Legal Abuse Syndrome

Karin Huffer

Legal Abuse Syndrome (LAS) is a form of post-traumatic stress disorder (PTSD). It is a psychic injury, not a mental illness. It is a personal injury that develops in individuals assaulted by ethical violations, legal abuses, betrayals, and fraud. Abuse of power and authority and a profound lack of accountability in our courts have become rampant.

The book, Legal Abuse Syndrome written by Karin Huffer is the result of her experiences for
over twenty years as a marriage and family counsellor in private practice. What is unique
about this book is that it addresses the victims of legal abuse from a psychological therapeutic
perspective. The objective is to move the victim beyond their predicament into positive action
and thinking. Ms. Huffer illustrates the abuses with the cases of seven victims of Legal Abuse
Syndrome, detailing their pain and suffering and the various stages of the therapy they have
undergone for recovery of their emotional health.

Ms. Huffer found that many victims of the legal system suffer from Post-Traumatic Stress
Disorder. She identified this as Legal Abuse Syndrome, brought on by the abusive and
protracted litigation, prevalent in our courts. According to Ms. Huffer you may be suffering
from Legal Abuse Syndrome if you feel deeply disillusioned and oppressed as a result of your
experience with the legal system; if you feel you were frustrated in obtaining justice; if you feel
your dreams and plans for your life were torn from you by a system that is supposedly there
to protect your rights and property; if you fear that the system will defeat you at every turn and
there is nothing you can do about it, and if you feel that you have been victimized several
times over, by the perpetrators, by lawyers, judges, bailiffs and other court personnel. As a
consequence you may suffer from tension and anxiety, recurring nightmares you may feel
emotionally an physically exhausted, numb, disconnected and vulnerable.

A central point of Ms. Huffer’s book is that the victims in America are not only assaulted by
crime, but also by the abuses of power and authority administered by tax dollars intended to
provide due process of law for the protection of civil rights. Ms. Huffer observes that not only
does the justice system move slowly, but delays are used as strategy by attorneys to weaken
their opposition economically and emotionally and to provide hefty fees for attorneys. Ms.
Huffer notes that when courts fail as a consequence of officially sanctioned wrongdoing it
leaves victims and vigilantes in its trail. The rage of these victims accumulates when they are
not provided a satisfying place to turn to. She concludes that the enormous betrayals and
inefficiencies that make up bureaucratic post-crime experiences are literally attacking the
emotional health of the nation. She recommends that the community of American citizens
adopt the following:

1. Oppression and abuse of power are injurious to the health of the victims. Domination by abusers of bureaucratic power threatens the very functionality of the public and private sections in our country.
2. Victims are not self-interested, narcissistic folks who sit around and wallow in their losses. They are courageous individuals who face their pain and care to right the wrongs. They participate in the collision of evil and good as it is classically intended in order to achieve balance. Denial is popular, but far less responsible.
3. Trust is a social staple that must be protected just as earth and water must be protected to provide for survival. When trust is damaged the community suffers and society as a whole will eventually falter and collapse (Bok). Veterans of crime must exude zero tolerance for lying in courtrooms, lying in political campaigns, lying to cover-up, and deceptions through omission and non-performance by public officials and public servants.

A new cause of action that is a new basis for lawsuits is being accepted by the courts allowing
cases to proceed on claims of "organic brain injury" caused by traumatic stress. An article
appeared on this on November 11th of 2002, in the National Law Journal.

Harassment related emotional distress is being recognized in the work field upon which
lawyers are now suing. To read the article by Joni Johnston, Psy.D. There is no reason why
the same facts and reasoning should not apply to the harassment inflicted on victims in a
lawsuit.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Preparing for Divorce

As of April 2013, almost all legal aid funding for family law cases came to an end, with the majority of families unable to afford any legal representation.

The courts are already faced with unrepresented baffled litigants acting in person, which, in itself, causes delays and expense to the judicial system because the court has to spend time explaining legal procedures to litigants acting in person.

