James Gratton reports on a difficult case in which a workplace accident led to elective amputation
In Greenall v Aldi Stores Limited, the claimant was employed as an HGV driver on a contract for Aldi, and was injured on 26 December 2014 while at Aldi’s Neston Distribution Centre on the Wirral.
Three doors – being the male toilets, the female toilets and a door from the stores – opened up almost directly onto a traffic route within the distribution warehouse, where vehicles were moving goods. The layout of the premises in that regard was an accident waiting to happen. The claimant, or indeed any other worker coming through any of those three doors, was only ever one or two paces from danger.
On the evening in question, the claimant walked out of the men’s toilets and was promptly run down by a fork-lift truck (FLT), reversed into him by one of Aldi’s permanent staff who was not looking where he was driving.
The nearside rear corner of the FLT struck the claimant, knocking him to the ground, and the FLT then drove over the claimant’s right foot and ankle. The FLT had no warning light or siren, and there was no separation of vehicles and pedestrians in the relevant area of the premises.
Following the accident, a railing was erected in front of those doors so that workers coming through them would have to turn left and walk around a corner and away from moving vehicles.
A suitable and sufficient risk assessment in compliance with the Management of Health and Safety at Work Regulations 1999 would have identified both the risk and its solution. The erection of a railing was both reasonably practicable and unlikely to have cost more than £2,500.
Safeguarding persons at work by the erection of a railing would have complied with the duty imposed on the defendant by the Workplace Regulations 1992 and would have avoided the accident.
The defendant was and is a large multi-national company, well- resourced to obtain and take specialist advice as to health and safety vis-à-vis the layout of the premises. That said, it ought not
to have taken an engineering or occupational hygiene expert to point out the clear danger, or to suggest a solution to the obvious risk: common sense could and should have seen the need for a rail.
The defendant was sufficiently well- resourced to have commissioned one upon the opening of the premises. The regulation has been in force since 1 January 1993 for new premises, and since 1 January 1996 for premises already in operation at the commencement date of the regulations.
While Section 69 of the Enterprise and Regulatory Reform Act 2013 took away the right of action for breach of the regulations, the reasonable employer will comply with the regulations, breaches of which are evidence of negligence.
The defendant admitted primary liability on the basis of vicarious liability for the inattention of the FLT driver.
It denied that the Workplace Regulations 1992 or the Occupiers’ Liability Act 1957 applied, or that duties were owed to the claimant pursuant to the 1992 Regulations or the 1957 Act, presumably so that it could better argue for contributory negligence on the basis that the duties owed to a visitor at common law were less than those owed to an employee.
The defendant alleged that the claimant shared in the blame for the accident by failing to warn the driver of his presence, and in failing to pay sufficient attention to where he was walking; and that as a regular visitor to the premises, he was or ought to have been aware of the risk.
The defendant disclosed about 1.5 hours of CCTV footage taken from a camera above the toilet doors and facing into the warehouse. The claimant at the point of the accident and in the immediate aftermath was visible in that video for about 1.5 seconds.
The claimant could be seen looking to and walking to his left when he came into the CCTV camera’s field of view, and the FLT was moving to the right, when suddenly the FLT went into reverse.
The CCTV footage gave the impression that the claimant had not looked where he was going. It was perfectly possible that the claimant saw the fork lift truck moving forward and away from him as he opened the door from the toilets and stepped behind the vehicle, looking to his left so as
to ensure that there was no traffic coming from the other direction. CCTV from another angle might of course have made this clearer.
The allegations of contributory negligence were refuted. Additional footage was requested from other cameras.
The defendant stated that this had been taped over as the letter of claim was received 29 days after the accident and that the footage (save that which assisted the defendant) had been erased on day 28.
No witness evidence from the person who made the decision about what to save and what to erase
was ever provided. Eventually that allegation was quantified at 20%
by the defendant in a statement in opposition to an application for contributory negligence.
There were clear breaches of every aspect of regulation 17 of the Workplace (Health, Safety
& Welfare) Regulations 1992, which imposes an absolute duty. That duty was to ensure that pedestrians and vehicles were able to circulate without risk to health and safety, principally from collisions. The aforementioned doors opened up almost directly onto a traffic route where vehicles were moving goods.
