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Understanding Commercial Forfeiture

When a commercial lease is breached by a tenant and terminates.

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14 October 2024
TV Edwards Blog
Blog Commercial Litigation Dispute Resolution

Forfeiture of a Commercial Lease is a critical issue for both landlords and tenants. Understanding the intricacies of this process is essential for both landlords and tenants to protect their interests.

What is Commercial Forfeiture?

Commercial forfeiture is the termination of a commercial lease by a landlord as a result of a tenant’s breach of a term of the lease. A commercial lease is a binding agreement between a business tenant and their landlord, typically allowing the tenant the right to use the landlord’s property to operate their business for a specified term. Forfeiting a commercial lease is the act of bringing a lease to its end before the natural termination date.

The most common reason for forfeiture is for non-payment of rent however, other breaches can also trigger forfeiture if left unresolved, including, unauthorised use of the premises or sub-letting without the landlord’s consent. The lease will typically contain a forfeiture clause which will outline the conditions under which the landlord can terminate the lease.

Key Steps for Landlords to consider

If a commercial landlord is seeking to forfeit a lease, the following key steps should be considered:

  1. Identity the Breach

The landlord must ensure that the tenant has clearly breached a term of the lease.

  1. Serve Notice

For a breach other than non-payment of rent, the landlord is required to serve a forfeiture notice, detailing the breach and providing a period of reasonable time for the tenant to remedy the situation if the breach can be remedied.

If the breach is for non-payment of rent, the Landlord can usually proceed straight to the next step without serving notice.

  1. Re-entry or Legal Proceedings

If the tenant fails to remedy the breach within the notice period or the breach is for non-payment of rent, the landlord has the right to re-enter the premises. The landlord can do this peaceably by re-entering the property and securing it by changing the locks, or by obtaining a court order. Legal advice is crucial to ensure that re-entry is effected correctly.

  1. Alternatives

Before proceeding with forfeiture, landlords may opt to consider alternatives such as the Commercial Rent Arrears Recovery (CRAR) procedure or negotiating with the tenant. This can preserve the landlord-tenant relationship.

Key Steps for Tenants to consider

If a commercial tenant is at risk of forfeiture, the following key steps should be considered:

  1. Understand the Terms of the Lease

Commercial tenants should have a good understanding of their lease agreement as not all leases will have forfeiture clauses. Also, being aware of the conditions and consequences of forfeiture will help in ensuring that you are not in breach.

  1. Address Breaches Quickly

If a breach does occur, commercial tenants should act quickly to remedy it. For example paying outstanding rent or repairing damage can help prevent forfeiture.

  1. Communicating with the Landlord

Communication is pivotal as it can help resolve issues without legal action / consequences. Tenants should inform the landlord about any difficulties they have in meeting an obligation under the lease and propose solutions.

  1. Seek Legal Advice

If a tenant is facing forfeiture or their lease has been forfeited, they should seek legal advice as soon as possible as they may be able to seek relief from forfeiture from the court.

How we can help ?

Commercial forfeiture is a complex and serious matter. By understanding their rights and obligations, both landlord and tenants can navigate the process more effectively. If you require assistance in forfeiting a commercial lease or you are at risk of your lease being forfeited, please reach out to our Dispute Resolution Team.

You can email us at disputeresolution@tvedwards.com or call us at 020 3440 8000. Let’s work together to find the best path forward for your dispute.

This article was first published in The London Business Matters magazine in September 2024.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

The Importance of Alternative Dispute Resolution

Insights from Conway v Conway & Anor [2024]

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10 October 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Blog Dispute Resolution

In the ever-evolving landscape of legal disputes, a recent case underscores a critical trend: judges are increasingly advocating for parties to engage in Alternative Dispute Resolution (ADR) before resorting to the courtroom. The recent ruling in Conway v Conway & Anor [2024] serves as a vital reminder that litigation should be a last resort when resolving disputes.

What is Alternative Dispute Resolution?

ADR encompasses various methods for settling disputes without court intervention. Common forms include mediation, arbitration, and expert determination, each designed to provide parties with effective ways to reach a resolution outside the formal litigation process.

