Saturday, August 30th, 2008
The Regulatory Enforcement Sanctions Bill, which is designed to reduce the burden of red tape on honest businesses while clamping down on rogue traders, has received Royal Assent.
The aim is to create a more flexible, risk based approach which specifically targets the worst offenders. Ministers claim it contains no new paperwork for harassed businesses and should help firms in England and Wales save an estimated £64m.
One of the main proposals is that regulators should be given additional powers to tackle businesses which put people or the environment at risk by cutting corners and then use the savings they make to enable them to undercut more law-abiding companies.
There is to be a new body, the Local Better Regulation Office, to oversee enforcement. It will support local authorities and is designed to improve and simplify regulation in such areas as environmental health, trading standards, and alcohol and gambling licensing legislation.
Regulators will be encouraged to focus enforcement effort on businesses most likely to cause harm, at the same time as improving advice and reducing unnecessary burdens for honest businesses.
Friday, August 29th, 2008
Four out of five people aged between 25 to 34 do not have an up-to-date will, according to research carried out for the Law Society.
One in five questioned who were over the age of 65 didn’t know whether they had an up-to-date will and two out of five people who were widowed, divorced or separated were equally unsure about whether their will was current and appropriate for their circumstances.
The Law Society points out that there are numerous reasons why someone might want to change or update their existing will. These include divorce or separation, buying or selling an asset such as a property, having children or starting a business.
Of course, millions of people never make a will at all and of those who do, many use DIY kits from local shops or hire unqualified people to help them.
Unfortunately, if you do not have a properly drawn up will you run the risk of creating a great deal of stress and heartache for you family, some of whom may not inherit your estate in the way that you would have wanted.
Many people believe that if they die without making a will then all of their estate will simply pass on to their spouse. This is not true. If you are married but have no children then only the first £200,000 together with any personal possessions and half of what is left of the rest of the estate will automatically pass to the widow or widower. The rest will pass to the deceased spouse’s parents or if they are no longer alive then to brothers and sisters. If there are no siblings then the remainder will pass to nephews and nieces.
If you are married with children then the surviving spouse inherits only the first £125,000 of the estate and rest will eventually pass on to your children. The rules for the division of the estate in these circumstances are quite complicated so please contact us if you would like more detailed information to suit your individual needs.
The President of the Law Society, Andrew Holroyd, said: “When circumstances change, you should contact your solicitor to see if you need to review your will. When someone is in the process of a major life-changing event such as moving into a new home or getting married, often the last thing on their mind is their will. However, it should be a high priority. Do not let it gather dust.”
The last few years have seen a rise in the number of people challenging wills because they feel they have not been provided for in the way they expected. This can result in conflict between family members causing lifelong rifts.
Most of these problems can be avoided if you make sure your will is properly drawn up and then kept up to date to reflect your changing circumstances.
We offer an expert Will writing service for simple inexpensive Wills right through to specialist tax planning wills. Contact us now for a more information or a fixed price quote.
Thursday, August 28th, 2008
The Government has announced that its plan to extend the Landlord’s Energy Saving Allowance to corporate landlords has received formal state aid approval from the European Commission.
The scheme is effective from 8th July this year. Landlords can claim up to £1,500 a year per property against the cost of installing energy-saving items such draught proofing and floor insulation.
Visit http://www.hmrc.gov.uk/manuals/pimmanual/PIM2015.htm for details on how to apply.
Monday, August 25th, 2008
“My employer has been looking to sack me for some time due to allegations made by my colleagues. They had an investigation but didn’t follow procedure and I found it too much to take. I resigned. I managed to find another job quite quickly, but soon lost this as people heard about what happened. They say they would have sacked me anyway if I had stayed and are only offering me £8,000 despite me now being out of work for months, probably never being able to work in my field of work again. What are my rights?”
It sounds like you may have a strong case if you issue a claim at an Employment Tribunal for what is called ‘Constructive Unfair Dismissal.’ This means a claim that your employer’s actions, in not following procedure, meant you had no other option but to resign. You would ask the Tribunal to consider your employer’s actions as amounting to their having dismissed you unfairly.
If successful, you can claim a basic award based on length of service and size of salary for compensation for the wages you have lost during the time in which you were unemployed, and also for the fact that you lost your job unfairly. Calculation of compensation depends upon a number of factors that we can advise you on in detail.
The fact that you obtained another job complicates matters. The normal interpretation would be that a Tribunal orders your first employer to pay compensation for your losses until the time you obtained your next employment. After this point, your losses would be interpreted as being caused by your current employer and not your first employer.
Compensation awarded for loss of earnings and loss of job can be substantial. However, in your case, it was only a short time until you obtained your next employment. It appears that your losses caused by the actions of your first employer may be limited.
Depending upon the evidence you can present at a Tribunal, you may be able to claim for the period after you gained your next employment and you should seek legal advice about your circumstances in detail.
It may be that you have enough evidence to prove your first employer’s actions caused you to be fired from the next employment. In so, the calculation of your losses may continue after you gained (and lost) subsequent employment.
