End of Life Decisions

It’s been recently reported the Supreme Court has ruled that permission from the Court will no longer be needed to withdraw treatment from patients who are in a permanent vegetative state.

As long as families and doctors are in complete agreement, medical staff will now be able to remove feeding tubes without applying to the Court of Protection.

Relatives who have had to endure the court process in the past said the ruling would really help families dealing during an extremely tragic time.

Previously the Court of Protection has had to provide rulings on individual cases, but the process can take many months or even years, and it costs health authorities about £50,000 in legal fees to lodge an appeal.

There is estimated to be 1,500 new cases each year in England and Wales which would be affected, with about 3,000 patients alive at any one time in this condition.

If relatives agreed and it was found to be in the best interests of a patient, then doctors have been able to withdraw some forms of treatment from a patient in a minimally conscious or vegetative state.

However the withdrawing of food and water has been handled differently. Since the case of Hillsborough survivor Anthony Bland in 1993, it has been regarded as a matter of practice that doctors must seek the approval of a court, even when they and relatives agree withdrawal would be in the best interests of the patient.

When a family is faced with such a sad, traumatic and emotional scenario it is crucial that they have a full understanding of what their relative wants, so planning for later life is vital. Granting a Health & Welfare Lasting Power of Attorney can help give a family control over decisions regarding your care or health needs, should you become unable to do so, it also gives them the ability to carry out your wishes should the need arise.

The knowledgeable team of experts in our Private Client team have a wide range of experience in supporting and advising families when they are planning for the future. If you would like to discuss how we can help you can contact us at wills@rogers-norton.co.uk or on 01603 675631.

Do I need a Jurisdiction Clause?

28th Aug 2018

As Brexit looms, issues on Jurisdiction for dealing with disputes will become more important.

Jurisdiction clauses are included in commercial contracts when the parties want all disputes arising under their agreement to be determined by a particular national court or courts.

A party specifically submitting to the courts of a particular jurisdiction will find it difficult to argue that those courts are not the appropriate forum for the trial of disputes.

If there is no effective jurisdiction clause, the correct forum for the determination of any dispute will have be decided by reference to rules of private international law. This can cause uncertainty and inconvenience and can lead to additional costs and delay in progressing any proceedings.

The clause may provide for jurisdiction in a particular country which is associated with one or more of the parties, or it may provide for jurisdiction in a neutral forum.

There are three main reasons for specifying which forum has jurisdiction:

The Convenience factor – when you want to sue or be sued in the country in which you are based.

Parties may also want to use a preferred judicial system – civil litigation systems vary widely and some are recognised as being preferable to others depending on whether you are a claimant or defendant. If you are the party most likely to sue (e.g. a purchaser or lender), for example, then you will want any dispute to be heard in a jurisdiction which has an efficient judicial system and offers a good range of interim and final remedies.

Where the judgment is obtained will affect how easily it can be enforced. The commercial worth of a judgment depends on its enforceability and the location of the defendant’s assets needs to be taken into account. For example, while an English judgment can be easily enforced against assets located in the UK and elsewhere in Europe, more difficulty may be encountered in South America, for example.

When drafting a jurisdiction clause there are three options:

• both parties submit to the exclusive jurisdiction of a particular court
• both parties submit to the non-exclusive jurisdiction of a particular court
• One party submits to the exclusive jurisdiction of a particular court and the other submits to the non-exclusive jurisdiction of a particular court.

Exclusive jurisdiction clauses limit disputes to the courts of one jurisdiction. An exclusive jurisdiction clause achieves relative certainty – you know where you can sue and be sued. They also offer greater protection in that it is less likely that another court will accept jurisdiction if faced with an exclusive jurisdiction clause.

Non-exclusive jurisdiction clauses expressly provide for disputes to be heard in the courts of a particular jurisdiction but without prejudice to the right of one or other of the parties to take a dispute to the courts of any other jurisdiction if appropriate. Such clauses achieve certainty to the extent that you know that disputes can be heard in a particular jurisdiction which you find attractive but should jurisdiction elsewhere be necessary, it is available. However, although they offer greater flexibility there is the risk of parallel proceedings particularly where the parties or one of them is domiciled outside the EU.

