Early Neutral Evaluation: Another Victory for Alternative Dispute Resolution

/in /by

Following the Woolf Reforms in April 1999 with the replacement of the Civil Procedure Rules (CPR) meant that prospective litigants were to make every effort to settle their differences via pre-action protocols with the intention of avoiding Court proceedings.

The most common aspect of ADR was mediation. Whilst CPR required the Court to manage cases actively by encouraging each party to use ADR the rules fell short of making ADR mandatory. However the risks of costs penalties that likely befall those who ignore such offers of ADR were sufficient to bring them into line. Even if you are successful, an unreasonable refusal to mediate would impact upon your cost recovery.

On the 1st October 2015 the CPR concerning the court’s powers of case management were amended to ‘any other step or make any other order for the purpose of managing the case and furthering the overriding objective including hearing an Early Neutral Evaluation (ENE) with the aim of helping the parties settle the case’

Early Neutral Evaluation is an alternative dispute resolution procedure whereby the parties agree to submit their dispute to an independent third-party expert to provide a preliminary view on the merits of the parties’ respective positions.

The evaluation is not binding on the parties unless the parties elect for it to be and is entirely without prejudice. The process is particularly useful where the parties have very differing views of the prospects of success and perhaps an inadequate understanding of the risks of litigation itself.

Until now it has not been clear whether the court could impose ENE on the parties without their consent. In Lomax v Lomax, decided on 20 May 2019, Parker J held that it could not. She held, “on the finest of fine balances”, that she could not order an ENE essentially because the Rules were not clear when one party had not consented to ENE.

The Court of Appeal set aside Parker J’s decision on 6 August 2019. In the leading judgment Moylan LJ’s view on the words “encouraging” and “facilitating” in CPR 1.4(2)(e) did not lead to the implication that consent was required nor was there any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties was required.

The decision by the Court of Appeal in Lomax v Lomax has given the court more power in directing ADR no matter how entrenched each party may appear to be.

ENE can be an effective means of dispute resolution to get a practical view of the merits of each parties respective positions without spending large amounts on litigation.

Anton Bilinski
Legal Executive

Wills for Second Marriages

/in /by

There are a large number of people who have been married more than once and who have children from previous marriages or relationships.

It is important to understand how the law works if you die without leaving a Will in this situation. A marriage automatically revokes any existing Will unless that Will was made in contemplation of marriage.

If you remarry and do not remake a Will, when you die leaving this second spouse and children from a previous relationship and perhaps children from the current marriage; your estate will be distributed under the Intestacy Rules. Your new spouse will inherit the first £250,000 of your estate. The remaining value of your estate is then split into two. The new spouse will inherit the first share outright and the second share will pass to your children equally.

Depending on the value of your estate, your new spouse could potentially inherit the whole of your estate with nothing passing to your children.

You must review your circumstances and make a Will after re-marriage or in contemplation of that marriage.

You should also consider that if you and your new spouse make mirror image Wills, there is nothing to stop your spouse from changing their Will at any time after your death.

To protect your children you could consider including a trust in your Will. There are various types of trust; in particular, a life interest trust or right of residence. This allows for your new spouse to benefit from the trust assets during their lifetime, but after their death, the assets can pass to your children. This ring fences the assets in the trust from your spouse’s assets so that the trust assets cannot be given away under their Will.

The usual asset to place in such a trust is your share of your property. It is important that if you own the property jointly that you hold as tenants in common. This means that both owners have their own individual share in the property which would pass under the terms of their respective Wills rather than pass automatically by survivorship to the surviving spouse.

Our will writing team can provide guidance, explaining how to ensure that you provide for your loved ones after your death.

Sarah Bruce
Legal Executive Wills Trust & Probate

Discrimination Claims Against Employers.

/in /by

It is the Equality Act 2010 that establishes the ability to bring action for unlawful discrimination. It is only in relation to a “protected characteristic” that action can be brought. The reason for the unfavourable treatment/discrimination must be due to a “protected characteristic” for the individual to be afforded protection under the act. So what is a “protected characteristic”? The Act dictates that the following are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Each protected characteristic has a statutory definition under the Act and therefore must be looked at carefully before unlawful discrimination can be established. Interpreting the meaning of each protected characteristic gives rise to various case law.

