Litigants ‘must prove’ why cases should be heard in London

If you are involved in court action in a regional court from April 2015, you – or your opponent – must provide proof of why it should be relocated to a court in London, under new procedure rules from the Civil Procedure Rule Committee.

Practice Direction 29 covers the multi-track system and Part 30 Transfer of ongoing cases – in short, whether or not a case currently taking place in a regional court should be transferred to one in London instead.

New amendments are being introduced to place a burden of proof on litigants to demonstrate why such a transfer should take place, and are due to come into effect on April 6th 2015.

The 78th Update to the Civil Procedure Rules states: “Amendments are made to the rules in respect of transfer of cases, to require litigants engaged in disputes in regional courts to state the reasons why a particular case should be transferred to London for determination when the appropriate specialist courts are available regionally.”

It is aimed generally at ensuring regional courts – including those in cities in the north of the country – are able to hear cases without a substantial proportion of litigants requesting they should be transferred to London without good reason.

Of course, if there is a legitimate and demonstrable reason why a London court should be preferable, then the amendments do not prevent a transfer from taking place.

The move comes in response to widespread anecdotal beliefs that London has better availability of judges, and that cases are therefore heard more promptly in the capital, while the Law Gazette reported a view that rates are better for hearings held in London.

But the publication also noted a written response from senior costs judge Andrew Gordon-Saker, who claimed: “The only relevant geographical factor is the location where the work was done. The guideline hourly rates are based only on the location of the solicitor, not the location of the hearing.”

By Pricketts Solicitors

Cable calls for ‘urgent review’ of tribunal fees’ impact on women

In July 2013, employment tribunal fees of up to £1,250 were introduced by the coalition, in an attempt to stamp out frivolous claims against employers and save thousands of pounds of taxpayer money in legal fees.

Since then, official figures show a precipitous drop in cases being brought to tribunal – including a 90% fall in gender discrimination cases, from 6,310 in the quarter before the charges were introduced, to 591 during the same period of the following year.

Claims of discrimination on grounds of race are also down, by 60%; yet significantly, claimants’ success rate is about the same as it always was, perhaps an indication that frivolous claims have not been stamped out, and that at least some of the potential claims that were not made would have been legitimate.

Business secretary Vince Cable has raised concerns that the government is reneging on the promises it made ahead of the introduction of the fees, in a private letter to justice secretary Chris Grayling reported in the Guardian.

It is perhaps worth noting that, outside of their coalition roles, Mr Cable is a Liberal Democrat MP, whereas Mr Grayling is a Conservative.

Mr Cable wrote: “The fair and effective operation of the employment tribunals system is vital to the successful enforcement of employment rights for which my department is responsible.

“The quid pro quo of my party supporting the Conservative proposal to introduce employment tribunal fees was that we should conduct a rigorous review within a year of their introduction, to determine whether there had been any unwanted consequences and to ensure no-one was deterred from legitimate access to justice.”

It is now 18 months since the change, and no review has taken place, leading Mr Cable to add: “I am concerned that we appear as a government to have reneged on our public commitment to conduct this review.”

Mr Cable asserted his concerns about the welfare of women and “other vulnerable groups”, and that he has instructed his own staff to undertake an immediate review using the data that is publicly available to them.

By R.A.Wilkison & Co

Online Dispute Resolution for low-value civil claims?

If you’ve ever had a purchase from an online auction site go awry, you’ve probably had recourse to use an online dispute resolution system, providing a mediated forum through which disagreements can be worked out and suitable compensation agreed.

That’s all well and good when you’re buying a pair of shoes, car parts or film memorabilia; but could a similar approach work for low-value civil claims?

According to the Civil Justice Council, it might be suitable, if a state-run ‘online court’ were to be created to work alongside the traditional court system.

Professor Richard Susskind, principal author of a report on the subject, said: “This report is not suggesting improvements to the existing system. It is calling for a radical and fundamental change in the way that our court system deals with low-value civil claims.

“Online Dispute Resolution is not science fiction. There are examples from around the world that clearly demonstrate its current value and future potential, not least to litigants in person.”

Interestingly, the report proposes a three-tiered structure for any such online courts, and only in the third and final stage of the process would a judge become involved in the case.

Before that point, there would be two lower tiers at which disputes could be resolved without the involvement of a judge – and Professor Susskind says most disputes would never reach the third stage.

