Private Client Titles ~ Autumn 2006

£48m Divorce Leads to Calls for Pre-Nups to be Binding

 

The implications of the recent ‘big money’ House of Lords divorce cases (Miller v Miller and McFarlane v McFarlane) are becoming clearer following the subsequent decision that the ex-wife of a businessman with a fortune estimated at over £130m should receive a financial settlement valued at £48m.

 

John and Beverley Charman had been married for 30 years and virtually all of their wealth had been created during that time. The husband had offered his ex-wife £20m, which he considered generous as it was ‘more than anyone could spend in a lifetime’.

 

The Family Division of the High Court did not agree with Mr Charman’s argument. The Court ruled that Mrs Charman should receive a lump sum of £40m and retain existing assets of £8m which were already in her name. To this end, a trust set up by the couple was to be divided, not retained for the benefit of their children. Mr Charman has said that he intends to appeal the decision.

 

The size of the award – the largest ever made in a British court – has led to renewed calls for pre-nuptial agreements to be given legal status. At present, a pre-nuptial agreement is not binding in the UK.

 

Says <<CONTACT DETAILS>>, “Pre-nuptial agreements may not be binding, but they do provide evidence of the intentions of a couple prior to marriage. As such, they can have a persuasive effect and may be a sensible precaution in cases where substantial wealth is involved or anticipated.”

 

 

 

 Acknowledgement of Debt Need Not Be Precise

 

The House of Lords has ruled that letters written by a man to his building society, in which he sought time to pay off the balance still due after his home was repossessed, were legally an acknowledgement that the debt was due, even though the amount owing was not specified.

 

Mohammad Rashid had mortgaged his house with the Bradford and Bingley Building Society (B&B). He could not keep up the repayments, with the result that the property was eventually repossessed. The B&B advised him that if the shortfall was not repaid, it would commence proceedings against him. Mr Rashid visited an advice centre which assisted him by writing a letter to the B&B advising that he could not afford to repay ‘the outstanding balance’. Later, a second letter made an offer to repay a smaller sum in settlement.

 

When the B&B commenced legal proceedings, Mr Rashid argued that the debt was now statute-barred because it was ‘out of time’ to bring an action. The dispute went all the way to the House of Lords, which had to decide two main issues.

 

Firstly, the Lords had to consider the question of whether the letters sent on behalf of Mr Rashid were an ‘acknowledgement of debt’, in which case the debt would not be statute-barred. Secondly, the Lords had to consider whether the letters were written, by implication, on a ‘without prejudice’ basis, in which case the B&B could not rely on them in evidence.

 

The Lords considered that the correspondence clearly did acknowledge the debt despite not being specific as to the amount outstanding. They also judged that the scope of the law of ‘without prejudice’ could not be extended to discussions as to how an admitted liability should be settled. Since there was no dispute over the liability, ‘without prejudice’ could not apply.

 

Says <<CONTACT DETAILS>>, “Had Mr Rashid not acknowledged the debt, there is a possibility that the building society might have missed its opportunity to sue him for the shortfall. Furthermore, had his letters been accepted as being on a ‘without prejudice’ basis, the building society could not have referred to them and the success of its action would have been in doubt.”

 

 

Attendance Allowance Changes to Hit Elderly?

 

Attendance Allowance (AA) is a benefit for people aged 65 and over who are physically or mentally ill or disabled and need help with personal care. Disability Living Allowance (DLA) is for people who are disabled and make a claim before the age of 65.

 

The Government intends to change the rules with regard to these benefits in a way which could have an adverse effect on some claimants. The little-publicised changes will affect those in receipt of AA or DLA who move from their own home into a care home. AA and DLA are paid to those who live at home who are severely disabled and in receipt of care. When such people move to a care home, the costs of such care as are met by the state (normally the council), and AA or DLA, are accordingly withdrawn after the claimant has been resident for more than four weeks. This allows temporary stays in care homes, or 'trial runs', without the loss of benefit. Often, temporary or trial stays of longer than four weeks will not lead to a withdrawal of benefit, permanent residence being regarded as commencing when the previous property is formally vacated.

