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Yearly Archives: 2017
Retiring family judge uses final speech to slam legal aid cuts
Mr Justice Bodey has used his valedictory speech to highlight the extent to which legal aid cuts made in 2013 have impacted many people’s ability to achieve justice for themselves or the children in the family justice system.Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, legal aid has no longer been available to litigants in matrimonial finance or private children law cases other than in a small number of cases featuring domestic violence. As a result, many of those most in need of proper support are left to navigate their way through the family justice system without any advice or understanding of what is expected of them.As Bodey J highlights, this has a knock-on effect both on judges and on the chronically underfunded court system, with poorly informed litigants in person clogging up the already rusting wheels of justice.At Collyer Bristow we now circumvent this mess as far as possible by directing our clients into arbitration and private FDRs – essentially BUPA to the court’s NHS. That’s great for our clients, but it shouldn’t have to be that way, and in some ways it will exacerbate the problem by creating a true two-tier system, with private justice for the well off and a barely functioning system for everyone else.Family lawyers are almost universally rallying around Bodey’s comments. In my view it’s unlikely, however, that the message will get through to those holding the purse strings.
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Residential service charges – Landlords beware your obligations
The Upper Tribunal (Lands Chamber) has dismissed a landlord’s appeal against a decision of the First-tier Tribunal (Property Chamber) relating to insurance premiums charged to tenants under the terms of their leases. It held that the insurance premiums had not been reasonably incurred in accordance with s19(1) of the Landlord and Tenant Act 1985. Costs charged to a tenant through the service charge under certain residential leases should be reasonably incurred in accordance with s19(1) of the 1985 Act. In the case of COS Services Ltd v Nicholson [2017] UKUT 382, the court held that in considering whether insurance premiums have been reasonably incurred, a landlord is required to explain the process by which the particular policy and premium have been selected, with reference to the steps taken to assess the current market. Although landlords are not expected to show that their insurance premiums are the lowest in the market, tenants may place before the Tribunal such quotations as they have been able to obtain, if those policies are genuinely comparable.Landlords are free to obtain a block insurance policy should they wish to do so. However, where the insurance premium is higher than it would have been under an alternative policy, landlords should be prepared to demonstrate that the insurance policy provides the tenant a sufficient advantage and the extra cost is therefore justified. Landlords should carefully consider both the provisions of the lease and their statutory obligations when dealing with residential service charges. If in doubt, they should seek the advice of a solicitor.
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Unsent text accepted as dead man’s Will by Australian court
An Australian court has ruled that a text message which an individual typed and stored in the drafts folder on his phone, but did not send, is an official Will.The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew. The message was found in the drafts folder on the man’s phone after he took his own life last year. Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his Will.Justice Susan Brown said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.In England & Wales, the formalities for a valid Will are set out in Section 9 of the Wills Act 1837:the Will must be in writing;be signed by the testator, or signed on behalf of the testator in his presence and by his direction; andthe testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time.The Law Commission is currently conducting a consultation on Wills which is open to the public until 10 November 2017. The proposals currently being consulted on include, amongst others, the proposal to enable the court to dispense with the formalities for a Will where it is clear what the deceased wanted.It will be interesting to see how the consultation progresses and what the outcome will be.
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Race Discrimination and Statistics – the story from the Employment Tribunal
There’s been a lot in the news today about race and statistics. The Government has launched a website with the results of its race disparity audit. As employment lawyers, the Employment Tribunal statistics are obviously of particular interest to us – so what story do they tell? In 2016 / 2017 there were 2,240 race discrimination claims issued in the Employment Tribunal. How does this compare to other types of discrimination? There are fewer claims than for age (7,500) and disability (4,000) and a lot fewer than sex (including equal pay and pregnancy – 20,000), but more than religion (400) and sexual orientation (200). Race discrimination claims have dropped significantly since 2013, but this has little to do with improvements in equal opportunities. Fees were introduced to the Employment Tribunals in 2013 and there was a significant decrease in claims across the board. A recent Supreme Court decision abolished the fees, but that has not had time to be reflected in the available statistics. However, we can expect the number of discrimination claims to increase this year, and the average number of race discrimination claims before the introduction of fees was 5,000 per year. Do race claims normally succeed in the Employment Tribunal? No. Only 3% of issued claims go all the way to a final hearing and win. But an additional 36% of claims are settled somewhere before hearing – so that probably counts as a “win” for the Claimant. However, that still leaves a majority of claims that either fail at Tribunal, or get dropped somewhere along the way. This is not unique to race claims, the statistics are broadly similar to other types of discrimination claims. The only two that tend to succeed more often are disability (4% win, 42% settle) and pregnancy (6% win, 47% settle).How much are race claims worth? So few cases actually get to the stage of an award that the annual statistics can be unreliable and thrown out by a single large award. Looking at an average from the last 10 years is more helpful, and this shows that race claims tend to be the most costly of all types of discrimination, with an average award of £26,900, compared to £21,900 for sex and £15,500 for age.Source: https://www.gov.uk/government/collections/tribunals-statistics
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Foster carer fights for worker status in potentially landmark case
In what may be a landmark case, foster carer Sarah Anderson fights for foster carers to receive “worker status” in an attempt to secure workers rights and protection. It will be interesting to see what approach the court takes, in an area of law which is already complex and the subject of much dispute.
