Legal Costs of a Dispute

Legal costs of any dispute can soon outweigh the issue that people argue about; Lawyers are supposed to know this but time and again I see lawyers with such large costs that a party simply cannot face the costs of settling. The thrust of relieving the courts of the workload of hearings is to encourage disputing parties to try and settle at Mediation [ADR] but again this in itself creates costs and sometimes makes the matter harder to settle.  The case of PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288 has been reported in the Law Gazette where they say this case “...has given its strongest support for alternative dispute resolution since its decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002. More significantly the case considered, for the first time as a matter of principle, the following question: what should be the response of the court to a party which, when invited by its opponent to take part in ADR, simply declines to respond to the invitation in any way?” in my opinion, the directions from this case are just worse than the understanding before.

No wonder people are confused; the courts do not give any real indication of what a party can rely on when it comes to the costs; conduct of the entire litigation is something that directs the court but each Judge has a discretion to interpret the rules and directions from the higher courts their own way which, leads to uncertainty for lawyers when dealing with different judges and different courts.

The answer is to be sure your lawyer has a grip on the rules and what the costs ought to be for each case, don’t just let your lawyer move forward on his own initiative; ask your lawyer to set out what the costs are for each phase and what he thinks the other sides costs will be and of course your lawyer can write to the other side and ask what their costs are to that time so there are no surprises for you when it comes to ADR.

Of course the case might not settle at ADR but you can then demonstrate to the judge at the final hearing that costs were an issue that you chose to keep under control and therefore your conduct of the litigation can be shown to be reasonable, provided your own costs are under control, whether you win or lose the case at that dreadful final hearing.

In summary it is my opinion that you should not leave the matter of costs in any case to the judge in isolation, you should make it an issue before the litigation starts and control it throughout.

Michael Horne
Managing Director 


Questions answered about making a will

Many people have the false perception that when they die their possessions will automatically go to their loved ones, regardless of whether they have a Will. By having a valid Will you can ensure that your possessions go to the people that you choose. With a valid Will in place you are also preventing your loved ones from a great deal of expense, delay and distress that may arise if you die intestate (without a valid Will).

What is a Will?

A Will is a legal document that allows you to set out how you would like your assets to be distributed when you die and name who you would like to carry out your wishes. Your Will can be as long or as short as you desire and it can go beyond your financial affairs. For example, you can give funeral directions, appoint guardians for minor children and also state what happens to your pets. 

What if I don’t make a Will?

If you die without making a Will, the law will establish how your assets are distributed according to the rules of intestacy. In this circumstance the estate must be distributed to a person’s relatives in a set order. It is important to note that the rules of intestacy do not cater for unmarried couples or step-children and where there aren’t any surviving blood-relatives the estate will go to the Crown.

The rules of intestacy may even apply if you have a Will but it is not legally valid.

What makes a Will valid?

In order to create a valid Will, you must be at least 18 years old and have the necessary mental capacity and intention. The drafting of the Will is very important as some wording has a specific meaning within the law. The wording of a Will must therefore be clear; if the wording is ambiguous this may invalidate the Will.  There are also strict rules concerning the signing and witnessing of a Will; the Will must be in writing and must be signed by you in the presence of two witnesses that are not named as executors or beneficiaries within your Will.

What is an Executor and who should I choose to act as mine?

It is an Executor’s duty to carry out the instructions within your Will. You must name at least one person as your Executor however there is no maximum. It is advisable to have more than one Executor as a sole Executor may pre-decease you, or may not be able to act for some other reason.

You may appoint individuals over the age of 18, solicitors (an individual or firm) and banks or other trust corporations to act as your Executors.

Choosing individuals such as family members or friends ensure that someone familiar with your affairs will carry out your wishes. On the other hand, choosing a solicitor or other professional ensures that the Executor has the necessary expertise to administer the estate as this can be a very complex task.  

Who can be a beneficiary under my Will?

In general, you can name anyone to be a beneficiary within your Will. An Executor can also be a beneficiary; however as explained above, a witness to your Will cannot be a beneficiary or an Executor.

Many people choose to name a charity as a beneficiary within their Will and if you decide to do this, this may result in lower inheritance tax rates.

What steps should I take to create my Will?

In order to create your Will you need to know the full names and addresses of your chosen Executors and beneficiaries, a description of any gifts you wish to leave, and details of all of your personal and business assets.

Does my Will cover assets in other countries?

Sometimes the inheritance laws in foreign countries are significantly different to UK laws and even if your Will is fully compliant with English law, there may be a conflict if you own foreign assets. For example, the biggest problem is ‘forced heirship’. A large number of European countries have laws requiring a fixed portion of your estate to go to close relatives such as a spouse or children, regardless of what your English Will states.

Generally it is advisable to make an additional Will in the country that you hold assets in; however great care needs to be taken as an additional Will should not revoke or conflict your English one.

Will marriage / divorce affect my Will?