 

Under the old rule, payments would cease if the cost of meeting the care was met as a result of one of a small number of specified pieces of legislation being applicable. The changed subsection reads that the benefit will be withdrawn when ‘any of the costs of any qualifying services provided …are borne out of public or local funds’, which is clearly a much broader definition than the one used in the old legislation.

 

Thus, it appears there will be no exceptions to the rule that AA or DLA will be withdrawn four weeks after the claimant becomes resident in a care home and it remains to be seen if this new wording will be used to justify withdrawal of allowances in situations in which legal residence commences more than four weeks after the person moves in to the care home (i.e. where it is a longer trial visit and their own property is retained for a period before residence is transferred).

 

 

Child Custody – How it Works

 

Arrangements over the custody of children after the breakdown of a relationship are usually best decided without the intervention of the court. Unfortunately, it is not always possible for the two parties to agree over living arrangements or what level of financial support is appropriate. Both parents normally have a legal responsibility under the Children Act 1989 to look after their children, financially and otherwise, until they are 18 years old or have left full-time education.

 

Part of the process of filing for divorce involves completing a Statement of Arrangements. This document contains, amongst other information, the details of how the parties to the divorce would like to arrange custody of any children. If both parties are in agreement, and the court is satisfied that these arrangements are adequate and have been agreed between the parties, then the court is very unlikely to interfere.

 

If the parties cannot agree on child custody, then the court can be asked to settle the dispute. This can happen as part of a divorce or otherwise. Normally, between four and ten weeks after applying for a court order, both parties will be asked to attend a meeting with the judge. The court will generally suggest that the parties meet with a Conciliation Officer to try to encourage an agreement. The alternative – going to court – will almost certainly be a traumatic event for everyone involved and is normally best avoided if possible.

 

The main advantage of using mediation instead of the court process is that it helps to avoid some of the hurt and anger that is inevitable when trying to settle such emotive issues in court. In addition, when an arrangement is reached by mutual consent rather than being imposed, it is more likely that both parties will honour it. The disadvantage of mediation is that it can be quite stressful for both parties to have to meet regularly.

 

Normally, an officer of The Children and Family Court Advisory and Support Service for England and Wales (CAFCASS) will also attend one or more of the meetings. If it is not possible to reach an agreement then the judge will normally request a court welfare report. It is the CAFCASS officer's job to draw up this report and it will involve meeting with the child and the parents as well as other relevant professionals, such as teachers and doctors. It may also involve the CAFCASS officer visiting the parties at home.

 

Within about three to six months a further hearing will be arranged by the judge to explain the decision. In making its decision the court will consider, first and foremost, what is in the best interests of the child. This decision will usually follow the recommendations of the welfare report.

 

For advice on all matters relating to family breakdown, contact <<CONTACT DETAILS>>.

 

Complex Returns – Beware

 

HM Revenue and Customs (HMRC) have announced measures to identify taxpayers with complex personal returns (CPRs). CPRs are returns which show complex features such as substantial land, property, foreign or trust income or ones where there are issues of residence or domicile which will affect the assessment of income to UK tax.

 

CPRs are dealt with by specialist teams, who deal with all aspects of the tax affairs of their ‘customers’ (HMRC’s preferred term for taxpayers). HMRC are undertaking a process by which they intend to identify up to 6,000 new customers during 2006-7. If you are identified as a potential customer of the CPR unit, you will receive a letter advising you that your case is being transferred. CPR teams operate in very much the same way as tax inspectors used to work several years ago in that you will be assigned a tax officer (called a ‘caseowner’ in HMRC-speak) who will be the first point of contact for all communications.

 

It is safe to say that any self-assessment return assigned to a CPR team will be scrutinised more carefully than a ‘normal’ return. It is important, therefore, that if you do get a letter advising you that your tax affairs are being transferred to a CPR unit, you make doubly sure that they are in order.

