When and how should Court assess chances in Personal Injury claims?

The Claimant was employed by the Defendant as a diamond core driller and as part of his employment was provided with the use of a company van. For some time the van doors were defective and as a result the Claimant was required to squeeze through the gap between the driver and passenger seats, move the content of the storage area of the van to the side, slide two 25 litre barrels of water to the side and then push the van doors open.

Whilst undertaking this task on the 16th March 2006 the Claimant suffered a significant prolapse of the disc in his back at L4/5 which despite surgery left the Claimant with substantial symptoms, permanently restricting his day to day activities and rendering him permanently unfit to work.

It was agreed medical evidence that the Claimant was suffering from a significant prolapse and that as a consequence he was left with a permanent disability and an inability to return to work.

The issues for the court to decide were the extent to which the Defendant employer was liable to the Claimant and if liable the extent to which the agreed injuries were caused by the negligence of the employer.

Liability settled just before trial with the employer finally accepting liability with a very small reduction for contributory negligence to reflect the risk of litigating the case before a Judge.

The issue of causation went to a hearing before the Norwich County Court were the Judge heard evidence from two expert orthopaedic surgeons. For the Claimant the opinion was that but for the accident this injury would not have occurred and even if the Claimant has suffered a prolapse it would have been very unlikely to have been as severe and without the significant consequences which occurred after the injury. For the Defendant the expert gave a view that the injuries would have occurred in any event within two years given the Claimants heavy work and smoking and that when the symptoms occurred they would have more likely than not been the same. However in cross examination the Defendant's expert made numerous concessions as to the percentage chance of the the symptoms being either:

• As severe
• Of similar nature
• With the same effects on work and
• With the same urological consequences

As a result the Judge at first instance heard submissions from the Claimant that when assessing what would have happen in the future but for the negligent act that he should take account of the various risks and chances in particular given the view of Lord Diplock in Mallett v Mcdonall [1970] AC166 which stated :

The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

The Defendants sort at first instance to distinguish these appeal cases as only relating to a claim involving fatal injuries and that a judge should decide all matters on the "balance of probabilities" which is the test used by the court when addressing matters of past fact.

At first instance HHJ Curl sitting in the Norwich County Court held that the Defendants’ medical view was correct and applied the balance of probabilities test. As a result because the view of the Defendants’ expert was that it was over a 50% chance, although nowhere near certain, that the Claimant would suffer the same symptoms the Claimant should only recover compensation for two years. This was the period over which the Claimant would have developed the same symptoms in any event according to the Defendants’ expert.

The Claimants appealed on the ground that the Judge did not correctly apply the law which required him to reflect the risks of various possible outcomes, to include never suffering symptoms to suffering similar symptoms, when assessing the basis on which the Claimant should recover damages. As such the initial trial judge when accepting the Defendants view had incorrectly failed to take account of the concessions made by the Defendants’ expert in cross examination.

The Court of Appeal heard representations from both parties and held that the Judge at first instance had failed to apply the correct test and should when assessing future loss reflect the risk and chances of a future event happening as established in Mallet v McGonagall 1970 and to that extent the appeal Judges were with the Claimant. However the Court felt they could still uphold the Trial Judge's finding of two years by following an authority of Kenth v Heimdale Hotel Investments Limited [2001] EWCA Civ 1283 which held that one way of assessing risks and chances is to apply an acceleration which was an acknowledged broad brush approach. As such the Claimant received damages for a two year period.

COMMENT

This is undoubtedly a disappointing result for the Claimant who on the one hand succeeded on the legal issue before the Appeal Court yet then failed to recover any increase in damages as a result of the Judges upholding the finding on acceleration, whilst recognising the Norwich County Court wrongly applied the law. It is difficult to believe that had the Judge in Norwich at first instance correctly applied the law that he would have awarded the Claimant the same two year acceleration if he had factored in the various risks, which he failed to do when applying the test of balance of probabilities, which he should have done. As a result it is disappointing that the Court of Appeal, having found for the Claimant on the law, did not then allow what the Claimant argues would be more appropriate damages.

However the case demonstrates the importance of, when assessing future losses, considering all of the events that may or may not happen before a Court awards or solicitors agree damages. Whilst the acceleration approach of awarding damages for a period of 2, 3 or 10 years (as an example) may be correct and regularly applied this must be done on an analysis of the evidence and if appropriate an assessment of the future risks rather than because on the balance of probabilities it is found.

Inevitably whilst we were disappointed that the Claimant recovered no further damages, the case did prove a very important legal point. It also demonstrates that at a time when lawyers are challenged for the use of No Win No Fee agreements, if used properly they are a significant benefit to Claimants. Indeed it is likely that without a system which allows success fees in No Win No Fee agreements to be recovered this case may not have been advanced. It is therefore very disappointing that the current government are seeking to remove the recoverability of success fees which underpin the risks lawyers take in substantial cases such as the one under discussion.

If you wish to discuss this article or the current proposals to change the recoverability of success fee or discuss any possible claim please contact Mark Hambling mbh@rogers-norton.co.uk

22nd December 2011

Heights to Haircuts!!!

Mark Hambling, Partner, Law Society Accredited Personal Injury Lawyer and Association of Personal Injury Lawyers Senior Litigator, has recently concluded an interesting case which saw the Claimant make an interesting and enforced career change.

The Claimant worked as a scaffolder and suffered a significant head injury when struck by a falling metal scaffold sleeve. The facts, in the absence of the serious injury, could form the basis of a comedy sketch. The Claimant’s colleague was Polish and had a tendency to swear on site for no apparent reason, usually in Polish and therefore his language was generally ignored. However on the day in question he dropped a metal scaffold sleeve and rather than shouting "look out" he swore and was unfortunately ignored. Tragically the sleeve struck the Claimant on the head causing a fractured skull, soft tissue injuries to the spine and neurological symptoms such as problems with memory and learning.

The Claimant required surgery to elevate his depressed skull fracture and was in hospital remarkably for only 7 days before his discharge to be monitored by out patients.

The insurers of the scaffolding company admitted liability for the unsafe system of work which was used to raise the scaffold fittings to the construction. Despite the scaffold company entering liquidation during the litigation the claim was pursued against the company, who had relevant insurance, with permission of the Court.

