The Civil Liability Bill – What It Means For You.

Parliament announced on the 5th July 2018 that legislation intended to reform the personal injury small claims sector looks set to be halted until at least September 2018.

Part of the proposed bill which is now due to come into force in April 2019 makes significant changes to the personal injury compensation system by introducing fixed tariffs to apply to Road Traffic Accident whiplash injuries. The insurance industry argue that these changes will result in savings for consumers in respect of car insurance premiums.

The draft order of the Civil Liability Bill sets outs the fixed tariffs for compensation for pain, suffering and loss of amenity payable for injuries lasting less than three months will be restricted to £225. That figure rises to £450 for injuries up to six months, and to £765 where the injuries last nine months. The maximum fixed tariff for a whiplash injury, applying where victims have suffered for up to 24 months, is only £3,725.

The draft order defines ‘whiplash injury’ very wide as a sprain, strain, tear or rupture of one or more of the muscles, tendons or ligaments in the neck or back. The effects may include, but are not limited to, pain in the neck, back, shoulders or arms, reduced mobility in the neck, back or shoulders, headaches, muscle spasms, or a swelling in the neck. Compensation can be awarded only where the claimant can produce evidence of the injury in a fixed cost medical report from an accredited medical expert.

Although not included in the bill, as it does not require primary legislation, is a rise in the small claims limits for personal injury cases. The government intends to raise the small claims limit for RTA cases from £1,000 to £5,000 and other personal injury cases, public or employer’s liability, from £1,000 to £2,000. This change can be made by secondary legislation and will be timed to coincide with introduction of the Civil Liability Bill. As a result of the fixed tariffs the vast majority of whiplash claims are likely to fall within the new £5,000 limit. These changes will result in claimant’s either dealing with the claim themselves, which the government think people can handle, or pay for a lawyer, if they want one from their limited damages.

We believe that changes need to be made to the Civil Liability Bill to stop injured people suffering the biggest hit to their rights in recent years. For now we will have to wait a bit longer to see whether or not the Bill will pass through Parliament. In the meantime we continue to support the campaigns against the changes proposed.

If you require assistance or advice regarding a personal injury claim then please contact Anton Bilinski.

Intestacy. What Happens If You Die Without Making A Will?

It is incredibly important to make a Will to ensure that your estate passes as you intend.

In England and Wales, there is a statutory set of rules which apply if you die without leaving a Will (Intestate) when your estate will be divided according to this set of rules, irrespective of your wishes. Your spouse/civil partner may not automatically receive all of your estate.

If you have children, grandchildren or great grandchildren

Your spouse/civil partner will receive all your personal possession, the first £250,000 of your estate in your sole name and a half share of the remainder of your estate in your sole name over this value.

The other half of your estate over this limit will pass directly to your children.

All children are treated equally including adopted children but step children will not be included.

They will receive their inheritance when they reach the age of 17 or if they marry or enter into a civil partnership before they are 18.

If your estate is worth £250,000 or less, your children will receive nothing.

If you are not married/in a civil partnership, or you have divorced or ended your civil partnership, your children will inherit the whole of your estate.

If you have separated but are still married/in a civil partnership, your spouse/civil partner may inherit, even though you no longer live together.

If you have no children, grandchildren or great grandchildren

Your spouse/civil partner will receive all your personal possession and the remainder of your estate.

Any assets your hold jointly will pass automatically to the surviving joint owner and will not be subject to the Intestacy Rules.

The Importance of Identification

Buying and selling property can be an exciting time and as soon as you have found a buyer or a property to purchase, you will want your solicitor or conveyancer to review the legal paperwork and proceed with property checks as quickly as possible. But before your solicitor or conveyancer begins working on your behalf, they will request various forms of original identification from you. Such forms of identification might include passports, driving licences, utility or bank statements received recently by post. They may also undertake identity checks and searches on you and, as a result, request further identification. This procedure is more than a formality or for record’s sake, it is a preventative against fraud.

The recent cases of P&P Property Ltd v Owen White & Catlin LLP (2018) and Dreamvar (UK) Ltd v Mishcon de Reya and another (2018) both involved fraudsters posing as property owners in selling vacant properties. In both cases the purchase money paid by the buyers to the fraudsters could not be recovered. You will appreciate, therefore that it is in all parties’ interests to make sure proper ID checks are carried out so that fraud can be avoided wherever possible.

