Can a Private Investigator be an aid to the legal process?

Guest Post
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.

Tenancy Law – “Providing a False Statement Knowingly”

Guest PostLegal 4 Landlords
www.legal4landlords.com
23/07/2013

Introduced by the Housing Act 1996 was an additional ground for eviction, which aimed to deal with a growing number of fraudulent tenancies. The new ground for eviction (Ground 17) was aptly names “Providing a False Statement Knowingly”.

The additional ground is however only a discretionary ground, which makes a total of 9 discretionary eviction grounds, and 8 mandatory eviction grounds – 17 grounds altogether (click here for a full list of mandatory and discretionary grounds for eviction).

Specifically Ground 17 is for when a tenant (or a person acting for the tenant) is deliberately dishonest in order to obtain a tenancy, which they would not have otherwise been able to secure. Letting agents and landlords where frequently frustrated by a relatively small number of potential tenants who provided both misleading and deliberately deceptive information, which did not always come to light until after the tenancy has started, at which point they previously had little recourse. With the introduction of Ground 17, landlords at least have the option to take action against tenants who has made fraudulent claims.

Tenant References and Tenant Application Forms
The majority of letting agents, and most landlords take proactive measures to “vet” their tenants prior to signing a tenancy agreement. The most common part of the vetting process is a tenant reference. This reference (which is usually completed by a third party tenant referencing company such as Legal 4 Landlords) will ask the potential tenant various questions about their financial situation, employment, lifestyle and previous address history. The results will then be fed back to the landlord or letting agent together with a recommendation, usually either Accept of Decline (some maybe returned as accept only with guarantor).

A small number of tenants who have been declined tenancies in the past due to their tenant reference may decide to provide false information in order to ensure an “accept” is received.

Most Common Types of Fraudulent Information
Research completed by Legal 4 Landlords has highlighted three main areas which are most susceptible to fraudulent statements:-

1. Tenant(s) states they are single when they are not
This can be because they know their partner would not pass a tenant reference or a credit search, and therefore conceal their relationship in order to avoid the tenancy application being rejected. Another common reason for the applicant claiming to be single when they are not is in order to qualify for housing benefit or tax credits as a single person / parent.

2. Tenant(s) states they are employed when they are not
This could simply be an unemployed tenant trying to obtain a tenancy which specified professional tenants only (no DSS). Some may go to great lengths to confirm employment, including fraudulent pay slips or by providing false employment reference. (useful tip: always confirm employment references using a landline phone number which can be found on the company’s website, and then ask to be transferred to the person who provided the reference)

3. Tenant(s) claim they have lived with parents for the last 3 years
This is generally to avoid bad debt detection, or to avoid providing their previous landlord details.

How to Use Ground 17 for Eviction Proceedings
Ground 17 is a discretionary ground, and so the court will take a subjective view on the particular details surrounding the claim and whether it is reasonable to grant an order for possession (evict the tenant) when considering the requirements of the Ground 17:-

“Recovery of possession where grant induced by false statement”

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by—

(a) the tenant, or
(b) a person acting at the tenant’s instigation.”

Click here to view Ground 17 details on legislation.gov.uk

This ground has two significant components which the landlord would need to prove:

(a) they were induced to grant the tenancy by a false statement, and
(b) the false statement was made knowingly or recklessly.

NOTE: the false information does not need to come directly from the tenant, but can be from a third party in which the tenant has influenced, for example a false employment reference.

What the Court will Consider

• Did the tenant deliberately provide misleading, false or withhold information on their tenant application or tenant reference forms?
  
• Does the landlord have evidence of the deception, for example a copy of the tenancy application or tenant reference form completed and signed by the tenant?
  
• What was the nature and extent of the false statement? Eg. was it a slight exaggeration of earnings, or did they completely falsify their employment situation?
  
• When did the landlord find out about the false information, and how quickly did they seek legal remedy?

Most often the landlord will not find out about the false information until a property inspection is carried out, or if problems with rental payments arise.

Identity Theft
In additional to any fraudulent information provided by the tenant, it is also worth considering the possibility of identity theft. Landlord and letting agents can reduce their risk by confirming the potential tenants identify with a trusted form of photo ID, for example a passport or photo card driving license.

Tax Tips for Small Businesses

Guest Post For a small business owner, dealing with the ins and outs of tax can be a confusing and intimidating matter. Here are seven top tips to help you navigate the subject and maximise your profits

1: Classify Your Business Correctly

Different tax rules apply to different business structures, so small business owners should think carefully about how they intend to operate, be it a partnership, sole trader or limited company. This initial decision can have huge implications on the amount of tax and national insurance a business will pay, so it is vital to research and take advice on this question before starting your small business.