A recent case heard by an Employment Tribunal on 10th September 2019 (Conisbee v Crossley Farms Ltd and others) held that vegetarianism was not a “belief” qualifying for protection under the Act. Mr Conisbee alleged that he had suffered discrimination on the ground of religion or belief, his belief being vegetarianism. The Employment Tribunal held that although his belief was genuinely held and was worthy of respect in democratic society it failed to meet the other legal hurdles for protection under the Act. In their judgement the Tribunal ruled that it did not have a similar status or cogency to religious beliefs.

This decision does not have to be followed by other Tribunals in the future but is an interesting approach to what amounts to a “belief” for the purpose of the Equality Act 2010.

Who is protected? Under the Act there is a wide range of potential claimants for discrimination claims. This includes the following:-

  • Employees
  • Job applicants
  • Contract Workers
  • Agency Workers
  • The police
  • Individuals in a business partnership

If you consider you have suffered unlawful discrimination then please seek our advice. Do not delay. There are strict time limits for bringing a claim to an Employment Tribunal, whereby claims must be brought within three months of the date the discrimination occurred.

Jennifer Carpenter
Employment Specialist solicitor

Prescriptive Easements: What Are They?

/in /by

A prescriptive easement is a legal right enjoyed over another’s freehold property and which is obtained through long use. It is similar to adverse possession, but in this case relates to a right to use another person’s property in a particular way rather than claiming ownership of the land. The long use is combined with a belief (often a fallacy) that the right was originally granted in a deed.

More…

Chartered Legal Executive Cathy Buck. Adams Harrison Haverhill office

To get a copy of Cathy’s full article please send us a message via our contact form below.

[contact-form-7 id=”5163″ title=”Contact form 2 Article request”]

Tenant Fees Act 2019

/in /by

The Tenant Fees Act 2019 came into force on 1st June 2019.

Its provisions apply with immediate effect to all tenancies created on or after the 1st June 2019 (assured and assured shorthold tenancies including student lettings) and will apply to all other existing assured and assured shorthold tenancies from the 1st June 2020. The prohibitions apply to arrangements with a tenant, the tenant’s guarantor and a person acting on behalf of the tenant

The Act permits a landlord only to charge the tenant for the following under the terms of an assured/assured shorthold tenancy:

  • Rent;
  • A tenancy deposit which is capped to 5 weeks’ rent if the annual rent is £50,000 per annum or less and up to 6 weeks’ rent of the annual rent exceeds £50,000.
  • Holding deposit (capped at 1 week’s rent) to reserve a property before the grant of a tenancy;
  • Event of a default. Payments for loss of keys or other security devices or failure to pay rent on time or other breach of the tenancy. For failure to pay on time, the sums recoverable are limited to interest on the late payment of rent and the rent has to have been outstanding for 14 days or more for the interest to become due;
  • Payment for the variation, assignment or novation of the tenancy (but this is capped at £50 or reasonable costs);
  • Payment on early termination of the tenancy (eg surrender fee);
  • Council tax (and other utilities);
  • TV licence;
  • Telecoms.

Landlords and letting agents cannot require tenants to make any payment that is not a permitted payment. Prohibited payments include:

  • Tenancy set up fees;
  • Viewing fees;
  • Credit check fees;
  • Inventory check fees;
  • Check out fees;
  • Fees for professional cleaning services.

Trading Standards is the enforcement authority for the prohibitions applying to landlords and letting agents and repayment obligations in relation to holding deposits. An enforcement authority can impose a financial penalty and require a landlord or letting agent to repay the tenant or relevant person any outstanding prohibited payment or holding deposit plus interest. The Act also makes provision for the tenant or relevant person to recover unlawfully charged fees from the First-tier Tribunal.

It is important to note that a section 21 notice cannot be given to recover possession of the property until the landlord has repaid any unlawfully charged fees or unlawfully retained holding deposit.

