Michelmores has advised the Mayor’s Office For Policing And Crime (MOPAC) on its acquisition of The Empress State Building in Earls Court, London for a purchase price of £250M. Whilst the building was already occupied by the Metropolitan Police Service, under a lease, for back office and operational functions, this freehold acquisition has secured the Met’s long term occupation.

Forming part of the Mayor of London’s £412M investment to create a new, single-site, counter-terrorism and organised crime hub for the Metropolitan Police Service, the acquisition will, for the first time, bring the Met’s counter-terrorism command and specialist crime and operations under one roof. The acquisition paves the way for a significant upgrade project to make the building and associated sites fully secure and fit for purpose.

The transaction team was led by Richard Honey, Head of Asset Management at Michelmores and involved over 15 Michelmores lawyers.

Richard Honey said:

“Having worked closely with MOPAC in recent years, on a number of high profile and sensitive transactions, we are delighted to have successfully concluded this one for them within an extremely tight timescale while pulling together the breadth and depth of a number of our cross-departmental and cross-office disciplines.”

“Our role in delivering this acquisition for such a prestigious institutional client reflects our increasing activity and involvement in the London real estate market.”

The Michelmores team comprised of:

Partners: Ian Binnie, Chris Hoar, Ian Holyoak, Richard Honey, Mark Howard, Carol McCormack

Other: Catherine Davis, Consultant Solicitor, Yvonne Farrell, Solicitor, Phil Parrott, Associate, Sarah Phillips, Associate.

This article has been co-authored by Andrew Oldland QC and Freshfields Bruckhaus Deringer.

The term FinTech is used to describe the application of technology to financial services. Technological change in financial services is nothing new, but what is new is the pace of change coupled with a significant amount of investment. FinTech is affecting all aspects of financial services, from disruptors to collaborators, retail services to investment banking, front office to back office. FinTech has also brought to light entirely new services and products that didn’t exist five years ago – for example, virtual currencies, distributed ledger technology, crowdfunding, robo-advice.

In relation to these new products and services, the applicable regulatory position is not always clear. Taking virtual currencies (also  known  as  cryptocurrencies)  as an example, a key problem for regulators  is  the definition of cryptocurrencies and tokens – a clear definition is an essential pre-requisite to ‘good’ regulation.

It seems that the prevailing view among regulators is that cryptocurrencies are more akin to an asset class than a currency.

At present, the three key areas of concern shared by regulators worldwide relating to cryptocurrencies are:

• consumer protection (including the protection of personal data)
• the prevention of financial crime, in particular money laundering
• the integrity of the markets.

Currently, we find ourselves in a somewhat counter- intuitive position. National regulators are reluctant to regulate, or indeed, may not be sure how to regulate, whereas many participants want to be regulated so as to have the badge of credibility that goes with authorisation.

Regulatory enforcement in this area can be sporadic and primarily focused on money laundering, (see the US authorities acting against the Silk Road). In Turkey, an example was given of drugs money being laundered through Bitcoin.

Initial Coin Offerings (ICOs) have also received a lot of attention recently, being ways of raising funds from the public, effectively by way of a coin or token sale – usually   in exchange  for  cryptocurrency.  The  regulatory  position in relation to ICOs is similarly not always clear (and where   it is, it is often because ICOs are banned). The confusion      is compounded by the fact that the broking of ICOs may well fall within regulation.  A  number  of  regulators  have caveated their position by stating that the characteristics of the token issued will determine whether the token is considered to be a security, a form of payment or a representation of some sort of service or utility. The current position of many regulators, which appears to be one of ‘wait and see’, is unlikely to be sustainable in the longer term. Indeed, we are beginning to see guidance emerging (e.g. in Switzerland).

As to consumer protection,  in  the  UK  for  example,  ICOs are generally unregulated (although again, this depends on the characteristics of the coin being offered)  but  the  FCA has issued stark warnings to consumers about the risks.

At the other end of the FinTech spectrum are financial services or products which, although enabled by cutting edge technology, clearly fall within regulation. Regulators are also starting to be much more encouraging of start- ups and new services. In order to encourage competition through advances in technology, in many countries, national regulators now have the powers to relax their requirements or provide guidance through so called ‘sandboxes’. Sandbox participants may benefit from lighter-touch regulation, but are required to provide often detailed information to the regulator which will help better inform regulation going forward. Here regulation appears to be working well.

