Legal Updates

In a previous article on reforms to civil litigation, we looked at the expanding use of fixed costs. This month, we will consider the Civil Justice Council (CJC) review of pre-action protocols.

If you have studied one of our courses covering this area, you may recall that a protocol sets out what must be done in a claim before any legal proceedings commence. There are currently 17 specific protocols in force that apply to a wide range of claims, including:

• Personal injury
• Professional negligence
• Construction disputes
• Housing disrepair
• Defamation
• Package travel and debt claims

Even when there is no specific protocol for a particular type of claim, you are still expected to follow the Practice Direction on Pre-Action Conduct.

This month we will consider some changes to Part 45 of the Civil Procedural Rules (CPR) that will affect how legal costs are recovered in some civil cases. These changes were first suggested in the 2013 Jackson report, which considered whether more proportionate costs could be achieved with changes to procedures. Following consultations in 2019 it is now expected that in October 2022 there will be a significant development in expanding the use of fixed costs making way for the creation of “intermediate” cases. 

The introduction of “no-fault” divorce at the beginning of 2022 brought one of the biggest changes to matrimonial law for 50 years. There are more changes afoot; this month we will consider one reform that has already been enacted and one that like “no-fault” divorce is long overdue.

Legal age of marriage

The long-anticipated era of “no-fault” divorce came into force on 6 April 2022, nearly two years after the passing of the Divorce, Dissolution and Separation Act.

Under the new system, couples will no longer need to make allegations about the conduct of a spouse. Instead, either one or both spouses will be able to make a statement that the marriage has irretrievably broken down. This statement will be enough to prove that the marriage has come to an end and will allow the Court to make a Divorce Order.

Some civil disputes could be characterised as emotionally charged, but few are as contentious and hard fought as matters involving the home. This month we have two examples of highly contested cases and a call from the court for compulsory ADR.

First, we will consider a boundary dispute over 17 inches of land where the legal costs ran to over £200,000. These figures speak for themselves, but if you had any doubt, the circuit judge who heard the case confirmed that the cost was “beyond my comprehension.” He was also critical of the fact that both parties wanted the claim to be heard in the multi-track (reserved for claims worth more than £25,000) when it was a small claim (i.e. valued at less than £10,000, where costs would have been limited).

Whilst we all know we should wear seat belts when in a car, how often have you or someone you know driven off while still fiddling to secure the belt? Alternatively, have you ever had to ask your passengers “Have you got your seat belt on?” after the journey has started?

As a driver you might be acutely aware of your responsibilities when it comes to children travelling with you, but what about older passengers? Where does legal responsibility rest – on the driver to insist that belts are put on, or on the passengers to look out for themselves?

There are many reasons why someone should write a Will, but one of the less obvious is to ensure that digital (as well as physical) assets are dealt with correctly.

In one of our recent journal articles, it was reported that bugs in the digital divorce system had caused a delay in the introduction of no-fault divorces. Despite these setbacks, the digital divorce service is still set to replace the traditional paper D8 form from 13 September 2021. After this date, the Court Service will expect divorce applications to be made using the digital divorce process. There is a short transition period finishing on 4 October, but after this date, the paper D8 form will no longer be accepted. There are a few limited exceptions to the use of the online process, and paper applications will still be used for civil partnerships, judicial separation and applications for petitions of nullity.

The introduction of “no-fault” divorce this October has suffered a setback as it will now not be introduced until 6 April 2022 at the earliest. The reason for the delay is that the online divorce system has not been fully developed and tested. This is particularly disappointing, as the changes have not only been anticipated for several years but became a certainty in 2020 with the passing of the Divorce, Dissolution and Separation Act. This act brought in a much-welcomed change to the 50-year-old fault-based system which a person must for the time being still rely on to get divorced.

The Queen’s Speech this year was delivered on 11 May. It is normally an annual event, but this has not been the case in recent years. The previous Queen’s Speech was in November 2019, when we reported on the government’s proposal to get 26 bills passed into law. This year, there are 31 bills that ministers intend to pass. Some of these bills are carried over from the last session of Parliament, but against the backdrop of Brexit and the pandemic, this is not all that surprising.

What were the government’s priorities in 2019?