Mediation: A Path to Amicable Solutions

One of the most prominent forms of ADR is mediation. This process involves the parties working with a trained mediator who facilitates discussion and negotiation. Mediation offers several advantages: it is generally faster, more cost-effective, and less formal than litigation. Moreover, the courts in England and Wales increasingly regard mediation as a crucial step in the dispute resolution journey. In fact, parties may face cost penalties for refusing to engage in mediation, which encourages a collaborative approach to resolving disputes.

Mediation can also complement other ADR methods. For example, parties may use it to settle specific issues within a broader dispute. However, for mediation to succeed, both parties must be willing to engage fully and work collaboratively toward a resolution.

The Case of Conway v Conway & Anor [2024]

The recent case of Conway v Conway & Anor highlights the judiciary’s firm stance on ADR. Before litigation commenced in 2022, the claimant’s solicitor suggested pre-action mediation, but the proposal was ignored. A second proposal for mediation was met with rejection from the defendants, who claimed the dispute was unsuitable for mediation and would only prolong the process and escalate costs.

Judge Mithani, however, deemed the defendants’ refusal to engage in mediation as misguided. He emphasized that compelling reasons are necessary to justify such a rejection. Ultimately, the judge imposed a 25% reduction on the defendants’ recoverable costs due to their unreasonable refusal to consider ADR. This judgment powerfully reiterates the vital role mediation plays in dispute resolution.

The Ongoing Significance of ADR

The implications of Conway v Conway & Anor align with a previous ruling in Churchill v Merthyr Tydfil County Borough Council [2023], where the Court confirmed its authority to compel parties to engage in ADR before proceeding with litigation. While Conway v Conway & Anor is not a binding precedent, it signals a clear judicial inclination toward encouraging active participation in ADR. This case serves as a crucial reminder that even parties confident in their chances of success should seriously consider mediation.

How we can help ?

Navigating legal disputes can be complex, and early legal advice is essential, whether you believe you have a claim or are defending against one. Our experienced dispute resolution team is here to guide you through each step of the process.

If you need legal assistance, don’t hesitate to reach out to us. You can email us at disputeresolution@tvedwards.com or call us at 020 3440 8000. Let’s work together to find the best path forward for your dispute.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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A successful appeal of a decision of the family court in the Court of Appeal

This important case concerns the perpetration of serious injuries sustained by a nine-month-old baby.

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1 October 2024
Deborah Piccos
Consultant Solicitor Advocate
Bella Parker-Byatt
Trainee Solicitor
Blog Children Law Family

Deborah Piccos, a consultant solicitor-advocate in our children’s team, has successfully appealed a decision of the family court in the Court of Appeal. Deborah, the junior advocate for the children, was led by John Tughan KC in this important case where the Court of Appeal considered at the conclusion of a fact-finding hearing in care proceedings that the Judge had erred in law and was wrong in failing to identify the perpetrator or possible perpetrators of serious non-accidental injuries sustained by a nine month old baby.

Deborah represents the children, Y, now aged 13, V, now aged 12, and B, now aged 2, in care proceedings through their children’s guardian. These proceedings were issued in June of 2023 after B was admitted to hospital with swelling to the left side of her head. It was subsequently discovered that she had sustained a number of very serious injuries, including a lobe injury and rib fractures, which were likely to have occurred on at least two separate occasions.

It was the Local Authority’s case, supported by the guardian, that B’s mother must have caused the injuries to B, either deliberately or by failing to protect her. B’s mother however denied ever having harmed her; she also denied knowing how the injuries were caused. Her case was that there was a real possibility that B’s injuries could have been caused accidentally in the brief periods when B was not in her care, but that she was not aware of this having happened.

To establish how B’s injuries had been caused, a fact-finding hearing was held in March 2024. Deborah and John represented the children at that hearing. It was initially listed for 14 days, but this was reduced to five after the mother confirmed she did not seek to challenge the medical evidence. The mother accepted that the injuries must have been inflicted and were not accidental and she was not contending that either of her elder children or any other family member had caused the injuries.

