More success for our personal injury team

We were delighted to be able to help a client recently, who had been injured in somewhat unusual circumstances – when a passenger on a local bus. Whilst on the journey, a collision occurred causing the bus to mount a grass verge and throw the client upwards. A window then imploded, leaving our client with a temporary hearing impairment/tinnitus, together with back and hip injuries.

Whilst there was no issue regarding liability, there were complications in relation to demonstrating a link between the collision and the injuries sustained, because of pre-existing complaints in respect of hearing and the hip.

Medical evidence obtained by the insurers prior to our involvement proved to be inconclusive. Further investigation highlighted questions concerning the extent to which new injuries had been caused by the collision, rather than pre-existing injuries having been exacerbated in terms of symptoms.

Further complications arose due to our client being unable to return to her pre-accident job and review of the medical history identified numerous medical entries many of them pre-dating the accident but still recent. Accordingly it was accepted that the best approach was to leave the medical position vague leaving us to negotiate the best possible terms in circumstances where further medical investigation may well have demonstrated that ongoing problems were not accident related.

We were very pleased to be able to negotiate a level of settlement which might not otherwise have been achieved had the medical evidence been investigated more closely.

It was important that we explained the complexities of the case to the client. We also had to demonstrate how we were going to achieve the best possible outcome for her. Our client was delighted with the result and commented on how supportive and compassionate we were throughout the process. She was pleased with our ability to explain things clearly, enabling her to have a full understanding of the intricacies of the case, meaning she was extremely satisfied with the help she received.

It is vital to interpret the evidence and address the challenging issues that clients face on such complicated claims so they have an understanding of why they are making the decisions that they are. It is necessary not to lose sight of the fact that the client may never have been in the situation before, so is unfamiliar with the issues that need to be addressed.

Our client had initially tried to deal with the claim herself, but had realised that it was appreciably more complex than she first thought and needed an expert to advise and support her.

We offer a bespoke service to each of our clients and understand that every accident and personal injury claim is different. We tailor the support we give on an individual basis, so we were delighted when the client praised us for our professionalism and communication together with our exceptional knowledge.

If you have recently experienced an injury through an accident that was not your fault you can contact us at tsn@rogers-norton.co.uk or on 01603 675632.

Success for Rogers and Norton’s Contentious Probate Team

It is sad that a dispute can arise following the death of a loved one. We are however finding that currently we are handling increasing levels of litigation in this area. A recent case saw our client, the bereaved wife, being left without reasonable financial provision from what was a sizeable estate. There can be many explanations for this, sometimes it may be intentional but on other occasions it is simply because a best intention to make a Will has not been followed through.

On this occasion the contentious probate team were able to successfully recover a significant proportion of the estate, thus helping the widow provide for her future, following inadequate provision in her late husband’s will. A successful mediation was able to achieve an appropriate outcome.

Our involvement continued beyond the mediation, as we had to ensure that following the variation of the estate the widow was not adversely affected by what would be a variation in the liability for inheritance tax. The increase in her share of the estate would reduce, if not extinguish, the liability for inheritance tax on the estate and we ensured this saving was achieved.

We also ensured that the estate accounts correctly reflected the value of the assets and successfully challenged the omissions of the estate’s executors, one of whom was a professional appointment. It was important to ensure that all of the assets had been correctly valued and included in the estate that the widow had secured an increased share of.

Following the conclusion it was a delight to receive a thank you from the client as follows;

“I would like to thank you for your patience and attention involved in dealing with this case, I am so relieved that we can put all this to rest and I can now move on without any controversy in the background. Should I require your services at any time I would not hesitate in contacting you once again.”

Rogers & Norton’s contentious probate team have the knowledge and expertise to handle disputes of all levels and size. They combine the skills and talents of the private client team with the experience of litigation team, to ensure the client achieves the best expert advice and outcome.

The case really illustrates how important it is to take careful legal advice when making a Will and that the absence of one will not automatically mean that intestacy will leave your estate as you wished.
The team can be contacted at mbh@rogers-norton.co.uk or on 01603 675637.

Problems for a first time seller

There are countless articles aimed at first time buyers, as they obviously don’t have house buying experience. They are perceived to lack the knowledge and understanding of the massive step they are about to undertake and so given advice and support from all quarters.

