Hart Brown named as one of the first firms in the UK to be accredited under the new Conveyancing Quality Scheme
Just 20 firms have been recognised for meeting the Law Society's comprehensive quality standards for residential conveyancing practices.
Hart Brown, a leading law firm with offices throughout Surrey and in London, today announced that, it is one of the first law firms to be accredited under the new Conveyancing Quality Scheme (CQS). Launched by the Law Society, the CQS provides a recognised quality standard for residential conveyancing practices, and will therefore enable Hart Brown to enjoy even greater credibility with its key stakeholders, including regulators, lenders, insurers and its clients. Just 20 law firms have achieved this to date.
In addition to assessing the integrity of the Hart Brown's Senior Responsible Officer and other key conveyancing staff, the CQS also examined the firm's adherence to good practice management standards generally, and to prudent and efficient conveyancing procedures. The scheme, which is supported by the Council of Mortgage Lenders, has been open for applications since December 2010.
"The aim of the CQS scheme is not only to improve the quality of conveyancing, but also to encourage the public to work with firms that have proven their ability to meet these stringent standards consistently," says David Knapp, Partner and Head of Residential Property, Hart Brown. "To be in the first batch of those accredited is a testimony to our excellent quality procedures, the staff involved in the conveyancing process, and also to our accounts team, who also needed to be carefully vetted in order for us to demonstrate compliance with CQS standards."
According to the Law Society, the aim of the scheme is not only to reinforce consistency of standards throughout the conveyancing process, but also to reduce the risk of fraud and give consumers peace of mind when it comes to home buying. Practices applying to join the scheme must undergo a robust assessment and will be required to renew their membership of the scheme each year.
In addition to improving the quality of UK conveyancing, the CQS scheme will help to create a trusted community better equipped to deter fraud. As such, although CQS membership will not guarantee acceptance onto lenders' panels, the Council of Mortgage Lenders (CML) has indicated that membership is likely to become a pre-requisite for firms wishing to join/remain on their panels in the future.
"At Hart Brown we understand that whether you are buying or selling a property, you'll want to have the process explained to you in simple and easy to understand language, be kept informed throughout the process, and have the process proceed as smoothly as possible," David Knapp continues. "Schemes like the CQS help us to highlight our expertise in all of these important areas, and to ensure that one of the most expensive purchases or sales you are likely to make is handled properly, and with clear and consistent communication throughout the entire process."
Find out more about Hart Brown's Residential Property Conveyancing department
David Knapp, Partner, Residential property conveyancing, Hart Brown
Monday 21 March 2011
Court of Appeal decides that a mother cannot keep mum about the birth of her baby
A mother who sought to keep the birth of her baby boy a secret from her husband has been told by judges that the court will not back her “great lie”, according to an article in the Telegraph.
The husband and wife, who originate from Afganistan, are still married and the court observed that a “full family life exists”. The wife gave birth to the baby boy last year without her husband knowing about the birth or her pregnancy, as she was concerned about how he might react to the news that he was a father. Her plan was to have the child adopted before her husband had the chance to find out.
According to the mother, the father is “unpredictable and volatile”. He is apparently extremely traumatised by what he witnessed in war torn Afganistan. In particular, the murder of his sister by the Taliban. The mother told the court that her husband has “psychotic symptoms” and that she was concerned that if he found out he was a father, this would have an adverse effect on his mental health.
When looking at issues involving children, the court considers the welfare of the child to be of utmost importance. Any decision made must be in the child’s best interests. There are also human right issues involved in this case. In previous cases, the court has made it clear that a child has the right to know who its parents are. Likewise, a father has a right to know that he is in fact a father.
In the absence of medical evidence to support her case, the mother’s concerns were “pure supposition” and her appeal was dismissed. The court found that the father should be fully informed of his son’s birth.
Do you think there are any circumstances which may justify a parent not being informed about the existence of their child?
read more here
Gemma Kemp, Legal Executive, Family Law
The husband and wife, who originate from Afganistan, are still married and the court observed that a “full family life exists”. The wife gave birth to the baby boy last year without her husband knowing about the birth or her pregnancy, as she was concerned about how he might react to the news that he was a father. Her plan was to have the child adopted before her husband had the chance to find out.
According to the mother, the father is “unpredictable and volatile”. He is apparently extremely traumatised by what he witnessed in war torn Afganistan. In particular, the murder of his sister by the Taliban. The mother told the court that her husband has “psychotic symptoms” and that she was concerned that if he found out he was a father, this would have an adverse effect on his mental health.
When looking at issues involving children, the court considers the welfare of the child to be of utmost importance. Any decision made must be in the child’s best interests. There are also human right issues involved in this case. In previous cases, the court has made it clear that a child has the right to know who its parents are. Likewise, a father has a right to know that he is in fact a father.
In the absence of medical evidence to support her case, the mother’s concerns were “pure supposition” and her appeal was dismissed. The court found that the father should be fully informed of his son’s birth.
Do you think there are any circumstances which may justify a parent not being informed about the existence of their child?
read more here
Gemma Kemp, Legal Executive, Family Law
Friday 18 March 2011
Inheritance: mine or ours?
According to recent research, a third of parents are concerned about leaving money and assets to their married children in their wills in case they get divorced. The assumption seemingly being that when a couple divorces they each walk away with half of the assets. Whilst this may be the outcome in some cases, it is by no means a preordained or guaranteed outcome.
When a marriage or registered civil partnership breaks down, the lawyers and the courts have to look at the individual circumstances of that particular case. When dealing with financial matters, the court’s objective is to achieve an outcome which is fair and reasonable in all the circumstances.
In order to consider whether a settlement is fair and reasonable, different factors are considered, such as: each person’s income and capital resources both now and in the foreseeable future; their respective ages; the duration of the marriage; their income and capital needs; their standard of living during the marriage; any disability either party may have; and contributions each party has made to the marriage.
An additional factor to be considered is whether an equal division of all the assets (including inheritances) would be fair. This is more likely to be the case in respect of a long marriage, but perhaps not for a short one.
An inheritance can form part of the assets to be taken into account, but this depends on what other assets are available and when the inheritance was received. If it was received at beginning of a long marriage, the ‘contribution’ may be watered down over the passage of time. If it is a recent inheritance, there may be more scope to argue that the person who received it should keep it. That said, an inheritance may not be excluded from the joint ‘matrimonial pot’ if there are very few other assets, to the extent that one or both parties’ needs cannot be met without the inheritance monies being added to the matrimonial pot.
To paint a picture, Mr and Mrs Wills are married with two children. Mrs Wills receives a significant inheritance which is used to purchase the family home. Unfortunately the marriage breaks down and Mrs Wills moves out and purchases a new property. Mr Wills remains living in the first home with the children. If there were no other assets, it would be unfair and unreasonable for Mrs Wills to receive her whole inheritance back as it would potentially render the children and Mr Wills homeless. This is merely an illustrative example, and most cases are not so clear cut. Full legal advice should be taken in respect of such matters.
Therefore, the answer to the question “is my inheritance mine or ours” depends on all the facts of the case.
Gemma Kemp, Legal Executive, Family Law, Woking
When a marriage or registered civil partnership breaks down, the lawyers and the courts have to look at the individual circumstances of that particular case. When dealing with financial matters, the court’s objective is to achieve an outcome which is fair and reasonable in all the circumstances.
In order to consider whether a settlement is fair and reasonable, different factors are considered, such as: each person’s income and capital resources both now and in the foreseeable future; their respective ages; the duration of the marriage; their income and capital needs; their standard of living during the marriage; any disability either party may have; and contributions each party has made to the marriage.
An additional factor to be considered is whether an equal division of all the assets (including inheritances) would be fair. This is more likely to be the case in respect of a long marriage, but perhaps not for a short one.
An inheritance can form part of the assets to be taken into account, but this depends on what other assets are available and when the inheritance was received. If it was received at beginning of a long marriage, the ‘contribution’ may be watered down over the passage of time. If it is a recent inheritance, there may be more scope to argue that the person who received it should keep it. That said, an inheritance may not be excluded from the joint ‘matrimonial pot’ if there are very few other assets, to the extent that one or both parties’ needs cannot be met without the inheritance monies being added to the matrimonial pot.
To paint a picture, Mr and Mrs Wills are married with two children. Mrs Wills receives a significant inheritance which is used to purchase the family home. Unfortunately the marriage breaks down and Mrs Wills moves out and purchases a new property. Mr Wills remains living in the first home with the children. If there were no other assets, it would be unfair and unreasonable for Mrs Wills to receive her whole inheritance back as it would potentially render the children and Mr Wills homeless. This is merely an illustrative example, and most cases are not so clear cut. Full legal advice should be taken in respect of such matters.
Therefore, the answer to the question “is my inheritance mine or ours” depends on all the facts of the case.
Gemma Kemp, Legal Executive, Family Law, Woking
Our surveillance society
Direct Line Insurance lost their case against Mark Noble this week in the High Court. In 2008 the insurers had to pay Mr Noble £3.3 million following a motor cycle accident which had taken place in 2003. After the case was settled a neighbour contacted the Insurance Fraud Bureau to say that Mr Noble was not disabled.
Direct Line then decided to have Mr Noble secretly filmed. In 2009 Direct Line obtained an order freezing Mr Noble’s assets and later the case was re-opened to see if Mr Noble had been guilty of fraud and whether the award of damages should be set aside. Therefore there was much at stake both for Direct Line and for Mr Noble during the hearing which took some 8 days. Judgment was given this week in favour of Mr Noble who will keep his damages.
Widespread criticism of Direct Line has followed the news report on this case.
How far should insurers go to detect fraud?
In Mr Noble’s case it appears that the insurers went after an innocent man. Having acted for both defendants and claimants I know that there are times that claimants do not tell the truth. Insurers are on occasion justified in secretly filming a claimant when fraud is suspected. There have been cases when secret surveillance has provided clear proof of fraud and/or exaggeration. In Mr Noble’s case the insurers appear to have gone after the wrong man and have failed in a somewhat spectacular way. I anticipate that Mr Noble’s relations with his neighbour who contacted the Insurance Fraud Bureau might be a little frosty in the near future too!
Marek Bednarczyk, Partner, Civil Litigation
Direct Line then decided to have Mr Noble secretly filmed. In 2009 Direct Line obtained an order freezing Mr Noble’s assets and later the case was re-opened to see if Mr Noble had been guilty of fraud and whether the award of damages should be set aside. Therefore there was much at stake both for Direct Line and for Mr Noble during the hearing which took some 8 days. Judgment was given this week in favour of Mr Noble who will keep his damages.
Widespread criticism of Direct Line has followed the news report on this case.
How far should insurers go to detect fraud?
