Friday, November 27th, 2009
A father who claimed a judge in contact proceedings was biased against him has won his appeal to have the case heard again by a different judge.
The father had applied for contact with his son. The boy’s mother opposed the application because she said the father had subjected her to domestic violence. A fact-finding hearing was held to examine the allegations.
The judge accepted the mother’s allegations and said they were so serious that the father’s application for contact was almost bound to fail. The father then asked that the judge should step down from hearing the case because he had shown bias against him.
He said that the judge had effectively decided the issue of contact before the full hearing had even begun. He asked that the fact-finding hearing be heard by a different judge who could then go on to determine the issue of contact.
The judge refused so the father took the case to the Court of Appeal. It has now ruled that although the judge had not shown any bias, he had been wrong in making what appeared to be a decision on the issue of contact without having heard any detailed evidence or argument.
The Appeal Court held that the judge’s findings about the domestic violence should stand, but the issue of contact should be determined by a different judge.
Please contact us if you would like more information about this or any aspect of family law.
Tuesday, November 24th, 2009
A 66-year-old receptionist who brought an age discrimination claim against a medical practice has received £6,000 in an out-of-court settlement.
Ruth McNeil left a permanent job with Marks and Spencer last September to work for the practice in Lothian in Scotland. However, when she presented her P45 giving her date of birth she was told she could not be offered a contract.
She brought a claim of age discrimination with the backing of the Equality and Human Rights Commission in Scotland.
Ms McNeil said: “To have been offered a job I was really looking forward to on the basis of a successful interview, only to be told that due to my age I could not be kept on was devastating.
“I was never asked my age at the interview and never thought, given my skills and experience, that it would have been relevant. To make matters worse I was told that I did not look my age and it was suggested that had they known I would never have been employed.”
The medical practice has agreed to pay her £6,000 compensation. The practice cannot be named under the terms of the settlement.
Discriminating against employees and job applicants on grounds of age is illegal under the Employment Equality (Age) Regulations 2006.
Please contact us if you would like more information about this issue or any other matter relating to employment law.
Monday, November 23rd, 2009
The current system of funding care for the elderly has often been criticised because some people have to sell their homes and pay hundreds of thousands of pounds for their care while others pay nothing at all.
It means that for some people, the inheritance they hoped to pass on to their children gets used up in care costs.
Now the Government has begun a public consultation on proposals to reform the system.
The proposals are contained in a Green Paper called, Shaping the Future of Care Together, which highlights the time bomb facing us as the population ages. It estimates that there will be 1.7m people requiring care by 2026.
Their care bill will be too great for the taxpayer to support and so the Government is looking at three possible ways to meet the cost. One involves a dual approach in which the state and the individual share the costs, the second is an optional insurance scheme which would cost individuals up to £25,000 over a working lifetime and the third is a compulsory insurance scheme which would cost up to £20,000.
People who pay into the insurance schemes would receive care for free when they needed it.
The proposals may be a step in the right direction but are still only at the consultation stage and with an election coming up before too long, they may never come into effect.
It means that the current system is likely to remain in place for several years.
The capital threshold at which the elderly start paying for their care is only £23,000 – only a fraction of the cost of an average house - so it means some old people will still have to sell their homes while others get care for free.
Even if one of the new proposals does eventually come into effect, it will only cover the cost of the care – other expenses like accommodation and food will still need to be met by the individual or their families.
One way to ease the problem is for people to start planning now for their old age so they can minimise the cost and the stress. For example, it may be possible to protect some assets by using trusts. It needs careful planning but could save elderly people and their families thousands of pounds in future.
Please contact us if you would like more information about funding care for the elderly.
Saturday, November 21st, 2009
Two companies belonging to the same group have failed to exercise their right to break a commercial lease because only one of them served notice on the landlord.
One of the firms involved was dormant and was a completely owned subsidiary of the other, active company. Together they had been granted a ten-year lease on a warehouse.
The active company then served notice on the landlord that it wanted to exercise the break clause. The name of the dormant company was not mentioned in the notice.
The landlord argued that the notice was invalid as it did not come from both companies. The companies responded by saying that a reasonable landlord would have known that giving only one name had simply been an administrative error, especially as one of the companies was dormant, and so the notice was valid.
However, the High Court has ruled in favour of the landlord. The judge said the notice was invalid because it created real doubt as to whether it came from both companies, especially as there had been nothing in the communications between the two sides to suggest that a reference to one of the companies should be taken as a reference to both.
Please contact us if you would like more information about commercial leases or any aspect of commercial property law.
Friday, November 20th, 2009
A woman who helped her brother buy a house has been told she has no claim on the property and cannot force it to be sold to enable her to get her money back.
The house was bought in the brother’s sole name in 1999. The sister said she contributed a substantial sum of money towards the purchase on the basis of an express agreement that he would hold the property on trust for her.
She said she didn’t register an interest in the property at the time because she had complete trust in her brother and believed that he would reimburse her.
The property was then let out for about five years with the sister acting as her brother’s agent.
However, in 2004, the brother decided to move into the house with his wife. The relationship between sister and brother then broke down. The sister sought an order for the sale of the property so she could get her money back. She told the court she would not have made such a substantial contribution towards the purchase price if she had not thought she was acquiring an interest in the property.
However, the court has ruled against her. It held that, on the balance of probabilities, the money she had contributed was no more than an unsecured loan for which she had expected a substantial commercial return, to be earned from letting the property.
