Tuesday, 24 February 2015

Death in the digital age: managing digital assets

Sponsored Post

Death in the Digital Age
We all have scores of online accounts these days.  The value of the information associated with those accounts can be huge – both financially and in other, more nuanced ways.   Take, for instance, online storage services, to which years of photos or video footage (and the memories connected with that) can be uploaded. Or a blog with thousands of blog posts published over a period of years.  Until quite recently, this type of digital content hadn't been considered by those making wills, and even now it's the exception rather than the norm.

I’ve blogged previously about some of the difficulties associated with digital assets when someone dies.  As more and more aspects of our lives occur online, or at least have an online element, remembering to include digital assets when drafting wills becomes ever more important.

The Co-operative Funeralcare have published a report revealing that of the 94 per cent of UK adults who hold online accounts, 75 per cent of those have not considered or made arrangements for the management of their digital presence after they die. 

At best, omitting digital assets from a person’s will may leave a number of untidy loose ends.  That can bring with it additional anguish for those they leave behind - adding to their grief - and it can leave the administrators of their estate uncertain whether they are acting in accordance with the deceased’s wishes.  At worst, precious and irreplaceable memories could be lost forever - a heart-breaking prospect

Amongst other things, the Co-op’s report highlights the adverse impact that omitting digital assets is having on those who have been bereaved.  Some 78 per cent of those who have managed a loved one’s online accounts following their death report having experienced difficulties in winding up the account, and a fifth of those found it so difficult, they abandoned their attempts altogether.  

16 per cent of people surveyed for the report said they would want their next of kin to have access to their social accounts given the sentimental value associated with the data.  Even more interesting, 14 per cent of those surveyed stated they would want their families to stay in touch with the online contacts they had built up throughout their lifetime.

There’s a real financial impact, too.  The report found that the average UK adult accumulates personal digital capital such as music, films or books worth £265.  That means for the 500million online accounts and assets that exist throughout the UK, a staggering £17 billion worth of assets could be left ‘floating’ in cyberspace.  

Sam Kershaw, Director of Operations for The Co-operative Funeralcare, said: “Conversations about end of life  are never easy.  However, as we increasingly live and manage our lives online, communicating with a loved one about the accounts you hold and what you would want to happen to them may greatly help should they ever need to access, manage or close accounts on your behalf.” 

But the answer isn’t as straightforward as leaving log-in details and passwords set out in wills. James Antoniou, Head of Wills for the Co-operative Legal Services, acknowledged: “It is important that people are aware that they should never leave online passwords in their will as it can become a public document after death. Individuals can, however, leave details of the online accounts they hold in a sealed letter alongside their will and addressed to their executors to ensure that their digital lives are not missed, or forgotten about, once they have passed away.”

To help consumers plan for manage digital legacies, The Co-operative Funeralcare has developed a guide offering advice and information about managing and protecting online accounts and assets, as well as identifying the accounts of loved ones who have died.  The accompanying infographic can be viewed here.  

Further information is available at www.co-operativefuneralcare.co.uk

Monday, 23 February 2015

Employment Law Tribunals vs The Small Business

Guest PostEmployment Law Tribunal
No company, big or small, is exempt from the potential threat of an employment law tribunal. But for the owners of smaller businesses the threat could affect their entire livelihood due to the financial consequences that may result.

However, there are certain ways that a small company can lessen the chances of a tribunal loss; namely by being fully prepared for the tribunal long in advance of the day.

The following are a few of the best ways to ensure that you're ready for all aspects of an employment law tribunal.

Analyse every detail of the case
Having a wide knowledge of the employment law legislation you're facing is vital, as you need to supply your solicitor with as much information of the case as possible, so they can judge how to prepare their strategy most effectively.

Make certain that all materials you need to support your case, such as documents and statements, are ready well in advance so you are best prepared for any line of questioning the prosecution explores.

When it comes to the materials of your defence, you are required to present the claimant's council with all documents you intend to use at least seven days before the tribunal date.

Be meticulous in your analysis of the events leading up to the claim and trace every bit of interaction between you and the employee to make sure you don't overlook something that could prove vital to your case. This could mean the difference between winning and losing.

If you have trouble understanding a particular area of UK employment law legislation, consult the UK government website where all UK tribunal laws are explained.

Urge an alternative hearing
It may be easier for both parties if you settle the case outside of a tribunal. Suggesting an alternative is not a sign of weakness but rather shows that you're willing to be fair and are prepared to compromise.

This is also a beneficial alternative for the employee as claimants are now liable for the full tribunal fee; a requirement implemented in July 2013.

