June 2010
Posted in Industry News by Julia Pearson | 31.08.10
A guarantee is a promise given by a third party to fulfil the obligations of a borrower in the event of default by the borrower. There are various different types of guarantees and the general law surrounding them is well established. However, since the start of the recession, more lenders are finding themselves needing to call on guarantors to fulfil a defaulting borrower’s obligations and as a result, more guarantors are seeking to challenge the validity of guarantees through litigation. The Courts are therefore seeing an increase in disputes relating to guarantees.
The Basic Law
The basic law on guarantees dates back as...
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Posted in Industry News by Helen Bates | 27.08.10
The Requirement for Administrator’s Proposals
The Administrator of a company is obliged by statute to send to the company’s creditors and to the Registrar of Companies proposals detailing, amongst other things, the company’s financial circumstances and the commercial aims of the Administration. Those proposals must be sent within eight weeks of the start of the Administration, unless the Court extends that period.
The requirement to send such proposals and the specific detail that must be contained within the proposals is set out in Paragraph 49 of Schedule B1 to the Insolvency Act 1986 and Rule 2.33 of the Insolvency Rules 1986. The wording...
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Posted in Industry News by Sara Rogers | 26.08.10
There is a little known exemption from Inheritance Tax (IHT) which means that when a member or former member of the Armed Forces dies as a result of injuries or disease sustained whilst on active service, their whole estate is exempt from the payment of IHT which would normally be levied at a rate of 40%. This is often overlooked, resulting in unnecessary tax being paid and the estate of the serviceman reduced for their surviving family.
Some points to note:
It is applicable to members or former members of the Armed Forces
The death does not have to be caused by the injury or...
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Posted in Industry News by Sara Rogers | 24.08.10
What is the Transferable Nil Rate Band?Changes were made on 9th October 2007 to the way in which Inheritance Tax (IHT) was charged on the estate of a couple who had been married or who had been in a civil partnership.
Before 9th October 2007
Before the change was made, when someone died the first £325,000 of their estate was not subject to IHT. This is called the nil rate band (NRB). When one of a married couple (including civil partnerships) died and left their whole estate to the other, there was no tax to pay as gifts between married couples are exempt...
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Posted in Industry News by Stuart Cobbett | 24.08.10
It is extremely common in supply contracts for the supplier and the buyer to both attempt to incorporate their own terms into the contract.
There is a common perception that the party that ‘fires the last shot’ by sending the last set of terms before the contract is performed will be successful in incorporating its terms into the contract. However, the recent High Court case of GHSP Inc v AB Electronic Ltd [2010] EWHC 1828 emphasises that this will not always be the case and demonstrates the approach that the Courts will adopt to the determination of these disputes.
GHSP v...
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Posted in Industry News by David Arundel | 24.08.10
It is said that there are lies, damned lies and statistics. The latest figures for corporate insolvencies released by the Insolvency Service for England and Wales appear to be a case in point. The bare facts are that during the second quarter of 2010 there were just over 4,000 liquidations and a further 1,300 other forms of corporate insolvency (including receiverships and administrations). These figures are down approximately 19% from the same period in 2009. This would suggest that the worst of the recession is over and the economy is moving into a period of strong recovery. Of course everybody knows that this is far from the...
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Posted in Industry News by Justine Osmotherley | 18.08.10
National statistics recently released have revealed that more people than ever now cohabit without ever marrying, and predictions are that this will continue to grow. In 2008, 15.3 million people in England and Wales had never married, representing about 35 per cent of the adult population. The predictions are that by 2033 this will increase by almost half, with the number of those not marrying being higher in number than those who choose to marry. Fears that the importance of marriage is no longer at the forefront of our minds have prompted lively debates amongst the Government; Church Leaders and academics. The...
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Posted in Industry News by Lucie-Jane Hugill | 17.08.10
The recent case of Pittack v Naviede considered the standard conditions that we see incorporated into property sale contracts and the effect they have on sub-sales.
Property sale contracts use one of two sets of conditions. Residential contracts tend to incorporate the Standard Conditions of Sale (4th edition) (“SCS”) whereas commercial contracts follow the Standard Commercial Property Conditions (2nd edition) (“SCPC”). These conditions effectively form the basis of the contract but allow parties to add further bespoke conditions to the contract as required.
The background of this particular case is that the parties exchanged contracts for the...
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Posted in Industry News by Lynsey Harrison | 05.08.10
In a previous blog “Specialist Lawyers Lead the Way”, I illustrated that contentious probate claims are on the increase. The areas in which the rise has been most prolific are claims challenging the validity of a Will and claims made by disgruntled beneficiaries under the Inheritance (Provision for Family and Dependents) Act 1975.