Failing to include specific and explicit jurisdiction clauses in any initial contract can create wide ranging issues at a later date that can cause companies both time and money. It is vital for a company to seek legal advice to ensure that their requirements are fully met and should the relationships break down they have full control of the situation and know exactly what they have to deal with.

We are currently assisting clients involved in litigation in Scotland, Nigeria and also Paris under an International Arbitration Clause.

You can contact us at ph@rogers-norton.co.uk or on 01603 675639.

Author: Peter Hastings

Director

Can you claim against Building Control?

Clients often make this enquiry when they are faced with the issue of defective building works on their home and for whatever reason they are not able to sue the builder or recover damages from them. 

There have been many examples of builders being sued for defective building works, but the claim cannot be enforced due to the building company’s financial position, or even worse insolvency. Historical cases illustrate that there are only extremely limited circumstances when it would be possible to bring a claim against a local authority, even when the building inspector has failed to spot defective construction works in carrying out its building control function under the Building Regulations.

As plans are submitted to the Council for Building Regulations approval and the building control officer inspects the works as they proceed, attempts have subsequently been made to claim that the Council was guilty of maladministration and had failed to discharge its statutory duties – which amounted to a breach of Article 8 of the European Convention on Human Rights, being the right to respect for private and family life.

This has always been denied by the Council leading to homeowners seeking permission to apply for a judicial review – which again has failed based on a number of facts;

• There was no remedy in contract or in negligence.
• There was no public law duty. The legislature had decided had made a decision that local authorities should not be obliged to repair privately owned homes.
• If living conditions were intolerable, the local authority would have an obligation to act under its homelessness legislation.
• The Council did not perform their duties over a prolonged period of time with full knowledge that the failure was having serious consequences for the claimants.
• Notwithstanding the difficulties, the family had lived in the home together as a family unit.
• The direct cause of the defects was the builder`s poor workmanship and his supervening inability or unwillingness to honour the Judgment.

The case highlights the need to ensure that when having building works carried out there is a contract in place with the builder which will protect you if faced with defective works.

It is also a reminder of the need to ensure that, so far as possible, the builder is financially stable so that if the works do not go according to plan they can afford to carry out any necessary remedial works, or, worst case scenario, can meet any Judgment which you may obtain against them.

If you need any help or guidance relating to any part of this article you can contact me at ph@rogers-norton.co.uk or on 01603675639.

What is Defamation ?

With the burgeoning growth of all types of social media, the opportunities for an individual to break the laws of defamation are all too easy, and indeed businesses too. Any comments or statements can be read by thousands of people within minutes, even if they were never meant to be circulated.

Defamation occurs when words or matters are published to a third party containing a false claim or accusation, which could seem to undermine the reputation of individuals or companies.

The aim is to try and redress unjustified injury to the claimant’s reputation and business and can be divided into two areas, slander and libel. Slander is the publication of defamatory words or actions in a temporary form, for example by spoken word. Libel is the publication of defamatory materials in permanent form. The words are given their ordinary and natural meaning to assess whether they would damage the claimant’s reputation.

There must be a specific accusation that causes damage to an identifiable individual when slander is alleged. The statement must cause someone to think less of the individual/individuals to whom it refers.

Libel is not limited to the written word, but could be a statement against a specific individual which would cause someone to think less of the person or people to whom it refers.
Any statement must have caused, or would be likely to cause serious harm to the claimant’s reputation – if this cannot be established then that statement is not deemed to be defamatory.
A claimant has up to a year to bring an action for defamation against the alleged defendant, from the date the material surfaced. The court has the discretion to hear a claim if this period has lapsed, but only in limited circumstances where it is seen as equitable to do so. The individual who is the subject of the defamatory material should seek to bring an action as soon as possible. Although a Protocol should be followed, we have on occasions sought an injunction to protect our client’s interests.
Our litigation team have a wide experience in helping people navigate the complicated world of the libel and slander laws. We have dealt with all aspects of Defamation and Malicious Falsehood. We regularly act at short notice and urgently to protect our clients.
You can contact us at ph@rogers-norton.co.uk or on 01603 675639.