In Mr Noble’s case it appears that the insurers went after an innocent man. Having acted for both defendants and claimants I know that there are times that claimants do not tell the truth. Insurers are on occasion justified in secretly filming a claimant when fraud is suspected. There have been cases when secret surveillance has provided clear proof of fraud and/or exaggeration. In Mr Noble’s case the insurers appear to have gone after the wrong man and have failed in a somewhat spectacular way. I anticipate that Mr Noble’s relations with his neighbour who contacted the Insurance Fraud Bureau might be a little frosty in the near future too!
Marek Bednarczyk, Partner, Civil Litigation
Thursday 17 March 2011
Cosmetic Surgery - how safe is it?
The BBC news reported that an inquest into the death of footballer’s wife, Denise Hendry, will be held this year. Mrs Hendry suffered serious complications following a liposuction procedure which was carried out at a private hospital. It is reported that her bowel was punctured in several places. She had to suffer a number of operations to repair the damage and contracted an infection.
There are many excellent and highly trained plastic surgeons within the NHS some of whom also work in the private sector. The sad story, involving Mrs Hendry, shows that the standard of some surgeons and some clinics falls short of what is acceptable.
A lot of cosmetic procedures are not available under the NHS and patients have no alternative but to seek treatment from within the private sector. Patients place their trust in these clinics and the cosmetic surgeons, sometimes to their cost.
The National Confidential Enquiry into Patient Outcome and Death carried out a survey which was published in 2010. A significant percentage of cosmetic surgery providers did not respond or refused to take part in the study. The results of this study give rise for concern:
• Few providers carried out routine preoperative psychological assessment.
• Some of the operating theatres were not properly equipped.
• Some providers offered a variety of procedures some of which were only performed infrequently.
• Not all providers monitored patient outcomes.
• Many patients were not given time to reflect on the advice given at the initial consultation before proceeding with the procedure.
• Some hospitals did not have an emergency readmission procedure.
Clearly better regulation and monitoring within the private sector is required.
Dr Caroline Kerr, Solicitor, Clinical Negligence
There are many excellent and highly trained plastic surgeons within the NHS some of whom also work in the private sector. The sad story, involving Mrs Hendry, shows that the standard of some surgeons and some clinics falls short of what is acceptable.
A lot of cosmetic procedures are not available under the NHS and patients have no alternative but to seek treatment from within the private sector. Patients place their trust in these clinics and the cosmetic surgeons, sometimes to their cost.
The National Confidential Enquiry into Patient Outcome and Death carried out a survey which was published in 2010. A significant percentage of cosmetic surgery providers did not respond or refused to take part in the study. The results of this study give rise for concern:
• Few providers carried out routine preoperative psychological assessment.
• Some of the operating theatres were not properly equipped.
• Some providers offered a variety of procedures some of which were only performed infrequently.
• Not all providers monitored patient outcomes.
• Many patients were not given time to reflect on the advice given at the initial consultation before proceeding with the procedure.
• Some hospitals did not have an emergency readmission procedure.
Clearly better regulation and monitoring within the private sector is required.
Dr Caroline Kerr, Solicitor, Clinical Negligence
Wednesday 16 March 2011
Royal Wedding bank holiday – to pay or not to pay
Are employees entitled to be paid for the for the extra bank holiday due to the Royal wedding on Friday 29th April 2011? Employers will have to check the wording of their employment contracts and associated policies. The day does not actually increase any entitlement to statutory holiday under the Working Time Regulations 1998.
A contract which entitles employees to, for example, 20 days annual leave in addition to all statutory, bank and public holidays, would entitle employees to an extra day’s paid holiday. However if the contract entitles employees to 28 day annual leave including all statutory, bank and public holidays, then employees would not be entitled to the extra day’s paid holiday.
There will also be an additional bank holiday on 5 June 2012 to mark the Queen’s diamond jubilee and her 60 years on the throne. The traditional late May bank holiday will also be postponed until 4 June 2012 to give the country a 4 day weekend break.
Ursula Kelland, Solicitor, Employment
A contract which entitles employees to, for example, 20 days annual leave in addition to all statutory, bank and public holidays, would entitle employees to an extra day’s paid holiday. However if the contract entitles employees to 28 day annual leave including all statutory, bank and public holidays, then employees would not be entitled to the extra day’s paid holiday.
There will also be an additional bank holiday on 5 June 2012 to mark the Queen’s diamond jubilee and her 60 years on the throne. The traditional late May bank holiday will also be postponed until 4 June 2012 to give the country a 4 day weekend break.
Ursula Kelland, Solicitor, Employment
Tuesday 15 March 2011
Compensation culture - a harmless merry-go-round or something more sinister?
Some mornings it seems that representatives of the insurance industry are queuing up to appear on the radio complaining about the so called ‘compensation culture’. Many people are surprised to learn however that they are actively participating in the increase in the number of claims about which they so bitterly claim.
The House of Commons Transport Select Committee has recently shone some light on the murky world of these referral payments. Essentially insurance companies put people who make a claim on their insurance in touch with panel firms of solicitors who pay the insurance companies referral fees reportedly averaging between £200 and £1,000 per case. The law firms then make claims on behalf of these clients which are often dealt with by other insurers who then complain about the rise in claims but in particular that element of the cost of those claims which represents legal costs. Common sense suggests that the presence of these referral payments in what the Committee referred to as ‘a merry-go-round’ must increase the cost of the overall process somewhere. Surely a simple solution for these insurance companies who complain so bitterly about this would simply be to stop paying these referral fees such that costs would be reduced. Unfortunately the insurance industry makes a lot of money from these referral payments. In one sense of course the insurance companies do not necessarily lose out from a rise in premiums. A relatively harmless merry-go-round or something more sinister – what do you think?
Paul Grimwood, Partner, Civil Litigation
The House of Commons Transport Select Committee has recently shone some light on the murky world of these referral payments. Essentially insurance companies put people who make a claim on their insurance in touch with panel firms of solicitors who pay the insurance companies referral fees reportedly averaging between £200 and £1,000 per case. The law firms then make claims on behalf of these clients which are often dealt with by other insurers who then complain about the rise in claims but in particular that element of the cost of those claims which represents legal costs. Common sense suggests that the presence of these referral payments in what the Committee referred to as ‘a merry-go-round’ must increase the cost of the overall process somewhere. Surely a simple solution for these insurance companies who complain so bitterly about this would simply be to stop paying these referral fees such that costs would be reduced. Unfortunately the insurance industry makes a lot of money from these referral payments. In one sense of course the insurance companies do not necessarily lose out from a rise in premiums. A relatively harmless merry-go-round or something more sinister – what do you think?
Paul Grimwood, Partner, Civil Litigation
Monday 14 March 2011
JJB Sports ask landlords to back recovery plan
In an attempt to avoid administration JJB Sports have put a company voluntary arrangement (CVA) together that offers landlords incentives to back the company’s recovery plan.
JJB is proposing to pay half the rent due on 89 of its stores facing closure, as well as a sum for dilapidations. The CVA is estimated to return a range of between 24.6p and 29.3p in the pound to compromised landlords. Administration will only see 1.1p in the pound returned to creditors.
During this ongoing period of economic instability this is an example of where landlords may be prepared to consider offers put forward by struggling tenants to avoid ending up with empty premises. A landlord that for example, agrees to discount the rent for a fixed period of time may give its tenant the breathing space it needs to restructure its finances and prevent the company from going into administration.
JJB Sports’ creditors will vote on the proposals on 22 March.
Sean Logan, Solicitor, Hart Brown
JJB is proposing to pay half the rent due on 89 of its stores facing closure, as well as a sum for dilapidations. The CVA is estimated to return a range of between 24.6p and 29.3p in the pound to compromised landlords. Administration will only see 1.1p in the pound returned to creditors.
During this ongoing period of economic instability this is an example of where landlords may be prepared to consider offers put forward by struggling tenants to avoid ending up with empty premises. A landlord that for example, agrees to discount the rent for a fixed period of time may give its tenant the breathing space it needs to restructure its finances and prevent the company from going into administration.
JJB Sports’ creditors will vote on the proposals on 22 March.
Sean Logan, Solicitor, Hart Brown
Friday 11 March 2011
Referral fees - does the consumer benefit?
Very interesting to see the Government now pick up the issue of referral fees being paid by lawyers for information about possible personal injury claims or for such claims to be referred. Despite the majority of the legal profession being against the concept of referral fees they are permitted. The kind of issues mentioned today (false claims being made, deliberate accidents being caused and unwanted texts being received encouraging a claim) are symptomatic of referral fees. That is not to say they are the only cause - false claims have always been made and will always continue to be made.
Does the consumer benefit from a third party being paid for their claim to be passed to a solicitor? An argument in favour is that the third party has the ability to advertise people’s rights and make them alive to the fact that they might have a claim. Law firms don’t generally have the financial ability for that level of advertising. Against is that an intermediary is making a profit (which ultimately must increase the cost to the consumer or negligent party) , that matters are not always referred to the right specialist (referral agencies only refer to firms on their panel who have agreed to pay a referral fee) and firms who pay referral fees often engage junior staff to process claims as the only means of making it pay.
Good quality service comes at a price – mostly it is worth paying the extra. Keep an eye out for our articles over the next few months about referral fees paid by some law firms to estate agents for conveyancing referrals. Have you ever been told by an estate agent that you must use a certain law firm? Have you ever wondered why? Is it compulsory? Our first article on the topic will be on our website next month.
Bettina Brueggemann, Managing Partner, Hart Brown
Does the consumer benefit from a third party being paid for their claim to be passed to a solicitor? An argument in favour is that the third party has the ability to advertise people’s rights and make them alive to the fact that they might have a claim. Law firms don’t generally have the financial ability for that level of advertising. Against is that an intermediary is making a profit (which ultimately must increase the cost to the consumer or negligent party) , that matters are not always referred to the right specialist (referral agencies only refer to firms on their panel who have agreed to pay a referral fee) and firms who pay referral fees often engage junior staff to process claims as the only means of making it pay.
Good quality service comes at a price – mostly it is worth paying the extra. Keep an eye out for our articles over the next few months about referral fees paid by some law firms to estate agents for conveyancing referrals. Have you ever been told by an estate agent that you must use a certain law firm? Have you ever wondered why? Is it compulsory? Our first article on the topic will be on our website next month.
Bettina Brueggemann, Managing Partner, Hart Brown
Monday 7 March 2011
Legalised profit increase for insurers!
Insurers must be jumping for joy. Legalised profit increase!
I don’t pretend to know how premiums are calculated (all information welcome) but it was always my understanding that insurers claim they use statistics. In other words a young male is more likely (statistically) to have an accident than a young female of the same age. In other words young males are more reckless drivers so their premium is more. Similarly if you live in a high crime rate statistically you are more likely to have your car stolen than if you live in the country.