The reasons for this increase are well documented but what of the solicitor who drafted the particular Will in question? Can they stay out of the spotlight when a claim or a potential claim is commenced?
Pre-emptive protection
By their very nature, contentious probate cases arise...
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Posted in Industry News by Laura Bowler | 04.08.10
Under the common law ‘forfeiture rule’ a person who unlawfully kills another or aids and abets suicide will forfeit any benefit that he or she would have received from the estate of the deceased. In these circumstances, it may be expected that if a person is disqualified for murder, the benefit that they may have obtained under the deceased’s estate would pass to the children of the killer or assister. However, under current law, the estate will pass to the deceased’s other relatives. These consequences follow from the Court of Appeal’s decision in Re DWS (Deceased) [2001] Ch 568 (CA)....
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Posted in Industry News by Clare King | 03.08.10
Establishing a regular review of your affairs is essential to ensure that you are aware of any legal or financial developments relevant to you and your circumstances as your life progresses.
If you have assets worth over £325,000 you may have a liability to Inheritance Tax (IHT) after your death. This liability can be planned for and minimised if the correct advice is taken.
If you own a business have you ensured that your estate will attract Business Property Relief after your death? This can be up to 100% of the value of your business assets. Have you planned for what will happen to your...
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Posted in Industry News by Susannah Bottomley | 02.08.10
There is often confusion as to how jointly owned assets should be treated upon the death of one party and often people wrongly assume that the surviving owner takes all.
An example of an asset passing by survivorship is in the case of a property which is owned by the parties as joint tenants. For the person who dies, their share of the property passes to the surviving joint owner automatically on their death. If however the property is owned as tenants in common, then the deceased’s share of the property will pass in accordance with their Will or under the rules of intestacy if...
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Posted in Industry News by Clare King | 27.07.10
The deprivation of liberty safeguards (DOLS) were implemented on 1 April 2009, under the Mental Capacity Act 2005. They provide legal protection for vulnerable people who are, or may become, deprived of their liberty within Article 5 of the European Convention on Human Rights (ECHR). Here follows a basic guide to the DOLS:To be covered by the safeguards, a person must be detained in a hospital or care home for the purpose of receiving care or treatment. The safeguards do not apply to those detained in hospital under the Mental Health Act 1983. There are 3 main elements to the safeguards:to provide the person with a representative;...
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Posted in Industry News by Deborah Warren | 26.07.10
The Equality Act 2010 has two main aims. The first is to harmonise current discrimination legislation which is currently spread over a number of different acts and regulations and the second is to strengthen anti-discrimination legislation relating to sex, race, disability, pregnancy, age, marital status, gender reassignment, religion and belief and sexual orientation (the "protected characteristics"). The Act also makes a number of significant additions to anti-discrimination legislation. For example, it proposes to widen the definition of direct discrimination and harassment to include discrimination on the grounds of association with a person who has a protected characteristic and discrimination because of a perceived protected characteristic. In addition, the...
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Posted in Industry News by Sara Rogers | 26.07.10
One of the areas for discussion by the Commission on Funding for Care and Support, set up on Tuesday, will be the various options including voluntary and compulsory schemes. They have to report in a year and have to take account of the new Coalition Government's spending cut proposals. We welcome a review of care fees as this is one of subjects that most worries and confuses our elderly clients. Sometimes they pick up headlines from scaremongering stories claiming that ‘the Council' will take away their home if they go into a nursing home. These stories are not true and...
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Posted in Industry News by Emma Blackstone | 19.07.10
The divorce of celebrity chef Marco Pierre White and his wife has recently been in the newspapers. According to media sources, Mrs White was forced to act in person in the divorce proceedings due to escalating legal costs and her inability to raise further borrowing to finance her case. This case highlights a common problem amongst divorcing couples - funding. How a case is to be financed is an issue for all clients and it is essential that the client makes the right choice about how to fund their case at the earliest opportunity in order to avoid the difficulties experienced by Mrs White part way through the...
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Posted in Industry News by Sharon Pallagi | 15.07.10
The Ministry of Justice are set to introduce a proposed bill to reform aspects of the law on the classification and apportionment of income and capital in trusts. The consultation period for the proposals closed on 14 June 2010. The proposed reforms, which were recommended in the Law Commissions Report, Capital and income in trusts, capital and apportionment (the Report) proposes changes to the law which are very welcome to simplify and modernise trust law rules.The draft bill will amend 3 areas of trust law relating to the classification and apportionment of income and capital in trusts. It deals with 3 complications that can arise in the...
