The Times - UK (2020-08-06)

the times | Thursday August 6 2020 1GM 53

Alex

Carlile, QC

Lawyers using Zoom to attend court
hearings from their kitchen tables after
their children had not gone to school
for months, and a chancellor offering
to pay a tenner towards dinner would
have seemed like a fantasy a year ago.
Whether the government’s response
to the coronavirus pandemic and the
dire economic fallout could have been
foreseen, however, is a question that
family lawyers have been grappling
with and one for which the courts will
have to determine an answer.
Caroline Holley, a partner at Farrer
& Co, says that it is “inevitable” that
family courts will face a “flood of appli-
cations” from divorced parties seeking
to vary the terms of agreements
reached before the global pandemic.
As businesses go bust and thousands
of people lose their jobs — or see their
property, investments and pensions
tumble in value — financial settle-
ments reached in pre-Covid days may
no longer be affordable, and lawyers are
already fielding many enquiries.
Financial arrangements that follow
a divorce, whether agreed between the
parties or determined by the court, are
recorded in a binding order. Elements
relating to maintenance payments for
children, or a former spouse, can be var-
ied after a change in circumstances.
Changing the parts of an order that
relate to capital — lump-sum payments
or transfer or sale of assets such as
homes — cannot be varied. In limited
circumstances either party can apply to
have the order set aside as part of what
is known as a “Barder” event.
The principles come from a 1987 case
in which a consent order transferred
the husband’s interest in the former
matrimonial home to his wife, who
would look after the two children. Five
weeks after the order was made, and
before the transfer had been put into
effect, the wife killed the children, then
herself, leaving her estate, including the
house, to her mother.
To overturn an order there must be
new events that invalidate the basis or
fundamental assumption on which the
order was made. These must have
occurred within a short time of the
original order being made. Emma Gill,
a partner at Vardags, says that the cir-

cumstances required must be “pretty

serious and unique”.

“While Covid on the face of it abso-

lutely fulfils that criteria, it’s not unique

or individual to one couple — it has

affected couples worldwide,” she says,

and predicts that courts will be “un-

sympathetic” to applications.

The Matrimonial Causes Act 1973,

Gill says, requires the courts to give

involved parties a “clean break” to pro-

vide finality so that they can move on

with certainty to individual financial

futures. Introducing an element of

uncertainty undermines that principle.

In a subsequent case, Myerson v My-

erson in 2009, the husband’s shares

plummeted in value from £2.99 per

share when the order was made to 27.5p

on the date of the Court of Appeal hear-

ing. Appeal judges ruled that the natu-

ral processes of price fluctuation, how-

ever dramatic, do not satisfy the Barder

test. Some lawyers have argued that

any reduction in asset values because of

the virus could not be considered a

Barder event.

However, Holley suggests that “it

may well be possible to argue that

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Robert De Niro says his ability to make payments to Grace Hightower is reduced

Virus splits divorce specialists

the results of the pandemic and, in

particular, the government regulations

which effectively shut down parts of

the economy, went beyond the natural

processes of price fluctuation and

therefore could constitute a Barder

event.

“Could anyone have foreseen entire

sectors of industry being prevented

from trading? It is almost certain that

this is a question the courts will be

required to grapple with,” Holley says.

Brett Frankle, a partner at Withers,

agrees that it may be arguable, but that

success is likely to be limited to a few

orders made just before lockdown.

The economic uncertainty caused by

Covid has led some parties to put the

brakes on making final agreements.

Others, Frankle says, are opting to sort

matters out rather than remain in

limbo. “As this situation becomes the

new normal,” he says, “people realise

there is no silver bullet that will make

things better in six months. They don’t

just need to consider money; it’s about

emotions and wellbeing too.”

Using the courts to resolve financial

disputes on divorce, Gill says, is “not

particularly agile at the best of times”.

With increasing delays resulting from

an influx in applications, Gill predicts

that parties will be more enthusiastic to

opt for alternative dispute resolution —

such as a private financial dispute

resolution with the help of a judge or

arbitration — to achieve a negotiated

settlement.

Across the Pond, Robert De Niro, the

actor, has sought to vary the allowance

that he gives to his estranged wife,

Grace Hightower, claiming that the

pandemic has had a significant effect

on his earnings.

In the UK many separating couples

had hoped that the Divorce, Dissolu-

tion and Separation Act, which passed

through parliament in June, would

introduce simpler, speedier and less

acrimonious “no fault” divorces before

the year was out. However, the legis-

lation will not come into force until

next autumn.

On a more cheering note, Frankle

says: “April, May and June is usually

prenup season, but as Covid forced

many couples to postpone summer

weddings, we are now preparing

prenups for winter weddings.”

