The damaging consequences of receiving poor legal advice

Coming to terms with the fact that one day you may not be able to support your loved ones is tough, so it pays to take a recommended professional's opinion. Despite being only four weeks into my training contract I have already witnessed the damaging consequences of receiving poor legal advice, often from unregulated parties.  New clients have contacted the Private Clientpractice group requesting further assistance on trusts they have already created based on the advice of others.  One particular Will and Trust writer has been the source of many people's misery and what makes this particular circumstance so deplorable is their professional looking website and specialist TV advertising, enticing the public to use their services.     

One of the most shocking examples of this is a recent case which I have been assisting in, that relates to a couple who set up three trusts, the first involving their family home and the others a rental property they jointly own.

Like many others, this couple were hoping to prevent their children being faced with high inheritance tax charges upon their death. Unfortunately the trust writer failed to provide them with any information on the tax implications that would arise in creating the trusts.

With the help of this  trust advisor, the couple transferred the family home into an ‘interest in possession’ trust, with the couple holding the life interest in the property, meaning despite not being the legal owners they were free to live in the property for the rest of their lives. The rental property was transferred into two discretionary trusts, which mirrored each other, meaning the value of the property  was effectively removed from their estates.

However, the couple had not been informed that all lifetime transfers into relevant property trusts are immediately subjected to inheritance tax, meaning that the family home, which was valued at £380,000 and the rental property, valued at £300,000, were subject to inheritance tax payable on both transfers. Thankfully for the couple their combined nil rate bands were available and equated to £650,000, therefore no inheritance tax was payable up to this amount. Nonetheless because the combined value of the properties equated to £680,000,   £30,000 over the nil rate band threshold, the £30,000 was immediately liable to inheritance tax at 20%.

As one can imagine, this couple who were trying to avoid inheritance tax charges on their deaths were not too thrilled to discover that inheritance tax was still due. To make matters worse, because the couple continue to live in the family property it will still be included as part of their estate for inheritance tax purposes when they die and their children will be taxed anyway. However, the transfer of the rental property into trust had effectively removed it from their estates for inheritance tax purpose on death.

In addition to the advice on inheritance tax, advice on capital gains tax and income tax should have also been provided. The transfer of the properties into trust triggered a disposal for capital gains tax purposes. Luckily for the couple there were two relief's available to them to eliminate the tax payable.

Firstly, Principal Private Residence Relief could be claimed for the family home, meaning that no capital gains tax would be payable on this. Secondly, the couple could claim holdover relief for the rental property meaning they would not be liable for the capital gains tax themselves. Instead the trustees  in acquiring the property for the original acquisition value that the couple  first paid will be liable for the capital gains tax on the property’s rise in value when they dispose of it.

The downside of all this to the couple  is that from the date the trusts were created, they   could no longer receive the income  from the rental property, as this would have to be paid into the trust and the trustees will have to pay the income tax on this.

Many will be surprised to learn about the numerous tax liabilities trusts can create and those who wish to create them must ensure they receive sound advice beforehand. For this poor couple the tax advice came too late but this certainly highlights the importance of instructing a quality solicitor who can advise you on the multiple implications of any transaction you wish to make.  

Posted by Lucy Newman, trainee in the private client practice group.

Lucy graduated from the University of Nottingham in 2011 with a degree in Politics and American Studies (International Study). She went on to complete the Graduate Diploma in Law and Legal Practice Course at the University of Law (Bloomsbury).

After working as a paralegal in the Real Estate team for a large city law firm, Lucy joined B P Collins LLP in September 2014. 

Complex immigration rules made simpler with expert legal advice

The subject of immigration is rarely out of the news. Having gained first-hand experience in business immigration matters while with the top ranked B P Collins LLP employment group, I can see why.

The rules on immigration are in a constant state of flux. This year alone, we have seen the introduction of the Immigration Act 2014, changes to the Immigration Rules and changes to several of the policy guidelines, to name but a few. How does anyone keep up?