Lawyers who know the law can offer specific advice and recommend legal actions that are tailor-made and appropriate for each individual case, however to help the reader.

A divorce is never an easy process to go through. With emotions high, finances at stake and, if children are involved, their custody up in the air, it is understandable that finding agreeable ground is not always an easy process.

If you have or are contemplating filing for a divorce from your partner, it is always good to know what to expect throughout the procedure and what things you may be able to prepare for. Whilst there is no guarantee of a smooth and problem-free process, it is important to understand the consequences and consider every possibility before acquiring a divorce.

Whilst there is no such thing as a ‘simple divorce’, acquiring the services of a good lawyer will ensure that your divorce is carried out fairly and in consensus with all parties involved. Ensure you acquire the services of an established divorce specialist lawyer, as their experience and expertise will help to guide and advise you throughout the process.

What many people are unsure of is what a divorce will actually involve. Amid tales of costly, argumentative and outrageous disagreements, the process itself is far less intimidating and constructive results can be achieved responsively.

What many people want is a quick and resolved resolution, you might not be aware that there are different ways to get divorced.

Mediation and Collaborative Family Law both aim to give the divorcing couple more control and more of a say in what happens. They’re not soft options, but there’s been lots of positive feedback about the fact that these approaches can be less damaging emotionally (and sometimes less expensive) than the traditional route to divorce.

Here is a basic guide on what you can do to help prepare for the divorce process.

1 Gather Financial Information:

If you are able to organise your finances before the divorce is underway, you can begin to gain control over the financial expectancy of the divorce. Obtaining a divorce is not cheap and the longer the procedure goes on, the more legal costs can begin to add up.

Outline any debts you owe and make sure you have invoices and receipts of purchases and bills as well any account information. It may be worth closing or freezing any joint accounts, in order to prevent your spouse from using the account as well as running up charges that you may be held responsible for. This will protect both parties involved.

2 Don’t Move Out:

This may go through your thoughts and unless there is a form of abuse, by moving out you could inadvertently affect the outcome of your divorce.

By moving out, you could affect the interest that you have in property. It is important to remain strong and should you have no alternative but to move out, continue to pay a portion of your mortgage payment and document your contributions. This can affect a decision on property distribution as well as child custody.

3 Children Are Always The First Priority:

It is important to remember this at every stage of your divorce. Remain on your best behaviour as a divorce can often mean being put under a microscope. Ensure you do nothing to affect the outcome and don’t provide your spouse with ammunition.

A divorce can be a stressful process for all involved, and none so more so than for the children involved. Consider their needs at all times and ensure that their requirements are met. Don’t stop being a parent!

This article was contributed by Camilla Choudhury – Khawaja.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Wills, Probate, Estates & Dispute Resolution

by Russell Evans of Resolve UK

Claims in relation to the estate of a mother, father, brother, sister, spouse or partner are often highly emotive. There is often a sense of injustice, suspicion and mistrust.

Sometimes there are deep divisions, historic rivalries and even jealousies with multiple competing family members and even multiple competing families.

We no longer live in a world of the nuclear family where all members of the family live under the same roof or in the same locality. Families are frequently dispersed. We now live in a world of multiple partners, high divorce rates and unmarried couples. Indeed there may be multiple families and offspring.

Estates are no longer small. Rather than a world characterised by predominantly tenanted residence we now live in a world of property ownership at a time which has witnessed surging property prices which have pushed up the value of even a modest terraced house. Bequests are no longer trinkets and mementos. Often there is an estate of some size. Indeed there may seem a pot of gold worth fighting over.

One family member may have been favoured. Some family members may feel let down or left out. Others may feel that they have shouldered the burden. Indeed because of our fragmented society the burden of caring for an elderly parent may frequently fall on one family member alone.

It is within this historic emotionally charged landscape that disputes arise. There may be a feeling of injustice because of the terms of a will or because of significant lifetime gifts. Maybe promises have been made! Often there is unfulfilled expectation.