However, what happens when someone has lived in their beloved family home for over forty years and you want to downsize to somewhere smaller and more manageable?

It obviously sounds really simple – it’s exactly like when you made the original purchase! Well that’s often not the case.

To start with – where are the title deeds, are they in a drawer, under the bed or with the bank?

Next, thought needs to be given regarding what works have been undertaken on the house since moving in. If a new extension or conservatory has been built – what information needs to be provided? Similarly with any replacement windows and a new boiler – any prospective purchaser is going to want detailed information on the standard of workmanship and any guarantees that may be in place, for works carried out since the house was last sold.

If a property has been occupied by owners for a lengthy period of time then consideration needs to be given to a number of factors prior to the property going on the market. If this doesn’t happen, then there is a risk of being bombarded with queries and questions when the sale has been agreed, a solicitor instructed and the buyers are desperate to move in.

• Any changes to the structure of the property would have been subject to local planning and building regulations. Have a look for correspondence received at the time.
• The legal title to the property often causes issues. Look for the title deeds and ensure to give them to your solicitor in case they are unregistered.
• Any changes to windows, doors or boilers that have been made in recent years will also have required building control. Look for those certificates in your paperwork and provide them to your solicitors.

There is a lot to consider when moving, and preparing the legal title to a property. It is just as important as tidying up the house for those prospective buyers.

The sale of the life time family home can be both worrying and stressful – it’s a massive change in circumstances that may not be easily dealt with.

Our experienced and talented conveyancing team have broad breadth of knowledge in dealing with a wide variety of property types and will be able support and guide you through the sale of a house and the purchase of a new one if required.

You can contact us at mw@rogers-norton.co.uk or on 01603 675644 if you wish to discuss planning the sale of your property.

The Importance of Pay Less Notices

We recently acted for a construction client regarding a winding up petition, to successfully recover all of their claim for a Pay Less Notice. The case really highlighted the importance of getting the procedure right – our client was really appreciative of our work, as they had initially offered to settle for substantially less than was recovered after our intervention.

A number of High Court cases have underlined the importance of issuing payless notices correctly. It is essential that the correct procedures are followed to maintain cash flow until final account stage.

An accurate payless notice is really important if a deduction from the amount of a payment application is to be upheld. Construction companies may not be able to quote the Housing Grants Construction and Regeneration Act 1996 word for word, but the string of High Court decisions demonstrates how vital it is to instruct people who can.

The courts have commented on the “draconian” effects of not serving valid payless notices. If one is not served (or is not served in time) and regardless of the merits, the entire sum claimed in the payment application is payable.

The courts have also stated however, that if you are on the wrong side of a dispute about payless notices, the act is not to permanently deprive the payer of an interim payment of its money, but to maintain cash flow until a “proper” reckoning is made at final account stage.

That is all very well, but what happens if the payee goes insolvent (or simply disappears) in the meantime?

From a contract management perspective, how do you make sure that the payment procedures are correct?

The obvious place to start is to understand the payment provisions and timescales in your contract, or those which are implied if it is not act compliant. It is absolutely imperative to make certain that all the notices that have to be served are served and on time.

As far as payless notices are concerned, they actually need to be a payless notice. You might wonder if there is any room for manoeuvre, if there is any doubt as to whether the document served on the other party will be sufficient.

Once again, the courts have helpfully stepped in to offer some guidance. A payless notice should be clearly identified as such and served strictly in accordance with the applicable contract terms and its administrative rules. The other party must be able to objectively understand that it is intended to be a payless notice.

The notice should contain sufficient information, including what might be needed to form the basis of an adequate agenda for adjudication for the true value of the relevant part of the works.

Our skilled and experienced Litigation team have a wide depth of knowledge relating to the construction industry – if you are experiencing issues with enforcing a contract you can contact us at ph@rogers-norton.co.uk.

Opposing WInding Up Petitions

A Winding up Petition is an extremely serious matter and is often taken as a final option by a creditor, who has been unable to obtain payment from a company.

There is little time available between the court hearing a petition and the claimant’s grounds for bringing the action. If a company does not respond with a strong case for obtaining a stay or an injunction, then the court will issue a winding up order on the same day of the petition hearing.

At that point, the company is in the hands of the Official Receiver and no longer owned by its owners or managed by its directors. There may be grounds, however for preventing the court from issuing a Winding up Order when the petition comes before it for a hearing.

