Foreign Surrogacy: The Complexity and the Costs

If you are contemplating (as a UK resident) entering into a foreign surrogacy arrangement, you should read the case in the title link.

Everyone in this case is a good guy. Yet, difficulties arose. As Mr Justice Headley said in opening his judgment:

Although the outcome of this case was in the end happy for all those involved, it provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement.

Very difficult issues arose and the following indicates them sufficiently for this post:

It will be readily apparent that many pitfalls confront the couple who consider commissioning a foreign surrogacy. First, the quality of the information currently available is variable and may, in what it omits, actually be misleading. Secondly, potentially difficult conflict of law issues arise which may (as in this case) have wholly unintended and unforeseen consequences as for example in payments made. Thirdly, serious immigration problems may arise having regard to the effect of Sections 27-29 of the 1990 Act, at least as understood by me. Children born to foreign surrogate mothers, especially to married women, may have no rights of entry nor may the law confer complementary rights on the commissioning couple. Fourthly, Section 30 is available only to a married couple, others may encounter even more significant difficulties in securing parental status to children born to a surrogate mother, and that is of importance since the Human Fertilisation and Embryology Act 2008 will by Section 54 open up parental orders to unmarried and same sex couples. Lastly, even if all other pitfalls are avoided, rights may depend both upon the unswerving commitment of the surrogate mother (and her husband if she has one) to supporting the surrogacy through to completion by Section 30 order and upon their honesty in not taking advantage of their absolute veto.

So, everyone is agreed that it is in the best interests of the child/children but the parents have to go to the High Court for approval. Read this case before you decide whether you are wealthy enough.

The Ruinous Cost of Divorce in England

A lot of women if they can seek to have financial disputes on divorce determined in England. Perhaps, they fail to take account of the "ruinous costs" that can be incurred in this jurisdiction.

Mr Justice Munby has had yet another go at the level of costs sometimes spent in financial disputes in England. I say "yet another go" because Munby J does seem to get more than his fair share of this type of case.

In the title link case, KSO v MJO (8th December, 2008) he says:

Something must be done about the problems highlighted by this and by too many similar cases. We simply cannot go on as we are. The expenditure of costs on the scale exemplified by this and by too many other such cases is a scandal which must somehow be brought under control.

The way in which the litigation had been conducted had the following consequence:

The denouement was, in hindsight, perhaps not altogether surprising. The litigation simply collapsed under the unsustainable burden of paying costs which had long since become wholly disproportionate to anything at stake and which, by the time the parties arrived at the FDR, had swallowed up a grotesquely large proportion of the never very substantial assets. On 26 November 2008 I received the news that the husband had earlier that day been declared bankrupt on his own petition.

More poignantly Munby J explained:

The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If, instead of spending – squandering – over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial 'pot' to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. As it is, it is hard to see much being left from the wreck, not least after the trustee in bankruptcy has had his costs, expenses and remuneration. It is difficult not to be reminded at this point of Jarndyce v Jarndyce (see the Appendix). And the wife and the husband – and for this purpose I refer to them as the mother and the father, for that is what they are – are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this.

Warring parents rarely take account of the effects of their battles on their children. Munby J has said these wise words now and he has said them before but I detect that he is becoming dispirited by the fact that parents, husbands and wives who presumably once loved one another, seem not to be getting the message.

Links to previous relevant cases can be found in paragraphs 77-79 of Munby J's judgment.

QUIZ QUESTION: In which case did the wife and her legal team get it so wrong that she had to pay the husband's legal costs to an extent that really wasted her whole application?

Hamlet And The Madness Of Neighbour Disputes

A LITTLE PATCH OF LAND

Mr Ramage and Mrs Strachey were in dispute about a very small piece of land. Both required access over the disputed land to other parts of their own land. The obvious solution was to share this valueless patch of earth; but no, this was a dispute between neighbours and when neighbours fall out common sense flies out of the window.

Mr Ramage won at first instance but Mrs Strachey won in the Court of Appeal. The title link is to the Court of Appeal judgment.

As Lord Justice Sedley said (wryly understating the truth):

"In the present case a poorly drawn conveyance left in doubt the ownership of a patch of ground a fraction of an acre in size. Neither party, so far as one can tell, needed to own it in order to enjoy the use of the rest of their land, though both found its use convenient. Whichever of them held title to it, an easement of use or access should have satisfied the other's needs. But instead of reaching a compromise along these lines, war was declared. Unlike Old Caspar after Blenheim, we can now tell who won; but whether the expenditure on law and lawyers, vastly exceeding the value of the piece of land, has been worthwhile one has to doubt."

I dislike neighbour disputes because everything always gets out of hand.

I tell clients a story about an old case I was involved in. It was a dispute over a parking a parking space on a private road. It did not end up in a judgment but only because my client's opponent, in the course of one of their regular out of court altercations, dropped down dead of a heart attack. I declined instructions to continue the proceedings against the widow.

Never get involved in a neighbour dispute. It is really an area of law where the only winners will be the lawyers. That advice and my little story have never discouraged anyone.

As Lord Hoffman said in an earlier case:

"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."

The reference is to an exchange between Hamlet and a captain in Fortinbras's army (Hamlet Act IV, scene iv):

FORTINBRAS

"HAMLET
Goes it against the main of Poland, sir,
Or for some frontier?

Captain
Truly to speak, and with no addition,
We go to gain a little patch of ground
That hath in it no profit but the name.
To pay five ducats, five, I would not farm it;
Nor will it yield to Norway or the Pole
A ranker rate, should it be sold in fee.

