Hello and welcome back everybody. So this is then session two on the course surrounding cohabitation and unmarried family disputes, tackling the maze. So as you know that in this session, what I'm doing is going through various elements with you surrounding cohabitation and this is principally of assistance for those of you who are both family and Children, law related uh practitioners. So in the last session, and you remember, I spent a fair bit of time going through with you aspects surrounding carpet agreements, we looked at jointly owned properties, we looked at severance, we looked at the use of cases such as Johns and Kernot Stack and Dowd and Barnes and Phillips Hudson and Hathaway, those line of cases. And uh we looked at really severance and then all sort of situation where the property is in the sole name of one party sort of law surrounding resulting trust, constructive trusts and estoppel. All right. So a fair bit was covered in that today. I'm gonna be spending a bit more time looking at the position with estoppel and also use of schedule one of the Children Act and we'll tie this in with some of the procedure insofar as to LATA claims and schedule one claims are concerned. So I'll be going through some of those elements with you also. So I'm looking at the laws of August 2024. So another more recent decision then which looked at the use of estoppel was this case of Spencer and Spencer and others. And in so far as this case is concerned, this was handed done on ninth of August 2023. It's again another very useful case similar to the H AD and hub for case that I mentioned last time, similar to the Davis case. So this is one where a claim was brought by the claimant against the estate of his late father. Uh The estate was represented by his sisters, the second defendant and also a third defendant. And the father here had owned a farming business around 405 acres and turned his land and he and his son who was, the claimant had farmed all that land together in a partnership. Uh since the claimant was only 19 years of age and uh the father did not leave the farmland he owned to his son on his death and which therefore led the claimant to bring, bring in this action. And um when the application stop was pursued and determined, the judge said that this was one of those many farm cases in which his son then states that his, his father assured him that he would basically inherit the land of his father's death. And therefore he acted to his detriment and reliance on that assurance. And therefore, it would be unconscionable for him to therefore go back on his word in that regard. So again, it was one of those line of cases. And um therefore, the sun was really pleading this on the basis of proprietor stoppel or construct your trust. And uh what the court was was really having to look at the is what kind of reassurances were given. And in fact, the court was told that uh from the evidence from what was being said, the father had said continuously throughout his life that he had hoped that his son would succeed him in farming the land, either with his sister or on their own. And it was made very clear that his son would really take over the running of this land. And this was done at a very young age when he was only 1213, 14, when he was still at school and so forth. He left school with no exam qualifications. He worked on the farm and he said, basically, he threw himself into this business. And um this is where many, many assurances he said were given throughout throughout uh his, his life words were given to the effect that he would ultimately inherit this farm. Uh So he claimed that his dad had said to him on many occasions that one day he would become the farmer, he would take on this land. It would be his uh one day. So he relied on that. And in fact, the court was satisfied that these were not general statements that were made, these were very clear. And uh and if on that basis, uh there were reassurances made. But then, of course, as you know, that's only part of the test is until the second bit is you need to be able to show detrimental reliance. And this is where his lordship did say that the evidence did speak for itself. This man had divulged himself towards his farming business. Uh Throughout this period of time, he worked 19 to 20 hour days. Uh 365 days a year described Spain normal in two days with his family on holiday before returned to the farm. He committed himself to this business. He, he and his wife lived on a cottage which was cold and damp for years and for many years, he really threw himself into the business. I mean, what he was paid was a very low wage, significantly less than what it would have cost somebody else to get there. So when he put all those factors together, there was enough evidence here to show that the detrimental reliance had been established, there was no change in circumstances to justify repudiation of these assurances. And the only way therefore to satisfy the equity was to enable him to benefit by getting a large proportion of the farming business. And if on that basis, the court did find in his favor. So you can see it's a really useful case which really illustrates a more recent illustration of the application insofar as this is concerned. Ok. Now when one is going to be pursuing, say, should you want Children that claim? Then this is where part nine of the family procedure rules then comes into play because that is obviously a family law application. So this is where part nine comes into play, which is financial orders and which covers of course, also financial remedy in the form of schedule one Children act claims. And with that in mind, just bear in mind that earlier this year in April this year eighth of April 2024 we had the family procedure amendment number two rules that came in so that make sure that with the schedule on claims, you are aware of the my requirements in terms of mediation, information and assessment, meeting requirements. And more. So now, since April this year, the court is under a greater expectation to do more scrutiny of parties to make sure