Vol 2 Issue 2 Winter 2008 Newsletter

Spotlight on Ann Brady

Dr Ann Brady, Head of Rougemont’s MediationTeam, mediates in a wide range of
civil disputes including: contracts, personal injury, ecclesiastical, education, landlord and tenant and boundary disputes. She is a law graduate of the London School of
Economics and later gained a Ph.D in Law. She attended the Inns of Court School
of Law in 1973 followed by pupillage in the Chambers of Lord Havers. She gave up practice to start a family and subsequently taught law at Universities in London, Washington State (USA), Bath and Bristol. Between 1997 and 2004, Ann was the Associate Director of the Bar Vocational Course at Bristol Institute of Legal Practice. In
2000, she trained as a mediator with ADR Group and pioneered a mediation advocacy course for bar students. In 2001, she retrained for practice and was called to the Bar,
joining Rougemont Chambers in 2002 to help develop Chambers’ Mediation practice.
Ann is on the top tier of the Bar Council’s list of barristermediators, having acted as a lead mediator since 2002, and is a member of the Chartered Institute of Arbitrators. She was one of the original members of the Devon and Exeter Law Society team of solicitor and barrister court mediators and has mediated small claims, fast and multitrack cases at Bath, Barnstaple, Exeter andTorquay Courts.

She is at the forefront of the campaign to save the Devon and Exeter Law Society Court Mediation Scheme and recently published an article on this topic in the Law
Society Gazette 25th October issue. Ann, as a member of theWorld JuristAssociation, has spoken at international law conferences on mediation as far afield as Sydney and Beijing and has recently attended the European Commission-backed conference in Rome on development of Arbitration and Mediation within the 27 States of the European Union. In February 2008, she will be going to Paris to act as a judge/mediator at the International Chamber of Commerce 3rd International Commercial Mediation Competition involving university students from over 30 countries, including Harvard, the London School of Economics, Hong Kong University and the University of New SouthWales.

As part of Rougemont Chambers’ role in providing legal training and professional development, both Ann and John Lloyd will be offering a Mediation Advocacy Course in the NewYear with CPD points from the Law Society and the Bar Council and accreditation by the newly-formed Standing Conference of Mediation Advocates
(www.mediationadvocates.org.uk).

With increased use being made of mediation as a dispute resolving process, Ann is keen to ensure that clients are well represented and advised during the mediation
process, in a cost-effective way. Ann and her team will continue to promote the use of mediation both within and outside the court system.

Using Lay Mediators threatens the Quality of Justice

The Court Service plans to press ahead with rolling out the Manchester
Court Mediation scheme to every court area in England fromApril 2008.This
scheme has been based on the experience of just one man – James Rustidge
- an ex-police officer who has run a pilot in Manchester since June 2005.The
scheme has not been as stringently researched as other court schemes.
Furthermore, his “success rate” – i.e. the number of cases that he has settled,
has not been matched at other courts where similar schemes are being
piloted. Apart from success rates and customer satisfaction, the Manchester
Model raises a number of issues that need to be addressed, including:
• whether it is appropriate for lay mediators to handle mediations where the
parties have taken no legal advice prior to putting their claims into court;
• whether is it appropriate for a government department responsible for the
administration and financial control of the court service to be advertising
and using its own staff to undertake cases which would otherwise have
been handled by a judge.

In addition to these issues, another new development is also taking place; the
use of judges as mediators.
Court mediation schemes are still part of an evolving system to find the
most effective way of delivering a national court mediation service. It would
be unfortunate if the Manchester Model is permitted, in the interests of
expediency, to bulldoze out of its roll-out path, not only long-standing and
successful court schemes, but also newer ideas, such as using judges as
mediators.

The task confronting the Better Dispute Resolution Team is to find an
appropriate and efficient method of delivering a national court mediation
service while keeping an eye on the financial budget. However, an eye
should also be kept on the “quality control” of the service provided by
mediators and also on which mediators are best suited to which task. The
particular needs of those who have had no legal advice prior to putting their
papers into court and also those who bring cases to the specialist courts
should not be overlooked.
Making mediation part of the legal system is a long term process. Permitting
existing and successful court mediation schemes to continue while considering
new ideas, such as judges as mediators, will serve the system better than trying
to impose nationally schemes such as the Manchester Court Mediation Scheme,
which have yet to be rigorously tested.