2: Keep Precise Records

By keeping track of all your receipts and invoices, and making sure all of the paperwork relating to your business is kept in a secure place, you can ensure you are paying the correct amount of tax and avoid the penalties that are incurred as a result of inaccurate or incomplete records.

3: Be Aware of Allowable Deductions

There are many deductions that businesses are able to claim relief for in order to deduct costs from the gross income of a business, and being conscious of what they are means that gross profits can be maximised. For example, as well as general allowable expenses, small businesses that are run from home are entitled to deduct a percentage of household expenditure for tax purposes.

4: Submit Tax Returns on Time

If your Self Assessment Tax Return is not submitted on time, you face an automatic one-hundred pound fine as well as daily penalties. Whether or not your accountant is tasked with submitting your tax return, it is ultimately the responsibility of the director(s) of the business if the deadline is missed or mistakes have been made.

5. Pay Your Salary Correctly

Depending on what type of business you are registered as, the way you take money out for your earnings will be different, and will influence how much tax and national insurance you pay. Be sure to be familiar with these differences in order to stay completely in compliance with the legal position on these types of return.

6: Pay Your Employees' Salaries Correctly

If your business is large enough that you are able to employ others, it is essential to understand how to manage Pay As You Earn (PAYE) and National Insurance Contributions when paying your employees. This will ensure that the correct amount of tax is deducted from employee's weekly or monthly pay.

7: Seek Support from the Professionals

Although small businesses do not have to enlist the services of a qualified accountant, their experience and knowledge will often make the intricacies of tax laws much easier to manage. There are many benefits to using an accountant, as they can organize VAT returns and year-end accounts, give advice on tax efficiency and allowable deductions, and deal with the HMRC on your behalf

Small Business Success

By following these suggestions, small business owners can make certain that dealing with and paying tax does not become a burden, and consequently strengthen the business and increase profitability.

Legal advice for Irish investment funds

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Maples and Calder provides an overview of investment funds, offering specialist advice on the legislation, regulations, restrictions and requirements.

Ireland has become a popular location for investment funds. With a skilled workforce, political stability and a variety of legal structures, the country is a major and growing centre for internationally distributed funds.

Maples and Calder are highly experienced in launching and establishing investment funds in Ireland. With a full understanding of the legislation and regulations surrounding Irish funds, we can offer specialist legal advice on setting up investment funds in the country.

UCITS or non-UCITS
Irish funds are split into two main categories, UCITS and non-UCITS funds. UCITS is an EU investment fund vehicle designed primarily for retail investors and is therefore quite constrained in terms of investment flexibility. Meanwhile, non-UCITS funds include retail schemes, professional investment funds and qualifying investment funds. Of these, the qualifying investor fund (QIF) is the most widely used. This is a fund regime designed for sophisticated and institution investors. Accordingly, investment constraints do not apply.

Legal structures
There are various fund structures, each of which is subject to different legislative provisions. These include:

• Unit Trusts - a structure created by a written contract between a manager and trustee. The unit trust is not a separate legal entity. The manager runs the trust and enters into contracts related to management and administration, while the trustee holds the assets and enters into contracts related to asset safekeeping.
• Corporate Funds - structured as a variable capital investment company, meaning that it must be incorporated as a public limited company. These have a separate legal existence and are therefore able to enter into contracts. A board of directors looks after the management, while shareholders have ultimate control over certain matters relating to the fund.
• Investment Limited Partnerships - a partnership between a general partner and one or more limited partners, where the funds are invested in all types of property. Limited partners act as the shareholders, while the general partner is responsible for managing the fund.
• Common Contractual Funds - an unincorporated body rather than a separate legal entity, this is a contractual arrangement where investors participate and share in the property as co-owners of the fund.

Along with the various legal structures, the clear and efficient taxation of Irish funds is another key factor that has resulted in its success. Irish funds aren't subject to taxation on income or gains, while Ireland also has many double tax treaties with other countries, with new agreements being negotiated all the time.

Setting up Irish funds
Through the legal structures, tax framework and other factors such as the Irish Stock Exchange and government support, Ireland has become a leading location for investment funds. When launching a fund in the country, it can be important to seek specialist advice from a law firm with expertise in this field. By investing in a professional financial service, you can be assured that the investment fund is compliant with regulations and legislation, while the strategy and operations are well-structured.

B2B Travel Law - The Digital Revolution

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As more and more businesses go digital, it is absolutely essential that you understand the potential risks that the digital revolution has on your travel business. ASB Law specialists in travel law have been hard at work gathering and researching information about the latest digital trends and the legal implications that the travel industry needs to consider when looking to go digital.