 

If you are concerned that your tax affairs may not be properly planned or managed, contact <<CONTACT DETAILS>>.

 

Confiscation Orders – Sums to be Done First

 

Confiscation orders, which allow the Government to seize assets owned by criminals that have been bought with the proceeds of criminal activity, are a powerful tool in the fight against crime.

 

Recently, a group of people sought to overturn confiscation orders made against them on the grounds that if their assets were confiscated, they would suffer hardship. They contended that legislation which allows no order to be made where there is a ‘serious risk of injustice’ applied when the effect of the order would be to cause serious hardship. The lower court agreed, deciding that the ‘recoverable amount’ for confiscation was nil on the grounds that the proceeds of the criminal activity would have been spent mainly on drug abuse.

 

The Crown appealed the decision. The Court of Appeal judged that the first thing that had to be done was a calculation of the benefit which the criminals had received from the criminal activity. When that was completed, the order must be made. Only then could the question of serious injustice arise.

 

The case was remitted back to the Crown Court for the calculation to be made.

 

Court Boost for Periodic Payments

 

A recent decision in the Court of Appeal may lead to fewer personal injury and medical negligence claims being settled on a ‘lump sum’ basis.

 

Where serious injuries occur, leading to a long-term or lifetime need for care, settlements can be dealt with by payment of a lump sum, by the payment of regular instalments for life (‘periodic payments’), or by a combination of the two. Where periodic payments are made, these can be indexed for inflation.

 

One problem with periodic payments is which inflation factor is the most appropriate to use. A number of cases have been brought suggesting that since the cost of long-term care is primarily affected by the cost of providing the care staff, the ‘correct’ indexation factor to be used would be one based on the Average Earnings Index (AEI). In the past, attempts to base the indexation calculations on the AEI have failed, with the court insisting that the Retail Prices Index (RPI) should apply. However, the Court of Appeal was asked to rule on this point in a claim for compensation by a worker at Heathrow Airport who suffered a fall and who was left with multiple injuries and in need of long-term care. The Court refused to strike out the claimant’s argument that the compensation should be based on the AEI.

 

The case for use of the AEI will now be tested in court. If it is adopted, the likelihood is that insurance premiums for liability insurance will rise substantially, as over the longer term the AEI has risen much faster than the RPI. It is also likely to lead to an increasing willingness on the part of claimants to have their cases settled by way of periodic payments, rather than insisting on having a lump sum.

 

 

 

Criminals to Face Control Orders

 

What is the Government to do about organised crime if the evidence needed to charge and convict criminals cannot be obtained? The answer, it would appear, is to serve a ‘Serious Crime Prevention Order’ (SCPO) on the suspected criminal.

 

The SCPO is the brainchild of the Home Office and is intended to restrict the movement and communication of the ‘known criminal’, with the intention of curtailing his or her criminal activities.

 

A new paper, entitled ‘New Powers Against Organised and Financial Crime’, proposes that the Home Office should be permitted to place a variety of restrictions on the known criminal. For example, he or she would only be allowed to make calls to authorised telephone numbers or could be prevented from visiting certain places.

 

The proposal is that the civil (‘balance of probabilities’) burden of proof of criminal activity should be used in justifying SCPOs. This would allow their use in cases in which there was ample evidence of criminality, but not enough to obtain a conviction using the criminal (‘beyond a reasonable doubt’) burden of proof. Breaching an SCPO would be a criminal offence.

 

The plans also include moves to increase the amount of data sharing between public and private sector agencies.

 

Says <<CONTACT DETAILS>>, “Given the problems the Government has had with applying similar legislation in the cases of suspected terrorists, it is likely that these proposals will take a long time to reach the statute books.”

 

Denied Boarding Compensation – Limits of Liability

 

It is by no means uncommon for passengers holding confirmed airline reservations to be denied boarding when the airline has overbooked the flight.