Our litigation team recently successfully opposed a winding petition on the grounds that the claim and alleged debt were disputed.

The procedure to oppose a winding up petition is to file a witness statement in opposition in court not later than five business days before the date of the hearing of the petition (rule 7.16(1) Insolvency Rules 2016). A copy of the witness statement must also be sent to the petitioning creditor or their solicitor not later than five business days before the date fixed for the hearing. It is also likely that a Validation Order will be required and we are experienced in dealing with such applications.

A winding up petition may be challenged by a company on the following grounds:

1. The alleged debt owing in the demand is genuinely disputed on substantial grounds by the company.
2. The company has a genuine right of set-off against the creditor which exceeds the amount claimed in the demand.
3. In certain other limited circumstances such as jurisdiction, the company likely to become insolvent and technical or procedural errors or delay.

The most common reason for successfully challenging a petition is provable doubt over the amount being claimed. It frequently occurs that a counterclaim exists, whereby the claimant actually owes money to the company, as well as being owed by it. In these cases, the chain of communication and paperwork will hold weight and needs to be adequate enough to demonstrate a serious and substantial cross-claim.

The recent decision of the Court of Appeal in the case of LDX International Group LLP v Misra Ventures Ltd reaffirms the position of the court. It was held that even though the purpose of the court on hearing an application restraining the presentation of a winding up petition was not to conduct a ‘mini trial’, the court must however scrutinise the evidence before it to assess whether or not the counterclaim is genuine and substantial. The material before the judge in this particular case however was held to have been wholly inadequate to show a counterclaim that would extinguish the debt.

If the court feels that the company is in a position to repay some or all of the debt to the claimant through a Company Voluntary Arrangement (CVA), it may dismiss the petition. The court may also adjourn the petition if it believes there is benefit to all in granting breathing space to the company. The claimant may also withdraw the petition if it appears that it is not worthwhile proceeding with it and the attendant costs of liquidation.

The ability to fully understand how the process works is crucial, engaging legal help as soon as possible means we will act on your behalf in all dealings with creditors and the courts, which in itself removes a great burden of stress from your shoulders. .

With good support and advice from knowledgeable and experienced solicitors there are always options to be explored, no matter how bleak the prospects may appear.

Involving our litigation team can help avoid the stress and pressure that comes from court action by creditors.

If you have concerns or issues you can contact our litigation team at ph@rogers-norton.co.uk or on 01603 675639.

What aer your rights ?

What are your rights?

26th Nov 2018

With Christmas fast approaching and our holidays in the summer becoming a distant memory, we are all now considering the expensive task of buying Christmas presents. Not only can it be a difficult task actually choosing the gifts, what happens if we get that choice wrong, they don’t work or quickly break?

When the Consumer Rights Act 2015 became law in October 2015, it was introduced to simplify, strengthen and modernise the law, giving us clearer shopping rights. The Act gives the legal right to reject goods that are of:-

1. Unsatisfactory quality or
2. Unfit for purpose or
3. Not as described.

If this applies, you can obtain a full refund – as long as it is done quickly.

This right is limited to 30 days from the date the product is bought. After this period, you are not legally entitled to a full refund if the item develops a fault, although some sellers may offer an extended refund period especially over the Christmas period. In fact, you should ask for this.

If what has been bought does not satisfy any the above criteria, you have a claim under the Consumer Rights Act 2015. There are several ways of resolving the issue, which depend on, for example, on how you want the retailer to remedy the situation. Your rights under the Act are against the retailer that sold you the product, although you may have other rights against the manufacturer but not under the Act.

If the item was bought over 30 days ago, the retailer has one opportunity to repair or replace any goods or digital content which are of unsatisfactory quality, unfit for purpose or not as described. You can state your preference, but the retailer can normally choose whichever would be cheapest or easier for it to do. If the attempt at a repair or replacement is unsuccessful, you can then claim a refund or a price reduction if you wish to keep the product

If a fault is discovered within six months of buying the product, it is presumed to have been there since the time of purchase – unless the retailer can prove otherwise. During this time, it’s up to the retailer to prove that the fault wasn’t there when you bought it – it’s not up to you to prove that it was.

If a fault develops after the first six months, the burden is on the purchaser to prove that the product was faulty at the time of delivery. In practice, this may require some form of expert report, opinion or evidence of similar problems across the product range.