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Posted in Industry News by Deborah Warren | 08.07.10
The Employment Appeals Tribunal has handed down its judgement in the case of Mr T Brown v G4 Security (Cheltenham). The comments made by the EAT highlight the fact sensitive nature of assessing the amount of a penalty for non-compliance with the Information and Consultation of Employees Regulations 2004 ("Regulations"). The RegulationsThe Regulations endeavour to manage the process of negotiation between employers and employees in order to reach a formal agreement in respect of how and what an employer will be obliged to inform and consult its employees about. The Regulations apply to undertakings carrying out an economic activity with 50 or...
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Posted in Industry News by John Mackle | 08.07.10
Would you want to contract with an individual who has a list of unsatisfied County Court Judgments as long as your arm? If it is too late and you are forced to sue them, you want to know whether they have the funds to meet any judgment or order for costs obtained. A number of commercial organisations offer often sophisticated credit control checking packages, but for basic information there are some free or inexpensive official sources. The Insolvency Service website http://www.insolvency.gov.uk/ has an online register which contains the details of bankruptcies that either are current...
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Posted in Industry News by Simon Young | 25.06.10
The Commercial Litigation Team at Clarion Solicitors in Leeds specialises in professional negligence cases, be they claims against solicitors, accountants, valuers, architects, IFAs etc. Put in the simplest terms, professional negligence is generally made out by showing that a professional service provider has breached duties by exercising inadequate skill and care and so falls below the standard reasonably to be expected of a professional working in that particular area. A string of caselaw has however distinguished "valuers" as a profession, applying a different test for establishing negligence. The recent High Court case of K/S Lincoln and others v Richard Ellis...
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Posted in Industry News by Simon Young | 21.06.10
It is often assumed that the words "subject to contract" will serve as an adequate indication that a legally binding agreement is not intended to come into being until execution by signature. It might be natural then to assume that the absence of such words will produce a binding contract even where unsigned - after all, a contract does not need to be in writing to be perfectly enforceable in law. However this is not always the case and the Court will take a number of factors into account in deciding whether a contract has been concluded. The recent Court of Appeal decision in
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Posted in Industry News by Helen Bates | 18.06.10
Conditional Fee Agreements & After the Event InsuranceMany Liquidators, Administrators and Trustees in Bankruptcy will be finding themselves in the situation where they have identified potential claims that could be brought in a particular case, but where they are not holding sufficient funds within that matter to be able to pay for further investigations into the potential claim and/or court proceedings.This is becoming more and more of a common theme as directors of failing companies and individuals experiencing financial difficulties have, for varying reasons, moved assets, sold assets for less than their market value and paid certain creditors ahead of others....
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Posted in Industry News by Helen Bates | 10.06.10
The Procedure for an Out of Court AppointmentWhere the directors of a Company wish to appoint an Administrator of that company under Schedule B1 of the Insolvency Act 1986 (the "Act"), they can do so by filing the requisite Notice of Appointment of an Administrator at Court. This is known as an "out of court appointment".Where the company has granted a qualifying floating charge to one or more secured lenders, before filing the Notice of Appointment at Court, the directors must file at the court and serve on all interested parties a Notice of Intention to Appoint an Administrator (...
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Posted in Clarion News by Clare King | 09.06.10
My colleagues and I have recently been increasingly involved with giving talks to local charities and elderly action groups on legal issues that affect elderly and vulnerable people in West Yorkshire. Access to good legal information for this particular section of society is difficult as there is no public funding assistance for areas of law such as making a will or power of attorney, or taking advice on planning for and paying for care. These areas have now become very specialist so we encourage clients to use resources such as the Solicitors for the Elderly website to locate expert practitioners in their locality. The Law Society has begun...
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Posted in Industry News by Stuart Cobbett | 08.06.10
Many businesses will be familiar with situations where work is started before a formal contract is signed. In such situations disputes can often arise over what the parties believe they have agreed or indeed whether they have even reached a binding contract at all. The recent Supreme Court case of RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) [2010] 1WLR 753 provides guidance on the way that the Courts will deal with such disputes. ...
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Posted in Industry News by Sara Rogers | 04.06.10
Anyone who wishes to use a Lasting Power of Attorney (LPA) to help administer the financial affairs of the person who signed an LPA (the Donor), has to register it at the Office of the Public Guardian (OPG) first. This requirement was introduced in October 2007.The OPG is no stranger to controversy in its existing form or when it was the Public Guardianship Office or the Court of Protection. Delays, inaccuracies and lost documentation have been a constant frustration to those having to deal with them, but the current delays are now causing real difficulties for the public and practitioners alike. In a statement issued recently by the Public...
