Will changes to the claims process lead to any consumer benefits?

In November 2015 George Osborne (Chancellor at the time) surprised many in his Budget speech by recommending an increase in the Small Claims Track (SCT) limit for personal injury claims from £1,000 to £5,000 and an end to compensation for `minor’ whiplash injuries.

This, he suggested, would lead to motor insurers reducing premiums for all drivers.

Whiplash has long been a bone of contention, with insurers for many years considering the UK to be the ‘whiplash capital of the world’ therefore stopping these types of claim would massively reduce the insurers outlay for compensation and legal costs.

Raising the SCT limit as above would mean that solicitors acting for Claimants with personal injury claims of a value of less than £5,000 cannot recover their costs from the other side. Accordingly, lay Claimants may have to represent themselves against experienced insurance handlers. Insurers have said that such claims are minor and not complicated therefore Claimants should be able to deal with such matters without legal assistance and cases could be settled quicker and cheaper, however Claimant solicitors have argued that this could lead to Claimants being under-compensated.

Now, 11 months on there has not been any proper consultation with relevant bodies for both sides, although it seems clear that it is a matter of when rather than if they are introduced, particularly for the whiplash proposals, even with the change of PM and Chancellor.

In recent years there have been massive changes to the way personal injury claims are made, including the introduction of a fraud database open to solicitors as well as insurers (AskCue), a Portal for low-value (upto £25,000) claims, reduced costs, making success fees and insurance premiums recoverable from the Claimant rather than Defendant, etc., but this time they are seeking to wipe out a huge swathe of personal injury claims in one go.

It seems to be of general agreement from parties representing both sides (APIL and FOIL) that for many years the SCT limit for personal injury cases should be increased as it has remained at £1,000 for nearly 25 years, but perhaps raising the limit to £5,000 is too high at this stage.

This proposal was previously considered in 2013, but was not implemented after it was argued that genuine Claimants would be unable to claim because they could not afford the legal help needed due to wiping out recoverable legal costs.

This time around insurers are extremely keen to get their proposals through and have suggested that they want to ensure genuine Claimants are still fairly compensated without legal assistance, although how they intend to do so is unclear at this stage.

Additionally, a recent report suggests that despite insurers saving over £500m in whiplash claims from recent changes to the law, these savings have not been passed onto the motorist.

Nathan Clay

Nathan Clay

Nathan Clay
Associate Solicitor
Personal Injury Team
0113 227 9355

Posted in Personal Injury | Leave a comment

Will British Courts soon be able to issue Islamic divorces?

Recently it has been suggested that British Courts should be able to issue Islamic divorces through a specialised unit with the aim of protecting the rights of Muslim Women.

Elham Manea, a Professor at Zurich University, is due to make recommendations to the home affairs select committee, proposing compulsory civil marriages alongside religious ceremonies and for penalties to be given to imams who break the rules. These measures potentially could render sharia councils, mainly used by women seeking an Islamic divorce, unnecessary and redundant.

According to sharia law, men can unilaterally divorce their wives by pronouncing Talaq (divorce) three times. However, women are required to obtain a judicial decree on specific grounds or give up financial rights to obtain an Islamic divorce through the sharia council.

The central issue is that many women attending sharia councils have not formalised their religious marriage under British law and are often forced to give up their civil rights to secure an Islamic divorce. Furthermore, some women have reported being forced into mediation or reconciliation by sharia councils even if they have suffered physical abuse at the hands of their husbands.

Sharia councils, of which there are thought to be up to 85 in the UK, have no powers of enforcement but for those who use them their decisions are culturally and religiously binding. Arguably they are thriving because there is no other way for a Muslim woman to obtain an Islamic divorce. If an alternative was offered by the government, the majority of sharia council’s work would come to an end.

Elham Manea is calling for a national campaign to register all Islamic marriages, a process which is already implemented in other Islamic countries such as Morocco and Tunisia. This move, if adopted by the government would be welcomed by many as way of protecting and safeguarding the financial and legal rights of married Muslim women in the UK.

Paul Lancaster

Paul Lancaster

Paul Lancaster
Family Law Team
0113 227 9215

Posted in Family Law | Leave a comment

Hands Off!

