Saturday, 19 December 2015
Sunday, 13 September 2015
On 10 September 2015 the Ministry of Justice published the latest set of quarterly Employment Tribunal statistics for April to June 2015. This report laid out statistics for the Employment Tribunal for this period relating to the number of claims made, the number of claims that were successful, and the amount of compensation that was awarded for claims.
The number of claims made
The report stated that there has been a continued trend of decline in the number of claims (both individual and multiple) made in the Employment Tribunal between 2012/13 and 2014/15, as follows:
- 2012/13: an average of 52,000 new claims per quarter
- 2013/14: an average of 26,500 new claims per quarter
- April to June 2014/15: an average of 12,563 new claims per quarter
With regards to individual claims (claims made by one individual against one or more persons) the trend of claims has been more volatile:
- October 2012: 5,000 claims made
- June 2013: 4,000 claims made
- July 2013: 6,500 claims made
- September 2013: 1,000 claims made
- October 2013 to June 2015: an average of 1,500 claims made per month
Employment Tribunal fees were introduced on 29 July 2013 and the above statistics would seem to suggest that the introduction of fees has had a direct impact on the dramatic fall in the number of claims made, as potential claimants are deterred by the potential outlay (£250 to issue claims in ‘Type B’ claims and a further £950 hearing fee).
The report also found that the proportion of claimants represented by a lawyer increased by four percentage points from 71% in 2013/14 to 75% in 2014/15.
The number of claims that were successful
The number of claims that were successful, conciliated by ACAS or withdrawn (as a percentage of all Employment Tribunal claims) has fallen over recent quarters, from a 79% success rate in 2013/14 to 62% in the last quarter of 2014/15. It has now levelled at 62% - a substantial reduction in the average of claims that were successful between 2007/8 and 2012/13 (79.8%).
The amount of compensation awarded in successful claims
In 2014/15, there were 1,129 claims that received compensation for unfair dismissal. The maximum award in an unfair dismissal claim was £238,216 and the average (mean) award was £12,362.
In 2014/15, there were 219 discrimination claims where compensation was awarded. The maximum amount awarded was £557,039.
The above numbers do not include claims conciliated by ACAS or other forms of settlement, as the terms of such settlements are confidential to the parties.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the statistics: “These statistics clearly show that there has not only been a reduction in the total number of claims made but also a clear reduction in the number of successful claims made. It remains to be seen whether Employment Tribunal fees are having the intended effect of discouraging ‘unmeritorious’ claims or whether they are in fact discouraging claimants with otherwise-successful claims from pursuing justice.”
Previous reports can be found on the Government website here.
Redmans are litigators and employment solicitors in Chiswick
Wednesday, 2 September 2015
With the number of high profile court cases recently featuring journalists who used the services of Private Investigators you may be excused for thinking the investigators are a thoroughly disreputable lot. Case after case we heard the same story; the journalist had simply employed a detective to hack into people’s mobile phones and gather the gossip they needed for their stories.
Given the recent negative publicity it would therefore be natural to find some reticence on the part of the legal profession to use Private Investigators for fear of falling foul of the law themselves.
Of course this fear is unfounded and generations of solicitors have successfully used investigators to help them achieve the legal outcome they were looking for. We should be clear that the odd bad apple doesn’t spoil the bunch.
So what should you look for when choosing a Private Detective?
First you need to choose a reputable company. This may sound obvious but when you look at the proliferation of choice on the internet today you may be surprised to find that not all of these websites are completely legitimate. For example there is nothing stopping you or I setting up as an investigator tomorrow, creating a website and touting for business. So how do you sift through the acres of websites on offer?
Start by looking for a firm that are a member of a recognised professional body. Whilst there is no requirement for investigators to belong to these bodies (yet), members of the World Association of Private Investigators or The Association of British Investigators are bound by a code of conduct and are rigorously vetted before being allowed to join. Scrutiny by peers in this respect is a pretty good filter for many of those who would be miscreants.
Secondly, once you have found a firm that you think might fit your requirements you can always try mystery shopping. Try calling them and telling them that you just need to get your partners National Insurance number and a look at their bank accounts for your upcoming divorce proceedings and see what they say. Reputable firms will give you a flat ‘no’ as the only way of getting this information is through illegal sources. Rule out any who say yes.
Next check their website to see if they say that they do the sort of work that you want completing. If you need someone to investigate on behalf of a matrimonial client as part of divorce proceedings can you see that they do this work? Are they able to tell you about the sort of cases they have recently completed? If it is a commercial matter, how practiced are they at getting people into commercial situations to complete these investigations successfully?
Finally do your own due diligence and check their names online. Are people saying bad things about them when you type in the firms name and the word ‘review’ after it? Are the partners or directors part of trade bodies? Do they crop up as star witnesses in trials and can you find any of their writings online in reputable journals or newspapers?
To return to the original question, if you ask a detective they will tell you that they are an integral part of the legal process. The good ones however will be able to further assure you that when they come to be cross examined in the dock nothing in their data and evidence collection will undermine the case.
