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Hamish Dunlop, Head of 3PB Barristers Family Law Group, led by Nigel Dyer QC, and instructed by solicitors Hughes Paddison of Cheltenham, again represented the husband and respondent Hugh Owens in the Supreme Court’s hearing of the groundbreaking Owens v Owens divorce case.
The Supreme Court today, Wednesday 25 July, delivered its verdict on the application from the appellant and wife Tini Owens challenging the earlier rulings by the Court of Appeal and the original trial judge. The Supreme Court upheld – in a unanimous verdict 5-0 - the earlier courts decisions that the wife would not be granted a divorce despite an unhappy relationship. Both Courts had found that the husband’s behaviour had been tantamount to ‘minor altercations of a kind to be expected in a marriage’.
Hamish Dunlop, commenting on the Supreme Court judgement, told Lawyer Monthly: “The Supreme Court has rightly rejected Mrs Owens` attempt radically to reinterpret the requirements for a behaviour divorce brought under the Matrimonial Causes Act 1973. In bringing her appeal, she was essentially advocating divorce by unilateral demand of the Petitioner; ignoring the Court’s duty to have some objective regard to the Respondent’s behaviour.
Those calling for a so-called ‘no fault divorce’ regime may take comfort from Lord Wilson’s view that in moving with the times, the law nowadays sets the bar for a grant of divorce based on behaviour at a low level. Nevertheless, the essential ingredients of this ground (or ‘fact’ under the Act) must still be proved. Mrs Owens failed to satisfy the Trial Judge that her husband had behaved in such a way as to entitle her to divorce him under the law as it currently stands. After extensive legal argument neither the Court of Appeal nor the Supreme Court felt it appropriate to interfere with the Trial Judge`s decision to dismiss Mrs Owens` petition for divorce.
The importance of this decision cannot be underestimated; not least because neither the Supreme Court (nor its previous form as the House of Lords) have considered the behaviour fact before. The Court took the opportunity to confirm the long line of authorities setting out the correct test since 1972.
The legal community is currently encouraged to draft divorce petitions in as anodyne terms as possible; and thereby reduce friction in the separation process. The consequence of this judgment is that Courts, lawyers and divorcing couples must ensure that a Petitioner’s case contains adequate particulars of behaviour by which it can be said that the Petitioner cannot reasonably be expected to live with the Respondent. “
“Despite their unanimous rejection of Mrs Owens’ Appeal, the majority view of the Court encouraged Parliament to consider replacing the current law under which she failed to persuade the Court to grant her a divorce from her husband.”
In light of recent news that the European Commission fined Google 4.3 billion euros ($5 billion; £3.8 billon) over its Android operating system and impact on consumer searchability, Steve Kuncewicz, BLM partner, technology and digital expert, provides Lawyer Monthly with his thoughts on how this could affect regulation around device development in the future.
This is a far more interventionist approach than Google is likely used to and comes from a European Commission (EC) looking to bring the tech giants to heel. It’s not the first time the EC has cracked down on Google either; only last year, a €2.4 billion fine was imposed for what the Commission dubbed ‘old school’ illegality through Google’s dominance in shopping comparison searches.
As with the shopping dispute, we can expect Google to fight this €4.3 billion fine just as fiercely. Its android agreement forms a key part of its business model and it will not relinquish this easily. However, I expect the appeal process will proceed at a glacial pace – this issue was first investigated in 2016 and only now has a fine value been proposed.
The Commission is hoping this will be game-changing for the mobile phone industry. Look at what happened in Russia, for example, when Google lost a similar antitrust case. The company came to an agreement with a rival app, Yandex and the Chrome app now prompts Russian android users to choose either Google, Mail.ru or Yandex as its default search engine – leading to a huge uptake of the latter.
The argument that android is ‘freer’ than iOS is somewhat undermined by Google’s current anti-competitive dominance. Ultimately, this fine is intended to empower consumers with the choice that was previously denied to them. Whether other search engines will have the market power to compete against Google’s search performance is another question, though the EC’s penalty will certainly give them a bigger bite of the cherry.