Typical wills, probate and estate claims include:

• Claims for financial dependency under the Inheritance Act
• Claims challenging the will by virtue of undue influence
• Claims challenging the will by reason of incapacity or lack of knowledge
• Claims for an extra share of the estate by reason of proprietary estoppel
• Claims for an extra share of the estate by reason of constructive trusts
• Claims arising out of inactivity and non distribution of the estate

The basic requirements for a will are set out under the Wills Act 1837 including it’s written form, need for signature and attestation. In addition the testator must understand the nature and affect of the will. As Lord Cockburn said in Banks v Goodfellow (1870) LR 5 QB 565 :

‘It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’

Claims attacking the validity of a will including claims based on undue influence or lack of testamentary capacity and understanding can lead to the revocation of a will, a prior will taking precedence or even intestacy. The recent case of Hawes v Burgess (2013) EWCA Civ 74 concerned a testator with dementia and the case of Hubbard v Martin (2011) EWHC 2750 an estate passing to someone described as a cleaner.

Undue influence requires some form of coercion. What amounts to actual undue influence is a question of fact. As Sir James Hannon said in Wingrove v Wingrove(1885) LR 11 PD 81:

‘The coercion may, of course, be of different kinds, it may be in the grossest forms such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence.’

As Viscount Haldane also said in Craig v Lamoureux(1920) AC 349:

‘Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgement … will constitute undue influence.’

Claims under the Inheritance Act are frequently brought by wives, partners, disappointed children and others who have been maintained by the deceased.[i] In order to bring a claim under the Inheritance Act the testator must at the time of death have been domiciled in England and Wales. A claimant must fall within one of several defined categories including spouses and children. A claimant must then demonstrate that no reasonable financial provision has been made for him or her. If so a court will then decide what if any provision should be made. There is a marked difference in approach between claims by spouses and those of adult children.

Claims for an additional asset share by way of constructive trust or proprietary estoppel are usually based on representations, expectation and conduct. Constructive trusts can arise in circumstances where there are direct contributions towards the purchase price of property including mortgage instalments. Proprietary estoppel requires a representation by the testator and detrimental reliance as a consequence of that representation by the claimant.

Recent cases have included Thorner v. Majors (2009) 1 WLR 776 where a farmer promised a young relative that in exchange for working on his land for little or no pay he would inherit the farm in his will. Other successful cases have included claims based on promises where the claimant has moved in with the testator, paid for and effected improvements to property and provided long term care. The case of Bradbury v Taylor (2012) EWCA Civ 1208 even concerned a claim made during both parties lifetime when a testator changed his will contrary to previous promises which had been relied upon. As always actual circumstances and proof are essential. When dealing with proprietary estoppel claims the courts will do no more than is necessary to do equity between the parties.

Contentious probate cases in their multitude of forms are embedded with highly personal, highly emotive disputes. Court cases by their very nature tend to reinforce the conflict focusing as they do on the central dispute fuelling the flames of anger, hurt and frustration. Mediation by contrast focuses on dispute resolution and reconciliation.

Mediation can tread its way through the historic anger, resentment and mistrust and facilitate a dialogue, a reflective review and a calm reasoned discussion in a confidential setting which usually leads to a framework for resolution.

Court cases are littered with emotional turmoil, high costs and trauma. As Mr Justice Briggs observed in the case of Lilleyman v Lilleyman (2012) EWHC 1056 which concerned a wife’s claim against her late husband’s estate:

‘While it may be that a ‘no holds barred’ approach to certain types of litigation is entirely appropriate, it is not in my judgment at all appropriate in the context of claims under the Inheritance Act.’

In failing to negotiate and compromise Mr Justice Briggs noted that ‘Mrs Lilleyman was …engaged in a high risk venture in which she played for high stakes and, in substance, lost.’ Cost consequences of course followed.

The Judge can, as in Lilleyman, order that the costs are substantially paid by one party. The judge can also however order that the costs are paid out of the Estate thereby penalising all parties. The significant costs of litigation can even on occasion consume the entire value of the Estate.