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Posted in Industry News by Justine Osmotherley | 04.06.10
With many people excited about the start of the World Cup on 11 June 2010, sadly this will be a time of fear and dread for those victims of domestic abuse. According to BBC news the Association of Chief Police Officers (Acpo) there is the threat of increased domestic violence during England's World Cup campaign. Statistics revealed showed that during the 2006 World Cup, Home Office data showed a 31% rise in domestic violence reports on the day of England's 1 - 0 victory over Paraguay. On the day England were defeated in the tournament, reports increased by just over 30%. In fact, in general there was a 25% rise in domestic...
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Posted in Industry News by Rachel Spencer Robb | 01.06.10
As national family week gets underway, facilities for children in Huddersfield have received vital funding thanks to a £500 donation from a group of local lawyers.The local group of the family lawyers' association Resolution has donated the funds to the Huddersfield Children's Centre on New North Parade to help fund supervised contact sessions for children whose parents have separated."As we celebrate national family week, it's important to remember that the end of a relationship doesn't have to result in the breakdown of a family," says Rachel Spencer Robb, of Resolution West and North Yorkshire, which represents over 300 lawyers in the...
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Posted in Industry News by Deborah Warren | 27.05.10
The World Cup starts on 11 June 2010 and lasts for a period of approximately a month. With football fever gripping much of the nation, employers could encounter problems with over enthusiastic employees. Potential Issues for EmployersThere are a number of potential issues for employers to consider in the run up to the main event. For example, too many employees may want to take holiday on the same day, employers may become suspicious of sickness absences and some employees may simply be absent without any authorisation. In addition, employers may find that employees are accessing the internet to watch the World Cup games and wasting time....
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Posted in Industry News by Laura Bowler | 19.05.10
Recent research shows that more than 50% of the population believe that common law marriage still exists and that if one half of a cohabiting couple dies the survivor will inherit the deceased's Estate. In fact the institution of common law marriage has not existed in England & Wales since 1753 and it therefore comes as a shock to most to find that the survivor of a cohabiting couple will not inherit a share of the home or assets that are held in their deceased's partners sole name, even in situations where the survivor has made a financial contribution, brought up children or sacrificed their career to their financial...
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Posted in Industry News by Sarah Sevitt | 14.05.10
Since 1 April 2010 there have been a number of significant changes introduced that will affect the way in which disputes about children will be dealt with by the courts. The changes, known as the Revised Private Law Programme ("PLP"), are intended to provide parents with a forum to resolve disputes in the best interests of their children, in the event that they have not been able to reach an agreement voluntarily or by another means such as mediation. The PLP has a strong focus on ensuring the safety of the children and the parties involved, and introduces a requirement for risk assessments to be carried out at the...
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Posted in Industry News by Sara Rogers | 14.05.10
PUTTING RIGHT MISTAKES IN TRUSTS Since the case of Hastings-Bass deceased in 1975, there has been a way of unpicking a decision made by trustees. That case related to the tax consequences of a trustees' decision and the judgment unsurprisingly was opposed by HMRC. The serious tax consequences of the decision were avoided by the judgement of the Court who set aside the trustees' decision made in the exercise of the discretionary power where ‘if they had not misunderstood the effect that their actual exercise of the discretionary power would have, they would have acted differently'.A recent case (Pitt v Holt and...
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Posted in Industry News by Susannah Bottomley | 11.05.10
Many people are under the common misconception that a will is a straight forward document that is simple to write and execute. This however is not the case and there is more to think about when drafting a will than merely who you want to have your assets when you die.There are so many things that can go wrong when drafting wills, which could result in the will being invalid or making provision for something that was not intended by the person making the will (the Testator).Over recent months many will writing companies have engaged in drafting wills for individuals, however many people are...
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Posted in Industry News by Sharon Pallagi | 05.05.10
In today's financial climate, and as a practitioner specialising in the administration of estates, I have observed with some alarm the increase in not only insolvent estates, but also the increase in the numbers of beneficiaries that have been made bankrupt and that are not discharged at the time of their inheritance, resulting in their shares of the estate having to be paid to their appointed Trustee in Bankruptcy.It is important to note that in a role as a Personal Representative you may be held personally liable to creditors of a bankrupt beneficiary, if you pay out to a beneficiary direct and can not recover...
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Posted in Industry News by Joanna Downes | 30.04.10
It is now over 3 weeks since the new ‘fit notes' came in to replace the traditional sick note system. This change represents a complete overhaul of a system that has not changed since the creation of the NHS in 1948 and an attempt to put an end to the legacy of ‘sick note Britain'.It is hoped that the shift in focus from what people cannot do, to what they can, will reduce the estimated £100 billion and 172 working days that sickness absence costs the UK economy each year. So how should the changes affect the way businesses deal with their sick employees?The first point...