At the conclusion of the fact-finding hearing, the judge found that the injuries were non accidental and inflicted, either deliberately or through reckless use of force. Turning then to the question of perpetration, she initially explained that she had found that if the mother did not cause the injuries to B, then she knew who did. She went on to address the issue as follows:

  • “72. As to the identity of the perpetrator, I am unable to make a positive finding that the mother herself caused the injuries. Partly that is because I have taken into account all of the surrounding evidence that shows the mother as a gentle and loving parent. I find myself in this position also because I am quite clear that the court has not been given a full and complete account in this case of what happened in B’s life over the relevant period.
  • 73. I do make a finding that the mother knows how the injuries were caused and has chosen not to tell the truth. That finding, in my view, is inescapable. To make that finding is not to reverse the burden of proof but to acknowledge that the weight of the evidence leads to a conclusion that it is not realistically possible that these injuries could have been sustained without the mother being aware. The threshold criteria are met on that basis.”

The Judge then reiterated in clarification of her judgment with the children’s advocates that her judgement was “certainly meant to include the possibility of the mother as perpetrator”.

There was subsequently a significant delay in the transcript of the judgement being produced. By the time it was received three months later, it became clear that the judge’s initial comments about the possibility of mother being the perpetrator were not included in her finalised judgement, and only paragraphs 72 and 73 had survived.

Deborah, on behalf of the children, appealed this judgement, on the following five grounds:

  • Having correctly concluded that the injuries were inflicted, the judge was wrong to refuse to identify a perpetrator or a “pool” of perpetrators. Alternatively, if the judge has identified a pool of perpetrators, then it is a pool of the mother and a hypothetical other person and that is neither borne out on the factual evidence or allowed in law.
  • The court was wrong to find that the mother was not the perpetrator.
  • The court was wrong to find that an unidentified hypothetical person known to the mother inflicted the injuries.
  • The judge compartmentalised her approach to the facts.
  • The judge went “off-piste” in that she made findings that were not sought by any party. The conclusion that the judge ultimately arrived at was neither explored in evidence nor in submissions and no party had notice of this possible outcome

At the appeal hearing this was distilled by the children’s team into the single proposition that it was not possible to understand the judgement. The appeal was supported by the Local Authority, who argued that the judge was wrong to make no finding against the mother, either that she was the perpetrator of the injuries or she had failed to protect B. The error in the Judgment and the unclear factual matrix caused difficulties as to: whether the final threshold in the case would be met; with the welfare stage of the case and the final decisions needed for the children. This meant it was not possible for risk assessments to be done or a narrative to be given to the children. The appeal was opposed by the mother. The father took a neutral stance.

The Court of Appeal ultimately allowed the appeal on the first part of ground one. Lord Justice Baker explained that “the judge was wrong to conclude the fact-finding stage in this case, in which a young child has sustained serious non-accidental injuries on more than one occasion, without either finding on a balance of probabilities that a named person was the perpetrator or finding that persons (named or unnamed) were in the pool of perpetrators”. Both Lady Justice Laing and Lady Justice Asplin agreed with his judgement.

The matter has been remitted for a rehearing, listed at first instanced before Mr Justice MacDonald, the presiding family judge for London. Deborah continues to represent the children and act as their advocate with John Tughan KC in the proceedings to seek that the factual matrix is established to ensure these proceedings can progress without further delay and conclude in a way that meets the best interests of the children.

The full judgement can be read here.

The recording of the live steam of the appeal hearing can be viewed here.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Understanding Inheritance Act Claims

This blog will guide you through what you need to know.

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25 September 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Katja Trela-Larsen
Trainee Solicitor
Blog Dispute Resolution

In England and Wales, unlike many other jurisdictions, people enjoy what’s known as “testamentary freedom”. This means that individuals can decide how their assets are distributed upon their death. However, this freedom is not absolute. The Inheritance (Provision for Family & Dependants) Act 1975 allows certain individuals to challenge the estate distribution under a Will, or the intestacy rules, when they believe reasonable financial provision has not been made for them.

This blog will guide you through who can make a claim, the time limits involved, and how the court decides what constitutes “reasonable financial provision”.

Who can make a claim?

The Inheritance Act 1975 applies to estates where the deceased was domiciled in England or Wales. Certain individuals, even those living outside the country, are eligible to claim under this law. The categories include:

  • Spouses or civil partners of the deceased.
  • Former spouses or civil partners (who have not remarried or entered into another civil partnership).
  • Children or someone treated as a child of the deceased, including adult children and stepchildren.
  • Cohabiting partners who lived with the deceased as if married or in a civil partnership for at least two years prior to death.
  • Financial dependants: anyone who was being wholly or partially financially supported by the deceased.