Many judges believe that parties should engage in constructive discussions and seek to resolve their dispute by way of mediation. Indeed this is what Lord Justice Ward said in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

If you are engaged in conflict Mediation could be right for you.

Russell Evans
CEO & Mediator at Resolve UK[ii]

[i] There are relatively short time limits for dependency claims under the Inheritance Act.

[ii] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution and an expert in contentious probates cases.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Avoiding Litigation

The civilized separation of “X” and “Y”

Following is an outline of the circumstances and the process the parties went through.

The marriage had broken down irretrievably and relationships were poor and volatile. There were only two points of agreement: they would separate and reach a formal agreement on the distribution of assets – they would not actually divorce, and they wished to avoid cost of employing Lawyers in order to reach agreement on sharing of assets.

There were no children involved.

Left to their own devices there was no chance that they would agree on anything, so each asked a friend to help the process as a “Mediator” and I was one of these friends. Before the process started I got to know the other Mediator – first decision was to call ourselves “Friends” rather than “Mediators” and we drafted a set of notes outlining the roles we were prepared to play.

These included:

the “Friends” were not entitled, or expected to, express an opinion regarding the details of the Separation of Financial Affairs,

the overriding objective of this arrangement was to ensure an Agreement was reached and the smooth enactment of the Agreement and that is the primary responsibility of the “Friends”,

the “Friends” would work hard not to “take sides”,

they would also establish an appropriate working relationship and be free to discuss relevant issues without feeling obliged to share details of these discussions with X & Y. In the case of dispute the objective of the “Friends” would be to propose a joint resolution.

An organisation called Peaceworks defines Mediation as “voluntary, confidential process where people involved in conflict are helped by a neutral third party (the mediator) to resolve their problems collaboratively. The mediator never takes sides or imposes solutions, but helps the participants reach a solution that they are happy with which is then drawn up into a written agreement”.

And that is pretty much what we did.

There were a lot of financial issues – with assets spread over several countries, various pension schemes, investments etc. As Mediators, we helped create a list of all assets and then promoted discussion on each until agreement was reached. There was a deal of Acrimony and on a couple of occasions: we Mediators threatened to pull out unless the two got themselves under control!

We recorded each element as agreement was reached and produced a final statement of intent, which they both signed. This was then formalised by a Solicitor in a manner which would allow proper distribution at that time and would also stand formally should they eventually divorce. This formal document was signed by both of them.

Once the agreement was formalised we drafted an Action Plan for the distribution of assets with a suggested timetable. As “Friends”, we monitored progress and cajoled when one or other was holding back.

It was not particularly easy but certainly achieved a better and cheaper solution than if Lawyers had been battling it out.

I also found it an interesting and rewarding challenge.

The McKenzie Friend’s enemy?

If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?

Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.

The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER  1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.

Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.

Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.

The difference with Ian Hanger was that as an officer of the court, he had a duty to the court not to mislead, and not to misrepresent the facts. He was regulated by his professional body, albeit not the Courts of England and Wales, but rather, the Australian courts.

A number of cases have recently arisen where McKenzie friends have over-stepped what is expected of them. Indeed, there is a notional understanding of the role of a McKenzie friend, but nothing in stone. Assisting a litigant-in-person can be done in many ways, and the role is not clearly defined.

This blogpost does not seek to question whether a McKenzie friend still has a place in court. The writer believes overwhelmingly that McKenzie friends are a huge help not only to the courts but to the litigant-in-person employing them, and the process generally….PROVIDED THAT THEY ARE LICENSED AND REGULATED AND KNOW WHAT THEY ARE DOING, AND THAT THEIR ASSISTANCE PRESUMES THEY ARE CONVERSANT IN LEGAL PROCEDURE AND PRESENTATION.

Indeed, where legal aid is dwindling, and legal representation cannot be afforded, (and in some occasions, not trusted), and conditional fees are not working or not permitted, someone to assist in court is a big comfort.

There are of course a number of groups who provide assistance as to court preparation such as Help4Lips, Citizens’ Advice Bureau, LawWorks, and the Bar Pro Bono Unit.