There are also employment relation organisations that can help solve legal affairs independent of the tribunal system, and are able to negotiate a settlement through interaction with the employment law solicitors of each side.

Rehearse thoroughly
Be sure to rehearse the day with your employment law solicitor in order to review every area of the case.

This might include participation from witnesses. If so, make sure they are fully aware of what will likely be asked of them, and give them plenty of time of preparation time.

Should you find a witness refusing to give evidence, you can legally bring them to a tribunal by serving them with a 'witness order' through the courts.

Thursday, 19 February 2015

Law Actually is eight years old

Birthday Cake

I know.  I know! I can barely believe it either.

Go on, admit it: you didn’t think I’d still be here, did you?

I’ve just spent the last ten minutes or so looking at my previous Law Actually birthday posts, and reminiscing.  What struck me is just how long eight years is, and how much the blawgosphere has evolved [read: withered and died] in that time.

There’s no point pretending blogging is what it once was.  I think it’s still got it’s place in the world, but its present status alongside some of the more mainstream social media channels is pretty insignificant.

Still, longevity must count for something.  While I preferred the first four years of blogging on Law Actually much more than I have these last four, I’m glad I’m still here, occupying this tiny little part of cyberspace. 

Friday, 6 February 2015

Facebook now cited in a third of divorces

Guest PostFacebook - Divorce
The power and influence of social media in relationships has been highlighted by recent research, which has claimed that Facebook is now cited in one-third of all divorce cases.

According to a report produced by Lake Legal, which involved the collation of figures from legal firms’ statistics, the popular social network is often relied upon by disgruntled partners looking to highlight their spouse’s unreasonable behaviour.

All too often, Facebook provides evidence of new relationships and infidelity, while also helping husbands and wives to track their estranged partner’s movements. What’s more, the social networking powerhouse also records expenditure on luxurious items such as holidays and cars.

A number of divorce cases revolve around social media users who have reconnected with old partners who they may not have spoken to in years, spelling bad news for existing relationships should temptation take hold.

Now, solicitors are warning that social media actually provides an ongoing storyline of users’ lives. Sharing statuses and written posts, along with pictures and tagging provides a record of activities that could be used against them in a court case. Not only that, if an individual discusses their employment opportunities, plans for a holiday or reveals a recent windfall on Facebook, it may provide proof that they are lying about their financial position.

Similarly, photographs uploaded to social media profiles, and the comments made on these, can be used as evidence of a new romance, which can then be used against a party in court by a partner who refuses to accept responsibility for the breakdown of the marriage.

Nicki Welch Family Law advisor of Percy Hughes and Roberts said: “While the internet does provide a large quantity of extremely useful information, users should have more of an awareness of how much they are telling people online. This data is easily accessible and may be used against them should anything untoward take place.”

This is without going into evidence culled from mobile telephones, particularly texts which are very frequently produced in court in family law cases. Many a person is now confronted in court by copies of abusive and sweary texts they have sent to an estranged partner. It somehow looks so much worse when presented in black and white.

Text in haste repent at leisure.

Percy Hughes and Roberts family and divorce solicitors have a wide range of experience dealing with family disputes.  If you feel you require legal assistance, speak to an expert today.

Video Links for Courts and the Legal Profession

Guest Post Legal video conference
In the past few years, it has become increasingly acceptable for Judges to receive evidence and testimonies from witnesses in both criminal and civil cases. A video conference is often referred to as a video link within the legal profession.

Here at Eyenetwork we’ve been assisting solicitors and barristers for many years, either providing public facilities for the witnesses overseas, or bridging service between the court and remote locations.

Many courts have installed video conference equipment, but pre-2000 when it was not so common, we were involved in setting up a ground breaking videoconference which created a legal precedent. Mander Hadley & Co, a Coventry based legal practice specialising in personal injury claims decided to use Eyenetwork to help set up a temporary courtroom based in Birmingham, that was complete with judge, clerk and the necessary legal, administrative and recording personnel. The video conference equipment was used to connect with a number of witnesses in Malaysia.

Paul Scott of Mander Hadley & Co said “this is a ground-breaking case. The judge found it easy to talk to the family and witnesses using the video link, and quickly put them at their ease. That was a significant benefit. He treated the occasion as though we were all in the same room, and this has to be another advantage of the videoconference.” Damages of £1million were paid to the claimant.

As many courtrooms now have video conference equipment installed it is not necessary to move the court and personnel to another location as in this instance. However the witnesses still do need to use a public video conference facility to link with the court. There are over 3000 of these public facilities around the world, they can be hired by the hour and a video conferencing services company such as Eyenetwork can arrange this.