Predominantly, regulators are tending to follow ‘neutral’ regimes (or relying on their existing frameworks) rather than producing detailed rules and regulations specifically on FinTech. This is often through ‘principles based’ regimes where regulators have greater discretion and flexibility.

Two further important issues  relate  to  the  protection of personal data and intellectual property (IP). The introduction in the EU of the GDPR, with its enhanced requirements, will have a significant impact on many FinTech companies. Improved methods of IP protection are also likely to be required to enable FinTech companies to flourish.

In the UK, the FCA has four objectives. Its strategic objective is to ensure that the relevant markets function well.

The FCA’s operational objectives are to:

• protect consumers – the FCA aims to secure an appropriate degree of protection for consumers
• protect financial markets – with the aim to protect and enhance the integrity of the UK financial system
• promote competition – the FCA aims to promote effective competition in the interests of consumers.

View from Turkey

Cost efficiency, financial inclusion, establishment of an eco-system, intellectual property rights and cyber security are the most important considerations for the regulators. There are a number of ongoing regulatory initiatives concerning FinTech in Turkey. A working group composed of the Central Bank of Turkey, the Capital Markets Board and the Banking Regulation and Supervision Agency has been studying cryptocurrencies. In addition, the Banking Regulation and Supervision Agency has been collaborating with payment services firms to ensure growth and to contain cyber risks. Last but not least, Turkey’s Ministry of Development is expected to cover FinTech in the 11th National Development plan to be published in June 2018.

Borsa Istanbul

It is worth noting the FCA’s focus on financial inclusion and the ability of Fintech to provide services to vulnerable consumers. In 2016, the FCA hosted a TechSprint event focussing on this and the only mention of Fintech in the FCA’s 2017 mission related to financial inclusion:

“We can use our convening powers to bring participants together and explore innovative ways of improving market effectiveness, such as developing Fintech to reduce the cost of financial services or to extend access to vulnerable consumers.”

It also features as one of the eligibility criteria of the robo- advice unit (Potential to deliver lower cost advice or lower cost guidance to unserved or underserved consumers).

Noting in particular that innovative tech can create better competition, the FCA is seeking to promote innovation  as part of the ‘virtuous circle’ of competition, where competition is a very powerful driver of innovation and vice versa. With that in mind, the FCA set up Project

Innovate,1 which aims to tackle regulatory barriers to allow firms to innovate in the interest of consumers. Project Innovate consists of:

• direct support and guidance
• an advice unit – a dedicated team providing feedback to firms developing automated advice and guidance models
• the sandbox – ultimately to facilitate testing
• engagement with others, covering industry (such as the FCA’s ’themed weeks’), regional engagement

(i.e. outside of London) and international engagement with other regulators.

In respect of the FCA innovation agenda and the sandbox, the FCA has available, where permitted, certain tools, such as restricted authorisation, individual guidance, waivers of rules and no-enforcement action letters.

Looking to crowdfunding as a practical example of legislating a new area, the FCA reviewed the peer-to-  peer lending sector and noted that while equity-based crowdfunding platforms were already likely to be included in the regulatory perimeter, loan-based platforms (also known as peer-to-peer lenders) were not. When it took on competence for consumer credit activities in April 2014, the FCA brought in a bespoke, lighter-touch regulatory regime which applied to the operators of loan-based peer-to-peer platforms. The FCA has been keeping developments in the peer-to-peer lending sector (both equity-based and loan-based) under review. We expect to see revisions to the regulatory regime in the future, including a consultation paper with proposals for rule changes, addressing the concerns raised by the FCA in its interim review paper. While this might be somewhat difficult for the affected providers, who will need to keep updating their policies and procedures, as well as keeping up to date with the regulatory requirements that apply to them, the intention of the review is a proportionate and appropriate regulatory regime.

The European Commission is also considering legislation on crowdfunding and has very recently published a proposal whereby operators of platforms can ‘opt in’ to an EU framework. This includes an EU regime that platforms wishing to conduct cross-border activity could opt into, while leaving the rules for platforms conducting only national business unchanged. Whether this will be the ultimate outcome for this proposal remains to be seen.