(This is a an abbreviated selection from an article by Dr. Ann Brady published in the Law Society Gazette)

New Website

Last summer Rougemont Chambers launched its new web-site: http://www.rougemontchambers.co.uk .
Our previous web-site had served us extremely well, but business marches on and changes in technology, together with updates to web-site design, made our previous web-site begin to look a little dated. Since chambers enjoys a reputation of being innovative and forward-thinking, we wanted to bring our website up to date.We hope that you find it easy to navigate to find the information you need.
We have included much more information about chambers and its members and general aspects of the law. The new site should help its users, both professional and the lay client, in finding the information they need at a level appropriate to them.You can now instruct counsel directly through the website.
Why not visit the web-site at the above address and try it out for yourself? We would be very pleased to receive your feedback and any comments as to how we might improve the site still further.
I hope that you had a Happy Christmas, may I take this opportunity of wishing you a healthy and profitable NewYear from all at Rougemont Chambers.

David Parker

Sun Shines down on Summer Party

On 20th July 2007, while the rest of the country was deluged with rain and floods, the sun shone down upon Exeter and in par ticular, Chambers Tenth Anniversary Celebration party. The party was held in a splendid marquee and on the lawns outside Chambers, overlooking the Quay.
The event was a huge success, mainly due to the untiring efforts of Lisa, and was enjoyed by all. Photographer Sandra Barrett took a number of photographs at the
party and these have been displayed on our website: http://www.rougemontchambers.co.uk. You will find them in the News section.
We hope to repeat this event in the future, so if you were not able to make it due to floods or for some other reason, we hope to see you there next time.

New Faces

Since our last newsletter, Chambers is pleased to welcome three new faces to chambers.
Andrea Chute (called in 1995) joined chambers in the Summer. She specialises in Employment Law and will add strength and depth to our Employment Team. Andrea has also retained her tenancy at Tooks Court Chambers (The Chambers of Michael
Mansfield QC) in London and also practices in the fields of Housing, Land Law, Landlord and Tenant, Commercial, Contract Law and Building Law.
Brent McDonald (called in 2000) joined chambers in November. Brent specialises in Personal Injury law and brings with him a wealth of experience to bolster our PI team, which is growing in size, expertise and popularity. Brent lives close to Exeter and has
previously been working solely from 2 Temple Gardens in London, where he also retains his tenancy.
Brent also practices in Construction Law, Insurance and Re-insurance and Professional Negligence. Nicholas Ferrari (called in 2005) joined chambers in
November. Nicholas is a tenant at 1 Gray’s Inn Square and will be living in London. Nicholas will therefore be able to cover a wide range of civil matters in London and the South-East. Being of junior call, Nicholas is keen to be exposed to a broad spectrum
of civil work during his early years at the bar.
The addition of these three barristers makes it even easier for Rougemont Chambers to cover hearings in London and the South-East and to serve our ever-growing list of satisfied clients in that part of the country.
During the past year, we have also welcomed three pupils to chambers; Jane Smith, Kerry Gardiner and Jonathan O’Neil. Jane Smith is a third-six pupil, having transferred to the bar after seven years as a solicitor specialising in Family Law. Kerry is now in
her second six month period of pupillage and is enjoying being on her feet. Chambers is already receiving positive comments from its instructing solicitors. Jonathan will be available to represent clients from May 2008.

STOP PRESS
Congratulations to Dr David Thomas on being appointed to the Attorney General’s Regional Panel. This appointment will allow Government Departments and the Treasury Solicitor to instruct David in a wide range of matters. Competition to get onto this list is fierce and the appointment is a tribute to his talent.
In 2007, David was invited to become the Chairman of the Exeter Medico-legal Society.