Time limits for bringing a claim

There is a strict time limit for making a claim under the Inheritance Act. You must file your claim within six months from the date the probate or letters of administration were granted. If this window is missed, it may still be possible to file a claim, but you’ll need to provide justification for the delay and obtain the court’s permission.

Tip: If you believe you have grounds for a claim, it’s crucial to seek legal advice as early as possible to avoid complications due to timing.

What is “Reasonable Financial Provision”?

The term “reasonable financial provision” doesn’t mean making someone wealthy, but it ensures they don’t live in poverty. For most claimants, the court defines this provision as what is reasonable for their maintenance. This is different for spouses and civil partners, where the expectation is often closer to what they would have received in a divorce or civil partnership dissolution.

How does the court decide?

When deciding on a claim, the court considers a variety of factors under section 3 of the Inheritance Act, including:

  • The financial needs and resources of the applicant (both now and that they are likely to have in the foreseeable future).
  • The financial situation of any other applicants and beneficiaries of the estate (both now and that they are likely to have in the foreseeable future).
  • The obligations and responsibilities the deceased had toward both the applicant and beneficiaries.
  • The size and nature of the estate.
  • Any physical or mental disabilities of applicants or beneficiaries.
  • Other relevant factors, such as the conduct of individuals involved.
  • For spouses and civil partners, additional considerations include the length of the marriage or partnership and any contributions they made to the welfare of the family of the deceased.

What information will you need?

The applicant must provide full financial disclosure at an early stage, as the burden of proof lies with them. The estate and court require this information to assess whether reasonable financial provision has been made.

Beneficiaries defending against a claim are not obliged to provide financial disclosure, but if they choose not to, the court may infer that they do not have a needs-based defence.

Executors have a duty to provide the court with full details of the estate.

Do you have to go to court?

Although many inheritance disputes are resolved through negotiation or mediation, you should be prepared for the possibility of going to court. Alternative Dispute Resolution (ADR) methods are often used successfully to avoid a court hearing, even after formal proceedings have begun.

How we can help ?

Whether you believe you have a claim against an estate or are defending against one, early legal advice is crucial. Our experienced dispute resolution team is here to assist you through every step of the process.

If you need legal help with an Inheritance Act claim, don’t hesitate to get in touch with us. Email us at disputeresolution@tvedwards.com or call 020 3440 8000.

By staying informed about your rights under the Inheritance Act, you can navigate these complex matters more effectively

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

Understanding Financial Orders after Divorce

Dealing with finances can be one of the most challenging aspects of divorce.

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24 September 2024
TV Edwards Blog
Blog Divorce and Family Finance Family

When a marriage or civil partnership ends, dealing with finances can be one of the most challenging aspects of the process. A financial order plays a crucial role in settling these matters, addressing everything from property distribution to pensions. Whether you’re at the beginning of a separation or nearing the final stages of divorce, understanding financial orders is essential to ensure your financial future is protected.

What is a Financial Order?

A financial order is a legal arrangement that outlines how a couple’s finances will be divided following their divorce or dissolution of a civil partnership. This order can cover various aspects, including:

  • Property: Decisions on whether to sell or transfer ownership of the family home or any rental properties.
  • Income: Arrangements for ongoing financial support, such as periodical payments or enhanced child maintenance.
  • Pensions: Dividing retirement savings, which often requires specialist advice.

Many couples may assume they don’t need a financial order because they have few or no significant assets. However, it’s important to consider not just current assets and income but future assets and financial needs as well, especially regarding pensions and income during retirement. Pensions are very complex and often require specialist advice and assistance, which is often overlooked.

The Importance of Addressing Financial Matters

One common misconception is that obtaining a divorce automatically resolves all financial issues. In reality, the divorce process has several components:

  1. The Divorce Itself: The legal termination of the marriage or civil partnership.
  2. Financial Matters: The division of assets, income, and pensions.
  3. Child Arrangements: If applicable, decisions about the care and support of any children.