For more information please visit the FinTech service page. Contact the Finance & Investment team or Andrew Oldland KC at [email protected] or on 01392 687690.

On Monday 5 March, Theresa May outlined plans to “rewrite” the rules on planning to help developers and local authorities build more affordable homes.

For decades, the UK has not had enough homes. Demand far exceeds supply resulting in inflated prices and increasing rents. Yesterday’s announcement is the first major overhaul of the National Planning Framework in six years and aims to ensure more of the “right homes” are built in the “right areas”. The changes will release more land for development and penalise councils who miss their planning targets.

Throughout her address to a national planning conference in London, Mrs May criticised the current system saying there is a “perverse” financial incentive for developers to sit on land once planning permission has been approved, rather than to build on it. The current system creates a market where “lower supply equals higher prices” she said, and consequently, developers aren’t encouraged to build the homes the country needs.

Pending consultation, up to 80 proposals are to be implemented to change the system. Some of the key measures include:

• 10% of homes on major sites to be available for affordable homes
• Councils to possibly revoke permissions if building hasn’t started within 2 years
• New rules to determine how many homes councils must build, taking into account house prices, wages and worker numbers, with higher targets being set for areas where house prices exceed earnings
• Allowing councils to take a developers previous rate of build into account when deciding whether to grant planning permission

For more information on the proposed changes, contact the Michelmores Planning Team.

Michelmores has advised on the sale of 13.5MW of solar assets from CTF Solar to BlackRock Real Assets, through its Kingfisher partnership with Europe’s leading solar energy company, Lightsource BP. The acquisition consolidates the secondary UK solar market.

The £15 million acquisition, through BlackRock’s Renewable Income UK Fund, will see BlackRock acquire three CTF Solar projects in the United Kingdom. These include Wormit Farm in Fife, Scotland (5MW), Stanton under Bardon Farm in Leicestershire, England (3.6MW) and Gretton in Winchcombe, Gloucestershire (4.9MW). All the assets are supported under the Renewable Obligation at a rate of 1.3 ROC/MWh.

CTF Solar is a German engineering company whose core expertise and extensive experience lie in the development of thin-film solar technologies and the turnkey construction of thin-film solar module factories. Since 2012, CTF Solar has been owned by China Triumph International Engineering Corp. (CTIEC), a member of the state-owned CNBM Group (China National Building Materials Group). As a European subsidiary of CTIEC, CTF Solar also contributes to CTIEC’s activities installing solar power plants in Europe.

The Michelmores team involved head of Energy, Ian Holyoak, Alexandra Watson, Kieran van Bussel, Tom Brearley, Jon Lane and Jo Morris.

Alexandra Watson, Partner in the Corporate team, said

“We originally acted for CTF Solar on the acquisition of the three solar sites at consented stage, and are delighted to have supported them through the sale of these sites.”

CTF’s General Manager, Dr Michael Harr, added:

“It was reassuring to have the support of the Michelmores’ team, as they helped with the original acquisition so they understood the projects well. Their support and advice enabled us to successfully sell our UK-based solar park portfolio.”

The Somerset-based utility services provider has been acquired by private equity house Rubicon Partners and investment firm Grovepoint Capital.

Aquamain was established by founders Gary and Suzanne McConnell in 2004. The company contracts with water companies and housing developers to install water mains and plot connections on large residential sites throughout the country. This process, known in the water industry as ‘self-lay’, is becoming increasingly popular in relation to housing developments.

Richard Cobb, Corporate Partner at Michelmores, commented:

“Aquamain is an outstanding company that has been extremely well-run by Gary and Suzanne. We are delighted to have helped them through the sale and advised on their continued involvement in the business, which looks set to go from strength to strength in the coming years.”

Gary will remain with the business as a shareholder and adviser and will continue to hold positions on a number of industry forums, including Water UK’s consultation in relation to proposed industry-wide changes in the regulation of self-lay.