The only issue to determine was the extent of injury caused by the accident, the value of that injury and the losses flowing from the injury. Medical evidence was necessary from a Neurologist, Neurosurgeon, Neuro Psychiatrist, and Plastic Surgeon. It was established that the Claimant had suffered a depressed fracture to the skull which had left a permanent cosmetic appearance. He had also suffered trauma to the brain which would again cause minor permanent problems with memory and learning as well as interaction. His soft tissue injuries to the spine which were caused by the compressive force of the metal sleeve healed over a two year period.  However psychologically it was established that he could never work in construction again and would have to consider a change of career.

The Claimant had some pre accident experience as a hairdresser having trained with Nicky Clarke, although he had given this up to train as a scaffolder and earn a higher salary. The Claimant therefore returned to the hairdressing trade once he was fit to work. He was however starting from scratch again and despite efforts in some top London and regional salons and a summer of experience working on fashion shoots and parades in Ibiza he was struggling to hold down a position and had lost several positions.
Our involvement was to present a proveable argument comparing his potential earnings as a hairdresser and scaffolder, analysing when the two would, if ever, reach parity. After numerous statements from past and present employers and a detailed review of the hairdressing opportunities as well as considering how the Claimant would have faired but for the accident as a scaffolder in one of the worst recessions ever, the claim settled at a round table meeting with the Defendants at a figure substantially ahead of £200,000.

COMMENT
This case raised all the issues I could expect. Whilst liability was resolved in the Claimant’s favour a detailed knowledge of the Health & Safety at Work legislation was required to prove this. The case had the added complication of an insolvent Defendant which required a successful application to the Court to allow the case to proceed.

In relation to the injuries a thorough understanding of the medical case was needed to enable the right experts to be selected from our panel of the best available. What was then required was the time and experience to investigate the pre and post accident work options to present a case on value to support the past and future loss of earning as well as providing for the future risks, in particular the inability to return to scaffolding if he never achieves parity of earnings as a hairdresser.

The case highlights the need to use an experienced Personal Injury Lawyer to pursue your claim if you unfortunately suffer an injury. There are a variety of potential claims within each case which will require consideration and the lawyer instructed must investigate these thoroughly to ensure the Claimant achieves the right level of compensation.

If you wish to discuss this article or have a potential claim you wish Rogers & Norton to advise upon please contact Mark Hambling on 01603 675637 or mbh@rogers-norton.co.uk.

Your Terms or Mine ?

Business dealings are rarely documented in a way that lawyers would like. It is also true to say that if commercial people tried to run their business to suit the lawyers, business would grind to a halt.

The Court of Appeal decision in Tech Data and Amphenol is a good illustration of how things can go wrong.

Tech Data were part of the supply chain for Rolls-Royce engines.  

• They sent a parts order to Amphenol. This was expressly subject to Tech Data’s standard terms and conditions, including tight delivery and quality requirements.
• Amphenol wrote back accepting the order but referring to their own standard terms and conditions which limited their liability for any delay and quality problems.
• Amphenol then delivered the parts, which Tech Data accepted.
• Tech Data later complained of serious delay and quality issues.

Whose terms and conditions governed the contract?

The appeal decision was that Amphenol’s purported acceptance of the order, but on different terms, amounted to a counter-offer. This was then impliedly accepted by Tech Data when it took delivery. The contract came into existence at that moment - and on Amphenol’s terms. Tech Data’s claims failed.

This reflects the traditional legal outcome of this toing and froing of small print paperwork - that the contract is governed by the last terms and conditions to be supplied before the contract came into existence. It’s the “last shot” which counts. That outcome can only be displaced where there is cogent evidence that both parties intended to contract on a different basis. There was none in this case.

One practical difficulty is that this grandly titled “battle of the forms” is typically played out between busy purchase and sales department staff who may not appreciate its potential significance.

The message

If it is important that you only enter into contracts on your own terms and conditions (and why bother with them if is not?) then have a system in place which always :-

• ensures that they are duly referred to in any order you or your colleagues place;
• checks the wording of any purported acknowledgment or acceptance of your order.

If this is anything other than a clean acceptance of your order (with no different terms attached or endorsed or referred to) then :-

• make it clear that there can be no deal until they confirm that the order is subject to your terms and conditions;
• and refuse to accept delivery unless that is done;
• or go ahead anyway - but in the knowledge that if things go wrong, you may not enjoy the protection you had carefully drafted into your business paperwork.

If you would like to discuss this article, or any other matter relating to disputed contract issues please contact John Cadywould on 01603 675629, or e-mail jbc@rogers-norton.co.uk.

Estate Agents’ Sole Agency Commission

The Court of Appeal has just handed down what can only be described as a mixed decision on the effect of the Estate Agents Act 1979 and the associated 1991 Regulations.

These require agents to explain terms such as “sole agency” and to provide details of when “remuneration” is payable. There is a useful definition of sole agency in the Regulations for agents to adopt in their contracts.

In this case the agreement did not include the statutory information in full. Significantly it did not include the necessary express reference to an obligation to pay remuneration if a sale contract were exchanged with a purchaser introduced by another agent during the period of the sole agency. Furthermore, despite being described as a “sole agency”, it included no express prohibition on dealing with another agent during the period of the contract.

The agent came up with three offers but the seller sold elsewhere using another agent. He paid their commission and was reluctant to meet the first agent’s claims under their “sole agency agreement”.

The Court’s decision

The agent’s claim failed in the High Court and failed again on appeal.

• The majority found it unnecessary to decide whether the seller had acted in breach of his obligations under the contract, and was therefore liable to pay damages.
• They held instead that “remuneration” in the statutory scheme covered damages in lieu of commission and that the agent had failed to comply with the requirement to give adequate particulars about the seller’s obligation to pay this. Merely to include the words “sole agency” was not sufficient.

In view of the breach of the statutory requirements, the sole agency agreement could not be enforced without a Court Order, and the Court had power to dismiss or reduce the agent’s claim. In this case the claim was dismissed as the Court was satisfied that the seller was prejudiced by the absence of the information required by statute.