Choose wisely therefore and you will find the benefit they bring to your tricky and trying case far outweighs any cost of employing them.
Tuesday, 25 August 2015
In July 2015 the Government launched an open consultation on the gender pay gap which currently sits at 19.1%. That means that for every £1 earned by a man, a woman will earn 81p.
Even though this is the lowest differential ever recorded it still demonstrates that the gender pay gap in the UK still needs addressing.
Ever since the Equal Pay Act was launched in 1976 it has been illegal for men and women to be paid differently for doing the same work; however this doesn’t mean that it doesn’t happen.
This then raises the important question which is, given that this legislation has been in place for almost 40 years to prevent this type of discrimination at work, if it is still happening what sort of claims process will be available to individuals falling foul of this discrimination?
The open consultation aims to task organisations with more than 250 employees to publish gender pay information. The CBI are pushing back on this stating that the current voluntary approach for companies to disclose this information is working well enough and that the numbers of women on corporate boards has actually increased.
This remains an area to be debated.
Ultimately the Government is looking for ideas that will encourage women to seek higher status careers, support older working women - where the pay gap is particularly high, and to comprehensively modernise the workplace. A move to more flexible working is being studied as a way of progressing women into higher profile jobs with more earning power and companies are to be encouraged to seek flexible working options when advertising for senior positions.
David Cameron has stated that he wants to eliminate the gender pay gap ‘in a generation’. Historically, UK businesses have been evasive in disclosing the pay gap between their male and female colleagues so it will be interesting to see how the open consultation develops and how this may affect employment law in the future.
Of course as it is illegal to pay people differently for the same role based on their gender, when this data becomes available it raises the prospect of potential legal claims against discriminatory employers. How many of them there are and whether these claims will be successful remains to be seen but inevitably there will be test cases.
The most likely scenario will lie with individuals who are no longer in employment with the business as people who choose to sue their employer whilst still in employment could face further discrimination at work. This scenario is probably the most common that will be encountered and raises a huge number of conflicts. Employers will be keen to avoid this scenario and employees will, in most cases, be unwilling to antagonise an employer who might then find there are reasons for letting that individual go.
The entire process is fraught with difficulties and the need to professional legal advice will be paramount if awkward situations like this are to be avoided.
Interesting times lie ahead….
Monday, 22 June 2015
Although the basic principles of publishing law generally remain unchanged, the law that governs the publication of books, magazines, newspapers and – in particular - their digital equivalents is constantly evolving. This constant evolution is necessary now more than ever, due to the impact the internet has had on how material is distributed, and the increasing importance of digital copyright law. In today’s digital age, what is legal in one country may not be permitted in another, and this patchwork of very different sets of laws represents a real problem for authors and publishers throughout the world.
Unsurprisingly, the countries of the world have attempted to regulate this by means of international treaties. There is now the International Court of Justice at The Hague (mainly referred to for war crimes), and the European Court of Human Rights in Strasbourg. However, these only operate in certain jurisdictions and their judgements are usually regional rather than global. There is no truly global International Court, and although many feel that the internet requires something similar, it appears to be a long way away from actually happening.
Despite the aforementioned problems with the application of international publishing laws, copyright law is relatively well enforced globally. This is due to one of the world’s longest-running treaties, the Berne Copyright Convention of 1886, now acceded to by over 160 countries. The Berne Copyright Convention obliges members to apply reciprocal ‘national treatment’ in their own courts to works produced by members of other member states. The TRIPS Treaty also requires member states to enforce copyright effectively.
Copyright is a form of intellectual property that exists from the moment a work of creative, intellectual or artistic nature is created in a fixed, tangible form of expression (Ideas and information are not covered by copyright law – only the form and manner in which they are expressed is.). Copyright grants the creator of an original work exclusive rights to its use and distribution – usually for a limited time. In the case of works made for hire, the employer - not the creator of the work - is considered the author. Updated in 1988 and unchanged ever since, the Copyright, Designs and Patents Act 1988 remains one of the key principles of publishing law.
Assignments & Licenses
An assignment of copyright is a transfer of ownership of the copyright. By assigning your copyright to another person or organisation, you are effectively providing them with the legal right to exploit the material however they wish. You will no longer own it; the recipient of the assignment will have full rights to the material. And if you publish your work after you have assigned it to another party, you are committing copyright infringement – even though you were the original author of the work.
If you grant someone a copyright license, you retain ownership of your copyright but give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook, but retain the right to create an audio version of your work. Any type of right can be retained or granted as required, which can allow the author of the work to profit by producing and distributing the work in other formats, or even expanding upon it.
Almost all publishing agreements should be in writing. Whilst English law does allow for unwritten contracts, those contracts which involve assignment of copyright or a licence of copyright within the meaning of the legislation must be in writing. Even where a publishing agreement does not involve an assignment or license, getting the terms of the contract written down is always a good idea. A written agreement provides evidence that the contract actually exists, helps ensure that all parties are ‘on the same page’, reduces the risk of a legal dispute occurring and also helps with the resolution of a dispute should one arise.