The changes reflect the Government's tougher stance on immigration as well as a shift of responsibility onto those who directly benefit from migration, for instance employers and education providers.

In most circumstances, a business that wishes to employ workers from outside of the European Economic Area ('EEA') must apply for a sponsor licence.

I have assisted with one of our business immigration matters from start to finish and soon realised that obtaining a sponsor licence is not as straight forward as it might seem at first glance.

Our client is the UK branch of a USA parent company that wished to bring an experienced employee of the USA parent company into the UK to train its employees.

Before considering an application for a sponsor licence, we reviewed our client's contracts and handbooks, advised on the suitability of different visas for its intended migrant worker and assessed whether the proposed migrant was eligible under the Points Based System ('PBS').

Each type of migrant visa requires the migrant to meet specific qualifications and remuneration in accordance with the PBS. After all, there is little point in applying for a sponsor licence if the intended migrant does not meet the requisite requirements for the Certificate of Sponsorship (CoS) or the visa application.

After obtaining the sponsor licence, we advised our client on how to assign a CoS to the USA migrant worker through the Sponsorship Management System.

As well as advising our client, we also liaised directly with the USA migrant to ensure all of her paperwork was in order in preparation for her visa application.

Any inaccuracies could have resulted in our client's sponsor licence application being rejected or the intended migrant being unsuccessful. Thankfully, it all went off without a hitch!

We also advised our client on its continuing responsibilities as a sponsor licence holder. The home office has powers to downgrade, suspend and revoke sponsor licences where they believe the employer to be in breach of the licence conditions.

As recently as 4 September 2014, UK Visa & Immigration (UKVI) has introduced further guidance on the responsibilities of those who sponsor migrant workers, with an emphasis on the repercussions of failing to meet them.

The guidelines reflect changes that were arguably already in motion. Statistics released on the www.publications.parliament.uk show a 178.4% increase in Tier 2 and Tier 5 sponsor licence suspensions from the third quarter of 2013 to the fourth quarter.

Sponsor licence holders should take heed of the recent changes and last year's statistics. It is essential that all licence holders are aware of their increased responsibility. They must have the appropriate procedural compliance checks in place to ensure they are successful in their application for a sponsor licence and to avoid their licence subsequently being downgraded, suspended or revoked.

Posted by Rebecca Mitchell, trainee in the employment practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.

How much is that doggy in the court room?

We have all heard the expression 'a pet is for life, not just for Christmas', but what happens when its owners decide to part ways?

A recent article by Deborah Rook, entitled "Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law’’, examines the way pets are treated during divorce proceedings in different jurisdictions. Where arrangements for an animal cannot be agreed between parties, the family courts in England and Wales are forced to apply pure property law principles and, in doing so, the animal’s feelings, emotions and well-being are disregarded. It is effectively treated as just another item on the list of the parties’ property and is given to the person who can best prove they are its legal owner.

Rook calls for a new approach within English law, stating that it must “fit within the existing property paradigm but nevertheless recognise the special nature of this living and sentient property”. One such way to do this, Rook suggests, would be to create a test not unlike the well-established 'best interests of the child test' that is applied to the equivalent argument in respect of children.

However, whilst using the ‘best interests of the child’ test as a “useful eyepiece through which to view pet custody”, Rook accepts that it would not be appropriate, or indeed proportionate, to go so far as to replicate the test in the case of pets.

As a lover of animals, I fully sympathise with those who face losing their pets at an already deeply distressing stage of their lives. I certainly cannot imagine having my own pets taken from me at such a time. Despite this, and donning my recently-acquired trainee solicitor hat, I find myself agreeing with the arguments that altering the test and encouraging litigation would be a waste of costs and time in a court system that is already fit-to-burst.

To date there is little in the way of case law on the subject from the English courts, and, perhaps unsurprisingly, it is the US that is most frequently cited as creating the biggest waves in the field. Judges there are showing a growing willingness to give increasing emphasis to what is in the best interests of the pet in question, including considering the separating couple’s respective lifestyles, suitable surroundings for the animal and whether it has attachments to particular individuals.

