Search Results for: bankruptcy

Bankruptcy and Ancillary Relief

[update 8/11/07 – now also see Family Lore post which notifies us of a further bankruptcy authority]

3 recent cases touch upon the implications of bankruptcy of a former spouse upon orders made in ancillary relief proceedings.

In Hill & Bangham v Haines [2007] EWHC 1012 (Ch) HHJ Pelling (sitting as a HCJ) held that a property transfer order made in ancillary proceedings was potentially susceptible to an attack by the trustee in bankruptcy of the transferor as a transfer at an undervalue. This was so whether the order was made by consent or after a contested hearing. S339 Insolvency Act 1986 means that a trustee can apply to set aside a transaction whereby one spouse transfers his interest in matrimonial property to the other spouse in the absence of adequate consideration. The dismissal of the Wife’s other claims could not amount to the necessary consideration since an application for ancillary relief was not a cause of action and could not be resolved by binding contract (see Xydhias [1999] 2 All ER 386). Continue Reading…

Cos we’re special, like

I have been VERY disgruntled at an edict from the diocese telling me that I have to complete an online safeguarding course in order to continue bellringing at my local church. This was objectionable for a number of reasons, not least that I am giving up my time for free and have been doing so on and off for almost 35 years without anyone to date seeing the need for me to do this, and in no small part because there are almost never fewer than six people in a 20ft square bell chamber, so the opportunity for abuse is (one might think) quite limited. Having been talked down from staging an indignant one woman protest at this outrage and from my early suggestion that I would invoice the C of E at my hourly rate, I was even more disgruntled when I had to click through page upon page of spiritual / religious bumpf to get to the somewhat basic safeguarding training (not all bellringers DO religion, a fact that the church sometimes forgets), which was complete with pop up graphic photos of people with facial injuries (I’m pretty sure I could have identified them as vulnerable without the learning in this course), and other potentially triggering imagery. Also, I got most of the answers wrong (Because the questions were stupid, natch).

Anyway, I’m over that. I’ve done it. I am now A Safe and Aware Person and my vulnerability antenna are primed. I’ve said “elf n safety gone maaad” three times, clicked my heels and am back to normality, and a real world where the greatest risk in a bell tower is the risk of catching an arm or foot in a rope and finding yourself hurtling towards the ceiling with all the force a 2 ton bell can muster.

Anyway…The reason it all seemed faintly ridiculous and produced what I can now see as a good impression of an outraged pompous barrister, was that I work day in day out with and for vulnerable children and adults and I’ve NEVER had to undergo safeguarding training or any CRB/DBS checks. Wait, what?

Yes. Odd isn’t it? Barristers do not have to undergo a DBS check in order to become a barrister, let alone refresh those checks from time to time in order to continue. On reflection, this is a whole lot more worthy of concern than my having to undergo the grave indignity of doing an online course.

When I was called to the bar 15 years ago you had to declare you hadn’t been in clink, get someone to certify you were a fit and proper person (usually a university lecturer – what the hey would THEY know?!), and bingo you could join an Inn of Court (the gateway to the bar). Back then it was CRB checks as DBS hadn’t been invented, but it doesn’t matter what they were called because you didn’t need one. No doubt this will at one time have been the way of most professions, glued together with trust and integrity. But that certainly isn’t the case now. According to Mind vets, medics, accountants all require them (although then I’m not sure how much we can rely on that, because they also say that barristers require DBS checks, and whilst I’ve not checked every profession I have double checked the current entry rules for my own).

I thought when this particular bee first entered my bonnet that things MUST have changed since I was called, but it turns out that the rules for becoming a barrister haven’t really changed significantly since I slipped in under the wire all those years ago. There is still a fit and proper person test, it is still certified by a declaration from the student and from some person of your choosing rather than by independent agency check. There are certain matters which mean the applicant has to be referred to a tribunal. Those are :

the applicant has been convicted of a Criminal offence (or is the subject of pending Criminal Proceedings; or

the applicant has been convicted of a disciplinary offence by a professional or regulatory body (or is the subject of pending proceedings for such an offence); or

the applicant has been found guilty of an academic offence by a higher education institution (and has not successfully appealed against that finding); or

the applicant has been the subject of a Bankruptcy Order director’s disqualification order or has entered into an individual voluntary arrangement with creditors; or

the applicant has previously been refused admission to or expelled from an Inn; or

there is any other circumstance which in the opinion of the Inn calls into question the applicant’s fitness to become a practising barrister

(see the BSB Handbook Part 4). But of course DBS checks show up a whole lot more than just convictions or matters charged. They would go far wider.