If you are unsure or require further advice on these changes and how they can affect you please contact Anton Bilinski who is able to guide you through these changes and act for you when a landlord or tenant dispute arises.

Anton Bilinski
Legal Executive
Litigation Department

What Should You Be Paid Whilst On Holiday?

/in /by

We are currently in the midst of a very popular time to take annual leave from work, but the law regulating and dictating what someone should be paid whilst on holiday from work is far from clear.

The Working Time Regulations 1998 (“the Regulations”) state that all workers have the right to 5.6 weeks paid leave each year. This equates to 28 days for a full time worker, including all public and bank holidays of which there are 8 each year. However, some workers are entitled, possibly under a contract of employment, to annual leave in excess of the statutory minimum.

Under the Regulations workers are entitled to be paid during statutory annual leave at a rate of a week’s pay for each week of leave. The question then is what is a “week’s pay”? How it is calculated depends on a number of factors and in particular distinction is made between a worker with normal working hours and those with no normal working hours. However, recent cases in the European Court of Justice that have been applied in the Employment Appeal Tribunal have stated that a worker needs to receive their “normal remuneration” during periods of statutory annual leave. This means that the way in which we calculate a week’s pay under the Employment Rights Act 1996 in the UK is incompatible with The Working Time Directive.

Article 7 of the Working Time Directive states that workers must have the right to “paid annual leave” but dos not state how this should be calculated. In the case of Williams and others v British Airways Plc [2011] the European Court of Justice held that a worker is not just entitled to basic pay but any remuneration that is “intrinsically linked to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided”. Also those that relate to the “personal and professional status” of the worker. This would include payments relating to a worker’s seniority, length of service and professional qualifications.

The idea is that you should not be worse off financially as a result of exercising your statutory right to take holiday. With this in mind contractual commission and bonuses should be taken into account when calculating a week’s pay for the purpose of holiday pay. Otherwise you could be deterred from taking time off work due to the financial disadvantage you would be in. This was confirmed in the case of Lock v British Gas Trading Ltd and others [2014].

So, if your pay packet is lighter because you have taken some holiday this month or last it is possible that your employer has not correctly calculated your holiday pay. You may have a claim for the difference in pay. If you wanted to consider pursuing a claim seek our advice quickly as there are strict time scales for bringing such claims.

Jennifer Carpenter

Employment law specialist solicitor

Conveyancing Referral Fees

/in /by

You may or may not be aware that a lot of Conveyancing legal firms pay referral fees to estate agents. In exchange for this estate agents refer Conveyancing work to them.

Typically a legal firm will pay between £40 – £200 per transaction to an estate agent, who will then refer the clients to them.

There are two main issues with this.

  • The first is that the estate agents may not refer the clients to a particular firm based on that firm’s reputation but based solely on the fact that they are being paid a referral fee. In addition the client may not always be advised that a referral fee is being paid in respect of their matter and therefore may not be aware that the solicitors are effectively paying for their work, and will believe that the reason they are being referred to that practice is because they are good.
  • Secondly the client also needs to be careful that they are not being charged for any referral fees by way of increased legal fees, again this is not always disclosed when applying for costs.

Adams Harrison do not pay referral fees. We pride ourselves on the fact that much of our work is repeat business from satisfied clients, or that a client has come to us having been referred to us by a member of their family, or a friend, who has used Adams Harrison for legal services in the past. See our testimonials on the website.

If a referral fee is being paid by the estate agents to your legal advisor then your legal advisor should advise you of this fact and seek your consent to the same. You need to think carefully whether you would wish to instruct a firm that has to pay for it’s work rather than relying on its reputation.

Tracy Spilsbury

Head of Residential Conveyancing

Property Dispute Litigation Frequently Asked Questions

/in /by

We deal with an array of issues and matters that arise from property ownership and possession, here are three of the most common points upon which our advice, and if necessary representation is sought:-

Can you claim land as your own if you maintain it?

In general it is possible to claim what is known as “adverse possession” if you have been occupying/using land that you do not own, rent or have express permission to use, provided it has been continually occupied by you or a previous owner for in excess of 12 years without any objection from the registered owner.

Can you claim unregistered land as your own?