In Raymond v Lachman, for example, the New York appellate court allowed a cat to “remain where he has lived, prospered, loved and been loved for the past four years”. There have also been awards of shared custody, visitation and maintenance payments to owners, and there is even a market for specialist pet custody mediators.

Whilst arguing over the family pet may seem a little trivial and disproportionate in terms of costs, it is often seen by parties as a yardstick in financial proceedings, with disagreements over the family pet threatening to derail negotiations. Many people have very strong emotional ties to their pets and can seek to cling on to what they represent of their old life at a time of otherwise great instability and chaos. Despite this, it is highly unlikely the law will change any time soon. Application of a test comparable to the 'best interests of the child' test encourages costly litigation due to the unpredictability of the outcome.

The animal charity Blue Cross have recently devised a 'pet-nup' which aims to provide for what happens to a pet when a couple separates. Whether or not these agreements will be enforced by the courts remains to be seen. In the absence of a pet-nup, and perhaps in any event, with an already crowded court system I would suggest quarrelling pet-owners are best advised seeking alternative methods of dispute resolution, such as mediation or arbitration.

Posted by Emily Halley, trainee in the Family practice group.

Emily graduated from the University of Bristol in 2010 with a degree in Mathematics and Biology. She went on to study the GDL and the LPC at the College of Law in London (Bloomsbury), gaining a Distinction in both years.

My first week as a trainee at B P Collins LLP

Now that week one is under my belt, I’ve found some time to look back and reflect on the things I’ve learnt so far as a new trainee at B P Collins.

It is always daunting starting a new job, especially when it's one that you’ve worked so hard to get, and by 9am on Monday morning the nerves had really kicked in. Thankfully, once I’d walked through the doors at Collins House, I was immediately put at ease by the number of faces I remembered from the assessment day a year before. Even better, many remembered me.

I had only been in the office for less than an hour when my supervisor said; “I’ve got a client meeting at 1pm, come along.” That was that; I was dictating attendance notes by the afternoon, drafting particulars of claim for a client the day after, and by Thursday I’d drafted my first witness statement. The B P Collins website says that the firm ‘are keen to test ability, aptitude and commitment from day one’ – and that couldn’t be more accurate.

It was refreshing to see that the ‘responsibility in a challenging yet friendly’ environment I had been promised all throughout the recruitment process is there for me to take advantage of. I had spent a long time looking at law firms through work experience placements and vacation schemes, so when I applied to B P Collins, I knew what I wanted from a law firm and it was these promises that really appealed to me. But with so many law firms promising so many things to prospective budding young lawyers, it’s always interesting to see whether they can live up to their word.

I once read a trainee brochure from a notorious magic circle firm professing to offer a healthy work/life balance and that amused me. Forgive the clichés, but I knew I wanted to be somewhere that I could learn quickly and would be trusted to work directly on matters alongside supportive colleagues, and so far that’s what I’ve experienced. For me, spending two years nursing paper cuts in a photocopying room is not a training contract well spent, and thankfully (so far as I can see), the firm share this philosophy.

Of course there will inevitably be a long bundling session thrown in now and then, and of course starting any new job carries the same frustrations; countless training sessions, spending hours getting to grips with the systems, processes and procedures, and most importantly, learning everyone’s name (it can be quite awkward when you’re looking at a partner’s picture on the intranet to find his name, for him to come up behind you and see his face on the screen). Hopefully it won’t take me too long to get there though.

All in all, I’ve had an exciting, interesting, informative and thoroughly fun first week, which was appropriately topped off with a drink or two in the local pub with colleagues to celebrate.

I am looking forward to what week two has in store for me.

Posted by Elizabeth Maxwell, trainee in the Litigation and Dispute resolution practice group.

Elizabeth graduated from Royal Holloway, University of London in 2008 with a degree in History and Politics. She went on to study the GDL at BPP London (Waterloo) and the LPC at the University of Law (Bloomsbury).

