JK v MK (E-Negotiation Ltd and another intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 2020 |
| Neutral Citation | [2020] EWFC 2 |
| Date | 2020 |
| Year | 2020 |
| Court | Family Court |
Marriage - Divorce - Petition - Company lacking entitlement to carry on reserved legal activities assisting both parties in preparing divorce and financial remedy documentation - Whether conflict of interest - Whether company carrying on “reserved legal activity” - Whether company engaging in “conduct of litigation” or “reserved instrument activities” - Whether parties entitled to decree of divorce and financial remedy order -
The parties separated after being married for a little over two years. They had no children and no capital assets and wished to divorce uncontentiously. They jointly approached a company that traded online for assistance with the divorce process and the formalisation of a simple clean-break financial remedy order which they had already agreed between themselves. Having first screened the parties for suitability, the company helped to prepare the divorce petition, application for decree nisi and statement in support, and after decree nisi had been pronounced it drafted the financial remedy order for approval by the court. The documents were all filed with the court by the husband. The company made clear that it was not a firm of solicitors and at no stage did it go on record as acting for either party. The involvement of the company was however noted by the court, ahead of the finalisation of the parties’ consent order. Accordingly, the company and the Queen’s Proctor were joined as interveners in order to make submissions on (i) whether the company was placed in a position of conflict of interest by “acting” for both parties; and (ii) whether it was carrying on a “reserved legal activity” when not entitled to do so, contrary to section 14 of the Legal Services Act 2007F1, in particular by carrying on “the conduct of litigation”, as defined in paragraph 4 of Schedule 2 to the 2007 Act, and “reserved instrument activities”, as defined in paragraph 5 of Schedule 2.
On the husband’s application for a financial remedy order and the company’s application for declarations—
Held, granting the application and the declarations, (1) that, even if the concerns regarding the company were valid, that did not affect the entitlement of the parties to have their consent order; and that, accordingly, the consent order would be approved and permission would be given for the decree nisi to be made absolute notwithstanding that more than 12 months had expired since its pronouncement (post, para 9).
(2) That given that (i) it was commonplace for a solicitor to act for more than two clients in divorce cases, for example in order to deal with the sale of jointly owned property or to give advice on the tax efficient disposal of jointly owned land, and (ii) the company had put in place a system of “red flags” to identify circumstances where it was inappropriate for it to assist parties jointly, the company was not placed in a position of conflict of interest by acting for both parties under the terms of its business model; and that, accordingly, a declaration would be granted to that effect (post, paras 17–21).
(3) That neither the giving of legal advice nor the drafting of a divorce petition, application for decree nisi or statement in support constituted the “conduct of litigation” as defined in paragraph 4(1) of Schedule 2 to the Legal Services Act 2007; that, giving paragraph 5 of Schedule 2 a contextual and purposive interpretation rather than a literal one, the phrase “reserved instrument activities” as defined in that paragraph was intended to refer to the preparation of legal documents which created, settled, transferred or otherwise disposed of a legal or beneficial interest in realty or personalty; that, further, an unqualified person would not have “prepared any … instrument relating to court proceedings”, within paragraph 5(1)(c), unless she had been a major contributor to its drafting and had filed the instrument with the court; and that, accordingly, declarations would be granted that nothing done by the company transgressed paragraphs 4 or 5 of Schedule 2 to the 2007 Act (post, paras 27–31, 34–42).
Per curiam. (i) There is no authority on whether an organisation such as the company in the present case is in a fiduciary relationship with those with whom it contracts. Given that the defining characteristic of a fiduciary is her obligation of loyalty, resulting from the trust and confidence reposed in her by her client, the view that such a relationship does arise is to be preferred (post, para 19).