The message

Agents who wish to act on a sole agency basis should, if they are not already doing so, ensure compliance with the statutory requirements by using the full statutory wording wherever possible, or otherwise ensuring that their agreements comply with the information requirements in full.

If you would like to discuss this article, or any other matter relating to disputed agency or other contract issues please contact John Cadywould on 01603 675629, or e-mail jbc@rogers-norton.co.uk. 

“One of the best and most interesting CPD events I have ever attended”.

Managing Partner, Richard Etheridge was invited to talk to the ACCA (Norwich branch) at a seminar on October 20th held at St Andrews House Redwell Street Norwich. The subject of the seminar was "Aquisitions and Disposals for SMEs" and other speakers on the evening were Mark Curtis & Giles Kirkham from Larking Gowen and Dan Meston from Lloyds Bank.

The audience numbered 50 people and the talk was received very well indeed on what is a very complicated but topical subject. One guest was quoted as saying "Just wanted to thank Richard for a great talk last night at St Andrews House. It was a very practical approach to selling/buying a business" while the President of ACCA commented:-

I cannot thank you all enough for the excellent CPD course you put on for us yesterday evening. Needless to say, the feedback forms gave you very high ratings and I thought I would report back on one comment which I think sums it up:

“One of the best and most interesting CPD events I have ever attended”.

I thought it was balanced, packed with enough and not too much information, well presented and demonstrated that you are all people to work with.

If you require any further information about the event or need any guidance on This or any other legal matter then please contact Richard on 01603 675627 or rwje@rogers-norton.co.uk.

Prenuptial Agreements:Radmacher - one year on

The 20th October 2011 was the one-year anniversary of the landmark ruling handed down by the Supreme Court in the case of Radmacher v Granatino [2010] UKSC 42 in which it was held that the prenuptial agreements could be given decisive weight when considering financial settlements upon divorce. To what extent does this case have implications for those seeking to protect their assets in the event of divorce and what has been the effect of the decision in practice?

Mr Granatino and Ms Radmacher (formerly Granatino) entered into a prenuptial agreement in 1998 at the instigation of the wealthy wife which provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. At the time, the husband held a well-paid position in banking which he subsequently left to pursue an academic, but significantly less well-paid, career. Following the issue of divorce proceedings in 2007 the husband applied to the Court for it to determine a financial settlement even though the prenuptial agreement stated that the couple would waive any financial claims against each other in the event of their divorce. Initially, the Court held that the prenuptial agreement was defective and awarded the husband a capital award of £5.56 million plus £504,000 for housing in Germany and periodical payments of £70,000 per year for the couple’s two daughters. The wife successfully appealed and the Court of Appeal reduced the husband’s award in recognition of the “decisive weight” of the prenuptial agreement. The husband appealed to the Supreme Court who upheld the decision of the Court of Appeal.

The decision in Radmacher does not mean that pre or postnuptial agreements are automatically enforceable. The law dealing with financial settlements upon divorce is set out in the Matrimonial Causes Act 1973 (MCA) and it is not possible for couples to oust the jurisdiction of the Court by entering into a prenuptial agreement or an agreement after the marriage (postnuptial). However, what the case of Radmacher did achieve was to set out the circumstances which will enhance or detract from the weight to be given to any agreement when considered alongside the ‘section 25’ factors of the MCA. For example, it is important that each party receives independent legal advice and that there is full disclosure of each party’s financial resources. It is also important that the agreement is entered into freely, in the absence of undue pressure or duress. It is therefore the role of the solicitor to carefully draft any proposed agreement to ensure that its terms will be followed by the Courts in future, should one party attempt to renege on the agreement and make an application to the court for a financial order.

The publicity surrounding Radmacher and prenuptial agreements in general has seen an increase in the number of enquiries and instructions received by the Matrimonial Team at Rogers & Norton from individuals seeking to protect their assets. The trend of people marrying later in life, sometimes for second or subsequent times, means that many individuals have pre-acquired assets which they bring to a marriage. Also, many individuals are keen to protect any future wealth such as inheritance from their family.

Prenuptial and postnuptial agreements can include provisions regarding existing wealth and assets, future inheritance, gifts during the marriage and the practical and financial arrangements for children. Our Matrimonial Team is experienced in advising in relation to a proposed agreement, drafting both prenuptial and postnuptial agreements and advising upon agreements prepared by other solicitors to ensure they are clear and fair in light of the guidance set out in the Radmacher judgment.

If you are considering entering into a prenuptial or postnuptial agreement and would like some advice then please feel free to contact Sophie Key or Amy Walpole on 01603 675648 or email matrimonial@rogers-norton.co.uk.

Guarantor’s signature not all that it seems

A recent High Court decision has given a helpful reminder of how a signed and witnessed Guarantee may not be worth the paper it’s written on.

This was on the basis of “undue influence” and because the defendant had not intended to sign a guarantee - the defence of “non est factum”.

• Undue influence - where a relationship exists between two parties with “trust and confidence, reliance, dependence or vulnerability on the one hand, and ascendancy, domination or control on the other”.
• Non est factum - where the document was fundamentally different to what the Defendant intended to sign; and crucially that he had not himself been negligent in connection with this.

That second hurdle generally trips you up if you simply sign a document without reading it first.

The Backgound

The Defendant had been a company director. He often witnessed the signatures of fellow directors on Leases. He had to resign from the board but was kept on as an employee.

 

The company’s landlords knew that the company was in difficulty and were insisting on a personal guarantee by a director of the company before granting a new Lease.

 

One of the remaining directors of the company got the Defendant to sign the guarantee page.

 

The Court’s decision

 

There was a presumption of undue influence. As an employee he should not have been asked to sign the guarantee until he had either taken or clearly rejected an opportunity to take independent legal advice.

 

Crucially the Court held that the landlord was deemed to be aware -had “constructive knowledge” -of the undue influence. It knew that the company was in trouble yet failed to carry out checks to ensure that the Defendant was aware of the risks.

 

For good measure the Court was also satisfied that the Defendant had been tricked into signing as a guarantor thinking that all he was doing was witnessing somebody else’s signature. In view of the history of him witnessing signatures the Court held that he had not been negligent. The “non est factum” defence therefore also succeeded.