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Posted in Industry News by Jonathan Simms | 29.04.10
It is becoming more and more common to take a debenture over assets which include intellectual property rights ("IPRs"). This is just a reminder that if those IPRs include any registered rights, such as patents, registered designs or registered trade marks, it is important to record the debenture at the relevant IP registry, as well as at Companies House. If the debenture over the IPRs is not registered, it is ineffective against anyone else who acquires a conflicting interest in the IPRs who did not know about the debenture. Also, in some cases, unless the debenture is recorded, you cannot rely on the debenture document in court...
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Posted in Industry News by Emma Blackstone | 23.04.10
The decision of the Court of Appeal last week to uphold the approach of a High Court judge where a five year old girl was consulted about which parent she wanted to live with has been hailed as ‘radical' and ‘unique'.The girl was considered to have ‘attained an age and level of maturity' sufficient enough to be consulted, together with her eight year old brother. The youngest sibling, aged three, was deemed too young to be consulted.The circumstances of the case were that the children had been removed from Ireland by their mother. The children's father brought an application...
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Posted in Industry News by Joanna Downes | 23.04.10
The flight ban caused by the Eyjafjallajokull volcano has now been lifted, and stranded Britons are returning home. During the flight ban, many employers will not have mentioned how the forced absence of their workforce would be dealt with - perhaps not wanting to add to the woes of employees who were struggling to get home, or perhaps because they simply had not decided how this unprecedented situation should be dealt with. Now that the situation is returning to normal (at least for the moment), some decisions need to be made.The most organised employers may have put procedures in place to help them to deal with the situation. Remote...
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Posted in Industry News by John Mackle | 21.04.10
Recovering premiums for insurance against adverse litigation costsIn the recent case of Parker v Seixo [2010] EWHC 90162 Master Wright, a costs judge in the High Court, was asked to consider whether the amount of an insurance premium covering the claimant against the risk of having to pay costs was recoverable. Master Wright's decision confirms the attractiveness of "after the event" costs insurance to parties able to find such insurance and the pressure that recoverability of insurance premiums can put on a party defending a claim to agree early settlement to avoid paying sometimes significant insurance premiums.Parker...
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Posted in Industry News by Matthew Hattersley | 16.04.10
Waking up to hear about volcanic ash clouds stopping all air travel seems like something out of a science fiction novel. It has very real consequences, however, for any business relying on international travel or dispatching or receiving goods by air freight.Affected businesses unable to deliver on contractual obligations may wish to claim ‘force majeure', on the basis that the event is beyond the business' reasonable control. There is, however, no general right to be able to claim force majeure. If force majeure is to apply, this must be explicitly included in the contract (including a definition of what constitutes a &lsquo...
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Posted in Industry News by Matthew Hattersley | 13.04.10
In the last desperate push to get legislation through before Parliament was dissolved, the Bribery Bill finally made it past the post. It now sits on the statute books, waiting to be enacted at the beginning of the next Parliament.In the end the majority of proposed amendments were dropped, the only major change being a requirement that before proceedings are brought under the Bribery Act, approval must be given by one of the Director of the Serious Fraud Office, the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions. Whilst the scope of the Bribery Act means it will apply to all, it...
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Posted in Industry News by James Lawson | 31.03.10
An eye catching change in last week's budget was the suspension of Stamp Duty Land Tax for first time buyers of residential property. This change should be a big help to first time buyers and in turn good news for house builders by adding stimulus to the housing market.The suspension operates in respect of purchases of residential property not exceeding £250,000. The change came into effect on 25 March 2010 and is due to run until 25 March 2012 (election permitting).Previously, SDLT was charged at a rate of 1% of prices exceeding £125,000.00 up to £250,000.00. First time buyers could therefore save...
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Posted in Industry News by Rachel Spencer Robb | 25.03.10
You may have read today of the case of Jayne Hewett who, it has been ordered, does not have to repay a joint mortgage obtained at the instigation of her husband during a time he was having an affair. Ordinarily, we advise our clients that the Court is only concerned with the financial aspects to the marriage and the emotional wear and tear of the breakdown or the reasons that a marriage falls apart is irrelevant. Certainly, traditionally, it has not been the case that even where one party has had an affair, however much this hurts and is the catalyst for the breakdown of the marriage, this...
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Posted in Industry News by Rachel Spencer Robb | 16.03.10
As Press Officer for West and North Yorkshire's Resolution, I have been provided with a press release that I would like to share. (Resolution is a group of over 5500 family lawyers in England and Wales. Established 25 years ago, it promotes a non-confrontational, constructive approach to resolving family disputes. To find out more, visit http://www.resolution.org.uk/)A new YouGov poll published today reveals just how out of step political parties are with the realities of family life and breakdown in modern Britain. The poll, released by family lawyers' association Resolution ahead of its annual conference in Manchester,...