Master of the Rolls Lord Dyson – who chairs the Civil Justice Council – added: “This is an important and timely report. There is no doubt that ODR has enormous potential for meeting the needs (and preferences) of the system and its users in the 21st Century.

“Its aim is to broaden access to justice and resolve disputes more easily, quickly and cheaply. The challenge lies in delivering a system that fulfils that objective.”

By Marsh Brown & Co

 

Judge rules ‘stealth emigration’ should be reversed

The emigration by stealth of two children from Australia to the UK should be reversed, against the wishes of their dead mother, a judge has ruled.

Mr Justice Roderic Wood of the family division of the high court in London heard that the children had an English mother, but that their father is of Aboriginal descent.

They were born and raised in Australia, where their parents lived together in Darwin; the parents married a decade ago, and their daughter and son are now aged eight and seven respectively.

Two years ago, the mother travelled back to England to seek treatment for cancer, and brought her children with her, telling their father it would be a holiday for them.

However, she decided they should not return, and included a statement in her will to the effect that “under no circumstances” should they be reunited with their father.

Ultimately Mr Justice Wood ruled that this is unlawful, as they were therefore removed dishonestly from their father, without his consent to them emigrating to England permanently.

What’s more, neither child when asked objected to returning to Australia to be with their father, rather than remaining in England with their maternal grandparents.

“The children left Australia in July 2013 for a holiday,” the judge stated. “They did not say goodbye to their friends, school or neighbours. They left many favoured objects behind them, fully intending to return.”

By H. Pipes & Co

I think I am being discriminated against at work, what can I do?

You should be able to do your job without facing unwarranted discrimination; it’s a basic expectation that all employers should be more than willing to meet, and if you do find yourself discriminated against, there are steps you can take to prevent it from happening again, or to seek compensation.

In general the following forms of discrimination are unacceptable:

  • Dismissal
  • Employment terms
  • Pay and benefits
  • Promotion opportunities
  • Training
  • Recruitment
  • Redundancy

And it is ‘unfair’ to approach any of these issues in a different way based on:

  • Age
  • Gender
  • Sexual orientation
  • Transsexual status
  • Marriage/civil partnership
  • Pregnancy/parenthood
  • Disability
  • Race/ethnicity (including skin colour, nationality and so on)
  • Religion/beliefs (or absence of these, e.g. atheism)

There are certain exceptions – for example, a man might reasonably not be considered for a vacancy in an organisation that provides support to female rape or domestic abuse victims.

In some cases, particularly disability, your employer or interviewer must take reasonable steps to avoid discriminating against you, for example by holding your job interview in a location with adequate wheelchair access, or giving you more time to fill out forms and complete aptitude tests.

When you think you have encountered discrimination on any of the above grounds, or based on your employment status (e.g. you are part-time) or your membership of a trade union, you can take steps to resolve the situation.

Complain to your employer first, apply to a mediation process, or make a court claim or a tribunal appeal; your employer should be your first port of call though, as they might be able to offer an amicable solution without the need for external intervention.

Acas and Citizens Advice are both options too, or if you are a member of a trade union, speak to your representative.

Remember, the law protects you against discrimination – you have the right to object to unfair treatment on any such grounds – so do not be afraid to take action if you are certain that you have been wrongfully discriminated against.

By H.Pipes and Co

What is Whistleblowing?

Whistleblowing is the informal term used for “making a disclosure in the public interest”, and in general it applies when an employee chooses to make public information relating to a workplace cover-up, criminal offence, or other form of wrongdoing.

These types of announcements typically fall into one of several categories:

  • Health and safety risks.
  • Environmental damage.
  • Criminal offences.
  • Other breaches of law (e.g. failure to have required insurance in place)
  • Cover-ups of wrongdoing.

You can’t just go to the newspapers and ask them to report such wrongdoing, though – there’s a specific legal process in place for whistleblowing, and there might be an in-house procedure at your company too.

First, check your contract of employment and consult with your personnel/HR department to see if there are any company guidelines on whistleblowing.

If you can, report the issue to your employer first before making it public – you should not be treated unfairly for doing so, and if it is a legitimate problem they should take steps to correct the situation.

Only if you do not feel you can speak directly to your employer, you can instead report the issue (‘blow the whistle’) to an approved, prescribed individual or organisation.