 

And the message?

For those intending to take personal guarantees - follow the guidance laid down in Court decisions; that will generally require the involvement of lawyers.

The narrow message for those who have signed guarantees is that the circumstances can in some exceptional cases provide a defence; of course the best advice is still never to sign any document without reading and understanding it first.

If you would like to discuss this article, or any other matter relating to disputed guarantees or other contract issues please contact John Cadywould on 01603 675629, or e-mail jbc@rogers-norton.co.uk.

DIGITAL LEGACIES’ ARE ON THE RISE

When it comes to making a Will, it is quite likely that you will think long and hard about whom you wish to inherit your home, your money and your personal possessions. However, have you ever considered whom you would like to benefit from your digital assets which can include: films, videos, music, e-books and Apps which now are more frequently being stored with the assistance of on-line ‘Cloud’ services.

Recent research carried out by the Centre for Creative and Social Technology (CAST) at the University of London for their ‘Cloud Generation’ report found that just over 1 in 10 of 2,000 British people surveyed had included, or planned to include, internet passwords in their Wills in a trend that CAST have labeled ‘Digital Inheritance’.

With more and more of our data being saved on-line by making use of services run by remote computers, known as ‘Clouds’, rather than being saved direct to a PC, this is an area which is likely to increase over the coming years. However, unfortunately, it is also open to abuse should your security passwords fall into the wrong hands!

Tom Lawrence, Partner and Head of the Wills and Probate Team at Rogers & Norton, said “The reliance placed by most of us on all things technological is showing no signs of slowing down. I am finding more often that clients are looking for sensible solutions to protect on-line assets for themselves and their families in the future. This can be as simple as keeping an up-to-date schedule of internet passwords and usernames with their Will, which can then be stored securely”.

If you would like to discuss this article, or any other matter relating to Wills, Trusts, and Estate Planning, please contact Tom Lawrence on 01603 675610, or e-mail tl@rogers-norton.co.uk.

The pitfalls of owning property jointly with another

The law is “double-Dutch”: Geoffrey Boycott

The pitfalls of owning property jointly with another

This week has seen former England cricketer and well-known Yorkshireman, Geoffrey Boycott, appear at the High Court in London expressing his view that the law surrounding joint ownership of property is unclear. Mr Justice Vos hearing the case himself acknowledged the “obscurity” of property law which dates back 300 years.

The case centres around Boycott’s purchase in 1996 of a three-bedroomed property overlooking Poole Harbour in the millionaires’ resort of Sandbanks, Dorset. The property was purchased for £450,000 and earlier this year was valued at £3 million. Boycott purchased the property with his then partner, Anne Wyatt, and it was put into their joint names as ‘joint tenants’. When property is owned as joint tenants upon the death of one owner their half share will automatically pass to the other. This is commonly referred to as the ‘rule of survivorship’. This type of joint ownership is usually preferred by married or cohabiting couples as it provides security on death for the surviving spouse/partner which is particularly important where there are children of the family.

The alternative to owning a property as joint tenants is to own it as ‘tenants in common’. As a tenant in common it is open to you to make provision in your Will for your share to pass on your death to a third party. In the absence of a Will the rules of Intestacy apply which may result in your share passing to one or more prescribed family members which may not be what you want. For example, if you remain married your share could pass to your spouse, even if you are separated.

Purchasing a property as joint tenants is not unchangeable. It is open to variation by either owner. By serving a ‘Notice of Severance’ upon a joint owner it can be changed to a ‘tenancy in common’, giving one party the option of leaving their half share to a third party under the terms of their Will in the event of their death.

This fact came as somewhat of a shock to Geoffrey Boycott when, in 2009 on the death of his former partner, he discovered that she had two years earlier unilaterally changed the joint ownership to a tenancy in common and had bequeathed her half share of the property to her niece. It is Mr Boycott’s case that he and Ms Wyatt had agreed that upon their deaths their respective shares would pass to the other. He says that had he known that the ownership could be altered he would never have bought the property with Ms Wyatt, who had continued to live in the property rent-free.

To change the ownership of a property from a joint tenancy to a tenancy in common one party must ‘serve’ upon the other a Notice of Severance in accordance with section 36(2) of the Law of Property Act 1925. Section 196 of that Act sets out the method of ‘service’ which essentially means sending a written document to the co-owner at their last known home or business address. It need not be acknowledged by the co-owner.

In Mr Boycott’s case, in which he is making a claim against his solicitors who dealt with the purchase, he claims that it was a “huge surprise” to him to discover on Ms Wyatt’s death that she had unilaterally changed the ownership of the property to a tenancy in common and had left her share to her niece.

This case highlights the importance of fully understanding the implications of owning property jointly with another, particularly in the event of the death of one party or the breakdown of the relationship.

If you require advice regarding financial and property matters as a result of the breakdown of your relationship or protecting your assets when entering into marriage or a relationship then please contact Sophie Key or Amy Walpole in our Matrimonial Department on 01603 675648 or email matrimonial@rogers-norton.co.uk.

If you would like to discuss the preparation of a Will then please contact Tom Lawrence or Louisa Mawbey in our Private Client Department on 01603 666001 or email web@rogers-norton.co.uk.

If you are purchasing a property in joint names and require a conveyancer and advice in relation to joint ownership then please contact Hayley George in our Residential Conveyancing Department on 01603 675623 or email hlg@rogers-norton.co.uk.

R&N Business Workshops

Rogers and Norton solicitors are delighted to announce an Autumn series of practical workshops, providing a guaranteed 100 top tips for you and your business. Each workshop will last for 1 hour commencing at 4.30 pm, and will be followed by light refreshments.

Tuesday 1 November 2011: Being Prepared for difficult times in business and the Rogers and Norton Survival Guide.

Our speakers will discuss issues ranging from employment contracts to contracts with your suppliers and customers, key terms of business, business opportunities, cash flow and dealing with HMRC.