Recently, two longstanding high street brands, BHS and Austin Reed, have gone into administration.  In addition to the 12,000 or so employees whose jobs are at risk there are also hundreds of suppliers who may receive only a fraction, if any, of the value of the goods which they have supplied to those two firms.  That is unless their contracts contain a retention of title (ROT) clause.

A ROT clause allows the seller to retain title to (i.e. ownership of) goods which have been delivered to a buyer until the buyer has paid for the goods in full.  These clauses are designed to protect the unpaid seller against a buyer’s insolvency by giving the seller priority over other creditors in relation to the goods concerned.

The Sale of Goods Act 1979 says that title in goods passes to the buyer at the time the contracting parties intend it to pass.  A ROT clause in a contract is evidence that the parties did not intend for title to pass to the buyer prior to full payment even though the goods have been delivered.

Although a ROT clause enables the seller to recover goods which have been delivered but not paid for, that will only be possible if the goods are identifiable and have not been mixed or incorporated into other goods as part of a manufacturing process.

Some ROT clauses contain an “all monies” clause.  A simple ROT clause only prevents title passing in goods which are the subject of a particular contract; an all monies clause reserves title to the seller in respect of goods that have been supplied to the buyer by the seller under other contracts too until all of the goods have been paid for.  The advantage of an all monies clause is that it avoids the need for the seller to allocate specific goods delivered to specific invoices as title to the goods does not pass until the buyer has paid all sums due to the seller.

For a ROT clause to be effective the seller must ensure that it is incorporated into the contract between the parties i.e. that they are contracting on the seller’s terms and conditions, not the buyer’s, as it is highly likely that the buyer’s terms will specify that title passes upon delivery.  A clause in the seller’s terms and conditions will be irrelevant if the contract is based on the buyer’s terms.

If the seller needs to enforce a ROT clause then it needs to act promptly once it discovers that a buyer has become insolvent or insolvency appears likely.

Picture of Luke Patel

Luke Patel

Luke Patel
Commercial Dispute Resolution Team
0113 227 9316

Posted in Commercial Dispute Resolution | Leave a comment

Death Bed Gifts – Can dying wishes be challenged?

Often when dealing with will or beneficiary disputes we hear claims of the deceased, in their final days, telling their family and friends what they want them to have when they die, even if this contradicts their will or the intestacy rules.

If someone is or believes themselves to be close to death they may not have the time or energy to make or change a will but they still want to make specific gifts – can it be done?

The short answer is yes – how it is done is more complex.

In order for a death bed gift to be valid three conditions need to be met:

  1. It must be made in contemplation of death in the near future
  2. It is dependent on the donor dying and is revocable at any time
  3. There must be some giving over of possession of the item or things to indicate that the ownership will change on death.

Valid death bed gifts

Re Craven’s Estate [1937].  The deceased was having an operation and knew there was a high risk that she would not survive.  She told her son and notified the bank of accounts which were to go to him should she die, which she did. Her conduct in notifying the bank was sufficient to show that she had parted with possession of the accounts.

Sen v Hedley [1991] four days before his death the deceased gave the recipient the only key to a box holding the deeds to his house telling her that the house was hers when he died.  The giving of the only key to access the deeds was sufficient to show that he had given her possession of the house.

Invalid death bed gift

King v Chiltern Dog Rescue [2016].  A nephew claimed a death bed gift of his aunt’s house, contradicting her will.  On appeal it was held that the aunt, despite writing notes in which she said that she wanted her nephew to have the house, had not been in contemplation of her death when she gave him the deeds to her house, as, whilst she was elderly and happened to pass away six months later, there was no evidence to indicate that she was contemplating an imminent death.  She had the opportunity to either write another will or to formally transfer the house to him.  The gift failed as simply being elderly, infirm and knowing that your time is naturally limited is not enough to show contemplation of death in the near future.

Valid death bed gifts are rare and after King the conditions will be applied rigidly.    To limit the chance of a gift failing we would always recommend you take legal advice and make a will.

Nicola White

Nicola White

Nicola White
Associate Solicitor
Wills & Probate Team
0113 227 9235

Posted in Wills and Probate | Leave a comment

Tattoo’ll do nicely! Or will it?