When we seek a quote all this information is apparently applied in setting our individual premium. Is there anything wrong with that? Is applying reality and real life discrimination? There is already talk of breach of age discrimination in calculating premiums. Older driver’s premiums tend to be less – because (it is argued) they have more experience and drive more carefully (probably because as you get older you become aware of your own mortality!!). It is important to avoid discrimination of any kind and the law has worked hard to ensure that individuals and organisations act honourably, fairly and treat everyone equally.
However reality should not be ignored. Older people are more likely to die than younger people. Older people do have more experience. It is a fact of life and applying the reality of life is surely not always discrimination – or is it?
Bettina Brueggemann, Managing Partner, Hart Brown
I don’t pretend to know how premiums are calculated (all information welcome) but it was always my understanding that insurers claim they use statistics. In other words a young male is more likely (statistically) to have an accident than a young female of the same age. In other words young males are more reckless drivers so their premium is more. Similarly if you live in a high crime rate statistically you are more likely to have your car stolen than if you live in the country.
When we seek a quote all this information is apparently applied in setting our individual premium. Is there anything wrong with that? Is applying reality and real life discrimination? There is already talk of breach of age discrimination in calculating premiums. Older driver’s premiums tend to be less – because (it is argued) they have more experience and drive more carefully (probably because as you get older you become aware of your own mortality!!). It is important to avoid discrimination of any kind and the law has worked hard to ensure that individuals and organisations act honourably, fairly and treat everyone equally.
However reality should not be ignored. Older people are more likely to die than younger people. Older people do have more experience. It is a fact of life and applying the reality of life is surely not always discrimination – or is it?
Bettina Brueggemann, Managing Partner, Hart Brown
Friday 4 March 2011
West Ham's victory over spurs!
It has been formally announced that West Ham United have been selected as the preferred tenant of the Olympic Stadium after the 2012 games, beating a bid from Premier League rivals Tottenham Hotspur.
The unanimous decision of the Olympic Park Legacy Company to select West Ham was supported by the government and London Major Boris Johnson. West Ham’s bid for the £537m venue was judged to provide the best legacy for the stadium.
West Ham intends to convert the showpiece stadium and will leave the athletics track untouched. Spurs’ plan was widely criticised because it would have involved removing the running track and replacing part of the stadium.
The OPLC will now look to negotiate a mutually acceptable lease with the consortium comprising West Ham United and Newham Council. However, other options will be considered if they are unable to reach a deal.
West Ham plan to move from Upton Park in 2014/15.
Read the orignial article here
Sean Logan, Solicitor, Commercial Property, Hart Brown
The unanimous decision of the Olympic Park Legacy Company to select West Ham was supported by the government and London Major Boris Johnson. West Ham’s bid for the £537m venue was judged to provide the best legacy for the stadium.
West Ham intends to convert the showpiece stadium and will leave the athletics track untouched. Spurs’ plan was widely criticised because it would have involved removing the running track and replacing part of the stadium.
The OPLC will now look to negotiate a mutually acceptable lease with the consortium comprising West Ham United and Newham Council. However, other options will be considered if they are unable to reach a deal.
West Ham plan to move from Upton Park in 2014/15.
Read the orignial article here
Sean Logan, Solicitor, Commercial Property, Hart Brown
Thursday 3 March 2011
Hospital Negligence - another wider scandal brewing
The story of Mr Rasheed highlighted in Channel 4’s Dispatches programme this week is a shocking tale of NHS hospital staff neglect and lack of care.
There is, however, another wider scandal brewing. If the coalition government succeeds in its plans to remove legal aid from clinical negligence cases then ask yourself one question – will there be fewer cases of neglect in NHS hospitals or more?
If the proposed changes are implemented then NHS staff will continue to be backed by the National Health Service Litigation Authority (NHSLA) who will defend them against claims by patients. The NHSLA is paid for by taxpayers money, but patients who are negligently injured will get no legal aid and so will get no state support at all to pursue their claims!
Alyson Coulson and Marek Bednarczyk, two of Hart Brown’s partners, spoke to East Surrey MP Sam Gyimah (who represents Mr Rasheed’s Caterham home and has commented on the case) at his constituency office on 4 February this year to warn him about the problems that the government’s proposed cut-backs in legal aid will cause.
No doubt Mr Gyimah – who is quoted as stating that he was shocked by Mr Rasheed’s story – may be thinking again about the efficacy of the government’s planned legal aid cut backs. The government should re-think their plans too.
Hart Brown has formally responded in detail to the government’s proposals and like thousands of others who have responded we support the continuation of legal aid for clinical negligence cases.
Mr Rasheed’s story is a warning to us all
Marek Bednarczyk, Partner, Hart Brown
There is, however, another wider scandal brewing. If the coalition government succeeds in its plans to remove legal aid from clinical negligence cases then ask yourself one question – will there be fewer cases of neglect in NHS hospitals or more?
If the proposed changes are implemented then NHS staff will continue to be backed by the National Health Service Litigation Authority (NHSLA) who will defend them against claims by patients. The NHSLA is paid for by taxpayers money, but patients who are negligently injured will get no legal aid and so will get no state support at all to pursue their claims!
Alyson Coulson and Marek Bednarczyk, two of Hart Brown’s partners, spoke to East Surrey MP Sam Gyimah (who represents Mr Rasheed’s Caterham home and has commented on the case) at his constituency office on 4 February this year to warn him about the problems that the government’s proposed cut-backs in legal aid will cause.
No doubt Mr Gyimah – who is quoted as stating that he was shocked by Mr Rasheed’s story – may be thinking again about the efficacy of the government’s planned legal aid cut backs. The government should re-think their plans too.
Hart Brown has formally responded in detail to the government’s proposals and like thousands of others who have responded we support the continuation of legal aid for clinical negligence cases.
Mr Rasheed’s story is a warning to us all
Marek Bednarczyk, Partner, Hart Brown
It won't happen to me..
Understandably, many people have difficulty in considering their wills because they don’t want to think about the prospect of them dying. However, in reality we know that death is a fate that will come to us all and so reluctantly consider our wills.
Almost as scary is the prospect of losing mental capacity in later life. It is easier to close our minds to the prospect using the old adage “it won’t happen to me”! Making provision for someone to look after your finances and personal welfare in circumstances where you have lost capacity is essential and a godsend to those who are given the task of dealing with the situation.
It is a fact that we are living longer, great. But with this comes the possibility of diminishing physical health and mental capacity. A further complicating factor is that often the diagnosis of dementia is missed. A recent study by the Alzheimer’s Society shows great variations across the country of those having the disease being diagnosed. The suggestion is that half a million people are living with dementia but have not been correctly diagnosed. The concern that the Alzheimer’s Society has is that unless there is a diagnosis, patients will not receive the support that they need.
There are numerous aspects to reports relating to mental incapacity. The projections of how much longer we will live or the number of people living with mental incapacity seem to be on the increase and go to show that we must all make provision for later life. The one question that we should all ask ourselves is: Who will make decisions for you if you are unable to make them yourself?
Putting in place a lasting power of attorney giving an authority to someone to look after your finances and also your personal welfare should be something that we should all do. Like insurance policies, we hope they will not be needed in the future but if they are, they are a godsend.
Shaun Parry-Jones, Partner, Hart Brown
Almost as scary is the prospect of losing mental capacity in later life. It is easier to close our minds to the prospect using the old adage “it won’t happen to me”! Making provision for someone to look after your finances and personal welfare in circumstances where you have lost capacity is essential and a godsend to those who are given the task of dealing with the situation.
It is a fact that we are living longer, great. But with this comes the possibility of diminishing physical health and mental capacity. A further complicating factor is that often the diagnosis of dementia is missed. A recent study by the Alzheimer’s Society shows great variations across the country of those having the disease being diagnosed. The suggestion is that half a million people are living with dementia but have not been correctly diagnosed. The concern that the Alzheimer’s Society has is that unless there is a diagnosis, patients will not receive the support that they need.
There are numerous aspects to reports relating to mental incapacity. The projections of how much longer we will live or the number of people living with mental incapacity seem to be on the increase and go to show that we must all make provision for later life. The one question that we should all ask ourselves is: Who will make decisions for you if you are unable to make them yourself?
Putting in place a lasting power of attorney giving an authority to someone to look after your finances and also your personal welfare should be something that we should all do. Like insurance policies, we hope they will not be needed in the future but if they are, they are a godsend.
Shaun Parry-Jones, Partner, Hart Brown
Wednesday 2 March 2011
Stamp Duty Land Tax - is it avoidable?
Stamp Duty Land Tax (SDLT) replaced stamp duty for property transactions with effect from 1 December 2003 and is charged at 1% for purchases over £125,000, 3% for those over £250,000 and 4% over £500,000. A new 5% band comes into force on 6 April this year for purchases over £1,000,000.
As the legislation was quite complex, it led to a number of schemes (usually for purchases over £500,000) claiming to exploit loopholes and avoid the payment of any SDLT. Although the implementation costs often amount to half the SDLT otherwise payable, the saving to purchasers is still significant. Promoters of these schemes invariably claim that they are watertight, backed by a senior barrister’s opinion and approved by HM Revenue & Customs (HMRC).
This sounds convincing but is it that easy to avoid paying SDLT? At Hart Brown we have always been sceptical. SDLT is a compulsory tax on property transactions. If a person purchases a property for more than £125,000.00 he should expect to pay SDLT at the appropriate rate. This view is supported by HMRC which recently announced that it is challenging these schemes as it does not believe they work or have the effect the promoters claim, adding it “will relentlessly pursue those who deliberately bend or break the rules – including where appropriate seeking penalties”.
Anyone who has participated in such a scheme now faces the prospect of paying the SDLT many months or even years after completion, with interest for late payment and costly penalties, an investigation into his or her financial affairs and, in the worst case scenario, prosecution.
For those still tempted to participate the message is clear – do not be fooled by the promoters’ claims, however persuasive they may appear to be. It is not worth the risk.
Peter Howe, Associate, Hart Brown
As the legislation was quite complex, it led to a number of schemes (usually for purchases over £500,000) claiming to exploit loopholes and avoid the payment of any SDLT. Although the implementation costs often amount to half the SDLT otherwise payable, the saving to purchasers is still significant. Promoters of these schemes invariably claim that they are watertight, backed by a senior barrister’s opinion and approved by HM Revenue & Customs (HMRC).
This sounds convincing but is it that easy to avoid paying SDLT? At Hart Brown we have always been sceptical. SDLT is a compulsory tax on property transactions. If a person purchases a property for more than £125,000.00 he should expect to pay SDLT at the appropriate rate. This view is supported by HMRC which recently announced that it is challenging these schemes as it does not believe they work or have the effect the promoters claim, adding it “will relentlessly pursue those who deliberately bend or break the rules – including where appropriate seeking penalties”.
Anyone who has participated in such a scheme now faces the prospect of paying the SDLT many months or even years after completion, with interest for late payment and costly penalties, an investigation into his or her financial affairs and, in the worst case scenario, prosecution.