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Posted in Industry News by John Mackle | 12.03.10
Negotiations for settlement of a dispute are often carried out on a "without prejudice" basis. The "without prejudice" rule has been stated "to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence". The purpose of the without prejudice rule is to allow parties to discuss matters freely in order to promote settlements, knowing that the material will not be made available to the Court in litigation. What is the scope of the without prejudice rule? The Court of Appeal has examined the without prejudice rule in two recent cases and found the extent of...
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Posted in Industry News by Deborah Warren | 11.03.10
Mr R Kahn v Vignette Europe Ltd UKEAT/0134/09/CEAMr Khan was employed as a telemarketer by Vignette Europe Ltd in March 2005. By all accounts Mr Khan was very good at his job, but the employment relationship became strained. Mr Khan had raised grievances about his remuneration package and career development. Eventually the working relationship was so badly damaged that Mr Khan was suspended awaiting a disciplinary hearing to be heard in June 2007. When he was suspended Mr Khan handed over his laptop in accordance with Vignette Europe Ltd's policy. On inspection of the laptop, Vignette Europe Ltd found that Mr Khan had been accessing pornographic...
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Posted in Industry News by Sarah Sevitt | 11.03.10
An issue that we as family lawyers are being asked to look into more frequently is what the impact of a redundancy on a financial settlement in the context of a divorce. Without sounding too "doom and gloom", there is no getting away from the fact that more and more employees have been or are being made redundant; and the financial worries caused by the economic climate have caused cracks between already unhappy couples to widen, leading to more arguments, separation, and divorce in many cases. Aside from money worries and loss of employment potentially being a cause for the breakdown of relationships, there is another angle...
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Posted in Industry News by Stuart Cobbett | 05.03.10
Resolving disputes before trial can be beneficial to all parties. Costs and management time can be saved and a clear agreement tailored to the facts of the case can be reached. On occasions it may be possible to reach an agreement on the underlying issues but the question of liability for costs may remain contentious, particularly where the parties both consider themselves to be the successful party. In such cases the parties can, and often do, agree that the Court determine which party should bear responsibility for the costs of the proceedings.Vector v WilliamsThe recent case of Vector Investments...
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Posted in Industry News by Sarah Sevitt | 02.03.10
It can hardly have escaped most of us that Cheryl and Ashley Cole are to go their separate ways after certain allegations have emerged recently. The media circus that surrounded their marriage is likely to continue over the coming weeks, with everyone keen to know the ins and outs about who did what, and who will get what.But leaving aside all of the gossip and intrigue, in reality if the Coles do go ahead and divorce, it is likely to be a very simple and straightforward case in terms of how a financial settlement will be reached.The courts are required to apply a number of...
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Posted in Industry News by Emma Blackstone | 19.02.10
When a marriage breaks down, it is understandable that the separating couple will want to resolve the issues which have arisen as a consequence of their split, such as divorce, arrangements for the children and the finances, as quickly as possible.It is not uncommon for parties to talk to each other about what they want in terms of financial support, capital or pension provision going forward. It is good to talk to your former partner and identify areas of agreement or issue. Such communication should be encouraged and can achieve an early settlement without the need for Court proceedings.It is, however, important to ensure...
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Posted in Industry News by John Mackle | 17.02.10
The Mercedes Benz in Lombard North Central plc v Automobile World (UK) Limited [2010] EWCA Civ 20 was a rare Mercedes Benz S600 Pullman, the kind of car, the Court of Appeal observed, which a country's Head of State might order to an almost bespoke specification. A question before the Court of Appeal was whether the innocent party, Lombard, had failed in its duty to mitigate its loss by reason of the inadequate manner in which it had resold the car. Automobile World's complaint was that Lombard had failed to realise the nature of the car which it had repossessed for sale. It argued...
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Posted in Industry News by Deborah Warren | 15.02.10
The status and rights of agency workers has been the subject of much debate over the last decade. The Courts seem to have found it difficult to strike a balance between the rights of end-users, agencies and agency workers which is acceptable to all parties. This led to a huge number of cases brought by agency workers uncertain of their employment status and rights. However, the Government has now created the Agency Workers Regulations 2010 in an attempt to settle the matter. The legal set up surrounding an agency worker is tripartite. The agency has a contract with the agency worker governing issues such as holiday entitlement and pay, and...
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Posted in Industry News by Julia Pearson | 09.02.10
When a family member passes away, the last situation anyone wants to find themselves in is being embroiled in a family feud. Sadly, however, disputes can easily arise. This is sometimes due to poor planning by the deceased who may not have made a Will or their Will may simply be open to challenge by people who consider they should have received a benefit. Contentious Probate disputes have been on the rise in recent years. Looking back over the last 25 years provides the answers as to why. There has been a steady rise in asset values, people are leading...