Provision of a railing would have prevented the accident. That the foreseeable risk contemplated by regulation 17 predictably materialised is not evidence of contributory negligence.
Even if the claimant was not able to say that he noted the fork-lift truck moving forwards and away from him to his right, he would have been guilty only of momentary inadvertence or inattention, from which effects compliance with regulation 17 would have afforded him complete protection.
At the joint settlement meeting in April 2019, the allegations of contributory negligence were effectively abandoned four years after they were made: no discount was given for contributory negligence and none was sought.
Interim payment application
At the time of the accident the claimant was aged 26, an ex-Army medic with tours of Afghanistan under his belt, a keen carp fisherman, a cross country skier, a snowboarder and a hiker and was married with two young children, one of whom had special needs.
The claimant suffered a de-gloving injury to the right foot. He underwent a series of approximately 10 surgeries with a view to first saving the foot, and then re-fashioning it, including a free flap transfer from the upper back.
Unfortunately the claimant was left in almost constant pain with a grossly swollen foot which was insensate across much of the sole. The grafts would not stand more than 10 minutes of weight bearing without damage to the skin. There was a 30 cm hypertrophic scar at the donor site.
The claimant was also left with a painful neuroma in the heel, which was able to be repositioned, but not excised.
He had been unable to work since the accident, had suffered a reactive depression and was in constant pain.
He walked with an antalgic gait, was unable to wear a shoe on the affected foot and mobilised with crutches or a stick and sometimes by use of a wheelchair. The foot was covered in a pressure sock and leaked exudate, which was often foul smelling.
Further, the upper left limb was weakened somewhat as a result of the loss of tissue taken for the free flap transfer.
By the time that proceedings were issued in May 2017, the outlook was bleak. The claimant was heavily dependent on his wife, who had had to switch to part-time at work in order to look after him.
The claimant instructed this firm on 15 January 2015 and a letter of claim was sent on 22 January 2015. Primary liability was conceded on 21 April 2015 and contributory negligence as above was alleged.
A series of interim payments over the course of the following 24 months totalling £95,000 net of CRU were made voluntarily. The claimant underwent a number of surgeries on the NHS in an attempt to improve the appearance, function and pain in the foot, but to no avail.
On 18 May 2016, the defendant made a part 36 offer to settle the claim at £125,000, gross of interim payments and CRU. That offer was not responded to.
On 28 April 2017, a further interim payment of £905,000 was requested from the defendant, to take interim payments to £1m. On 10 May 2017, the defendant baldly stated that it did not value the claim so highly and would not be making any further interim payments.
The claimant was by this time considering elective amputation. He felt stuck and an invalid. He wanted to take an active role in the lives of his young children and wanted to get back to meaningful activity.
On 15 May 2017, the claimant was seen at our suggestion by Associate Professor Al Muderis at Dorset Orthopaedic’s Burton Clinic. We were aware from one of our other matters that Professor Al Muderis was visiting the clinic from Australia. He is the leading expert on osseointegration worldwide.
Professor Al Muderis opined that he would consider undertaking an elective amputation and immediate osseointegration as in his view the foot simply was not viable long term. No such combined procedure involving elective amputation followed by immediate osseointegration
had at that stage been undertaken worldwide. The claimant indicated that he wanted to pursue this option.
Moreover, at this stage the claimant was in danger of losing his accommodation, which was a rented house. The interim payment was necessary to ensure that there was sufficient funding for travel to Australia for the claimant and his family, the cost of amputation and osseointegration in Australia; the costs of prosthetics; the purchase of suitable accommodation; rehabilitation; case management; and general funds for the claimant’s income and living expenses through to trial.
Proceedings were issued out of the Liverpool District Registry on 12 May 2017 and included a claim for provisional damages. As soon as the time for acknowledgement of service had expired, an application was issued for summary judgment on the pre-action admission and costs; for an interim payment; and for a payment on account of costs. Judgment in default was also entered on 5 June 2017.
