4 King’s Bench Walk
2 Experts
52 Contributions by 4 King’s Bench Walk Experts
PRACTICE NOTES
This Practice Note explains the framework governing costs under the Civil Procedure Rules 1998 (CPR), SI 1998/3132, and when those provisions apply to proceedings handled by family lawyers. It also addresses the factors the court considers when determining costs, the kinds of costs orders that can be made, fixed costs and costs budgeting.
There are several circumstances in which the CPR costs provisions will apply to proceedings undertaken by family lawyers, rather than the costs provisions of the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955. These include claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) and, by incorporation, some aspects of financial remedy proceedings. See also Practice Note: Costs in family proceedings, in particular the section on Application of the CPR. It is therefore
Family
PRACTICE NOTES
This Practice Note
It assesses the range of privileges that can arise in financial remedy proceedings, notably legal professional privilege and litigation privilege. It also outlines when privilege might be waived, issues around disclosure to third parties, the treatment of without prejudice exchanges, and related procedural matters.
In financial proceedings there is an ongoing and continuing obligation to give full, frank and transparent disclosure. That disclosure must cover all material facts, documents and papers and other information bearing directly on the issues in the case, together with any significant developments following the initial provision of disclosure. Solicitors are under a duty to explain this obligation to their clients in clear terms, and to warn of the potential consequences if it is breached, which can include criminal penalties under the Fraud Act 2006. Where a party seeks to withhold disclosure by asserting privilege, the burden lies on that
Family
Q&As
Any qualifying tenant of a long leasehold flat may serve a notice requiring the landlord to grant a fresh lease adding 90 years to the existing term, with a peppercorn ground rent. The notice must be given to the appropriate competent landlord, ie the landlord with authority to confer the extended term. The notice is served pursuant to section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993) and must clearly set out the premium the tenant proposes to pay in order to obtain the lease extension by way of the new grant of the lease...
Property
Q&As
The Academies Act 2010 (AcA 2010)
The Academies Act 2010 (AcA 2010) and regulations made under it authorise and set out provisions for the transfer of land from the local authority to the Academy Trust. Although Schedule 1 to the AcA 2010 permits an absolute transfer, guidance issued by the Department for Education in its Land Transfer Advice (April 2013) indicates that, in the overwhelming majority of instances, the transfer should ordinarily proceed by means of a 125-year lease to the Academy Trust, thereby safeguarding public land...
Local Government
Q&As
The Land Registration Act 2002 (LRA 2002) introduced a new framework for the law of adverse possession in relation to registered land, as provided by LRA 2002, Sch 6. The revised regime offers greater protection for landowners whenever a claim for adverse possession of land is brought. Simply having adverse possession for a period exceeding twelve years no longer means the land will have been acquired by the adverse possessor. Rather, following a continuous period of ten years’ adverse possession, the squatter may apply to be registered as proprietor of that land under the scheme, as set out therein...
Property
Q&As
Adverse possession
When a person has exercised factual control over land owned by someone else for a defined period, intends to possess it, and does so without the landowner’s consent, he may have grounds to seek to be registered formally as the owner of that land on the register as such owner. This situation is described as adverse possession (also labelled ‘squatter’s rights’) and, from 13 October 2003, has been regulated by the Land Registration Act 2002 (LRA 2002). Before the LRA 2002 came into force, the doctrine operated under the common law, with the leading modern authority being the decision in J A Pye (Oxford) Ltd v Graham...
Property Disputes
Q&As
The Agricultural Tenancies Act 1995 (ATA 1995)
The Agricultural Tenancies Act 1995 (ATA 1995) brought in Farm Business Tenancies, covering lettings of agricultural land or buildings used for a farm business. A letting made on or after 1 September 1995 qualifies where part of the demised land is farmed for the duration of the letting and either the parties have exchanged notices stating their intention that it will remain a Farm Business Tenancy throughout, or, if no notices were exchanged, the business undertaken is chiefly agricultural. Arrangements agreed before 1 September 1995 are instead governed by the Agricultural Holdings Act 1986 (AHA 1986)...
Property
Q&As
The Housing Act 2004 (HA 2004)
The HA 2004 brought in obligations concerning the safeguarding of tenancy deposits, which have been amended on a number of occasions since their introduction. The rules are complex and technical in nature, yet breaches can furnish a defence to possession proceedings under section 21 of the Housing Act 1988 (HA 1988), and may require the landlord to return the deposit and pay a financial penalty of between one and three times the deposit amount for non-compliance...
Property Disputes
Q&As
Sold as seen
‘Sold as seen’ lacks a precise statutory definition, yet commonly signifies that the property is transferred exactly as it stands at the moment of sale—i.e. no warranties or assurances are provided about its state, condition, or faults or defects. When used in relation to chattels, it typically conveys that no assurances or guarantees are offered concerning those particular chattels or their condition...
Property
Q&As
Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 (LG(MP)A 1982)
This provision addresses how local authorities can enforce certain land-related covenants. It applies where a principal council and another person are parties to an instrument under seal that is executed for specific purposes relating to land in which that person has an interest.