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Posted in Industry News by Rachel Spencer Robb | 08.02.10
Given the very difficult economic times we have been and are still in the throes of, we are often asked by clients about the effect of recession upon financial orders made following previous divorces.There is very little that can be done to change the amount of a lump sum orders or orders in relation to property, whether made by the court or by agreement.However by their very nature, continuing orders for periodical payments (maintenance) from one spouse to another have flexibility within them that can be varied up or down depending on changes in the respective parties circumstances. It has, historically over...
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Posted in Industry News by John Mackle | 02.02.10
Debtors will often argue that it is unfair that one creditor should gain an advantage over other creditors by having the security of a charging order particularly where other creditors may have been accepting payments by instalments. However, in the case of Nationwide Building Society v Wright [2009] the Court of Appeal confirms that this argument should not succeed.A charging order is an Order of the Court placing a "charge" on the property of a Judgment debtor such as a house or a piece of land for the amount owed under the Judgment. The charging order will not normally...
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Posted in Industry News by Deborah Warren | 02.02.10
Changing Terms and Conditions - FairnessMr T Bampouras & Others v Edge Hill University [2009] UKEAT/0179/09/ZTThis case concerned three "test" cases of some 68 claims at the instance of university lecturers who had had changes to their contracts of employment arising from a national agreement, the Pay Framework Agreement (PFA), imposed on them by their employers three months before official agreement with the Unions was reached. The delay was due to the holiday commitments of the Union representatives. The Claimants' claimed that their contracts had thereby been terminated and that in the circumstances they had been unfairly dismissed, which failing, unfairly...
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Posted in Industry News by Rachel Spencer Robb | 27.01.10
Further to my recent blog in relation to whether the receipt of the benefit from a trust in 15 years was an asset to be received by a party in "the foreseeable future", the Court has also been concerned with regard to trusts in another recent case. SR V CR (Ancillary Relief: Family trusts) [2008]. Whilst it is fair to say that the case involving several millions of pounds is not perhaps the most common set of circumstances, the Court has given further guidance as to the way a family trust can be treated upon the breakdown of the marriage.
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Posted in Industry News by Richard Port | 26.01.10
The Employment Rights (Revision of Limits) Order 2009 has revised certain tribunal compensation limits with effect from 1 February 2010. Interestingly, for the first time, certain limits will fall, most notably the maximum compensatory award for unfair dismissal, which will reduce from £66,200 to £65,300. Those familiar with redundancy payment calculations will be aware of the maximum limit on a week's pay, currently £380.00. This will remain unchanged in 2010.However, there will be increases to certain statutory payments, most notably in respect of statutory maternity pay and rates for statutory paternity and adoption pay, which will rise from £123.06 to £124.88 a week. Statutory sick...
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Posted in Industry News by David Arundel | 26.01.10
There are an estimated 200,000 businesses currently taking advantage of HMRC's deferred payment plan following the launch of the Business Payment Support Service (BPSS) in November 2008. These ‘time to pay' arrangements have allowed businesses to defer payment of liabilities such as PAYE, VAT, National Insurance and corporation tax during the economic downturn. Despite the large number of businesses which have taken up the scheme, it has been criticised in some quarters. The deferral of payments due to HMRC is seen as a short term solution and while it may prove successful for businesses who take the opportunity to restructure their finances, there are likely to be a significant...
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Posted in Industry News by John Mackle | 26.01.10
In the case of Whittle Movers Limited v Hollywood Express Limited [2009] EWCA Civ 1189 the Court of Appeal has recently considered the common scenario in which a party commences performance of services whilst terms are under negotiation, in contemplation of the signing of a formal written long term contract. The case highlights that if parties have entered into negotiations "subject to contract" a binding contract will only be implied in exceptional circumstances. Hollywood provided distribution services for its parent company, the well known cinema group UCI, and put the services out to tender - Whittle was the successful candidate. Subsequent negotiations were entered into ...
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Posted in Industry News by Sarah Sevitt | 25.01.10
The Civil Partnership Act 2004 (the "Act") passed its fourth anniversary on 5 December 2009. The coming into force of the Act now means that couples of the same sex who wish to have their relationship legally recognised are able to do so. Yet recent statistics show that the number of same sex couples choosing to enter into a civil partnership is falling.Figures produced by the Office for National Statistics last year show that the number of couples registering civil partnerships in 2008 was 18% lower than for 2007. The reasons for the drop in numbers is unclear, but some commentators are of the view that this is due to there being...
