should not be put out by an accident caused by a stranger.  However, you are expected to take “reasonable” steps to arrange such a car at minimum cost.  So how should you navigate around all these offers whilst dealing with the trauma and possible injury that may have arisen from the accident.

1) You should not be pressured to accept an offer from anyone.  The most likely source of pressure is the at-fault driver’s insurance company; they may say something along the lines of, you will not be entitled to the costs of hire from any third party, if you reject our offer OR we will only pay £20 per day against any hire from any third party and you are unlikely to get any adequate replacement car for that.

2) If you are offered a car from the at-fault driver’s insurance company, consider whether it is a comparable replacement car and adequate for your purposes.  If the answer to both questions is YES, its sensible to take up such an offer.  If you are unsure, seek advice from your own insurance company –  you are entitled to take the time to consider the offer. Copley v Lawn 2009 EWCA Civ 580.

Think carefully before you accept!  The at-fault driver’s insurance company is motivated by the desire to provide a replacement car at minimal cost.  That is all well and good unless they try and dismiss you with an inadequate replacement car.  E.g. did your car have sat-nav, similar engine size, special fittings for disabilities, sufficient boot size, parking sensors… the list goes on.

3) If you are offered a car from your own insurance company’s preferred car hire company, once again, consider whether it is a comparable replacement car and adequate for your purposes.  These guys should be on your side but their independence is unfortunately tainted by the industry agreements most insurance companies have signed up to with each other.  More often than not, these guys should have the flexibility to find an adequate replacement car for you.  BUT not always…

Warning!

Time for a little personal tale: in the same situation, I rejected offers from both the at-fault driver’s insurance company and my own insurance company.  Neither would offer me a car with parking sensors (my car had parking sensors).  I felt I needed this facility because a) I am used to parking with this aid; and 2) I live on a street where I usually have to park a 5m car in exactly 5m of space.  The last thing I wanted was to scratch a hire car and pay out of my nose to repair it. Because the insurance companies and independent car hire companies have an understanding with each other, nobody would hire any car to me as soon as I let them know that I rejected my own insurance company’s offer – I was literally working my way down the Google version of the Yellow Pages.  Eventually someone did, they charged over the odds for the service, and recovered their fees fully.  That only resulted because the whole market closed the door on me because of the mutual understanding in the industry – otherwise, a replacement car would have cost 1/3rd of what it did in the end.

4) If you are offered a credit hire car from an independent car hire company, then as long as you do not mislead / lie to them as to your engagements and mitigations to date, there is little risk on your part.  Most importantly, you will need to disclose to them if you have rejected offers to date and whether you really “need” a car.

They are “credit hire” companies because they charge for the fact that they are taking the risk of delayed or non-payment.  The service is “free” to you as long as you answer their questions in good faith.  They take the risk on the credit costs on the basis that you do not have the resources to pay for a car hire service up front and the probability that they will be able to recover the same from the at-fault driver’s insurance company.  If their gamble does not pay off, they take it on the chin.

Nothing in life comes for free

Lastly, it is important to dispel a myth.  None of the offers are actually completely free.  It is free at the point of use (like the NHS and Universities and many commercial loans) but somebody down the line will pay for it – you, your insurance company (then you indirectly via increased premiums) or the at-fault driver’s insurance company (then the at-fault driver indirectly via increased premiums).  It is not a coincidence that insurance companies don’t actually pay for anything in the long run!

  • If the hire car is from the at-fault driver’s insurance company, that insurance company will pay for it.
  • If the hire car is from an independent car hire company, the at-fault driver’s insurance company will eventually compensate the independent car hire company.
  • If the hire car is from an independent car hire company and you misled / lied about something with them, you may have to pick up the bill.
  • If the hire car is from an independent car hire company and they charged you too much, they will have to take it on the chin themselves.
  • If the hire car is from your own insurance company’s preferred car hire company, they will recover their costs from the at-fault driver’s insurance company.

The above is very good reason to drive carefully, try and compensate for other bad driving, and avoid having to deal with insurance companies and car (credit) hire companies.

If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin MA Oxon, Barrister

Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Client Feedback

It is constructive and pleasing to receive positive feedback – this followed on from a hearing on a road traffic accident in Portsmouth County Court.  The client succeeded in her case, as a Defendant, in showing that it is not always your fault if you hit the car in front – something that many insurance companies appear to believe otherwise and try and convince their insured(!):

“Mr. Uddin, the barrister, was very good, I was really pleased.” Client

Taj Uddin, Barrister

Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)