that if they are claiming the mime exemption, it is badly claimed. And if not the party, the court can actually requisition further information. So important to bear that in mind. And also you'll be aware that there is this new form that you need to be completing. Now, since the end of April this year called FM five. So in private Children law cases and financial remedy cases, you need to be filing with the court, whether you're for the applicant or the respondent to the form FM five, at least seven days before the first hearing and any other hearing that the court requires you to do this to set out what your client's views are in relation to N CD Rie non court dispute resolution, whether they have done that, whether they, they, they intend to and what their views on that would be. So, again, very important to make sure that that form is being completed for the uh the schedule one claims given it's a form of financial remedy and staying with f schedule one of the Children Act. This other case earlier this year, it's a really useful one. This case of Ynz schedule one of earlier this year in January this year looks at raising the millionaire's defense. Also, basically, it's a case whereby you had man and lady, they uh started living together, they had two Children aged two and four. The mother was a professional equestrian from the age of 18 and uh she was recovering from post traumatic stress disorder. The origins which led him into a traumatic relationship which wasn't connected to the father and the father was a member of the Middle Eastern royal family. Although he had not undertaken any royal duties, wasn't part of the poor family and, uh, about five years previously, they both married in an Islamic ceremony known as the NAR in London. But because it was just a religious ceremony and a non anglican ceremony, it wouldn't be recognized in the English law. And therefore they would, they thought they would not be regarded as having gay, valid marriage. In fact, it, it wasn't even void avoidable marriage. It was a nonage. Um, there are two Children and, uh later they fell out, uh mother's finances where she had negligible financial resources than some jewelry that had been given to her. It was worth a fair bit though about 508,000 pound. And uh as for the father, he's, he basically pleaded the so called millionaire's defense. He said, well, look, you know, name your price basically. So I will pay whatever within reason my, my, you know, the mother is seeking in this regard. And therefore that way I don't want to disclose my affordability, the law in this area. The judge looked at the law, there is this case of thy and born number two, which basically is a case which illustrates the need for uh still some financial disclosure even when somebody raises the millionaire's defense, but you can reduce the need for full disclosure. But the court said that even if as in this case, the millionaire's defense, he has been raised even though it was a claim under schedule one of the Children given that they weren't married and therefore the the mother had resource to schedule one in that regard for the benefit of the Children. Even here, the court said only exceptionally will they dispense with the need for any disclosure at all? In fact, there's only very rare cases such as this case of uh Mohammed uh busted, which is an example where the facts were unique in that case, but generally there has to be some disclosure. So at least then the claimant then has an idea of thinking, well, what I am asking for, it's I can see based on what they've got and based on what I'm asking for, it's reasonable. It's proportionate based on the income that any capacity, resources of the party. So it allows for more structure and enforceability. So what the court did say is they required the father to still fill in these for me, but he didn't need to do the normal obligation of exhibiting all the documentary evidence to that the bank statements and so forth. So literally just do it for me and therefore tell us in essence what, what you know you're worth. So he did, he was fine with that. And in this for me, he said he had assets worth about 111 million net. So the court then took that into account in deciding on the mother's schedule one claim. And as you know, with schedule one, this is where typically this is used to seek first and foremost as a priority, the the settlement uh uh accommodation needs being met. So the court would look at settlement of property to see what needs to be done, to ensure that the Children have got a suitable roof over their head. It could be used to cover maybe lump sum payments, maybe clearing debts, furniture, car, child maintenance. But of course, it's got to be for the benefit of the Children. So you shouldn't be using schedule one of the Children to get, for example, child maintenance support if you should be going to the C MS for that. Well, they can use schedule one, of course, for top up ie if the payer is earning more than 100 and 56,000 pound because the C MS is limited to, of course, only assessing somebody up to that figure. So anything above that schedule one claims can be pursued. And uh, in terms of the factors the court will take into account. These are set out within paragraph four, schedule one. And although the welfare of a child specifically isn't referred to, generally, the child's welfare is obviously going to be a factor which the court will take into account. And also schedule one isn't limited to just big money cases. Many other cases that are reported are big money cases, but they don't have to be. And in practice, you tend to find that the court tends to settle schedule one claims on a basis that they look at property needs first make me low, then lump sum if it needs to be and then maintenance, it tends to be done on that basis. And as I mentioned, uh you can use, should you want to get a top up in terms of child maintenance? But only if the uh payer gross earned income exceeds 100 and 56,000 pounds. And if only the, the, the amount above that, of course, in that regard. And even if the court does