Solicitors and conveyancers are now undertaking stringent identity checks on their clients, when clients are selling vacant properties, to ensure as best they can that the persons who have appointed them are legitimately who they say they are. This can sometimes take time and require the need for further identification to be provided. Rest assured, the checks are being undertaken for the benefit of all parties involved.

Lisa Thornhill, Conveyancing Solicitor, Adams Harrison

Are You A Separated Parent And Thinking About Taking Your Children Abroad On Holiday?

As the summer months approach us, many begin dreaming of taking a break from reality and jetting off abroad with the children for a holiday. However, if you are a separated parent you need to consider carefully whether you are legally entitled to carry out your plans.

1. There is a Residence Order or ‘lives with’ Child Arrangements Order in place

If there is a Residence Order or Child Arrangements Order in place, ordering that your children ‘live with’ you (formerly known as a Residence Order) then you are able to take your children abroad on holiday for up to 28 days. The order must stipulate that the children are to ‘live with’ or ‘reside’ with you after the words “it is ordered”. If you do have an Order of this nature and are travelling abroad with the children, then it is still courteous to inform the other parent of your intentions. The only way you would be unable to travel abroad on holiday with the children when there is a ‘lives with’ Order in place, would be if there was also a Prohibited Steps Order in place preventing you from doing so.

2. There is a Contact Order or ‘spends time with’ Child Arrangements Order in place

If the Child Arrangements Order does not legally record that the children are to ‘live with’ you as explained above, or you are the parent that ‘spends time with’ the children (previously known as a Contact Order) then you must obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

3. There is no Court Order in place in relation to the children

Whether you are the children’s primary carer or not, you would need to obtain the consent from everyone who shares Parental Responsibility for the children, before you are able to take the children abroad on holiday.

4. Who shares Parental Responsibility?

A child’s mother will always have Parental Responsibility (unless a public law order has been made stipulating otherwise). A child’s father will share parental responsibility if he was married to the mother, he is named on the child’s birth certificate (only applicable to births registered after 01.12.2003), he and the mother have entered into a Parental Responsibility Agreement, or the Court has made a Parental Responsibility Order in the father’s favour. Other third parties, such as step parents, guardians or same sex parents may also share Parental Responsibility, by virtue of a Parental Responsibility Agreement or Parental Responsibility Order. A third party could also acquire Parental Responsibility if they have a Residence Order or ‘lives with’ order in their favour.

5. What happens if I cannot obtain the necessary consent?

For the avoidance of doubt, it is always recommended that consent from the necessary third parties is obtained in writing before a holiday is taken. If consent is not given or refused, then it would be necessary for you to make an application to the Court for a Specific Issue Order before your intended holiday. The Court are able to make an Order permitting a foreign holiday in the absence of consent from the necessary third parties. If the other parent or person with Parental Responsibility wants to prevent a foreign trip for a specific reason, then they could apply to the Court for a Prohibited Steps Order. If you travel abroad with the children without the appropriate consent or Order of the Court, then you could potentially be prosecuted for child abduction.

If you are unsure whether you are acting appropriately, or wish to receive further advice or assistance in this regard, then please do not hesitate to contact our Family Department.

Kerri Westlake

Graduate Legal Executive

Refund of Employment Tribunal Fees

The Lord Chancellor has provided an update on employment tribunal fees to the House of Commons Justice Committee. A large number of potentially eligible people have apparently failed to apply since the refund scheme was rolled out in November last year, following the abolition of Tribunal fees. The Ministry of Justice is therefore writing to affected people in order to raise awareness. The first batch of 2,000 letters was issued on 9 April 2018.

If you paid a Tribunal fee in the past then it is likely you can apply for a refund. See our previous blog dated 24th October 2017. Should you require assistance with this process then please contact us.

Employment Law Update Winter 2017

We are pleased to bring you our Winter 2017 Employment Law update

Please click on the image below to download your copy.

Adams Harrison Employment Law Newsletter Winter 2017 Image

Recover Tribunal Fees Previously Paid

Following the Supreme Court judgment on Employment Tribunal fees an announcement has now been made on the first stage of the scheme  to be reimbursed fees paid whilst the fee regime was operational.

Up to around 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks.