Gary McConnell said:

“It was a pleasure dealing with the team at Michelmores and we felt like we were in safe hands throughout this transaction. The team provided us with excellent advice and guidance and helped make a potentially complicated process very straightforward. I am delighted with the outcome and excited about my continued involvement with the business.”

This article focuses on the obligations and enforcement mechanisms related to private and voluntary businesses in the UK.

Under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, the EHRC has responsibility for ensuing that employers comply with the law on gender pay gap reporting.

On 19 December 2017, it launched a consultation on its planned approach to enforcement.

What is gender pay gap reporting?

By 4 April 2018, employers with 250 or more employees will need to publish their gender pay gap statistics.

The information will need to be published on both the employer’s website (and remain there for at least three years) and on the Government’s designated website.

What enforcement mechanisms has the EHRC proposed?

The EHRC has produced a draft enforcement policy, which can be accessed here.

1. Encouraging compliance

It outlines a range of activities that it proposes to undertake in order to encourage compliance, such as:

• Promoting awareness;
• Education;
• Monitoring compliance;
• Publicising compliance rates;
• Promotion of enforcement work.

2. Informal resolution

The draft policy highlights that informal action and cooperation are the ECHR’s preferred options.

Informal action will include:

• writing to the offending employer to remind it of its gender pay reporting obligations;
• requiring acknowledgment of the letter within 14 days;
• requiring confirmation in an acknowledgment letter that the employer will:
  • retrospectively rectify its non-compliance for the past reporting year within 42 days;
  • comply with its obligations by the relevant reporting date in the current reporting year.

Where the EHRC receives the necessary assurances and the employer complies with its obligations within the timescales, no further enforcement action will be taken.

3. Formal enforcement

Formal enforcement will be used only when informal resolution does not achieve compliance.

The EHRC has identified a number of powers that it may utilise:

• Section 20: The EHRC will conduct an investigation into the alleged unlawful act. This will include the production of terms of reference, gathering and analysing relevant evidence, and ultimately, producing final report into the allegations.
• Section 23: During a section 20 investigation, an employer will be offered the opportunity to enter into a written agreement to comply with the Regulations, as an alternative to continuing with the section 20 investigation. A section 23 agreement would involve the employer agreeing to comply with the Regulations retrospectively for the past reporting year (within a specific timeframe), and comply with the Regulations for the present reporting year on time. If an employer enters into a section 23 agreement and complies, no further enforcement action will be taken.
• Section 24: If an employer fails to comply with a section 23 agreement, the EHRC will apply to the County Court to enforce compliance.
• Section 21 and 22: If the employer does not accept the offer of a section 23 agreement and the outcome of the section 20 report is that the employer has breached the Regulations, an unlawful act notice will be issued. This notice will require the employer to draft an action plan, within a specified time, setting out how it will remedy its breach and prevent future breaches. If the EHRC do not receive an action plan, they can apply to the County Court for an order requiring one to be produced. If an employer fails to comply with an action plan, the EHRC may apply to the County Court for an order to comply. Failure to comply with a County Court order is an offence, and if convicted, can result in an unlimited fine.

Getting involved with the consultation

The EHRC wishes to hear from business, representative bodies and other interested parties on its planned approach to enforcement. You can respond to the draft policy by completing this online survey: https://www.smartsurvey.co.uk/s/GPGRconsultation/.

The closing date for submissions is 2 February 2018.

For further information on preparing for GDPR, please contact Rachael Lloyd, Solicitor on [email protected].

Shipping containers might not be the most obvious choice of building material. However, over recent years, there has been a significant increase in the use of shipping containers forming the basis of a number of high-profile, commercial development schemes.

Back in 2012, food chain Wahaca opened the doors of its restaurant made of shipping containers on London’s Southbank − whilst Hilton Hotel’s new Bristol Airport offering is based on shipping container infrastructure.

Why shipping containers?

Forget the old days where containers were used for shipping and storage. Mainly used for commercial purposes at the moment, the containers can be likened to ready-made building blocks being acquired, converted and then used as spaces from which to run a business.

Because they are inexpensive and relatively small in size as single units, these shipping containers can be fitted-out offsite, therefore reducing costs. The containers also have the ‘upcycling’ appeal popular amongst consumers, providing the perfect setting for a forward-thinking business in 2018. Craft beer stores, bicycle manufacturers, clothing retailers, bakeries and offices have all taken residence in upcycled containers. Whilst the focus is on commercial spaces, shipping containers have been used in a number of residential schemes.