With ongoing discussions around the SFO's operations, expert journalist & noted legal commentator, Dominic Carman, provides Lawyer Monthly with an outlook on the SFO's own whistleblowing procedure, citing some concerns that in his opinion must be addressed.
The Serious Fraud Office welcomes whistleblowers. That is the message featured prominently on the front page of its website: “If you suspect wrongdoing in your workplace, you should follow the whistleblowing procedures in your own organisation. If there aren’t any or you are not comfortable reporting the matter internally there are a number of prescribed bodies to whom you can report in confidence. The Serious Fraud Office is one of those prescribed bodies and we would like to hear from you if the wrongdoing concerns serious or complex fraud, bribery or corruption in a UK company.”
But a whistleblower email sent to the SFO in July 2012 about its own conduct has provoked a rather different response over the last six years: the agency has persistently failed to respond to the central allegations contained therein. The email - sent to David Green who had recently been appointed as SFO Director - begins: ‘I am writing to you anonymously because I fear my career will be ended if I am identified.’ The author later explains ‘I cannot come forward publicly as my career would be ended.’
What follows is a summary of the email’s content relating to comments, allegedly made by Neil Gerrard, who was - and still is - a partner at the London office of the US law firm Dechert. “Even if partially true they (the comments) make a mockery of the operational independence of the Serious Fraud Office and its ability to effectively investigate,” the email states.
It proceeds to recount how the anonymous author had been in the company of “a fairly large group” comprised mainly of lawyers. This included Gerrard, who, it is alleged, was “worse for wear” when he made a number of assertions about the SFO in general, including key personnel and David Green. The email then catalogues allegations relating to Gerrard’s conversation.
In response, a spokesperson for Dechert commented: "The allegations in the letter are entirely without foundation. They were investigated by the SFO at the time and no action was taken. Dechert LLP categorically reject all of these allegations."
Gerrard claimed to be receiving “insider information” from a man called “Dick” on companies and individuals that were subject to SFO investigations, referring to him as ''the only Dick a lawyer ever needed.” The insider information included allegations, copies of case notes and SFO investigation strategy which Gerrard then used to obtain instructions from the party being investigated. Three specific cases are mentioned - one of which Gerrard allegedly claims to have high-level contact in the relevant HMRC department whom he "did deals with."
Gerrard further alleged that he was warned by the SFO that there was a multi-agency investigation into a number of leading law firms in London. He claimed that this, and other insider information, was provided with “the tacit agreement” of David Green and Dominic Grieve, who was then Attorney General.
As part of "the agreement" with the SFO, Gerrard alleged that he could guarantee that his clients would never be investigated and that he could change a criminal investigation into a civil settlement. He further claimed that via Miriam Gonzales, a fellow partner at Dechert, he had direct access to her husband, Nick Clegg (who was then Deputy Prime Minister), as well as to the heads of many European governments. As a result, Gerrard alleged that he had the ability to influence, and in some cases, change government policy.
Turning to the SFO, Gerrard allegedly claimed that the SFO was “inept and toothless” and could only investigate seven or eight cases a year. He described "in confidence" how he had been asked by Grieve to oversee and guide changes to UK regulatory strategy with the aim of giving the SFO the "kick up the arse" it needed.
Of Green’s then recent appointment, Gerrard allegedly said that he was "very much second choice" and that he (Gerrard) did not accept the post "this time round" because he could not afford "a pay cut". He claimed that Green was "keeping the seat warm for him" and when he took over in 2016, Grieve had “guaranteed him £250,000 a year as a salary” – well above Green’s £150,000 - and an “elevation to the House of Lords as opposed to a knighthood” (which Green did, in fact, receive in 2018).
The email concludes: “Whatever the truth or otherwise a number of us were appalled that, despite being obviously drunk, he (Gerrard) should speak so openly, especially as it appears that he is receiving confidential and commercially sensitive information from contacts inside the Serious Fraud Office.”
The serious concerns raised by the email in relation to the conduct of a senior SFO member of staff (Dick), included the leaking of confidential information with the "tacit agreement" of the then SFO Director and the former Attorney General. It alleges that Dick colluded with Gerrard in a manner that was highly unethical, in clear breach of the Civil Service Code, and potentially giving rise to criminal liability. In short, there is an obvious public interest in such misconduct being uncovered.