Co-Complimentary – a trainee on the transaction trail

Being a trainee in the Corporate and Commercial practice (CoCom) is an eye-opening experience. I don't mean in the 'aggressive optician' kind of way, but I really have found it fascinating because it's a great opportunity to understand how businesses work in a way that no other practice can show you.

In my opinion, only once you have assisted clients in the context of corporate law do you really have the opportunity as a trainee to get a bird's-eye view of everything – its services and products, structure, share capital, directors, employees, assets, contracts, suppliers, customers, turnover, tax reliefs etc. I often find it useful to draw spider diagrams so I can visualise the structure of a group of companies. At times the diagram can be very simple (probably a pyramid shape) or frustratingly complex (imagine a stick-man fighting an octopus).

I am currently assisting a partner in a transaction in which our client is selling its company. Luckily, I have been involved from the beginning and hopefully will see the deal complete before I move seats. At the outset, the supervising partner told me that by the end of the transaction I will know the business inside-out (and probably better than the sellers themselves). Finding myself in the middle of drafting a disclosure letter, I can certainly see what he means. If you are not familiar with the 'disclosure letter' then I will explain this further below. It is the main stage in a transaction's due diligence process.

Let me give you a brief run-through. The purchaser, Just Buying Limited, is buying the entire share capital of iSell2U Limited (obviously woefully fictitious names). Both parties will enter into a share purchase agreement (SPA) - the main document that governs the acquisition. At the core of the SPA will be the warranties. A warranty is a statement of fact. Numerous warranties will usually appear in a separate (and very large) schedule to the SPA. In an acquisition, the principle of caveat emptor applies (or 'buyer beware'). This means that Just Buying has no automatic protection from the law as to the nature and extent of the assets and liabilities it is acquiring.

So, in order to find out as much as it can about iSell2U, Just Buying will insert numerous warranties into the SPA to try and fish out any areas of concern. There will be warranties in relation to all sorts of aspects of iSell2U's business so that it knows exactly what it's buying. If a warranty does not accurately reflect the true position of iSell2U's business, then it is up to iSell2U's solicitors to 'disclose' against it. These disclosures are made in a disclosure letter. If a disclosure is made against a warranty which does not reflect well on iSell2U's business, then Just Buying may use that disclosure to negotiate a reduction in the purchase price. If iSell2U does not disclose against a warranty when in fact it should have, Just Buying may be able to sue for breach of warranty. This should be avoided at all costs.

Time for an example. A typical warranty could say something like "There are no contracts to which the Company is a party which has more than three months left to run and which the Company cannot terminate by three months' notice or less without payment of compensation or damages". To consider this warranty fully, and avoid the risk of breaching a warranty, I would need to review every single contract that iSell2U is a party to, and read its duration and termination provisions in order to see whether it can terminate the contract with three months' notice without any unwanted repercussions. Every single contract which is not caught by the warranty will then need to be detailed in the disclosure letter. This can take a very long time, but it is a great way to understand the company's contractual commitments.

As you can imagine, after dealing with approximately 40 pages of warranties relating to every single aspect of the business, you begin to know the company very well. It really is a great way to grasp the complexity of a business and adapt what you have learnt to other clients and even current affairs. It is tasks like these that make you realise how useful a seat in CoCom is, wherever you may want to qualify.     

Posted by Rajiv Malhotra, trainee in the corporate and commercial practice group

      

Rajiv graduated with LLB (Hons) from the University of Birmingham in 2007, before completing the Legal Practice Certificate at BPP Law School in London. After acting as a Legal Assistant with a large Watford firm, Rajiv joined B P Collins in April 2012 as a paralegal before beginning his training contract in September 2013.

The perils of a badly drafted BYOD policy

Summer heralds the time of year when applications from prospective trainees come flooding through the doors of B P Collins, ready for the next step in their legal careers. With this in mind, it is worth taking heed of the recent warning issued by the Information Commissioner's Office (ICO) towards the end of last year. This reminds organisations dealing with personal data, such as employers, that they ensure their policies and procedures reflect the way in which modern workforces operate.