have jurisdiction, for example, if the payer lives abroad, a notional C MS assessment will be a useful yardstick for deciding what amount of child maintenance should be ordered. So the court here did make an award in favor of the mother. So for example, as for the housing needs, for the benefit of the Children, an amount of 5 million pound would be provided, uh $5 million rather would be provided in addition to the cost of uh purchasing contents uh for the property. So it's a good case really which illustrates the use of the uh the millionaire's defense and also the factors which the court will take into account. Now, sometimes you'll find there will be overlap between Shajuana claims and Tala claims. And this case in 2004 is an important one on that in this case of W and W Joiner of Trusts of Land and Children Act applications. So he had a couple who were unmarried, they had two Children, relationship broke down and the lady was very confident that the Children would end up living with her. So she put an application in under section 14 of Tala to seek basically a mesh type order. So up there court would then enable the house to be held jointly. Uh She would stay in the house until the youngest child turned 18 overseas, full time education and the man would have to move out. Was he the father sought an order for sale straight away? But in fact, as it happened, the court went the other way in the sense that they made what was then a residence order night would be a child arrangements to live with order in favor of the man. So with that in mind, the lady now wanted an immediate s and in fact, the man is the one who wanted deferment. So the man now lodged an application under section 15 schedule one of the Children Act. So to transfer the mother's interest in the family home to him for the duration of a child's minority. And he asked for his application under schedule one to be married alongside mother's application and Tola for the two to basically run alongside each other. Now this is where the court adjourn the father's application. I dealt with the Talara application as the main application and the court ordered sale and the man appealed, asking for restoration of the Children, that application stated that if he was sold, he would have insufficient funds to rehouse himself and the Children, the court did dismiss his application and said, whereas in this case, they've got Children and we're parties of an interest in property as in this case, then the Children Act on a lot of case would be appropriate. And unless there was good reason, the application should be under both facts, the exercise of the powers and each act should be considered by the same county court at the same time as conjoined application. So the two should effectively be running alongside each other. And uh therefore, you can see how the two are done. What you find in practice though is this, if they say there is a substantial dispute as to fact, and somebody's put on a Tola application and maybe there's a schedule one as well. You tend to find the court will deal with the Tola first to determine whether they should be entitled to any beneficial interest. And if there is, then you can use your schedule one to then determine how you realize that interest by way of using the schedule one claim. Whereas if as in this case, the house is in joint names, then you will find that most likely as in this case, the Children case, the schedule one case will take the priority. But what is important is of course, these are two different jurisdictions. So therefore, the two cases will run alongside each other in that regard, you probably have the same judge. One is obviously dealing with the the county court case like the Tala and then the judge is also dealing with the family law case in relation to the schedule one, but the two can run alongside each other in that regard. So when you are pursuing Tarta claims, it's important to bear in mind that this would then be pursued under the Trust of Land and Appointment of Trustees Act of 1996. Section 14, then allows the court to make various forms of relief such as the orders for sale. As we've been discussing the lump sum provisions as we said, so can make various orders if needs be and they'll then determine the extent of each party's interest and the factors which the court considers in deciding what order to make. So for example, if I was for say, the man and the house is held jointly and he's seeking an order for sale under section 14 of Tala was the mother who is opposing sale. Then the judge will take into account the factors under section 15 of tla. So I'll take into account first and foremost, uh what is the um what was the intention of the re of the trust? So when they bought this house together, what was their intention? Well, initially it was a house for the two of them. Well, that intention has ended now and therefore, it would suggest we sold the house. Secondly, what is the purpose for which the property is now held? So it's no longer a home for the two of them, but arguably could still be a home for the child. What about the welfare of any miner who occupies and may be expected to occupy the land? The Charles welfare is not paramount. But as you can see these a factor which will be considered here and finally, the interests of any secure creditors or beneficiary. So for example, if you got the trustee bankruptcy who's involved and he or she's seeking an order for sale, for example, with a view to them paying the creditors, then generally, you find if they put a Tala application in after 12 months, you'll find the court will actually uh order the sale in those circumstances and only exceptionally will they uh postpone that sale. So normally the other person has a period of some 12 months to find alternative accommodation as for Tala claims costs, as you can imagine, generally will follow the event because it's CPR so part 44 applies. So costs will generally follow the event, but of course, not always, it depends still looking at litigation conduct of the parties. You can also go for what's called summary