Whilst there are numerous benefits to jumping on the shipping container trend, how easy is it really to base a business in a shipping container, what are the potential pitfalls and where do you stand legally?

Key considerations

Before buying a container there are a number of questions to consider:

• Purpose: The first two questions to answer are: i. what is the shipping container(s) going to be used for and ii. where will the container(s) be sited? The answers to these two questions are the starting point to determine other important considerations, such as the need for access to certain services or the reliance on footfall.
• Finance: How will I fund the purchase or conversion? Can you borrow money to buy a shipping container? Are there any legal considerations re finance?
• Planning, Licences, Permits & Building Regulations: Do I need planning permission to site the container on land, convert it into a habitable space and to run a business from it? How do I buy a shipping container and what paperwork is needed? Do I need consents or licences to discharge waste or water? How do I make utility connections?
• Purchase: How do I align the funding I may receive from a third party or bank with obtaining the relevant consents and permissions to do what I want to do with the actual purchase of the containers?
• Logistics: Once I have purchased the container, how do I transport it to where it needs to be and install it?
• Management: You will also need to consider how the space will be used and by whom and how it will be managed on an ongoing basis.

Asset management and portfolio opportunities

Depending on what the permitted use of the container is, there is also the opportunity to invest in shipping containers, giving someone else permission to use it by granting a lease or licence.

Shipping container developments may provide a unique investment and occupation opportunity with potentially low overheads when compared to projects which often require large upfront capital investment to fund the construction of a building.

There are also opportunities and potential challenges for landlords, including financing/mortgage, insurance, repair, contracts, service rates charges etc.

Are shipping containers here to stay?

There is no doubt that the use of shipping containers has caught the attention of many of the UK’s major developers, both in the UK and internationally. Time will tell whether the potential advantages are realised over time and this style of modular building becomes the norm. However, with any new, less traditional and less tried and tested style of development, there will inevitably be a number of areas that must be carefully considered before embarking on a project. Whilst there are a number of benefits, a well-planned and informed approach is vital to the success of any shipping container scheme or investment.

For more information, please contact Joanna Damerell, Partner in the Real Estate team.

After 2017 saw a record-breaking year of fundraising for the Firm, Michelmores is pleased to announce its new charity partnerships for 2018:

The Amber Foundation

Michelmores’ Exeter office has chosen The Amber Foundation as their next charity partner. The Foundation helps homeless, unemployed young people to regain control of their lives, find their feet and move on to positive, independent futures. They deliver a blend of support, training, experience and opportunity that encourages young people to focus on their strengths and move forward towards work, secure housing and a more fulfilling future.

Bloodwise

The Firm’s London office has voted to support Bloodwise throughout 2018. Bloodwise fund vital, lifesaving research to change the lives of people with all forms of blood cancer. They also campaign to raise awareness and support those affected by blood cancers with information and advice on research, trials and treatments.

See change

The Firm’s Bristol office will be continuing their partnership with See change, the local name in Bristol for the Julian House group, for another year. The charity aims to support and empower socially excluded people to build sustainable, independent lives. They provide opportunity and support to help people move away from rough sleeping, through accommodation, education and training and employment opportunities.

David Thomson, Partner and Head of Michelmores’ Charity of the Year Committee commented:

“Engaging with the communities where we live and work is a priority, and we are delighted to kick-start a new partnership with these fantastic charities.

We will be increasing awareness through a range of fundraising activities, including fun runs, bake sales, parachute jumps and any other challenges our people come up with to raise money. One of the Firm’s flagship events, the annual Michelmores 5K Charity Run, has now raised in excess of £300,000 for local organisations over its 18 year history – with last year alone raising a record-breaking £33,400.

“We are hoping for an even bigger and better year of fundraising than last year!”

For further information on each of the charities, please visit their websites: The Amber Foundation, Bloodwise and See change.

This article was first published by South West Business on 11 December 2017.