Tuesday 8 November 2011: Tips to Recover Bad Debts

Following on from our 1st workshop, we will highlight some practical debt recovery points and how to use the insolvency process as a tool to recover bad debts, to include suing directors personally of debtor companies personally. Our workshop will also look at Retention of Title claims.

Tuesday 22 November 2011: Directors Liabilities and Duties - how to stay out of trouble!

In these difficult times, it is expected that more claims will be made against directors. We have seen an increase in claims for unlawful dividends (some going back to 2004), breach of duties and in Directors Disqualification Proceedings. In this workshop, we will update you on your duties and liabilities as directors and company secretaries, and the transactions and management issues that Insolvency Practitioners investigate together with the Insolvency Service. 

Tuesday 29 November 2011: Employment Update

As the year comes to an end, our specialist employment Partner Phil Kerridge will provide a practical list of employment issues arising from 2011 and predict the potential changes in 2012. This will be a must attend session for HR Managers and directors.

Tuesday 13 December 2011: Construction Act - the new one!

Our last session for 2011 will focus on the key changes to the Act and early developments, together with an update on other developments relating to letters of intent, experts and ADR. The session will be aimed at Employers, Contractors, Developers, Architects, Surveyors and Consultants.

Please complete the online booking form here to reserve your place(s).

In 2012, we will be holding seminars on Buying and Selling a Business, Intellectual Property Rights (exploiting and protecting), Company Law and Property updates. Please also add any additional workshops and seminars you would like us to hold.

We look forward to seeing you at our workshops.

R&N

George Osborne announces Employment Law Reforms

The Government yesterday announced the two key changes that they intend to introduce to encourage employers to recruit new staff with effect from April 2012. Firstly, the intention is to increase the period of continuous service required to bring an unfair dismissal claim from one to two years.  Secondly, fees are to be introduced for the issuing of Tribunal claims. Both of these have been widely predicted for several months.

Whether either of these changes is likely to have the desired effect is debatable according to the Firm’s Head of Employment Law, Phil Kerridge.

“Based on previous statistics, the increase of the period from one to two years will effect about 5% of cases, so on the face of it that reduction is not as significant as you might expect.

Set against that, it has to be remembered that the increase will have no bearing on discrimination cases, which will continue to have no requirements for any continuity of service. Bearing in mind the recent abolition of the default retirement age, I can see a significant increase in age discrimination claims, so I am not convinced that what has been proposed will be sufficient to stimulate employers into recruiting new staff.

Whether the payment of a fee will deter potential claimants remains to be seen, although it should certainly discourage the more speculative claims.”

If you wish to discuss the proposed changes or any other employment law issue, please contact Phil on 01603 675603 or at pnk@ogers-norton.co.uk.  If you wish to subscribe to Phil’s monthly newsletter, please click here.

Top Legal Directory praises expanding Rogers & Norton

Rogers & Norton has gained major recognition in this year’s edition of the Legal 500 for its high quality service and expertise.

The Legal 500 is acknowledged as the most widely used legal directory in the country, in which law firms are ranked in terms of their skills and performance.

The 2011 edition (published online at: www.legal500.com) highlights Norwich-based Rogers & Norton’s impressive credentials for providing expert legal advice to clients – regionally, nationally and internationally.

Richard Etheridge, Managing Partner and Head of the firm’s Corporate and Commercial Team, says “We are thoroughly delighted that, yet again, Rogers & Norton has received significant recognition for the calibre of its work and first-rate service. In what are undoubtedly tough economic times, we are encouraged by the fact that we have been able to further expand upon our already very talented team of lawyers. I think it goes to show that our commitment to offering a top quality service to our clients at reasonable cost is the right approach”.

He adds “Every year I have been at Rogers & Norton has been exciting and this year has proved to be no exception! Over the past 12 months we have been able to significantly strengthen our Property Team and increase the depth of our already highly experienced Private Client and Family Teams, whilst also promoting from within, which is always very encouraging. I am confident that 2012 will see us continuing to move further in the right direction”.
Rogers & Norton was founded in 1982 and is now a 12 Partner firm with more than 60 fee earners and support staff.
Rogers & Norton’s Commercial Litigation Team continues to flourish with John Cadywould, Peter Hastings and Phil Kerridge all receiving substantial recognition for having valuable experience and expertise, excellent tactical awareness, and are helpful and quick with advice. The recent expansion of the Team has seen the appointment of Jenna Phillips, who specialises in debt recovery.

Phil Kerridge, Head of the firm’s Employment Team, also gains recognition for offering pragmatic and practical advice to a strong base of employer clients.

Peter Hastings, described as an immense talent, is an expert in Directors’ disqualification cases and acts for most local Insolvency Practitioners. Peter has recently advised administrators on a £1.1 Million HMRC Excise Duty back claim and also a contractor’s £1.75 Million claim for fees following the termination of a project.
 The firm’s Personal Injury and Clinical Negligence Team continues to strengthen their reputation both locally and far beyond. Mark Hambling, who is a Senior Litigator with the Association of Personal Injury Lawyers and a Personal Injury accredited specialist with the Law Society, and Tim Nobbs, are praised as being notably conscientious, with a practice spanning employers’ liability, public liability and RTA claims. Tim and mark are noted to have handled claims involving failed diagnosis in radiology, inadequate surgery, death in hospital and failed vasectomy.



The excellent, professional and compassionate advice of Amy Walpole, Partner and Head of the firm’s Family Team, is acknowledged. The team has expanded to include recently-appointed experienced Solicitor Sophie Key who has a strong expertise in children matters. Together they handle a stream of high-value divorce and cohabitee work. Amy is also a trained collaborative lawyer.
Newly-promoted Partner and Head of the Private Client Team, Tom Lawrence, and Catherine Hawdon, who are both members of the Society of Trust and Estate Practitioners, are noted for being technically up-to-speed, prompt with good business acumen and a pleasant demeanour. The Private Client Team continues to grow with the recent appointment of experienced Solicitor Louisa Mawbey. It is noted that four lawyers in the team are members of the Solicitors for the Elderly.
The Corporate and Commercial Team has again impressed with Richard Etheridge, the firm’s Managing Partner, at the helm. Richard is noted as being very approachable and constructive whilst delivering a high quality of service on corporate issues. The firm’s recent work includes company buy-backs, restructurings and the MBO of a local manufacturing firm.
The one-stop service offered by Bruce Faulkner, who heads the Commercial Property Team, continues to thrive in dealing with the sale, purchase and licensing of premises, including pubs and clubs around Norwich. Bruce is noted as having handled leases, including a 9,000 sq ft property in a prestigious office block in Norwich.
Meanwhile the Residential Property Team, headed by the well known and liked Marc Greig has seen a continued increase in good quality instructions which is bucking the trend of many of the firm’s competitors. Marc enjoys an enviable reputation with local builders and developers for his work. The firm continues to advise local businesses, landowners, public limited companies and pension schemes. The Property Team has increased in size, with the appointment of three new members.