Where flights are heavily overbooked, the incentives airlines give to those willing to be ‘bumped’ can be very generous. These can include money, free tickets and overnight expenses. However, a recent case spelled out some of the expenses airline companies will not be required to meet in such cases.

 

It involved a Dr Wiseman, who was denied boarding on a Virgin Atlantic flight from Port Harcourt (Nigeria) to London. Dr Wiseman sued Virgin, claiming compensation for hotel bills, taxi costs, extra meals and the like.

 

The High Court accepted that he was entitled to be recompensed for his reasonable expenditure. However, Dr Wiseman also claimed for expenses incurred by members of his ‘entourage’, who accompanied him in Port Harcourt, and for compensation for mental trauma and damage to his health caused by the delay. In addition, he claimed for expenses he incurred in reimbursing his former fiancée. He claimed that his relationship with her broke up because of his enforced stay in Port Harcourt.

 

The Court was not amenable to those claims. It would appear, therefore, that when a claim for compensation is made in such circumstances, the Court will normally restrict the award to only the reasonable expenses necessarily incurred by the person affected.

 

 

Divorce – When Conduct Matters

 

As regards divorce, recent press coverage has tended to concentrate on the financial settlements awarded following the divorces of very rich couples. One might therefore be forgiven for thinking that the conduct of the parties during the marriage is irrelevant to the settlement made.

 

In the sense of determining the division of the financial assets, the courts are disinclined to take account of conduct, unless it is of the most heinous kind.

 

However, conduct can be a factor in settlements, as illustrated by a recent case in which the divorced couple were wrangling over which of them should continue to occupy their property, which was a tenancy of which they were the joint tenants.

 

In the Court of Appeal, the view was taken that a judge must take a fair and balanced decision as to which of the parties should have the benefit of the tenancy and that all the circumstances of the case (including conduct) are relevant to the decision.

 

In this case, the husband’s behaviour prior to the break-up of the marriage was such that the Court ruled that the tenancy should remain with his ex-wife.

 

We can advise you on your best course of action in the light of recent court decisions.

 

HMRC Seek eBay Traders

 

Are you a regular seller on eBay? Are you proud of your perfect feedback? Are you pleased with the money you have made buying and selling things online? Did you know that the profits you make from trading on online auction sites are probably taxable and that HM Revenue and Customs (HMRC) is looking for you? Did you know the profits of regular buying and selling at car-boot sales are also taxable?

 

HMRC have invested in a search engine tool to look for regular traders on eBay who do not declare their profits and/or who have not registered for VAT despite having a turnover above the VAT limit. HMRC expect to earn an additional £1m annually in VAT as a result. The initiative follows a successful targeting of regular car-boot sale traders, which has swollen the coffers of HMRC with additional income tax.

 

Undertaking transactions with a view to profit is taxable, but merely selling something one-off for more than you bought it normally isn’t. Certain one-off transactions may be subject to Capital Gains Tax (or, less frequently, Income Tax), although these are comparatively rare. The ‘badges of trade’ are many and varied, but if you buy and sell regularly and do so with a view to making a profit, HMRC will almost certainly consider you to be trading.

 

If you are trading, remember that your eBay fees, postage costs and other fees such as PayPal charges will be deductible from your profits. Failure to advise HMRC of commencing to trade and failing to make a return of income may lead to penalties being levied in addition to interest charges for late payment of tax.

 

It is better to be safe than sorry. If you need advice as to whether your car-boot selling or eBay selling constitutes trading, or you have received a notice from HMRC indicating that they are taking a look at your tax affairs, contact <<CONTACT DETAILS>> for advice.

 

 

In Brief

 

Cards Used for Crime to be Cancelled

 

An unpublicised law which has recently been enacted allows the Police to advise banks and credit card companies of the details of credit and debit cards used for unlawful purposes, such as accessing illegal images over the Internet. This will allow the financial institution concerned to cancel the card.

 

Previously, this was difficult to do because of the Data Protection Act, which prevents disclosure of such information in most circumstances.