While the no-fault divorce process has simplified some aspects of ending a marriage, it does not emphasise the importance of addressing financial matters. Without a financial order in place, future claims can still be made against you. For example, if you come into a large sum of money or accrue substantial retirement savings, your former spouse or civil partner could potentially make a claim against these assets during your lifetime —unless you remarry or a financial order is made which dismisses such claims.

Reaching a Financial Agreement

There are two primary ways to reach a financial settlement:

  1. By Agreement and Consent: Both parties agree on how to divide their assets and submit this agreement to the court for approval.
  2. By Court Order: If an agreement cannot be reached, the court can impose a decision.

Before agreeing to a financial settlement, it’s essential to have a clear understanding of your and your partner’s financial situation. This often involves gathering financial disclosure, either through a brief overview (Form D81) or more within detailed documentation (Form E).

Seeking specific legal advice before making any settlement proposals is crucial. The court will not simply “rubber stamp” any agreement; it will strive to ensure that the settlement is fair and meets both parties’ needs.

The Role of Non-Court Dispute Resolution (NCDR)

As of April 2024, the Family Practice Rules require parties to attempt Non-Court Dispute Resolution (NCDR) before issuing court proceedings. NCDR includes methods like mediation, collaborative law, arbitration, and private court hearings. If the court believes you haven’t reasonably engaged in NCDR, there could be cost consequences, and proceedings may be adjourned to allow for a form of NCDR to take place.

Finalising a Financial Consent Order

Once an agreement is reached, a financial consent order is drafted, signed by both parties, and submitted to the court. This order, along with a joint D81 form (which provides a snapshot of your financial situation), helps the court determine if the agreement is fair.

It is essential to have legal assistance when drafting your financial consent order. Properly drafted documents protect your current and future financial position and prevent any loopholes that could lead to future claims.

How can we help?

At TV Edwards, we offer comprehensive support and advice throughout the financial settlement process. Whether you’re in the early stages of separation or need help finalising an agreement, we’re here to ensure your rights and interests are protected. Our services can range from initial advice and signposting, behind-the-scenes advice during direct negations or mediation to full representation in court.

If you’re dealing with a separation or divorce and need guidance on financial matters, don’t hesitate to contact the family team. We can discuss your options, including various funding arrangements, and ensure that your financial future is secure. Call 020 3440 8000 or email family@tvedwards.com

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Why you should consider making a Lasting Power of Attorney

It allows someone you trust to act for you if you ever lose mental capacity to make your own decisions.

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12 September 2024
TV Edwards Blog
Blog Wills & Probate

What is a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint one or more attorneys to make decisions on your behalf or to assist you in making decisions. This arrangement ensures that your wishes are respected, and your affairs are managed according to your preferences even if you become unable to make decisions yourself.

There are two primary types of LPA:

1. Health and Welfare LPA
This deals with decisions related to your medical care, daily routine and even life-sustaining treatments.

2. Property and Financial Affairs LPA
This deals with decisions about your finances, including managing bank accounts, paying bills, and even selling your home if necessary.

You can choose to set up one or both types of LPA depending on your needs.

Top five reasons why making a LPA is a smart move

1 .Control Over Your Future
One of the most compelling reasons to create an LPA is the ability to decide who will manage your affairs if you become incapacitated. This proactive step can prevent potential disputes among family members and loved ones. When you appoint an attorney, you make your intentions clear on who should take responsibility for your decisions. By making your choices known you can help maintain harmony within your family during challenging times.

2. Clear Guidance for Your Attorneys
When you create an LPA you can provide specific instructions and guidance to your attorneys. This can include how you would like your finances managed, what types of medical treatments you prefer or any other personal preferences. By outlining your wishes in advance, you make it easier for your attorneys to carry out their duties effectively and in accordance with your values.

3. Flexibility in Appointing Attorneys
An LPA offers considerable flexibility in terms of the number of attorneys you can appoint. There is no limit to how many people you can choose to act on your behalf. This means you can designate backup attorneys in case your first choice is unable or unwilling to act. You can also specify how your attorneys should work together, whether they must act jointly on all matters or if they can act independently ensuring continuous management of your affairs in the event of death or sickness of an attorney

4.Cost-Effective and Less Intrusive
Establishing an LPA while you still have the capacity to do so is both more cost-effective and less intrusive than having your loved ones apply for a Deputyship Order which involves a lengthy and often expensive court process. Additionally, the court will make the final decision on who should be appointed as your deputy, which might not align with your preferences. By creating an LPA, you avoid this uncertainty and retain control over who will manage your affairs.