We are often contacted by panicked interns or temporary staff who have been tasked with the job of finding a public facility but have no idea how to go about it. The process can be confusing especially when you have to liaise between the courts and other third parties who need to be involved.

How does it work?
The Judge must grant permission for a witness to give evidence via video link. Annex 3 to Practice Direction 32 provides useful guidance as to when video conferencing might be used, as well as providing detail on the process to be followed and technical considerations associated with giving evidence in that way. 

Giving evidence through a video link is typically considered suitable in cases where the following outcomes can be achieved as a result of using that technology:

  • Savings in costs
  • The avoidance of public disruption
  • The facilitation of early listing.

In the past, video conferencing has been deemed suitable in cases which:

  • Involve vulnerable parties - such as hospital patients or children
  • Involve overseas parties
  • Involve prisoners
  • Are of a particularly urgent nature, in which the parties cannot readily attend court.

Once all the details (date, start time, duration) are agreed, a video conference facility convenient to the witness will need to be booked or if the witness is in a remote location, or unable to travel to a facility they can be connected from their own personal device such as a laptop or iPad. A test is always made prior to the date of the hearing, to assure good quality of sound and image. During the trial, the video link is monitored by specialists to resolve any issues that may arise.

The witness does not require any technical knowledge, they only need to be present and focus on their role in the hearing.

Connecting a witness remotely can also benefit their ability to give evidence. For some witnesses, travelling to the court and testifying can be a stressful experience, so giving evidence via video link can help to greatly reduce this, resulting in more relaxed witness and subsequently a better testimony. In the case of the Malaysian trial quoted above, as there were over 10 witnesses, as well as the financial cost of flying this number of people over, there would have been a high emotional cost returning to the country where a traumatic event took place.

Connecting with Courts
In most cases, connections to courts are made via a bridging service. The bridging service will connect sites on differing ISDN and IP networks as well as ensuring all sites are successfully connected. It tests with the sites pre-trial and provides technical support to resolve any issues that may occur.

Who is Eyenetwork?
Eyenetwork is a video conference service provider aiding the legal profession since 2000 by:

  • Linking witnesses to court from remote locations
  • Creating virtual Courts which enable defendants to be trialled remotely
  • Connecting counsel interviews or conferences before trial
  • Help experts provide evidence or give expert advice at court
  • Arrange meetings between counsel, administrative and appeal hearings

    Eyenetwork connects to courts all over the UK and the world on a daily basis and has an experienced client oriented team who aim to make the process simple and straightforward for our customers. With the help of our bridging service we connect to courts, facilities and laptop participants and ensure that their video conferencing experience is positive and successful.

    Author: Lisa Honan, Managing Director
    Eyenetwork

    www.eyenetwork.com

  • Tuesday, 27 January 2015

    Time’s up: judicial review claim for super-sewer dismissed

    judicial review timing

    From the London Evening Standard 22/01/15:

    A council was today accused of being “totally incompetent” after the legal challenge against London’s controversial super-sewer collapsed because it submitted court papers late.

    Southwark’s leader today sought to explain the cock-up by blaming “ambiguous” rules setting out deadlines for submitting papers.

    Don’t snigger.  However much you might want to.

    Lib Dem opposition leader at Southwark Anood Al-Samerai said: “We all trusted the council to represent our community in court.

    “Now the case for a judicial review has been thrown out all because the council couldn’t manage to submit its paperwork on time.

    The council explained it had been working to a time-frame which would have been acceptable had new reforms currently being discussed in Parliament been passed.

    But with the new rules yet to come into full force, the judge applied existing rules which deemed the council’s court papers to be late.

    On the face of it, this sounds unforgivable.  Job number one in running any kind of litigation is to get the timing right.  Heck, it’s built into most matter-management software these days.  Superbly formed legal arguments don’t count for much if your claim is thrown out for failing to adhere to the time requirements.

    But is the relevant rule on timing as ambiguous as the council claimed?

    Let’s have a look.

    There’s a good write-up on this by the Government Lawyer, so I won’t bother reinventing the wheel paraphrasing.  Yep - I’ll take the lazy route and quote the source verbatim:

    The Planning Act currently says that the claim form must be:

    "filed during the period of 6 weeks beginning with ... the day on which the order granting development consent is published."

    If the [decision] is published on Thursday 1 January, then is the last day for a claim Wednesday 11 February or Thursday 12 February?  It seems that the judge decided it was the former yesterday.

    Time to get counting on your fingers.

    The Criminal Justice and Courts Bill, which is almost at the point of Royal Assent, will amend the deadline in Planning Act (and several other acts). Section 91(4)(c) will change the above text to the claim form must be:

    "filed before the end of the period of 6 weeks beginning with the day after ... the day on which the order granting development consent is published."

