The vast majority of the public will not be aware of the impending reforms set out by the Government in respect of an increase to the Small claims limit for claims involving road traffic accidents.  This reform raises the threshold of claims to £5000 from £1000 in addition to the introduction of a tariff system, which will see the vast majority of claims falling under this new procedure.  As a result, most claimants will not be able to access legal representation as costs cannot be recovered in the small claims court.

There will no doubt be a restriction of access to justice for the injured, as members of the public will not have the benefit of skilled, independent legal advice to circumnavigate not only the rules, but also see the correct level of compensation / damages.  They will also be faced with the googly of a well-funded insurer, who will have a legal outfield who will put out a very strong field.

We fear this will result in an uneven playing field and that is ‘just not cricket’.

In the event that you have been bowled out in a road traffic accident, when it was not your fault, please contact David Lydon at Sydney Mitchell Solicitors who will come out to bat on your side!

David Lydon 0808 166 8974 Email: d.lydon@sydneymitchell.co.uk

Lucy Bluck, a member of Solicitors for the Elderly at leading West Midlands’ law firm Sydney Mitchell comments on the findings of a new report produced by SFE (Solicitors for the Elderly) and an independent think tank, Centre for Future Studies.  The report states that UK residents are leaving medical and care decisions to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis.  The study found that:

  • 98% of people in the West Midlands leave important health and welfare decisions to chance
  • By 2025, it is estimated that more than 13 million people who are at risk of mental incapacity will not have put safeguards in place appointing someone to assist with or make decisions on their behalf
  • 71% would like a family member to be able make medical and care decisions on their behalf in the event that they were unable to make such decisions themselves
  • 81% have not  discussed their preferences for end of life medical treatment and care wishes
  • 36% admit to having made no provisions at all, such as a will, LPA, pension or funeral plan
  • A staggering 70% of people incorrectly believe that their ‘next of kin’ will be able to make medical and care decisions if they are no longer able to .Without the necessary provisions in place, potential life-changing medical and care decisions can be taken away from loved ones
  • 80% of those questioned in the West Midlands are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves
  • 60% believe that being on the NHS organ donor register ensures that organs are automatically donated following their death; however this is not the case
  • Only 2% of those surveyed in the West Midlands by SFE have a health and welfare LPA in place

Coalition of partners join forces to warn of ‘incapacity crisis’ led by SFE, including Baroness Ilora Finlay, Alzheimer’s Society, Dying Matters, Age UK, Anchor, and SOLLA

What is a Lasting Power of Attorney (LPA)?

An LPA is a powerful legal document, which allows a person (or ‘donor’) to choose one or more individuals (known as attorneys) to handle their affairs in the event that they are no longer able to do so themselves, for example if they lose mental capacity. Attorneys are usually trusted family members or friends, but people can also select a legal professional as their attorney. 

An LPA can only be put in place while a person has the mental capacity to do so. It’s important to plan ahead and get your wishes down on paper as early as possible to ensure that whoever you choose to manage your affairs can retain control, should you lose capacity.

There are two types of LPA: a health and welfare LPA (H&W LPA), and a property and financial affairs LPA (P&F LPA). The former covers things like choices around care plans, medical treatment and end of life wishes.  The latter deals with the management of property, other assets, bank accounts and bill payments.

There are currently 928,000 Health and Welfare LPAs registered with the Office of the Public Guardian (OPG) across England and Wales, compared to the 12.8 million people over the age of 65 who run the risk of developing dementia – a difference of nearly 93%.

The forecast shows the disparity will continue, leaving millions in limbo. By 2025, it’s calculated that 15.2 million people will be at risk of mental incapacity and it’s estimated that 2.2 million health and welfare LPAs will be in place. 

SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity.

It is crucial to have a conversation with loved ones in order to make your specific medical and care wishes known – such as, where you are cared for, whether you wish to be an organ donor and whether or not you would want to be resuscitated in certain situations– otherwise your preferences can not be taken into account.

The campaign calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion and then prepare a Lasting Power of Attorney giving the people you have chosen the power to make those decisions

Lakshmi Turner, Chief Executive of SFE, said:

“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.

“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.

“It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom; it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”

Jeremy Hughes CBE, Chief Executive of Alzheimer's Society

“We welcome this initiative. Lasting powers of attorney for health and welfare too often get overlooked.

“People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their attorney for health and welfare is one of the ways people can do this. A health and welfare LPA provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.”

