Brexit raises many issues in almost every legal field and family law is certainly no exception. Alex Critchley is a Solicitor in the Family Law Team at Morton Fraser. He regularly advises on issues of international jurisdiction in family cases, and below discusses the potential prospects of family law post-Brexit.

The term reciprocity will seem obscure to many non-lawyers but it is of crucial importance when considering what mechanism the UK seeks to employ to deal with jurisdiction, recognition and enforcement in international family law cases when the UK leaves the EU.

The concept of reciprocity addresses the issue of how other EU member states will react, first, to ongoing court proceedings in the British courts and, secondly, to judgements of British courts, including decrees of divorce.

It has been suggested that the current mechanism, known as the Brussels II bis Regulation, for regulating questions of jurisdiction, recognition and enforcement in some family law matters be transposed into UK law.

The problem is that if the UK does this, but other remaining EU member states no longer recognise us as being a 'Member State' then, among other things, there may be a situation where a UK court will recognise ongoing proceedings in Germany, but the German court will not necessarily recognise ongoing proceedings in the UK.

Under the current rules, when a person is divorced in the UK, that divorce is entitled to automatic recognition in Germany. Equally, when a German court grants a divorce, it is entitled to automatic recognition in the UK. This is because the Brussels II bis Regulation provides that judgements of Member State courts are recognised without further procedure. However, when the UK leaves the EU, Germany will again require that British divorces are subject to a recognition procedure (known as an Anerkennungsverfahren). However, the UK would still recognise German, Italian and French divorces without further procedure.

This is not a great outcome. We do not want a situation which does not provide reciprocity. The problem is that whether a German court recognises British court judgements is really something that the UK Government has little control over, unless a treaty can be negotiated to regulate matters.

The mind boggles at the other numerous issues that could arise.

Indeed, there are numerous difficulties that can arise even between different parts of the UK when matters haven't been carefully thought through. Last year, for instance, it was recognised that there was a lack of a statutory mechanism to register and enforce an English order placing a child in secure accommodation in Scotland.

The difficulty is that some issues, especially matters involving children, require swift action. Where British and EU authorities have expedited procedures for dealing with intra-EU cases, these procedures may fall away and cases will be dealt with more slowly by all countries concerned.

There are old rules dealing with matters that can potentially be re-introduced to deal with matters currently dealt with under Brussels II bis. For example, where there were competing ongoing EU cases in the past, UK courts could resort to a common law doctrine called 'forum non conveniens'. However, this doctrine requires the court to consider which court is most 'convenient' to hear the dispute and this is a costly exercise to undertake. This discretionary doctrine has produced copious appeals, adding significant expense and time to already potentially ruinous divorce cases. For all the problems that the EU's 'first in time' rule has, including the race to raise proceedings, the rule has the advantage of being clear.

Whatever view one has of Brexit, the issue of reciprocity cannot be ignored. Either it should be agreed that the Brussels II bis Regulation continues to apply to the UK, with mutual recognition with other EU Member States, or we need to think – (quickly) - about new legislation.

A copy and paste job will not work here. One possibility is replicating the Brussels II bis Regulation with a similar mechanism to the Lugano Convention, which allows for reciprocal enforcement in non-family commercial and civil cases in non-EU EEA states. This is a framework that could operate outside of the EU if there was the required political will. Time is getting short for getting matters resolved.

It may be that where there are holes in existing rules, we may have to look at developing our own rules for jurisdiction in family actions sooner than we like. If we do, then we need to make sure that these rules are well thought out and work efficiently. Perhaps it may also give us an opportunity to re-think some of the tricky jurisdiction issues that still exist between the constituent parts of the United Kingdom.

The end of 2017 brought the tragic news about the death of Compass CEO Richard Cousins and his entire immediate family in a seaplane crash in Sydney. While on a holiday in Australia on New Year’s Eve, their flight crashed near Sydney Harbour. Australian police described it as a ‘tragic accident’ according to reports.

Below Chris Gambs, Associate Solicitor at law firm Coffin Mew, explores what happens to Mr Cousins' estate following this terrible incident.

Prior to the catastrophic seaplane crash, Mr Cousins was quoted to be the 11th best performing CEO in world. No doubt a man of his acumen had a Will, but even the most carefully prepared will rarely contemplate that their entire immediate family could be killed in one event.

Wills do usually have substitution arrangements for remaining beneficiaries named or included in the Will, in the event other beneficiaries die before the author of the Will.

If all immediate beneficiaries are lost, as in the tragic case of Mr Cousins and his family, what happens? In many Wills there may be a residuary clause leaving, the estate to charity and that may be the case here.

If the estate cannot be distributed under the Will then it is distributed to decreasingly distant classes of relative in accordance with intestacy rules. The search can extend as far as half cousins and the estate will then be shared equally between all members of the first class of relative that has any living members.