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Posted in Industry News by Justine Osmotherley | 25.01.10
A question that more and more brides/grooms to be are asking is "should I get a prenup?". Considered by many as being unromantic and arguably being the last thing on the mind of potential newlyweds, entering into a prenuptial agreement can in reality be a very sensible and logical step to take before walking down the aisle. This is particularly the case where one of the parties has, for example, family wealth, or a potential inheritance. The courts are beginning to attach increasing weight to prenuptial agreements, the thinking behind this being that it is up to the husband and wife to decide what should happen...
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Posted in Industry News by John Mackle | 21.01.10
In the case of SK Shipping PTE Ltd v Petroexport Limited [2009] EWHC 2974, the Commercial Court provided useful clarification of the law surrounding renunciation of a contract. Renunciation of a contract is where one party to a contract indicates an intention not to continue with the contract. The "innocent" party to the contract may then choose to treat the contract as terminated and claim damages for non performance of the contract. SK Shipping was a Singaporean company in a ship owning group. Petroexport was an oil trading company from the Cayman Islands. The parties entered into a contract for...
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Posted in Industry News by Justine Osmotherley | 20.01.10
In my blog of 4 January 2010 I made comment on the fact that January is a busy time for divorce lawyers. In a press release issued by The Law Society, this has been confirmed :-January big freeze heralds post-Christmas divorce avalancheMore people file for divorce in January than at any other time of the year. This January is expected to be no exception with couples reaching breaking point due to a combination of dysfunctional family Christmas's and the effects of the economic downturn.The Law Society is advising anyone considering divorce to seek expert legal advice from a specialist family law solicitor.
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Posted in Industry News by Rachel Spencer Robb | 18.01.10
We are increasingly seeing the existence of trusts within families that need to be considered when there is a separation of the husband and wife. How are these regarded by the Courts? Under section 25 of the Matrimonial Causes Act 1973, the existence of a trust must be disclosed along with all the other assets of the marriage, including those held by the husband and wife individually or in which either party may have an interest as a beneficiary, this would include inheritances for example. The Court must consider what capital and financial resources each party has now or is likely to have in the foreseeable future....
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Posted in Industry News by Emma Blackstone | 08.01.10
According to a recent newspaper article, social networking sites such as Facebook and Bebo are being relied upon in divorce petitions as the cause of marital breakdown.E:mails and messages demonstrating inappropriate behaviour or flirting on these websites are, according to one on-line divorce website, increasingly cited as evidence of unreasonable behaviour. Not only that, but individuals are using these sites to communicate their intention to divorce to their spouse.Whilst the intervention of social networking websites in the divorce process may be a sign of the times, it is worth considering this against the actual evidence that is required for a divorce and the...
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Posted in Industry News by Deborah Warren | 08.01.10
The recent decision of the Court of Appeal in Royal Bank of Scotland Group Plc v Allen may help to clarify some conflicting decisions of the Employment Appeal Tribunals on an employer's duty to make reasonable adjustments under the Disability Discrimination Act 1995 ("DDA").The LawUnder the DDA sections relating to the provision of goods and services state that a service provider has a duty to make reasonable adjustments where a physical feature of its building makes it impossible or unreasonably difficult for a disabled person to make use of its services. However, the service provider can argue that the...
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Posted in Industry News by Deborah Warren | 08.01.10
The European Court of Justice's ("ECJ") has delivered its decision in respect of the Belgian case of Meerts V Proost NV. It held that an employee dismissed during part time parental leave should be paid compensation for loss of her employment based on her normal working hours. Although this does not directly effect UK legislation and is unlikely, in reality, to become an issue, it is interesting because it potentially leaves the door open to a challenge to UK legislation on the amount of notice pay in parental leave. Parental Leave in the UKIn the...
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Posted in Industry News by Sarah Sevitt | 07.01.10
There have recently been an increasing number of calls for a reform of the law relating to divorce. The current law requires that in order to prove that a marriage has broken down irretrievably, the party who is instigating the divorce (the "Petitioner") must prove 1 of 5 facts, namely:1. That their husband or wife has committed adultery, and the Petitioner finds it intolerable to live with them2. That their husband or wife has behaved in such a way that the Petitioner cannot reasonably be expected to live with them3. That their husband or wife has deserted them for a continuous period of at...
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Posted in Industry News by Justine Osmotherley | 04.01.10
January is notoriously a busy time for divorce lawyers. Whether it was one too many arguments over the festive period or a realisation, when making New Year's resolutions that this time last year someone was unhappy, traditionally January is a busy time. The extended time spent together as a family; the excesses of alcohol all pave the way to a decision that a marriage or relationship is over. Even prior to the Christmas break we had a number of new appointments in the diary for January.We noticed in the latter part of 2009 that we were receiving a number of enquiries from those about to separate who were...
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