** Save The Date ** Financial Remedies Seminar – Tuesday 5th November 2019 – Exeter

Members of our Family Finance Team are delighted to announce we will be running an informative and interactive full day seminar on Financial Remedies. Topics will include:-

Pensions on Divorce

Matrimonial and Non-matrimonial Property

When things go wrong

Case Law Update

With guest speaker Dale Simpson of Thomas Westcott who will talk about Capital Gains Tax, Income Tax, SDLT and IHT.

Further information will be available shortly but make sure the date is in your diary!!

 

We are Recruiting!!

With our recent celebrations of Part-Time Judicial appointments we are recruiting!!

We offer a progressive attitude, friendly and efficient clerking team. We promote a positive work life balance in the beautiful South West and promote wellbeing which is recognised by being awarded a Wellbeing Certificate of Recognition by the Bar Council.

Chambers is particularly keen to hear from applicants with links to the West Country and a proven track records in our key areas. Recognised as a Leading Set in the Legal 500 with 45 members, we are open to applications for full or associate membership from those who already have a base in the South West, who are looking to relocate or are wishing to add a South West element to an existing practice.

All applications will be treated in the strictest confidence and should be sent by email to James Basden, Senior Clerk james@magdalenchambers.co.uk

Elizabeth Willsteed appointed as Family Recorder

Chambers are delighted to announce Elizabeth is one of the 159 Recorders appointed by The Queen on the advice of the Lord Chancellor, The Right Honourable Robert Buckland QC MP, and the Lord Chief Justice of England and Wales, The Right Honourable The Lord Burnett of Maldon.

The appointments will take effect from 16 September 2019 and Elizabeth is assigned to the Midland Circuit. Elizabeth will continue to practice from chambers and accept instructions in her specialist areas.

Recent Amendments to Practice Direction 28A and the Costs Consequences of Open Offers to Settle in Financial Remedy Proceedings.

Recent amendments to Family Procedure Rules 2010 Practice Direction 28A (PD28A) have helped clarify the Court’s approach to costs in financial remedy proceedings where one party has failed to engage reasonably in negotiations.

The relevant parts of Rule 28.3 have not changed, it is still the case that:
• The general rule in financial remedy proceedings is that the Court will not make an order for one party to pay the costs of another party (r28.3(5))
• The Court may make a costs order where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (r28.3(6))
• In deciding what order (if any) to make in respect of costs the court must have regard to the list of criteria in r28.3(7) including any open offers to settle.

Previously PD28A did not offer any further assistance to the Judge to decide what weight to give to the fact that open offers had or had not been made when assessing the ‘conduct’ of a party for the purposes of r28.3(6).

The Practice Direction has been amended as of 27th May 2019 to give greater guidance. It now states at para 4.4 that when considering a party’s litigation conduct:
“The Court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the Court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the Court. Where an order for costs is made at an interim stage the Court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.”

This amendment stops a long way short of the civil procedure style costs consequences where a failure to ‘beat’ an offer made by the other party will frequently mean paying a proportion of the other party’s costs. However it does emphasise that where a party fails to make reasonable open offers to settle they will be at risk of a costs order against them. There is specific encouragement to ensure that ‘needs’ cases are conducted reasonably and proportionately. The steer from the Practice Direction is clear, where limited resources are available to house the parties etc these resources should not be eaten up in legal costs caused by the unreasonable litigation stance of one party and unreasonable litigants even in ‘needs’ cases are at risk of costs orders.

It remains to be seen how the Court will approach such matters but this amendment makes it much clearer to parties that a failure to negotiate reasonably opens them up to adverse costs consequences.

The Family Procedure Rule Committee has also opened up consultation on the question of the treatment of Calderbank (without prejudice save as to costs) offers when determining issues relating to costs. The consultation ends on 31st October 2019 and can be found at:

https://consult.justice.gov.uk/digital-communications/treatment-of-calderbank-offers-consultation/

Court of Appeal Gives Judgment in Livewest v Bamber [2019] EWCA Civ 1174

The Court of Appeal has handed down judgment in Livewest v Bamber [2019] EWCA Civ 1174 – a case concerned with whether or not 6 months notice is required to end a fixed term tenancy by the use of a break clause.