So what has been the SFO’s response over the past six years to the various allegations contained in the whistleblower email? Not much, it would appear, despite repeated requests for information and meetings with Green and the Attorney General to discuss the allegations. But events have recently returned to the content of the email in the form of a Freedom of Information (FOI) Request from international law firm Hogan Lovells.
Their FOI request, sent in June, asks a series of questions: what steps the SFO took to investigate the allegations in the 2012 email; whether the SFO has a written record of the findings of any such investigation (or alternatively of any decision not to conduct an investigation); and what policy or procedure did the SFO follow in conducting any such investigation into the allegations? Furthermore, the FOI request asks whether the SFO: (a) conducted any interviews; or (b) carried out any searches for documents (electronic or hard copy), as part of its investigation into the allegations; and whether the SFO has records of these interviews or searches.
A lot has happened since 2012. Green, shortly to become Sir David, departed from the SFO in April and is set to join Slaughter and May. Grieve left the office of Attorney General in July 2014 as part of the Cabinet reshuffle. The new permanent SFO Director, Lisa Osofsky, assumes the role in September while the interim appointee Mark Thompson is separately alleged to have had “extensive interaction” with Gerrard including communications that are alleged to be “improper and unauthorised”. The new Attorney General, Geoffrey Cox QC MP, (successor to Grieve’s replacement Jeremy Wright) was only appointed in July by Theresa May following the Cabinet resignations of David Davis and Boris Johnson.
Neil Gerrard remains where he was: a London-based partner of Dechert and global co-head of the firm’s white collar and securities litigation practice. The FOI request affects him as much as it does the SFO. The concerns raised regarding the unhealthy nature of his relationship and interaction with the SFO – and the potential effect on a variety of SFO investigations – need to be addressed.
It is clear from subsequent events that the whistleblower email was never properly investigated at the time, not least because the SFO is now belatedly commissioning an investigation into it alongside other related matters. The SFO, therefore, should soon be in a position to respond in full to the questions raised – in particular, whether it followed its own whistleblowing procedures.
And if not, why not?
A cross party group of MPs and Peers has called on the government to set up a national Anti-Illicit Trade Group, claiming this could bring in up to £5bn a year in excise duty.
The All-Party Parliamentary Group on Illicit Trade says that illicit trade cultivates organised crime activity and undermines legitimate businesses, harming consumers, jobs and the broader economy. The APPG claims that “a national strategy including an Anti-Illicit Trade Group has the potential to disrupt criminal supply chains while reclaiming billions for the taxpayer”.
The call for a group is made in the publication of ‘Illicit Trade in the UK’ by the Illicit Trade APPG. The report follows a formal inquiry, which involved business, consumer groups, law enforcement agencies and local and national government providing written and oral evidence to the Group.
Recommendations being made by the Illicit Trade APPG are:
Provide a forum for partnership coordination through dialogue, information and intelligence sharing, strengthening cross-organisational relationships and facilitating better use of resources through joining-up initiatives.
The first task of the UK Anti-Illicit Trade Group should be to facilitate the creation of a national Anti-Illicit Trade Strategy. The UK Anti-Illicit Trade Group can work together to define the outcomes that align with their respective organisations responsibilities. These outcomes form the vision of the future that the Group’s strategy seeks to deliver and provides the measures to determine the success of the Group’s function. A key element of the national strategy should be how national policy is prepared and explored where it affects illicit trade so that it is consistent and harmonised. A key benefit of the UK Anti-Illicit Trade Group would be that it could provide a single combined source for contributing to Impact Assessments of the effect of policies on illicit trade.
Empower a strategic lead to set up the Group, providing strategic focus, facilitation and implementation of the codesigned strategy. The lead would be responsible for building consensus, driving coordinated action, and monitoring and reporting against outcomes. A strong learning from the Scottish Anti-Illicit Trade Group is that senior political support is vital – providing a mandate for enforcement agencies to engage and the political will to change. The UK Anti-illicit Trade Group should have political backing at the highest-level with a Minister able to support and champion its work.