ALAMY
Catherine Baksi

the intelligence and security

committee’s delayed Russia report,

its publication cannot be excused

because of security concerns.

The inference is that there

is politically damaging and

embarrassing details about the way

the CPS is treating victims of the

worst offences short of homicide.

Dame Vera Baird, QC, a former

solicitor-general, has taken up

the cudgel as the victims

commissioner. In her view “we

are witnessing the decriminalisation

of rape... failing to give justice

to thousands of complainants...

enabling persistent predatory

sex offenders to reoffend in the

knowledge that they are unlikely

to be held to account”.

Strong words. Change is urgent.

Lord Carlile of Berriew, QC,

is a crossbench peer

CPS is failing rape victims — this must change

V

ictims who have been
traumatised by sexual
assaults feel let down by
the Crown Prosecution
Service (CPS).The reality
is that the CPS has abandoned its
intelligent previous policy, despite
its claims that it has not.
While Sir Keir Starmer, QC,
was director of public prosecutions
from 2008-13, the number of
pre-charge decisions for such
offences rose from 79,787 to 109,419
and the rate of convictions increased
by 74.4 per cent. Those decisions
were made on a “merits-based

approach”, which was part of

a commitment given by Starmer.

The problem was how the

standard CPS test — whether it is

more likely than not that there will

be a conviction — applied to serious

sexual allegations. This included the

prosecution having to remind juries

to ignore old myths and stereotypes,

such as generalisations about

clothing or about complainants

with communication difficulties.

Convictions consequently resulted

in a case in which two male victims

of rape could give evidence through

specialist disability interpreters.

In 2009 High Court judges upheld

the merits-based approach and

crown court judges received

training consistent with the system.

That successful philosophy was

dumped and in 2017 replaced by

what a judge called the “bookmaker

approach” — in other words, the

CPS is trying to pick winners. In

this changed setting the police send

fewer cases to the CPS. Therefore

many genuine victims will not get

justice and their confidence will be

shattered by a numbers game.

Today more rape offences are

reported to police than ever, yet

the charging rate is lower than what

it was ten years ago. As a result, an

identified burglar is more likely to

be prosecuted than an identified

rapist. Much harm is caused by

burglary, but the long-term mental-

health consequences of rape can be

extreme, even fatal. Burglary rarely

wrecks lives: rape and related

offences do.

The prime minister’s

implementation unit has conducted

a review on the way the criminal

justice services respond to rape.

Oddly, this important report has not

been published. Why not? Unlike

Dechert

discovery

Dechert, the US law firm, is

facing more heat over the alleged

activities of two present partners

and one former partner from its

London office. A district court in

New York this week granted a

“discovery” order to lawyers for

Karam Al Sadeq, who claims that

the three lawyers abused his

human rights while acting for the

government of Ras al-Khaimah,

which is part of the UAE.

Mr Al Sadeq is jailed in the

emirate on fraud charges that

he denies. He claims that Neil

Gerrard and Caroline Black,

present Dechert partners,

and David Hughes, a former

partner, conspired with the local

authorities to torture him. The

three lawyers deny the allegations.

The order takes the battle to the

heart of Dechert’s Philadelphia

headquarters because the firm’s

policy board will have to supply

all documents concerning the

lawyers’ investigations.

“The allegations against the

firm and its personnel are

completely without foundation,”

a spokeswoman for Dechert

tells The Times.

Recently Stewarts Law, where

Hughes now works, adamantly

denied wrongdoing on his part.

Bad barristers

The number of barristers

disbarred last year more than

doubled, and there were also

more suspensions, the profession’s

watchdog says. Thankfully, for the

Bar Standards Board, the overall

numbers remain low.

Disbarments last year rose to

ten from four the previous year

and suspensions rose to 15 from

four. The amount of fines and

costs recovered from naughty

barristers rose last year by

28 per cent, to £27,000.

Officials do not reveal how

many barristers have been

disciplined or disbarred for sexual

harassment, but the report refers

to a new “pilot programme to

enable schemes to be set up for

barristers affected by bullying and

harassment to get confidential

support from other barristers”.

Slow local news day

Rob Ross, a well-known lawyer in

Swindon, received short shrift

from the justice secretary, Robert

Buckland, QC, when he voiced his

displeasure to a local newspaper

over government plans to open

magistrates courts on Saturdays.

Ministers want the extra sittings

to clear a backlog of more than

500,000 cases. Despite Ross being

his constituent, Buckland declined

his invitation to speak to local

lawyers. A ministry spokesman

said: “There seems little point in

speaking with Mr Ross as you

can find out whatever’s on his

mind by opening a local

newspaper on any given day.”

OUT OF COURT

The cases, the chatter, the chaos:

what’s really going on in the law