In these circumstances, the amount you are entitled to claim in compensation would be increased substantially when considering your lost earnings, and also your ability to gain future employment in your chosen field. You may also want to seek legal advice about whether you can claim for the costs of retraining in a new field of employment.
It is important to note that you are under a duty to keep your losses as low as possible, which is termed ‘mitigating your losses.’ Any Tribunal will take into account how active you have been in searching for subsequent employment when considering your award of compensation. Any award will also be reduced by the amount of social services benefits, if any, that you have received whilst unemployed.
If you have been dismissed unfairly or have an employment dispute then talk to Jonathan Friend now about your own circumstances. Mention this article to obtain a free 10 minute preliminary consultation.
Remember this article only gives general guidance. You should not act or omit to act without getting legal advice specific to your circumstances. We will be happy to help if you contact us.
Wednesday, August 20th, 2008
Generally, it is the author who owns any copyright to the work they create.
However, if an author is employed, and creates a piece of work during the course of his employment, the employer will own any copyright to the work.
In cases where work is being commissioned by one party, to be made by a third party, (who is not an employee), the parties would normally agree in a written contract that the commissioner owns any copyright to the finished piece, or that it is assigned from the author to the commissioner.
In rare cases, copyright ownership may be agreed to be owned by a third party, with usage rights to the commissioner, given by licence.
In other cases, copyright is assigned to the commissioner, but usage is limited through a written contract in which usage is limited.
Whether you are an employer, commissioner or author, if you want to own the copyright to a piece of work it is important to agree this before starting work on the pieces. Contact Jonathan Friend now to discuss copyright contracts or assignment.
Remember this article only gives general guidance. You should not act or omit to act without getting legal advice specific to your circumstances. We will be happy to help if you contact us.
Monday, August 18th, 2008
Nowadays, most employers are aware that they are required to inform their employees of their right to request to work beyond the age of 65. But age discrimination law may be developing yet further. This is as a result of the European Directive which the Age Discrimination Regulations 2006 put into UK law.
There is an argument being fought, that the right of employers to decline their employee’s requests is incompatible with the European Directive. If so, the Age Discrimination Regulations 2006 will be changed.
HeyDey (part of Age Concern) referred this question to the European Court of Justice in July 2007, and we should know the European Court’s findings by early 2009.
HeyDey may be unsuccessful in their challenge. A recent ruling on a similar provision in Spanish law, stated that the right to refuse such requests was justified as ‘a proportionate means to achieve a legitimate aim.’ It was therefore compatible with the European Directive.
But that was Spain. The European Court may decide that what is justifiable or proportionate in Spain is not so in the UK.
This is an area which employers should watch, and consider implementing policies. In this way employers are able to reduce their legal liability by dealing with their employees consistently, making it harder for any discrimination claim to arise, or be substantiated.
To discuss implementing employment policies, or employment issues, call Jonathan Friend now. Mention this article to get a free 15 minute consulation.
Wednesday, August 13th, 2008
Don’t forget the 1 September deadline for claiming relief from business rates.
Small Business Rate Relief applies where the Rateable Value (RV) of business premises is less than £15,000 (£21,500 in London). The amount of relief given depends on the value of the property, but broadly equates to 50 per cent relief where the RV is less than £5,000. The relief reduces on a sliding scale for RVs between £5,000 and £15,000.
Claims have to be made to your local council by 1 September each year, so there is no time to lose.
Property owners are also reminded that changes to the reliefs from business rates were introduced on 1 April 2008. Subject to designated exemptions, empty business properties are now only exempt from business rates for the first three months that they are empty. Industrial and warehouse premises qualify for a six month exemption. After that, full business rates are normally payable.
The scheme described above applies in England and Wales only.
Charities and community amateur sports clubs may be able to obtain a reduction of 80 per cent on business rates bills. In some areas, this could be reduced even further. Other non-profit organisations can apply for up to 100 per cent discretionary relief.
Prior to 1 April 2008, empty commercial property was exempt from the payment of business rates for 3 months and received 50 per cent relief thereafter. Vacant industrial property was exempt altogether. From 1 April 2008 empty offices and shops have received 100 per cent relief for the first 3 months and industrial properties for six months. Thereafter, both receive no relief.
On 13 August, the Independent reported that a planning application had been made, in the wake of the changes to rates payable on empty business premises, to demolish 37,000 square feet of a business park in Sunderland that was unoccupied.
For comprehensive business advice contact Paul Slot now. Free initial consultation if you mention this article.
Sunday, August 10th, 2008
When the financial arrangements are being made on divorce, the court must ask itself whether these are fair and do not discriminate against one party bearing in mind all the circumstances.
Recently, a woman appealed to the Court of Appeal regarding the orders for ancillary relief (as they are known to lawyers) made for her benefit following her separation from her husband. The couple had married in 1992 and had a child that year. They separated twelve years later. The wife had inherited a substantial sum which the couple lived off without working for the first five years of their marriage. In 1997 they used her capital to set up a car wash business, which the husband ran, paying a below-market rent to his wife.