If it was not a loan, it was difficult to see why the property had not been purchased in both names. The sister’s claim for a beneficial interest in the property was therefore dismissed.
The case highlights the need for people to draw up the appropriate legal documents when making substantial investments of this kind. Casual verbal arrangements can become blurred and lead to disagreements several years down the line – even among close family members as in this case.
Please contact us if you would like more information about this or any aspect of buying and selling property.
Tuesday, November 17th, 2009
UK companies are stepping up their approach to dealing with bad debts, according to a new survey by the business information provider, Creditsafe.
Its research shows that one in four businesses intend to take legal action over the coming year to enforce the recovery of outstanding debts. The tougher approach comes as six out of 10 businesses believe they will have to contend with an increase in defaulted payments for the rest of this year.
The survey also revealed that one in five businesses intend to introduce more stringent penalties for late payment. In some cases, this will involve charging interest at 100%. The Creditsafe research discovered that a television production agency has modified its terms and conditions to allow it to charge 100% interest on invoices not paid within its 30 day settlement period.
A Creditsafe spokesman said: “While enforcement of contractual penalties used to be a last resort, increasingly companies are embracing legal action as soon as payments slip beyond the timeframe set out in their terms and conditions.
“We could see the courts increasingly overburdened with claims and increasing numbers of involuntary insolvencies as firms demand immediate payment of outstanding invoices.”
The survey confirms that more and more businesses are prepared to take action to protect their liquidity position and, of course, it is the firms who are the most proactive who are the ones most likely to recover money owed to them. Firms who sit back and wait are the ones most likely to lose out.
In most cases, the matter can be resolved without having to go to court. A solicitor’s letter outlining the action that may be taken if the overdue amount is not paid is often enough to ensure that the debt is settled promptly.
Please contact us if you would like more information about recovering debts.
Tuesday, November 17th, 2009
A woman has received £13,500 for the pain she suffered after some gauze was left in a surgical wound following an operation.
The woman had surgery to treat a sinus problem at her local hospital in 2005. The hospital informed nurses at the woman’s GP practice that the wound had been left open and lightly packed with Proflavin gauze.
The nurses were asked to remove the gauze after a set time and then continue to dress the wound as required. A nurse then dressed the wound as requested but did not remove the gauze before doing so.
The wound was dressed again several times over the next two months but started producing discharges. Eventually, the wound became unbearably painful and the GP advised the woman to attend the hospital accident and emergency department.
The mistake was then discovered and she had to have further surgery to remove the gauze. As well as her physical pain, she suffered psychiatric injury and distress.
The Primary Care Trust admitted liability and the woman accepted £13,500 compensation in an out-of-court settlement.
Monday, November 16th, 2009
A company is to receive compensation from a former director who set up a rival firm.
The company provided engineering and technical personnel for clients including the United States Defence Department. Its operations director, who was also an employee of the company, was responsible for the management of the business.
While still working for the company, the director set up a rival firm. He didn’t tell the company that he had done so. He also approached some of the company’s customers and took confidential documents.
The company claimed damages for conspiracy, breach of contract and breach of fiduciary duty – that is, the duty directors have to act in the best interest of the company employing them.
The court held that once he had resigned, the director was entitled to compete against his former company in any way he chose. However, he had been in breach of his duty because while working for his former company, he had failed to alert them that he was about to set up a rival business.
He had also taken documents and approached customers.
The court granted an order for damages to be assessed and also granted an injunction preventing the director from providing rival services until a year after his resignation.
Sunday, November 15th, 2009
A husband has succeeded in reducing the divorce settlement to his former wife by £15,000 after the judge was found to have miscalculated when setting the original figure.
The couple were both in their sixties and retired when their marriage broke down. They agreed to an equal division of assets including the matrimonial home. The husband agreed that to reach an equal division relating to the home and his pension, he would need to pay his former wife a lump sum.
When they could not agree the exact amount, the matter went to court and the district judge set the figure at £35,000. The husband appealed on the basis that the judge had miscalculated. However, the decision was upheld by a circuit judge so the husband took the case to the Court of Appeal.
That has now ruled in his favour saying the payment had been assessed on an inaccurate basis. There had been some double-counting when assessing the assets and equity. The court therefore reduced the lump sum payable from £35,000 to £20,000.
Please contact us if you would like more information about divorce proceedings or any aspect of matrimonial law.
Saturday, November 14th, 2009
A father has retained the right to have contact with his daughter even though both she and her mother had accused him of making inappropriate comments.
The father had been allowed to have contact with the girl during school holidays and on alternate weekends following the breakdown of his marriage. The mother then made an application to suspend contact on the basis that the father had made inappropriate remarks to the girl.
The father denied this but the girl also said that he had made such comments.
However, the judge at the hearing declined to grant the application because he considered that there were other credible explanations as to why the girl might have made the allegations against her father.
He said it was difficult to assess her evidence because of the way she had been exposed to the acrimony between her parents. She had been seen by various professionals prior to the hearing and all considered her to be honest, yet she had reported different things to each of them.
The judge also found that there were several inconsistencies in the mother’s evidence and he considered that the father had been a more credible witness. He held that the allegations had not been proven and the father could continue to have contact with his daughter as before.
The decision has now been upheld by the Court of Appeal which said that the judge was entitled to prefer the father’s evidence in this case.
Please contact us if you would like more information about family law.
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