judgment. The part 24. So once the pleadings have been filed a state, a case, once the defense has been filed and it can to claim and reply. It's possible for either of them to apply for summary judgment to either strike out the claim on the basis. It's got no real substance to it or the defense on the basis is frivolous vexation. It doesn't really have much merit. So either can apply for summary judgment which can then end the proceedings much earlier. Of course, the CPR applies as you can imagine. So you'll be filling in claim forms for this and the overriding objective under part one of the CPR therefore, very much applies in this instance. And this is where the civil procedure amendment rules of 2013 amended the overriding objective so that the court must ensure that when they're dealing with these civil claims, they are ensuring that parties are complying with court rules, practice directions and orders in that regard and therefore making sure that there is full compliance uh with those aspects insofar as that's concerned and tied in with that. There is uh essentially the 79th update for CPR back in April 2015, which effectively in schedule four of that provides for the preaction conduct and protocol. So when you're dealing with these Tala cases, trusts of land, you must be complying with schedule four, which is part of this pre action protocol, which is, this provides that before one commences these proceedings, the court will expect parties to have exchanged sufficient information to understand each other's position, to make decisions to proceed. And basically to try and settle. So the party should have considered AD R and with a view to them, obviously reducing the costs involved in that regard. So very important to make sure you write to the other side, you write to them suggesting a way forward providing the necessary documentation, giving them a reasonable chance to respond. Normally 14 days, sometimes it could be longer and and obviously, then if you need to commence proceedings, doing the letter before action, before you commence proceedings, so important to bear in mind, obviously, the costs of bringing to lot of cases. So if it was a money claim that one's bringing, then you can see on this slide, the costs involved there. So if one's claiming, say an amount between say 10,000 but not more than 200,000, you can see the court fee is five percent of the value of the claim. If it's greater than 200,000, you can see the court fee is £10,000. But if you're claiming something other than money. So for example, if you're claiming sale of the property or maybe uh a a determination as to interest, maybe which may be sought by way of maybe a constructive trust argument, then here you can see the fees are less. So you can see in the high court, uh the fees 626 and the county courts 365. There are, there are also additional fees for maybe asking the court to list it for particular types of hearings as well. But you can see, obviously the court fee has to be weighed up as well alongside other factors when you're dealing with these Tala cases. And also because you're dealing with couples who are not married and not civil partners, you can't use hr one to homes, right? You can't use class of land charges to be able to preserve their interest in the family home because it's not a family home, technically because they're not a married couple or civil partners. But what you can do is you can try and assist your client by trying to register their interest in the property by way of a potential beneficiary interest by registering if possible a UN one, a unilateral notice or a Rx one, a restriction, that's if it's registered land, if it's unregistered land, it's going to be what's called a pending land action. A form K three. But these are not easy to do. Some land registries will not be very reluctant to register the UN one or Rx one unless they're satisfied there is sufficient evidence that the person does have a viable interest in the property. And when you do then pursue claims, you need to be clear about whether it's going to be under what's called part seven or part eight. Part eight is used where there is no substantial dispute as to fact. So if for example, the house is held jointly one of them wants it sold and the other doesn't, then that is not one where there's a substantial dispute as to fact, it's fact that the house is held jointly. So you're not trying to determine a beneficial interest in that, you're just simply asking for an order for sale. So that therefore should be able to be dealt with on the part eight of the CPR as opposed to part seven where part seven is where there is a substantial dispute test effect. So for example, if somebody has got the house in their name and the other is seeking a beneficial interest in there, which is disputed and that technically is in the part seven. And with part seven, you'll be doing a claim form, you're doing in particular as a claim, the other person does an acknowledgement within 14 days and then within 14 days thereafter, they need to be filing a defense. Uh Also, you'll find with part seven, you generally get a list of documents being done. So it's very much in line with CPR, the witness statements won't come in for many months or weeks thereafter. So if it's on fast track, for example, the witness statements won't be coming in for about another 10 weeks after allocation. Whereas if it's part eight, you'll find you do a claim form, you won't do a particular as a claim, your witness statement could come in straight away. The defendant uh won't do a defense they'll do an acknowledgment and then within 14 days thereafter, they can find a witness statement. So things are done sooner. Plus if appropriate, the court can dispense with, for example, the need for a list of documents, for example, so it can be procedurally dealt with sooner and in less time. Therefore, so like I said, a court will allocate depending on uh the matter. It's not based just on what the claim is worth. Uh It's also based on how complex otherwise uh the case is. So there's different tracks, small