Personal Injury

A baby damaged at birth has failed to recover damages. In Garcia v East Lancashire Hospitals NHS Trust the court looked at what was the cause of the damage to the child was and determined there was no negligence by the NHS trust concerned. Difficult cases such as this will rest on the medical evidence concerned.

Matthew Bailey says:

"We handle a wide range of personal injury cases and few are as traumatic as when a baby dies or is injured at birth. A damaged child will cost the parents a lot of money to raise and where the hospital has been negligent a claim can be brought. Although in the Garcia case, the connection between the action of the hospital and the damage was not found (and the court determined that even if the child had been induced and the birth been earlier the injury (a stroke) would still have occurred) in other cases a valid claim can be made. It is also important that those responsible are called to account. The same applies if you are injured at work through the fault of an employer or in an accident such as whilst driving the car.

Many personal injury cases can be handled on a no-win, no-fee basis if you prefer and once liability is established the question of damages needs to be determined. If you need any advice on personal injury issues contact us for information"

Call Matthew on 01329 822333 for advice.

Mental Capacity Act

The Mental Capacity Act makes important changes which will affect many people, including the elderly, and those who may not be in a position to manage their own affairs. In October 2007, it came fully into force and the new Lasting Power of Attorney was introduced (replacing Enduring Powers of Attorney for new such powers). Under the Act there are five key points:

• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them, unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• Anything done for, or on behalf of, a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Tim Bennett says:

“Many of our local clients are unaware of the provisions of the Mental Capacity Act. It is wise to enter into a lasting power of attorney so that your affairs can be handled by those you trust once you lose capacity. In addition, the Act includes a new criminal offence of neglect or ill-treatment of a person who lacks capacity. The act aims to ensure that decisions that are made on the person's behalf are in their best interests. It also provides a checklist of things that decision makers must use and it introduces a Code of Practice for people such as healthcare workers who support people who have lost the capacity to make their own decisions.

The Mental Capacity Act set up a new service, the Independent Mental Capacity Advocate (IMCA) service. This aims to help people make decisions about their lives when they are vulnerable, such as those with dementia, Alzheimer's disease, brain injury or a very severe learning disability. It is for those who do not have any relatives or friends to determine matters for them or voice their views."

If you need any advice in this area, want to set up a lasting power of attorney or work with the elderly or vulnerable and need an update on the latest changes call Tim Bennett on 023 9255 1500

Mills v McCartney

Although most divorces involve much smaller sums of money, the recent judgment in the Heather Mills/ Paul McCartney divorce is of general interest in a number of areas. William Donnelly says:-

The case involved a ‘short’ marriage, four years but with a child. In general, where marriage is short the courts look at the assets built up during the marriage rather than applying a straight 50% split as a starting point. It also involved a marriage where there were enough assets to achieve a clean break without on-going maintenance for the lower earning spouse. In many average divorces there is not enough money to achieve this.

Ms Mills was awarded a capital sum that would yield her £600,000 a year in income which was what her needs were determined to be. She received about £24m including properties, which was more than the £15m pre-hearing offer but less than potentially she might have been awarded.

Also of general relevance in short marriages is whether there was a cohabitation period before marriage which increasingly is added on in ascertaining marriage length. Here the court did not accept the parties lived together before the marriage. In some short marriages, if the period when couples do live together is added to a marriage, a longer period is considered with implications for asset division. The court also found there was over spending by the lower earner of the higher earner’s money after the separation and £500,000 was taken from the award to compensate the husband for that sum.

The other relevant issue was proof – keeping paper work. Being able to show what was spent on what items is very helpful in proving issues in a divorce case. The judgment appeared to show that Ms Mills was unable to prove a number of aspects. Whether she might have done had she not represented herself in person at the trial remains to be seen.

Finally the Government recently announced that its proposals to give cohabitants similar rights on divorce to those who are married had been abandoned. Yet many believe there are “common law marriage” rights under English law which do not in fact exist. It is important that our clients do take some advice on their rights before moving in with a partner. It is wise to ensure wills are drawn up and, in some cases, for properties to be owned jointly and the shareholding clearly set out. Those people concerned about financial claims from a partner when a relationship breaks up can reduce the risks (a) by not marrying and simply cohabiting (b) if they are unmarried, ensuring any house in which they live is in their sole name and not that of their partner and (c) if they cohabit and the property is in their name alone, avoiding taking any financial contribution from their partner towards the mortgage

For those contemplating marriage it may be wise to enter into a pre-nuptial agreement. Although they are not legally binding in this country they can sometimes be persuasive.