For those still tempted to participate the message is clear – do not be fooled by the promoters’ claims, however persuasive they may appear to be. It is not worth the risk.
Peter Howe, Associate, Hart Brown
From wife’s inheritance of £57 million, is a £5 million award to the husband on divorce the right decision?
The Court of Appeal has just heard an interesting case regarding the division of an inheritance in divorce proceedings.
The case concerned a couple who had been married for 20 years. The wife had, prior to the marriage, inherited £57 million. Throughout the marriage, neither party had worked, choosing to be ‘stay at home’ parents and not pursue careers. The court in the first instance awarded the husband £5 million of the overall assets and the husband appealed this, saying that the award was ‘minimalist’.
The husband’s barrister argued that if the roles were reversed, and it was the husband who had inherited wealth of this magnitude, on divorce the wife would have been awarded a sum greater than £5 million. He also commented that it was more difficult to secure a husband a large settlement when the wealth belonged to the wife. The barrister added that this may be because generally speaking, husbands are perceived to be breadwinners, and to support the family financially and therefore, it has to be taken into account that the wife has not worked or built up a career or assets of her own.
Can it be argued that by virtue of not working and being a homemaker, the husband has sacrificed a career and therefore has suffered a disadvantage as a result of the marriage? It appeared to be a joint decision that neither the husband nor the wife would work, and that the wife’s inheritance would be used to support the family. If the husband does not receive a sum equal to what a wife would receive if the roles were reversed, would it be a matter of gender discrimination?
Inheritance on divorce is a grey area. If such inheritance was received prior to the marriage, it may be considered not to form part of the marital assets. However, in the case of a long marriage, pre-martial assets can often ‘merge’ with any assets accrued during the marriage and hence be included in the “matrimonial pot” to be divided on divorce.
In some cases, credit can be given to a spouse who has made a significant effort to increase the value of assets or the level of income during the marriage but in this case, the lawyers for the husband argued that the wife had made no “special contribution” to the assets of the marriage.
Do you think that this award accurately reflects what the husband in such a situation should receive? Or do you think that in a marriage as long as this, the assets should be divided equally and the husband compensated for his lack of career? We would like to know your views.
http://www.telegraph.co.uk/family/8354580/Divorced-husband-fights-for-more-of-ex-wifes-57-million-fortune.html
Sharon Powell and Anne Thomas, Hart Brown Family Department
The case concerned a couple who had been married for 20 years. The wife had, prior to the marriage, inherited £57 million. Throughout the marriage, neither party had worked, choosing to be ‘stay at home’ parents and not pursue careers. The court in the first instance awarded the husband £5 million of the overall assets and the husband appealed this, saying that the award was ‘minimalist’.
The husband’s barrister argued that if the roles were reversed, and it was the husband who had inherited wealth of this magnitude, on divorce the wife would have been awarded a sum greater than £5 million. He also commented that it was more difficult to secure a husband a large settlement when the wealth belonged to the wife. The barrister added that this may be because generally speaking, husbands are perceived to be breadwinners, and to support the family financially and therefore, it has to be taken into account that the wife has not worked or built up a career or assets of her own.
Can it be argued that by virtue of not working and being a homemaker, the husband has sacrificed a career and therefore has suffered a disadvantage as a result of the marriage? It appeared to be a joint decision that neither the husband nor the wife would work, and that the wife’s inheritance would be used to support the family. If the husband does not receive a sum equal to what a wife would receive if the roles were reversed, would it be a matter of gender discrimination?
Inheritance on divorce is a grey area. If such inheritance was received prior to the marriage, it may be considered not to form part of the marital assets. However, in the case of a long marriage, pre-martial assets can often ‘merge’ with any assets accrued during the marriage and hence be included in the “matrimonial pot” to be divided on divorce.
In some cases, credit can be given to a spouse who has made a significant effort to increase the value of assets or the level of income during the marriage but in this case, the lawyers for the husband argued that the wife had made no “special contribution” to the assets of the marriage.
Do you think that this award accurately reflects what the husband in such a situation should receive? Or do you think that in a marriage as long as this, the assets should be divided equally and the husband compensated for his lack of career? We would like to know your views.
http://www.telegraph.co.uk/family/8354580/Divorced-husband-fights-for-more-of-ex-wifes-57-million-fortune.html
Sharon Powell and Anne Thomas, Hart Brown Family Department
Tuesday 1 March 2011
A self fulfilling prophecy?
The prediction of a sharp drop in house prices comes as no surprise in a sluggish market lacking buyer confidence. The suggestion by pundits of a price drop becomes a self fulfilling prophesy after a while as the more that people “in the know” talk about the drop, the more that buyers seek a bargain. Interestingly the Nationwide is trying to shed a more positive slant on the market with of course their having a vested interest in seeing the market very active. Ironic therefore that one of the reasons for the lack of sales and reduced confidence is due to mortgagees, including The Nationwide, tying a very firm knot in the lending purse strings.
A temporary aspirin?
Meanwhile, having picked myself up from the floor having digested Northern Rock’s decision to provide 90% mortgages I have to question whether those in charge are really in touch with reality. One imagines that the interest rates for such loans will be high, the arrangement fees reasonably punitive and the borrowers being asked to pay a hefty premium for a mortgage protection policy. The latter should in fact be called a “protect your lender policy” as it is the lender who benefits from the policy which is taken out at the borrower’s expense.
A dip in values by 8% will prevent property owners who have a 90% mortgage at the time they bought from selling as the associated costs in professional fees will amount to 2% so in essence putting more properties into negative equity. Add in possible early redemption penalties to the equation and this band of property owners will be in real difficulty.
The sense behind a 90% lending strategy has to be really questioned. Is this a case of temporary aspirin bringing longer term headaches?
Let us know what you think.
David Knapp, Partner
Residential Property
A temporary aspirin?
Meanwhile, having picked myself up from the floor having digested Northern Rock’s decision to provide 90% mortgages I have to question whether those in charge are really in touch with reality. One imagines that the interest rates for such loans will be high, the arrangement fees reasonably punitive and the borrowers being asked to pay a hefty premium for a mortgage protection policy. The latter should in fact be called a “protect your lender policy” as it is the lender who benefits from the policy which is taken out at the borrower’s expense.
A dip in values by 8% will prevent property owners who have a 90% mortgage at the time they bought from selling as the associated costs in professional fees will amount to 2% so in essence putting more properties into negative equity. Add in possible early redemption penalties to the equation and this band of property owners will be in real difficulty.
The sense behind a 90% lending strategy has to be really questioned. Is this a case of temporary aspirin bringing longer term headaches?
Let us know what you think.
David Knapp, Partner
Residential Property
Monday 28 February 2011
If a job is worth doing it is worth paying someone else to do it properly
It is often said, sometimes in jest, that if a job is worth doing it is worth paying someone else to do it properly. Lord Judge, the Chair of the Judges’ Council has recently commented that proposed Government changes to the court system are likely to cause “a huge increase” in the number of ‘DIY litigants’. Are the current proposals to slash legal aid more likely to result in the freeing up of the court system because more people will choose alternatives such as mediation or as some senior judges have suggested will the courts grind to a virtual standstill as hundreds of thousands of people represent themselves in legal cases?
The lawyer who conducts his own case is said to have a fool for a client. Is the position of DIY litigants different? In some areas the court system appears already to be at breaking point. The proposed closure of a number of courts is likely only to worsen that. Is the threatened withdrawal of legal aid the straw that finally breaks the camels back?
Paul Grimwood, Partner, Hart Brown
The lawyer who conducts his own case is said to have a fool for a client. Is the position of DIY litigants different? In some areas the court system appears already to be at breaking point. The proposed closure of a number of courts is likely only to worsen that. Is the threatened withdrawal of legal aid the straw that finally breaks the camels back?
Paul Grimwood, Partner, Hart Brown
Wednesday 23 February 2011
To mediate or not to mediate: That is the question.
The Government has today unveiled its plans to compel couples who are in dispute about family issues to attend ‘Mediation Information and Assessment Meetings’ before issuing an application at court. The rationale, according to Justice Minister Jonathan Djanogly, is that mediation is ostensibly “a quicker, cheaper and more amicable alternative” to court proceedings. The new rules will come in to force in England and Wales on 6th April 2011 and apply to privately funded cases. Mediation sessions are already compulsory for those receiving public funding, although there are exceptions.
Supporters of the proposals see this as a positive move to assist feuding couples and enable them to resolve their disputes, whether it be about the divorce itself, financial issues or children matters, in an amicable forum with an independent mediator. Critics of the proposals may, however, view the move as an excuse to cut the legal aid budget for family cases.
According to the BBC, there are currently 350,000 family cases currently receiving legal aid in England and Wales. By making mediation compulsory in most cases, the Government hopes to reduce this to around 87,500 cases, which represents 25% of the current figure, thereby saving around £173 million.
Mediation will not be compulsory in all cases, for example where there are allegations of domestic abuse or where urgent action needs to be taken by the court. If one party is unwilling to attend or consider mediation they cannot be forced to go, but if there is no valid reason for the refusal a Judge is unlikely to view this stance favourably.
Mediation can be a positive experience whereby couples can air their issues with an impartial third party, but that is not to say it suits everyone. Is compulsory mediation a step in the right direction for amicable resolution of disputes, or is it another hurdle couples will have to face before they can seek assistance from a court.
Gemma Kemp – Legal Executive – Family department
http://www.bbc.co.uk/news/uk-12548506
Find out about how Hart Brown can help with mediation
Supporters of the proposals see this as a positive move to assist feuding couples and enable them to resolve their disputes, whether it be about the divorce itself, financial issues or children matters, in an amicable forum with an independent mediator. Critics of the proposals may, however, view the move as an excuse to cut the legal aid budget for family cases.
According to the BBC, there are currently 350,000 family cases currently receiving legal aid in England and Wales. By making mediation compulsory in most cases, the Government hopes to reduce this to around 87,500 cases, which represents 25% of the current figure, thereby saving around £173 million.
Mediation will not be compulsory in all cases, for example where there are allegations of domestic abuse or where urgent action needs to be taken by the court. If one party is unwilling to attend or consider mediation they cannot be forced to go, but if there is no valid reason for the refusal a Judge is unlikely to view this stance favourably.
Mediation can be a positive experience whereby couples can air their issues with an impartial third party, but that is not to say it suits everyone. Is compulsory mediation a step in the right direction for amicable resolution of disputes, or is it another hurdle couples will have to face before they can seek assistance from a court.
Gemma Kemp – Legal Executive – Family department
http://www.bbc.co.uk/news/uk-12548506
Find out about how Hart Brown can help with mediation
Monday 21 February 2011
NHS failing basic standards of care
The Health Service Ombudsman has recently reported that the NHS is failing to meet even the most basic standards of care for older people. The Ombudsman found that some elderly patients had suffered unnecessary pain, indignity and distress whilst in hospital.