The Department for Communities and Local Government (DCLG) published some very welcome guidance clarifying when planning permission is required in relation to three types of rural development. We summarise the guidance and highlight a few relevant issues to consider

Farm shops

Farm shops can be developed either under existing “permitted development (PD) rights” or by obtaining planning permission.

The relevant PD rights are contained in Class R of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, which allows change of use of agricultural buildings to a flexible commercial use, when certain conditions are met.

The terms of the PD rights differ depending whether the farm shop would exceed 150 m2 cumulative floor space. If it does not exceed this limit the applicant just has to send certain information to the local planning authority (“LPA”). This comprises the date the site will begin to be used for any of the flexible uses; the nature of the use or uses; and a plan indicating the site and which buildings have changed use.

Where the development of a farm shop would be greater than 150 m2 cumulative floor space, but does not exceed 500 m2 an application for prior approval must be made to the LPA. This is to allow the local authority to consider any potential impacts of the proposed farm shop development (e.g. changes in traffic, noise, contamination and flood risk) and decide how these can best be mitigated.

Where a planning application is submitted the  new  guidance advises applicants to  consider both national policy (set out in the National Planning Policy Framework) and local plan policies when developing the proposal.

When considering applications for a PD prior approval or planning permission, the LPA may propose granting permission with conditions in respect of the farm shop development. The guidance provides that in imposing any conditions: “local planning authorities should be mindful of the viability of the business and ensure that the conditions are proportionate and reasonably related to issues directly connected to the proposed farm shop. Planning conditions imposed in relation to a prior approval must only be related to the subject matter of the prior approval.”

So size is critical. If the floor space of the proposed farm shop can be reduced to bring the farm shop within a more favourable planning category, then it might be worth redesigning the site to simplify the planning procedure.

Poly-tunnels

The development of poly-tunnels has caused considerable controversy over the last decade as their use has become more widespread. Whether planning consent is required will depend on the individual circumstances, such as the extent, size, scale, permanence, movability and the degree of attachment to the land of the  poly-tunnels.

Some development of poly-tunnels is allowed under existing PD rights, such as Class A of Part 6 of Schedule  2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. However the LPA   is responsible for deciding whether any type of planning permission is required for a particular development.

The new guidance states that when an LPA has to consider planning applications or prior approval applications for poly-tunnels it is important that: “appropriate weight is given to the agricultural and economic need for the development. Circumstances where poly-tunnels can play an important role include to provide protection for plants or young livestock, to secure improved quality produce and to extend the growing season to provide greater opportunity for home grown produce.”

Clearly one of the key factors influencing the granting of consent  for  poly-tunnels  is  the  requirement  to show the “need” for the tunnel. Careful thought and preparation should therefore be given as to how this is presented to the LPA.

On-farm reservoirs

Full planning permission is not a usual requirement for smaller, on-farm reservoirs, where the excavated waste remains on the farm. These may be developed under existing agricultural PD rights, such as Class A of Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, which sets out the thresholds for excavation and mineral working where reasonably necessary for agricultural purposes. Prior approval will, however, be required from the LPA.

In considering either a prior approval application or a    full planning application for the development of on-farm reservoirs, the guidance requires planning authorities to: “have regard to the increasing need for sustainability, importantly including the careful management of water, the benefits water storage adds in the sustainability of the farming activity and the contribution that it can also make to flood alleviation.”

The  guidance  requires  mineral  planning  authorities to “consider any applications for mineral extraction, which are submitted in order to dispose of excavated waste from reservoirs, in the wider context of the reasons for the development, such as to improve a farm’s  sustainability and to protect water sources.

Therefore mineral planning authorities should not refuse applications for mineral extraction, which have been submitted as a by-product of the need to develop an on- farm reservoir, solely on the basis that this would exceed their local minerals’ supply.”

The guidance advises applicants to provide a clear explanation of why the extracted material cannot remain on the farm, so that can be considered by the mineral planning authority.

There are often environmental benefits to the creation of on-farm reservoirs and if the planning decision is in the balance, then these could also be stressed to both the LPA and the mineral planning authority.

The Michelmores Corporate team has advised Credit Reporting Agency on its secondary buy-out.

