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.