The section is engaged where the instrument is:
executed to secure the carrying out of works on land within the council’s area in which the other party holds an interest; or
executed to regulate the use of, or is otherwise connected with, land either within or outside the council’s area in which that party has an interest;
and only where the instrument is neither executed to facilitate, nor otherwise connected with, the development of the relevant land. LG(MP)A 1982, s 33(2) sets out powerful enforcement
Local Government
Q&As
In numerous matters, one or both sides in a legal dispute appear without lawyers, representing themselves in the proceedings. This occurs for a range of reasons; frequently, the cause is an inability to obtain legal representation because of limited personal finances. Every section of the legal profession, under its respective code of conduct and in line with its duties to the court, is obliged to treat litigants in person with fairness and respect. In addition, the Judicial College Guidance offers further direction to the judiciary on the role of the judge when a case features a litigant in person within proceedings of this kind...
Dispute Resolution
Q&As
A caution against first registration
A caution against first registration safeguards an interest in the unregistered land in question. If an application is lodged to register that land for the first time, HM Land Registry will serve the cautioner with formal notice of the application. Any individual asserting ownership of an estate in land, a rentcharge, a franchise, or a profit a prendre, or holding any interest affecting such a legal estate, may enter a caution. A caution against first restriction only grants the entitlement to be informed of an application for first registration and to object to any such application...
Property
Q&As
Legal professional privilege
Legal professional privilege is a doctrine shielding specified categories of documents from scrutiny by the opposing party in proceedings.
Legal advice privilege covers materials that convey advice, regardless of whether litigation is anticipated.
Litigation privilege concerns documents created when litigation is on foot, foreseen, or awaiting commencement.
Both are treated as sitting beneath the umbrella of legal advice privilege.
A hearing attendance note will usually attract litigation privilege and, as a result, need not be disclosed to the other side.
A request for a copy of the hearing attendance note may, in fact, be made with a respondent’s prospective appeal in mind...
Family
Q&As
Parental responsibility
Parental responsibility, as defined in section 3(1) of the Children Act 1989 (ChA 1989) itself, means all the rights, duties, powers, responsibilities and authority which, by law, a parent has regarding the child and his property. Anyone with parental responsibility is, as a matter of right, entitled to copies of both medical records and school reports, and the surgery or school should provide these...
Family
Q&As
Legal professional privilege
Legal professional privilege denotes a doctrine shielding particular categories of documents from scrutiny or inspection by the opposing party to the case. Legal advice privilege covers materials containing advice irrespective of whether proceedings are envisaged at any stage. Litigation privilege concerns documents created when litigation is extant or on foot, anticipated, or pending as such. Both are treated as sitting beneath the umbrella of legal advice privilege. A hearing attendance note will, as a rule, come within litigation privilege and so need not be disclosed to the other side. The request for a copy of that hearing note may, therefore, be made with a respondent’s potential appeal in mind...
Family
Q&As
Legal ownership of a property in England and Wales as joint tenants
Holding legal title to a property in England and Wales as joint tenants means each proprietor owns the undivided whole, and if one dies, the survivor automatically becomes the sole owner (and where there are more than two legal owners, the successively smaller number of survivors does so, until only one remains). This is called the doctrine of survivorship. No transfer takes place and the co-owner’s interest does not form part of their estate; rather, that interest is extinguished. Legal joint tenants who co-own hold the property’s beneficial interest on trust for the beneficial owners. The starting position is that the legal joint tenants are also the beneficial owners in the ordinary course of ownership...
Family
Q&As
If a monetary order in family proceedings remains unpaid, the judgment creditor may, in those circumstances, seek a judgment summons by applying to the court for enforcement. The process is regulated by the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 33, and if the court is persuaded that the debtor has defaulted on a debt and has, or has had since the order, the means to discharge the unpaid amount yet has refused or failed to do so, it may order the debtor’s committal to prison. This sanction applies where default relates to the ordered sum and endures despite the debtor’s means...
Family
Q&As
Stop press :
The Levelling up and Regeneration Act 2023 obtained Royal Assent on 26 October 2023. This content is presently under review to ensure consistency with the Act. The Community Infrastructure Levy (CIL) originates in section 205 of the Planning Act 2008 (PA 2008) and took effect in 2010. It permits local authorities to levy a charge on new developments within their area where a new dwelling is created or additional floor space of 100sqm or more is provided. The detailed provisions are contained in the Community Infrastructure Levy Regulations 2010 (CILR 2010), SI 2010/948, made pursuant to PA 2008...
Property
Q&As
Various statutes govern the exercise of trustee powers.
A range of statutes regulates how trustee powers are exercised. For the purposes of this response, it is taken that the trust contains no special or unusual terms or purposes. In those circumstances, the Trustee Act 1925 (TA 1925) and the Trustee Act 2000 (TrA 2000) are likely to be the principal statutory frameworks. As a general rule, there will be no more than four trustees (TA 1925, s 34), and trustees are under a duty to reach decisions that accord with the trust’s purposes and powers. They must act in good faith and eschew conflicts of interest. Decisions should be taken on an informed footing, and the usual position for private trusts (as opposed to, for instance, charitable trusts) is that trustees are required to act unanimously rather than by majority...
Private Client
Q&As
Contributing tithes for the maintenance of a parish is a very long-standing practice, traceable well back to the Saxon era. In 1836, the Tithe Act 1836 indeed replaced the obligation to pay tithes with a rentcharge over land, recalculated annually by reference to the price of corn. In substance, it functioned as a locally levied, index-linked charge. Later enactments continued to control tithe payments until, in 1936, the Tithe Act 1936 (TA 1936) abolished rentcharges arising from tithes. Compensation was then made payable to reflect that change. Accordingly, the concise conclusion is that a tithe rentcharge is not legally enforceable...
Property
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