In between the issue of proceedings on 12 May 2017 and the hearing of the interim payment application on 6 July 2017, the decision of William Davis J in JR v Sheffield Teaching Hospitals NHS Foundation Trust  EWHC 1245 was reported, which meant that there was increased difficulty in terms of securing payments for the capital cost of accommodation as per the Roberts v Johnstone formula, whether at an interim stage or indeed at all, in an era of negative discount rates.
One week prior to the hearing of the interim payment application returnable on 6 July 2017, the defendant served a report from its orthopaedic surgeon, Mr Hodgkinson, who had seen the claimant in January 2017. The report was dated 28 June 2017, the same date as the defendant’s draft defence and counter schedule of loss.
He opined that amputation was not indicated and suggested that the claimant was not sufficiently motivated in his rehabilitation. Further and for good measure, he suggested that the claimant did not need at that stage, or indeed later should he become a below knee amputee, single storey accommodation.
Two days before the interim payment hearing, the defendant offered to compromise the application at £350,000. That offer too was not given a response.
At the hearing, HHJ Wood QC made initial observations. Those were that if the claimant wished to
have an elective amputation, that was a matter for him and not the defendant’s expert, and he would not be minded to find that refusing to follow Mr Hodgkinson’s advice and undergoing amputation was a failure to mitigate loss.
In fact, and perhaps counter- intuitively, amputation and osseointegration was expected to reduce the overall value of the claim, giving rise to a reduced need for care and case management and a potentially stronger residual earning capacity.
Moreover, following the decision in JR v Sheffield, while HHJ Wood QC felt that he was constrained from ordering an interim payment for the capital cost of accommodation, he indicated that he would in the alternative be prepared to capitalise the future loss of earnings claim at the interim payment stage.
He rose to allow negotiations, whereupon the defendant offered £700,000 by way of interim payment and a £60,000 payment on account of costs. That offer was accepted. In addition, the defendant was also ordered to pay the costs of the application.
Directions and costs budgeting
At a CCMC on 12 September 2017, directions were given for a trial in April or May 2020 with an ELH of ten days, with experts allowed in the disciplines of orthopaedics; plastics; psychiatry; pain management; rehabilitation medicine; care; occupational therapy; accommodation; prosthetics; and employment.
The claimant’s costs budget, following a day-long CCMC hearing at which the budget was heavily disputed, was approved, discounted by about 15%, at £1,114,000. The defendant’s budget was approved as drawn at £273,000.
Immediately following the interim payment hearing, the pre-existing jointly instructed case manager was retained on a single instruction basis, and within four weeks of the interim payment application, the claimant had moved into a rented bungalow with a wet room and had travelled to Australia with his family, where he then underwent elective amputation and osseointegration on 9 August 2017.
The claimant also purchased a VW Caravelle with a left foot accelerator fitted, which was delivered as he returned to the UK from Australia.
The claimant returned to the UK in early September 2017 and underwent the first of several weeks of residential rehabilitation at Dorset Orthopaedic’s Burton Clinic.
Initially he used a Variflex foot, but in November 2017 moved to an emPOWER ankle and foot. He also changed the Variflex to a Proflex and was provided in due course with an aquatic foot with silicone cosmesis for showering and swimming; with a running blade; and also a ProCarve foot for snowboarding.
The claimant engaged a personal trainer, and in due course support worker some 15 months post-surgery, once his physical rehabilitation was complete. He was without any troubling phantom pain or sensation after the first 3 – 4 months post-surgery, and by 12 months post-surgery, the claimant had a near normal gait, and was fully mobile at SIGAM F, although he was avoiding stairs.
A JSM was arranged for April 2019. By that stage, medical expert evidence had been exchanged and joint statements of the medical experts prepared.
Exchange of the non-medical expert reports were brought forward from the directions timetable and exchanged with about a fortnight to go before the JSM. Updated schedules and counter schedules of loss were also exchanged on a without prejudice basis in the week leading up to the JSM.
The prosthetic experts, Moose Baxter for the claimant and Abdo Haidar for the defendant, had also been able to meet and to produce a joint statement.
