Most individuals and businesses who are involved in a dispute wish to avoid the time, expense and stress involved in going to court by settling their differences before proceedings take place. For this reason, there are formal legal processes (called ‘pre-action protocols’) that help them do that.
The intention of the pre-action protocol system is to ensure all reasonable steps are taken to avoid the necessity for litigation.
Kevin Modiri of Bakewells in Derby stresses that firms must follow these protocols carefully, “In a recent case, a firm of consulting engineers tried to bring a claim against a large client. The way they followed the protocol, however, was so sketchy and incomplete that not only did the case get to court, the judge took such a dim view of their actions that he ordered the firm to pay the client’s costs.”
Pre-action protocols exist for several different types of dispute, from defamation and personal injury to negligence and rent arrears. See www.justice.gov.uk for a full list, and an explanation of the procedures involved that include formal letters and meetings.
“It is important that the process is followed properly, so it is always helpful to have professional support in doing so,” Kevin continues. “It is not always easy to decide what should be included, and the insight of an independent expert can be tremendously valuable and cost-effective.”
To find out how the right advice could help you settle a dispute positively, call Bakewells on 01332 348791 for an outline discussion of your situation.
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Recent research shows that modern working practices can put as much stress on employees’ family relationships as an additional 120 hours’ work a year.
The ‘Market, Class and Employment’ study, funded by the Economic and Social Research Council, showed that factors like team-working, performance-related pay and an emphasis on fulfilling individual potential can be detrimental to the well-being of employees.
Top of the list is computerised monitoring of people’s work, which now covers an astonishing 52% of UK. According to the report, this is leading to a sharp increase in work-related stress reflected in feelings of exhaustion and anxiety.
According to Kevin Modiri of Bakewells Solicitors, “For employers, there’s clearly a fine balance to be achieved – between gaining the productivity benefits of a well-monitored, trained and managed workforce and damaging their effectiveness through stress-related burnout.
In addition, employers need to be aware of the potential for legal action by employees who believe they can prove that their employer has contributed to ill-health or hardship through recklessly inducing stress with ill-conceived working practices. It is certainly worthwhile talking to an experienced employment lawyer before imposing new ways of working practices on staff.”
Anyone keen to discuss their plans for changed working practices should contact Kevin Modiri at Bakewells on 01332 348791 to arrange an initial discussion.
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Despite much talk of an economic slowdown, a new all-time record of 29.4 million people are in employment in the UK today. This follows an increase of 263,000 during 2007.
In addition, the number of people claiming Jobseekers Allowance stands at its lowest total since 1975. Economists are expecting further growth of approximately 120,000 new jobs during 2008, far from the dire predictions of disaster prevalent in some quarters following ‘Black Monday’ on 21 January.
According to Kevin Modiri of Bakewells solicitors, “These employment figures give much cause for optimism, bringing with them genuine prospects of protection against recession in the months to come.”
Kevin is aware, however, that many people will be concerned that most of the jobs will be taken by foreign workers. “True, recent years have seen large numbers of workers arriving from countries like Poland and the Czech Republic, attracted by our strong economy. Now, however, it appears that the picture is changing.
First, central and eastern European economies are booming – Poland is growing at 5% – and several of their governments have schemes in place to attract people home again. Second, other Western governments, including Germany, are making migrant workers more welcome, meaning they have other choices in addition to the UK.”
But, as Kevin recognises, “New jobs are created by successful employers – many of which are very small businesses without prior experience of employing staff.
“Evidence shows that many small businesses are deciding not to create new jobs because of the complex laws surrounding employment. Rather than hold a business back from the next stage of development, they should talk to a specialist employment lawyer who can help put in place everything they need.”
Anyone wishing to discuss employment law issues should contact Kevin Modiri at Bakewells on 01332 348791 to talk about their circumstances.
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Even tougher data protection laws may be on the way if a group of MPs has its way. Following a recent series of high-profile data fiascos, including the infamous loss of 25 million personal records by HM Revenue and Customs, it is expected that the changes will also receive widespread public support.