If, however, the list is exhausted without finding a suitable beneficiary then the estate passes by ‘Bona Vacantia’ to the Crown.

I’m sure that many people would be surprised that HM Treasury could inherit any of the estate following this family tragedy, or indeed from many other cases each year.

You’ve heard it everywhere, 2018 is the year for implementing new technologies and becoming more efficient. But 2018 is also the year of cyber risk, so how do you strike a balance? Paul Taylor, Partner and UK Head of Cyber Security at KPMG discusses with Lawyer Monthly why a shift in thinking is needed in the way we think about the role of cyber in business risk planning.

In the race to improve efficiency, increase productivity and outstrip rivals, the adoption of new technologies is now a permanent characteristic of the business landscape. The prospect of rapid productivity gains and breakthrough opportunities is driving organisations to automate processes, connect systems and leverage new kinds of infrastructure before the competition can. However, the reliance on competiveness through technological adoption has blurred the boundaries between devices, systems and employees, creating new vulnerabilities that are increasingly exploited by cyber criminals and nation-state backed groups.

In today’s digital landscape, connected medical devices provide physicians with faster and more accurate patient diagnoses, whilst retrofitted smart sensors allow production equipment to automatically signal to other devices once a process is complete and when the next processes need to begin, speeding up manufacturing time and efficiency. At the other end of Industry 4.0, rail providers adopt real-time cab signalling and traffic management systems, which have the potential to add time to train pathways and avoid the need for extra lines of track by increasing capacity on existing lines. In the public sphere, vehicle manufacturers race to deploy driverless cars with the latest automated control systems and sensory equipment, designed to help identify safe navigation paths, obstacles and traffic light systems.

The unrelenting pursuit of better, faster and more efficient ways of deploying and creating technology has driven innovation in our businesses and across our economy, ensuring the UK is a world leader in a multitude of industries. Yet this position at the top of the leader board has to an extent come at the cost of security. The current nature of cyberspace means it is far easier and simpler for malicious actors to carry out vulnerability-based attacks over targeted hacking campaigns. Taking full advantage of the constantly evolving technological landscape, hostile individuals and criminal groups invest their time researching digital infrastructures and devices in order to design attack software that exploits vulnerabilities and weak points.

This kind of exploit-based hacking was seen when criminals took advantage of an overlooked vulnerability in Sony’s computer systems, which gave them full access to the company’s wider network. The alleged group behind the attack crippled the company network before they released sensitive corporate data, including four unreleased films, business plans, contracts and the personal emails of senior staff – having a huge impact on the business. Such attacks are not only restricted to large company networks. Advances in the UK’s rail signalling system to upgrade to a ‘connected network’ have also been shown to be vulnerable to hackers who could use software to tell a train that it’s speeding up when it is slowing down or even give a false location. These fears were almost realised last year when it was revealed the UK rail network had been compromised in four major ‘exploratory’ cyber-attacks. In Finland, hackers hit a building management system with a distributed denial of service (DDoS) attack that left residents with no central heating and in 2015, Chrysler was forced to recall 1.4 million cars after security researchers revealed that the vehicle’s internet-connected entertainment system could be hacked. To add the icing on top, at last year’s cyber security contest DEF CON, contestants found 47 vulnerabilities in 23 IoT devices, including smart door locks, refrigerators, and solar panel arrays.

Whether it’s increased connectivity, automating systems or upgrading networks, organisations – both public and private – are finding themselves dependent on new technological capabilities long before they have even begun to consider how they are leaving them open to cyber-attacks.

Many businesses are taking steps to begin to deploy things like RegTech (Regulatory Technology) as part of preparation for regulations such as GDPR and MiFiD II, possibly taking this more seriously due to the fact that the cost of non-compliance is clear and outlined, however the impact and cost of a cyber hack could be just as bad, so there needs to be a shift in thinking – a cyber hack is not just a cyber hack, it’s a risk to the whole business.

The impact that these kinds of attacks can include lost revenue, losses to intellectual property and customer loyalty and reputational damage. The practice of innovation at the expense of security cannot therefore be maintained, and leaders need to start to think of a lack of security for what it really is – a risk to the whole business.

As outlined in a recent white paper on cyber security business risk by information security professionals body (ISC)² titled, ‘What Every Business Leader Should Know About Cyber Risk’ organisations must ultimately incorporate cyber into the wider risk plan of the business. Within this, key operational dependencies that are being overhauled, upgraded or introduced must be identified and any critical technology that needs protection must be prioritised. This could be your organisation’s server network, the website upon which your customer’s financial trades take place or even individual devices. Bringing the CISO into risk evaluation discussions should also be made compulsory going forward.