 

 

In Brief

 

No Income Tax Repayment if CGT Due

 

With the increases in value of share prices and property over the last few years, many people have taken the opportunity to realise capital gains on their investments. When they do so, it is common for their income to fall somewhat.

 

This can lead to a situation in which a capital gains tax (CGT) liability is created but there is an overpayment of income tax under the self-assessment system, because tax is paid ‘on account’ during the year of assessment. In such circumstances, any overpaid income tax will be used to settle the tax due on the capital gain. Only the excess of any income tax overpaid over the CGT due is repayable. Prior to the introduction of self-assessment, CGT and income tax payments and refunds were dealt with separately. This is no longer the case.

 

In Brief

 

Pay Your Fine – Or Else

 

Although the move was almost unreported, the Government has passed into law legislation which is designed to make the collection of fines more efficient, but which also gives draconian new powers to fines collection officers in pursuit of those who do not pay their fines.

 

Among the new powers are:

 

 

The message is – if you have a fine to pay, make sure it is paid on time or risk the consequences.

 

 

 

 

 

 

 

Inaccessible Files Not ‘In Possession’

 

The judgment in a recent case dealing with the crime of possession of indecent photographs of children could have a wider application.

 

In the case in point, a man was convicted on a number of counts of making and of possessing indecent pictures of children on his computer. He was IT literate, being able to build computers from component parts.

 

The man appealed against some of his convictions on the grounds that some of the pictures had been deleted. Using Microsoft Windows, he had put them in his computer’s ‘recycle bin’, which he had subsequently emptied. This appears to remove the files from the computer. In reality, however, it merely makes them inaccessible, unless they are subsequently overwritten, without specialist file recovery software. The man did not therefore have access to those files, although he could possibly have obtained the software that would have enabled him to recover them. Such software is not straightforward to obtain and is not normally available to the public.

 

In the Crown Court, the judge ruled that the images in the recycle bin were in the man’s possession if they were present on the hard drive of his computer. The man appealed to the Court of Appeal, which held that images which he could no longer access could not be said to be in his possession as he did not have the capability of recovering them.

 

This decision could potentially have implications for cases which involve the theft of data and it will be interesting to see if it is referred to in future defences in such cases. The Court of Appeal also made the point that whether or not a person could be said to have possession in similar circumstances would depend on the degree of their IT knowledge.

 

Says <<CONTACT DETAILS>>, “The case also highlights the risk of disposing of old computers and other electronic storage media containing personal or confidential information without a thorough destruction (either physical destruction or degaussing of the medium) of the data. Mere deletion of files, even to the point of reformatting hard drives, is not enough to make the data totally irrecoverable.”

 

 

 

 

Information Withheld From Insurers Breaches Contract

 

Most insurance policies contain clauses which require the policy holder to supply the insurer with relevant information in the event of a claim. Such clauses normally contain words such as 'within a reasonable period of time'. The question of what is a reasonable period of time arose recently in a case in which an insurer sought to avoid liability under a claim on the basis that the policy holder had not supplied the requested information within a reasonable time. In this case there was a delay of two and a half years.

 

What was somewhat unusual in this instance was that the failure to provide the information did not prejudice the insurer's position and, at the first hearing, the court found that since the insurer's position was not prejudiced by the failure, the delay could not be deemed to be unreasonable. The insurer appealed.

 

The Court of Appeal took a different stance, concluding that the insurer had a right to cooperation from the insured and the fact that failure to disclose the information might not prejudice its position was not in point. An insurance contract is one of ‘utmost good faith’ and so the insurer is within its rights to ask for any reasonable information. Furthermore, a material misrepresentation to an insurer may invalidate the policy, even if it is not directly relevant to a claim under the policy.

 

Says <<CONTACT DETAILS>>, "This case has implications for the management of any insurance claim. Information reasonably sought by the insurer should be provided within a reasonable time, or there is the possibility that a claim may be denied on the basis of the breach."