R&N Newsflash: Construction Act 2009 - Good News or Bad ?

Here it is at last, the “Construction Act 2009” will come into force on the 1 October 2011.  Is it good news or bad news?
Let’s start at the beginning! It will apply to all construction contracts that are entered into on or after this date, and brings significant changes to the current regime in respect of payment and adjudication. Will it stop disgruntled parties running off to the Technology and Construction Court on matters of law in an attempt to delay payment? Will the cash flow? That’s the idea.

The introduction of this new legislation follows an extensive period of consultation by the Government on how to improve payment practices in the construction industry. It is therefore imperative that you are aware of the changes that are contained in the Construction Act 2009 and how it will affect your business.

Adjudication

There are mixed views on Adjudication. The intention of Adjudication was to keep projects and cash flowing. Yet, the TCC was busy dealing with issues on whether all material terms were recorded in writing, and of course other arguments. The main change that will impact on adjudication is that the scope of the Construction Act has been widened to include oral contracts, thereby removing jurisdictional challenges based on contracts not being in writing, or evidenced in writing. Is this a step in the right direction? I am not convinced, even allowing for the fact that Adjudicators are experienced and quite often senior barristers. I expect that there will be further disputes in proving that an oral contract exists, and what terms were agreed by the parties, and by whom.

Payment

We now have a Payment Notice, which should state the amount to be paid, and the basis for its calculation. There is no sanction if the paying party fails to issue the payment notice. This has now changed. If the party making payment (referred to as the “Payer”) fails to issue a payment notice within 5 days of the due date, then the application for payment may serve to be the payment notice by default. In this case, the payer will have to pay the notified sum, as contained in the application by the final date for payment.

We will also have a “pay less notice” in lieu of a withholding notice, which has to be served by the payer before the final date for payment. The content of a pay less notice requires careful consideration. The pay less notice allows the payer the opportunity to give notice of his intention to pay less than the notified sum, and must be served within a prescribed period before the final date for payment. Here, the payer must specify the amount he considers is due on the date the pay less notice is served. This affords the payer a second opportunity to value the works, whereas previously he could only notify the amount he intended to withhold from the amount due under the contract.

All parties will need to have terms of payment, understand them and then follow them! Good news or bad?!

Suspension rights

Under the old Act, a party could walk off site in the event of non-payment, subject to serving the correct notices. There were many cases on whether the contract had been repudiated. The threat often worked!

The Construction Act 2009 gives additional rights in respect of suspending the work for non-payment. These additional rights mean that the contractor now has the right to suspend part or all of his obligations under the contract, not just all. If the contractor elects to suspend the works, the contractor is now entitled to the payment of a reasonable amount in respect of costs and expenses he incurs as a result of the suspension.

Who does this Affect?

Employers, subcontractors, consultants all need to take action now. We all need to understand the new rules and revise procedures. Contracts need to be updated. Standard forms must comply. And this applies to Consultants too.

Actions

Have a written contract and understand and follow the terms. But, we all know, construction projects are not perfect. There will be sub-contracts, variations, extras and other terms not in writing. Take minutes of meetings, circulate them, use email to record an agreement, use standard forms where parties can tick boxes to confirm an action. Letters of Intent will help avoid such issues, but ensure their scope is limited, capped in value and include key terms.
There will be problems and I expect an initial flurry of litigation. My view is that it is a step in the right direction, although I am not convinced on adjudicating oral contracts! Do you think it has gone far enough? Residential contracts anyone?


For further information on the Construction Act 2009 and any construction issues, contact Peter Hastings 01603 666001 or ph@rogers-norton.co.uk.

R&N Employment Newsletter

Rogers & Norton are pleased to announce the launch of its free “e–employment newsletter”, which goes live this month. The newsletter will come out ten times per year and is designed to provide general updates that are aimed at HR officers and owners and directors of SME businesses alike.


If you have not yet subscribed to the newsletter and would like to do so, please complete the sign up form by clicking the following link : http://www.topica.com/f/v.html?1700160817.1700102567.
If you require more specific advice on either the contents of the newsletter or any other aspect of employment law, please contact Phil Kerridge on 01603 675603 or email pnk@rogers-norton.co.uk.

ROGERS & NORTON

Shared parenting – a move in the right direction?

On 17th June 2011 the Shared Parenting Orders Bill will receive its second reading in the House of Commons.

When, a child’s residence, formerly known as ‘custody,’ cannot be agreed by his/her parents, it will be determined by the Court. The Courts are governed by the Children Act 1989 and, whilst the Court’s paramount consideration is the welfare of the child, it will take into consideration various other factors to determine with which parent a child shall live including the child’s wishes and feelings, the capability of the parents to meet his/her needs and any harm the child has suffered or is at risk of suffering. The Court does have the option to make a shared residence order where a child spends significant periods of time with each parent but typically, where a child’s place of residence is in dispute, the Court will be asked to specify with which parent the child shall live and, often, the level of contact s/he shall have with the non-resident parent. The Shared Parenting bill is seeking to change the way in which the Courts consider the arrangements for children.

The Bill was initially presented on 13th July 2010. The purpose of the proposed legislation is to ensure that, wherever possible, children benefit from the full involvement of both parents in their upbringing. A “shared parenting order” means an order providing for both parents to have a full involvement in the upbringing of a child particularly in respect of major long-term issues, and requiring that the child must spend a substantial and significant amount of time with both parents. This is to be distinguished from a shared residence order.
The presumption of shared parenting has been considered by the Family Justice Review in their interim report dated 31st March 2011. The Panel comments that currently the Court follows case law which sets out that it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living (Re P (Contact: Supervision) [1996] 2 FLR 314). The Court will only depart from this presumption where the potential for harm to the child outweighs the benefit of parental contact.