The more I think about it the more I think it really is quite odd that I have could have all sorts of skeletons in my DBS closet but nobody is bothered to check (I don’t, but you know…). And just as odd that those who are entering the profession now still aren’t being checked.

Solicitors do have to provide a DBS check before entering the profession. They of course handle client funds and work more directly with the public, but it’s hardly as if we barristers never come into contact with the great unwashed, and of course public access work means we are having much more unstructured contact with the public outside of the context of a hearing in a public building.

Annoyingly, a self employed person can’t get their own DBS check, so we’re sort of stuck with this situation unless our regulators change the rules.

So, whilst I still think a mandatory safeguarding course in order to permit me to stand in a small room with 7 other people and pull ropes for half an hour twice a week is a bit of tick box nonsense that won’t enhance anybody’s safety one iota, I DO think that it would be right and proper for people like me to be checked out just to make sure we aren’t secret axe murderers in between our odd and seemingly innocuous hobbies (I mean, have you read The Nine Tailors?). That to me would be a bit of safeguarding that even I couldn’t quibble with.

I’ve said before that the bar do need to stop thinking about themselves as somehow special – the trust of the public no longer derives from the fact that we are a “profession”. It must be demonstrated.

Book Review : Cohabitation Claims – Law, Practice & Procedure, John Wilson QC

This is a book review written by Zoë Saunders, barrister at St John’s Chambers. Zoë has extensive experience of cohabitation disputes involving ToLATA and Applications under Schedule 1 of the Children Act, as well as financial remedy cases involving multiple properties, trusts of land, complex pensions and insolvency. Find Zoë on twitter : @zasaunders

Cohabitation Claims – Law, Practice and Procedure (2nd edition)
By John Wilson QC 1 Hare Court

A good book dealing with cohabitation disputes has been a real gap in the market, in particular as more and more couples are choosing to live together without getting married, often having children and pooling resources without any legal advice as to the potential consequences of what they are doing.

I must admit I have been holding off on reviewing this book as I had been waiting for something bad to say about it. The most that I can manage is that when a particularly complex issue about a Quistclose* trust arose in one of my cases I had to ditch this book in favour of Lewin on Trusts; which is hardly fair criticism!

This is a really useful, thorough guide to pretty much any issue that would arise in 90% of cohabitation disputes. On an initial skim read the level of detail can seem intimidating, but it is actually written in a very straightforward way and makes these kind of disputes as accessible as they can be made in one simple book.

The book covers many varied aspects of cohabitation disputes, not just the usual suspects like establishing the existence of beneficial interests but other side-issues which often arise like bankruptcy, sham trusts and illegality, Schedule 1 of the Children Act 1989, etc.

It also has helpful chapters on the Civil Procedure Rules, tips on issuing and defending proceedings, costs and Part 36 offers, precedents and even advice on dealing with the client (always handy!).

If really pushed to find something to criticise I would only be able to point to the fact that as the case-law and procedure under the CPR is subject to seemingly constant revision, particularly at the moment, a book like this becomes out of date as soon as it is published and a loose leaf format would go a long way to ensuring that the pit-traps of the CPR are easier to avoid. That said, this book provides a really good starting point to all those potential problems.

It is clearly written with lawyers (maybe even family lawyers) in mind and I think it will come in really handy for any solicitor (or barrister) who is finding themselves increasingly asked to stray into the unfamiliar territory of civil litigation in cohabitation disputes, or finds themselves unexpectedly confronted with an intervenor dispute in a financial remedy case.

*If you don’t already know, you probably don’t want to…

You can order John Wilson’s book online : Order here