Complaints had been made in relation to patients being left unattended, receiving inadequate medication or pain relief, emergency buzzers being placed out of patients reach and patients being left unwashed, malnourished and dehydrated.
Many of these vulnerable patients might currently be eligible for legal aid to pursue claims for compensation for negligent treatment. However the government is currently considering proposals to withdraw legal aid for clinical negligence cases. Negligence claims often highlight the inadequacies of hospital care by bringing problems to the attention of the NHS management which has in the past resulted in negligent practices being abandoned and replaced with much better ones. If government support is withdrawn for clinical negligence claims many patients may be denied any access to justice. This begs the worrying question of whether if the prospect of these claims is effectively removed standards of care provided to patients by the medical profession will decline still further.
Amey Welch, Legal Assistant, Clinical Negligence
Complaints had been made in relation to patients being left unattended, receiving inadequate medication or pain relief, emergency buzzers being placed out of patients reach and patients being left unwashed, malnourished and dehydrated.
Many of these vulnerable patients might currently be eligible for legal aid to pursue claims for compensation for negligent treatment. However the government is currently considering proposals to withdraw legal aid for clinical negligence cases. Negligence claims often highlight the inadequacies of hospital care by bringing problems to the attention of the NHS management which has in the past resulted in negligent practices being abandoned and replaced with much better ones. If government support is withdrawn for clinical negligence claims many patients may be denied any access to justice. This begs the worrying question of whether if the prospect of these claims is effectively removed standards of care provided to patients by the medical profession will decline still further.
Amey Welch, Legal Assistant, Clinical Negligence
Government can’t see the wood for the trees!
Since highlighting on Tuesday the Government’s plan to sell off large amounts of England’s public forest, it appears that there is to be a complete u-turn.
After heavy criticism from campaigners it seems that the proposals will be dropped, with the consultation swiftly wound up and the policy rethought.
At Prime Minister’s Questions in the Commons, Labour leader Ed Miliband asked Mr Cameron: “Can you tell us whether you are happy with your flagship policy on forestry?” Mr Cameron replied: “The short answer to that is no.”
A new panel of experts is now set to look at public access and biodiversity within the publicly owned woodland, and plans to offload public forest to private companies and individuals has also been dropped.
The u-turn will be welcomed by the many users of England’s public forest including the 520,000+ people who signed the online petition against the move.
Sean Logan, Solicitor, Hart Brown
After heavy criticism from campaigners it seems that the proposals will be dropped, with the consultation swiftly wound up and the policy rethought.
At Prime Minister’s Questions in the Commons, Labour leader Ed Miliband asked Mr Cameron: “Can you tell us whether you are happy with your flagship policy on forestry?” Mr Cameron replied: “The short answer to that is no.”
A new panel of experts is now set to look at public access and biodiversity within the publicly owned woodland, and plans to offload public forest to private companies and individuals has also been dropped.
The u-turn will be welcomed by the many users of England’s public forest including the 520,000+ people who signed the online petition against the move.
Sean Logan, Solicitor, Hart Brown
Friday 18 February 2011
Real news for first time buyers?
Will the provision of large loan to value mortgages really be the way to introduce confidence into the market and set the first time buyer’s pulses racing? This initiative does not solve the problem of severe job insecurity which is a hurdle that a large number of potential first time buyers are finding impossible to negotiate.
Lenders also have astonishingly short memories. The high % loan to value mortgages in the late 80’s saw properties quickly enter negative equity when the market dropped in value in the early 90’s. The same happened in more dramatic terms in early 2008.
Mervyn King has put forward his thoughts as to the problems in the economy and the spectre of 1.25% interest rates by the end of 2011 is now a real possibility, if not probability. Where will people find the extra amount of interest they need to pay should rates go up when there are few pay rises in any sector? The feeling in the property industry is that any significant rise in interest rates, with 1% being considered very significant, will kill the market stone dead whilst distressing huge numbers of house owners who have struggled through the last 24 months.
All in all, is this really the time for young first time buyers to saddle themselves with a 90 or 95% mortgage?
http://www.guardian.co.uk/money/2011/feb/17/mortgage-lenders-first-time-buyers
David Knapp, Partner
Residential Property
Lenders also have astonishingly short memories. The high % loan to value mortgages in the late 80’s saw properties quickly enter negative equity when the market dropped in value in the early 90’s. The same happened in more dramatic terms in early 2008.
Mervyn King has put forward his thoughts as to the problems in the economy and the spectre of 1.25% interest rates by the end of 2011 is now a real possibility, if not probability. Where will people find the extra amount of interest they need to pay should rates go up when there are few pay rises in any sector? The feeling in the property industry is that any significant rise in interest rates, with 1% being considered very significant, will kill the market stone dead whilst distressing huge numbers of house owners who have struggled through the last 24 months.
All in all, is this really the time for young first time buyers to saddle themselves with a 90 or 95% mortgage?
http://www.guardian.co.uk/money/2011/feb/17/mortgage-lenders-first-time-buyers
David Knapp, Partner
Residential Property
For the next generation of house buyers?
For dinosaurs like me, the concept of receiving mortgage information through my telephone is beyond my brain’s capacity!
My children however would lap it up.
Mortgage lenders are predominantly not interested in dinosaurs as they have a habit of becoming extinct and in any event dinosaurs can use their old fashioned ways to find the “food” source of a money loan that currently exist.
The next generation, well, the next but one (such as my children), will find this a very useful method of sourcing finance, providing they are able to allow themselves 5 minutes from the texts to their friends…..
http://www.guardian.co.uk/money/2011/feb/16/mortgage-assistant-app-of-week
Do you think this app will be a useful tool for house buyers? Let us know!
David Knapp, Partner
Residential Property
My children however would lap it up.
Mortgage lenders are predominantly not interested in dinosaurs as they have a habit of becoming extinct and in any event dinosaurs can use their old fashioned ways to find the “food” source of a money loan that currently exist.
The next generation, well, the next but one (such as my children), will find this a very useful method of sourcing finance, providing they are able to allow themselves 5 minutes from the texts to their friends…..
http://www.guardian.co.uk/money/2011/feb/16/mortgage-assistant-app-of-week
Do you think this app will be a useful tool for house buyers? Let us know!
David Knapp, Partner
Residential Property
Thursday 17 February 2011
UK Business faces red tape confusion
Are we over regulated? 265 new regulations on top of existing ones must make most businesses, in particular small businesses, gasp.
Good intentions usually sit behind new regulations but, as I know from working in the law, new legislation can often be a knee jerk reaction to resolve a situation and often a unique situation at that.
However, sadly rather than resolve a problem new legislation often forces good businesses who comply with good practice to jump through hoops at considerable expense leaving businesses, which the legislation intended to correct, ignoring it.
Speaking to businesses most say that they are overregulated and that the balance between protecting the business and others (such as employees, suppliers, contractors, the tax man) has swung too far in favour of “others”. Many lawyers would probably agree. It is however a difficult balance.
265 new regulations does seem rather a lot – ignorance won’t be a defence but it will be very understandable!”
http://www.bbc.co.uk/news/business-12493061
Bettina Brueggemann
Managing Partner
Good intentions usually sit behind new regulations but, as I know from working in the law, new legislation can often be a knee jerk reaction to resolve a situation and often a unique situation at that.
However, sadly rather than resolve a problem new legislation often forces good businesses who comply with good practice to jump through hoops at considerable expense leaving businesses, which the legislation intended to correct, ignoring it.
Speaking to businesses most say that they are overregulated and that the balance between protecting the business and others (such as employees, suppliers, contractors, the tax man) has swung too far in favour of “others”. Many lawyers would probably agree. It is however a difficult balance.
265 new regulations does seem rather a lot – ignorance won’t be a defence but it will be very understandable!”
http://www.bbc.co.uk/news/business-12493061
Bettina Brueggemann
Managing Partner
Tuesday 15 February 2011
England’s forests: the time to act is now
Over the last five financial years the Forestry Commission has being selling on average almost 900 hectares of land each year. In 2010, ministers announced that a further 40,000 hectares (representing 15.5% of English forests owned by the Forestry Commission) would be sold over the four year period 2011/12 to 2014/15.
England’s premier “heritage” woodlands such as the Forest of Dean will be handed free to a new national charity or to existing charitable trusts. However, communities and environment groups will be invited to buy thousands of hectares of land, in addition to large areas of commercial woodland that will be sold on 150-year leases to private companies.
A consultation, running from 27 January 2011 for 12 weeks, has been launched to invite views on the proposal put forward to deal with the future ownership and management of the public forest estate in England.
Campaigners warn that selling off public forests will lead to woodland being destroyed and not maintained, and the public being barred from access to the land. They fear that some sites in time may be vulnerable to developments such as housing estates and golf courses.
Environment Secretary Caroline Spelman has responded to concerns saying that disposing of the land would enable the government and the Forestry Commission to focus on their most important roles and allow those who are most involved with England’s woodlands to play a much greater role in their future. She claims the sell-off could raise £150-250m over 10 years and highlight that public access will be maintained and biodiversity protected.
Opinion polls suggest over 80% of the public wants to keep English forests in public hands and online petition Save Our Forests has been signed by more than 520,000 people.
Let us know what you think by leaving a comment below, or why not have your say by contributing to the consultation at http://www.forestry.gov.uk/forestry/INFD-8D3G4M.
Find out more about the author of this article, Sean Logan
England’s premier “heritage” woodlands such as the Forest of Dean will be handed free to a new national charity or to existing charitable trusts. However, communities and environment groups will be invited to buy thousands of hectares of land, in addition to large areas of commercial woodland that will be sold on 150-year leases to private companies.
A consultation, running from 27 January 2011 for 12 weeks, has been launched to invite views on the proposal put forward to deal with the future ownership and management of the public forest estate in England.
Campaigners warn that selling off public forests will lead to woodland being destroyed and not maintained, and the public being barred from access to the land. They fear that some sites in time may be vulnerable to developments such as housing estates and golf courses.
Environment Secretary Caroline Spelman has responded to concerns saying that disposing of the land would enable the government and the Forestry Commission to focus on their most important roles and allow those who are most involved with England’s woodlands to play a much greater role in their future. She claims the sell-off could raise £150-250m over 10 years and highlight that public access will be maintained and biodiversity protected.
Opinion polls suggest over 80% of the public wants to keep English forests in public hands and online petition Save Our Forests has been signed by more than 520,000 people.
Let us know what you think by leaving a comment below, or why not have your say by contributing to the consultation at http://www.forestry.gov.uk/forestry/INFD-8D3G4M.
Find out more about the author of this article, Sean Logan
Friday 11 February 2011
Casual is the new smart?