If you paid a fee as well as being refunded this you will be entitled to interest of 0.5%, calculated from the date of the original payment up until the refund date.

The opening phase of the refund scheme will last for around 4 weeks. If you wish to register an interest in being refunded Tribunal fees paid we can assist and pre-register your refund request.  Contact us at enquiries@adams-harrison.co.uk.

Employment Tribunal Fees Abolished

A fee regime was in place from 29th July 2013 whereby fees had to be paid upon issuing a claim before an Employment Tribunal and upon the case going to a full trial. The fee for issuing a claim was either £160 or £250, depending on the type of claim. The hearing fee was £230 or £950. On 26th July 2017 a judicial review case was heard at the Supreme Court brought on an application by Unison against the Lord Chancellor. The Supreme Court declared that fees in the Employment Tribunal and Employment Appeal Tribunal were unlawful, under domestic and EU law. It quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court determined that the fee regime effectively prevented access to justice and was a breach of common law and constitutional rights. It was also held that it was indirectly discriminatory to have fees contrary to the Equality Act 2010.

As a result of this case all claims brought before an Employment Tribunal from now on will not incur a fee. It also means that that those Claimants that incurred fees at anytime during the four year period whilst the fee regime was in place are entitled to a refund. The detailed arrangements for recovering previously paid fees was due to be announced in September but the scheme has yet to be revealed.

There is now the potential for reinstatement of claims that were rejected by the Employment Tribunal as a result of a failure to pay the correct fee. There is also legal argument for allowing claims out of time on the basis that the Claimant could not afford to bring the claim when fees, that have now been held to be unlawful, were in place.

If you have any queries about fees or past or current claims our employment law expert, Jenny Carpenter can assist.

Pre-Action Protocol For Debt Recovery.

It is worth being aware that a new Civil Procedure Protocol comes in to effect on 1st October for debt recovery.  Therefore, if you are a business seeking payment of a debt from an individual, including a sole trader there is a protocol you should be adhering to before you issue County Court proceedings.  This includes proceedings within the small claims track.  A formal letter of claim must be sent, containing specific information and providing the debtor with prescribed forms to complete and return within 30 days.

The protocol does not apply to business to business transactions and dealings.

The protocol could have a significant affect on companies and businesses owed money as the process to recover debts will be more cumbersome and time consuming.   Debtors can delay payment by up to 90 days.

There will be penalties for businesses failing to adhere to the protocol by suing individuals before the protocol, including the letter of claim have been complied with. The consequences include:-

a)      Further delay in collection of debts if the court determines that formal legal proceedings are stayed (paused) whilst failures to comply with the Protocol are dealt with.

b)      The possibility of costs sanctions in that the creditor may not be able to recover their legal costs, or worst still will have to pay the debtor’s legal costs.

c)      Inability to recover interest from a debtor or recovery at a reduced rate.

Some organisations may need to revise their debt recovery procedures to take into the new protocol.

We can provide advice on the procedures that you are required under the protocol to have in place.  We can write on your behalf the formal Letter of Claim that is a requirement of the Protocol.

What is a Lasting Power of Attorney ?

We all know that writing a Will is important, but too few of us recognise that we should also consider something called a Lasting Power of Attorney (LPA.) LPAs give another individual the legal authority to look after specific aspects of your affairs. There are two types of LPA:

1Health and Welfare– This allows you to choose a person (or persons) to make decisions about things like your daily routine and medical care.

2. Property  and Financial Affairs- This allows you to choose a person (or persons) to make decisions about money and property such as paying bills or selling your home.

Why should I make an LPA?

As people may become incapacitated through accident or illness, we would recommend putting in place an LPA at the earliest opportunity. If you do not have an LPA and later become mentally incapacitated, relatives may face delays and expense applying to the Court of Protection to take control of your finances.
For an LPA to be effective, it must be registered with The Office of Public Guardian. Your Attorneys can only act on your behalf once the LPA has been registered. If it is a Health and Welfare LPA, then they can only act once the LPA has been registered and you have lost mental capacity.

I have already made an Enduring Power of Attorney- do I need to make an LPA?

EPAs were replaced by LPAs in 2007. If you have already made an EPA, it is still valid, but does not allow your Attorneys to make decisions about your health and welfare. You may therefore wish to consider putting an LPA in place for Health and Welfare.