 

 

 

 

 

Law Society Warns of Unregulated Wills Danger

 

The Law Society has issued a warning on the dangers of using unregulated will writers, citing more than a dozen recent examples of problems with wills drafted in this way.

 

One example was where a woman’s entire estate passed to her estranged son, who had not seen her for over 20 years, instead of (as she wished) to her long-term carer. This occurred because the woman’s will, which was drafted by an unqualified will writer, was judged to be invalid owing to a technical error. In another instance, a will was ruled to be invalid simply because the will writer failed to have the testator’s signature properly witnessed.

 

There were also many examples given of will writing companies which had disappeared, which meant that the originals of the wills were impossible to find, and of companies which charged much higher sums for preparing wills than their advertising would suggest. In one case, a charge of £700 was made for a straightforward will.

 

One particularly sad example involved a will writer who appeared to be in league with a trust company, which was appointed as the sole executor of a client’s will and which charged a large ‘termination fee’ when the family decided they wanted to appoint family members as executors.

 

Will writing companies frequently do not have indemnity insurance, so if mistakes are made, there is often no redress.

 

Says <<CONTACT DETAILS>>, “The independent wills market is not regulated and stories of incompetence and worse are not at all uncommon. Solicitors are regulated by the Law Society, which ensures their work is done to a professional standard and which also requires that comprehensive indemnity insurance is carried for the protection of clients so that on those very rare occasions when mistakes are made, the client can obtain proper compensation. Having a will prepared by a solicitor is not expensive and will give you and your family peace of mind that the job has been done properly.”

 

 

 

Listed Buildings Targeted for Enforcement

 

One of the final acts of the Office of the Deputy Prime Minister, before it became theDepartment for Communities and Local Government, was to issue a guidance document for local authorities on how successfully to pursue prosecutions for unauthorised building works to listed buildings, the aim being to improve the level of enforcement of the planning laws that relate to listed buildings.

 

The guidance follows an earlier review in which it was concluded that the system as presently operated is an ineffective deterrent to planning breaches in such cases.

 

Failure to apply for listed building consent or to comply with conditions attaching to a listed building consent are criminal offences, for which the maximum penalty is imprisonment for two years. Being a criminal offence, there is no time limit for the bringing of a prosecution. Furthermore, a subsequent purchaser of a property can be required to remedy any breaches of planning permission by a previous owner.

 

Listed building consents can specify not only the physical appearance of the building, such as locations of openings, but also the materials which are to be used for the works.

 

Offences are often only discovered when a planning application is made for new works – at which point the local authority inspector may well notice that earlier works do not comply with the previous conditions, which should be noted on the file. When that occurs, the new owner will be required to rectify any planning breaches unless retrospective listed building consent is obtained.

 

Says <<CONTACT DETAILS>>, “Planning breaches with regard to listed buildings can have serious consequences and can affect the value of a property considerably. If you are considering buying a listed building or one situated in a conservation area, it is worth taking steps to make sure you do not suffer as a result of breaches of planning regulations by a previous owner.”

 

Motorists Face New Traffic Offence Law and Policy

 

The Director of Public Prosecutions has called for a comprehensive review of his agency's prosecution policy over mounting concern that hundreds of drivers responsible for killing someone are being allowed to plead guilty to charges of careless driving rather than face trial for the much more serious offence of causing death by dangerous driving. A conviction for careless driving carries a maximum sentence of a £2,500 fine. Causing death by dangerous driving, however, can lead to imprisonment for up to 14 years, but is an offence which is more difficult to prove in court. On some occasions, the even lesser charge of driving without due care and attention is substituted.

 

There will be a period of public consultation which will run in tandem with the passing through Parliament of the Road Safety Bill, which will introduce a new offence of causing death by careless driving, which is intended to carry a maximum sentence of 5 years in prison. It is intended that this offence will apply in circumstances such as when a death is caused by an accident which occurs as a result of a driver using a mobile phone whilst driving.