There’s a 34-page list of these prescribed bodies available from BIS, but you’re probably already aware of the correct organisation for your sector – e.g. Ofcom for broadcasters, or the Charity Commission for non-profits.

You can approach your industry’s regulator or prescribed organisation if you believe:

  • Your employer will cover up the incident otherwise.
  • You would be treated unfairly if you complain OR
  • You have already told your employer and they did not act.

If the issue falls into one of the categories listed at the top of this page, including criminal acts, legal breaches, environmental and health risks, and internal cover-ups, you are protected by law against being dismissed for whistleblowing.

This includes agency workers, employees, non-employed trainees and self-employed workers; some NHS and school/college employees are protected automatically too.

Importantly, the protection applies if you honestly believe you are doing the right thing – so even if you contact the wrong prescribed body or your disclosure is deemed not to be in the public interest, you should be OK.

There are exceptions – for example, lawyers can be dismissed if they blow the whistle using information given to them from somebody seeking legal advice, and you cannot breach the Official Secrets Act to report an incident either.

Finally, if the incident occurred abroad – for example, if another country’s laws were broken, even if the same action would be legal in the UK – you are still safeguarded against unfair treatment if you blow the whistle in the UK.

By Marsh Brown and Co

Business Will

I am a company director and I want to leave the company, can you help?

There are several reasons why a company director might decide to leave their position – along with some inescapable ones such as death or retirement.

If you are leaving due to poor health, a disagreement with other board members, a shareholder vote of no-confidence, a move to a different company, or any such reason (again, it can be an extensive list), you need to make sure you carry out the necessary work to do so properly, in accordance both with the law, and with your contract.

For example, when you were appointed as company director, you may have agreed to a minimum notice period to apply to your subsequent departure; unless there are unusual circumstances to outweigh this (for example, legal disqualification from acting as a director, or gross misconduct) then your notice period should still be taken into account.

You might even find that you are not permitted to resign without the approval of the other board members – although this is rare, it could be written into your company’s Articles of Association, and has the potential to cause major problems if so.

The company should inform Companies House of your departure, but if you have any doubts over whether or not they will do this, make sure you submit your resignation by registered post or recorded delivery so that you have proof.

You should also check what you are owed, and any conditions that might apply to any shares you hold, and so on – are you severing all ties with the company, or simply leaving the directorship position?

Finally, if you are continuing to work within your profession and are moving to a competitor, there may be issues to resolve; make sure you can move to your new post without facing any accusations of impropriety.

If you are uncertain on any of the above, or any other issues relating to the process that have not been mentioned here, we can help you to understand what you need to do to not only protect yourself, but to ‘do the right thing’ in general and leave your company on the best possible terms – if only to avoid facing legal action later.

By R.A. Wilkinson

Employment-Law

I am an employee shareholder in a company, what can I do to protect my rights?

Employee shareholder status applies when you receive £2,000 or more of shares in your employer’s company or parent company; anyone can work under this status, although you are not obliged to (and Jobseeker’s Allowance claimants can decline to apply for such positions, too).

If you are an existing employee and your employer asks you to change your contract to become an employee shareholder, you may decline; if your employer subsequently treats you in any way detrimentally because of this, you can complain to an employment tribunal.

Your decision to take on this status is a personal one, and may be driven by a desire to have a closer interest in the success of the company, or a belief that the value of the shares will increase, or any other reason – it is entirely up to you.

BIS list six conditions that must be met in order for you to become an employee shareholder:

  1. You and your employer must both agree.
  2. The shares must be fully paid up and worth at least £2,000.
  3. You must not pay for the shares in any way.
  4. You must receive written particulars of your employee shareholder status.
  5. You must receive independent advice, paid for by the company.
  6. You cannot accept the job until 7 full days after this advice.

The position gives you certain rights, including:

  • Statutory sick pay and paid maternity/paternity/adoption leave.
  • Unfair/discriminatory dismissal rights (but only ‘automatically unfair’ reasons).
  • Minimum notice periods for termination of employment.
  • Time off for emergencies.
  • Consultation on redundancy procedures.
  • TUPE (protection if a new employer takes over the business).
  • Minimum wage.
  • No unlawful deductions from your wages.
  • Paid annual leave.
  • Rest breaks.
  • Fair treatment for part-time and fixed-term workers.
  • The right not to be discriminated against.