For more information on this case or other family law related matters call William Donnelly on 023 92551 500

Legal New Year Resolutions

As well as the usual personal New Year resolutions to lose weight, get fit or whatever, we suggest that you also consider making some legal New Year resolutions which are likely to be more enduring than most New Year resolutions tend to be.

Ian Robinson suggests the following personal resolutions:

1. Make a will so that you leave your property to those you choose, rather than a list of relatives that inherit. If you die with a spouse and there is no will, the spouse does not receive all the estate in many cases unless you make a will saying so.

2. If you live with a partner, draw up a written agreement about property and money. A popular myth is that a common law spouse has legal rights as if the couple were married but that is not so under existing law. However, plans to change the law to give new rights to cohabitants may cause some to reconsider moving in with a partner. Consult us on the impact of the proposed changes.

3. Consider whether properties you own with others should be held in joint names (which means if you die they receive your share) or as “tenants in common” which means you can leave your share to whomsoever you choose.

4. If you work with a partner, whether in a partnership or through a limited company, draw up a partnership agreement or shareholders agreement dealing with matters such as how much effort both parties put into the business, what profit shares are taken, what happens if one of you is ill or dies or wants to leave and what will happen if an offer for the company is made.

5. If you trade in business, draw up some standard conditions of sale and purchase and formalise any informal distribution, agency and licensing agreements so that everything is clear. This reduces legal costs if a dispute arises later, as the written terms protect you. If you have existing standard terms, have them checked to ensure they reflect the latest legal position.

6. Check your business’ compliance with recent changes in areas such as data protection and employment law, competition law and intellectual property. An annual legal compliance health check is well worth undertaking.

7. Check that all staff are properly putting into force legal instructions e.g. some Purchasing Department staff do not reject suppliers’ standard terms of trading and fail to send back the buyer’s terms. Regular training for this kind of staff can be provided by lawyers and others.

8. Deal with legal disputes quickly and early to ensure they are resolved without the need to go to court, which is risky and expensive. Consider mediation of disputes rather than formal arbitration or court action and always balance risks and possible legal costs against potential rewards.

If you need legal help in any of those areas contact us on Ian on 023 9286 2424

Rights for Carers to Request Flexible Working

Carers now have a right to request flexible working, just as parents in the workforce already do. There are an estimated 1.6 million employees providing various kinds of unpaid care often for a spouse, elderly parent or other relative. As with parents it is a right to request flexible working, not a right to be granted it.

Andrew Bryan says “Although it is merely a right to make a request, it must be properly considered by the employer and, indeed, with parents the right has led to many flexible working arrangements being approved by employers. Since April 2003, mothers and fathers of children aged under 6, or disabled children under 18, have the right to apply for a flexible working pattern. The Employment Act 2002 gives working parents of disabled children under 18 the right to request flexible working arrangements too. The new right for carers applies if you are caring, or expect to be caring, for a spouse, partner, civil partner or relative or someone you live with. Carers also have the right to take (unpaid) time off work for dependants in cases of emergency.

"Even if the request will be refused proper procedures must be followed. Therefore, it sets out eight business grounds under which an employer can refuse a request. Employers may only refuse a request under one or more of these grounds:

• Burden of additional costs


• Detrimental effect on ability to meet customer demand


• Inability to reorganise work among existing staff


• Inability to recruit additional staff


• Detrimental impact on quality


• Detrimental impact on performance


• Insufficiency of work during periods the employee proposes to work


• Planned structural changes

When refusing a request you must write to your employee stating the ground for refusal and why it applies in the particular circumstances."

If you need guidance on how the new rules apply to you as a carer or as an employer, contact Andrew on 023 9221 0170 for further information.

New Equality Legislation

On 30th April, new equality legislation came into force which protects against discrimination on the grounds of sexual orientation, religion or belief when accessing goods, services and facilities. Legislation banning such discrimination in the employment context has been in force for some time. The new rules have been in the press because some religious groups have wanted exemptions, such as to allow Catholic or Muslim adoption agencies to refuse to place children with gay couples.

Andrew Bryan says : “The rules could have a wide impact. It is now illegal, for example, for a shop or restaurant to refuse to serve someone on the grounds of their religion or because they are homosexual. Similarly, it would be illegal for a school to discriminate against a child because of their parents' sexuality. The guidance which accompanies the regulations make it clear that businesses need to provide services in a non-discriminatory way. The new regulations are very similar to existing anti-discrimination measures that provide protection from race and sex discrimination in service provision.