Technological transformation is an inherent part of the world in which businesses operate, but in order to mitigate the threat, accepting cyber security as a business risk is paramount. Cyberattacks are only going to increase and businesses are offering hackers an open door by failing to incorporate cyber security within the risk register. If the uptake in new capabilities by businesses is to be maintained securely, then cyber security must come become a deciding factor in the implementation of any technology.

Killian Garvey, planning & environmental law barrister at Kings Chambers, discusses with Lawyer Monthly the recent High Court ruling to re-impose fixed costs for disputes in planning and environmental cases.

You will likely have the seen the headlines which accompanied the decision taken by the High Court in September to re-instate fixed costs for disputes in planning environmental cases – overturning rules introduce by the Ministry of Justice in February.

To understand the full implications of the ruling, it is important to first understand the background against which the decision is set. From there, we can understand the likely impact of the ruling, and what it will means for disputes in planning and environmental cases going forward.

The background

Going back to 1^st April 2013, we can see that the Civil Procedure Rules were amended to include new rules for claims that fell within the Aarhus Convention.

This applied to any claim for judicial review that, in simple terms, engaged environmental matters. The definition of environmental matters within this context was intended to be broad and comprehensive.

Moreover, it provided a strong incentive against challenging whether the matter is environmental. If such a challenge was unsuccessful, the defendant would be ordered to pay indemnity costs for having raised the matter (per CPR 45.44).

Where the matter was a judicial review that engaged environmental issues, CPR 45.41 provided the claimant with the mechanism to secure a protective costs order. This meant that, even if the claimant lost their claim, they only need to pay £5,000 in costs to the other side, or £10,000 where the claimant was an organisation.

In Venn,^[1] it was held that these provisions could be read across to statutory challenges to an Inspector’s decision.^[2] However, they did not apply as a matter of course. The Claimant would need to demonstrate that they required the protective costs order in light of their financial resources.

These provisions in the CPR had, therefore, acted as a mechanism whereby claimants can pursue judicial reviews, whilst significantly limiting their costs exposure.

However, on 28 February 2017, at the behest of the Ministry of Justice, the CPR was amended to soften these provisions through CPR 52.19A.

The changes meant that the Court had the power to vary the costs cap of £5k or £10k, to a much higher figure depending on the claimant’s personal resources and or access to funds (including from supporters).

Accordingly, the previously fixed costs cap became a flexible figure, which could be varied on each occasion.

The challenge

A number of charitable groups invested in environmental decisions (eg. the Royal Society for the Protection of Birds) pursued a judicial challenge of these provisions in R. (RSPB and others) v Secretary of State for Justice [2017] EWHC 2309 (Admin). They contended that the rules were in breach of the Aarhus Convention.

The challenge was pursued on three grounds, namely:

• That the provisions meant the costs of litigation were no longer ‘reasonably predictable’, which would dissuade parties from pursuing challenges and compromise access to justice
• That it was improper that parties had to disclose their financial resources in a public forum
• That the costs involved in bringing the claim had to be relevant to the assessment of whether the costs would be prohibitively expensive.

Dove J found that the amendments to the CPR were not unlawful, however, he provided clarity on their application.

As regards ground 1, Dove J held that where a protective costs order is to be challenged, it should be done in the acknowledgment of service. The level of costs should be determined at the outset of the claim, so that the claimant can know early in the process their potential costs exposure.

As regards ground 2, the Court found that where the claimant’s financial resources were to be considered, the hearings should be in private with such information being kept confidential.

This was to avoid ‘the chilling effect, which the prospect of the public disclosure of the financial information of the claimant and/or his or her financial supporters’ could have.

As regards ground 3, the Court found that the Claimant’s own costs were relevant to assessing whether the costs were prohibitively expensive.

Following the ruling the law firm acting on behalf of the charitable groups claimed they had won ‘major concessions’ from the Government which ‘make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.’

In particular, as result of Dove J’s judgment, the costs cap must be set at the permission stage of the proceedings; whereas previously it was understood that at any stage of the proceedings the Court could vary the costs cap.

Similarly, the Secretary of State for Justice has equally claimed success, on the basis that the amendments to the CPR have been upheld in substance, albeit their application might have changed.

For practical purposes, the judgment confirms that the previously fixed costs cap can now be varied in judicial review claims. However, only time will tell as to whether the Courts will typically be open to varying the costs cap in any appreciable manner.

Moreover, in light of the need for hearings in private, it might be the case that the costs associated with arguing this point outweigh the savings made in varying the costs cap in any event.

At this stage there is potential for the High Court ruling to play out in a number of ways. Planning and environmental lawyers will watch with interest to see whether the amendments to the CPR have much difference in practice.