The warning came as a result of a breach of the Data Protection Act 1996 (DPA) by the Royal Veterinary College, after a member of staff lost her personal digital camera. Whilst this loss would usually be inconsequential for her employer, the memory card contained the photographs of six passports belonging to prospective employees, who had been interviewed recently by the College. The College did not have any policies or procedures in place detailing how personal data should to be handled.

After their investigation into the incident, the ICO required the College to give an undertaking to ensure that its staff are trained on how to handle personal data and that all devices contain encryption software if they are using sensitive data.

Despite the reprimand from the ICO and the undertaking required from the College, the entire incident could have ended with a hefty fine of up to £500,000, something I am sure they were glad to avoid.

Speaking after the incident Stephen Eckersley, head of enforcement at the ICO noted: “It is clear that more and more people are now using a personal device, particularly their mobile phones and tablets, for work purposes, so it is crucial that employers are providing guidance and training to staff which covers this use.” 

This emerging trend is known as 'Bring Your Own Device' (or BYOD for short) and it is fast becoming popular with employees and employers alike. The basic premise is that employees are encouraged to bring in their own electronic devices, usually mobile telephones, tablets and laptops, to the workplace instead of those traditionally provided by the employer. According to recent studies, such a policy can lead to a more engaged and flexible workforce and potentially reduces the cost to the employer of providing IT equipment and support.

With the above cautionary tale in mind, employers and, more generally, organisations that handle personal data have to make sure that their policies and procedures for handling personal data are watertight, especially if they plan to introduce a BYOD policy. The ICO has produced a set of guidelines highlighting what companies can do to protect personal data if they plan to allow employees to use their own devices for work purposes. The guidelines include enabling encryption on data which is stored on the device, the use of strong passwords to secure devices and having the ability to remotely delete the contents of such a device in the event of loss or theft.

In addition to this, employment partner and practice group leader Jo Davis has produced her top five things to consider before implementing a BYOD policy in the April edition of Real Business magazine. This article contains helpful information and tips for businesses to ensure that their BYOD policy helps them to avoid the pitfalls that the College stumbled into.

B P Collins LLP employment team is on hand to help ensure that your BYOD policy is a success and are equipped with the necessary skills to help you draft a BYOD policy, tailored to the specific needs of your business. Nevertheless, there is still a lot to consider but I know one thing is for sure, I am never bringing my camera to work again, just in case.

Posted by Benjamin McQueenie, trainee in the employment practice group. 



Benjamin started his training contract in November 2012. He previously worked as a paralegal within the litigation departments of two well-known Bristol firms, as well as a seasonaire in the French Alps.

Signed, sealed but not delivered | Private client

We all make mistakes; it’s a fact of life.  During my time as a trainee, I've come to learn where I am most likely to make mistakes and I've developed ways to help avoid them. However, there are always some mistakes that don't get spotted until it is too late. The recent case of Marley v Rawlings and another is the perfect example of this. 

Before their death Mr and Mrs Rawlings instructed a solicitor to prepare simple mirror wills.  The wills provided that on the first death, the whole estate passed to the survivor and on the death of the survivor, everything was to pass to Mr Marley, who was also to be the sole executor.  Mr Marley was treated by Mr and Mrs Rawlings as their son and lived with the couple, although he had not been formally adopted by them.  Mrs and Mrs Rawlings had children of their own but they were estranged and were not to benefit under the wills.

Mr and Mrs Rawlings signed the wills in the presence of their solicitor, but the wills had inadvertently been muddled up which led to Mr Rawlings signing Mrs Rawlings' will and vice versa.  The mistake was not noticed at the time and, in fact, did not come to light until the second death, that of Mr Rawlings. 

It is possible to rectify a will under section 20 of the Administration of Justice Act 1982 where the will is so expressed that it fails to carry out the testator's intentions because of either a clerical error or a failure to understand the testator's instructions.  Under section 20, Mr Marley applied to the High Court to rectify the will because of a clerical error. The claim was defended by Mr Rawlings' two sons who, under the intestacy rules, stood to inherit Mr Rawlings' free estate worth around £70,000. 