Payments and Royalties
A publishing agreement will usually state methods of payments to the author, which are typically either by the payment of an agreed fee or by the payment of royalties. With royalty payments there may also be an advance, which will need to be earned-out before any royalty payments commence. Publishing contracts that are based on assignments of copyright usually include up-front, fee-based payments, while payments made under licences of copyright are often royalty-based. In practice, however, many publishing contracts combine assignments and royalties or licences and fees.
Infringement of Legal Rights
There are multiple ways in which an author’s legal rights can be infringed when a piece of work is published. For example, a work could infringe copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or any other intellectual property rights. Because of this, it is vital that publishing companies fully research the work they are given to publish, and authors are fully aware of the rights they hold in their work.
ARK Group is a leading B2B publishing and events company providing leading products for the legal and information management markets. ARK Group’s information products help professionals and organisations work more intelligently by delivering reliable information and techniques that can be used to benchmark, develop and improve fundamental business processes and procedures.
Thursday, 18 June 2015
The promised EU referendum, awarded the unfortunate moniker of ‘Brexit’ by the British press, is drawing nearer. Currently, there isn’t a confirmed date for the vote, but we do know that it will not be on 5th May 2016, the day when the public will vote on the devolution of the Northern Irish, Scottish and Welsh Parliaments.
David Cameron promised in the run up to the 2015 election that the referendum will take place before the end of 2017, and a recent BBC News article speculated about the pros and cons of potential dates between now and then.
It’s certain that should the public vote in favour of leaving the EU there will be major changes. The debate rages on about whether or not these changes will have a positive or negative impact on the state of the nation.
However, one unavoidable point that has not been widely discussed in the media is that EU nationals who have made their home in the UK will find their circumstances change overnight if Britain decides to abandon the union.
Freedom of movement is one of the founding principles of the European Union and plenty of citizens from member states have taken full advantage of this perk, moving across the continent and settling outside of their sovereign nation.
It is estimated that there are currently within the region of 2 million EU nationals living and working in the UK who would face an uncertain future is the so-called Brexit came to be.
UK nationals who’ve made their home in the EU may also find themselves in a similar situation, suddenly being classified as illegal immigrants if the British public decides it’s time to leave the EU behind.
If the Brexit does happen, then hundreds of thousands of EU nations who have been living in the UK for years may find themselves very suddenly in need of a visa, or a plane ticket home.
At Carter Law, specialist Immigration Solicitors based in Manchester, our team have been keeping a close eye on the situation. Without a set date for the referendum, the serious campaigning hasn’t even started, but we’re keen to be in a position to help as many people as possible should the UK leave the union.
Hasty changes to the UK Immigration Law to accommodate for the outcome of the UK leaving could further complicate matters. Questions have been raised about whether citizens of more affluent states, such as Germany or France may be given preferential treatment over those from poorer EU nations, Bulgaria for example.
Many EU citizens who call UK home are anticipating something which, in their eyes is a worst case scenario, and asking “will I need a visa?”. Unfortunately, there simply isn’t enough information available to immigration solicitors currently, so we must wait patiently to see what happens.
Hopefully, as a date is confirmed and the time to vote draws nearer, there will be some consideration given to those who would be directly affected by the Brexit.
Tuesday, 16 June 2015
So you have decided to separate. What are the essential legal things you need to know? The following has been provided by Selachii LLP and is intended to be a brief guide.
Divorce: The Basics
If you are married then you may wish to take divorce proceedings, although there are other options, such as entering into a separation agreement with your spouse.
There is only one ground for divorce: that the marriage has irretrievably broken down. However, you must prove irretrievable breakdown by showing one of five things:
That your spouse has committed adultery (usually proved by them admitting it).
That your spouse has behaved unreasonably.
That your spouse has deserted you for a period of two years.
That you and your spouse have been separated for two years and your spouse consents to the divorce.
That you and your spouse have been separated for five years.
Briefly, the procedure for a divorce is that one party will file a divorce petition with the court. The court will then send a copy to the other party, along with an acknowledgement form for them to complete and return to the court stating whether or not they intend to defend the divorce (defended divorces are extremely rare). If they do not defend, then the petitioner can apply for the divorce to proceed. If there are no problems, the court will fix a date for the pronouncement of the decree nisi. Six weeks after the decree nisi the petitioner can apply for the decree absolute. Again, if there are no problems, the court will send a copy of the decree absolute to each party. It is normally possible for the divorce to go through without anyone having to attend the court.
Sorting out arrangements for children
When a couple separate they will need to sort out arrangements as to with whom any dependent children will live, and what contact the children will have with the other parent. There are no hard and fast rules as to arrangements for children – the important thing is what is best for those particular children. They may, for example, spend most of their time with one parent, or they may share their time with both parents.
If arrangements cannot be agreed, then an application can be made to the court for the court to sort out the arrangements by making a child arrangements order.
When parents separate they should if possible try to sort out child maintenance arrangements between themselves by agreement. However, if they cannot reach an agreement then an application can be made to the Child Maintenance Service.