Here is what they found...

Fighting back against the PI claims scandal

The personal injury niche generally comes in for a lot of bad press – deservedly so at times. As well as the infamous ambulance-chasing antics, sketchy client care and extortionate success fees, the dubious business of cross-referrals can badly impact the credibility of firms which work in this area.

Perhaps most pernicious of all is the practice of insurance companies selling potential claims to the firm of solicitors with the highest bid. (Think of it as exploiting claimants via e-Bay). 

In response to some of the more dubious practices exhibited by their peers, Spencers solicitors have decided it’s time to bring these antics out into the open and have set up a dedicated site along with an eBay page.

^{Look at ‘im…. poor sod}

“The bidding is open to you to claim your share of compensation from this man's horrific plight. The odds of a large and successful claim are virtually guaranteed, so don't miss the boat. Get bidding on this man today.

Remember, the highest bidder wins!”

...Ooh – I hate them all!! 

If that raises your blood pressure (and let’s face it, virtually anything to do with insurance is prone to do that), stress relief is on hand in the form of an interactive game at injury auction. What could be more therapeutic than lobbing wooden gavels at potential bidders for PI claims.

The only thing missing is the sound effect:

“Pow, right in the kisser” ... “Pow, right in the kisser”

^{Pow – right in the kisser!!}

^{Take that you money-grabbing harlot!!}

Strangely satisfying!  Why not try playing the game yourself?

PPI fraudsters give legitimate firms a bad name

From STV11/04/12:

A woman has been conned out a three-figure sum of money by a bogus PPI claims company. The 42-year-old received a phone call to her house in Telford Drive, Edinburgh on Wednesday March 28 from someone saying they were from a PPI claims company.

They told her she was eligible for a refund and she was told to pay them a three-figure sum of money through UKash vouchers. The victim has not received a refund.

A spokesman for the [Lothian and Borders Police] force said: "The issue of PPI refunds is a very current topic and criminals will look to exploit any new opportunity to obtain money or personal details from members of our communities.

Tens of thousands of successful PPI claims have already been brought, providing redress for victims who have been mis-sold payment protection insurance. It would be a great pity if all the good work done by firms bringing claims for payment protection insurance on behalf of their clients is undermined by the fraudsters who are swindling claimants out of what’s rightfully theirs.

In this way, for those that fall victim to the fraudsters, payment protection insurance has a painful double bite. Just as bad, the ensuing negative publicity may well prevent others from coming forward who have potentially valid claims.

As an aside, PPI claims offer another tangential benefit: according to the Scotsman, the significant recruitment drive seen in the banking sector in the first quarter of 2012 is largely down to additional staff required to deal with the PPI fallout.

While it doesn’t detract from the gravity of PPI being mis-sold in the first place, there’s nothing wrong with looking to reap as many benefits as possible in clearing up the resultant mess. And the economy can use all the help it can get at the moment.

Fine print lawyers have all the fun...

Over at Big Legal Brain (3 words which rarely go together my experience) I stumbled across a question and answer session with Greg Coughlin, who’s styled as “America’s Foremost Fine Print Lawyer”.

For those of you who are a little puzzled, it is a genuine niche; it’s a kind of ‘what-it-says-on-the-tin’ thing. Remember: we’re talking American law here – it’s best to go with it and not ask too many questions to begin with.

Q: You fine print lawyers must be a boring lot.

A: Not so much, really. Believe it or not, fine print lawyers are a pretty rowdy bunch. We take our work and craft very seriously but we party hard. There’s a guy—he used to be in-house counsel for Monsanto—who had a 120-page seed distribution contract tattooed on his ass. Except it was in fine print and it fit on a one-inch square portion of his right cheek. It was a tattoo in the shape of a Roundup Ready soybean seed. Wait, it was his left cheek. It was actually done very tastefully.

I’m not convinced the act in question is capable of being done tastefully, but there you go.

Q: You’re joking.

A: I’m dead serious. In fact, Monsanto got into a dispute with a farm cooperative about the seed distribution contract, which involved interpretation issues. The attorney literally got his ass hauled into court. They had him face down on counsel table with about fourteen big firm attorneys around him, staring at his ass through high-powered jeweler’s monoculars. The case ultimately settled, but I still think it’s the only case in which a court admitted an attorney’s ass into evidence.

I think English law needs more of this approach when it comes to adducing evidence. It would certainly liven things up and make the process of allowing inspection a bit more painful (or at least embarrassing) I should imagine.