There are other groups who will help emotionally and with practical advice, but not legal advice, such as the Personal Support Unit.

Going back to the main question, what duty does a McKenzie friend have to you, the litigant-in-person?

Does the McKenzie friend derive a benefit for money or money’s worth? Is there a written or implied agreement in place which establishes a contract? If yes, the relationship may be contractual. If so, bad or misleading advice could be negligent advice.

What if there is no contract but you rely upon the McKenzie friend as a skilled person with expert advice in the field of legal procedure? There may be a relationship established in Tort which gives rise to negligent advice.

Ok. So you may have a remedy for negligence in cotract or tort, and the McKenzie friend gives you the wrong advice which leads to a claim arising against the McKenzie friend: Not so much a friend anymore…

Is there a distinction between a McKenzie friend who charges a fee, and a McKenzie friend who charges no fee?

There is a growing surge of professional McKenzie friends who charge a fee.

Well, herein lies the problem. McKenzie friends are not regulated. Their duty to the court is not regulated by any professional body. They have no codes of conduct to adhere to. They do not carry any indemnity insurance to cover them for any negligent acts/omissions, or advice. Yet, they can appear to assist litigants-in-person, and at the discretion of the court they can speak on their behalf.

What do you get with a professional McKenzie friend, that you do not get with a solicitor?

It may be cheaper by way of an hourly or fixed rate, but what if things go wrong? A solicitor is regulated by the Solicitors’ Regulation Authority. A solicitor abides by codes of conduct, and has duties to the court as officers of the courts not to mislead or misrepresent a case. Duties of confidentiality to their client.  A solicitor must have indemnity insurance. Costs and estimates must be regularly given and revised. Complaints procedures are ingrained into their terms and conditions. They are liable to you both in contract and in tort. Other regulatory breaches result in discipline, fines, and ultimately being struck off the roll of Solicitors.

A recent publication suggests that litigants in person should be given special treatment to a lawyer in court. That makes perfect sense. The profession of a litigant in person is not usually that of a lawyer. They do not know the rules and regulations and yet they are expected to know how to present an argument, and how to present paperwork.

The writer’s view is that a McKenzie friend, and especially a professional one, should be licensed. They should be regulated. There should be a code of conduct. There should be a separate qualification to obtain, which limits their assistance to procedure and presentation, rather than to provide legal advice. There ought to be a complaints procedure, and a disciplinary body. Only those fit to practice, honest, and of good character should be permitted to hold such a license.

I very much hope that such regulations and better judicial guidance will be forthcoming following the various consultations most notably the Legal Services Consumer Panel Report, Fee-charging McKenzie Friends (April 2014).

Regulation, education, and licenses are needed to ensure a good standard of McKenzie friend. Sociopaths, psychopaths, manipulators and con-artists, seeking to manipulate volatile and vulnerable litigants-in-person in stressful situations, some of which I have had the displeasure to come across when in Court, hiding behind the mask of a McKenzie Friend, need not apply. This should not extend to provision of legal advice. That is a regulated activity and if you wish to give legal advice, and advocate in court, then become a solicitor, a barrister, or a legal executive.

The McKenzie Friend’s enemy is not the court. It is not the litigant-in-person. It should not be a regulatory body, or lawyers on the opposing side. Indeed, the McKenzie friend should have no enemies.  Provided they adopt the appropriate balance to assist both the courts and the litigant-in-person, McKenzie friends should be considered assets and not liabilities. (licensed and regulated ones conforming to a code of conduct and carrying indemnity insurance).

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Duties of a lawyer when acting as an advocate, fraud, and defamation.

A lawyer is broadly speaking in English law, a generic term for a solicitor, a barrister, a legal executive, and a solicitor-advocate, regulated by a governing body with codes of conduct, a certificate to practice in the profession, and carrying sufficient indemnity insurance.

A solicitor and a solicitor-advocate’s conduct is governed by the Code of Conduct of the Solicitors’ Regulation Authority.

A barrister’s conduct is governed by the Code of Conduct of the General Council of the Bar.