HAMLET
Why, then the Polack never will defend it.

Captain
Yes, it is already garrison'd.

HAMLET
Two thousand souls and twenty thousand ducats
Will not debate the question of this straw:
This is the imposthume of much wealth and peace,
That inward breaks, and shows no cause without
Why the man dies. I humbly thank you, sir.

Captain
God be wi' you, sir."

This leads into Hamlet's final soliloquy which I do not hesitate to quote in full:



"How all occasions do inform against me,
And spur my dull revenge! What is a man,
If his chief good and market of his time
Be but to sleep and feed? a beast, no more.
Sure, he that made us with such large discourse,
Looking before and after, gave us not
That capability and god-like reason
To fust in us unused. Now, whether it be
Bestial oblivion, or some craven scruple
Of thinking too precisely on the event,
A thought which, quarter'd, hath but one part wisdom
And ever three parts coward, I do not know
Why yet I live to say 'This thing's to do;'
Sith I have cause and will and strength and means
To do't. Examples gross as earth exhort me:
Witness this army of such mass and charge
Led by a delicate and tender prince,
Whose spirit with divine ambition puff'd
Makes mouths at the invisible event,
Exposing what is mortal and unsure
To all that fortune, death and danger dare,
Even for an egg-shell. Rightly to be great
Is not to stir without great argument,
But greatly to find quarrel in a straw
When honour's at the stake. How stand I then,
That have a father kill'd, a mother stain'd,
Excitements of my reason and my blood,
And let all sleep? while, to my shame, I see
The imminent death of twenty thousand men,
That, for a fantasy and trick of fame,
Go to their graves like beds, fight for a plot
Whereon the numbers cannot try the cause,
Which is not tomb enough and continent
To hide the slain? O, from this time forth,
My thoughts be bloody, or be nothing worth!"

Reflect and consider that if you wish to find quarrel in a straw then you may pay a heavy price and that that is so even if you win.

The Neigbours Are Both "Potty" Says Lord Justice Ward

The Daily Mail reports today that Lord Justice Ward (pictured above) has labelled two neighbours continuing a dispute about a smallish amount of land in the Court of Appeal "potty".

This is a boundary dispute. Not all neighbour disputes are boundary disputes but all boundary disputes (alright, most of them) are neighbour disputes.

"Potty" is an apt description for most parties to neighbour disputes. They are as acrimonious as divorces with, usually, not much in issue in terms of the value of the land but huge amounts tied up in legal costs.

Lord Justice Ward gave Mr Robert Beton permission to appeal i.e. he gets the right to a hearing before a full three judge Court of Appeal. This is not a sensible use of court time.

Lord Justice Ward is fully aware of this. He had some trenchant comments to make:

“This is another of that hideous form of litigation called the boundary dispute, a form of litigation which is best not pursued.

"Just how much is this stupid piece of land worth? What you are arguing over is a few rhododendron bushes.

"If you live in St Georges Hill, you've got money to throw away, presumably. But why throw it away like this? You're all potty.

"Disputes of this kind are a most hateful form of litigation; go away and sort it out."

It is rare for permission to appeal applications to be reported. I hope this one is; if only for those words. They form a sensible basis for advising any client wishing to litigate a neighbour dispute.

My first choice is to advise my client's to forget it unless there is some serious land value involved and a strong case.

My second choice is to try to get the parties to agree a joint instruction to a land surveyor and enter into an agreement to be bound by his or her determination.

Hey presto. No huge legal fees and a surveyor who is likely to cost under a £1,000.

And it is going to be surveying evidence that is likely to be conclusive in most cases anyway.

Litigation to resolve these disputes is therefore correctly described by Lord Justice Ward as "potty".

Legal costs may not be the only reason to avoid litigation. In a divorce, sometimes you may be living in the same house but not always. A divorce is one of the most stressful processes you will encounter in your life. In a neighbour dispute you will, by definition, always be living next door to each other. Others may take sides.

So why is the Court of Appeal giving them time in this case against Lord Justice Ward's better opinion? The answer is because he has to. Mr Beton employed a QC who has found an arguable point:

"The judge found that adverse possession must have been manifest to the owner.

“But he failed to give weight to the fact that the presence of the bushes was such to make much of the fence not observable.”

Of such points are Court of Appeal decisions worthy and, even so, to get this far, someone had to be so oblivious to costs that he was willing to fund leading counsel to review the papers. The question remains, in the words of Lord Justice Ward:

"Just how much is this stupid piece of land worth?"

I will just add this. One neighbour dispute I was involved in lasted years. Both parties were well off and retired. It ended one day when one of the parties dropped down dead of a heart attack. Needless to say, they were having one of their verbal arguments outside their houses as to who could park where in their private road. My client wanted me to continue proceedings against the widow. I declined the instructions.

The Maypole Hole, the Hole in Mrs Cole's Pocket and the Compensation Culture

Mrs Yvonne Cole stepped in a disused hole designed to accomodate a maypole. Quite how serious her injuries were is not revealed by the Court of Appeal judgment as the value of her claim has not been considered. Proceedings had been confined to liability.

She won in Brighton County Court.

The Royal British Legion appealed to the Court of Appeal and won.

Read their judgments (and weep) by clicking on the title.

The pastoral meanderings worked for Lord Denning but they do not work now. A lot of crap about village greens determined the law on this one.