Casual is the new smart. In ever changing times are we just on a merry go round and the current modern trend is casual but it won’t be long before suits make a comeback? Or are there real reasons for a more casual dress approach such as helping clients feel more at ease. At Projectfive the aim is for staff to feel comfortable and for clients to feel less intimidated. IT they believe can be a scary subject. Not as scary as solicitors surely? UBS obviously went too far. It is probably right to say that all businesses should have some sort of dress code – both as a means of reinforcing their image and to ensure that necessary standards are maintained. We have clients who would be shocked to meet their solicitor dressed in anything other than a suit. Others would prefer to see us in relaxed but smart clothing. There isn’t it seems to me a right or wrong answer. Suits won’t disappear. They have their place but so does casual.
http://www.bbc.co.uk/news/magazine-12418046
Read more about Bettina Brueggemann
http://www.bbc.co.uk/news/magazine-12418046
Read more about Bettina Brueggemann
Thursday 10 February 2011
Do estate agents provide good customer care?
In her latest trip down the high street, Mary Portas “Queen of Shops” has been targeting businesses and questioning their customer care. So far we have seen her at the door of fashions outlets, furniture stores and mobile phone shops. This week the Secret Shopper’s target was estate agents.
Public perception of estate agents seems to be that they are deceitful, unscrupulous, manipulative and un-trustworthy. So what did Mary Portas consider they could change in order to provide their clients with better customer care?
She took on a family run firm of estate agents who didn’t initially appear to think that they needed to change their ways. However, as the exercise continued Mary proved to them just how important it is for the public to have clear, concise and truthful information. After all, buying a house is probably one of the biggest financial decisions anyone will make in their lifetime and people don’t like to be misled.
Mary put the agents through their paces in a country house where, after 15 minutes of training, they took the general public on guided tours. This proved to them just how important it is to have knowledge and expertise of the particular property they were showing off.
The agents took this on board and put it to good use, embracing the issue of their property details, radically changing them to reflect both the good and the bad aspects of the properties on their books. This attitude to selling is not only upfront and honest but to potential buyers it is straightforward, accurate, honest selling. No terrible clichés, jargon or estate agents patter.
Mary surveyed the prospective buyers who had viewed properties with the benefit of the new style property details. She was amazed to hear that 100% of those prospective buyers thought they were honest, trustworthy, specialists in their field with expert knowledge of both the properties and the area generally. This was a great result.
Honesty is certainly the alternative way for estate agents to market property and it will be asking them to change the habits of a lifetime but could the industry make the change to embrace these radical ideas? Refreshing thought!
Debbie Beswick
Public perception of estate agents seems to be that they are deceitful, unscrupulous, manipulative and un-trustworthy. So what did Mary Portas consider they could change in order to provide their clients with better customer care?
She took on a family run firm of estate agents who didn’t initially appear to think that they needed to change their ways. However, as the exercise continued Mary proved to them just how important it is for the public to have clear, concise and truthful information. After all, buying a house is probably one of the biggest financial decisions anyone will make in their lifetime and people don’t like to be misled.
Mary put the agents through their paces in a country house where, after 15 minutes of training, they took the general public on guided tours. This proved to them just how important it is to have knowledge and expertise of the particular property they were showing off.
The agents took this on board and put it to good use, embracing the issue of their property details, radically changing them to reflect both the good and the bad aspects of the properties on their books. This attitude to selling is not only upfront and honest but to potential buyers it is straightforward, accurate, honest selling. No terrible clichés, jargon or estate agents patter.
Mary surveyed the prospective buyers who had viewed properties with the benefit of the new style property details. She was amazed to hear that 100% of those prospective buyers thought they were honest, trustworthy, specialists in their field with expert knowledge of both the properties and the area generally. This was a great result.
Honesty is certainly the alternative way for estate agents to market property and it will be asking them to change the habits of a lifetime but could the industry make the change to embrace these radical ideas? Refreshing thought!
Debbie Beswick
Monday 7 February 2011
Compensation received before marriage, a matrimonial asset?
It has been reported by the Daily Mail this afternoon that a man who received the sum of £500,000.00 by way of compensation following a car crash five years before he met his wife has been ordered by the court to pay over £285,000.00 of that money to his now ex wife as part of a financial settlement on divorce.
The Judge in this case appears to have classed the husband’s compensation as part of the matrimonial assets.
This is an unusual case, and begs the question can it be fair that the husband now faces financial hardship by losing an asset that not only was provided as compensation for his disability, but one that he received before he met his ex wife?
The husband has now been granted permission to appeal against this ruling.
http://www.dailymail.co.uk/news/article-1354470/Divorce-judge-orders-crash-amputee-hand-500-000-compensation-ex-wife.html
Anne Thomas, Legal Executive, Hart Brown
The Judge in this case appears to have classed the husband’s compensation as part of the matrimonial assets.
This is an unusual case, and begs the question can it be fair that the husband now faces financial hardship by losing an asset that not only was provided as compensation for his disability, but one that he received before he met his ex wife?
The husband has now been granted permission to appeal against this ruling.
http://www.dailymail.co.uk/news/article-1354470/Divorce-judge-orders-crash-amputee-hand-500-000-compensation-ex-wife.html
Anne Thomas, Legal Executive, Hart Brown
Thursday 3 February 2011
Legal rights for unmarried couples – A good idea?
The president of the Family Division of the High Court, Sir Nicholas Wall has called for legal rights to be given to unmarried couples should they separate.
It is a common misconception that couples who are unmarried and simply live together have a ‘common law’ marriage and therefore the same rights as married couples, but this is not the case.
If a cohabiting couple separate, they do not have claims for maintenance or claims against the other’s capital or pensions in the same way that a married couple do. If a cohabiting couple own a property together, the law on which they rely to decide how to deal with that property is complex and based on trust law.
The lawyers at Hart Brown are able to assist unmarried couples and would recommend that if considering living with a partner, a cohabitation agreement is entered into to clarify matters.
Do you think that unmarried couples should have the same rights as married couples so that one party is not at a disadvantage? Or do you think that such laws would undermine marriage? Let us have your comments below.
Link to the article:-
http://www.bbc.co.uk/news/uk-12352200
Anne Thomas, Legal Executive, Hart Brown
It is a common misconception that couples who are unmarried and simply live together have a ‘common law’ marriage and therefore the same rights as married couples, but this is not the case.
If a cohabiting couple separate, they do not have claims for maintenance or claims against the other’s capital or pensions in the same way that a married couple do. If a cohabiting couple own a property together, the law on which they rely to decide how to deal with that property is complex and based on trust law.
The lawyers at Hart Brown are able to assist unmarried couples and would recommend that if considering living with a partner, a cohabitation agreement is entered into to clarify matters.
Do you think that unmarried couples should have the same rights as married couples so that one party is not at a disadvantage? Or do you think that such laws would undermine marriage? Let us have your comments below.
Link to the article:-
http://www.bbc.co.uk/news/uk-12352200
Anne Thomas, Legal Executive, Hart Brown
Wednesday 2 February 2011
Shouting at your partner – A valid reason for an injunction?
Within the last few days, the Supreme Court has ruled that within relationships, the word ‘violence’ can be interpreted to mean not just physical violence, but incidences of shouting and verbal attacks.
The case concerned involved a wife who left the family home, which was a council property. The wife declared to the local council that she had left the property because she had suffered domestic violence at the hands of her husband and therefore needed to be re-housed. It transpired that her husband had never hit her, or threatened to hit her. The local council therefore refused to re-house her.
The Supreme Court took the decision that in determining the meaning of the word ‘violence’, it should be extended to mean verbal behaviour too.
This decision may have an effect on the application for injunctions under the Family Law Act 1996. Such injunctions are usually sought where a person has been subjected to domestic violence by their spouse or partner and requires a court order that the other person does not come near them and/or leaves the property in which they are living. In some cases, it has been possible to obtain a non-molestation order for psychological abuse provided that evidence is produced to the court, but this may now open up more cases of non-physical abuse being used as a reason for an injunction.
http://www.dailymail.co.uk/news/article-1350761/Women-entitled-council-house-partner-shouts.html
Anne Thomas, Legal Executive, Family Department
The case concerned involved a wife who left the family home, which was a council property. The wife declared to the local council that she had left the property because she had suffered domestic violence at the hands of her husband and therefore needed to be re-housed. It transpired that her husband had never hit her, or threatened to hit her. The local council therefore refused to re-house her.
The Supreme Court took the decision that in determining the meaning of the word ‘violence’, it should be extended to mean verbal behaviour too.
This decision may have an effect on the application for injunctions under the Family Law Act 1996. Such injunctions are usually sought where a person has been subjected to domestic violence by their spouse or partner and requires a court order that the other person does not come near them and/or leaves the property in which they are living. In some cases, it has been possible to obtain a non-molestation order for psychological abuse provided that evidence is produced to the court, but this may now open up more cases of non-physical abuse being used as a reason for an injunction.
http://www.dailymail.co.uk/news/article-1350761/Women-entitled-council-house-partner-shouts.html
Anne Thomas, Legal Executive, Family Department
Wednesday 26 January 2011
Can't take it with you - will disputes
The second programme in Gerry Robinson’s series “You can’t take it with you” continued to explore the potentially thorny issues which can arise in the complicated family relationships which exist in the modern age. The idea of the programme is to get people in the process of making their wills to discuss things openly with their sometimes extended families to try and reach some sort of agreement and to prevent upset and dispute after their deaths. We often get involved in helping clients to resolve these issues after death where either no will has been made or a will made long ago has become out of date because it fails to take account of changed circumstances. In addition to that we sometimes become involved as a mediator trying to settle sometimes long running disputes. Is it that by simply getting everyone together before death resolves these potential problems at a stroke or does the spotlight of television itself alter the dynamics because people on camera want to be seen in public to be as reasonable as possible?
Find out more about the author of this article, Paul Grimwood
Find out more about Will Disputes
Find out more about the author of this article, Paul Grimwood
Find out more about Will Disputes
Wednesday 19 January 2011
Divorce - the cheapest option isn't always the best option.
The president of the Law Society was recently questioned about his thoughts on internet divorce; he stated that “the cheapest option is not always the best” and that “online divorce is not suitable for cases where there is an imbalance of power between the spouses, or where a spouse is withholding information.” Without a solicitor how do you know if your spouse is withholding information? How do you address the imbalance of power without external influence?
A Managing Director from an online divorce company also commented recently saying that “we recommend people seek advice from solicitors...we can’t give advice”.
Would you be tempted to have a “cheap” divorce online? Can year's of marriage really be ended in such a simple way? Can your assets be split that easily?
Find out more about how Hart Brown’s Divorce lawyers can help.
A Managing Director from an online divorce company also commented recently saying that “we recommend people seek advice from solicitors...we can’t give advice”.
