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

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

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"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"

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

Your Will - why you should use a solicitor!

In a survey published in the Independent on Sunday last week a figure of 38% was quoted as the increase in claims being made by relatives who felt they had been inadequately provided for under the terms of a will or the intestacy rules (the rules that govern an estate where no will is left).

The increase is quoted as being in the last year and one reason cited is the recession.

It is so important to make sure that when you are making your will you take proper legal advice from a solicitor. There are so many organisations now offering to draft your will you can even buy one off the shelf at a stationers! It is a difficult choice but not one that should be based on cost alone. It is unlikely that you will receive advice regarding such claims from a will writer! Even the suggestion of a claim can create costs far in excess of those that would be required to make a will with a solicitor. This is a prime example of being penny wise and pound foolish!

National Will Writing Week

It is National Write a Will Week this week and, according to sources quoted by the Daily Telegraph, about 30 million people in Britain don’t have a will. That equates to about 70% of the population.

Everyone should have a will and they should have a will that has been written by a solicitor. There are numerous alternative options to using a solicitor to make a will. None of them are at all satisfactory.

It is possible to buy a will making kit or use a will writer. The difficulty in using these options is that the likelihood is that you or the will writer have little or no legal experience. In addition, will writers are unregulated and uninsured.

Another option would be to rely on the rules of intestacy. Those are the rules that are laid down to govern somebody’s estate when they die if they haven’t left a will. The rules very often do not work in a way that you would expect them to.

There is no alternative to having your will drafted by a solicitor that specialises in the field. Badly drawn wills can often cause more trouble than they are worth and, in the long run, can be far more expensive and cause no end of hurt. There is no substitute to getting a properly drafted will put in place.

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House prices heading for a fall, surveyors warn

The report does confirm the trend experienced by Hart Brown’s residential property department over the last 2 or 3 months. The number of transactions has reduced with buyers becoming much more circumspect before offering on properties. The first 6 months of 2010 saw activity levels close to those of the heady days of 2007 but this was mainly due to a release of frustration from pent up buyers who had sat on their hands during the worst of the recession.

Once the fears of the public became reality in the form of massive public spending cuts following the election, buyers once again faded away at the same time as a number of sellers put their properties on the market. The political uncertainty at the time of the election saw some sellers holding fire in marketing until after the election which in hindsight can be seen as unwise. Since the election the balance has indeed swung in favour of buyers who, on a supply and demand basis, have more properties to choose from.

Some reports suggest that September’s lending figures show the lowest number of approved mortgages were the lowest for 10 years.

Due to uncertainty over jobs and the medium term concerns over the performance of the property market the % of transactions becoming abortive is higher than for some many months with many sellers who lose buyers selling at a good 5 or 10% less than the original offer.

The rental market is extremely buoyant which is a bad sign for the residential market as potential buyers are moving into temporary accommodation to gauge the market in the hope and now, expectation, of a further drop in prices.

As for the longer term view interest rates hold the key. The timing of any rise in rates will be absolutely key. Any rise ion the next 6 to 9 months would probably kill the market stone dead and cause some house owners huge problems. Coming out of fixed rates or tracker deals into above base rate products would see mortgage payments increase considerably and without pay rises result in many mortgages becoming unaffordable. Fire sales or repossessions would follow. We need to remember that rates came down in huge chunks, 1% and 0.5%, and are likely to go up at a similar rate, especially if inflation keeps running away.

A chill wind will blow over the already fragile residential property market this winter and possibly extend into the middle of 2011

Read the the article here

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Article author: David Knapp

Cheryl Cole's malaria battle

Recently in an interview with Piers Morgan, Cheryl Cole disclosed that when she was in intensive care with malaria, she asked her mother to arrange for someone to visit her to help her make her will. Making a will is not the preserve of the older generations. Everyone over the age of 18 should consider making a will. Youngsters often forget that some of the more adventurous activities that they take part in can lead to serious injury or death.

No one really wants to think about such morbid provision. However, an experience such as that of Cheryl Cole focuses the mind! She was fortunate to get through her illness and I hope that Cheryl has now made proper provision for the future rather than leaving it until it is too late.

Find out more about making a will

Find out more about the author of this article.