According to Martin Jinks of Bakewells, one element in particular of the proposed tougher rules will cause unprecedented levels of stress and anxiety in boardrooms the length and breadth of the country.
“Quite simply, they will call for a change in the law to make CEOs personally responsible for the security and integrity of the customer data that their businesses hold,” Martin says. “While the new rules will be aimed at major businesses like banks and utility companies, they will affect countless smaller businesses too.”
According to Martin, “The key to avoiding prosecution would be to have the systems in place that prevent the knowing or reckless misuse of data that leads to damage or distress for customers. It sounds straightforward, but recent events have demonstrated that even some of the largest and most sophisticated organisations fail to implement the necessary safeguards”.
If you are concerned about your data protection regime, particularly in the light of the possible forthcoming changes, call Martin Jinks at Bakewells on 01332 348791.
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The days of insurance policies that fail to pay out because of small errors on application forms may be numbered.
Currently, under 100year-old laws, insurance companies can be within their rights not to settle a claim if it emerges that the applicant made mistakes or failed to disclose all relevant details when applying for a policy.
The Law Commission (covering England and Wales) and the Scottish Law Commission have jointly published a paper outlining a new legal regime where applicants who make innocent mistakes or omissions will not lose their insurance cover.
According to Kevin Modiri of Bakewells, “To enable this to happen, the proposed changes also address how insurance companies may be protected against deliberate dishonesty or recklessness.”
The proposals will become law if they successfully pass through a period of consultation and discussion, meaning that in the near future consumers will be able to have more confidence in their insurance cover.
According to Kevin however, many unknowing policy holders continue to have their claims rejected for insignificant reasons. “We may be able to help people who feel they have been unjustly treated by their insurance company,” Kevin says.
“If you feel that the existing laws were used simply to deny you payment, call us on telephone 01332 348791 for an initial discussion of your circumstances. We cannot guarantee overturning a decision, of course, but at the very least we’ll be able to give you a clear understanding of the options open to you.”
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The Chancellor Alistair Darling has announced a new ‘entrepreneurs’ relief’ on capital gains tax for small business owners and investors. The move cuts the capital gains tax rate from the planned 18% to 10% on lifetime gains of up to £1 million - but a local commercial solicitor warns that not everyone will benefit.
According to Martin Jinks of Bakewells Solicitors, “It’s certainly welcome as small businesses can now plan for the future with a clear idea of their tax situation, but not all business owners will benefit financially - there will be winners and losers under the new rules.”
In October last year, the Chancellor gave second home owners cause for celebration when he announced plans to cut capital gains tax to a flat rate of 18%, down from 40%. But at the same time he scrapped taper relief, which can result in rates as low as 10% and indexation allowance - a real blow for business.
The new relief takes effect from 6 April 2008 and applies to cumulative gains made in connection with the disposal of a trading business, including certain disposals of shares in trading companies. The first £1 million of gains will be charged at 10%, with a rate of 18% applying to gains over £1 million. The relief will not apply to those selling second homes – from 6 April they’ll pay the 18% flat rate.
Martin says, “Following the Pre-Budget Report there was real concern from small business owners who had built up a business over a lifetime and hoped to sell their firms and realise the proceeds for retirement. The latest CGT changes are likely to benefit these people. The picture is not so clear for those who start, develop and sell several businesses in their lifetime. Neither does it offer a great deal for larger businesses. It pays to carefully consider how the new regime will affect your tax liability and to plan for the future”
For professional advice, please contact Martin Jinks on 01332 348791 to discuss your circumstances.
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People who own second homes have been celebrating the reduction of Capital Gains Tax to 18%, made by Chancellor Alistair Darling in October’s Pre-Budget Report – but a local tax specialist is warning that the benefits may not be as clear-cut as they initially appear.