At first instance, the High Court held that the will did not comply with section 9 of the Wills Act 1837 (which sets out the rules for attestation of a will) because Mr Rawlings did not intend to give effect to the will he signed as he signed his wife's will. In the alternative, the Court held that it had no power to rectify the will as the error was not a clerical one.

Mr Marley appealed the decision but the Court of Appeal also refused to rectify the will, again on the basis that it did not comply with section 9 of the Wills Act 1987 and so was not valid.  It was not possible to consider rectification of a will which was not valid.

Finally the claim was heard before the Supreme Court where it was unanimously decided that the will could be rectified on the basis of clerical error.  In reaching this decision, the Supreme Court held that wills should be interpreted in the same way as commercial contracts.  The Supreme Court also held that the formal requirements of section 9 were satisfied because Mr Rawlings had executed the will with the intention of it being his will.  There was no evidence to suggest that his intentions were other than to make a will to benefit Mr Marley on the second death.  

The Supreme Court decision has clarified the position that a "clerical" error need not be limited to a drafting error.  Although many commentators are suggesting that the widening of "clerical" error raises great uncertainty, it is hard to see that rectification will be available where the testator's intentions are in doubt. 

Based on the facts, I think most people (myself included) would feel that the right decision has finally been made – it has just taken a somewhat tortuous process and surely a great deal of expense to get there. This case clearly shows that spending a little time checking documents can result in a lot of time and money being saved in the future. And let's not forget the possibility of negligence claims arising. Whether you are a trainee or fully qualified solicitor, this case shows that it pays to be diligent. There is a definitely a lesson to be learned here!

Posted by Harriet Betteridge, trainee in the private client practice group.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.

Mitchell on Mitchell – Why missing deadlines cause costly headlines

This February my training at B P Collins LLP has taken me, Rebecca Mitchell, to the litigation and dispute resolution practice group, where the name "Mitchell" frequently resonates around the group. You can imagine my concern as I hear my name repeated from across the room, but, thankfully, it is another Mitchell to whom they refer. Andrew Mitchell.

In the wake of the Court of Appeal's ground-breaking decision of Mitchell v News Group Newspapers Ltd (2013) EWCA Civ 1537 ("the Mitchell case"), there can be little doubt that a sea change in litigation is now occurring. A sea change initiated by the implementation of the Jackson Reforms on 1 April 2013. The Jackson Reforms are, in short, intended to change the way litigation is conducted by enforcing a new culture of strict compliance and controlling costs.

In the Mitchell case, Mr Mitchell's solicitors failed to serve a costs budget on time (six days late) and the High Court Master ruled that he was to be treated as having filed a cost budget for applicable court fees only (this is compared to the £506,425 sought). Mr Mitchell appealed, but the Court of Appeal refused to grant relief from the sanction imposed by the High Court Master and concluded that if the Court of Appeal were to overturn the decision “it is inevitable that the attempt to achieve a change in culture would receive a major setback... in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders.”

As a LPC student I was taught to be meticulous in my approach to all court deadlines. The “clear days” rule 2.8 of the Civil Procedure Rules (CPR) was referred to at least once a class and, inevitably, a tired-looking student would be asked to count on a calendar to ensure that the correct date for a fictional deadline was understood by all of the class. In the case of Mitchell, the Master drew attention to the fact that failure to serve the costs budget in time resulted in her needing to vacate other appointments relating to asbestos claims. The effect of one party missing a deadline not only interrupted and delayed the Mitchell case, but also adversely affected other cases. The courts are inundated with cases and now, more than ever, it is essential for the legal profession to be efficient and streamlined to ensure that the court's time is put to best use.