You may own property, land or both that despite being legally owned by you is not registered with the land registry as yours. This could be that the area in question has not be transferred, bought or sold ever since it became compulsory to register in your area; or it could be that there was a mistake when land registered to you was originally registered and land was excluded from the title plan. In either case an application to the land registry is necessary. Following receipt of the application the land registry would then notify surrounding land owners to ascertain if they have any objection to your application.

Does the Land Registry title plan show the actual boundary of your land/property?

Disputes over boundaries are very common but are far from straightforward. A boundary feature can be a fence, wall, hedge, ditch, piece of wire or sometimes even just the edge of a driveway. The title plan for your property, and that of your neighbour does not tell you exactly where your legal boundary is. The registered title and plan has only a general boundary. Involving a surveyor, coupled with legal advice can assist.

Will Writing. Is DIY A Good Idea?

/in /by

A Will is one of the most important documents you will ever make but an increasing number of people are preparing homemade Wills, possibly in an attempt to cut costs. Although DIY Wills are relatively inexpensive, the legal costs involved to remedy their potential errors may well exceed the cost of a professionally prepared Will. Moreover, it may not be possible to rectify mistakes that are discovered after your death.

What are the dangers of a DIY Will?

Off-the-shelf DIY Will kits are often poorly written, leading to confusion over what assets have been left and to whom. Common errors that can occur in the process of making a DIY Will include incorrectly signing or witnessing the Will, which renders the document invalid. Furthermore, a beneficiary can compromise their inheritance by acting as a witness.

If a Solicitor or professional will-writer has not been involved in the preparation of the Will, then there has been no ‘independent evidence’ that the Will represents the deceased’s true wishes and that they had capacity to make it. This encourages costly and lengthy contentious probate litigation.

Even if you successfully avoid these pitfalls and create a valid document using a homemade Will, there is always the possibility that nobody is able to locate your Will when it is needed. By using a regulated Law Firm, not only can you be certain your Will contains your exact wishes and instructions, you can be confident your Will will be stored safely. Most law firms will allow you to store your Will in their strong room free of charge.

Who is at risk?

Everyone is at risk of being cheated by salesmen offering to write Wills and establish Trusts at low prices, but it is the elderly who are frequently targeted by Will-writing companies who often apply high pressure selling techniques.

Our advice

Do not be tempted to cut corners when it comes to writing your Will. Doing so could result in high legal costs or, at worst, an invalid Will. The cost of a professionally written Will includes the advice given by a solicitor, who is subject to regulation by the Solicitors Regulation Authority, unlike many Will-writers who are not legally qualified or governed by regulation. Seek the help of regulated Solicitors and relax with the peace of mind that your wishes will be carried out.

 

Hayley Ford, Solicitor Wills & Probate Department

Why make a Lasting Power of Attorney (LPA)?

/in /by

Lasting Powers of Attorney could be considered as a type of insurance. Hopefully they would never be needed but if they are you are in a much better position for having taken one out.

A Lasting Power of Attorney can protect you and your assets if you became incapable of managing your own affairs.

You can become incapable of managing your affairs through various means and they are not just for the elderly. Illnesses such as dementia or Alzheimer’s are often the main reason for needing the document but they can be needed after an accident, stroke or other illness not just limited to the elderly.

You can only make a Lasting Power of Attorney while you have full capacity. They may or may not ever be needed. You do not lose the ability to manage your own affairs; they are only used if necessary and will only be used with your permission or upon receipt of a report from a medical professional to say that you can no longer manage your affairs. If you were to become incapable of managing your affairs and you do not have a Lasting Power of Attorney in place, your family would have to go through the lengthy and costly procedure of obtaining a Deputyship Order.

There are two forms of Lasting Power of Attorney. One is for your property and financial affairs which enables you to appoint someone to look after your finances if you become incapable. The other is for your health and welfare under which you can appoint someone to make decisions about medical treatment, where you live etc.

If you wish to discuss making a Lasting Power of Attorney either for Property and Financial Affairs or Health and Welfare, please contact one of our private client team who would be very happy to assist you.

For further advice or assistance please contact our Private Client Department