Letters roundup: 21 January 2022

Getting ready for digital assets

The master of the rolls’ comments (11 January) that every lawyer will need to familiarise themselves with blockchain and blockchain-linked digital assets are, of course, entirely correct. However he does appear to have overlooked the need for the judiciary to do likewise and for the courts’ processes and mechanisms to accommodate this emerging technology.

We have already seen claims for the recovery of lost/stolen digital assets and, very soon, are likely to see the first contentious probate claim involving such assets. There are already a number of firms invoicing their clients not in fiat currency, but in electronic cash (such as bitcoin), though I predict in the next five years we will see the first damages claims where the amount sought is in electronic cash or other blockchain-linked digital assets (such as ethereum or Bitcoin Core). The courts will need to be ready to handle such proceedings. It is already established that these types of assets are property under English law so it stands to reason that the court can grant security over these assets and, of equal importance, order a party to provide security for costs in (for example) bitcoin, rather than sterling or other fiat currency. It should now be taking the time to consider the necessary mechanisms and procedures for making such orders viable.

As many in the profession still worry about the status of both English law and the courts in the post-Brexit world, it seems to me that a focus on the use of digital assets presents an excellent opportunity to help maintain and enhance our standing as the global centre of the legal and disputes world.

Simon Cohen

Senior associate, ONTIER LLP, London

No single UK regime for cohabiting couples

A recent Gazette article contained the statement: ‘The UK needs an update in its laws so that unmarried couples have equal rights to those of registered (civil) partners or spouses’.

It is unfortunate when articles in a legal publication refer to ‘the UK’ as if it has a single legal regime. While certain laws do apply across the UK, the various laws which comprise private client practice are, in the main, very different.

The author may have had the different positions of cohabitees across the UK in mind when writing the article, but it is not clear and the way it is written suggests otherwise. The paragraph that follows the reference to ‘the UK’, then says: ‘At present unmarried couples who cohabit for any period of time have no automatic entitlement to financial support from the other party when they separate.’ This could easily be understood by anyone reading it that the UK does not as a whole provide any remedy for cohabitees. However Scotland has laws which apply to cohabitants when a relationship terminates on separation or death, albeit these laws do not give cohabitees the same rights as spouses or civil partners.

For what it is worth, I do not think there is necessarily widespread support for cohabitants having precisely the same rights as married couples. I do agree, however, there is a widespread misapprehension about common law marriage which needs to be addressed. This makes it all the more important that the differences across the UK are made plain.

Karen Wylie

Solicitor, Glasgow

Time for scrutiny of family decisions

I was interested to read about the secrecy under which family courts have operated for years. Is it time for there to be full scrutiny of judicial decisions by the public as in the Crown courts?

I sat frequently in the family court for 15 years as a recorder. Apart from the times that my judgments were challenged in the appeal court (and I have to say that I was far from satisfied on occasion that the findings against me were justified on the facts), there was no feedback whatsoever.

Every now and then I suspected that someone from the justice department was observing me from the back of the court, but if so nothing ever came of it. The only other feedback I received was from a probation officer who at the conclusion of a case observed that I was ‘a safe pair of hands’.

There were times when I was crying out for someone to take me aside and, if necessary, criticise my approach, my behaviour in court toward counsel or witnesses, whether I was tripping over myself in giving the verbatim judgments that were expected of me – giving me the chance if necessary to improve.

Is it any wonder that left to one’s own devices in this way, there is a temptation to believe that one is always right, to develop without realising it bad habits, perhaps treating counsel rather arrogantly?

As a solicitor in practice dealing day in, day out in family problems, I could form my own sometimes critical appraisals of other judges’ behaviour, and admittedly learn from this when I sat myself. This was not enough.

It is a lonely existence out there and as a part-timer one does not have the luxury of a guaranteed full-time position – all the more need for helpful scrutiny which the public we are serving is currently denied.

John Greenwood

Retired recorder, Chippenham, Wilts

Retirement support

I was a sole practitioner but had the good luck to take on partners who continued the practice. I am currently a consultant so I should not be concerned about the Solicitors Indemnity Fund closing.

However, I am shocked that my sole practitioner colleagues are being left ‘in the lurch’. The Gazette has reported that the Solicitors Regulation Authority intends to pay the remaining funds to the Law Society.

I am still paying for my practising certificate and, as a member of the Society, would ask that it sets up a fund with the money received. This in effect will be a similar beast to the SIF. I would call on all other solicitors to ask for a vote on this.

After all, we are the Law Society and surely ought to support each other whether sole practitioners or partners in one of the giant firms, or something in between.

In addition, I would have no objection to paying an extra £10 a year to support colleagues who find themselves in the invidious position of worrying during their retirement in case a claim arises and they are unprotected.  

Jennifer Margrave

Guildford