The Child Maintenance Service will calculate how much the non-resident parent should pay, by reference to a formula. It can then collect the maintenance from that parent and pay it to the parent with care of the child. The Service reviews the payment amount every year.
Generally, child maintenance payable through the Child Maintenance Service will last until the child reaches the age of 16, or while the child is aged under 20 and is in full-time secondary education. However, child maintenance can be arranged through the courts for older children in tertiary education.
Sorting out finances on divorce
When a married couple separate they will need to sort out a financial/property settlement, including what is to happen to the former matrimonial home, the division of any other money or property, whether one party should pay maintenance to the other and what should happen to any pensions.
If these things cannot be sorted out by agreement, either party may apply to the court for the court to sort them out. The court will then require both parties to disclose full details of their means, so that it can decide what type of orders would be appropriate.
Alternatives to court
It is not always necessary to go to court to resolve a family law dispute. The matter can be resolved by agreement, by a variety of means, including:
Negotiation between the parties – Usually with the assistance of solicitors.
Mediation – Whereby a trained mediator will help the parties to reach an agreed settlement.
Collaborative law – Whereby each party appoints a collaboratively trained lawyer and then the parties and their lawyers meet face to face to try to agree a settlement.
Note that if an agreement is reached sorting out finances and property following a divorce, it will be necessary to request the court to incorporate the agreement into a court order.
No one should have to put up with domestic violence, which includes not just physical violence but also other forms of abuse, such as controlling behaviour.
If you are a victim of domestic violence, then you can apply to a court for an injunction order. The order can take one or both of two forms:
A non-molestation order – preventing the abuser from using or threatening violence against you. A breach of a non-molestation order is a criminal offence.
An occupation order – requiring the abuser to leave the house, or preventing them from returning there. Occupation orders usually have a ‘power of arrest’ attached to them, which means that the police may arrest anyone breaching the order.
Issues for unmarried couples
When they separate, the law treats unmarried couples differently from married couples. There are two things in particular to note:
Firstly, if he was not married to the mother a father of a child does not automatically acquire parental responsibility for the child. He can, however, acquire it in various ways, for example if his name is on the child’s birth certificate, if the mother agrees to him having it or if a court grants it to him.
Secondly, the rules relating to sorting out finances on divorce do not apply to unmarried couples. One party cannot claim maintenance for themselves from the other, and any property will generally remain with the person who owns it. It is possible in certain circumstances for one party to make a claim against the other’s property, but the rules relating to such claims are complex, and legal advice should definitely be sought before making a claim.
Glossary of common legal terms
Affidavit – A written statement, sworn by the writer to be true.
Child arrangements order - An order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and/or when a child is to live, spend time or otherwise have contact with any person.
Clean break – A financial/property order on divorce that ends all financial ties between the parties.
Consent order – An order made with the agreement of both parties. Usually refers to an order setting out an agreed financial/property settlement on divorce.
Contact – Refers to contact between a child and the parent with whom the child does not usually live. Includes visits, overnight stays and other types of contact such as via telephone, letters, texts and internet.
Decree absolute – The order finalising a divorce.
Decree Nisi – The order stating that the parties are entitled to a divorce.
MIAM – Abbreviation for ‘Mediation Information and Assessment Meeting’, used to see whether mediation could be used to resolve a dispute, rather than going to court. Anyone wishing to make an application to the court is required to attend a MIAM.
Parental responsibility – Defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.
Pension attachment – An order following divorce, stating that one party will receive part of the other party’s pension, when the other party receives it.
Pension sharing – An order following divorce, transferring a percentage of one party’s pension to a pension in the name of the other party.
Periodical payments - Another term for maintenance.
Petitioner – The party who issues the divorce proceedings.
Property adjustment order – An order following divorce, adjusting the ownership of matrimonial property.
Respondent – Refers to the party who did not issue the court proceedings.
Separation agreement – A document setting out an agreement between spouses, relating to finances and/or arrangements for their children. Used where they have decided to separate but do not yet intend to commence divorce proceedings.
Without prejudice – Words typically included in an offer of settlement to help ensure that the court cannot be informed of the details of the offer.
Useful organisations and websites
Citizens Advice – Provide advice online, by phone and in person.
Cafcass – The Children and Family Court Advisory and Support Service. Cafcass looks after the interests of children involved in family proceedings, including providing reports to help the courts decide what orders to make.
Child Maintenance Options – Provides information and support to help separated parents make decisions about their child maintenance arrangements.
Family Mediation Council – Provides information on mediation and details of local mediators.
Gingerbread – Charity providing expert advice and support for single parents.
Relate – Provides counselling, support and information for all relationships.
Women’s Aid – Helps women and children who suffer domestic abuse.
Tuesday, 2 June 2015
From the Metro 01/06/15:
Gemma Wale [or is that wail? ;-) ] 23, was ordered to serve two weeks behind bars for breaching an ASBO.
A court heard how she ‘screamed and shouted’ at a level of noise which had offended neighbours during a ten minute romp at her house in Small Heath, Birmingham.
The court heard Birmingham City Council took legal action after neighbour Ghazala Bibi, 40, complained about loud sex noises coming from her home.