Would you be tempted to have a “cheap” divorce online? Can year's of marriage really be ended in such a simple way? Can your assets be split that easily?
Find out more about how Hart Brown’s Divorce lawyers can help.
Monday 17 January 2011
Parents to share parental leave
Is it really patronising to allow a mother to have time off with her new born child? She has carried the child and is biologically ready to nurse and care for her babies needs. Undoubtedly the father, or partner of either sex, wants to be involved in bringing up the new addition to the family and it is in the babies best interests to have the care and attention of both parents.
Will there be career implications for either parent who choose to take large blocks of time out to be with the baby, and perhaps only return to work part time thereafter? Employers may find it difficult to obtain cover for either parent who is out of the work place for 6 months to a year. Flexible working can be difficult to accommodate, and how will small employers cope with ever increasing numbers of their work force requesting flexible working? Mothers, fathers, grandparents, and ‘close family friends’, will be able to make these applications?
It is usually obvious when a woman becomes pregnant, or in the later stages of pregnancy, and an employer can anticipate 12 months maternity leave. How will an employer deal with the partner, who unexpectedly announces pending paternity and the ‘requirement’ to take a lengthy period of leave?
From April 2011 the entitlement to take additional paternity leave gives the mother’s partner the opportunity to use any remaining portion of her optional 52 weeks maternity leave. Good employers will want to be seen to be flexible and accommodating, but how much notice will they really have? The regulations require a partner to give 8 weeks notice! It is not just a matter of employers finding staff to cover employees on leave, they also have to continue to provide all contractual benefits to those on leave other than wages. There will also be continuing uncertainty over whether either the mother or her partner, will return to work full time, or at all, at the end of the maternity or paternity leave. And what about the financial implications for the new parents? Currently the mother is entitled to 6 weeks at 90% of her salary and the father to a maximum of £128.73 (or 90% of salary if lower) for the first 2 weeks only. After that the father is not entitled to any statutory payment and the mother to the rate of £128.73 (or 90% of salary if lower) for the remaining 33 weeks of the 39 week period. Many employers contractually provide enhanced maternity payments, but will this be extended to cover long periods of paternity leave?
Read the original article here
Read about the author of this article, Liz Whitehead
Find out more about Hart Brown can help with employment issues
Will there be career implications for either parent who choose to take large blocks of time out to be with the baby, and perhaps only return to work part time thereafter? Employers may find it difficult to obtain cover for either parent who is out of the work place for 6 months to a year. Flexible working can be difficult to accommodate, and how will small employers cope with ever increasing numbers of their work force requesting flexible working? Mothers, fathers, grandparents, and ‘close family friends’, will be able to make these applications?
It is usually obvious when a woman becomes pregnant, or in the later stages of pregnancy, and an employer can anticipate 12 months maternity leave. How will an employer deal with the partner, who unexpectedly announces pending paternity and the ‘requirement’ to take a lengthy period of leave?
From April 2011 the entitlement to take additional paternity leave gives the mother’s partner the opportunity to use any remaining portion of her optional 52 weeks maternity leave. Good employers will want to be seen to be flexible and accommodating, but how much notice will they really have? The regulations require a partner to give 8 weeks notice! It is not just a matter of employers finding staff to cover employees on leave, they also have to continue to provide all contractual benefits to those on leave other than wages. There will also be continuing uncertainty over whether either the mother or her partner, will return to work full time, or at all, at the end of the maternity or paternity leave. And what about the financial implications for the new parents? Currently the mother is entitled to 6 weeks at 90% of her salary and the father to a maximum of £128.73 (or 90% of salary if lower) for the first 2 weeks only. After that the father is not entitled to any statutory payment and the mother to the rate of £128.73 (or 90% of salary if lower) for the remaining 33 weeks of the 39 week period. Many employers contractually provide enhanced maternity payments, but will this be extended to cover long periods of paternity leave?
Read the original article here
Read about the author of this article, Liz Whitehead
Find out more about Hart Brown can help with employment issues
"Can't take it with you" - have your thought about you will?
The BBC programme “Can’t take it with you”, aired on Friday night, reiterated the thinking that about 70% of us will die without leaving a valid will. The programme centred around two couples, who were in second relationships, struggling to resolve the thorny issue of what should happen to their estates on their deaths.
The resulting wills would not have tested a competent solicitor specialising in the area. However, the most interesting issue arising was the question of “how do you reach a stage at which a solution between the parties can be agreed upon?”. The answer to that is COMMUNICATION!. Communication with your partner and communication with the family. It is so often the case that people are not prepared to discuss what is, after all, eventually going to happen to us all, death. Many examples could be listed where families have not spoken prior to someone’s death and the result is an acrimonious mess.
There are six episodes in this series and the three lessons to be taken from the first episode are:-
Communication; and,
Obtain specialist advice from a solicitor practising in the area of wills, it is too important not to get the will right. A badly drawn will might even be worse than having no will at all!; and
Don’t put off making a will because it is too difficult to think about.
Making a will can be difficult emotionally and, in extreme cases, can test relationships. However, not resolving the issues and leaving it can be more hurtful to those left to pick up the pieces. Wills are essential documents to have in place particularly in the most difficult situations. If you are finding that you are putting off making a will because it is difficult for you to consider then you probably need one in place more than others!
Find out more about the author of this article, Shaun Parry-Jones
find out more about the BBC series "Can't take it with you"
The resulting wills would not have tested a competent solicitor specialising in the area. However, the most interesting issue arising was the question of “how do you reach a stage at which a solution between the parties can be agreed upon?”. The answer to that is COMMUNICATION!. Communication with your partner and communication with the family. It is so often the case that people are not prepared to discuss what is, after all, eventually going to happen to us all, death. Many examples could be listed where families have not spoken prior to someone’s death and the result is an acrimonious mess.
There are six episodes in this series and the three lessons to be taken from the first episode are:-
Making a will can be difficult emotionally and, in extreme cases, can test relationships. However, not resolving the issues and leaving it can be more hurtful to those left to pick up the pieces. Wills are essential documents to have in place particularly in the most difficult situations. If you are finding that you are putting off making a will because it is difficult for you to consider then you probably need one in place more than others!
Find out more about the author of this article, Shaun Parry-Jones
find out more about the BBC series "Can't take it with you"
MP's and their expenses
Do you find it astonishing that an MP who fiddles his expenses (basically steals from the taxpayer) does not lose his job as MP (or cannot be forced to) unless he is sentenced to more than a year’s prison? Making the sentence determine whether you lose your job rather than the crime is surely a novel approach? Stealing when you are in a position of trust is stealing – whether it is £100 or £1million. The point is surely that the trust so essential in his role or in an employment role is destroyed because there has been dishonesty. Can you trust someone who has stolen from you again? Would you trust your cleaner who takes £1 which you have left lying around?
Employers have always taken a very serious view of any theft by staff however small. Small can lead to larger. Summary dismissal is usual. Why should the taxpayer (who employs the MP's – something we often forget) view it differently. Should MPs automatically lose their position if convicted of a serious crime such as theft, dishonesty, lying?
More about the author of this article, Bettina Brueggemann
Employers have always taken a very serious view of any theft by staff however small. Small can lead to larger. Summary dismissal is usual. Why should the taxpayer (who employs the MP's – something we often forget) view it differently. Should MPs automatically lose their position if convicted of a serious crime such as theft, dishonesty, lying?
More about the author of this article, Bettina Brueggemann
Thursday 13 January 2011
Government scrapping default retirement age
Scrapping the default retirement age only means that employees will not automatically be expected to retire at a fixed age. There is no reason for experienced capable staff to retire just because they are 65. But will employers look to put clauses into contracts of employment stipulating a fixed age of retirement based on the nature of their business? If employers want a fixed age they can still insert this into their contracts of employment. (The employer will still need to be able to objectively justify a fixed contractual age for retirement, and this may largely depend on the nature of the business). Otherwise, if there are concerns about any employee’s capability, regardless of age, then capability procedures can be followed in the normal way. Vacancies arise when staff leave employment, or the company expands. In a buoyant market staff move on to increase experience, more varied roles or for greater salaries. Is retirement a major reason for staff vacancies? It is thought not. There is an argument to support the proposition that older workers are more reliable and more loyal, and less likely to leave their existing employer to enhance career progression. But will employers embrace or exploit this law?
Employers should continue to ensure they follow fair procedures both at the recruitment stage and at termination. They may otherwise face proceedings for age discrimination. What do you think?
Find out more about Hart Brown's employment department
Find out more about the author of this article, Liz Whitehead
Read the BBC article
Employers should continue to ensure they follow fair procedures both at the recruitment stage and at termination. They may otherwise face proceedings for age discrimination. What do you think?
Find out more about Hart Brown's employment department
Find out more about the author of this article, Liz Whitehead
Read the BBC article
Should Eric Illsley go to prison?
Should Eric Illsley go to prison for fiddling expenses or is community service a better option? Interestingly the public asked so far favour community service rather than prison because he is not a danger to the public, it costs the taxpayer less and he is forced to do something for the community which is visible.
Your view might depend on what you think the purpose of prison is. Is it intended to protect the public from dangerous people, punish someone by depriving them of their freedom or both? When talking about dangerous people do we mean people who threaten our physical safety or is it broader than that? Is stealing money not dangerous for those losing it? Or are we saying that Eric Illsley is not dangerous because he no longer has the opportunity to steal money or has learnt his lesson?
I am not sure a lesson needs to be learnt. Eric Illsley knew he was doing wrong. He got caught. He is responsible for setting the example. He therefore needs to set the example in terms of punishment for his crime. Whatever your view is as to what the punishment should be it should then apply to everyone else – including those stealing from their employers.
Read more here
Find our more about Hart Brown and the author of this article, Bettina Brueggemann
Your view might depend on what you think the purpose of prison is. Is it intended to protect the public from dangerous people, punish someone by depriving them of their freedom or both? When talking about dangerous people do we mean people who threaten our physical safety or is it broader than that? Is stealing money not dangerous for those losing it? Or are we saying that Eric Illsley is not dangerous because he no longer has the opportunity to steal money or has learnt his lesson?
I am not sure a lesson needs to be learnt. Eric Illsley knew he was doing wrong. He got caught. He is responsible for setting the example. He therefore needs to set the example in terms of punishment for his crime. Whatever your view is as to what the punishment should be it should then apply to everyone else – including those stealing from their employers.
Read more here
Find our more about Hart Brown and the author of this article, Bettina Brueggemann
Wednesday 12 January 2011
Protecting an idea?
The case of the Winklvoss twins accusing Mark Zuckerberg of stealing their idea in the creation of Facebook is news around the world and as such is equally relevant here in the UK in raising the question of whether an idea can be protected and if so how?
Under UK law the protections offered vary greatly as an idea can take many forms and it is the form that the idea takes that results in the type and level of protection that it is afforded.