Research published this week by the conciliation service, Acas, suggests that some UK employers’ attitudes towards people with tattoos are becoming outdated – and those employers are missing out on talent. In recent years tattoos have broken into the mainstream and become much more common.  A 2015 YouGov poll suggested that young people in the UK are far more likely to have them.  However, this cultural change presents a dilemma for those employers who want the best staff but who are in the habit of refusing to hire staff simply because they have tattoos.

Having a tattoo is not a ‘protected characteristic’ under the Equality Act 2010.  This means that, in contrast to a person’s sex, sexual orientation, race, age, gender, disability or religious belief, an employer can ‘discriminate’ against an employee or job applicant who has tattoos.  The Equality Act 2010 (Disability) Regulations 2010 even go so far as to exclude tattoos from the definition of ‘severe disfigurements’ which might otherwise amount to a disability.

Broadly speaking, employers have the right to set dress codes reflecting how they want their staff to dress or appear.  The code will vary with the type of organisation and the sector the employer operates in.  Many businesses in the service or professional sectors will not want client-facing staff to have visible tattoos.  They may feel that tattoos conflict with their corporate image.  So, as harsh as it sounds, employers are perfectly within their rights to refuse to offer employment to someone with a tattoo.  Employers can even dismiss an employee because they have become visibly tattooed – provided a fair dismissal procedure is followed.

It is ultimately a decision for an employer whether visible tattoos should be viewed as affecting an employee’s ability to do the job for which they are being, or were, hired.  Whilst an employer may be reluctant to hire someone with visible tattoos to work in a client-facing role, there may be less concern if that employee will have no contact with the public.  Many organisations are content to specify that tattoos must not be visible on the hands, neck or face, but take the view that tattoos considered offensive are unacceptable, whether visible or not.

However, employers still need to be careful about enforcing a blanket ‘no tattoo’ policy.  An employee may have visible tattoos for religious reasons – and so be protected from discrimination if they can demonstrate that the tattoo is connected with the expression of their religious belief.

In fact, accompanying the change in social attitudes toward the acceptability of tattoos identified by Acas, we are starting to see a trend in which tattoos are becoming something of an asset to a job seeker.  New industries, such as the digital sector, thrive on creativity.  Not conforming to traditional workplace norms may be viewed as a positive.  As the millennial generation seeks work/life balance and flexibility over pay and benefits, perhaps we are witnessing the dawn of a new age in which employers in some sectors will ask staff proudly to display their tattoos – as a badge of their individuality and creativity – instead of asking them to cover them up.

It is unlikely that tattoos will fall within the remit of the Equality Act any time soon (if ever).  But this new research does shine a light on changing attitudes in the British workplace.  If nothing else, the survey should serve as a warning to employers not to squander talent by writing-off job applicants simply because they have tattoos.  That said, a job-seeker would still be well-advised to think carefully before getting a tattoo – especially a visible tattoo. Just because tattoos are becoming more widely acceptable does not mean that acceptability is becoming universal.  A prudent job-seeker may wish to reflect on the unintended consequences a tattoo may have on their career prospects, especially in later life.

Paul Kelly

Paul Kelly

Paul Kelly
Employment Team
0113 227 9249

Posted in Employment Law | Leave a comment

Don’t Burn Your Cakes

Have you managed by some miracle to avoid the furore which surrounds the Bake Off, or The Great British Bake Off as it is properly entitled? News of its sale to Channel 4 has reached unprecedented levels of media coverage this week. An eye watering £75m was paid for a three-year deal for the show. But what have they actually purchased? Two of the stars of the show have already said that, out of loyalty to the BBC, they will not be moving with the show. It still remains to be seen whether the celebrity judges, Paul Hollywood and Mary Berry, will stay on or not. If not, what is left: a tent; several food processors? Rumour has it that even these are hired. So, what have Channel 4 really paid for?

Well, the root of the value is intellectual property. The format of the show, owned by the production company Love Productions, is the valuable asset. Who would have thought that watching strangers succeed or fail in various baking skills and battling for that ultimate title could become so popular.  But like many television game shows, reality shows and sitcoms, a successful TV format can be protected, licensed and sold like many other creations.

TV formats are a rather odd mix of copyright, trade marks and reputation in the overall set-up or presentation. As a result many instances are seen where copycat formats are created, seeking to duplicate the success of an original format without paying for the privilege of using it. As with all intellectual property rights, the only way to stop these imitations, is to threaten and often take legal action.