For help or advice on this or other private client matters, please speak to Lucy Bluck l.bluck@sydneymitchell.co.uk 0808 166 8860

“In life we should expect the unexpected but the outcome is not always as we imagine”

They say safety is a choice we all make…what utter nonsense!!  Sometimes that choice is taken away from us, when things occur beyond our control. The consequences can be far reaching.

Imagine for a moment, walking down a street, having undertaken a pilgrimage to your favourite coffee house to purchase a latte and spending your precious time doing whatever you want or need to do, whilst subconsciously avoiding the everyday hazards which present themselves in our busy lives.

Suddenly you are struck from an object falling from a building causing you to drop the precious latte, which in itself is a tragedy but also causes injury. 

The effect of such an incident can be far reaching not only in terms of caffeine withdrawal but also resulting in a potentially serious injury to you. The domino effect which occurs thereafter in terms of both your domestic and professional life can be quite far reaching and costly to both you and your family.

David Lydon, Personal Injury Specialist, Sydney Mitchell 0121 698 2200

Napoleon once said

There is no such thing as an accident, only a failure to recognise the hand of fate.

I disagree, whilst some would consider it fate, there will have been a reason for the object falling from the building. This may be as a result of a failure to properly secure the object or mere neglect on behalf of the owner but more importantly preventable.

Legal bit

There is a duty on an occupier, and sometimes an owner to keep premises adjoining the highway from falling into disrepair so as not to cause a public nuisance. It is said that a public nuisance arises from an act or omission that inflicts inconvenience on all members of a class that come within the sphere of its operation.

If you have been injured as a result of an accident which you could not avoid or even contemplate, please feel to contact us to discuss and deal with Napoleon’s premise in the same manner as Battle of Waterloo.

“Please note the author does not have a caffeine addiction.”

For help or advice on injuries as a result of falling objects or other personal injury matters, please speak to David Lydon on 0121 698 2200 or email d.lydon@sydneymitchell.co.uk

The courts will only imply contractual obligations that are realistically achievable. In one unusual case on this point, a judge rejected a breach of contract claim against a professional dog trainer who was said to have failed in her duty to reform the behaviour of a miscreant puppy.

The Fox Terrier’s owner had sent her on a two-week intensive course with the trainer who, she claimed, had promised to stop her nipping, jumping up, chewing furniture and barking. On returning home, however, the puppy was said to have swiftly returned to her old ways and become uncontrollable. The owner sued the trainer for the return of the £2,800 she had spent on the puppy’s schooling, but her claim was rejected by a district judge.

In dismissing her appeal against that ruling, a more senior judge noted that the trainer had been dealing with a puppy, not a machine. The trainer had given no guarantee that the course would permanently resolve the terrier’s behavioural issues and any statement to that effect would have been unrealistic.

The trainer had achieved some, if not all, of her objectives in schooling the boisterous puppy. The owner lived in a one-bedroom inner city flat and there was evidence that a failure to adequately exercise and discipline the puppy after her return home caused or contributed to the regression in her behaviour.

Contact Gemma Parker, Chartered Legal Executive, for help and advice if you are faced with unrealistic legal claims.  g.parker@sydneymitchell.co.uk

 

Family judges will approach pre-nuptial agreements with greater respect following a landmark Court of Appeal ruling in a 'big money' divorce case. The Court agreed with Lord Phillips' opinion in Radmacher v Granatino that failing to honour such agreements, if reasonable and freely entered into, on the basis that the Court knows best would be both 'paternalistic' and 'patronising'.

The case concerned a middle-aged former couple who had been married for over 20 years and had three adult children. Their matrimonial assets were valued at £273 million. Much of that sum was family money inherited by the husband, a Swedish national, who had increased his fortune by successfully investing in property. On the day before their wedding in Stockholm, they had signed a pre-nuptial agreement to the effect that their assets would be kept entirely separate throughout the marriage.

Following their separation, the husband had offered the wife £38 million in cash and a stake in his company. That was well in excess of her assessed needs, which came to £22 million, and was also substantially more than she would have been entitled to on a strict application of the agreement. The husband's approach was broadly accepted by a family judge, who awarded the wife a £51 million lump sum and a substantial shareholding in the company.

The wife challenged the award on the basis that the agreement should have been entirely ignored, in that she had not received legal advice before signing it, and that the equal sharing principle should have held sway. She sought an increase of her award to £116 million, which would still have left the husband with the lion's share – 57.5 per cent – of the overall pot.

