Monthly Archives: October 2017

Courts Head sets out next steps in digitisation of family justice

The Court and Tribunal Service (HMCTS) is now entering into ‘phase 2′ of its digital transformation process.While many lawyers remain cynical about any government-funded IT project within the justice system, and while there are legitimate concerns still to be addressed about access to justice, there is no doubt that Susan Acland-Hood is driving a strong reform agenda designed to bring the court system into the 21st century.’Phase 2’ is expected to last 18 months, meaning that by early 2019 we can expect to see uncontested divorces conducted entirely online and, more ambitiously, it is being suggested that uncontested financial settlements could be resolved online as well.A considerable amount of effort also seems to be aimed at ‘public law’ children cases (considering whether to take children into care) with developments that could eventually be rolled out elsewhere, including a digital document management system that might one day see all courts go entirely paper-free.We’ll be keeping an eye on this one with interest…

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Lies, Damned Lies and Divorce

You may have seen many commentators, the BBC included, reporting this week that divorces were up in 2016 by 5.8% – “the biggest year-on-year rise since 1985”!There is no real news here at all.  Divorces in 2015 were at their lowest since 1971 and were an unexpected 9% drop on 2014 – the 2016 figure was just a reversion to the mean. The reality is that divorce numbers have been dropping pretty steadily from a high of 165,000 in 1993 to 107,000 in 2016.Also, the claim that “the number of divorces last year in England and Wales was the highest since 2009” is simply wrong. The data shows the number of divorces was as follows:2016 – 106,9592015 – 101,0552014 – 111,1692013 – 114.7202012 – 118,1402011 – 117, 5582010 – 119,5892009 – 113,949So 2016 had the highest number of divorces since, er, 2014. Oh.It seems that divorce, as with so many things in life, is plagued not only by lies and damned lies but by statistics too.

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Equal pay and construction

Interesting article from my colleague and head of Employment and Dispute Resolution in Construction News last week….  

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Mental health problems force thousands out of work

A recent report commissioned by the government has estimated that approximately 300,000 people lose their jobs every year because of mental health problems.The authors of the report found that employees with mental health problems were 50% more likely to lose their job compared to those with physical disabilities.  But of course the relevant legislation, the Equality Act 2010, treats mental and physical conditions the same; either can amount to a disability if it is sufficiently serious.  Disabled employees have extra protection under the law.  Not only must employers not harass or directly discriminate against them; they also have a duty to make reasonable adjustments to accommodate them.  Reasonable adjustments are not just limited to physical features like wheelchairs ramps.  They can include:• Additional training and supervision• Extra sick leave• Flexible hours or working from home• Changing some of the employee’s duties or allocating them a different roleBut employers can only make reasonable adjustments if they are aware of the need, so this duty only kicks in when an employer knows about the disability, or if they could reasonably be expected to have known.  So employers need to be alert to any signs from their employees indicating that they may have a long-term health problem.  In particular, they should look for sick notes that refer to “stress”, which is often a euphemism for conditions like depression.  Employees need to talk about their mental health problems, and the support they need, with their employers.  This is obviously easier said than done, with many employees lacking confidence that their employers will be sympathetic or helpful.  But they should understand that the law on disability discrimination is on their side.   

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Scots decision on s110(2)(b) Construction Act

The Scottish Courts address the hitherto mystery as to what actually is meant by “the basis on which” in respect to a payment notice.  Apparently it’s good news for payees…  Helpful to all if English Cts followed suit (a little certainty in this field would also assist payers no end)

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Consultation on changes to Construction Act

It will be interesting to see the industry’s response to this consultation review.  I have my own views which I will be sharing via the online survey…

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EU regulator to review fund fees

ESMA is taking another look at closet tracker funds as part of its review of fund management fees.

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Register Now to Reclaim Employment Tribunal Fees

The Employment Tribunal used to charge claimants a fee for issuing their claim and before the final hearing of their case. Between July 2013 and July 2017, thousands of claimants had to pay up to £1,200 to pursue their cases. That all changed earlier this year when the Supreme Court decided that the fee regime was unlawful. The government not only had to stop charging fees going forward, it was also obliged to reimburse all fees paid since 2013. With four years’ worth of claimants to refund, this was always going to be a substantial undertaking. Three months after the Supreme Court decision, the government has announced the first phase of its fee refund scheme. An initial selection of 1,000 claimants will be contacted and invited to submit their claims. Everyone else will have to wait until the scheme is fully rolled out, but if you think you will have a claim, then there is a contact address where you can pre-register. 

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FinTech companies struggling to get customer data from banks may now have leverage

Banks that delay in providing customer data are under scrutiny. The suspicion is that they are deliberately hindering companies they see as potential competitors.Customers give their consent to the transfer of data necessary to use the FinTech company’s services. Competition regulators have conduted dawn raids on banks suspected of intentionally holding up the transfer.The raids were reportedly on Polish and Dutch banks, but they were coordinated by the European Commission. Those having difficulty getting data from UK banks can complain to the Commission or to the UK authorities, or they could threaten to do so, to try to speed up the process.

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Retiring family judge uses final speech to slam legal aid cuts

Mr Justice Bodey has used his valedictory speech to highlight the extent to which legal aid cuts made in 2013 have impacted many people’s ability to achieve justice for themselves or the children in the family justice system.Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, legal aid has no longer been available to litigants in matrimonial finance or private children law cases other than in a small number of cases featuring domestic violence.  As a result, many of those most in need of proper support are left to navigate their way through the family justice system without any advice or understanding of what is expected of them.As Bodey J highlights, this has a knock-on effect both on judges and on the chronically underfunded court system, with poorly informed litigants in person clogging up the already rusting wheels of justice.At Collyer Bristow we now circumvent this mess as far as possible by directing our clients into arbitration and private FDRs – essentially BUPA to the court’s NHS.  That’s great for our clients, but it shouldn’t have to be that way, and in some ways it will exacerbate the problem by creating a true two-tier system, with private justice for the well off and a barely functioning system for everyone else.Family lawyers are almost universally rallying around Bodey’s comments. In my view it’s unlikely, however, that the message will get through to those holding the purse strings.

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