Successful TV formats may often seem like simple and almost obvious ideas. But the simpler a format appears, the likelihood is that it is the end result of a very complex process. Many successful formats will have begun with an idea as clear as mud. The skill in producing the final format is not necessarily what is being aired, but how it is aired. This is where we can start to see that the Bake Off may be a simple idea on the surface but much effort has gone into devising exactly how it will work. The presenters may or may not move to Channel 4, but the show has been successful and there are likely to be many individuals waiting in the wings to get a slice, excuse the pun, of the action. There are also potential spin off shows and merchandise which Channel 4 will be able to exploit, which for advertising reasons the BBC has not been able, as well as well positioned advertising revenue.

So, if you have a great idea for a TV show, you may be sitting on an egg worth hatching (or adding to a cake), don’t give it away for someone else to reap the profits. The best way to protect an idea in its infancy is secrecy, but when communicating the idea is necessary makes sure you protect yourself and the concept with confidentiality agreements (also known as non-disclosure agreements, NDAs) and ensure proper legal advice is sought to negotiate any possible contracts.

Ailsa Pemberton

Ailsa Pemberton

Ailsa Pemberton
Intellectual Property Team
0113 227 9260

Posted in Intellectual Property | Leave a comment

Squatters Rights – The Principle, Process and Practical Application of Adverse Possession

The Principle 

Adverse possession is a principle of property law that applies to both residential and commercial property. It is the legal basis on which ‘squatters rights’ can be claimed for land that is occupied by somebody who is not the legal owner of the same.

In order to claim adverse possession of the land in question (the “Land”), the ‘squatter’ needs to be able to demonstrate the following:

  1. Factual possession of the Land, to the exclusion of all others.
  1. An intention to possess the Land (not simply an intention to own).
  1. Possession of the Land without the owner’s consent.

Note that the remainder of this blog relates only to the principal of adverse possession as it applies to registered land.

The Process 

If the above three circumstances have existed for at least ten years, the squatter can make an application to the Land Registry for adverse possession of the Land. The Land Registry will serve notice of the application on the registered proprietor of the Land and, if no objection is made, the squatter will be become the new registered proprietor.

If the current registered proprietor of the Land does object to the squatter’s application for adverse possession, then the application will be rejected unless one of the following three exceptions apply:

  1. It would be unconscionable not to register the squatter as the registered proprietor of the Land.
  1. The squatter is entitled to be registered as the registered proprietor of the Land for some other reason.
  1. The Land abuts the squatter’s own property and the exact demarcation of the boundary between the two plots of land is unclear. The Land must also have been registered at the Land Registry for more than one year.

If the squatter’s application is rejected by the Land Registry but the squatter remains in adverse possession for a further two years, then s/he can make a further application to the Land Registry and presuming the application and the facts surrounding the same are in order, the squatter will be become the new registered proprietor of the Land.

Practical Application 

If when purchasing a property there is a question about ownership and the principle of adverse possession may come into play, it is important to bear the following in mind:

  1. Ask your solicitor to do an index map search of the Land so as to confirm the identity of the registered proprietor.
  1. Refer the issue to both your agent and (if applicable) your lender’s valuer and ask them to consider whether the issue of adverse possession affects the value of the property.
  1. If the seller has been a squatter for at least ten years ask him/her to make an application to the Land Registry for adverse possession. This may delay your purchase a little, but it will always be tidier if the seller is the registered proprietor of all of the property that you are purchasing.
  1. If the seller has been a squatter for either less than ten years or for ten years but their application to the Land Registry is rejected, ask them to provide you with a sworn statutory declaration detailing the full circumstance of the adverse possession. The statutory declaration should refer to a plan and, where possible, photographs of the Land. The statutory declaration can then be used by you to support any future application for adverse possession of the Land.
  1. If the seller does not make an application for adverse possession, consider taking out insurance against the risk of the registered proprietor reclaiming possession of the Land. It is important to remember that if any approach is made to the seller or the Land Registry with regards the adverse possession then the insurance policy will become void.
Beth Laidler

Beth Laidler

Beth Laidler
Commercial Property Team
0113 227 9209

Posted in Property Law | Leave a comment