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Financial Services matters
Robin Henry reviews the case of Daniela Shurbanova v Forex Capital Markets Limited,[1] the High Court has held an FX broker was entitled to revoke trades under its contractual terms on the basis that the trades amounted to abusive trading. The …
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Flossy the UKIP Lion
The letter I would write if I were the Premier League Lion…Dear FlossyHope you are well. I thought I should introduce myself, lion to lion. I am the Premier League Lion. I was born in January 2016. Unlike you, I evolved from another lion icon rather than the £ sign. My folks protected me by registering me as an EU and UK trade mark in 19 classes. You don’t appear to have tried to get protection yet. I have a feeling that my people will probably challenge yours if they do. It must have been unsettling for you to have to deal with the furore over your arrival. Not surprising though. Of all the lion looks your people could have gone for, they decided for a look very similar to mine. Like me, you are a lion head facing to the right, with the same white face and shading around the eyes, mouth, nose bridge and tip. Your mane also looks like mine especially the bit at the top of your head which is like my five pointed crown. And you are also purple in colour! I like being unique. A lot of time and money has gone into creating and making me distinctive. My creator, DesignStudio, did about 600 iterations before coming up with me as I am now, “warm, human, approachable and informal”. Your chap, Paul Oakden, said that he “doesn’t mind UKIP being associated with the Premier League”. Hmmh, he is going to wish that he hadn’t said that. I am pretty sure that my people do not want to be associated with the “Brexit party” or for that matter any other political party or organisation. The whole point of being a brand is to be able to differentiate one from another, especially from those who stand for very different things. It is interesting that UKIP does not mind being associated with the Premier League? Could it be because the Premier League is the most watched football league in the world and generates the most revenue? It is ironic that UKIP does not mind the association given the fact that the majority of the players in the top division of the Premier League are foreigners. I guess the suggested points based system to reduce net migration into the UK to zero will need to factor in the entry of Premier League footballers. If your people do hear from my people, they will have to decide whether you are worth a fight with the Premier League for copyright and trade mark infringement. Some would say that your creator copied a substantial part of me and therefore infringed Premier League’s copyright. Then there are my trade marks – they include class 36 for “charity fund raising” and class 41 for “arranging and conducting conferences, congresses and seminars”, activities which you are also involved in. There are two types of trade mark infringement they could go for. First, there is infringement if we are found to be similar and used in relation to similar services, which results in a likelihood of confusion on the part of the public. If this doesn’t work, the other type of infringement is if we are found to be similar, and I have a reputation in the UK and your use, being without due cause, takes unfair advantage of, or is detrimental to, my distinctive character or repute. They may have a good shot with this one. I don’t think they may bother with passing off as it may be tricky to show actionable misrepresentation. The prudent course for your folks may be to retire you and change to the other UKIP logo that was put forward at the party conference. By the way, who decided to name you “Flossy”? Yours sincerelyThe Premier League Lion**Disclaimer – This is the author’s personal view. Neither the author nor the firm acts for the Premier League.
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Employment Tribunal awards £10,000 for comment in birthday card
…is how this case is being reported, but there was in fact a series of lewd remarks. Remember that age is a protected characteristic too, so think twice before you make any jokes about it in your colleagues’ birthday cards!
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New Pre-Action Protocol for Debt Claims
The new Pre-Action Protocol for Debt Claims came into force on 1 October 2017 and applies to debts owed to businesses by individuals (which includes sole traders). Prior to this coming into force, creditors were of course already subject to the general Pre-Action Protocol and there are some similarities between that and the new Protocol. However, the latter is undoubtedly more onerous for creditors and it is now expected to take much longer for creditors to recover their debts. The new Protocol requires creditors to send the debtor a letter before action prior to commencing court proceedings. No change there then. However, whereas generally a debtor was expected to respond within around 14 days in a straightforward claim, now creditors are required to give debtors not less than 30 days from the date of the letter before action to respond. They are also required to enclose various prescribed documents, such as an Information sheet and Reply form. If the creditor receives the Reply form from the debtor, it must not issue proceedings for a further 30 days from receipt of the form. The parties are required to share documents and information and try to reach an agreement as to payment. Where the debtor responds to the letter before action and the Protocol has been followed but an agreement as to payment cannot be reached, the creditor must give the debtor 14 days’ notice of its intention to issue court proceedings. In summary, the Protocol could certainly see creditors waiting for over 60 days before they can even begin court proceedings to recover a debt. As ever, a failure to follow the Protocol will not be looked at kindly by a court when creditors eventually issue their claims and could see them being penalised on costs. Creditors are therefore advised to comply with the Protocol however onerous it may be.
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Commission fines Scania €880 million for participating in trucks cartel
Scania’s holding out against settlement always seemed odd. Its sister company, MAN (they’re both owned by VW) was the one that blew the whistle on the cartel in exchange for leniency. Wasn’t Scania at the famous “cosy” Brussels hotel in 1997, or at the cartel’s other meetings? Did they participate through MAN?Time will tell, but it’s good news for damages claimants. If the decision withstands an appeal, it should contain more useful material than the one against the other manufacturers. If you settle, you get to agree the contents.
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