Neither A Borrower Nor A Lender Be?

Neither A Borrower Nor A Lender Be?

“Neither a borrower nor a lender be,
For loan oft loses both itself and friend,
And borrowing dulls the edge of husbandry.”

I can quote from Shakespeare with the best of you – provided I have a wi-fi link of course.

Leaving aside the final phrase, in line with the behaviour of governments and car purchasers everywhere, the first two lines sing to us loud and clear from four hundred years ago.

But as the case of Lejonvarn discussed below reminds us, never mind merely not lending. Also, giving gifts can result in a nasty bite.

In these frightening virus times we are mindful of others, and property adjusted people are wanting to help. Far be it from me to dissuade you. But just be aware that the true rewards for generous benefactors are more often found in heaven than in this life.

Tricky business though, being a good person. As the blessed Vinnie Jones showed us, Hands-Only CPR (cardiopulmonary resuscitation) can save lives. But he didn’t mention that it can and probably will break ribs. There are USA documented cases of folk having their lives saved, then suing their kind lifesaver.

-Link Here –

“In case of cardiac arrest resuscitation attempts should continue until adequate spontaneous circulation is achieved or until the death of the patient is ascertained. Nevertheless, these attempts may cause considerable injuries to patients, thus increasing rescuer’s exposure to legal risk.”

So you can opt to save a life, or worry about being sued for causing bodily harm. Your call.

The case of Lejonvarn is that of a generous person who gave of her knowledge and expertise, and presumably now bitterly regrets it.

It has been described as the case that just keeps on giving, at least to those like me who write Blogs.

Eight years ago – eight long and worrying years for Mrs Lejonvarn, an Architect, since her neighbours asked her for a favour. Perhaps they asked for a “little favour”. It’s usually a little favour. The most valuable lesson a professional can learn is, it’s never little.

When you hear the phrase, run. Run as though the Devil is at your heels.

Mrs Lejonvarn was too kind, or naive, to run away when her (then) friends Mr and Mrs Burgess asked for the little favour of assisting with proposed landscaping works to their large garden and grounds.

She did some preparatory work for them, free of charge. Works continued after she had left the project to the contractors and workmen on site.

The original case of Lejonvarn was the subject of a blog I wrote in 2016 – link here-

And the 2016 case report is – link here-

But in 2016 all that was decided was a question of law – whether Mrs L, who was not being paid, could be negligent in performing tasks out of the goodness of her heart, so that she could be made to pay compensation if things went wrong.

Well I think, I could have told her the answer to that. It is “Yes”. Of course, you have to be just as careful when you are working for nothing as when you are getting well paid. Next question? So round one to the Burgesses. But all that Court hearing decided was that it is possible to sue someone for bad work, whether or not you are paying them. It did not actually look at the quality of the work.

The case then moved to a final decision on the work itself, and I blogged about that in 2019 – link here-

And the Law Report of that second and deciding 2019 case is – link here-

The Judges found that Mrs Lejonvarn had no contract with the Burgesses, so she was not contractually responsible for their losses nor under any contract liable to compensate them for what appears to be little more than rage at a disappointing outcome to their garden plans.

Not on a contractual basis.

And not on a Tort basis (negligence) either, since the Court decided that the evidence before it actually was that what Mrs Lejonvarn had done, was done well, and there was no reason for any complaint about it. If she had fallen out with the Burgesses and walked away before the work was finished, that was entirely her right, and if the works went to hell after that, it was nothing to do with her.

As I wrote in that blog, “Of course the next argy bargy will be – who pays the extremely substantial Court costs?”

Well now we know, and the decision looks at first glance to be a massive win for Mrs Lejonvarn. So hurrah for that, and you might need a heart of stone not to feel cheered up by a judgment which means that Mr and Mrs Burgess will now not only have to pay their own lawyers, but also the full amount of the fees of the lawyers for Mrs Lejonvarn – which will be around £725,000.00.