Any lawyer who is regulated by the Law Society or the General Council of the Bar, and has a practising certificate and indemnity insurance, can be an advocate.

Barristers and Solicitor-Advocates (if properly accredited by their professional body or permission of the court), have higher rights of audience in the High Courts of Justice in civil courts, and the Crown Courts in criminal courts, to speak.

Litigants-in-person have full higher rights of audience with no qualifications or experience necessarily…

McKenzie friends are people who assist litigants-in-person with their case. Their role and ability to speak and to advocate is beyond the remit of this post.

All lawyers have an overriding duty as officers of the senior courts of England and Wales, to the court.

Section 51(6) and (7) of the Courts and Legal Services Act 1990, put Solicitor-Advocates and Barristers on par in respect of higher rights of audience in the Higher Criminal and Higher Civil Courts of England and Wales.

Sometimes, the duty to a client and the duty to the courts are conflicted.

The obvious example, by way of ethics, is where in criminal courts a defendant pleads not-guilty, but then admits to the lawyer that he/she committed the criminal offence alleged. In those circumstances, the advocate MUST decline to act. That is a clear example of conflicting duties.

What happens when a client asks you to represent them in a case which might be hopeless?

If it is fraud-related, then a practising barrister must not ‘…devise facts which will assist in advancing his lay client’s case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing…any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud…’. [Code of Conduct, para 606]

Lawyers therefore engaged in advocacy, are faced with a conundrum. How do they possibly weigh up what the client wants, as opposed to what the court expects of an advocate representing someone?

Lord Steyn made the following comments in the case of Medcalf v Weatherill and Anor [2002] UKHL 27:

‘This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Lord Bingham in the 2002 case said:

‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would, however, agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’

…and now some information as to allegations of fraud ‘alleged fraud’, ‘suspected fraud’, ‘purported fraud’. The courts will deem any allegation containing the word fraud as defamatory if there is no truth in such allegations. Therefore, having reason to believe, or reasonable grounds, is no longer a defence to such allegations pursuant to the Defamation Act 2013. Unless the allegations are based upon truth, such allegations are likely to be defamatory, and you will find yourself facing damages and costs.

If it isn’t true, do not say it. Do not suggest it, unless it is true, rather than you believe it to be true.

September ‘16

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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What happens when a claimant is in financial difficulties?

This is not an unusual question. This issue arises a lot.

An individual brings a claim in the courts of England and Wales, (known as a claimant, and previously a plaintiff). For a variety of reasons, they cannot continue because they have run out of funds, or have found themselves in financial dire straits.

If you think that this is going to happen, or the claimant has financial issues, a tool in litigation is to apply for security for costs, depending upon the particular circumstances of the financial concerns, pursuant to Part 25.12 of the Civil Procedure Rules 1998 (‘CPR’).

Security for costs are monies that are paid into court to cover part or all of the defendant’s legal costs, in case the claimant is unable if he/she/it loses a case.

What if a claimant is financially impecunious? The courts having regard to all the circumstances may still award a sum for security for costs, but it may be a reduced figure. The reasoning would be that an application for security for costs ought not to be used to scupper a claim from being brought. Access to justice should be for all.

The conditions that have to be satisfied are set out to make an application for security for costs are set out at CPR 25.13. One or more of these conditions needs to be satisfied:

• If the claimant is resident outside of the jurisdiction of England and Wales, but not resident broadly speaking in a country where a reciprocal agreement is not in force with that resident country to enforce judgments.
• If the claimant is a company and there is a reason to believe it will be unable to pay the defendant’s costs if ordered to do so.
• If the claimant has changed his address since the claim was commenced with a view to evading the consequences of litigation.
• If the claimant failed to give an address in the claim form, or gave an incorrect address in that form.
• If the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.

A decision to make an order for security for costs is discretionary, having regard to all the circumstances.

If an individual is adjudged bankrupt (i.e. when a bankruptcy order is made), he/she no longer has any status to continue an action in court, because that right vests in their trustee-in-bankruptcy. See Section 306 Insolvency Act 1986.