Digital content

The Act defines digital content as ‘data which are produced and supplied in digital form.’

Just like goods, digital content must be:

1. Of satisfactory quality.
2. Fit for a particular purpose.
3. As described by the seller.

If digital content does not conform to these criteria, you have the right to a repair or replacement of the digital content you’ve bought.

But if a repair or replacement isn’t possible, or doesn’t fix the situation, you can ask for a price reduction. This can be up to 100% of the cost of the digital content.

The retailer will also have to compensate you if any device or other digital content you own is damaged as a result of the faulty digital content you’ve downloaded.

This applies where that damage would not have occurred had ‘reasonable care and skill’ been exercised in the provision of the digital content – even if that content was provided free of charge.

Late deliveries

There is a default delivery period of 30 days, during which the retailer needs to deliver unless a longer period has been agreed.

If the retailer fails to deliver within the 30 days, or on the date that has been agreed, you can do the following:

1. If your delivery is later than agreed and it was essential that it was delivered on time, then you have the right to terminate the purchase and get a full refund.
2. If the delivery isn’t time-essential but another reasonable delivery time can’t be agreed, you’re also within your right to cancel the order for a full refund.

If the retailer proves troublesome it is possible to get a refund through the credit card company under Section 75 of the Consumer Credit Act. Under Section 75, your credit card company is jointly liable for any breach of contract by the company. If a card was used to buy the product then contact the credit card company.

You should also look out for Unfair Terms

Some examples of terms that may be unfair under the Act include:

1. Fees and charges hidden in the small print.
2. Wording that tries to limit your legal right.
3. Disproportionate default charges
4. Excessive early termination charges.

Dementia Workshop

Our Dementia Champion and Private Client Solicitor Laura Rumsey is very busy running Dementia Friends sessions at the moment.

Laura received great feedback from her recent talk at Welborne Village Hall and was praised for making a difficult subject interesting.

She also held a session for staff, to ensure that we maintain our commitment that all those who work at Rogers & Norton have an understanding of how to support those living with Dementia.

We are also running a Dementia Workshop at The Assembly House next Wednesday 28^th November starting at 3.00pm for all those who wish to attend – this is the latest in a series to help give a better understanding to those who live with Dementia.

If you want to come along you can contact me on gr@rogers-norton.co.uk.

Trademark Infringements

Our litigation team recently obtained an injunction for a national company regarding a trademark infringement and advised a worldwide company on the issue of how damages should be calculated for a trademark infringement.

Any compensation due should be calculated by reference to the profits arising from the wrongful use of the mark by the defendant or damages suffered.

Damages are intended to put the claimant in the position it would have been in if the infringing act had not occurred, while an account of profits is intended to make the defendant return the profits made as a result of the infringing act.

Unfortunately it is impossible to claim you are an ‘innocent infringer’ under trademark law, as a registered trademark gives the owner a monopoly right. Though some companies do claim that no confusion has been caused for consumers and customers by the trademarks involved.

In most trademark cases the remedy sought is an injunction, as the cost of bringing the claim can easily exceed any financial remedy. If a company is successful in proving the marks are similar enough to confuse the average customer, they will then have to prove the loss they have suffered, which may well be minimal in many cases.

Most companies, no matter what their size or turnover, are fiercely protective of their trademarks. It may be that the infringing company are substantially smaller, or do not trade in the same sphere of business, a company will strongly defend what they believe is an intrinsic part of their identity.

By taking legal advice early on in the process a balanced viewpoint can be established.

If you believe that you or your company is a victim of trademark infringement you can contact the litigation team on ph@rogers-norton.co.uk or on 01603 675639.

The New Insolvency Rules

We wrote an article concerning the changes to the Insolvency Rules that came into force in April 2017, with the aim of reducing the burden of red tape and bureaucracy together with modernising and consolidating the existing rules.

The main changes for creditors related to the lack of meetings being undertaken and the introduction of a deemed consent procedure. Any claims under £1,000 were deemed approved for dividend purposes, without the need for a proof of debt to be submitted. Creditors were also encouraged to use email and web communication were encouraged giving them the ability to opt out of certain reporting.