In dismissing her appeal, however, the Court noted that the judge had described her attempt to claim ignorance of the agreement's wording and effect as dishonourable. She had fully appreciated the implications of the agreement, which was in effect part of their marriage, metaphorically taken with them wherever they went. She had taken an autonomous decision to enter into an agreement that was both commonplace and binding in Sweden and it could not be ignored simply on the basis that family judges know best.

The wife had also complained that the shares that formed part of her award could not readily be converted into cash and she had thus been denied a clear exit route from the husband's financial domain. The Court accepted that that part of the award was not ideal and urged the former couple to seek a better solution by agreement or mediation.

Says Mauro Vinti, Partner

A well-constructed and executed pre-nuptial agreement can be valuable for future protection. Contact us for advice.

m.vinti@sydneymitchell.co.uk

The motor insurance industry has for 25 years been engaged in legal warfare with credit hire companies that lease replacement transport to those whose vehicles are damaged in accidents. It is perhaps easy to see why, in the light of a case in which hire charges were run up that totalled over 20 times the value of a written-off car.

A woman’s car, which was worth about £775, had been damaged beyond repair in a collision with another vehicle, the driver of which was wholly to blame. She leased a replacement vehicle through a credit hire company for four months, at a cost of £20,109. The other driver’s insurers agreed to compensate her for her whiplash injuries, but denied liability to cover any part of the credit hire charges.

In dismissing that part of her claim, a judge found that the credit hire company had assured her that she would never have to pay the car hire charges out of her own pocket. In those circumstances, she had never been under any obligation to pay the charges and the replacement car had effectively been provided free.

In upholding her appeal against that ruling, however, the High Court found that she had a contingent agreement with the credit hire company that, if her claim was successful, the latter’s charges would be paid out of her damages. Had she lost her case, she would not have had to pay the charges, but that did not mean that the replacement car had been provided to her for free.

The Court acknowledged that, on the face of it, the amount of the charges appeared eye-watering when compared to the value of the written-off car. However, it consoled itself with the thought that, had the insurers admitted liability earlier and put the woman in funds, the hire charges would have been a good deal lower.

Contact Mike Sutton m.sutton@sydneymitchell.co.uk for help or advice on this or other related personal injury matter.

People in debt are highly vulnerable and professionals who advise them are for that reason subject to intense regulation by the Financial Conduct Authority (FCA) and the courts. The point was made by a case in which a debt management specialist whose conduct fell far below required standards of competence and probity was banned from being a company director.

The man was a director of two companies that provided advice and services to those in debt. Following an FCA investigation, it emerged that client monies were not being rigorously ring-fenced or segregated from company funds. Record keeping was also defective to the point where it proved impossible to provide an accurate reconciliation of client funds.

After the FCA inquiry was launched and it became clear that the companies were no longer viable, substantial payments were made out of their funds to the man or to other businesses that he controlled. One of the companies had also made misleading claims in advertising that it was capable of dramatically reducing clients’ debts and halving repayment periods.

After the Secretary of State for Business, Energy and Industrial Strategy launched proceedings, the High Court noted that the companies’ clients were entitled to rely upon their integrity and good governance. There was some mitigation in that record keeping difficulties had in part been caused by problems with a bespoke software package. Money that the man had removed from the companies was regarded, at least by him, to be no more than his due and he had been negligent, rather than deliberately and flagrantly dishonest.

However, the Court noted that he had little or no knowledge of the regulatory regime that applies to debt management companies and equally minimal insight into their importance. After the companies entered administration, he did not appear troubled by the fact that financially vulnerable clients had lost very significant sums. He was guilty of serious misconduct and his disqualification from holding office as a company director was mandatory. The disqualification would last for 10 years.

If you are facing director disqualification proceedings please contact Leanne Schneider-Rose l.schneider-rose@sydneymitchell.co.uk

Appointing trustees who are also beneficiaries can lead to conflicts of interest and that is why it is always best to appoint independent professionals to do the job. That point was clearly made by a family dispute concerning farmland with development prospects that had a potential value in excess of £10 million.

trustees under fire on farmland development - professional trustees not usedAfter the couple who had bought the 12.3-acre farm in the 1950s died, the land was left in trust for their six children equally. Four of the children had subsequently died and the current trustees were the two survivors and the son of one of them. They were beneficiaries of the trust, as were three of the couple’s grandchildren whose parents were deceased. The trustees had entered into option agreements with a housing developer in respect of the land, giving rise to its high potential value.

The grandchildren suspected that the trustees had failed to act impartially and fairly and that money had been paid to other beneficiaries but not to them. They also wished to check that the option agreements had been prudently entered into and whether the land had been generating any income. Although they had recently been provided with trust accounts, they claimed that they were otherwise being kept in the dark as to the manner in which the trust was being managed.