The Cornish company is the holding company for Checkmyfile.com, launched in 2000 and the principal business within the group of international credit reporting and comparison website businesses. The website was the first in the UK and in Australia to give consumers online access to credit reports. The group also operates websites in the UK, the Republic of Ireland, New Zealand, Canada, South Africa, India and Australia.

Henry Taylor, Partner in the Corporate team, added:

“Having worked with the team on their previous buy out in 2015, we were delighted to be able to support the management team again. Credit Reporting Agency has exciting plans for further UK and international expansion and its development of new channels and services.”

Barry Stamp, Managing Director, said:

“We have used Michelmores twice now for significant transactions.  Each time we have been impressed with the quality, speed and clarity of the support given to us.”

Digital working has arrived

Over the last few years there have been severe reductions in the numbers of staff at courts, operating behind the scenes. One of the functions of court staff is to create the documentation needed in the issue of legal proceedings and to follow through and record the process to a final court order when everything is completed. So as to try to improve efficiency, a programme of digitising the processes has been implemented and this will gradually extend to all family and civil proceedings. This process has now reached proceedings in the Family Court: from a modest beginning, the system will be extended to cover most areas of legal processes.

Divorce applications (formerly petitions)

One of the first areas to be affected by the new process is the issue of divorce applications (previously called “petitions”). It needs to be emphasised that the grounds on which it is possible to obtain a divorce have not changed but the procedure to do so has.

It is now compulsory for all divorce applications to be issued on-line. There is a standard form for such applications which can be downloaded from the website of the Court Service. That form has to be completed with all the relevant information for the case being started.

Much of the information is what is required by the law so that, for example, the court can be satisfied that it has the jurisdiction (i.e. power) to deal with the case. This is likely to be important if one (or even both) of the parties lives abroad.

Traps for the unwary

Whilst the new system will not create any particular difficulties for solicitors who are aware of the legal requirements, parties who decide to try to represent themselves without a lawyer may very well find that there are potential problems.

The following are merely some of the “traps” that must be avoided:

• The date and place of marriage must follow the precise form of words used on the marriage certificate. A scanned copy of the marriage certificate must accompany the divorce application.
• Details must be included of all “children of the family”. This does not only include the children of the parties to the divorce but to any children of either of them from previous relationships who have been treated as though they were the children of the parties who are now divorcing
• All divorces are now based on the breakdown of the marriage. That breakdown is established by stating in the divorce application which of the five “facts” is relied on. No other grounds can be raised. Brief details of those facts must be given with precise dates where required.
• If the “fact” relied upon is the alleged adultery of the party receiving the application, then a decision will have to be made by the person issuing the application whether or not to name the person with whom the alleged adultery is said to have occurred. This is an important matter because if the third party is named that he/she will have to be served with a copy of the divorce application. Whilst it is understandable that the person issuing the application may well feel aggrieved and that the third party should be named, that is not necessarily the most sensible or practical course to adopt, not least because it might extend the proceedings and make them more expensive.
• The temptation will be to answer “no” on the divorce application to the question about the likelihood of further applications e.g. relating to finance. The reality is that the party issuing the application may need to ask the court to approve a financial settlement, even one agreed between the parties. The reason for that step is that, in practice, parties to divorce proceedings can only be certain that they will not receive unexpected applications relating to finance, possibly many years later, if the court has formally approved an agreement. To get that approval, one of the parties had to issue an application to the court and the person who raises the divorce application cannot do so (at least without the permission of the court) unless the question has been answered “yes”.

Conclusion

In many ways the arrival of the digital age in the implementation of divorce proceedings is a positive step forward. As will be apparent, however, there are dangers that a wrong step could lead at the very least to delays and possible extra expense, but possibly also to the forfeiture of some important legal rights.

One of the concerns of advice groups is that there will be people who are not familiar with computerised systems. For example, in family law, it is increasingly common for those in their later years to be divorced. Such people often do not have computer skills or even equipment. If they cannot obtain help from friends or relatives, they will have no alternative but to take legal advice.

Our recommendation is that legal advice should be taken if divorce is contemplated. This will make it less likely that critical errors are not made in completing the process.

For more information or some preliminary confidential advice please contact Pippa Allsop, Associate in our Family Team, on +44 (0)1392 687747 or email [email protected]