Say it quickly, but it still doesn’t help does it, it’s a fortune.

I say at first glance – because of course Mrs Lejonvarn has really won nothing except, at last, peace of mind. In order to defend herself from the outrageous claims her erstwhile friends have blighted her life with, she has incurred lawyers’ fees of £725,000.00. So of course this judgement won’t even put a penny in her own pocket, it won’t provide her with any financial compensation for years of worry: – it just means that her lawyers will get paid by the Burgesses.

However, at least it does mean that. It is an award of costs on the “indemnity basis”.

And if you are not a lawyer, you may be thinking well, that’s how it goes. There is a Court case, and the loser pays all the bills. It’s only fair.

As the lawyers know, that is not how it usually goes at all.

Usually the loser will be ordered to pay the winner’s costs – yes – but calculated according to something called the “standard basis”. Which typically means only about 60% to 75% of the actual bill if that.

A case has to be considered by the Judge to be “out of the norm” before the winner will get every penny. I suppose the idea is that rich defendants should not be able to scare away a claimant by using the most expensive lawyers and barristers and expert witnesses without themselves taking the risk of paying a substantial amount of those fees incurred even if they win.

So in the 2020 case just now decided, the issue was only -”Who should pay the Costs, And what percentage of the costs?”.

So, here is -the link- to the Law report on this year’s hearing, the one about costs

Was this case “out of the norm” so that Mr Lejonvarn should get all of her costs paid? Yes indeed. The Judge said that the Burgesses had pursued their litigation well beyond the point of any reasonable justification.

He approved the decision of the earlier Judge, that the Burgesses were not being rational, they had lost all sense of proportion, and they were blaming Mrs Lejonvarn for stuff that had “gang agley” long after she had walked away from their troublesome garden.

And this, being a case resulting from “an irrational desire for punishment”, which was unlinked to the merits of the claims themselves, “is precisely the sort of conduct which the court is likely to conclude is out of the norm”.

So the case that just keeps on giving, has given me scope to write three blogs. Surely it’s over now? And each time I have looked at it the motto has been the same – don’t do favours. No good deed goes unpunished.

That of course, is strictly legal advice. Your good heart may tell you different.

Nice song here –Nothing is better, nothing is best. Take care of Your Health and get plenty of rest –

As ever, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747. Please also visit our website http://www.atkinsonnotary.com

We Thought We Got Married? But We Can’t Divorce?

The Law of England is of course always changing, in order to reflect the fact that day to day life changes.

That does not mean that the Law can be considered to be whatever you want it to be. At least, not for the time being. I think there is still a consensus among the British that certainty in the Law is a good thing.

In the area of Marriage laws, in England and Wales, if you want to get married, there are certainties – rules. Rules as to your ages, your relationship to each other (you cannot marry your brother, etc.) whether you are actually unmarried (bigamy is a crime) etc.

If you are going to persuade the British state that you got married in England, you need to have a marriage certificate.

[I have blogged earlier about the chap who had never been to Ghana but found out that a ceremony there which he did not attend resulted in him being legally married in the eyes of the English Courts. -Link Here- – bit of an unusual one that was. This Blog is not about that!]

So eyebrows were certainly raised in 2018 by the judgment in the case of Akhter and Khan when Mr Justice Williams decided that a couple who had never married were in fact parties to a “void” marriage.

When Muslim believers attend a Mosque to marry each other in a Muslim country such as say Pakistan, the religious ceremony of marriage called the “Nikah” is effective to create their marriage. If that couple travels to live in England, the English Courts will accept that they are married. Because, it was a ceremony conducted in Pakistan where it resulted in a marriage recognised in Pakistan. And so when they come to England, they are of course still married and England accepts that.

But if it takes place in England, the Nikah alone does not create a marriage recognised in England. Because the rules in England are not the rules of Pakistan. This is well understood among Muslims in England and indeed many mosques here will not celebrate a Nikah unless a civil marriage has already taken place.