The defendant’s orthopaedic expert, Mr Hodgkinson, opined, somewhat absurdly, that the claimant could return to work as an HGV driver. The defendant’s psychiatric expert, Professor Wilkinson, felt that the claimant’s psychological sequelae were mild, whereas Dr O’Brien, who had had the advantage of seeing the claimant while his pre-amputation psychological symptoms were florid, held to his view that the reactive depression was moderately severe and that there were risks in the future in the event of setbacks.
There was no disagreement of substance between the plastics experts, Professor Shokrollahi
for the claimant and Mr McArthur for the defendant, or the pain management experts (Drs Eastwood and McDowell). All of the claimant’s experts felt that he required single storey accommodation.
There was more disagreement between the rehabilitation experts, Dr Henderson Slater for the claimant and Dr Sooriakumaran for the defendant.
Dr Henderson Slater fully supported the prosthetic provision as provided to the claimant by the date of the JSM. Further, he felt that single storey accommodation, for a claimant with now three young children, was safer and reasonably required.
He also felt that it was reasonable for the claimant to have a buddy to undertake activities with. There was a risk (which did once eventuate in early 2019) of the prosthetic attachment connector shearing, which meant that the claimant was unable to walk. The prosthetic attachment simply spun, and the connector required two people and the use of two tools to remove and replace it.
The claimant was fortunate enough to suffer the shearing at home. As a result, he was wheelchair bound only for a day, and the connector fixed at Dorset Orthopaedic the following day. Had the Claimant suffered the event while out fishing alone, he would have been in a very vulnerable position.
For the defendant, Dr Sooriakumaran took the view that the prosthetic provision was overkill, and that the claimant could reasonably make do with a cheaper foot and ankle, and that he would not need single storey accommodation until he was 70, whereupon he would need care, but only basic prosthetic provision.
There was a good deal of agreement as between the prosthetic experts, and the emPOWER ankle and foot was one of a range that the defendant’s expert would have found to have been reasonable provision, although Mr Haidar would have recommended a less expensive device.
Each felt that as long as the claimant maintained SIGAM grade E mobility or above (to at least age 70 on Dr Sooriakumaran’s view) that a microprocessor foot and ankle was warranted.
The claimant’s schedule as served for the JSM was calculated at a discount rate of -0.75% at a shade over £10m. A second schedule based on a discount rate of 1% was also provided to claimant’s leading counsel at £6.5m.
Of that figure, more than £2m was for care and services, including in large part, the cost of a buddy
at 20 hours per week and case management, which together accounted for £1.5m of the £2m for this head of loss.
Accommodation was claimed at £1m and prosthetics at £0.9m. The defendant served a counter schedule at total of £1.43m.
Future care from age 30 to age 70 was a difficult area of the claim – the claimant had recovered to be pain free and had a normal gait. He was mobile with his emPOWER ankle and foot, and wore a prosthetic for most of his walking hours. Indeed, in the early days he wore a prosthetic to bed.
He was vulnerable when engaged in his pre-accident activities alone. He was not keen on being restricted as to when he could undertake activities such as fishing in the countryside overnight. The need for a buddy was really to cover the claimant in case his connector sheared. The defendant was of the view that he could simply purchase a satellite telephone and keep it on his person when out fishing.
Accommodation was another difficult area. The claimant had moved to a much better area when he obtained the interim payment – it was the only true bungalow with a walk-in shower and level access available to rent within a 30 mile radius.
Given that his children had become established at the local village school and that his wife had given birth to a third child, the claimant was not keen to uproot the family again. He wanted to stay in the area where he had now become established.
There was also the difference of opinion as between the claimant’s experts and most, but not all, of the defendant’s experts on the need for single storey accommodation before age 70 in the first place, and the cost of this in the area where the claimant had been living pre-accident.
Loss of earnings had been pleaded at £0.75m on a full loss to age 65. The defendant’s suggestion
that he could return to work as an HGV driver was preposterous. The claimant was not of an academic bent and would but for the accident have been engaged in factory, warehouse, or HGV work, all of which is closed to him given his injury. His employment capacity was thus felt to be markedly restricted.
No significant discount was allowed on the prosthetics claim.