After the grandchildren launched proceedings, seeking disclosure of a large number of documents concerning the trust, the trustees argued that they were engaged in an illegitimate fishing expedition, aimed at finding ammunition to use against them in a breach of trust claim.

In ruling on the case, the court noted that it was not required to make any firm findings against the trustees, who might have perfectly proper and innocent explanations for everything they had done. However, in granting a disclosure order, it found that, on the evidence available, the grandchildren had raised ample grounds for exciting the suspicions of the court.

The trustees had initially denied, on a very weak basis, that the grandchildren were beneficiaries of the trust and had taken an extreme and indefensible approach to the disclosure issue. A less confrontational and more cooperative approach might well have avoided the dispute and, by putting forward a series of hopeless arguments, the trustees had brought the litigation on themselves. The grandchildren had the right to hold the trustees to account for their stewardship of the trust and were entitled to know what had been done with the trust property.

It pays to appoint professional trustees to avoid the above problems arising.  To discuss your Trust options please speak to Ravinder Sandhu r.sandhu@sydneymitchell.co.uk or a member of the Private client team on 0121 698 2200

 

The motor insurance industry has for 25 years been engaged in legal warfare with credit hire companies that lease replacement transport to those whose vehicles are damaged in accidents. It is perhaps easy to see why, in the light of a case in which hire charges were run up that totalled over 20 times the value of a written-off car.

A woman’s car, which was worth about £775, had been damaged beyond repair in a collision with another vehicle, the driver of which was wholly to blame. She leased a replacement vehicle through a credit hire company for four months, at a cost of £20,109. The other driver’s insurers agreed to compensate her for her whiplash injuries, but denied liability to cover any part of the credit hire charges.

In dismissing that part of her claim, a judge found that the credit hire company had assured her that she would never have to pay the car hire charges out of her own pocket. In those circumstances, she had never been under any obligation to pay the charges and the replacement car had effectively been provided free.

In upholding her appeal against that ruling, however, the High Court found that she had a contingent agreement with the credit hire company that, if her claim was successful, the latter’s charges would be paid out of her damages. Had she lost her case, she would not have had to pay the charges, but that did not mean that the replacement car had been provided to her for free.

The Court acknowledged that, on the face of it, the amount of the charges appeared eye-watering when compared to the value of the written-off car. However, it consoled itself with the thought that, had the insurers admitted liability earlier and put the woman in funds, the hire charges would have been a good deal lower.

Contact Mike Sutton m.sutton@sydneymitchell.co.uk for help or advice on this or other related personal injury matter.

Will forms that are filled in without legal advice are an invitation for dispute between your loved ones after you are gone. The point was powerfully made by a Court of Appeal case in which two home-made wills, signed by a retired postman, created an open sore that drove his family apart.

In 1998, shortly after marrying his much younger second wife, the man made a will by which he left her the entirety of his estate, which was worth about £600,000. In 2012, a few months before his death, aged 74, he made a second will by which he left legacies of £15,000 each to his wife and a grandchild and the remainder to his oldest son by his first marriage.

Neither will was professionally drafted and a judge found that both of them were invalid and the man had thus died intestate. The judge was unable to find that the 2012 will had been properly witnessed or that the man knew and approved its contents. The 1998 will, which had been completed on a will form, included the details of two witnesses, but their names had been written in block capitals.

In upholding the widow’s appeal against that ruling, the Court noted that the will form did not provide a specific space in which the witnesses could sign their names. However, on the evidence, it was clear that they had attended the man’s home in order to witness his will and were present when he signed it. They had appended their names as witnesses, with the intention of attesting the will, and it did not matter that they had done so in capitals, rather than ‘signing’ the document in the usual modern sense of that word. The 1998 will was therefore valid.

For help and advice on this or other contentious probate matter, speak to Hayley-Jo Lockley h.lockley@sydneymitchell.co.uk or Kamal Majevadia k.majevadia@sydneymitchell.co.uk on 0121 746 3300.

For help on writing your will or private client issues and getting your will right in the first place, please speak to a member of the Wills, Trusts and Probate Team.

Pages

UK Top Tier Firm 2017 Lexcel Practice Management Standard Birmingham Law Firm of the Year for 2011 Resolution Collaborative Family Lawyer The Law Society Accredited in Family Law Conveyancing Quality Scheme

 

Subscribe to Personal Law Updates