Insight gained from the APPG inquiry provides a compelling case that the strategy must comprise focused, coordinated action for prevention, education and prosecution. To support interventions, a knowledge base should be developed and further validated and tested as part of the Group set up. As a first step, further validation work is required to:
The report from the Illicit Trade APPG has been broadly welcomed by HMRC ministers and officials. Robert Jenrick MP, Exchequer Secretary to the Treasury, said: “Illicit trade costs the UK economy billions every year. I look forward to seeing how the APPG’s work can build on our existing efforts to crackdown on this type of trade, which denies vital funding for our public services.”
Matthew Offord MP, Chair of the Illicit Trade APPG said: “Illicit trade exists in every constituency, and as parliamentarians we have a duty to investigate what impact this has on consumers, businesses and our public authorities.
“The report is hugely important with implications for people all across the country, from small business, to the high-street shopper to the CEOs of major companies. Our witnesses and stakeholders all demonstrated significant consensus on what needs to be done and we’re delighted to see our recommendations being welcomed by the government.
Steve Carden, expert adviser to the Illicit Trade APPG, from PA Consulting, a global innovation and transformation consultancy said: “This inquiry sets out a positive, achievable plan of action for tackling illicit trade in the UK. It is vital that we develop a national strategy for illicit trade that has prevention, education and prosecution at its core. This is critical to educating all consumers about the reality and risks of illicit trade, whilst providing the consistent approach required across different sectors and all stages of the supply chain.
“Successful examples of tackling illicit trade exist and this report indicates that a UK-wide strategy can reap significant rewards for the British people.”
Julian Hunt, Vice President, Public Affairs and Communications from Coca Cola European Partners, sponsors of the APPG said: “The findings of this report are of huge importance to businesses – big and small alike. An Anti-Illicit Trade Group will enable businesses to work closely with the public sector to provide guidance to officials and help build capacity on enforcement.
The Implementation Working Group for the Soft Drinks Levy is an existing example of successful collaboration between government and businesses, and we hope an Anti-Illicit Trade Group can take this even further.”
(Source: APPG)
A 12-year-old girl, who was left with brain injuries - after her delivery was negligently managed at Royal Berkshire Hospital, Reading, in 2005 - has been awarded one of the largest ever clinical negligence settlements.
Clinical negligence specialist Paul Kingsley, of national law firm, Moore Blatch, acted on behalf of the young girl, IBC, who will receive £23 million over her expected lifetime.
IBC has cerebral palsy, which affects the left side of her body, leaving her with a limited ability to walk and unable to perform tasks using both hands. She has uncontrolled epilepsy and suffers from prolonged life threatening seizures. In addition to significant learning disabilities, IBC exhibits frequent challenging behaviour, which will be increasingly difficult to manage as she matures.
Whilst IBC can speak and make herself understood, she is impulsive, and has limited awareness of safety. She requires constant supervision and will remain dependent on a team of carers for the majority of her daily needs for the rest of her life.
Lawyers representing the Royal Berkshire Hospital previously admitted negligent management of the delivery with a Judge approving a “discounted liability” settlement due to the risk that she would have suffered some injury in any event.
Paul Kingsley of Moore Blatch, had previously obtained a significant interim payment which had enabled IBC and her family to move to a more appropriate and specially adapted home and introduce an interim care regime pending a definitive assessment of her long term needs. Education specialist, Erin Smart, who is also a lawyer at Moore Blatch, pursued a successful Education Tribunal Appeal to ensure that IBC also receives appropriate support at a specialist school.
Paul Kingsley, who specialises in birth injury and cerebral palsy claims at Moore Blatch, said: “I am delighted to have secured this settlement for IBC – it will provide her with financial security for the rest of her life, appropriately reflecting the very high levels of care that she will need whilst enabling her to achieve her potential and lead as normal a life as possible. The settlement has come as a great relief for her parents who have fought long and hard to ensure that their daughter receives appropriate care and support.”