To establish the protection given to an idea it needs to be established:
How is it presented?
Is it in a written or recorded form?
Is it a method or process?
Is it an item or tangible object?
How did the idea come about?
Is the idea confined to the UK, or is international protection necessary?
The underlying principle behind these questions is clear - if the idea is formally recorded either through trademark, patent, design or copyright, it is much easier to enforce should any alleged breach occur.
As can be seen from the Facebook dispute failure to record an idea can be costly…
Find out more about Hart Browns Commercial Business department
Under UK law the protections offered vary greatly as an idea can take many forms and it is the form that the idea takes that results in the type and level of protection that it is afforded.
To establish the protection given to an idea it needs to be established:
How is it presented?
Is it in a written or recorded form?
Is it a method or process?
Is it an item or tangible object?
How did the idea come about?
Is the idea confined to the UK, or is international protection necessary?
The underlying principle behind these questions is clear - if the idea is formally recorded either through trademark, patent, design or copyright, it is much easier to enforce should any alleged breach occur.
As can be seen from the Facebook dispute failure to record an idea can be costly…
Find out more about Hart Browns Commercial Business department
Tuesday 11 January 2011
ex-BBC presenter wins ageism and victimisation claims
Today ex-BBC Countryfile presenter, Miriam O’Reilly won her claims of ageism and victimisation at London Central Employment Tribunal. The compensation to be awarded will be decided at another hearing in a few weeks time, however, a figure of around £100,000, including lost earnings and an amount for injury to feelings, is likely to be awarded.
Miriam O’Reilly, 53, was one of four female presenters who were dropped from Countryfile when it was moved it from Sunday mornings to a primetime slot early Sunday evenings. The others included Juliette Morris, Charlotte Smith and Michaela Strachan. The current Countryfile presenters are Matt Baker and Julia Bradbury and both are significantly younger than Miriam.
In its judgment, the tribunal said "if the claimant had been 10 to 15 years younger, she would have been given proper consideration to remain as a presenter of Countryfile. The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewers, is a legitimate aim. however, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience."
The tribunal rejected the BBC's suggestion that it had devised and adopted proper criteria for choosing the new Countryfile presenters and said that the explanation of the selection process offered in evidence by the BBC was "complacent".
The tribunal also found that the decision which not to give Miriam O'Reilly any further writing work on Countryfile magazine was "an act of victimisation" resulting from "annoyance as to the allegations that [Miriam O’Reilly] was making".
This case is a reminder to even the most high profile employers that employers should ensure that clear, objective and non-discriminatory selection criteria should be used throughout all employment policies in order to reduce the risk of employment tribunal claims and promote equality in the workplace.
Find out more about how Hart Brown can help with a discrimination claim
Miriam O’Reilly, 53, was one of four female presenters who were dropped from Countryfile when it was moved it from Sunday mornings to a primetime slot early Sunday evenings. The others included Juliette Morris, Charlotte Smith and Michaela Strachan. The current Countryfile presenters are Matt Baker and Julia Bradbury and both are significantly younger than Miriam.
In its judgment, the tribunal said "if the claimant had been 10 to 15 years younger, she would have been given proper consideration to remain as a presenter of Countryfile. The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewers, is a legitimate aim. however, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience."
The tribunal rejected the BBC's suggestion that it had devised and adopted proper criteria for choosing the new Countryfile presenters and said that the explanation of the selection process offered in evidence by the BBC was "complacent".
The tribunal also found that the decision which not to give Miriam O'Reilly any further writing work on Countryfile magazine was "an act of victimisation" resulting from "annoyance as to the allegations that [Miriam O’Reilly] was making".
This case is a reminder to even the most high profile employers that employers should ensure that clear, objective and non-discriminatory selection criteria should be used throughout all employment policies in order to reduce the risk of employment tribunal claims and promote equality in the workplace.
Find out more about how Hart Brown can help with a discrimination claim
Child Maintenance Enforcement Commission
The Daily Telegraph has reported that within the next few days, the DWP will be announcing proposals to charge parents for the services of CMEC (the Child Maintenance Enforcement Commission). CMEC is one of the “quangoes” the government is considering scrapping, with the service being taken under the wing of the DWP in order to save costs. It is thought that the DWP will be asking for the public’s views on charging parents for collecting child maintenance, including how much should be charged. In the meantime, let us know your first thoughts on the matter.
Find out more about Hart Brown's family department
Find out more about Hart Brown's family department
Monday 10 January 2011
UK house prices fell 1.3% in December 2010
Our solicitors comment on the BBC article "UK house prices fell 1.3% in December, Halifax says"
The article comes as no surprise as the last 2 or 3 months have seen pressure on prices. Clients of ours who sold in the late summer, only to lose their buyers and to re sell in November and December are having to take a reduced offer to re sell. Agents are desperate to keep buyers on board where matters have stagnated telling our sellers “you will not achieve this price in the current climate and for the foreseeable future”. Gazzundering, where buyers come in at the last minute requesting a price reduction for no reason other than the market suggests a reduction in value, is common place but does not seem to receive the press coverage expressing the out rage that accompanies the opposite, gazumping, when a seller ups the price at the last minute. Interestingly gazundering is seen as fair game but gazzumping as abhorrent.
There are no indicators as yet that the market is going to pick up at all from a price perspective in the coming 12 months and if anything is going to continue to slide downwards. This is positive from the point of view of first time buyers and those moving up market and so does not deserve the negative press that a sliding market receives. The negative press is generally generated by those having a vested interest in the market flying away upwards, estate agents and mortgage lenders.
Stability and volume is what most people in the interest would like to see.
Find out more about Hart Brown's Residential property team based in Surrey and South London
The article comes as no surprise as the last 2 or 3 months have seen pressure on prices. Clients of ours who sold in the late summer, only to lose their buyers and to re sell in November and December are having to take a reduced offer to re sell. Agents are desperate to keep buyers on board where matters have stagnated telling our sellers “you will not achieve this price in the current climate and for the foreseeable future”. Gazzundering, where buyers come in at the last minute requesting a price reduction for no reason other than the market suggests a reduction in value, is common place but does not seem to receive the press coverage expressing the out rage that accompanies the opposite, gazumping, when a seller ups the price at the last minute. Interestingly gazundering is seen as fair game but gazzumping as abhorrent.
There are no indicators as yet that the market is going to pick up at all from a price perspective in the coming 12 months and if anything is going to continue to slide downwards. This is positive from the point of view of first time buyers and those moving up market and so does not deserve the negative press that a sliding market receives. The negative press is generally generated by those having a vested interest in the market flying away upwards, estate agents and mortgage lenders.
Stability and volume is what most people in the interest would like to see.
Find out more about Hart Brown's Residential property team based in Surrey and South London
Prime Minister to talk jobs with big business
Is making it easier for small businesses to hire and fire staff going to help the economy and small businesses generally?
A common complaint by employers is that dismissing disruptive or not very competent staff or someone who does not fit into an organisation which in turn causes disharmony within the office is very difficult. There are lots of hoops to go through and whether you do it all correctly or not you can still be faced with a claim in the employment tribunal with its inherent costs. At the same time it is important that employees are given protection. Finding yourself unemployed (as so many have experienced in the last few years) is devastating to your self esteem, finances and life.
Working for an employer for many years only to be dismissed for no reason can’t be right either. Getting the balance therefore of protecting a business so that it can continue to employ people and generate income while protecting the employee’s rights is hard. It is difficult to see how requiring a fee to be paid when bringing a claim in the employment tribunal would make much difference other than assist the deficit!! Perhaps the tribunal should be much tougher when assessing a case in the early stages with a view to sifting out spurious claims. Maybe it should make more use of the requirement for a claimant to put funds into court where the claims appears weak and maybe tribunals should not allow fundamental changes to a claimant’s case late in the day. What do you think?
Read the article here
Find out more about Hart Brown's employment team in Guildford
A common complaint by employers is that dismissing disruptive or not very competent staff or someone who does not fit into an organisation which in turn causes disharmony within the office is very difficult. There are lots of hoops to go through and whether you do it all correctly or not you can still be faced with a claim in the employment tribunal with its inherent costs. At the same time it is important that employees are given protection. Finding yourself unemployed (as so many have experienced in the last few years) is devastating to your self esteem, finances and life.
Working for an employer for many years only to be dismissed for no reason can’t be right either. Getting the balance therefore of protecting a business so that it can continue to employ people and generate income while protecting the employee’s rights is hard. It is difficult to see how requiring a fee to be paid when bringing a claim in the employment tribunal would make much difference other than assist the deficit!! Perhaps the tribunal should be much tougher when assessing a case in the early stages with a view to sifting out spurious claims. Maybe it should make more use of the requirement for a claimant to put funds into court where the claims appears weak and maybe tribunals should not allow fundamental changes to a claimant’s case late in the day. What do you think?
Read the article here
Find out more about Hart Brown's employment team in Guildford
Friday 7 January 2011
Englands Cricket Victory
The longest running sagas of my professional career but at last completion has taken place. No, not a long winded property matter, but the winning of an Ashes series Down Under, the first such victory since I qualified with HB 25 years ago.
My presence in Australia over Christmas must be a major factor in this remarkable change of fortunes….
Roll on 2013 when what is likely to be an invigorated Aussie side comes to our shores to try and win the Ashes back
Author: David Knapp
My presence in Australia over Christmas must be a major factor in this remarkable change of fortunes….
Roll on 2013 when what is likely to be an invigorated Aussie side comes to our shores to try and win the Ashes back
Author: David Knapp
Thursday 6 January 2011
Hart Brown team jump to victory
Hart Brown solicitor Emily Wiggins and her horse Basil jumped to victory during their first outing of winter winning the Senior British Novice Championship in Surrey. Despite being hampered by the snow during the winter season, Emily managed to get Basil to the event for their first class of the season.
Sponsored by the Surrey based law firm the young solicitor and her horse were up against fierce competition but, wearing their new Hart Brown branded equipment, managed to win the title run by British Showjumping.
Talking after the event Emily said “It was a challenge to train during the bad weather but the hard work paid off. I’m looking forward to competing in more local and national circuits both show jumping and eventing”.
Emily, who has been riding Basil for 8 years, plans to combine show jumping indoors over the next couple of months with some cross country schooling and fast work to get fit for the next eventing season which kicks off in the spring.
Sponsored by the Surrey based law firm the young solicitor and her horse were up against fierce competition but, wearing their new Hart Brown branded equipment, managed to win the title run by British Showjumping.
Talking after the event Emily said “It was a challenge to train during the bad weather but the hard work paid off. I’m looking forward to competing in more local and national circuits both show jumping and eventing”.
Emily, who has been riding Basil for 8 years, plans to combine show jumping indoors over the next couple of months with some cross country schooling and fast work to get fit for the next eventing season which kicks off in the spring.
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