Legal Update
Summer 2009

Article 1 - Media & Family Proceedings - Justine Gayford

Due to a change in the Family Proceedings Rules made by The Family Proceedings (Amendment) (No2) Rules 2009 [SI 2009 No857] duly accredited media representatives are now permitted to be present during family proceedings from 27 April 2009, with the Court retaining a discretion to exclude them on specified grounds.

A card issued under the UK Press Card Authority is the expected form of identification to prove accreditation; however, a media representative without such identification may still be present at the Court's discretion.

There is an express exception to media attendance for hearings conducted for the purpose of judicially assisted conciliation or negotiation for example an FDR or First Appointment in private law Children Act cases, in Rule 10.28(1) (County Court and High Court) and Rule 16A(2) (Family Proceedings Courts).

The Court may use its discretion to exclude the media where necessary "for the orderly conduct of proceedings" including the practical considerations of the court layout. The media may also be excluded where justice will be impeded or prejudiced, for example, where a witness (who is not a party) gives a credible reason for refusing to give evidence in front of the media or there is a significant risk that their evidence will not be full and frank in the presence of the media. If a media representative is present, they have a right to make representations upon an application to exclude them, but there is no provision for an adjournment for the media to make representations if they are not already present.

Importantly, the new rules do not entitle the media to receive or peruse court documents, even those referred to in the hearing unless the Court permits this or under the rules of disclosure to third parties. The restriction on publication of information in private proceedings under s12 Administration of Justice Act 1960, continue to apply as does the prohibition on publishing material intended to or likely to identify a child as being involved in proceedings in s97(2), Children Act 1989. The Court should also be live to considering protection to extend beyond the end of the proceedings on child welfare grounds.

It is clear that this is the first step of the Government's planned programme. Jack Straw has announced that further primary legislation will follow to bring the rules in-line with those operating in the Youth Courts, in criminal proceedings.

Article 2 - The Credit Crunch A Dramatic Subsequent Event? - Andrew Skinner

Any ancillary relief practitioners who have any clients left of any substantial wealth in this economic climate may have pondered the conundrum of what might happen if the recession causes a marked fall in the fortunes of one party to a compromise agreement. Would this be a Barder event? (Barder v Caluori [1988] AC 20 HL)

Guidance was given last month by the Court of Appeal decision of Myerson v Myerson [2009] EWCA Civ 282, in which the Appellant Husband appealed the order giving effect to the compromise agreement. Husband was a successful fund manager of a quoted company and its executive chairman. At the FDR the assets stood at £25.8million (substantially in shares of the company). It was agreed that Wife would receive £11million (43%) in instalments and Husband, £14.5million (57%). Wife would receive £9.5million in cash and the balance by transfer of a property. The first instalment of £7million was duly paid. At the date of compromise, the Husband's shares were valued at £2.99p each - worth £15million to the Husband. A year later the shares were only worth 27.5p each. The global financial crisis and thus the fall in his share values led the Husband to appeal; arguing the fall in value was a dramatic subsequent event rendering the order unfair and unworkable. Due to the drop, the assets now stood at £12.7million and if implemented as compromised meant the Husband would now receive 14% and the Wife, 86%.

The Court of Appeal rejected the appeal. The natural processes of price fluctuation were deemed not to be a Barder event. The Husband had agreed an asset division choosing his assets to be in his shares; his decision could in effect have led to an increase in values, that it did not did not constitute his right to re-open the bargain. Whilst we all know each case turns on its own facts this may be a salutary reminder to think creatively when drafting compromise agreements. If anyone has a similar case, one tip seems to emerge: Think of paying large lump sums by instalments, they are capable of variation via s31(2)(d), Matrimonial Causes Act 1973, and may be the only source of clawing something back by the Husband in the instant case!

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