In February 2017 Miss Bamber was granted a fixed term assured shorthold tenancy for 7 years of residential premises. That tenancy contained a break clause that Livewest were entitled under the terms of the tenancy to exercise at any time during the starter period, which was an initial period of 12 months capable of extension for a further 6 months (giving a total potential starter period of 18 months).

During the starter period Livewest exercised the break clause due to allegations of anti social behaviour and served a two month notice that complied with section 21(1) of the Housing Act 1988 and the conditions for the exercise of the break clause in the tenancy.

The issue on this appeal was whether or not sections 21(1A) and 21(1B) of the Housing Act 1988, which were introduced by the Localism Act 2011, meant that a six month notice had to be served. Section 21(1A) of the Housing Act 1988 states that section 21(1B) of the Housing Act 1988 applies to an assured shorthold tenancy if “it is a fixed term tenancy for a term certain of not less than two years” and “the landlord is a private registered provider of social housing.” The argument of Miss Bamber was that these conditions were both fulfilled and therefore the effect of section 21(1B) of the Housing Act 1988 was that a six month notice was required.

In the High Court ([2018] EWHC 2454) Miss Bamber’s argument was rejected on the basis that at the time the court came to consider the case the tenancy was no longer a fixed term tenancy for a term certain of not less than two years and therefore the first condition in section 21(1A) of the Housing Act 1988 was not satisfied. The Court of Appeal (at paragraph 42) agree that this analysis cannot be correct as this would be to render the provisions of no effect – by the time the court comes to consider a tenancy in any case it cannot still be a fixed term tenancy. However, the Court of Appeal took the view that a purposive and restrictive approach should be taken towards the word “expiry” in section 21(1B) of the Housing Act 1988 with the effect that this should be read as meaning expiry by the effluxion of time only in this context. This means that the requirement to serve a six month notice only applies where the tenancy in question is being brought to an end by the effluxion of time and therefore does not apply where a break clause is being exercised.

An additional issue that is briefly mentioned in this appeal is whether or not, in cases where section 21(1B) of the Housing Act 1988 does apply, the 6 month notice must be served before or at the end of the fixed term tenancy in order to have effect. Whilst Patten LJ offered a provisional obiter view on this all three members of the Court of Appeal have left this issue to be decided in a future case where the point is of direct application.

A copy of the full judgment can be found here:

EWCA/Civ/2019/1174

Miss Bamber was represented throughout by Russell James of Magdalen Chambers and Cathy Morley of Shelter (Plymouth).

Chambers Annual Summer Party

Members and Clerks were very glad to welcome guests to enjoy an evening of Fizz and fun at the Royal Albert Memorial Museum to celebrate the summer together with this years achievements, the judicial appointments but mostly to thank Christopher Naish for his exceptional leadership as he steps down as Head of Chambers. A good time was had by all!!

Nigel Moore and Rupert Chapman take over as Joint Heads of Magdalen Chambers

 

 

 

 

 

 

 

 

 

The members of Magdalen Chambers are delighted to welcome Nigel Moore and Rupert Chapman as the new Joint Heads of chambers with effect 1st June 2019.

Christopher Naish was Head of Chambers at Southernhay Chambers from 2005 and then Joint Head of Chambers with Michael Berkley at Magdalen Chambers following the successful merger with Rougemont Chambers in 2013. Christopher announced he was stepping down as Head following the appointment of Michael Berkley to the Circuit Bench in 2018.

Members of Chambers owe a debt of immense gratitude to both for their hard work and dedication over the years and for providing an excellent foundation for challenges and opportunities in the future.

As Head of the Employment Team, Nigel, called in 1978 offers a wealth of experience and expertise having practiced for over 20 years as a solicitor specialising in employment law in one of Devon and Cornwall’s largest firms of solicitors before joining chambers in September 2011.

Rupert, called in 2000 also joined chambers in 2011 having previously practiced from 1 Garden Court Chambers since pupillage.  He has led the Family Team with enthusiasm and commitment and will bring valuable leadership skills to his new role.

Chambers features consistently as a Leading Set in both the Legal 500 and Chambers & Partners and both Nigel and Rupert are amongst those included in these rankings.

Magdalen Chambers are also delighted to congratulate members who have achieved Full and Part-Time Judicial Appointments this year.

Magdalen Chambers would like to invite applications to join our busy family and civil teams. Applications will be treated in the strictest confidence and should be sent for to our Senior Clerk James Basden james@magdalenchambers.co.uk