The claim settled at the JSM on 12 April 2019 at a presumed +1% discount rate for £3.3m. The claimant had been advised on the discount rate and the likely effects of any changes throughout the action. The defendant was only prepared to settle at a 1% discount rate in April 2019, and the claimant did not wish to postpone or refuse to settle until the result of the discount rate review had been announced.
A suggested breakdown of the settlement figure is:
Past losses to the date of the JSM
Loss of earnings
Care and services
Treatment & therapies
Travel & transport
Aids & equipment
£500,000 £500,000 £500,000
£50,000 £150,000 £200,000 £350,000 £125,000
£805,000 £3.3 million
Counsel for the claimant on the interim payment application and at the JSM was Christopher Melton QC and on the CCMC, Darrel Crilley. For the defendant, counsel throughout was Peter Burns QC, who took silk part way through the case. All counsel practise from Byrom Street Chambers in Manchester.
Solicitor for the claimant throughout was James Gratton of E Rex Makin & Co, Liverpool. Solicitor for the defendant was Chris Matthews, assisted by Hannah Brierley from Clyde & Co, Manchester.
Our clients, Ralph and Jimmy Bulger, have requested that we post the content and link of below.
Ralph Bulger is raising legal funds to return to court to fight for justice for his murdered son James and to campaign for the protection of children across the country. Please show your support by contributing now and sharing this page on Facebook and Twitter.
Twenty-five years ago, the brutal murder of my son James Bulger repulsed the nation. It still does today, which is why, as James’s dad, I am asking for your help to make sure no other child is harmed as my baby boy was.
Ever since James’s murder, my family and I have campaigned for justice after two 10-year-old boys were convicted of his sexual torture and killing.
Those boys were Robert Thompson and Jon Venables who were released from a secure juvenile unit after just eight years and never served a day in an adult prison. I believed then, and still do, their sentences should have been longer for the crime they committed.
They were granted secret identities and life-long anonymity. A strict injunction was put in place by the courts to protect them and prevent details being made public about their lives. The injunction was granted on the basis that the killers had been rehabilitated but we now know for fact that Venables has not changed.
Both killers are now 35 years old and Venables has been recalled to jail twice for sex crimes against children. He is currently serving a 40-month prison sentence after pleading guilty to having more than 1,000 indecent images of young children.
We don’t support vigilante action or want the public to take the law into their own hands but we have always wanted clear recognition of the need to protect children from Venables. I have launched a new legal challenge in the courts to protect children like James in future from predators like Venables.
Our Legal Case
We need information and the authorities are not providing it. Both the Ministry of Justice and the Information Commissioner have refused our requests.
So now my brother Jimmy and I are attempting to alter the injunction to force the authorities to be more accountable about the handling of Venables. For example, despite being banned from living in Merseyside or visiting the area, Venables flouted the rules by regularly visiting Liverpool unchallenged, partying, drinking and getting into fights.
The Government commissioned a so-called independent review, called the Omand Review, from a former Civil Servant so as to whitewash over the mistakes of the authorities. Now the injunction is being used to cover up the further mistakes that were made leading up to Venables’ most recent conviction.
The Government do not want any accountability or scrutiny. They have not given me information to which I am entitled. It suits them to hide under the cloak of secrecy that the injunction provides.
I now have to force it out of them by going to Court.
Our fight for justice goes on because we believe the conditions imposed when the killers were first released in 2001 are now outdated because of Venables reoffending.
We want to make the authorities accountable for how Venables is to be supervised so that mistakes like this never happen again.
We want effective safeguards in place before he is freed from prison again. Things need to change. Most importantly, the courts and probation service need to be honest about how they will protect children in future.
Our campaign is focused on Venables but it’s also about changing the law and procedures to protect children from all sex offenders. The law has to move with the times and get priorities right, placing the safety of children at the very top of the list.
How much are we raising and why?
All this legal work is complex, lengthy and expensive. We have no funding at all.
The law says that all parties in court should be dealt with justly and on an equal footing but that is far from the case at the moment.