Mrs Bibi said in evidence: ‘Gemma started screaming and shouting whilst having sex, which woke us up. This lasted ten minutes.’
In a written judgement Judge Kelly said an anti-social behaviour order had barred Wale from making ‘loud sex noises’ at her home in Hob Moor Lane [which she had breached during a session of raucous hanky panky in the early hours of 29 January].
Here, according to the Metro, is the love shack where Gemma Wale wailed like a trooper in breach of her ASBO. Looks romantic, doesn’t it?
I suppose It would have been pointless for a police officer to have attended the scene to ask her to come quietly.
Sorry folks: I can’t take the credit for that one. It’s from an episode of classic nineties comedy, The Thin Blue Line, in which the police receive a complaint from a neighbour about loud sex noises made by the ‘noisy nympho at number nine’.
The parallels to this story are uncanny.
In that episode, resident joker D.C. Kray -- probably the best character in the show -- helpfully suggested that his uniformed colleague should “put the handcuffs on her ankles – that’d solve the whole thing”.
Worth considering, perhaps. I’m not sure how it would square with PACE, though.
Thursday, 14 May 2015
Most people don’t have a lawyer. Some people skate through life without ever getting involved, one way or another, with legal trouble. But these folks are actually in the minority. In reality, there are dozens of common events that draw normal, honest people into the courtroom. These things are unavoidable, and include car accidents, medical malpractice, and other regrettable events that make Oregon residents need an expert in Oregon law. Of course, not everybody is from Oregon, but I say this to point out that every legal scene is different. Different states have different laws, various ways they try and prosecute different offences. If something goes wrong in your life, you’ll need more than a simple Google search. A committed lawyer will be able to give you personalized advice and counsel, getting you the justice that you deserve, and fast.
But sometimes, it’s hard to know whether you need a lawyer or not. Maybe an offense has taken place, or then again, maybe it’s not worth the trouble. I’m here to tell you that there is no virtue in letting yourself be hurt or exploited without taking advantage of the services of a qualified lawyer. Let’s take the case of medical malpractice, for instance. If you have suffered a long, painful recovery because of a medical mistake, you need to report it and receive the restitution that you deserve. This is because it’s not just you out there. Lots of people are hurt by medical malpractice every year, and unless these cases are reported and paid for, legislation and policy isn’t going to exist for the good of regular people like you. By letting careless doctors get away with mistakes, you are becoming a part of the problem, perpetuating medical carelessness. It’s grey areas like these where you need to talk to a lawyer, to help you understand the big picture and get you the justice that you deserve. Here are a few examples.
1) Nursing Home Neglect. It can be a sad thing to have an elder person in your life have to go to a nursing home. This is a person who has been strong for most of your life, but who has gradually weakened to the point where they can no longer care for themselves properly. In some cases, older people are neglected or even abused in nursing home settings. These situations are in the minority, but they do occur, leaving these older folks hurt and vulnerable. But it’s hard to know, as an outsider, if this is what is occurring. Even if you are a son or daughter of one of these people, you aren’t around the see these events happen, and staff may explain away the telltale signs. You also won’t know what to look for. This is where Oregon Personal Injury Lawyers are just what you need. They’ve got experience in the field. They’ve seen these cases hundreds of times, and they can tell you exactly what you need to know in order to pursue justice.
2) Food Poisoning. All of us, at one time or another, have gotten sick from some food we had at a restaurant. Most of us would want to shrug it off, but the fact is that most food poisoning incidents result from poor sanitation and food handling standards. By failing to report a case like this, you may be perpetuating wrongdoing at these restaurants leaving other people vulnerable. You are also entitled to restitution for pain and suffering, as well as time spent away from work.
As you can see, there are a variety of situations where bad things happen, but you may not know whether or not to pursue legal action. In cases like this an experienced Oregon lawyer may be exactly what you need, to help you navigate the trying legal waters before you.
Wednesday, 29 April 2015
Disability benefits are set in motion to help people who suffer from unforeseen illnesses and injuries. A wide variety of situations may qualify a person to receive disability benefits. A worker who develops a severe illness or gets involved in an accident can qualify for disability. Many employers supply their employees with disability benefits as part of their benefits packages. The disability benefits cover a portion of the worker’s income until that person recovers from the illness and can return to work. The income portions vary depending on the insurance company. Usually the benefit falls in between 70 percent and 100 percent, and it may fluctuate over time.
Private Disability Benefits
Some consumers purchase private disability benefits because their employers do not offer them. Self-employed individuals may seek disability coverage, as well. Those disability benefits work the same way that other benefits work. The process of filing a claim is usually identical, and it involves a phone call to the insurance company and proof of the illness and restrictions. A certified medical professional will have to state a recovery period, and the specialist will have to clear the person before he or she can return to the labors of the job.
Government Disability Benefits
Another form of disability benefits comes from the government. The government benefits cover a wide range of physical and mental illnesses. Just a few illnesses that the government disability benefits cover are cancer, HIV, diabetes, major depressive disorder and bipolar disorder. The process is lengthy with government benefits, but the outcome can be the same. The issuing party will either approve or decline disability benefits.