(ii) Where a document is auto-generated using data inputted into the company’s website by the client, but then checked for correctness by a member of staff, that member of staff has for the purposes of paragraph 5 of Schedule 2 to the 2007 Act “prepared” that document, at least to some extent. However, it will surely not be long before artificial intelligence will do the checking. When that day arrives, it will not be possible to say that anybody at the company has prepared the documents (post, para 40).
The following cases are referred to in the judgment:
Agassi v Robinson (No 2)
Heron Bros Ltd v Central Bedfordshire Council (No 2)
Pacey v Atkinson [
Powell v Ely
Sirius International Insurance Co (Publ) v FAI General Insurance Ltd
No additional cases were cited in argument.
The following additional cases, although not cited, were referred to in the skeleton arguments:
Ali Ebrahim v Ali Ebrahim (Queen’s Proctor intervening) [
Baron v Baron (Queen’s Proctor intervening)
Bristol and West Building Society v Mothew [
Ellis v Ministry of Justice
M v P (Queen’s Proctor intervening)
Ndole Assets Ltd v Designer M & E Services UK Ltd
Patel v Mirza
R v Soneji
R (Quintavalle) v Secretary of State for Health
Rapisarda v Colladon
APPLICATION for a financial remedy order
Following the breakdown of the marriage and the filing of a divorce petition the husband, JK, with the agreement of his wife, MK, filed with the court on 12 March 2019 a draft consent order, financial remedy Form A for dismissal purposes and Form D81 statement of information. The documentation had been prepared with the assistance of E-Negotiation Ltd (trading as amicable), an online provider of divorce services which was not registered as a firm of solicitors or an alternate business solution otherwise authorised to undertake reserved legal activities pursuant to the Legal Services Act 2007. On 5 September 2019 Moor J, as Family Division Liaison Judge for the South-Eastern Circuit, ordered that the application for a financial remedy order be listed before a judge at High Court level and, pursuant to section 8 of the Matrimonial Causes Act 1973, invited the Queen’s Proctor to intervene to make submissions as to “the appropriate [sic] or otherwise of amicable providing negotiating support of both parties and then preparing the draft order, the accompanying documents required by the rules and submitting a joint statement”. The Queen’s Proctor accepted the invitation and amicable was joined as an intervener pursuant to the preserved common law power referred to in section 19(2)(a) of the Senior Courts Act 1981 to seek declarations as to the lawfulness of its business practices.
The judgment was delivered in private and is reported with leave of the judge on the basis that the anonymity of the parties be strictly preserved.
The facts are stated in the judgment, post, paras 1–7, 10–14.
The husband in person.
The wife in person.
Vikram Sachdeva QC (instructed by
Simon P G Murray (instructed by
The court took time for consideration.
20 January 2020. MOSTYN J handed down the following judgment.
1 JK and MK were married on 31 August 2015. They had no children. They separated on 1 December 2017. They wished to divorce uncontentiously. They had no capital assets. Each was earning. They wished to agree a simple clean-break financial remedy order.
2 They jointly approached “amicable” (the trading name of E-Negotiation Ltd, and which is always written in lower case) to help them navigate the procedural requirements. amicable helped to prepare a divorce petition which was duly filed by JK at the East Midlands Regional Divorce Centre. Later, it helped to prepare the application for decree nisi and statement in support; again, these were filed by JK. Decree nisi was pronounced on 13 December 2018.
3 amicable did not need to help the parties to negotiate the financial remedy order. They had agreed a simple clean-break themselves. amicable drafted the order using the relevant Standard Family Orders precedent. It helped to prepare the Form A, marked “For Dismissal Purposes Only”. It helped to prepare the statement of information for a consent order in relation to a financial remedy (Form D81). It helped to prepare a...
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Craig Baxter v Sarah Doble
...unlawfully conducting litigation when serving the claim form and particulars of claim, this did not amount to invalid service. JK v MK [2020] EWFC 2; [2020] 1 WLR 5091 (Mostyn 146 This was a case involving a simple and uncontentious “clean break” divorce. The parties to the divorce had join......