The regulations mean that business must not -

• Refuse to supply your normal service to someone, or treat them less well than others, on ground of their actual or presumed sexual orientation, or that of someone with whom they are associated or on ground of their religion or belief (or their lack of religion or belief)


• Apply provisions, criteria or practices which put, or would put, people of a particular sexual orientation or people of a particular religion or belief at a disadvantage compared to others


• Treat civil partners on an unequal basis to those who are married, or treat same sex unmarried couples on an unequal basis to mixed-sex unmarried couples, in either case on grounds of their sexual orientation


• Treat someone less well because they have been involved in making, or supporting, a complaint about discrimination of this kind; unless they were acting maliciously in knowingly making a false complaint
• Advertise in a way which indicates an intention to discriminate unlawfully or get someone else to do any of these things

For further information contact Andrew on 023 9221 0170

Becoming a Father

Mothers and fathers could soon be arguing over which of them gets to stay at home with the new baby. From 1st April 2007, mothers and fathers can take maternity or paternity leave because of The Work and Families Act 2006. The act applies to children born or placed for adoption on or after 1 April 2007. The main paternity leave changes are:

• Employees with parental responsibility will be permitted to take up to 26 weeks' extra paternity leave in addition to the standard two-week entitlement which is already in place, by using some or all of any unused maternity leave entitlement (12 months) from the mother. So parents are going to have to decide between themselves which of them may take some of the leave for that six-month period. In some cases the mother might take the first 6 months and the father the second six months, for example


• If an employee ‘borrows’ a period of additional entitlement from the mother, then he must give eight weeks' (previously four weeks') notice before returning to work

Additional Statutory Paternity Pay from 1st April 2007 is £112.75 per week, or 90% of the employee's weekly earnings if 90% is less than that sum. So those on high pay, as with women with maternity pay entitlement of the same sum, may not in practice be able to afford to take the full period off. Like maternity pay which is also at that rate from that date, employers can claim the payments at that level back from the Government. Some employers choose to pay more but they do not have to. Paternity leave is granted to biological fathers and all those with parental responsibility only if he:

• Has at least 26 weeks' service by the end of the 15th week before the baby is due


• Is fully involved in the child's care and upbringing


• Will support the mother or care for the baby. So, no sabbatical or six months on the golf course! However, some families employ a nanny even during the mother’s maternity leave, particularly if the mother usually works and will return to work, so the employee cannot just be laid off during the period of maternity or paternity leave and it is thought this will remain acceptable whether the mother or father takes the leave
  

If you need advice on how this affects you personally or your business contact us for further information call Andrew Bryan on 02392 210 170

Family Law

Anyone sadly involved in a divorce will be aware of the financial as well as emotional cost. The House of Lords on 24th May decided two divorce cases (Miller and McFarlane). In both, one spouse had given up work and was awarded a large share of their earning spouse’s income. A day later, the Court of Appeal reached an important decision on pensions in divorce. These are important cases as they looked at respective contributions between partners in a marriage. They examined the idea of sacrificing a career to look after children and they explained how over time, generations or decades, what people and society think is fair in marriage and on divorce will change. In effect a couple could marry under one set of rules and be divorced later when the laws are different. The court maintained the principle that, where there is enough money, a clean break with no future support for the lower earning spouse is desirable. Mr Miller could afford this but Mr MacFarlane could not. Mr Miller’s wife was awarded £5m for less than 3 years of marriage and Mrs MacFarlane won half the couples’ assets (£1.5m) and £250,000 a year for life. It was not made clear what the position would have been had the spouses continued to work throughout the marriage but simply happened to earn less than their spouse because the work they were qualified or fit to do was lesser paid. There was also some difference in view from the various judges in the House of Lords about what the assets of a marriage are and which business assets might be excluded. However, the cases will help advisers in interpreting the law. At present, English law does not recognise pre-nuptial agreements either, although they can, if the court chooses, be examined so couples cannot arrange their affairs as they choose. Scotland has different divorce laws. It was announced in May that unmarried couples may be given some similar property and inheritance rights to those who are married, but the legislation has not yet been drafted so living together may not in due course avoid the impact of divorce law on couples either. The breakdown of the new Civil Partnerships between homosexual couples is already leading to a need for legal advice in such circumstances. The decision on pensions held that pensions are different assets from cash or property. Here the ex-husband was awarded £3m from his wealthier wife and the Court of Appeal increased this by £650,000 in May’s ruling, in holding that his £900,000 pension fund was not a cash asset in the same way a house or money might be. It has also emerged that the Government proposes to abolish the Child Support Agency and leave parents to enforce their own maintenance orders, except in difficult cases where a new agency will help them recover sums owed by a non-resident parent. If you need any legal advice in this area call William Donnelly on 02392 551500.