5. Revocability
As long as you have the mental capacity, you can revoke or amend your LPA at any time. This means that you are not locked into your decision and can adapt your plans as needed. This provides peace of mind and the freedom to make changes if necessary.

What happens if you don’t make a LPA?

If you lose the capacity to make your own decisions and you don’t have a valid LPA in place, then someone will need to apply to the Court of Protection to have a Deputy appointed. It is a common misconception that partners or close family members will automatically be given the right to make decisions on your behalf should anything happened to you. This is not the case. A deputyship application can take several months to put in place, during which time your financial affairs cannot be dealt with and is costly. The court can only appoint health and welfare deputies in extraordinary circumstances.

How we can help

Don’t leave the management of your affairs to chance. By making a LPA you ensure that your wishes are carried out by people you trust according to your instructions. If you are ready to take this important step please contact Patrice Lawrence our specialist Wills & Probate lawyer, to discuss your options and get started on securing your future. Call 020 3440 8000 or email Patrice.lawrence@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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New UK Law Threatens Pet Thieves with Five Year Prison Sentences

The Act recognises the unique and irreplaceable bond between pets and owners.

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30 August 2024
Adam Shaw
Senior Associate Solicitor
Blog Criminal Defence

In a significant move to address the growing issue of pet theft, the UK government has introduced the Pet Abduction Act 2024. Under this new law, anyone found guilty of stealing a cat or dog could face up to five years in prison and substantial fines. This legislation marks a departure from the previous legal framework, where pet theft was prosecuted under the Theft Act 1968

A Growing Concern

Pet abduction has become an increasingly alarming issue in the UK, particularly with dogs being the most targeted. Research indicates that in 2023 alone, approximately 2,290 dogs were reported stolen. The rising number of pet thefts has underscored the need for more stringent laws to protect the emotional bond between pets and their owners.

Recognising the Emotional Impact

One of the primary concerns with prosecuting pet theft under the Theft Act 1968 was that it treated pets as mere property, comparable to items like mobile phones or wallets. This approach failed to acknowledge the significant emotional distress caused to both the pet and its owner. The Pet Abduction Act 2024 aims to rectify this by recognising the unique and irreplaceable bond between pets and their owners.

What Comes Next?

As the Pet Abduction Act 2024 takes effect, it is anticipated that sentencing guidelines will be issued to help courts determine appropriate punishments for those convicted under this new law. These guidelines are expected to categorise offences and provide clear instructions on sentencing to ensure consistency across cases.

Implementation Considerations

While the new law is intended to impose harsher penalties for pet theft, some legal experts have raised concerns about its effectiveness. Notably, the maximum sentence under the Pet Abduction Act is less severe than the potential penalties under the Theft Act. This discrepancy has led to questions about whether the new legislation truly treats pet theft as a more serious crime.

Moreover, the Act specifically references dogs and cats, leaving uncertainty about how other types of pets will be protected under the law. This gap in the legislation could lead to calls for further amendments or additional laws to cover a broader range of animals.

How we can help

At TV Edwards, our dedicated team has been at the forefront of criminal defence work in London for over 50 years. We offer specialist legal advice across a full range of criminal defence cases. If you or someone you know requires legal representation under the Pet Abduction Act 2024 or any other criminal matter, please do not hesitate to contact us.
You can reach our specialist team by emailing enquiries@tvedwards.com or calling 020 3440 8000. We’re here to provide the expert support and guidance you need.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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The Hague Convention on the recognition and enforcement of foreign judgments

The aim is to streamline and facilitate international trade.

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27 August 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Blog Dispute Resolution Enforcing Foreign Judgments

Background and Context

On 12 January 2024, the United Kingdom government signed the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (commonly referred to as “Hague 2019” or the “Convention”). This signing was followed by the formal ratification of the Convention on 27 June 2024, positioning the UK as a significant player in the global legal framework for cross-border judgment enforcement. The Convention will officially come into force in the UK on 1 July 2025, exactly 12 months after its ratification.