[1] Venn v SSCLG [2013] EWHC 3546 (Admin)

[2] Pursuant to s.288 of the Town and Country Planning Act 1990

According to a recent survey of midcap UK companies 65% of professional service firms are moving forward with their Brexit plans now Article 50 has been announced - leaving other industries trailing in their wake with an average of only 53% of firms across other industry sectors now engaged with planning.

The survey, sponsored by The Brexit Tracker, noted professional services were less likely to sit on the fence when it came to assessing the impact of Article 50 on their business with 42% of firms believing Article 50 will be good for business and only 25% of respondents feeling their might be no or little change while in other sectors positivity waned to 35% and ambiguity rose to 40%.

Ben Martin, MD for The Brexit Tracker said: “It’s great to see that so many in professional services have grasped the nettle and are moving forward with Brexit planning and clearly have a good grasp of how it will impact their firm.

“More concerning though is how industries such as retail, construction and engineering who one would think are heavily Brexit-dependent for resource and supply chain are yet to fully engage with the planning process, as it may be these firms that are actually the most exposed to Brexit outcomes.”

The Brexit Tracker analyses 390 economic indicators pertinent to the sector and a firm’s particular circumstance. Stakeholders can view their Brexit dashboard and understand likely implications for their business. They can also compare their views with those of their peers. The tool enables expensive resource to be smartly invested in strategic planning, not squandered in trying to make sense of a myriad of factors that may or may not be relevant to the business.

(Source: The Brexit Tracker)

As Head of the Planning team at Burness Paull, a leading Scottish commercial law firm, our next expert has vast experience in the details of planning law and the progress therein. Here Elaine Farquharson-Black gives some insight into the development of planning law in Scotland over the last few years, with a complex history of statutes dating back as far as the 1800s.

Can you tell me a little about your role in planning?

As the Burness Paull planning team advises on all aspects of planning law, policy and procedure, my role is extremely varied, which keeps things interesting! Our team is widely recognised for its expertise in major infrastructure and energy developments (particularly in the oil and gas and renewables sectors), housebuilding, leisure, compulsory purchase and negotiation of planning obligations. Unusually, we have a senior chartered town planner within our team and regularly submit planning applications for clients.

How do you navigate the inevitable challenges that arise within your work to steer your case towards a successful outcome for your client?

We act for both the private and public sector and for individuals as well as multi nationals, so it is important to understand what the client wants to achieve and recognise the different drivers behind a client’s decision making process. We like to be involved with the project team on a development as early in the application process as possible, so that we can provide tactical guidance from the outset, giving the client the best possible chance at appeal should that become necessary.

Which types of planning work do you find most complex and why?

Compulsory purchase and compensation is one of the most complicated areas of planning law as the legislation is set out in various statutes and amending statutes, dating back to 1845. Clients affected by compulsory purchase find the system difficult to understand, and often emotionally draining as they may be losing their home or business. Hopefully that may all be about to change! I sit on the Committee of the Scottish Compulsory Purchase Association, which has been assisting the Scottish Law Commission in reviewing the current legislation with a view to reform. Their report is currently being considered by the Scottish Government.

What are some of the biggest talking points currently in planning law in Scotland?

The speed of the planning process (or lack of it!) is always a concern. The Scottish Government has just published the statistics for April-June 2016, which reveal that the average decision time for a major application is 39.3 weeks. This is 13 weeks longer than the previous quarter and the longest since Q4 2014/15. If a legal agreement is required, the average time rises to 59.3 weeks, some 43 weeks longer than the statutory period for determination. Many planning authorities are looking to introduce standard form templates for legal agreements, but often it is lack of resource which is the issue, with agreements being dealt with on a “first come first served” basis.

Do you see the need for any changes to planning law in Scotland?

The planning process is regularly blamed for holding up development. In September 2015, the Scottish Ministers appointed an independent panel to undertake a “game changing” review of the Scottish planning system with the stated intentions of streamlining the process and ensuring that planning plays a more positive and effective role. Focusing on six key themes of development planning, housing delivery, infrastructure, development management, community engagement and leadership, skills and resources, the panel made 48 recommendations of change. The Scottish Government has established a number of working groups to explore the key themes further and hopes to publish a White Paper outlining the proposed reforms before the end of the year.

How realistic is it that the desired outcomes will be achieved?

Around 10 years ago changes were made to the Scottish planning system under the badge of modernisation, with an emphasis on culture change. So ‘development control’ became ‘development management’, but it is clear that those changes were not widespread enough. This review is looking behind the scenes at issues which are often cited as holding up development, such as delivery of infrastructure and leadership, resourcing and skills. If changes are made in these areas, then this review does have the potential to be “game-changing,” but it will require much more collaboration among those involved in the development industry.