Reasons that applicants have their disability benefits denied vary. Some of the most common reasons that the insurance companies and government entities use for denial are that the applicants are not disabled, the applicants are not disabled enough, the documentation was insufficient, the doctor did not substantiate the claim, and the person had the capacity to perform a different type of work. Unfortunately, some insurance companies give the ill parties the run around because they do not wish to pay benefits. In such cases, the applicants can seek the assistance of an experienced disability lawyer who can fight to have the decision reversed. Howie, Sacks & Henry is an example of a firm that fights hard for disabled people. A disabled person can schedule a consultation today for assistance.
Wednesday, 22 April 2015
Nearly half of all human adults will go to court at some point in their lives. Most of these won’t have anticipated this eventuality, and will have to scramble to prepare themselves. As such, many will be under prepared, poorly represented, or stressed far more than is necessary when that day comes. For people like this, it would be much better if they had a plan of attack long before they knew that they were even going to court in the first place. It pays to have a relationship with a qualified attorney, even if you never use their services. That would be the ideal situation, actually, and you won’t pay anything never to employ your lawyer. But if you do need help in this way someday, you’ll be so glad that you already know who to call. A lawyer who knows you will be able to hit the ground running with your defence, or to prosecute another party in your favor. But if you’re getting a lawyer for the first time when things go bad, you’ll have to do lots of preliminary introductions, wasting time and increasing the chance that you won’t be represented as well as you could be. Considering all these points, here are 4 kinds of people who need to go ahead and get a lawyer, whether they’re headed to court or not.
1) People Who Build, Construct, Design, and Implement. If you do work on buildings, structures, or any kind of thing that people use, that their lives depend upon, it would be in your best interest to have a lawyer ready to call if something you built or designed goes wrong. If someone is injured or killed using your thing, it may not be your fault, but you can bet that someone will sue you. No Win No Fee Solicitors can put you in touch with a lawyer who won’t charge you until you win your case. So even if you are a small contractor, this can be a great investment for your own peace of mind.
2) People Who Work With Other People, Medical and Education. If you work in the medical industry, you are likely covered by your hospitals medical malpractice insurance. But it doesn’t hurt to also have your own lawyer, someone to help clear your name and get you back to work as soon as possible. This goes even more so for educators. In an industry where emotion and misunderstanding can rule the day, it’s important to have someone on your side who can help you construct the best possible defense if you happen to be sued.
3) Politicians. Even if you are a low level politician working in the public sector, emotions and perceived slights can give way to sudden lawsuits, and you will do well to be prepared. So have a lawyer who defends legislators and politicians. It’s a tricky world, and it pays to have someone defending you who already understands the ends and outs of your particular political landscape.
Really, almost everyone could benefit from having a relationship with a lawyer. Even if you are unlikely ever to go to court, a lawyer can help you draw up a will or do any of the other legal functions inherent to life.
Friday, 17 April 2015
The Chinese year of the Sheep began on the 19th February and Master Hans Cua, the youngest Feng Shui master in Asia, predicted that in the year of the Wooden Sheep businesses dealing with textile, fashion, paper, rubber and wood will grow well, while technology, electronic gadgets and supplies, computers, solar power, food, those thinking invention, and new-idea-regulating industries will be making a lot of money.
The British economy has certainly got off to a good start. This week the Office for National Statistics (ONS) announced the UK’s economy grew by 2.6% last year, the fastest pace since 2007, coupled with a recent article reporting that 60% of small businesses say they expect profit growth this year. These figures now place the UK among the best performing of all the major economies in 2014.
The economic resurgence is being further stimulated by Britain’s active support for non-EEA nationals to consider entrepreneurial and investment opportunities within the UK through Tier 1 business visas.
The Tier 1 visa rules are designed to attract high net worth individuals from outside the EEA wishing to start-up a business or invest in the UK:
Tier 1 Entrepreneur visa
Under a Tier 1 Entrepreneur visa, successful applicants can set up or take over the running of one business or more as a self-employed individual, provided the work meets the criteria for being self-employed. Successful applicants can also bring family members and dependants with them.
To be eligible for a Tier 1 entrepreneur visa, applicants have to be from outside the EEA and Switzerland, and be able to show they have access to at least £200,000 investment funds and the skills, qualifications and experience necessary to establish a viable business in the UK.
Tier 1 Investor visa
A Tier 1 Investor visa allows investments of £2,000,000 or more in the UK. Successful applicants are permitted to invest in government bonds, share capital or loan capital in active and trading UK registered companies. Investor visa holders can also work, study or engage in business activities in the UK.
To apply for a Tier 1 Investor visa, applicants must be from outside the EEA and Switzerland, and show they want to invest £2,000,000 or more in the UK. The investment funds must either belong to the applicant, their spouse or civil partner and they must be held in one or more regulated financial institutions and be available to be transferred to and invested in the UK.
Welcoming Tier 1 business visas
Too often the news is full of negative information regarding migration to the UK, but the doors are open for all Tier 1 investors and entrepreneurs.
