Family Law

David Burrows, David Burrows, Bristol

The role of a separation agreement in ancillary relief proceedingsG v G (Financial Provision: Separation Agreement) [2000] 2 FLR 18, Connell J

This case is an exception to the more general rule that separation agreements are followed by the courts 'unless some clear and compelling reason, such...

as a drastic change of circumstances, is shown to the contrary' (Edgar v Edgar (1981) FLR 19, CA per Oliver LJ at 31H).

The agreement 'should be strongly persuasive, but not conclusive of the resolution of this case' (at 34C).

More important here was that there should be finality by payment of a lump sum which the husband could afford (here 240,000) rather than preserving periodical payments under the agreement.

Like all ancillary relief cases, this depends on its own facts: here a relatively short marriage and the husband had provided the wife with a house.

Edgar can only be a guideline (not followed, for example, in Camm v Camm (1983) FLR 577, CA or Beach v Beach [1995] 2 FLR 1077, Thorpe J), though a persuasive guideline in most cases.

G v G is not the start of a new trend (as recently as 1998 in Xydhias v Xydhias [1999] 1 FLR 683 the Court of Appeal stressed the importance of Edgar) but it is a reminder that not every separation agreement is always followed, word for word.

There will be cases where it is but an important starting point.

The end of advocate's immunityArthur J S Hall & Co v Simons [2000] 3 WLR 543 sees a seven-member House of Lords bring to an end advocate's immunity from suit in negligence.

The two cases dealt with alongside Arthur Hall were family cases.

In each a case had been settled by solicitors (with the assistance of counsel in two cases).

It was contended that the solicitors had acted negligently.

In each case the solicitors pleaded advocate's immunity.

The House of Lords held that in each case advocate's immunity did not, in any event, apply.

However, the Law Lords took the opportunity to consider whether the doctrine should still continue.

For criminal proceedings there was some unease; two Lords pointed out that an action in the civil courts in negligence and without the conviction being set aside would be a collateral attack on a court order, and thus an abusive process (Hunter v West Midlands Police [1982] AC 529).

For civil proceedings there was no question: advocate's immunity - applying equally to solicitors and to counsel - could no longer be sustained.

'In general, English law provides a remedy in damages for a person who has suffered injury as a result of professional negligence...

Any exception which denies such a remedy requires a sound justification' (per Lord Hoffman at 560E-F; and see Lord Hope of Craighead at 581F-H).

The House could find no such justification.

Advocate's immunity, therefore, goes.

Privilege and care proceedingsS County Council v B [2000] 2 FLR 161, Charles J is a reminder that not every document, potentially relevant to children proceedings, is bound to be disclosed to the court and the other parties - even after Re L (Police Investigation: Privilege) [1996] 1 FLR 731, HL.In care proceedings, the father was also the subject of criminal proceedings.

The guardian ad litem applied for medical reports in those proceedings to be disclosed.

Charles J refused the application holding that they were covered by litigation privilege (following R v Derby Magistrates' Court exp B [1996] 1 FLR 513, HL).