TripAdviser defamation suit

News of a proposed action by a group of over 400 hotels and restaurants against the review site TripAdviser will be followed with interest by internet users and legal observers alike. It has been alleged that some of the reviews posted on the TripAdvisor website contain false allegations intended to affect business and impact on reputation. If the group can show that the content posted on the website is defamatory, TripAdviser would then have to either prove the truth of the statements posted under the ‘justification’ defence or defend them on grounds of ‘fair comment’.

Fair comment is a defence commonly relied on by critics and reviewers in media. The defence applies to a statement of opinion where a review is simply giving the writer’s opinion or comment however bad this may be. The right to express opinion on matters of public interest has grown increasingly popular on the internet through various online forums, social networking sites and user reviews however the comment or criticism should be fair, honest and based on true facts. The freedom to have an opinion is entrenched in the law on human rights and the fundamental principles of freedom of speech.

To falsify and distort facts and then to comment on them as if they are true is clearly not a fair comment and the potential claimants in this action are concerned about the nature and content of what is alleged in some of the reviews.

There is however some additional protection for internet service providers hosting online forums and review sites. This is where the ISP does not have actual knowledge of the defamatory material or knowledge of the facts or circumstances from which it is apparent that the information is defamatory. If on obtaining knowledge of a defamatory statement the website fails to act expeditiously to remove or disable access to the defamatory material it will lose this protection.

Therefore TripAdviser may be required to swiftly remove material once they are given notice of any defamatory content which falsifies facts in order to avoid legal action.

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Judge says that children are damaged by divorcing parents

This morning on the BBC Breakfast News, comments made in a speech by a senior family judge, Sir Nicholas Wall were discussed.

The speech was made to the charity Families Need Fathers. In the speech, he said that parents “do not realise the damage they do to their children” and that a child’s self worth can be “irredeemably damaged” if one parent makes it clear to the child that their other parent is worthless. He also said that parents find it hard to understand that even though they have separated from their spouse, their children will still love and be loyal to both of them.

Discussing the matter this morning, Liz Edwards from Resolution said that parents don’t have enough information on how to manage their relationship with an ex-spouse going forward. Craig Pickering from Families Need Fathers advised for parents to seek help on separation.

As commented by Liz Edwards, parents should consider what they want to achieve and then consider what the effect will be on the children. Perhaps easier said than done for separating spouses when emotions are raw? However, with the support of an understanding lawyer, this can be much more achievable than one might think.

At Hart Brown, our lawyers are Resolution (which was formerly known as the Solicitors Family Law Association) accredited and we understand that separation can be a difficult time for both parents and children. We will work with you to find practical solutions and to help minimise the negative impact on children.

Link to BBC article: http://www.bbc.co.uk/news/education-11380470

Read more about Hart Brown's Family Department

Cheryl & Ashley Cole - How quick will their divorce really be?

Today, the media are reporting that Ashley and Cheryl Cole’s divorce will be finalised in the High Court today.

However, this is not correct. The Decree Nisi will be pronounced today in court, which is the first decree in the divorce proceedings. There are two decrees in any divorce, the second one being the Decree Absolute. It is only when the Decree Absolute has been pronounced that the marriage will legally be dissolved.

There is a time delay of six weeks and one day once the Decree Nisi has been pronounced and before the Decree Absolute can be applied for by the Petitioner in the proceedings. The reason for this delay is that this is deemed to be a ‘cooling off’ period, and during this time, the parties are still legally married. The purpose of this is that it gives both parties time to consider a reconciliation. Contrary to what the media portray, a divorce is not obtained so easily in England and Wales and the court must be satisfied that there are valid reasons and that both parties have fully considered the consequences. Therefore, Ashley and Cheryl will remain married for at least another six weeks and one day!

Cheryl and Ashley’s divorce, as with many celebrity divorces is being termed by the media as a ‘quickie divorce’. However, the concept of the ‘quickie divorce’ does not exist and Cheryl and Ashley will be proceeding through exactly the same divorce process as any other couple. There is of course also the financial settlement that appears to have been negotiated which is separate to the divorce proceedings. It can take some time to reach a financial settlement, especially where there is a considerable amount of wealth.

Link to news story:-

http://www.bbc.co.uk/news/entertainment-arts-11173177

Anne Thomas, Family Department, Hart Brown Solicitors