If you are planning to get married, your Will must be drafted in anticipation of marriage. If is not, marriage will revoke your Will. If you have married since making a Will, your Will should be reviewed. We would also recommend that you should have your Will reviewed if you have divorced since having your Will drafted; although divorce does not revoke your Will, it will remove your former spouse as a beneficiary and as Executor.

Can I include jointly owned property within my Will?

Jointly owned property can either be held as joint tenants or tenants in common.

If you own your property as tenants in common, you own a distinct share of your property. This means your share can be sold, gifted or mortgaged and if you die your share of the property will pass to the beneficiary named within your Will.

If you own your property as joint tenants, the property belongs to all of the owners jointly. All owners must act together with a sale or to mortgage the property. When you die, the property will automatically pass to the other joint tenants despite your intentions within your Will; this is known as the right of survivorship.

For more information on the above or any other related matters please contact Zoe Smith on 01432 278 179 or


From GPs to Marriage Counsellors


Photo: ALAMYIt has recently been said that GPs should provide marriage support to elderly couples. With the cost of adult care sky rocketing up due to the rising number of people heading to the divorce courts as they approach retirement age - some say that other government bodies should help elderly couples stay together because of the pressure "silver splitters", are putting on the care system. 

A senior Tori MP Andrew Selous says that GPs should talk to those over the age of 50 about their relationships and direct them to counselling services and that older couples should be encouraged to take "relationship MOTs" with a counsellor.

The number of divorces for the over 60s has increased by 30 per cent in the last decade and the number of over 75s living alone has increased by over a fifth since 1996. Iain Duncan Smith, the Work and Pensions Secretary commented on this... "This says to me that local authorities and the Department of Health should recognise the very big interest they have in strengthening marriages and couple relationships in order to stop adult social care costs from increasing even more rapidly than they are expected to." 

According to the Office for National Statistics, the number of people over 60 getting divorced has risen by three quarters in just 20 years. This has been attributed to people living longer and more relaxed attitudes to divorce among the "baby boomer" generation. Evidently, Separate ONS figures suggest that the number of people aged between 45 and 64 who live alone has risen by more than 50 per cent since the mid-1990s to 2.5 million.

Mr Selous also said: "The point at which people retire is often hugely stressful. The whole business of family life is behind them and couples find out they don't know how to talk to each other or have fun together." Could this be the reason for this high increase in divorces and what kind of impact will this have toward the rest of us? 

To read the rest of the article go to The Daily Telegraph



Same sex marriages action for pension plans

The key provisions of the Marriage (Same Sex Couples) Act 2013 (the “Act”) are due to come into force on 13 March 2014 and the first same sex marriages can take place on 29 March 2014. This legislation affects survivors’ benefits provided by occupational pension plans.

It has been recommend that trustees and employers consider the survivors’ benefits to be provided to same sex spouses to ensure that their pension plans meet at least the minimum requirements. Where they have choices to make, they should consider what information or action is needed and ensure their intentions are reflected in their pension plan’s rules.


From 13 March 2014, as a minimum, occupational pension plans should provide the same level of survivors’ benefits for same sex spouses as for civil partners. This means that same sex spouses must be treated the same as opposite sex spouses in respect of benefits accrued from 5 December 2005 (and for contracted out benefits in respect of service from 6 April 1988).

The Act provides that the extension of marriage to same sex couples will not alter the effect of any “private legal instrument” made before 13 March 2014. We consider that the deeds and rules of occupational pension plans can be treated as “private legal instruments”. Accordingly, same and opposite sex spouses will not automatically be entitled to equal survivors’ benefits and pension plans may restrict the survivors’ benefits provided to same sex spouses but only in respect of service before 5 December 2005. Care will be needed to ensure that the minimum requirements of the legislation are met and any appropriate rule amendments are carried out effectively.

To read the full article go to Lexology 

Lexology is an innovative, web-based service that provides company law departments and law firms with a depth of free practical know-how that would be impossible to produce internally. By collaborating with the world's leading commercial law firms, Lexology is able to deliver fully tailored intelligence to the desktops of business lawyers worldwide on a daily basis.


Recommendation for Pre-nuptial Agreements

The Law Commission has recommended that pre-nuptial agreements are to be legally enforceable in England and Wales.  The Courts are already able to take pre-nuptial agreements into account, but this latest move will provide legal certainty and clear guidance.

The Law Commission welcomes the introduction of a standard that will provide couples with certainty, although there will be qualifying conditions that will need to be met.

The recommendation is that the agreements would only be enforceable provided both parties have made full, financial disclosure, received legal advice and the agreement is signed more than 28 days before the wedding. 

The agreement would be enforceable only after the financial needs of any children have been met and that the estranged partner’s needs are met in certain areas such as housing, for example.

Law Commissioner, Elizabeth Cooke, advising on this matter stated that making pre-nuptial agreements binding will provide certainty and give couples more control over their lives.

Kidwells Law welcomes the Law Commission's recommendation as it can bring certainty and clarity to many couples entering into marriage. For information on Pre-nuptial Agreements and all aspects of Family Law contact Kidwells on 01432 278179.

Nicola Haines