When they separated, the couple’s assets were valued at a little under £1.4 million, which included the car wash business. The judge concluded that the yardstick of equality was applicable to the division of the assets and ordered the transfer of the building housing the car wash to the husband.
The wife had argued that her husband’s misconduct had been so grievous as to justify departing from the normal 50:50 split. Indeed, she argued that his application for ancillary relief should be rejected altogether. This argument was rejected on the facts in the lower court, as was her contention that since she had introduced all the assets to the marriage, they did not constitute ‘matrimonial assets’ for the purposes of making an equitable division. She appealed to the Court of Appeal.
In the Court of Appeal, it was held that the assumption of equality of division of assets could only be departed from if there were a good reason for so doing. In the present instance, the assets had been disproportionately brought into the marriage by the wife. Whilst it made sense that the ex-husband should be able to continue in business, this did not mean that the property he let should be transferred to him.
The Court therefore concluded that the ex-husband should be allowed to continue to occupy the premises, paying rent at half the present market rate, and that on the sale of the premises, the money received should be divided equally. The judge declined to transfer the car wash premises into joint ownership because to do so would have adverse tax consequences.
In practical terms, the decision split the family assets so that approximately two thirds remained with the wife.
“The judge made the point that each case must be dealt with on its own facts and that this case did not set a precedent,” says Marie Stock. “It is instructive to note that as is normal, arguments relating to the conduct of the husband were not considered relevant.”
Contact Marie Stock or Kevin Smyth for advice on all family law issues.
Monday, August 4th, 2008
Boy Injured on Bouncy Castle – Judgment Overturned
The Court of Appeal has overturned the High Court’s ruling that a boy who suffered brain damage after he was kicked in the head while playing on a bouncy castle should be awarded compensation that could have amounted to £1 million.
Sam Harris, who was 11 years old at the time of the accident, had been playing on a bouncy castle set up in a field behind the home of Catherine and Timothy Perry. The Perrys had hired a bouncy castle and a bungee run for their triplets’ birthday party. Sam, who was passing with his father, asked Catherine Perry if he could join in.
Whilst on the bouncy castle Sam was kicked in the head by a 15-year-old boy doing a somersault. Sam’s skull was fractured and he suffered a very serious and traumatic brain injury. As a result, he now has severe behavioural problems and requires round the clock care.
In May, the High Court found the Perrys liable for damages. In its view, the accident had been caused because they had not provided adequate supervision for the children playing on the bouncy castle and the bungee run. The Court found that there should have been someone there to prevent the older boy from using the bouncy castle at the same time as the younger children and to ensure that dangerous play was prevented. The hire contract for the castle also stipulated that it should be under constant supervision whilst in use. At the time of the accident, Mrs Perry had her back turned away from the castle while attending to a child on the bungee run.
The Perrys appealed against the High Court’s decision, arguing that they had acted no differently from parents up and down the country.
The Court of Appeal judged that Mrs Perry could not be blamed for what was a ‘freak and tragic accident’. Lord Chief Justice Lord Phillips said, “The manner in which she was supervising activities on the bouncy castle and the bungee run accorded with the demands of reasonable care for the children using them.” He added, “It is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so.”
The Court judged that Mrs Perry had acted reasonably in thinking that she could supervise both play activities at the same time and the injury sustained by Sam, whilst severe, could not reasonably have been foreseen.
As a result of this ruling, Sam will not receive compensation for his injury. However, it is thought likely that his parents will apply to take his case to the House of Lords, despite the Court of Appeal having refused their request for permission to appeal.
Sunday, August 3rd, 2008
Landowners who wish to prevent their land becoming part of the public highway should take note of two recent decisions in the House of Lords.
The cases dealt with what constitutes a landowner’s ‘sufficient intention’ not to allow their land to be dedicated as a public highway.
Land can become a public highway by being added as such to the Definitive Map maintained by the county council, provided an application is made. The Definitive Map shows publicly accessible bridle ways, footpaths and byways and once entered onto the Map, the status of the highway is conclusively proved.
For property owners who do not wish their land to become open to the public, the correct strategy is therefore one of prevention. Until recently, all that was necessary to prevent an application for the Definitive Map to be altered was for the landowner to write to the council opposing it or to demonstrate some prior right over the land in question (i.e. that it is let to someone else). However, the Lords’ decisions mean that this is no longer sufficient.
It is now recommended that any landowners who wish to oppose an application, or to prevent one being made, consider taking further measures, such as erecting appropriate signs advising that the land in question is not a public right of way and obstructing paths. Trespassers should be advised that the land concerned is not open to the public.
It is recommended that evidence should be retained of all measures taken.
If land is used as a public right of way for 20 years without steps being taken by the landowner to preserve their right to exclusive use of the land, and without demonstrable intent to oppose dedication of the land as a public highway, the right to prevent the land concerned being dedicated as such will be lost.
Says Paul Slot, “Landowners are also advised to review periodically the status of any measures they have put in place (e.g. signs and obstructions) and to repair or replace them as necessary. This will enable them to demonstrate their continuing intention to retain their exclusive rights over the land, should the question arise.”
For more advice on rights of way or any matters relating to proerty contact Paul Slot now.
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