What’s new in our plethora of law online services? Steve Savory summarises the highlights.
- The latest update to Hershman & McFarlane: Children Law and Practice went live towards the end of the month. In this release, amongst many other technical updates contained in this release (which are summarised here), the expanded coverage of ‘Lies’ is particularly noteworthy:
A family court, in common with a criminal court, can rely upon a finding that a witness has lied as evidence in support of a primary positive allegation. The primary criminal authority is R v Lucas (R) in which the Court of Appeal Criminal Division, after stressing that people sometimes tell lies for reasons other than a belief that the lie is necessary to conceal guilt, held that four conditions must be satisfied before a defendant's lie could be seen as supporting the prosecution case as explained in the judgment of the court given by Lord Lane CJ:
‘To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.’
R v Lucas concerned a ‘lie’ told out of court, but the same principle applies to a ‘lie’ told in the course of the proceedings. Where a ‘lie’ may be relevant in family proceedings, a judgment may contain a ‘Lucas direction’.
In Re H-C (Children), McFarlane LJ stressed:
‘One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton.’
- Regardless of one’s views on their desirability as footwear, the popular shoes of American origin known as 'Crocs' have been a source of abundant interest in the patent courts. James Nurton analyses two recent cases in the latest issue of the Bloomsbury IP/IT Law Briefing:
'The first case (T-651/16, Crocs, Inc. v EUIPO) concerned an application filed by Crocs on 22 November 2004. In its invalidity challenge filed in March 2013, Gifi alleged that the design lacked novelty under Article 5 of the Designs Regulation as it had been disclosed before 28 May 2003 by the sale of clogs, at a boat show in Fort Lauderdale in the USA and on the Crocs website. This challenge was dismissed by the invalidation division on the basis of lack of evidence, but in June 2016 the Third Board of Appeal of EUIPO annulled that decision and declared the design invalid.
Upholding the Board’s decision, the General Court said a two-step analysis is appropriate in such cases: first, does the evidence show that the contested design had been disclosed before the relevant period started? If so, can the applicant for the design demonstrate that the disclosure ‘could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, in the European Union?’
In the second judgment (Case T-424/16, Gifi Diffusion v EUIPO), Gifi Diffusion was challenging a Board of Appeal finding in relation to a different design application by Crocs, which was filed on 30 May 2007. In that case, Gifi had claimed that the contested design lacked novelty, citing a large number of earlier designs. The Board of Appeal held that 16 of these designs did not call into question the individual character or novelty of the contested design.
However, the General Court accepted Gifi’s argument that the Board failed to examine all the evidence it had produced, and the Board’s judgment did not mention several of the designs cited: ‘In the present case, it is clear that, in the light of the Board of Appeal’s assertion that it was required to re-examine the application for a declaration of invalidity in its entirety, followed by a one-by-one examination of the contested design in relation only to Designs D 1 to D 17, it is impossible to infer from the wording of the contested decision, or the context in which it appears, what is the implied reasoning justifying the failure to take into account Designs D 18 to D 22.’
- A new edition of Blomfield and Brooks - A Practical Guide to Family Proceedings went live during the month. Readers who are familiar with the earlier editions will know that this title provides clear, easy to navigate guidance on what needs to be done, who needs to be called and what forms need to be prepared in all matters relating to family law proceedings. The guidance on emergency applications, for example, shows very clearly the special merits of this title, now in its sixth edition:
Out of hours contacts
In cases of real emergency, a judge may be prepared to make an order outside normal court hours. Every court area will have an Urgent Court Business Officer for the group of courts for the area. All practitioners who specialise in a sphere of law where this may be necessary should keep a record of relevant telephone numbers. Police Stations should have a number for the Officer. If this cannot be obtained, contact should be made with the security office at the Royal Courts of Justice (020 7947 6000 or 020 7947 6260) who will refer the matter to the Urgent Business Officer, who may in turn contact the duty judge at the appropriate level of court.
What is urgent
The High Court Out of Hours system operates between 16.15 and 10.30 the following morning, and over weekends. The county court guidance only operates until 8.30 in the morning, but courts will generally be helpful in the case of a true emergency. When the court is not sitting, a service is provided day and night.
Urgent is defined as cases in which an order of the court is required to regulate the position between the moment the order is made and the next available sitting of the court in normal court hours. It must be capable of being reduced to a faxed sheet of A4 or its email equivalent and a short telephone conversation. The judge should not be required to consider substantial documentation unless absolutely necessary. Whether or not a case is urgent will always be a matter for the judge.
Where appropriate, consultation should take place with the Official Solicitor, Cafcass or Cafcass Cymru, whose contact numbers are to be found at para 14 of the Practice Note.
Precedent of the month: The new edition of Blomfield and Brooks, as one might expect from that title, continues to be an abundant source of precedents and forms. The Letter of Consent for the Purposes of Matrimonial Causes Act 1973, s 1(2)(d) is a typical and valuable example:
I, John Doe, of 2, Ash Grove, Littleton-on-Sea, Sussex, hereby give notice that my wife, Mary Doe, and I separated in or about April 2005 since which date we have not resumed cohabitation. I also confirm that I agree to a divorce on the ground that we have lived separate and apart for a period of at least two years with my consent to a decree being granted.
Dated 9 March 2012