Shared parenting legislation is increasingly common elsewhere in the world. Australia, France, Denmark, Belgium and a number of US states are examples. However, the Family Justice Review Panel considered evidence from Australia and Sweden in particular about the harm caused to children resulting from the conflict between parents where the legislation has created a presumption of shared time. It concluded that these countries have experienced difficulties in interpreting and implementing the legislation which goes against the aim of family lawyers and policy makers to keep disputes regarding children away from the Courts.

As a result of this evidence, the panel has concluded that no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents. It is recommended that the existing legislation should be amended to include a general statement of intent, to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.

There are concerns that to adopt such a broad-brush approach will remove the current case-by-case approach which is tailored to the individual needs of the child. A presumption of shared parenting could move away from the current role of the Courts to make decisions in the best interests of children and may favour the best interests of the parents.

Sophie Key at Rogers & Norton comments " the principles of shared parenting would be beneficial to many families. That said, applying the presumption to all families could be detrimental to the welfare of some children – no two cases are the same, and the current legislation providing for every case to be considered on their individual factors is a much safer option. "

Whether the proposed shared parenting legislation comes into force remains to be seen but it would appear that the fight for children to have an equal relationship with both parents is as strong as ever.

Should you wish for any further information or advice on Children matters please contact Sophie Key on sok@rogers-norton.co.uk or 01603 675666.

Lone Workers Seminars

May has been a busy month for Phil Kerridge as he presented two seminars on the Legal Implications of Employing Lone Workers on successive nights.  Firstly, Phil took part in a seminar that was co – presented with OneStream, Sitex Orbis and NORCAS at the Forum in Norwich.  The seminar examined an Employer’s general legal obligations towards employees who work alone.

The following night Phil made a presentation on the same subject to the Norfolk Association of Estate Agents at their branch meeting, which took place at Dunston Hall.  On this occasion, the seminar was particularly focussed on the risks facing the Estate Agency industry.

Phil would be happy to speak to anybody who missed either of the above events but would like to discuss the possible ramifications of this issue for their business. He can be contacted on 01603 675603 or alternatively at pnk@rogers-norton.co.uk.









The importance of file notes for Surveyors and other professionals

John Cadywould, partner in the firm's Commercial Dispute Resolution team, was recently invited to give a keynote presentation to the annual conference of the national agents/surveyors Brown & Co. The presentation focused on the practical importance for all professional advisors on keeping a proper written record of instructions received and advice given and in particular its relevance in the context of disputes arising between the professional and his client over the service or advice provided.



John Cadywould



When things go wrong between professional and client and a complaint or claim for professional negligence arises, then file notes become of crucial significance in the Court’s weighing of conflicting evidence of what was really said or done.  Using examples from his experience and the reported cases John provided guidance to the delegates upon what he would recommend as best practice and took a number of questions on the practical and legal issues which can arise.  John has many years’ experience and recognised expertise in a wide range of commercial dispute resolution and was ideally placed to provide the delegates with the benefit of his experience.

The presentation was part of Rogers & Norton’s ongoing commitment to offering clients and contacts practical legal guidance and added value business advice.

For more information please contact John Cadywould on 01603 675603 or email jbc@rogers-norton.co.uk.

New Family Law Rules

New Rules!

I hear you all ask what are the New Rules all about?

They are a reform which represents one of the most significant developments in Family Courts for years.

The theory is that the introduction of the new Family Procedure Rules 2010 (SI 2010 No 2955), which have effect from 6 April 2011, will provide a unified procedural code for family proceedings in the High Court, county courts and magistrates’ courts. The New Rules will replace all the existing rules and create a comprehensive and accessible source for all who come into contact with the family justice system. The majority of forms used in family proceedings have also been revised, many have been given a fresh look and tick box options are appearing on most forms. This will make the forms quicker to complete but complete with caution to ensure your tick does not end up in the wrong box!!

In practice the launch of the new rules are a minefield for family Practioners who have not been given access to all the new forms. Further, across the country County and Magistrate Courts are adopting their own policies as to when they will be enforcing the New Rules. This may be due to the fact that some Judges have been unable to enrol on courses concerning the new rules until later this year.
The previous rules should continue to be applied to proceedings that were commenced before 6th April 2011 but the first time on or after 6th April 2011 proceedings come before a Court the Court may direct how the Family Procedure Rules apply or disapply. The general presumption therefore for Family practitioners will be that the Family Proceedings Rules apply unless the Court directs otherwise under Practice Direction 36A.
The rules should not have a great impact on clients save for the introduction of the mandatory mediation assessments before making any application to the Court for disputes concerning children or finances.
The New Rules are structured to ensure that family court proceedings have a uniformed ethos relating to the form on which applications are made, timescales, costs, enforcement, and how evidence should be presented. These are just a few of the areas covered in the rules. The New Rules have also been written in a manner which is intended to be easier to decipher with less Latin terminology. Also, phrases such as an Ancillary Relief application have disappeared, now referred to as a Financial Order Application. The Divorce Petition is now called a Divorce/Dissolution/(judicial) separation Petition and Divorce Proceedings are referred to as an Application in Matrimonial Proceedings. The Family Proceedings Rules refer to applications and Petitions rather than Divorce like the Matrimonial Cause Act 1973. However, phrases such as Decree Nisi and Decree Absolute remain in the New Rules.
In conclusion, Family Practitioners know what to expect but can give no guarantees how the new rules will be enforced or accepted by different regional Courts!
For more information please contact Amy Walpole, Partner & Head of our family law department.

Are you ready for Mandatory Mediation from the 6th April?

The Government has radically reformed the Family Law system to encourage people to take advantage of alternative sources of help and advice to resolve matters without involving expensive lawyers or Courts.