IBC’s parents said: “We are deeply grateful to Paul for his dogged determination, patience and professionalism in pursuit of our daughter’s claim. His advice was unceasingly timely and well-considered - given the complexity of our daughter’s injuries and the number of experts involved in the claim this was no mean feat. He always sought to balance his professional duties with empathy for our family’s situation, even when circumstances made this trying for us all. The settlement that we achieved for our daughter was beyond our wildest expectations when we first considered bringing the claim and, despite all the tribulations along the way, we are so glad we did so. Our daughter’s financial future is secured for her long anticipated lifetime, and we’ll be eternally grateful to Paul for helping us achieve this for her.”
(Source: Moore Blatch)
Spousal maintenance, either interim maintenance until proceedings are concluded (maintenance pending suit) or maintenance to maintain a spouse post-proceedings (periodical payments) is a controversial and hotly debated topic in family law. Below Lawyer Monthly hears on some of this topic’s intricacies and challenges, as Bryan Scant, family law expert at Coffin Mew, discusses the controversy behind spousal maintenance.
Both can be ordered by the court or agreed between the parties on a voluntary basis and both have come under increasing controversy in recent years. The press has referred to periodical payments as a “meal ticket for life”, frequently citing the judiciary’s move towards financial independence for a financially weaker spouse with term maintenance orders instead of (now historic) joint lives orders.
That said, in big money cases where one spouse has not had to work due to the fortunes or high income of the other, there is a still an argument that to maintain a standard of living not too dissimilar to that enjoyed during the marriage they need spousal maintenance. The definition of need in financial remedy proceedings is a different conversation altogether.
It is true that in most circumstances the courts are encouraging people to achieve financial independence with a clean break and the Matrimonial Causes Act obliges the court to order a clean break where possible. The days of a spouse not working and receiving monthly financial support for the rest of their life are almost certainly gone for the most part. The problem facing the courts at this time is that whilst times and judicial attitudes have changed, the joint lives orders of days gone by remain valid and can be subject to challenge by either party.
For the paying party, there is no associated certainty that a clean break provides and there is always a risk that the receiving party can ask for more money in the future, if they meet the necessary threshold of justifying an increase in payments.
Graham Mills found this out to his misfortunate when his ex-wife, from whom he was divorced in 2002, came back for a second bite of the cherry after she lost the capital awarded to her for housing because of several poor investment decisions. She claimed to need more maintenance to meet her housing need.
Mr Mills was of the view that he should not be called upon to “sub” his ex-wife because of her poor choice of investments, and that it was not right in law that the court should increase the periodical payments to meet her basic housing needs when that had already been dealt with in 2002. The case has escalated, and we await the decision of the Supreme Court.
Whilst the view of the Supreme Court justices remains to be seen, it highlights an important point: the increasing calls for an end to what is potentially an open-ended liability on the part of the paying party. Should the Supreme Court find that Mrs Mills is entitled to more money; will this open the floodgates for less financially savvy spouses to seek an increase of their maintenance?
Times have changed, the days of a husband financially supporting his ex-wife for life have, in the large part, gone. It is hoped that the Supreme Court will recognise this and signal the end of any suggestion that a second bite of the cherry is appropriate, or that claims of this nature will be entertained by the courts.
The Bar Council has responded to the Justice Select Committee’s report on the disclosure of evidence in criminal cases. Chair of the Bar Andrew Walker QC comments below.
We welcome the urgent call for action in today’s report from the Justice Select Committee on the serious and systemic failure in our criminal justice system regarding the disclosure of relevant evidential material by the prosecution to the defence, in cases of all types and at all levels.We welcome too its recognition that while several other factors have also been behind both this chronic failure and the failure to do anything about it for many years, the impact of dramatic cuts in funding for criminal justice cannot be ignored.
The increasing volume of digital material has clearly created new challenges for the CPS and the Police, but it is wholly unrealistic to expect them to meet those challenges without sufficient funding. The Government have to accept that there is a clear link between disclosure failures and the sustained budget cuts that it has imposed on all parts of the criminal justice system. While much has already been said in the media about significant cuts to police budgets, less has been said about the cuts to the CPS. These have been swingeing: the CPS staff budget fell from £738m in 2010-11 to £291m in 2015-16, a cut of over 60%.