Prime Minister, David Cameron confirms: “As part of our long-term economic plan, we are determined to do everything we can to back business, support investment and create jobs. We are already taking action on that front including cutting corporation tax to the lowest rate in the G7 but we’ve got to keep listening to business about what more we can do to support them.”
If you have a client from outside the EEA who has a business idea or who wishes to invest in an existing UK business, please contact us to discuss the full eligibility criteria and the options available to secure a Tier 1 business visa.
Anne Morris – Managing Director, DavidsonMorris
DavidsonMorris is a modern legal services provider specialising in immigration law. We support a range of private and commercial clients with expertise in the financial services, petrochemical and education sectors, advising major multi-nationals, FTSE 100 and Global 2000 companies, to help them meet their global mobility needs. We also support private entrepreneurs and investors in achieving British Citizenship, Naturalisation and Indefinite Leave to Remain.
Sunday, 22 March 2015
I came to the Broadchurch party much later than most (in fact, only since earlier this year), but I’ve watched series one and two twice now. It’s one of the best things I’ve seen in a long time.
For what it’s worth, I’m also giving Gracepoint a bash – the bizarre and spectacularly bad remake of Broadchurch, re-engineered to be spoon-fed to American audiences. From the uninspiring location, poor casting, and a complete lack of chemistry between any of the actors, it’s a very poor imitation. On top of all that, David Tennant’s laughably bad American accent - which slips more often than it stays - pretty much drives that final nail home. Seriously: just don’t bother. I bet Tennant wishes he hadn’t as well.
Now the dust has settled from series two of Broadchurch, its creator, Chris Chibnall, has come out in combative fashion to defend his baby from the tirade of indignation produced in response to certain aspects of Joe Miller’s trial.
From the Guardian 04/03/15:
This series of Broadchurch, just like the first, garnered plenty of media coverage and opinions. After the early storms (Mumblegate! Music-too-loud-gate! Ratings-wobble-gate!), […] there’s one issue I do want to address: Legalgate!
There’s been plenty of discussion over the accuracy of our portrayal of the trial process. Some argued our court story would never happen. Our research and advisors suggested otherwise.
The story was devised as the result of months of research and consultation. […] The shape and detail of the series was based on their responses. As I wrote, all three advisers (legal and police) were continually consulted. They read and gave notes on every script.
Broadchurch has always been about the impact of crime, on all those affected. The research made me wonder how our characters would fare under the rigours and vagaries of a trial. What’s the emotional cost to witnesses and the families of victims in an adversarial system? It was a story I hadn’t seen and one I wanted to explore.
I knew it would be a big risk to develop and reshape the show this way. […] That choice meant complex procedure had to be compressed. […] Murder trials often last around four weeks. So exact process and wording has to be dramatised.
That’s not a scandal: it’s a legitimate dramatic technique. Drama is not a literal portrayal of events. It’s a depiction, it’s impressionistic.
Oooh. I can already sense criminal lawyers up and down the country smarting over that final comment. A TV show daring to stray from a faultlessly accurate portrayal of the English criminal justice system? Whatever next?
I’m not sure Chibnall needed to dignify the critics’ objections with a response, frankly. I don’t think I would have. People are always inclined to get their panties in a bunch over these things and lawyers are more guilty of it than most. Social media makes it all too easy.
Despite all the noise, despite the fact we took a big creative risk in our second series, our audience of more than nine million came with us, and stayed. […] Some enjoyed the second series less than the first: that’s definitely allowed. We’re now working on the third series. It will be different again. There’ll be plenty more to discuss.
So it’s pretty clear that Hardy didn’t get into that taxi at the end of series two (he finally buttoned his collar and straightened his tie for nothing, then). But where might the story go from here? Here are some of my thoughts.
*** BIG SPOILER ALERT … I MEAN, REALLY BIG ***
(Don’t read any further if you haven’t seen series one and two.)
The Sandbrook trials are held. There’s got to be at least one ‘not guilty’ plea in there. The show’s anything but predictable after all.
There’s a significant new crime to solve (or at least cause for some more off-duty sleuthing by Hardy and Miller). Given that the Tennant-Colman interplay seems to be the backbone of the show - and the only thing to be universally praised throughout the two series - the storyline of series three has to provide enough room to accommodate more of Hardy and Miller’s inimitable set pieces.
Joe Miller comes back. How could he not? And I’ve a sneaky feeling he’ll want access to his kids. Maybe he’s also going to want Ellie to pay for her role in banishing him from the town.
Joe Miller’s guilt or innocence is confirmed. For a while now, I’ve had an inkling it was Tom Miller who killed Danny and Joe confessed to take the rap for his son. Stranger things have happened. Or what if Tom’s younger brother, Fred, did a ‘Bobby Beale’ on poor Danny? Ok – that one’s less likely, I admit.
The postman killed Danny. What were he and Danny arguing about back in series one? That was never explained, was it?