claims, fast track, multi track, generally, fast track is if the claim is up to 25,000 pounds, a multi track, is it more? But like I say, that's just a financial uh figure that's taken into account. Other factors are also taken into account in deciding which track it's going to be. And multi track tends to be for the more complicated cases or the ones which will take longer to resolve. And part a claims, for example, may be dealt with under fast track. And this is where with that often the court will make directions by way of setting out a timetable and some of the directions, for example, in fast track could be that they need to be disclosing the relevant documents within four weeks of allocation. Any witness statements need to be coming by week 10, any experts reports by week 14 and trial should ideally be no later than week 30. But again, given uh the number of cases and delays, it could take longer than this, you'll, you'll find in practice multi track. Like I said, a court may even list a matter for case management conference. Often they will and that's where appropriate directions will be made in order to progress the case then going forward. Now, one of the other things I just wanted to emphasize when it does come to, to claims is the use of part 36 of the CPR. This is a very useful way of trying to settle and negotiate. So this is where you can make part 36 offers even before you start proceedings. And this is where you're making offers to each other, either before proceedings or doing proceedings as a way of really putting pressure on the other party to see if you can potentially settle. So it's a very good way of trying to settle the case. If possible, you'll be making an offer to the other side to settle. You give them normally 21 days within which to accept or otherwise. And you need to make it clear that your offer is being made subject to part 36 in that regard and whether it relates to some of the claim and if the person um makes a part 36 you can make this either before you even start proceedings or even do proceedings. But the beauty about a part 36 offer is if you make the offer and the other person fails to accept your offer. If you do, then go to trial. And let's say if you're for the app, the claimant, you get what you offered or even a penny more, then you can show that without prejudice. Part 36 offer to a judge who can then decide based on that as to requiring the other party, not just to pay your client's costs, but also possibly order those costs on even an indemnity basis if needs be. So part 36 offers are very useful way of trying to set, trying to put pressure on each other to potentially try and agree the matter if that can be done. Also bear in mind cost budgets. So this is where we tala cases since April 2013, we've had to make sure that we are filing these cost budgets. These are a document called a precedent form. H It's a bit like the form H as we do in financial remedy cases, except it's more detailed and this needs to be filed by the date given and if not lower than seven days before the case management conference. And the purpose of this cost budget really is for the court then to agree and therefore to determine what your uh agreed costs are going to be by the court. So that once the case is finished, these are the costs that you'll get in terms of your recoverable costs. Otherwise. So therefore we have to be filing this by a set date, then the court will be asked to make a determination on this. But the issue with cost budgets has been as this case of Mitchell MP and news group newspapers highlighted is that if you delay in doing your cost budget, as in this case of Mitchell MP and news group newspapers, if you delay, which here, sadly the lawyers did largely down to uh their um, uh the capacity they had a lot of work on and, and it was really just pressure of work. Then the problem is even if you're successful, all you can claim is not your actual costs, but just your core fees. The lawyers costs here were close to about half a million pound and uh, they filed a cost budget late, uh and therefore they need to seek relief from sanctions under rule 3.9 of the CPR. And the court will only give you relief if they look at the breach and they are satisfied, it's either not a significant breach or if it is if you got good reason as to why you failed to comply with this. And here, the fact that they were late because of pressure work. The court appeal were not satisfied with that reason. The court didn't find that that was a good enough reason to have had filed this document late and therefore they were unsuccessful in being able to get that relief from sanctions. So you can see this is a really, really important point to emphasize having said that there have been later cases such as the dent and the util and the dec that case where the court of appeal were more lenient in that case. And they did allow relief to be given in these cases where in one case, for example, the cost budget was filed around 45 minutes later. In another case, a check with the payment was was lost in the post. So you know, there is some discretion, but nonetheless, you can see the need for compliance is very, very significant. Ok. So that then brings us to the end of this session and indeed to the end of the uh the course. So you can see that uh the area of cohabitation is, is a huge one. You can see there's a lot of provisions available for parties who are not married or civil partners, but have been in a cohabiting situation and also in family disputes such as the cases that I've looked at. You can see there's Tala there also she ju one who can then work and run alongside each other in these cases. And uh you can see that this is an area that has continued to develop over the years and no doubt it will continue to develop. Ok. So can I thank you very much indeed for listening. I hope that's been a useful session. For you and, uh, I'll speak to you next time. Thanks very much. Indeed. Bye for now.
Part 1 - Recorded Webinar
Release Date: Monday 2nd September 2024
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