Implacable Hostility

Will Sections 3 and 4 of the Children and Adoption Act 2006 deal with the dilemma of trying to enforce contact orders? Section 6 has been implemented enabling Family Assistance Orders to be more readily available, but no commencement date has been set for much of Part I of the Act.
Section 3 provides for a notice to be attached to contact orders warning of the consequences of failing to comply. Section 4 provides for enforcement orders imposing an unpaid work requirement on the person breaching the order once the court is satisfied beyond reasonable doubt that a breach has occurred.
Various orders are currently available: transfer of residence order V v V (children) (intractable contact dispute) [2004] 2FLR 851; consideration of Care Proceedings Re M (intractable contact dispute: interim care order) [2003] 2FLR 636 Wall J; shared residence order A v A (children) (shared residence order) [2004] EWHC 142 and Schedule 1 Article 8 Human Rights Act 1989 has been prayed in aid, Hansen v
Turkey [2003] 3FCR 99. Recently two cases were differently decided on this point. In Re C (a child)(residence) [2007] All ER (D) 187 unmarried parents, with a 6 year old, separated and managed contact for about a year. The mother then refused to make the child available and the father commenced proceedings. The mother ignored
contact orders apart from two. The first occasion was observed by a CAFCASS Officer and went well, the mother sabotaged the second. The Court considered the options and ordered an immediate change of residence to father with reasonable contact to mother, who appealed. Her appeal was dismissed it being determined that “the judge had not failed to have regard to any appropriate factor when striking the essential balance... if ... denied contact with her father whilst remaining resident with her mother, as against the likely effect of the change in moving her to her father’s home.”
However in V v T [2007] All ER (D) 159(Oct) married parents separated in 2001, the child (now 7) remained with mother. There were problems with contact and in December 2006 the mother announced she was moving and secretly enrolled the child at a local School. The father applied for sole residence. The mother initially disputed a child psychiatrist’s conclusions about long-term consequences of the breakdown in the child’s relationship with the father, however during cross-examination accepted she needed to be positive about the father. Her change of attitude was held to justify there being no change in residence, although there was to be continued court supervision.
Will the new Act ensure that cases no longer drag on? Until it is fully implemented, those representing the parent at risk of losing contact need to continue to ensure that all options are clearly set out, particularly when against a litigant in person. Prepare the preliminary documents and trial bundle early and serve by process server. Make sure the chronology is detailed and set out with simple clarity. As Munby J said in Re
D (intractable contact dispute: publicity) [2004] EWHC 727 (Fam), [2004] 3FCR 2343 “There is much wrong with our system and the time has come for us to recognise the fact and face up to it honestly.” In that case the battle had lasted for 5 years with 43 hearings and 16 different judges.
If considering the ultimate sanction of committal, then Re K (children: committal proceedings) [2002] EWCA Civ 1559 states that as such proceedings are a criminal charge for the purposes of Art 6 of the European Convention of Human Rights and the litigant in person is entitled to the additional protection of Article 6(3)(c) “To defend himself in person through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given free when the interests of justice so require.”
However, in M v M (Breaches of Orders: Committal) [2006] 1FLR 1154 CA, the Judge took the view that although having found 66 breaches of a no contact order by a father and that he deserved imprisonment, the welfare of the children (although not paramount) could not be ignored and that they would be outraged by the making of such an order. The Judge made no order on the Committal application.
Consider making use of the new ability to seek Family Assistance Orders under S6 of the new Act, certainly before considering care proceedings. If a S37 Report is contemplated, then Re M (above) and Re F (Family Proceedings) (Section 37 Investigation) FL April 2006 261 suggest: -

• a high probability that the child will be separately represented;
• a likelihood of expert evidence by a child/family psychologist/ psychiatrist;
• a need for clear evidence that the S31 criteria are met and it might be appropriate to make a Public Law order;
• a coherent “care plan” in which the temporary/permanent removal of a child plays an integral part.

Courts should be encouraged to take positive action and to be reminded that the effect of Sch 1 Art 8 of the Human Rights Act 1998 is to make clear there is an obligation to ensure children are given a real opportunity to develop a relationship with the absent parent in a calm environment, so they can freely express their feelings for each other without any outside pressure.

Anne Bell OBE

Confusingly Codified Cohabitation or Trusty Trusts?

The dust has now had a chance to settle since the arrival of the Law Commission’s long awaited July repor t,“Cohabitation: The Financial Consequences of Relationship
Breakdown”. However, there remains a very real question from the practitioner’s perspective as to whether potential reform will really assist the courts in this difficult and increasingly litigious area of practice.
With the government predicting that by 2031 there will be 3.8 million cohabiting couples, many might argue that the current system of overlapping legislation needs reform to cope with the inevitable increase of contested cases upon relationship breakdown. For the Law Commission, the drive for reform was also in large part due to the prevalence of the‘common law marriage myth’ that many cohabitants still cling
to. This is what led to its proposals for reform so that certain couples who satisfied eligibility requirements of parenting a child or having lived together for between 2 and 5 years as a minimum period would have further rights. Any person seeking financial relief would still need to demonstrate‘qualifying contributions’ that resulted in an ‘obtained benefit’ or ‘economic advantage’, a requirement that sounds suspiciously similar to those already present in the current law of constructive trusts and proprietary estoppel. I would argue, from the practical perspective of a legal practitioner, that the priority for the government should be to reinforce the clear fact that the only full legal protection for couples comes in the form of marriage and civil partnerships. As soon as other cohabiting relationships are afforded varying degrees of protection, the general public will only be further led into uncertainty.
For instance, how would one begin to prove the duration of a qualifying relationship? What if cohabitation was for 22 months followed by a 6 month break up and then another 18 months together? Would this qualify? Would there need to be a factfinding
exercise to determine the extent of the cohabitation? How does one effectively dissolve or divorce from a cohabitation? The clear law regarding the end of civil partnerships and marriage leads neatly to remedy. Without such a clear trigger mechanism in cohabitation cases, there are likely to be all manner of disputes about the end of a
relationship, particularly if one party wished to remain in it. The availability of an ‘opt-out’ will surely only serve to confuse matters further, leading essentially to four potential categories of relationship, all with different forms of protection; (i)
spouses/civil partners, (ii) cohabitants for less than the minimum period, (iii) cohabitants for long enough to trigger unrequited legal protection, (iv) cohabitants for long enough to trigger yet ‘opt out’ of any extra statutory rights, who would still be able to make claims under TOLATA or the Children Act. I can only hope therefore that the government chooses not to legislate a further grey area into the already complex
domain of relationship breakdown. Time and money would be far better spent on increasing public awareness and allowing the courts to continue to refine the law of trusts along the practical lines that Oxley v Hiscock and Stack v Dowden have already established.

