Law in Practice

Chris McWatters weighs up the pros and cons of a Law Commission proposal to make prenuptial agreements binding in court.  

Most fiancés would find the prospect of making a prenuptial agreement before their big day in church about as much in the joyful spirit of things as cold wet weather on the wedding morning. How can you make a holy vow to remain together for eternity, while at the same time calculating how the marital spoils should be divided if you separate? 

Sir Hugh Bennett assesses the progress of the family law finance arbitration scheme.  

In 2012, the Institute of Family Law Arbitrators (IFLA), a company limited by guarantee, was set up with a board of directors chaired by former Lord Chancellor Lord Falconer of Thoroton. It is responsible for the implementation and administration of the family law finance arbitration scheme. The qualified arbitrators, now numbering 130 with more to come, have all been trained in arbitral techniques and have a good working knowledge of the Arbitration Act 1996 (AA 1986). Each must become a member of the Chartered Institute of Arbitrators and is subject to its disciplinary code. Solicitors, barristers, QCs and retired judges, all of whom are, or were, full-time practicing family lawyers, comprise the corps of arbitrators under the scheme. They are therefore real specialists in the field of family finance law. 

Nichola Higgins and Quinton Newcomb cast a spotlight on Deferred Prosecution Agreements.  

Deferred Prosecution Agreements (DPAs) are a US imported mechanism, by which a company can admit corrupt or fraudulent behaviour, agree to a number of measures designed to ensure that such conduct cannot recur, pay a sum of money to compensate any victims and disgorge itself of any illicitly gained profit, while avoiding a criminal conviction and consequent difficulties for its business – which include the ability to bid for public tenders. 

Tom Cockroft explores the need for a new offence of failure to prevent fraud.  

“A British bank is run with precision/ A British home requires nothing less/ Tradition, discipline, and rules must be the tools/ Without them – disorder! Chaos! Moral disintegration!/In short, we have a ghastly mess!” 

(“The Life I Lead”, Mary Poppins) 

Jalil Asif QC explains how to manage your digital estate after death.  

Death and taxes have been said to be the constants in life. Barristers are always receiving offers of free tax advice so, for a change, this article is about death and its consequences. 

Jonathan Barnes examines the High Court’s effective monopoly on hearing defamation cases, and against a background of calls for county courts to get involved too asks, WHY NOT?  

On October 2011 the Parliamentary Joint Committee on the then Draft Defamation Bill considered at paragraph 87 of its First Report that the availability of county courts to hear defamation cases, particularly outside London, should increase accessibility for ordinary citizens and would, in many cases, reduce costs as well. The Committee suggested that the Ministry of Justice should implement a pilot scheme to determine how this proposal might work in practice. 

One in six people experience some form of hearing loss but are not always easy to identify. Sukhveer Kandola and Narita Bahra explain what barristers can do to secure a fair trial for clients with hearing difficulties.  

Imagine this. You are being cross-examined. You stand silently in the box, surrounded by smart people in wigs and gowns. The room is large, the ceiling is high and there is limited, if any, sound amplification. There is a constant murmur of voices in the background and an intermittent clicking sound. You stare ahead and you concentrate. You really concentrate, but it is not enough and you don’t quite catch the entire question. You ask for the question to be repeated, but you miss it again. You continue to look into the abyss because if you focus long enough, you will work out what is being asked. All eyes are on you and this is your moment to answer. Do you embarrass yourself by asking for the question to be repeated again? Or do you save face and guess what the question was and answer as best you can? You decide on the latter and you continue guessing until you are told you are no longer required and can go back and take a seat in the dock. Should you have said that you have problems with your hearing? You worry whether this will impact the outcome and whether you should say something to your counsel now. But surely he would have already noticed? So you sit down and hope it will all turn out okay. 

Mark Solon finds rumblings of Jackson discontent one year on – around fees, timetables, the amount of work and access to justice.  

Lord Justice Jackson’s reforms to the Civil Procedure Rules were introduced in April 2013. Their aim was to streamline civil litigation, increase access to justice, cut costs, speed up the process and focus on key issues at the outset of any matter. Minds were concentrated by Mitchell v News Group Newspapers Ltd last November, when the Court of Appeal restricted the solicitors’ costs budget of more than £500,000 to court fees of £2,000 because the firm was late filing its budget (see Counsel March 2014 p 21). In other cases, “disproportionate and unreasonable” budgets were not approved, a direct result of the Jackson reforms. 

Dexter Dias QC on the first Female Genital Mutilation prosecutions.  

And so it begins. In April we finally witnessed something that activists who have been campaigning against Female Genital Mutilation (FGM) for years began to doubt would ever happen: the first defendants in a UK court facing criminal prosecution. The controversy around FGM, the mutilation of the genitals of young women and girls for non-medical reasons, has attained an unprecedented public prominence. There is an ongoing Parliamentary Inquiry. Eminent politicians profess profound concern. National newspapers launch petitions; television stations air documentaries. Yet for all the exposure, two simple stories ram home the brutal reality of FGM. 

Michael Zander reflects on his insider’s view of Tony Benn’s battle to renounce his peerage and remain in the House of Commons.  

Fifty-three years ago I was legal adviser to Anthony Wedgwood Benn (as he was then known), in his battle to remain in the House of Commons. At the time I was an articled clerk with Ashurst Morris Crisp & Co. I had met the Benns and was invited to dinner at their house in November 1960, shortly after his father, Lord Stansgate died. He told us how he planned to go about it. I got interested. One thing led to another.