    That would make it 12 February in the example.

    The Civil Procedure Rules say:

    "Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose."

    That suggests Thursday 12 February.

    Yes.  That makes a lot of sense.  It follows the general rule on calculating time periods under the CPRs: the start day should normally be regarded as day zero and you count forward from there, unless the relevant period is described as "beginning with" a specified day, in which case that day is included in the period.

    Having said that, the Planning Act 2008 is not one of 'the planning acts' in that context.

    Update: I’ve edited the following segment of the post after initial publication.  Angus Walker, author of the post I quote above (and of the Planning Act 2008 blog), kindly drew my attention to section 118 of the Planning Act 2008.  That section sets out the time period for bringing a relevant JR claim and overrides the CPRs.  In light of that, my points in the following two paragraphs are no longer valid.  My bad.

    Whoah. Back up a second there.  It’s not one of the planning acts?  Let that sink in for a moment.

    A cursory read of section 336 of the Town and Country Planning Act 1990 suggests that the Planning Act 2008 indeed isn’t one of the relevant ‘planning acts’.   If it isn’t, then CPR 54.5 (5) doesn’t apply, meaning the application must surely be subject to the general rule on timing for judicial review claims set under CPR54.5(1).  That rule says the time period for bringing an application for judicial review must be made promptly and in any event within three months from the date when grounds for the application first arose.

    Either way, I can’t see that the ‘Wednesday 11 February’ interpretation is the right one.  From Southwark council’s perspective, the decision is worth challenging.  (It’s known as a ‘punt’ in the legal profession which, yes, is a legal term of art.  Ahem.)

    But what a frickin’ mess!  Wouldn’t some harmonisation provisions on timing applied to all types of domestic legislation and the civil procedure rules work wonders here?  

    That much-cited aspiration for legal certainty should apply to the procedural stuff as well as to the substantive law.

    And it would save members of the legal provision from a lot of grey hair and red faces.

    Monday, 26 January 2015

    It’s a hard knot life

    Guest PostJapanese Knotweed
    Japanese Knotweed has received some legislative attention recently, perhaps due to recent media interest in how it is affecting the value of properties. The new Anti-Social, Behaviour, Crime and Policing Act 2014 seeks to address the issue where homeowners do not tend to the issue of knotweed on their property. According to the legislation homeowners might fall foul of the Act where they do not act reasonably to control or prevent the growth of knotweed.

    Under the Act a Community Protection Notice can be issued by a local authority or the police, where the homeowner actions are a) ‘having a detrimental effect, of a continuing and persistent nature, on the quality of life of those in the locality’ and/or b) the homeowner acts ‘unreasonably’. Moreover, a failure to act also falls under conduct that is classed as ‘unreasonable’. The notice, therefore, now requires an individual to control or eradicate the knotweed on their property and breaching the notice without a reasonable excuse is a criminal offence. The notice must state: (1) what the action is that is having a detrimental effect on the quality of life of those in the locality; (2) a requirement that such actions will cease; and (3) that the homeowner will treat this INNS (Invasive Non-Native Species) within a specific time and prevent any future occurrence. The notice should also state that sanctions include a fixed penalty of £100 and on summary conviction a fine of £2,500 for individuals and £20,000 for organisations.

    An individual or a body can activate a "community trigger" to request that the local authority deal with a persistent or previously ignored anti-social behaviour problem when their case meets a locally defined threshold. This could apply to knotweed or any other INNS. The local authority has a duty to undertake a case review and consider what action they can take to resolve the problem when someone activates the trigger. The local authority can still carry out a case review where the threshold has not been met, based on factors such as the persistence of the problem, the harm (or potential harm) caused, or the adequacy of response from agencies.  

    The question remains as to whether this legislation is actually necessary, with one blogger describing it as ‘using a sledge hammer to crack a nut’.  It is hard to understand what the Act can achieve that the law of private nuisance cannot. The power to bring action against one disrupting your reasonable enjoyment of your land has always rested with the individual, it is difficult to see what basis there is for this new legislation.  In addition the new power does not address any damage that a private individual may have suffered.  If an individual wished to claim for damage that he had suffered personally then he would have use the common law of nuisance and or negligence to get redress.

    So where does this new legislation leave us? With the threat of an ASBO for knotweed on top of potential private enforcement it is only likely to increase the stigma attached to properties affected by knotweed and cause even greater diminution of value as potential buyers seek to avoid affected properties at all costs.  

    Rodger Burnett, Japanese Knotweed Claims