 

A recent survey has indicated that consuming food whilst driving may be as dangerous as using a mobile phone and it is likely that this will be a spur to increased enforcement activity against drivers who eat while they drive.

 

Natural Parent Wins Child Custody Appeal

 

A mother, custody of whose children was awarded by the Court of Appeal to her estranged lesbian partner, has won her fight in the House of Lords to overturn the decision.

 

The mother had conceived the children by artificial insemination whilst in a long-term relationship with her former partner. When the relationship collapsed, a shared residence order was made. The natural mother of the children was opposed to this and, without telling her former partner, moved with the children from Shropshire to Cornwall.

 

In the Court of Appeal, the decision was made that in view of the hostility of the natural mother towards her former partner, the primary residence of the children should be with her former partner. The House of Lords dissented from this view, considering that the Court of Appeal had taken insufficient account of the importance of the fact that the appellant was the natural mother of the children. The Lords ordered that the primary residence should be with the natural mother, but with the appropriate access rights being preserved for her former partner, who was considered to be a figure of importance in the children’s lives.

 

The Lords stressed the consequences for the natural mother were she to frustrate her former partner’s attempts to see the children in accordance with the order of the Court.

 

Family law is currently undergoing considerable change. If you are having problems with custody rights or with any other family matter, contact us.

 

 

Temps and Voluntary Workers Suffer as CRB Changes Policy

 

Voluntary workers and other people who habitually work on temporary contracts may suffer as temporary job opportunities dry up due to a change in policy by the Criminal Records Bureau (CRB).

 

The change will affect people whose jobs are subject to vetting by the CRB – usually where the work involves contact with children or other vulnerable people. These jobs require a ‘background check’ to be carried out by the CRB.

 

Prior to the change, an employer could rely on a ‘portability request’ – whereby a previous employer’s CRB check was obtained from the CRB. These, however, are no longer being supplied. New CRB checks take up to six weeks to complete, which will make obtaining them impractical for short-term appointments, especially those which are required to fill an unexpected vacancy.

 

Guidance on the CRB website stresses the limitations of the re-use of a previous check provided by the applicant and makes it clear that this does not constitute a fresh check. Furthermore, some positions will automatically require a fresh check to be obtained.

 

Voluntary associations and charities are expected to be hit hard by this change in policy. If you are affected, contact us for advice on your legal obligations.

 

Further guidance can be gained from the CRB website at http://www.crb.gov.uk/Default.aspx?page=2244.

 

 

UK Court Rejects Gay Marriage

 

The first civil partnership ceremonies took place in the UK in December 2005, ushering in a new era of recognition for gay partnerships. For all practical purposes, a civil partnership is equivalent to a heterosexual marriage.

 

Recently Celia Kitzinger and Susan Wilkinson, Canadian academics who entered into a same-sex marriage in Canada, went to court to have the contract recognised in the UK as a marriage, rather than a civil partnership.

 

The President of the Family Division, Sir Mark Potter, heard the case. He took the view that the rights afforded by marriage and civil partnership are virtually indistinguishable, but the difference between them is a matter of law and, in keeping with European law, they are not the same thing.

 

The couple have announced their decision to appeal to the Court of Appeal over what they see as a matter of principle. They have been given leave to appeal and have been informed that if they fail, they will have to pay up to £25,000 of the Government’s costs.

 

 

Watch Out for New Car Safety Law

 

Parents with children are warned to take note of new safety laws regarding car seats. The laws came into force on 18 September.

 

The rules have been updated because most cars are now fitted with rear seat belts. Children using an ordinary seat belt are at risk of neck injuries or slipping out of the restraint in an accident.

 

Where the child is under 3 years old, he or she must use the correct child restraint when travelling in the front or the back of a car. The only exception is that if one is not available in a taxi, the child may travel unrestrained in the rear.