Objective of the Convention

The primary purpose of the Hague 2019 Convention is to streamline and facilitate international trade by improving the process for the cross-border recognition and enforcement of foreign judgments in civil and commercial matters. By removing some of the legal barriers that previously complicated international judgment enforcement, the Convention aims to reduce the time and costs associated with such processes, thereby fostering greater confidence in cross-border commercial transactions.

Challenges with the Previous Framework

Before the adoption of the Hague 2019 Convention, parties involved in international litigation often relied on the Hague Convention of 2005. However, this earlier convention was limited in scope, applying only to judgments arising from exclusive choice of court agreements. This limitation introduced a degree of uncertainty, as the enforcement of judgments was heavily dependent on the existence of such agreements.

Key Provisions and Advantages of the Hague 2019 Convention

The Hague 2019 Convention offers a broader scope compared to its 2005 predecessor. One of the most notable differences is that it does not require the existence of an exclusive jurisdiction clause for a foreign judgment to be recognized and enforced abroad. This expansion in scope provides greater flexibility for parties involved in cross-border litigation.

The Convention specifically applies to civil and commercial judgments and mandates that a judgment issued by a court in one contracting state be recognised and enforced in another contracting state without the need for a review of the judgment’s merits. This provision is a critical advancement, as it removes one of the more time-consuming and contentious aspects of international judgment enforcement.

Procedural Requirements

For a foreign judgment to be enforced under the Convention, the party seeking enforcement must provide a copy of the judgment and, if necessary, a certified translation. Additionally, the Convention includes procedural safeguards to ensure that defendants have received appropriate notice and have been given a fair opportunity to present their case. Importantly, the Convention applies only to legal proceedings that commence after its in-force date.

Implications and Significance

The adoption of the Hague 2019 Convention marks a significant development in international civil and commercial law. By simplifying the process for recognising and enforcing foreign judgments, the Convention is expected to support global economic integration and provide greater legal security for cross-border transactions. This, in turn, will benefit legal practitioners, businesses, and individuals engaged in international trade.

As more nations adopt and implement the Convention, it has the potential to create a more efficient and reliable international legal framework. This framework will not only enhance the predictability of international legal outcomes but also reduce the risks associated with cross-border litigation, thereby encouraging greater participation in global markets.

Conclusion

The UK’s adoption of the Hague 2019 Convention represents a forward-looking approach to international legal cooperation. By embracing this modernised framework for the recognition and enforcement of foreign judgments, the UK is positioning itself as a more attractive jurisdiction for international business and legal practice. The Convention’s implementation is expected to bring about tangible benefits in terms of reduced litigation costs, increased legal certainty, and stronger international trade relationships.

How we can help ?

At TV Edwards we have significant experience in respect of enforcing foreign judgments in the UK from other international jurisdictions so please get in touch should you need any legal assistance. Contact Partner Adam Haffenden from the Dispute Resolution team on 0203 440 8139 or email adam.haffenden@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Facilitating P’s “effective participation” in their Court of Protection case

The person at the centre of proceedings in the Court of Protection, who lacks capacity, is referred to as ‘P’.

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19 August 2024
Harriet Sampson
Solicitor
Nilufer Ozdemir
Senior Associate Solicitor
Blog Court of Protection

The Court of Protection is a Court which is dedicated to making decisions on financial matters or welfare issues (such as where someone might live or what care they might receive) for people who cannot make decisions at the time they need to be made i.e. because they lack mental capacity to do so. You can find out more about the Court of Protection by clicking here to read a previous article.

Who is ‘P’

The person at the centre of proceedings in the Court of Protection, who lacks capacity, is referred to as ‘P’.

One of the central principles guiding the Court of Protection (as set out in the Mental Capacity Act 2005) is to ensure that P effectively participates (as far as reasonably practicable) in any act done for him and any decision affecting him.

This is codified in rule 1.2 of the Court of Protection Rules 2017, which requires the court in every case to consider whether it should make directions to secure P’s participation.

This article explores how we, as lawyers, help to ensure that P is able to effectively participate in their own legal cases.