Venables has a team including one of the leading QC’s in the country in his camp another barrister and solicitors paid for by you the taxpayer. The Attorney-General and Ministry of Justice are similarly resourced out of the public purse.
If you support what we are doing, even donating a pound will help towards the cost of our legal challenge.
If you want to back our legal campaign, please donate to our crowd funding appeal – we need to raise as much as you can. Initially, we are setting achievable targets of £10,000 and then £60,000. If everyone does a little, this is achievable.
The appeal will be professionally managed with full transparency with funds going to pay for our legal work. The money is not for us as a family and any surplus will be donated to victims’ charities. We will send regular updates to our CrowdJustice page when we have news from our campaign.
James was murdered before he reached his third birthday. He was the most adorable and beautiful little boy in every way and I still miss him every single day.
I can’t bring him back but I will do everything in my power to protect other children like him so no other family ever has to go through the pain and sorrow we have suffered.
If you can donate to our appeal we will be forever grateful and thank you to everyone for supporting my family all these years.
Family Law – Q&A
Gill Scales, Partner is a family solicitor with over 22 years experience within this field. Here Gill answers some of the most popular questions she is asked by her clients:
Q1. I have been married less than a year, can I get divorced?
Answer: No. Divorce proceedings can only be started if you have been married for at least 12 months. Although nullity cases are rare, there may be grounds for nullity proceedings as an alternative to divorce, and these can be brought within the first 12 months of marriage. There is also the option of judicial separation, but to petition for divorce you need to have been married for at least 12 months.
Q2. Can I have a divorce on the grounds that myself and my spouse no longer wish to live together?
Answer: In this country it is not possible to have a no fault divorce, simply because you have fallen out of love or no longer wish to be married. It is necessary to rely upon the irretrievable breakdown of the marriage and then one of five facts.
If you have not been separated for longer than 2 years, it will be necessary for you to rely upon the facts of adultery or unreasonable behaviour.
If you have been separated for in excess of 2 years and you both agree to being divorced then that is often the simplest, most painless and straightforward way to obtain a divorce
Q3. Do my spouse and I need a solicitor to obtain a divorce and /or financial settlement?
Answer: Although you are not legally required to have a solicitor to handle matters for you, we strongly recommend that you do so. A solicitor will provide you with sound legal advice concerning your financial entitlement and guide you through the legal procedures relevant to your own personal circumstances. A solicitor will do all of this whilst having your best interests at heart. You may believe you are saving money by doing it yourself but mistakes made could prove to be costly in the end.
Q4 How much will a divorce cost?
Answer: Costs can vary between legal advisors. We are competitive and our clients get value for money for the excellent service and professional expertise that we provide. The clients that we represent invariably get the best outcome that they can achieve. Our fees are fixed at £500 plus vat and disbursements for undefended divorces for the Petitioner ( the person who starts the proceedings) and £150 plus vat for the Respondent. ( the person who opposes/responds to the proceedings)
Q5. How long does a divorce take?
Answer: Usually 4 to 5 months for an undefended divorce, but cases can vary depending on the complexity and whether finances and children matters are to be resolved.
Q6. Can I use an on-line service to issue a divorce petition?
Answer: Yes, you can, but please be aware that neither the on-line services nor the court advice can provide you with professional legal guidance to suit your specific circumstances.
Q7. Is it necessary for me to attend Court to obtain a divorce or financial settlement?
Answer: It is not always necessary to attend court if the divorce or financial settlement is agreed by both parties. A consent order will be drafted by your solicitor and will be submitted to the court for approval by a Judge along with some background information and relevant documents. It will be necessary to attend court if the terms of the divorce or financial settlement cannot be agreed easily. A solicitor will discuss your wishes and negotiate on your behalf to get you the best possible outcome.
Q8. Will I need to attend mediation?
Answer: It is now a requirement for you to attend mediation prior to issuing any court proceedings. There are exceptions, most particularly, where you have been subjected to domestic violence or there have been child protection concerns or the case needs an immediate hearing.
Q9. Do I need a solicitor if I go to mediation?