As an employee shareholder, you do not automatically have the right to:

  • Unfair dismissal rights other than for automatically unfair reasons, discrimination or health and safety.
  • Statutory redundancy pay.
  • Flexible working requests.
  • Certain rights to take time off for training.

What you should do is ensure any rights you do have are put into writing – make sure you read everything you are given in full, and if anything is missing, ask your employer to add it in.

Listen to the independent advice you receive – this should be from a lawyer, trade union representative or other approved specialist, and your contract will not apply unless you receive proper advice seven days before you sign.

Your employer cannot insist that you use any specific firm, or refer you to in-house lawyers or a law firm that has acted for them before; the advice must be truly independent, and reasonable costs paid for by your employer.

There may be certain specific rights attached to the shares you receive, and you should make sure you know what these are too, and have them put in writing in full.

Employee shares that are subject to a different set of agreed rights may be worth a different amount than, for example, another employee’s shares with fewer rights, so it is essential you confirm this, so that you can verify what your shares are worth.

Selling your shares does not automatically change your employment status; so if you want to alter your rights later, you will still have to negotiate with your employer in order to do so.

By Pricketts Solicitors

Lewisham

£1m+ conveyancing in Lewisham up 275%

Figures published this weekend revealed how conveyancing in Lewisham is increasingly becoming a millionaire’s market, with a 275% increase in the number of property transactions taking place in the seven-figure range.

Compiled by estate agents Savills and published in the Sunday Times, the data showed that the millionaire’s market is on the increase in several locations around the UK, including the fellow London borough of Hackney where conveyancing at £1 million and above is up a massive 814% over the past year.

There are now 10,000 UK streets with an average property price of over £1 million, and an estimated 400,000 individual households whose home is in seven figures; however, this does not necessarily mean all of the occupants are cash-wealthy.

For many people, buying a high-value property has locked away their life savings in the equity of the building itself, leaving them with relatively little disposable income.

Many more did not actually buy a million-pound property, but have seen their existing home rise in value over the past few decades as part of the booming housing market, until it has now become worth more than the seven-figure threshold.

All of this means a property valuation in excess of £1 million – especially those very close to this benchmark – does not necessarily serve as a good indicator of personal wealth, raising concerns about the impact a so-called ‘mansion tax’ might have, if the government were to introduce one.

There are further worries – including those of Labour peer Professor Robert Winston – that the nature of the housing market, and the geographical distribution of value, would mean a large number of properties in London would fall within the range of the mansion tax, whereas equivalent sized homes elsewhere in the UK would not.

Overall, fewer than 0.5% of properties nationwide would be affected, according to Labour; in the meantime however, many householders are finding their homes worth much more than they thought, and much of the conveyancing in Lewisham and other London boroughs seems to involve residents selling having realised they can make a mortgage-free cash purchase somewhere in the countryside with the proceeds.

By Marsh Brown & Co

Mirror Will

What is a mirror Will?

Mirror mirror, in my Will, who has the fairest IHT bill? You and your spouse do, because you took the time to write properly worded mirror Wills to make sure whoever dies first – or if you both go together – your estate will still be properly handled in accordance with your wishes.

A mirror Will is a fairly simple concept, and it is based on these two principles:

  1. A couple will usually have similar views on how their estate should be divided up if one of them dies before the other, and on who should benefit if they both die together.
  2. An individual Will cannot express the views of more than one person.

Because of this, when you and your spouse want ‘a Will’, you actually need two – one per person – and these need to reflect each other (hence the term ‘mirror’) so that your assets are handled correctly no matter what happens.

It’s important to get this right, because if your Will simply says that you leave everything to your spouse, this might mean they do not pay inheritance tax on what they receive, under the current exemptions for married couples.

But if you both die together, the beneficiaries who end up receiving your estate might not qualify for similar IHT exemptions, and 40% of your life savings could be carved off and handed over to the government.

Worse still, if you and your spouse have conflicting Wills, and both die together, a costly legal battle could ensue over which set of beneficiaries should receive a portion of your estate.

By setting up mirror Wills together, you make sure that you have protected your assets against any eventuality.

In the case of one partner’s early death, the surviving spouse can still receive everything they are intended to get, with any appropriate IHT exemptions applied to it – no matter who dies first.

And when the second partner dies, whether in the same accident or incident as the first, or several years later, the remainder of the estate can be distributed correctly to the intended beneficiaries, in a tax-efficient way.

By R.A. Wilkinson & Co