Appointed roles to represent P

Because P will not have the capacity to instruct us directly, a litigation friend will need to be appointed by the court to instruct us instead. A litigation friend could be P’s family member or close friend (so long as they are not a party in the case as well). They would need to let P’s lawyer know about P’s wishes and feelings about the case and the decision that the court is being asked to make.

In many Court of Protection cases we are instructed by the Official Solicitor, who is a publicly appointed court official and acts as litigation friend where there is nobody else who can take on that role. The Official Solicitor will not meet P personally. Instead the court asks the lawyers appointed by the Official Solicitor to meet with P and record their wishes and feelings. The lawyer will then report this back to the court within a witness statement.

Sometimes instead of a litigation friend being appointed for P, the court will appoint an accredited legal representation (ALR). This will be a lawyer who has been approved by the Law Society to take on this special role for P. It will be the ALR’s job to obtain P’s wishes and feelings directly and report them back to the court, and then also make decisions directly about the case.

P’s wishes and feelings

The matter of P’s wishes and feelings is vital in Court of Protection proceedings. Not only is it important for P’s lawyer to obtain P’s wishes and feelings about the issues in the case, but we also need to know their wishes and feelings about how they want to take part in the proceedings.

To effectively ascertain P’s wishes and feelings about their participation, P’s solicitors should consider how the court process and the issues before the court can be explained to P. This will include consideration of P’s communication abilities, including whether these may be enhanced by communication aids or Speech and Language Therapy input, and whether P might be reassured by having a familiar person, such as a family member or carer, present.

In practice, we begin by gathering information from people involved in P’s care and support arrangements to develop a complete picture of P’s communication abilities. We often use toolkits to help our clients with learning disabilities or autism articulate their wishes and feelings. This can include, among other things, using a ‘talking mat’ with visuals to assist P communicate, creating ‘life story booklets’ to help P prepare for a meeting with us ahead of time, or accompanying P with someone who can use Makaton. We use questioning strategies for our clients with conditions like dementia to allow them to voice their wishes while also giving them plenty of time to reflect. We would visit P wherever they feel most comfortable and, this could be their place of residence, such as a care home, a hospital setting, a supported living facility, school, their own home or their family home.

Attendance at a hearing or hearings

P’s solicitors should ask P about whether they wish to attend the hearings in their matter. If possible, P’s solicitors should explain what this might mean, including whether the hearing is remote or in person, what will happen on the day and what support they might need. If the hearing is in person and P would prefer to attend remotely, or if this is considered better for P due to health or mobility concerns, P’s solicitors can liaise with court staff to advise them of P’s wish to attend and make practical arrangements for P. Other considerations such as P’s care and support needs, whether P will need breaks in proceedings, or whether P’s attendance is not required for the duration of the hearing, should also be taken into account on a case-by-case basis. A decision as to how and to what extent P should be participating in the proceedings will be made taking into consideration P’s best interests.

It should also be explained to P that regardless of their attendance at court, their lawyers will present their wishes and feelings to the Judge and other parties in the matter, based on what P has told their solicitor about their wishes and feelings in relation to the issues in the case.

If P does not want to attend hearings, but would like to speak with the Judge, their solicitor should endeavour to inform the Judge and court staff of P’s wish as soon as possible, providing details of practical considerations such as where the meeting would take place, P’s communication needs, and whether anyone else might be attending the meeting, so that the Judge/court staff can determine whether such a visit is practically possible. Where an in person meeting is not possible, P’s solicitors may consider whether the meeting could take place remotely.

In our experience, clients who attended their court hearings or met the Judge in private (either in court or at their place of residence) have valued being able to express their wishes and feelings directly to the Judge. The Court of Protection then has a full understanding of P’s own views before making important decisions about their welfare. This shows why it is so important for lawyers to facilitate P’s effective participation in their own COP case.

How we can help ?

The issues relating to incapacity are often challenging, emotional, and stressful. We recognise this, and we understand the difficulties faced by people with mental incapacity and those who care about them.

To find out more about how TV Edwards could help if you need support applying to the Court of Protection contact us at enquiries@tvedwards.com or speak to a member of our Social Welfare team on 020 3440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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