Eighteen months on the feedback has been fairly uniform in terms of the positives and negatives. Creditors have welcomed the reduction in the amount of paperwork they receive, as the administration time tended to outweigh the benefits. They can now choose to monitor those cases that are important to them via online portal systems, safe in the knowledge that any dividend information will still arrive by post.

The removal of the need to submit a proof of debt for claims under £1,000 appears to have saved time and costs for all parties, however the level of claims that fall into this bracket is often small.

For those companies that have frequent and often large debts, many have said that claims under £1,000 have now ceased to be administered at all due to the relative size of any dividend received.

The biggest point of debate regarding the changes is the implementation of the deemed consent procedure. Initially it was viewed positively – why have a meeting when more often than not, creditors do not attend?

Issues have arisen however, when creditors want to engage with the process and have the opportunity to question the director or appoint their choice of IP. This maybe because of the size of the debt or the events leading up to insolvency. One creditor’s claim is rarely sufficient (10%) to request that a meeting is convened, so they must now wait until the full list of creditors is available to try to procure the additional support required.

The concept of virtual meetings, however, has been very well received. They can take place as an alternative to the deemed consent procedure and allow to creditors to vote and engage in a similar way to physical meetings. Travelling time to meetings, together with the costs involved, can often discourage attendance, simply dialling in from home is far easy to do.

On balance the changes seem to have been welcomed the by creditors, as it has given them the opportunity to get more involved with the procedures.

Here at Rogers & Norton, the team are experienced in acting for Insolvency Practitioners, businesses, individuals and directors on non-contentious and contentious insolvency matters especially winding up petitions (presentation and opposing). In particular, we advise directors on the potential liabilities of the director. We also advise on Business Recovery and all forms of Insolvency including Liquidation, Corporate Voluntary Arrangement, Administration and Bankruptcy. Our team assist directors who are the subject of personal guarantees.

For more information contact me at ph@rogers-norton.co.uk or on 01603 675639.

No More Smash & Grab

We have reported previously on an important decision made by Mr Justice Coulson regarding the case of Grove Developments Ltd v S&T (UK) Ltd [2018] EWHC 123 (TCC). The ruling effectively ended the ‘smash & grab’ adjudications that had become prevalent in recent years, when it stated that an employer is entitled to run a second decision to determine the ‘true’ value of an interim application for payment, even if the employer’s payment notice and payless notice were invalid.

The highly anticipated Court of Appeal decision has recently been handed down. In a judgment given by Sir Rupert Jackson, that is highly significant for the construction industry, the Court of Appeal has upheld the decision of Mr Justice Coulson.

By a JCT Design & Build Contract 2011, Grove engaged S&T to design and build a new Premier Inn Hotel at Heathrow Terminal 4. The parties fell into dispute about the sum payable as an interim payment together with the deduction of liquidated damages

S&T contended that the Deduction Notice was invalid, because it had not received the Warning Notice before the Deduction Notice was sent, neither had it been given time to read or digest the Warning Notice first. Thus, to use the contractual language, it had not been ‘notified’ by the Warning Notice before Grove ‘gave notice’ in the Deduction Notice.

The Court of Appeal rejected that argument, holding that:

(1) The words “notified” and “give notice” both require the sending and receipt of a notice, so if both notices are received in the correct sequence that is enough to satisfy the requirements of the clause.

(2) No specific time period is required for a party to consider the Warning Notice before the Deduction Notice is received. Whilst the Court acknowledged that this removes any real purpose for the clause, it held that it is impossible to identify any specific period of time which should elapse between serving the two notices, and a requirement for a ‘reasonable’ lapse of time is unworkable and does not satisfy the requirements for an implied term.

This is a significant determination as it makes the Warning Notice a mere procedural hurdle. The Court of Appeal acknowledged that the system provides “no obvious benefit to anyone, if the employer warns the contractor of what he may do just seven or eight seconds before he actually does it”.

However surprising it may seem, the contract requires no more than the giving of notices in a specified sequence – Judges should not generally impose their notions of commercial common sense upon the parties to business disputes. It is sufficient that a scintilla of time elapses between the giving of notices two and three.

If parties wish to give more strength to the Warning Notice, they may wish to consider a bespoke amendment to the standard form.

Our litigation team continue to receive instructions from Developers; Employers; Contractors; Architects; Surveyors and Suppliers (including builders merchants), providing advice on both contentious and non-contentious issues that affect all those within the construction industry.