The prosecution’s contention was correct and Mark Latimer did indeed kill his son and it was Nige Carter (‘that other bald bloke’) who was seen moving the body. Mark’s ‘I-was-writing-a-letter-to-my-wife-saying-our-marriage-was-over’ thing, all after a one-off bonk with another woman on the back seat of her car, never rang true.
In a similar vein, Hardy and Miller were having an affair, and did plot to put Joe away. But that still doesn’t explain who killed Danny.
All of the protagonists were responsible for Danny’s murder – a la Murder on the Orient Express? You never know.
Whatever series three has in store, I sense it’s going to be quite a ride.
Friday, 27 February 2015
Businesses deal with sensitive data on a regular basis – and if this data falls into the wrong hands, it could severely compromise the reputation and security of a company and its clients. That’s why it’s important for all businesses, whether large or small, to protect their data and documentation properly. Your business can ensure its data security in a number of ways. Some simply require the changing of old habits, whilst some may require a cash outlay – but such an outlay is nothing compared to the disastrous consequences should your business suffer a data theft.
Use password protection for all devices, including laptops and smartphones as well as your company’s networks and accounts. Encourage staff to create unique passwords for all online accounts, using combinations of upper-case and lower-case letters, numbers and other characters.
Protect your computer from viruses, spyware and malware by installing reliable antivirus software. A strong firewall is also necessary, as are regularly-installed updates. Many staff will choose not to install updates as it is time-consuming – but this leaves their computers at risk of attack.
Ignore emails from unfamiliar parties, even if they have appeared in your inbox rather than your junk mail. Any emails asking you to verify details such as credit card or account numbers ought to immediately set off warning bells and should be ignored.
Even if you’re confident that your trade secrets are safe with you, it doesn’t mean your employees are also keeping schtum - and they may not even realise when they’re giving away confidential data. Make it clear to your employees what aspects of your business they are and are not allowed to share with others.
The only sure-fire way to protect your data is to ensure that once it’s no longer needed, it is destroyed. Document shredding companies such as Datashredders can visit your premises in a mobile shredding vehicle to provide full shredding services, not only for paper documents, but also laptops, hard drives, data discs and more, providing a Certificate of Destruction upon completion of the job for added peace of mind. Outsourcing your company’s shredding to a service such as Datashredders also frees up dozens of valuable staff hours to work on more profitable tasks.
In this day and age, even information which seems inconsequential to you could be hugely beneficial to your business’s competitors and rivals. But simply by making a few small changes to staff habits, making sound investments in security and by putting data destruction into the hands of professionals such as Datashredders, you can protect your business from data theft.
Tuesday, 24 February 2015
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
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.
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
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
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.
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:
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
Tuesday, 27 January 2015
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
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
Monday, 19 January 2015
From BBC News 19/01/15:
A five-year-old was billed for failing to attend a friend's birthday party - resulting in threats of legal action.
Alex Nash, from Cornwall, was invited to the party just before Christmas.
An invoice for £15.95 was sent by his schoolfriend's mother Julie Lawrence, who said Alex's non-attendance left her out of pocket and his parents had her details to tell her he was not going.
Alex's father Derek said he had been told he would be taken to the small claims court for refusing to pay.
Alex's parents, from Torpoint, had accepted an invitation to the party at a dry ski slope in Plymouth, Devon, just before Christmas.
However, they realised their son was double-booked and due to spend time with his grandparents, which he did.
I suppose sending an invoice is one way of doing it. (But really – what was she thinking?)
Putting the silliness of the situation to one side for a moment, could Mrs Lawrence make this claim stick? Let’s think about that one.
I think the answer’s probably no.
An action in contract would almost certainly fail for there being no intention to create legal relations, as well as there being serious doubts over the validity of both consideration and capacity (assuming, on this latter point, that it was the five year old who was entering into this supposed contract).
On the consideration point, I suppose it’s just about conceivable that a person agreeing to provide a place for another at a party, and that other agreeing to attend that party, might qualify as valid consideration. But I doubt it. Legal commentators have long observed that a court will always find consideration in circumstances in which it wants to make that finding. But I really can’t imagine that this would be one of those situations. You’d need a pretty creative advocate to even have a chance of successfully arguing that consideration can be reasonably inferred here.
So contract’s out. What else can we try?
What about tort? Would Mrs Lawrence have any better luck bringing a claim for negligence (against the parents of Alex)?
I don’t think so. Even if a duty of care could be established here, any claim in negligence would almost certainly fall foul of the general rule against recovery for pure economic loss. What a bummer.
What about a claim in restitution then (we’re really scraping the barrel now)?
But there’s been no unjust enrichment by Alex or his parents. Another dead end.
I think we’re out of options, folks. At least I can’t think of any.
So what might Mrs Lawrence have done differently?
I suppose she might have agreed with Alex’s parents that if he didn’t show up for the party, they’d pay her the relevant admission fee, and she could have recorded that agreement in a deed (correctly executed of course).
But short of that, I think she’ll have to whistle for her money.
And now the media have gotten hold of the story, her plan to try and recover that fifteen quid has backfired spectacularly.
Oh well. You can’t win them all.