Answer: You are not obliged to seek the advice of a solicitor for the first part of the mediation process but we strongly recommend that you do. It is often the case that those that have not sought advice at the outset of matter will seek advice from a solicitor when matters become tricky and they do not know what to do. After the conclusion of mediation you may need to instruct a solicitor to draft the legal documentation embodying any agreement that you have reached. Successful mediation can prevent you having to pay a large amount of legal costs (mediation itself is not free but will work out cheaper than having a long complicated and drawn out dispute).
Q10. If my spouse and I agree on the arrangements for our children after our separation, does this agreement need to be approved by the court?
Answer: No. After separation and divorce yourself and your spouse will continue to have parental responsibility for the birth or adopted children of you both, and unless a dispute arises as to which parent the child/children should live with, or how much time they should spend with each parent no further involvement with the court is necessary.
Q11. Are prenuptial agreements binding?
Answer: If correctly advised upon at the time of preparation, and correctly prepared and signed they can indeed be legally binding. This is a complex area and each case would warrant individual advice from a solicitor.
Q12. Are all assets divided equally?
Answer: Equality is the starting point in financial cases. The financial settlement will depend on a number of factors including but not only the length of the marriage, your respective incomes and whether an equal division of capital will be sufficient to provide a new home for both parties, in particular, the parent who is the main carer for the children. These cases can be very complicated, and we do advise that you obtain specific legal advice in relation to them before reaching any agreement.
Q13. Are pensions always shared upon divorce?
Answer: Both parties can make a claim for a pension sharing order upon divorce and the joint value of pensions may be shared, particularly if the value of the pensions was built up during the course of the marriage. It is possible for one spouse to take a larger capital share instead of a pension share, but this would depend on the facts of the case, the other values of the assets, the wishes of the parties and the general circumstances.
Q14. I own a company. Do I have to reveal the existence of the company and its accounts to my spouse as part of the financial proceedings?
Answer: Yes. Both parties have a duty to provide full and frank disclosure of their financial circumstances, including any company of which they are a director of or shareholder in.
Q15. I have found out that my spouse has lied re their finances and I have agreed a financial settlement relying on the information disclosed. Can I re-open the case?
Answer: Following a recent House of Lords decision-yes. Again this is a complex area of law, and specific instructions and advice would need to be given with regard to your own circumstances.
Q16. If we are not married, how does the law decide disputes on property?
Answer: The law operates differently for married and unmarried couples. (1) If you bought your property jointly but not in specified shares, it is possible that you could claim more than 50% if it is clear that you did not intend the property to be owned 50/50 (2) The Court can,in some cases, decide what is fair by looking at how you have paid towards, maintained or improved the property throughout your ownership of the property. We would always recommend that if you are not married you set up a declaration of trust setting out what shares you each own, if you do not intend them to be equal. These cases are complex and we strongly advise you to take legal advice when buying a property with a partner or when deciding a family dispute.
Q17. Is the law governing divorce for same sex couples the same as for heterosexual couples?
Answer: Very similar but not identical. The Court can dissolve marriages and make a variety of financial orders to assist divorcing couples.
Q18. I have heard that the courts favour awarding custody/residence to the mother in a case. Is this true?
Answer: No. The case is considered on its own individual circumstances and with the welfare of the child or children being the court’s paramount concern. It is not always the case that the children remain with the mother. Every case is looked at upon its own merits.
Q19. If my spouse has stopped maintaining myself and the children post-separation, can I apply to the Court for an order forcing them to pay?
Answer: Yes. An order for maintenance pending suit can be sought. Maintenance for children is dealt with via the CMS.
Q20. I am divorced and have a 12 year old son. I want to relocate to Spain. Can I do so without my ex spouse’s permission?
Answer: No. You will need either their permission or an order of the Court allowing you to do so. Advice should be sought in cases such as this.
Q21. I have a Court order which my ex-partner keeps breaching and denying me contact to my children. What can I do?
Answer: You can apply to the Court to enforce the order and if the breaches are found to be proven, the Court has a range of sanctions that it can apply.
Our specialist team has decades of experience dealing with all types of divorce and family matters. If you would like to discuss any of the issues featured above, please contact Gill Scales in confidence on: 0151 709 4491 or at firstname.lastname@example.org