The main case in point is that of Heath v Tang (1993) 3 All ER 694. If before a person is made bankrupt, he becomes bankrupt, the case is stayed until and unless the trustee in bankruptcy assigns the case to the bankrupt or agrees to be substituted.

What is the claimant is a company and the company goes into liquidation? A company is a separate legal entity to an individual and is governed by different rules to an individual.

If a company is placed into liquidation, then section 130(2) Insolvency Act 1986 applies. No action or proceedings can be proceeded with or commenced against the company or LLP or its property, except by leave of the court and subject to such terms and the court may impose.

What if a company is placed into administration? In such circumstances a moratorium is created and Schedule B1, paragraph 43 of the Insolvency Act 1986 applies.

Proceedings cannot progress without agreement by the administrator and leave of the court to do so. Proceedings are stayed and no one can bring a claim against the company, and the company, in turn, cannot bring a claim.

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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When You Think You Are Right and Everyone Else Is Wrong?

This blogpost will no doubt upset those who always think they are right, or know better. Worse still, those who have a certain outlook on life and an understanding of justice and truth, may find that their perception of things according to them, is not the same perception of matters considered according to a court of law.

It is aimed not only at litigants’ in person, but for those engaged and embroiled in litigation in the Courts of England and Wales.

According to Nobel prize winner Daniel Kahneman in his outstanding book, ‘Thinking, Fast and Slow’, which I highly commend you to read:

“Social scientists in the 1970s broadly accepted two ideas about human nature. First, people are generally rational, and their thinking is normally sound. Second, emotions such as fear, affection, and hatred explain most of the occasions on which people depart from rationality.”

— Kahneman D, 2011, p8

Amos Twersky posed the question:

“Are people good intuitive statisticians?”

— Kahneman D, 2011, p5

What does it matter to you , because you are right and your sense of justice is right. Right?

‘An individual has been described by a neighbour (sic) as follows: ‘Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail’.

Is Steve more likely to be a librarian or a farmer?’.

We all have stereotypes and biases. Libraries are supposedly quiet well-ordered places. The books need to be referenced in a certain way which requires a good idea for methodical detail. One would think therefore, that the description of Steve resembles that of a librarian. This is a predictable bias which does not take into account the number of farmers to librarians in a given area.

Now put into place statistical considerations. Steve lives in the USA. There are more than 20 male farmers for each male librarian in the United States. There are therefore many more farmers than there are librarians, and Steve is likely on a balance of probabilities applying statistical analysis to be a meek and tidy farmer, than he is to be a librarian.

Applying the views of cognitive and social psychologists, intuitive thought is dominant in the way that we all think.

“We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight.”

— Kahneman D,2011, p13

Now a question for you. Off the top of your head, what is 17 x 24?

Ok, you don’t know the precise figure. You know that the figure is not going to be a five or six digit answer. 10x 10 = 100. Easy! 17 x 24 = ???, but it will not be ?????, or ??, or ? ?????.

You know that by writing down and multiplying the two figures, mathematical steps were involved. Steps which you learnt when at school. This was an example of slow thinking.

It was not just your mind at work:

“The computation was not only an event in your mind; your body was also involved. Your muscles tensed up, your blood pressure rose, and your heart rate increased. Someone looking closely at your eyes while you tackled this problem would have seen your pupils dilate. Your pupils contracted back to normal size as soon as you ended your work – when you found the answer, or when you gave up.”

— Kahneman D, 2011, p20

Keith Stanovich and Richard West, psychologists, proposed two systems in the mind namely system 1 and system 2.

System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.

System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of system 2 are often associated with the subjective experience of agency, choice, and concentration.

We perceive ourselves to be system 2. ‘the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do’. (Kahneman D, 2011, p21)

System 1 is however, the dominant player in our thought process. That is, ‘the effortlessly originating impressions and feelings that are the main sources of the explicit beliefs and deliberate choices of system 2’. (Kahneman D, 2011, p21).