And in the case above, the wife was well aware that English law requires an English ceremony sufficient to result in an English marriage certificate and her evidence made it clear that she had joined in the Nikah on the clear understanding that it would be followed within a very short time by an English civil marriage.

So it is unlikely that the wife was truly expecting her application for an English divorce to be allowed by the Judge and the whole of the English legal profession was extremely surprised when it was. The Judge said in effect:- yes you aren’t married, but you can have a divorce – and also therefore the benefit of all of the English divorce laws as to the division of marital assets, and maintenance and child maintenance rights etc.

Here is a link to the case report –link here-

Once again – “you aren’t married but you can have a divorce”.

Really?

The Judge was trying to persuade himself that the Nikah alone resulted not in a “Non-Marriage” like everyone thought, but in a class of marriage called a “Void” marriage.

An example of a void marriage might be the marriage of Mr Rochester to Jane Eyre at the first attempt if it had ever happened, and happened in the present century.

Jane did not know that Rochester was already married to mad Bertha locked in the attic. She understood that her proposed marriage was real, would have assumed she was properly married if the ceremony had completed. If she later found out the marriage was void, she could get therefore divorced.

Contrast this with a “non-marriage” – say, one of the marriages in Four Weddings and a Funeral. Dur, These are film actors pretending. They cannot get a divorce.

But if our Judge thought a Nikah created a void marriage, I’m pretty sure no-one else did.

His decision comes as further example of the maxim that “Hard cases make bad law”. The wife’s situation here was no doubt a hard case.

Most unfair of her “husband” to take her through a ceremony which was morally and religiously binding upon her and upon her conscience – doing so in full knowledge that it had no legal significance in the Country where it took place unless it was followed by an English civil marriage which he had only pretended he would agree to. In the full knowledge therefore that he could walk away from her whenever he chose, free from sanctions of the English divorce courts.

If the refusal of the husband to proceed with the English Civil marriage had caused the wife to walk away from the relationship almost immediately, I do not think the Judge would have found it possible to find the marriage to be a void one or any kind of one.

But she did not seek to walk away immediately, in fact by the time of the case the “marriage” had lasted for eighteen years and there are four children.

But in trying to help the wife with her “hard case”, the Judge’s decision can now be seen to have resulted in “Bad Law”.

Because a marriage either is, or isn’t a marriage. It complies with the rules, or it doesn’t. It cannot be a sort of “wait and see” sort of thing, whereby a “non-marriage” morphs into a “void marriage” after what – a year? Two? Eighteen? A child? Four? It really cannot be that we don’t know whether we are married when we leave the ceremony, it depends what we do next?

So here is the outcome, hottish off the press – the decision of Mr Justice Williams has been overturned – Link Here –

The judgment has restored certainty. But it has of course returned participants in a Nikah to their previous very difficult position.

As her Counsel said – “in this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying he has thus left her in the situation where she does not have a marriage which is valid under English law …… Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, the reality for this wife and I suppose many others in her situation is that [just walking away from the “marriage”] was not a realistic option for her. Thus if this marriage is not a valid marriage according to English law nor a void marriage she is left without the remedies which arise from divorce or nullity.”

Any answer I could suggest of course comes too late for this lady, mere hindsight. But my suggestion is that the English Civil ceremony should come first before the Nikah, or better still should be combined. Many mosques are approved venues for marriage and the Nikah and the English marriage can take place together. (It took me all of ten seconds to find the North Finchley Mosque webpage – link here-).

Of course the preservation of divorce rights is a bit of a pessimistic priority for getting married. Here is an optimistic song –Let’s get married, you can have a cat, just as long as it barks-

If you would like to speak to us about our Notary practice -what we can do and what we can provide – then please do not hesitate to visit the website http://www.atkinsonnotary.com or contact me or Louise Morley on 0113 816 0116 or email louise@atkinsonnotary.com to discuss further.