Andrew Worthley

Unfair Dismissal and Territorial Jurisdiction

Hiberna FM Ltd v Walker (UKEAT/0242/06/RN), is one of the few cases in which the EAT has considered the issue of the test to be applied when determining the question of territorial jurisdiction in respect of unfair dismissal, following the landmark House of Lords` decision in Lawson v Serco [2006] IRLR 289.
The Exeter tribunal had found that Mr Walker, who, during his employment, was based in Kosovo, was nevertheless entitled to pursue a complaint of unfair dismissal.
The Employer appealed to the EAT, arguing that the tribunal, although basing its decision on Lawson, had applied the wrong legal test. The EAT disagreed, HHJ Peter Clark holding that the balancing exercise to be performed by the tribunal in determining whether the connections with Great Britain are sufficiently strong to found jurisdiction, is not dissimilar to the balancing exercise undertaken when determining whether or not an individual is an employee. He also reinforced the view taken in
Lawson that the tribunal’s findings at first instance should be given considerable respect by the appellate courts. Debbie Grennan represented the successful employee both at first instance and upon appeal. She would be happy to provide further information as to the effect of this judgment, upon request.

As Landlords embark on new territory, what does the future hold for Tenants?

Following the first anniversary of the Avonridge type clause, it is now abundantly clear from the House of Lords’ decision that the landlord may exclude all liability to the tenant once he has parted with his interest in the premises.
Prior to the Landlord and Tenant Act 1995, the landlord could only release itself with the approval of the tenant, normally through the ‘notice’ procedure as set out in Sections 6 and 7 of the 1995 Act. So, if the landlord is not worth suing, the tenant might well look to a former landlord who is financially more stable. Under these provisions, the landlord was heavily burdened by the ‘Privity of Contract’ principle which made him liable to any future commercial lettings, even though he had relinquished his interest in the premises. Therefore, there was always a danger that the original landlord may be held liable for his successors in title if they fail to exercise their obligations under the lease.
This is no longer the case. A well-advised landlord, when granting a lease, may now limit liability to the period when he is the landlord. Furthermore, the landlord may benefit by not only excluding his own liability, having disposed of the interest in the property, but also that of each successive landlord. This will, as a result, make the lease more marketable. In the aftermath of this decision, where does the tenant stand in relation to their rights and obligations? After all, many believed that Avonridge
would favour the tenant, considering that “on their face the transactions have the appearance of a scam” (per Lord Nicholls). The introduction of the 1995 Act brought both advantages and disadvantages for the tenant of a commercial lease, in relation to the limitation and exclusion of liability. On the one hand, the abolition of the requirement of privity of contract has lifted the burden on the tenant after he has automatically released itself from the responsibilities of the contract. On the other hand, the tenant appears now to be more vulnerable than before because the Avonridge decision has overruled Section 3 of the Landlord and Tenant Act 1995, leaving a loophole whereby no legal mechanism is currently in place entitling the tenant to receive remuneration if the landlord were to limit or exclude liability prior to parting with the property.

New Rules about Mental Capacity

In October 2006, the Mental Capacity Act 2005 came fully into effect. Most people know about it because, amongst many other matters, it changes the rules about living wills, now called Lasting Powers of Attorney.
There are currently 3/4 million people in the UK with dementia; 1/4 million with profound or severe learning difficulties and many others who move in and out of capacity. The key principle is that a person is assumed to have capacity unless it is
established otherwise. No presumption or prejudice must colour this assessment, but reasonable belief is a defence. Section 5 of the Act covers protection from liability: the response (e.g. restraint) must be proportionate and in the person’s best interest,
but there is no defence to negligence.
A new Court of Protection is established with High Court status. The closest hearing centre to Exeter will be in Bristol. This will only be for particularly difficult decisions and, like judicial review, permission is required for hearing. Ill-treatment or wilful neglect becomes a new specific crime, which may be reported to the police or the new Public Guardian.
(This is a short summary of a presentation made by John Lloyd to the South West Solicitors in Local Government seminar in November. He would be happy to talk to any other groups on the subject.)