Automatic activities attributed to system 1 include:

‘Detect that one object is more distant than another; orient to the source of a sudden sound; complete the phrase ‘bread and…’; make a ‘disgust face’ when shown a horrible picture; detect hostility in a voice; answer 2+2=?; read words on large billboards; drive a car on an empty road find a strong move in chess; understand simple sentences; recognise that a meek and tidy soul with a passion for detail resembles an occupational sterotype’.

According to Kahneman, we are built to perceive the world around us, recognise objects, avoid losses, and fear what might be harmful to us.

Now apply system 1 to a situation in which you are in a state of the unknown. You do not know the outcome. There is considerable financial risk, and risk to reputation. The loss could be your reputation, your pride, your view of how people see you, money, your family, your home. The list is endless. You wind yourself up either to fight or to flee. Do you attack? Do you run away? Do you ignore what is going on around you in the hope that things said and demanded of you might simply go away and fall into oblivion.

Without implementation of system 2, you make choices and decisions under pressure which you may not have done, had you thought a bit more deeply and objectively about the dispute you are involved in.

2+2 = 4.

Under pressure, avoiding losses? You have a piece of evidence we will call 2. You have another piece of evidence which you perceive to be, say 2.3, and you come to the answer as 4.3 because that is your perception of things, and that is the weight you have placed on evidence to give you a figure.

You may say that the answer 4.3 is close enough to 4, and the Judge after all, is human, and will side with you because you are the disadvantaged party without funds, without resources. Justice will prevail. Even though the answer is 4, 4.3 will be good enough for you to win. Really?

…and this is the conundrum I face with people who think they are right, and that everyone else is wrong. It sort of adds up, but when checked against other factors with deeper more objective thinking, you realise that 2+2=4, and 2+2.3=4.3 and that what you needed to demonstrate your case is 2+2, but that is not what you have. 4, is not 4.3 is it?

In case I have lost anyone Kahneman gives the example of a bat and a ball together costing $1.10. If the bat costs $1 more than the ball, how much does the ball cost? The immediate answer is $0.10. That is representative of system 1. Do the maths. Go through the logic of the answer. If the total cost is $1.10, and there has to be one whole $ more, the ball must cost…$0.05.

There will be people who read this and say I have the figures wrong. There will be others who will never understand why it is. Re-check the figures.

System 2 requires attention and focus, rather than an intuitive feeling, an automatic system 1 thinking process.

Examples of system 2 include monitoring the appropriateness of your behaviour in a social situation, comparing overall values of two washing machines, and checking the validity of a complex logical argument.

The first thing that pops into your head, as to how you feel about something, and what should be done, with a tempering of the heat of an argument, and a deeper clearer thinking of the situation, may give you a different result.

There is good reason to consult someone independent and objective to your case in the hope that they apply system 2. That is not always the case however.

Kahneman asserts that since system 1 operates automatically and cannot be turned off voluntarily, errors of intuitive thought are often difficult to prevent. 

“Biases cannot always be avoided, because system 2 may have no clue to the error.”

— Kahneman D, 2011, p28

We have all seen (I hope), the Invisible Gorilla, whereby a group of people stand in line passing a ball from oneto the other, and you are asked to count the number of times the ball passes, whilst someone in a gorilla suit jumps in and out of the crowd and waves his/her arms. Surprisingly, many if not most people miss sight of the gorilla. The gorilla becomes invisible.

Sometimes a litigant in person becomes obsessed with a certain ruling, or a certain observation of something, and completely misses the proverbial elephant in the room, or in the example cited above, the gorilla.

A good litigant will engage system 2. They will know not to rely or engage upon their initial thoughts generated by system 1, but instead to ‘sleep on it’, and to slowly and logically think things through.

I very much hope that I have given some food for thought. When you make decisions under pressure, or under extreme emotion, with a prospect of significant potential loss, mistakes can be made and it is good not to follow your heart and act intuitively, but to employ other modes of thinking to see the argument from different angles and in different ways, to re-check what you originally thought.

By doing so, your perception of right, might just be wrong….

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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