 

Where the child is between 3 and 12 years of age, or is up to 1.35m (4 ft 5 inches) in height, the child must use an appropriate child restraint where seat belts are fitted, although there are exemptions. An adult seat belt must be used, if the correct child restraint is not available, in three cases. These are

 

 

A child restraint is a baby seat, child seat, booster seat or booster cushion. Which is appropriate depends on the weight of the child.

 

It is unlawful to use a rear-facing child seat in a seat which is protected by an active front airbag.

 

Where the child is taller than 1.35m (4 ft 5 inches), or is 12 or 13 years old, adult seat belts must be worn where available.

 

Seat belts must also be worn, if provided, on buses, mini-buses and coaches.

 

The driver of the vehicle is responsible for any non-compliance. The penalty for failing to comply is a £30 fixed penalty notice. If a case goes to court, the maximum fine is £500.

 

For more details on the new laws, see http://www.thinkroadsafety.gov.uk/campaigns/childcarseats/pdf/law-leaflet.pdf.

 

What is a Domesticated Animal?

 

A covenant over land that prohibited the keeping of undomesticated animals led to a court case recently in which the meaning of ‘undomesticated’ was the key to the decision.

 

The case involved a woman who occupied a house on a country estate. The land on which her house was situated was subject to a covenant and was allowed to be used only as a private dwelling or for certain agricultural purposes. The covenant also prohibited the keeping of female cattle. The owner of the land kept several animals on it, including horses, geese and ponies. When the occupier complained, the owner agreed to abide by the covenant and a compromise agreement was entered into whereby he agreed he would not keep ‘any undomesticated animals (including horses, ponies and geese)’.

 

A further dispute then arose over the meaning of the compromise agreement. The court was asked to decide whether it meant that (in effect) no undomesticated animals could be kept except for agricultural purposes, or whether it meant that the right to keep undomesticated animals was strictly limited and would include any such animal which could not reasonably be regarded as a pet.

 

In the view of the court, a ‘domesticated animal’ is any animal which is accustomed to being kept by humans and under their control. However, the agreement was in essence two agreements. The first part of the agreement meant that the landowner could not keep undomesticated animals. The second part meant that the landowner could keep domesticated animals for agricultural purposes. However, he could not keep horses, ponies, geese or female cattle.

 

“This matter reached the Court of Appeal largely because the agreement was insufficiently clear, so the parties to it thought they were agreeing to different things,” says <<CONTACT DETAILS>>. “If you need an agreement drawn up, we can help you make sure it is clear from the outset to avoid any future misunderstanding.”

 

You Can't Have Your Cake and Eat It!

 

A recent case issues a timely reminder that when there are alternative courses of action available in pursuing a claim for damages, you cannot hedge your bets by taking both.

 

This is particularly relevant at present in relation to claims for the misselling of endowment policies, which may involve the investment of quite large sums. In such cases, the claimant has the choice of proceeding in court or using the Financial Ombudsman Service (FOS).

 

One of the advantages of using the FOS for obtaining recompense for negligent financial advice is that it is a relatively simple and inexpensive procedure compared with formal litigation. However, the FOS currently allows a maximum payment of £100,000 to be paid to a claimant in respect of any one claim, although it can recommend that a higher payment is made. Where the estimated loss is larger, there may be a temptation to try to use the FOS for the first £100,000 of the claim and the courts for any excess. This strategy is unlikely to work and indeed, the FOS has confirmed that its awards are final and binding on both parties to the dispute.

 

An employment dispute illustrated the principle that the same matter cannot be litigated twice. A man commenced proceedings for unfair dismissal and wrongful dismissal in the Employment Tribunal, which is not allowed to award more than £25,000 in cases of wrongful dismissal, however great the loss suffered. He had tried to reserve the right to pursue any additional sum in the High Court. The Tribunal examined both claims and found that he had been unfairly and wrongfully dismissed. Damages for breach of contract were assessed at over £80,000 and consequently the maximum amount of £25,000 was awarded. When he sought to claim the balance in the High Court, his claim was struck out.

 

We can advise you on the best route to follow to ensure you receive the compensation you deserve.