Furthermore, the general consensus is that the principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of law and so the relief from sanctions of CPR rule 3.9 can still be relied upon where just and proportionate. The Court of Appeal in the Mitchell case upheld the Master's assertion that "we were too busy to file the schedule on time" is not a valid excuse intended to be covered by the "de minimis" principle.

The question now is how strictly should the courts enforce compliance? In an unreported case shortly before the Mitchell case, a Judge struck out the Claimant's costs budget because the phrase "[Statement of Truth]" was in square brackets which are not compliant to the mandatory requirements for a Statement of Truth pursuant to the CPR. The costs budget had been signed and dated in the appropriate way and, unlike in Mitchell, filed in time. Is it possible that the Court rules are being applied too vigorously?

The greater clarity and certainty that the new system provides is conducive to effective case management which, in turn, can only benefit the client and improve the reputation of the legal profession as a whole. However, the Courts must now strike a balance between establishing a culture of compliance and the necessity of leniency in appropriate cases. 

Phil Mitchell may have brought us drama and R.J. Mitchell the Spitfire, but Andrew Mitchell will be remembered for his role in reinforcing a new culture of strict compliance. 

Posted by Rebecca Mitchell, trainee in the Litigation and Dispute resolution practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.

Is January really 'divorce month'?

If you believe everything you read in your Sunday morning newspaper then January is supposed to be the time of year when family lawyers are inundated with disgruntled couples, clamouring to separate after having one too many arguments over the festive season.

However, after spending January with the B P Collins family practice group as part of my training contract, I struggle to find truth in this urban myth.

Throughout this seat I have come to appreciate how divorcing someone is simply not a rash action made after a tricky holiday period but a long-considered decision. Even where one party has made the decision quickly (perhaps after discovering infidelity) it is never a decision that I have seen taken lightly.

In my experience people who have thought rationally and sensibly about the future of their relationship will approach the process of resolving any consequent dispute (whether relating to children or money) with similar care.

Some people will agree everything between themselves, around the kitchen table so to speak, and will just come to us to make the agreement legally binding. Others will have no alternative but to go to court, perhaps where they need to establish the jurisdiction of the English court for their case.

However, many couples will fall somewhere in between these two extremes: they need some professional assistance to decide children or money queries, but they want to retain ultimate control over the outcome rather than ceding it to a judge (although, even when court proceedings are started, negotiations almost always continue alongside).

Since joining the Family practice group, I have been surprised by the number of flexible options available to separating couples and how the solicitors here will often tailor a bespoke solution to those particular individuals both in the agreement itself and the method of reaching that agreement. Mediation and solicitor negotiation are two alternatives I have seen work well.

Mediation involves an independent and impartial mediator facilitating discussions directly between the separating couple. With the informed guidance of a solicitor in the background, combined with the neutrality of the mediator, this can be a very successful means of resolution which allows the individuals concerned to retain control and find the appropriate solutions by working together, albeit with an experienced professional present to guide discussions and help “sense-test” potential outcomes.

Whereas a Solicitor negotiation requires a delicate balance between pursuing the client’s objectives and advising on what is within a reasonable band of outcomes. It is the solicitor’s role to obtain the best possible agreement for their client, while always keeping them informed of what the best alternative to the negotiated settlement is. Solicitors must help the client assess the cost/benefit analysis between conceding on certain points to avoid the stress and expense of an on-going battle, without losing sight of the client’s goal.

The advantage to allowing a solicitor to negotiate is that the individuals do not have to have direct contact with their former partners. Many couples, particularly with children, prefer not to have direct discussions, but rather to keep the heat out of potential disputes by allowing their solicitors to resolve things at arms-length.

The myriad of options available in the family arena has inspired a genuine interest in the different ways of resolving disputes and I look forward to exploring this from a different angle in my next training seat in the Litigation & Dispute Resolution group. 

Posted by Rebecca Mitchell, trainee in the family practice group.

Rebecca started her training contract in September 2013 after graduating from Newcastle University with a 2:1 (BA Hons) in History. She undertook the Graduate Diploma in Law at Kaplan Law School and has recently completed the Legal Practice Course with distinction.