From 6 April 2011 new Court Rules makes it mandatory for separating and divorcing Couples to attend a Mediation Assessment meeting before making an application to Court, in relation to disputes regarding children and financial issues.

The Government's introduction of compulsory mediation awareness meetings means that no person can apply to the Court to seek the help of the Court to resolve their issues, unless they have attended a Mediation Assessment. There are of course exceptions in cases involving domestic abuse or child protection issues. Further, if mediation is not a workable option, for example one party refuses to take part in it; the case can still proceed to Court. If you have no issues to resolve and simply want to divorce and can reach a financial agreement without the intervention of formal Court proceedings, then you do not need to attend a Mediation Awareness meeting.

The thought process behind the introduction of these meetings is that in the longer term, successful mediation is more often than not cheaper and quicker than negotiations through solicitors or the Court process. Thus, this system ensures that this process is always considered before clients embark on an application to the Court.

However, in some regions there is a shortage of qualified mediators and one has to wonder if the Government has considered the impact of compulsory referrals to mediation on mediators - is the increased intake of referrals going to increase delays for clients?

Amy Walpole, Head of the Family Team at Rogers & Norton Solicitors comments “generally, all Resolution family solicitors will aim to achieve an agreed solution through negotiation and discussion because we all recognise that going to Court is stressful and expensive for our clients. Mediation and collaborative law are additional options which I always discuss with clients. However, these options are not suitable to all clients and reaching an agreement is not always possible without Court intervention. It is questionable whether these clients should then be forced to attend a Mediation Assessment which could delay proceedings and allow tension to increase between the parties. This is a controversial subject and there are swings and roundabouts depending on your client interest and needs. “

Some clients are apprehensive about engaging in the Mediation process as a mediator can provide information to the parties but not legal advice. This ensures that the Mediator remains neutral, and this is why people are encouraged to seek background support and advice from their independent solicitors during and at the conclusion of the mediation process.

If Mediation is not appropriate some people may wish to consider engaging in the Collaborative Law Process which allows a client to benefit from open negotiations by way of 4 way meetings with their partner or spouse and their legal representative. With the Collaborative approach both clients also benefit from receiving independent legal advice throughout the process.

For for information please contact Amy Walpole.

Breaking News from R&N

Promotions as Rogers and Norton strengthens team

 

Partner Amy Walpole has been promoted to head of the firm's family department.  Amy joined the firm in 2002 and qualified as a solicitor in 2003 before becoming a partner of the practice three years ago.  Amy is highly experienced in advising clients on divorce, separation and ancillary relief matters. 

amy.walpole@rogers-norton.co.uk

 

Tom Lawrence, previously an associate with the firm, has become a partner and head of the wills and probate department. Tom joined Rogers & Norton four years ago and specialises in wills, trusts, administration of estates and powers of attorney.  The 2009 edition of the Legal 500 praised him for having “built a reputation for high quality and attentive service”.

tom.lawrence@rogers-norton.co.uk

Managing partner Richard Etheridge said: “We are delighted to announce these two promotions at Rogers & Norton because we attach great importance to nurturing and rewarding talent within our expert team.  Tom and Amy have proved to be industrious, committed and highly able solicitors who we believe will play key roles in the future development and direction of our firm.” 

Founded in 1982, Rogers & Norton has grown from two partners to 12 partners and now has more than 60 fee-earners and support staff. The firm is based in The Old Chapel, Willow Lane, Norwich. 

For further information please contact Amy Walpole on 01603 675604 or Tom Lawrence on 01603 675610.  

www.rogers-norton.co.uk

Rogers and Norton host Bribery Act seminar

Rogers & Norton's Commercial Teams held a workshop on The Bribery Act 2010 at its office on 9 February 2011. 

The Act was due to come into force on 1st April 2011 but has been suspended until 2012. However, speakers Peter Hastings and Lauren Coleman explained to the appreciative audience that the changes due will affect many clients and introducers in the everyday running of their business, with tough penalties such as unlimited fines and imprisonment for business owners and directors found guilty of bribery offences being introduced.  Peter added "Ignorance will be no defence - directors will still be liable and must have demonstrable, active anti-bribery and anti-corruption policies and procedures in place. " Lauren advised the audience that "commercial organisations must incorporate anti-corruption elements into their code of conduct, risk management, due diligence, decision making, procurement and contract management, employee vetting and disciplinary procedures. The organisation must ensure relevant staff are appropriately trained in these areas. Organisations should establish gifts and hospitality policies and registers".

One of the attendees commented " Thank you for last night's presentation which answered several questions that are likely to arise in the various worlds that I work in. It gave a clear idea of the consequences of not having procedures and policies in place - so, as part of the ISO9001 quality system ,that I work on I shall be drafting some policies for my MD to look at as a matter of some urgency.Thank you for arranging the event".

The firm will be organising a series of workshops for businesses and directors and private clients, and also aimed at particular sectors including the construction and healthcare sectors.

Government Announces Abolition of the Default Retirement Age

As widely predicted, the Government announced plans last week to abolish the default retirement age of 65 with effect from the 1^st October 2011. 

Phil Kerridge, head of Employment Law at the Firm, believes that it is vital that businesses understand the impact that the abolition of the DRA will have on them, both in terms of any employees who are approaching (or have passed) the age of 65 and beyond.

“Under current legislation, retirement is one of the grounds of fair dismissal, provided that employers follow a procedure that basically requires them (amongst other things) to give any employee at least 6 months notice of their intention to retire them.

In the short term, if an employer is considering retiring an employee who is due to reach (or who has already reached) the age of 65, the current rules will continue to apply provided that retirement is due to take place by no later than 30^th September 2011.  This will require notice to have been given by no later than 30^th March 2011.

Longer term, employers will find it much more difficult to fall back on the retirement provisions as an alternative to addressing performance issues with their elder staff, which I believe is what often happens at present.  The abolition of the DRA will, for most employers, place far greater emphasis on the need to have regular appraisals/workplace discussions with their workforce.  These will have to be very carefully handled so as to avoid any suggestion that the employer is acting in a discriminatory fashion.”

Phil Kerridge can be contacted for further advice on this subject or any other employment matter on 01603 675603 or at pnk@rogers-norton.co.uk