The burden of trying to set cases back on course after disclosure failures, and of dealing with the fallout, has largely been borne by prosecution and defence barristers who – despite working under fee schemes which offer them no remuneration for doing so – routinely scour reams of unused material for evidence that is vital to a just outcome for their clients and for the public. Unjust and potentially life-changing rulings have been avoided because of the goodwill, professionalism and commitment shown by the professionals who work in the criminal justice system, without which it would grind to a halt.
(Source: The Bar Council)
The legal profession is gearing up for the first ever Justice Week, a new initiative to put justice and the rule of law at the centre stage of public and political debate.
Taking place between Monday 29 October and Friday 2 November 2018, the week will promote a vibrant mix of research, public events and digital media content, bringing together politicians, the media, industry, the third sector and the public to tackle the key challenges our justice system is facing today.
Building on the achievements of National Pro Bono Week, Justice Week will create new opportunities to communicate and debate the importance of justice. The launch event will explore what the public thinks about our justice system and how the media reports on these issues.
A spokesperson for Justice Week said: “With so many parts of the justice system at breaking point, now is the time to make a strong and clear case for why it is so fundamental to our society, economy and democracy.
“Business groups, members of the public and front-line service providers should all be part of the conversation. This week aims to take the subject of justice to new audiences and underline the contribution and commitment of legal professionals and organisations to improving access to justice and strengthening the rule of law both in England and Wales and internationally.
“We are keen to hear from anyone who wants to run an event or campaign as part of Justice Week, whether it is to promote or support public legal education or pro bono, or to tackle some of the key challenges society faces around access to justice and the rule of law.”
Pro bono
Pro bono will feature within the wider topics discussed during Justice Week. In addition, the specific focus on pro bono provided by National Pro Bono Week will continue this year in the form of Global Pro Bono Week which takes place from 21 to 25 October 2018.
(Source: The Bar Council)
The Israeli government says the bill, passed last week, will merely enshrine into law Israel's existing character. Prime Minister Benjamin Netanyahu called its passage a 'historic moment in the history of Zionism and the history of the state of Israel'. Israel's 1948 declaration of independence defined its nature as a Jewish and democratic state, a delicate balance the country has grappled to maintain for 70 years. Opponents of the new bill say it marginalizes the country's Arab minority of around 20 per cent and also downgrades Arabic language from official to 'special' standing.
Flagship measures introduced by the Government to assist first-time buyers, could actually be pricing them out of the market, say leading accounting, tax and advisory practice Blick Rothenberg.
“Due to a toxic combination of rising house prices, the squeeze on wages, high rents, stricter affordability tests for mortgages and higher deposits, the ‘Bank of Mum and Dad’ has become more important than ever to help first-time buyers get a foot on the property ladder”, said Denise Yau a tax manager at the firm.
Denise added: “In fact, some reports indicate that nearly three in five under 35s now need assistance from their parents. But this lifeline can come at a price.”
To recognise the difficult property market, the Government has introduced various Stamp Duty Land Tax (SDLT) reliefs and initiatives. The most recent of these was introduced on 22 November 2017 and structured as a SDLT relief for first-time buyers purchasing homes costing up to £500,000, with no SDLT due on the first £300,000 of consideration.
She said: “In addition a 3% surcharge for purchases of additional properties was introduced from 1 April 2016, in an attempt to cool the “buy-to-let” market. Whilst the various initiatives and reliefs can therefore be commended to some extent, this can present a significant problem for some property transactions due to how the rules are drafted.”
Denise said, “The issue arises as banks often require parents’ names to be on the mortgage and Title Deed for first-time buyers because, in practice, it can be difficult to recover funds if they are only named as guarantors.”
She added: “Not only does this usually scupper the ability to qualify for the first-time buyer relief (as the parents are not themselves first time buyers), if the parents’ already own a home themselves, the entire purchase would then be subject to the additional 3% SDLT rates.”
Denise said: “The SDLT bill could therefore increase from £nil to £14,000 for a property costing £300,000. Usually, SDLT of £14,000 would only be for a purchase of a property for £480,000. Whilst we are aware that some mortgages are available which do not require the parents name to be on the Title Deed, the number of banks offering this is more limited, with the rate of interest usually higher.”
(Source: Blick Rothenberg)