According to Andrew Murfin of Bakewells Solicitors, “There are circumstances in which such people are better off now, so if they’re considering selling their second home, they’d be well advised to do so before the changes take place on 6 April 2008.”
Currently, the profits made from the sale of any investment, including a second home, are taxed at either 20% or 40% - depending on whether or not the vendor is a standard or higher rate tax payer. However, the amount of the profit that is taxed reduces the longer the investment (or home) is held. From April next year, however, there will be no such reduction, and everybody will pay a flat rate of 18% capital gains tax.
Andrew Murfin says, “Essentially, higher-rate tax payers who have made a substantial profit on their second property could be better off if they sell on or after 6 April next year. Conversely, people paying the standard rate of tax and who do not stand to make such a large profit may be well advised to sell under the current regime.”
Both types of vendor, however, would have stood to make substantial savings if they had taken professional advice on how to lower their tax liability.
According to Andrew, “Electing to make a Principal Private Residence within two years of buying or inheriting a second home would make the last three years of ownership free of Capital Gains Tax, meaning people in both tax bands would have to pay considerably less.”
Anyone considering selling a second property, or wishing to ensure the most tax-efficient way to own a second property, should contact Bakewells on 01332 348791 to discuss their circumstances.
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When Chancellor Alistair Darling announced immediate changes to Inheritance Tax in October, for many people he raised important questions about their current Wills.
According to Teresa Ruddock at Bakewells Solicitors, “We’ve received many enquiries from clients who are unsure whether or not they now need to change their Wills. People want to know if they still need a Discretionary Trust to protect the assets of the surviving partner, and others are concerned about the status of widows and widowers.”
As is so often the case, there are no simple answers. As Teresa continues, “Everybody’s circumstances are different, and it’s simply not possible to give a straight answer without looking at each case individually.
“One thing is very clear, though. The surviving member of a married couple or civil partnership can immediately add the unused total of their partner’s tax-exempt £300,000 allowance to their own. This can give them a nil-rate band of up to £600,000, which would represent an Inheritance Tax saving of as much as £120,000 – and because it has been backdated indefinitely, all surviving widows or widowers can now use their deceased partner’s allowance on their own death.”
Many situations are not so simple, though, and Teresa believes that anyone with concerns should talk to a Lawyer. “Even if we advise that nothing needs to be done, then at least you have the peace of mind of knowing that you have reviewed your arrangements. Also, there will be circumstances in which a Will needs to be written or other arrangements need to be changed, which may save your beneficiaries a great deal of money.
Contact Bakewells on 01332 348791 and ask to speak to one of the Wills, Tax & Probate specialists for a private discussion of your situation.
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According to research from the Federation of Small Business (FSB), the time spent chasing late payment, and the effects of dealing with bad debt, are costing UK small and medium sized businesses an estimated 286 million man hours and nearly £3.6bn per year.
So it’s not surprising that a recent study by the Institute of Directors (IoD) highlighted late payment as the greatest concern for small businesses, ahead of lack of finance and business rates.
According to Martin Jinks of Bakewells, “There is legislation to protect small businesses against late payment by larger businesses. This is in the form of the Late Payment of Commercial Debts (Interest) Act that’s been in force for about five years now, but it’s not popular among small business owners. It enables them to charge late-payers interest on their debts, which is understandably not seen as the best way to endear yourself to clients.”
However, Martin continues, there is much you can do to protect your business. “If you clearly state your payment terms in your terms and conditions when you first begin a business relationship, there is little room for misunderstanding. You could consider requesting some monies on account and bill your client on a monthly or regular basis rather than issuing one final bill.
But if a bill goes unpaid for too long, sometimes there is no alternative to seeking payment through the Courts. Or if your client’s business fails, you may need to deal with the Administrator who is appointed to deal with their creditors.”
In such cases, Martin advises, “It is often best first to speak to a solicitor and get a professional opinion on your best course of action and its likely outcome.
Contact us on 01332 348791 and ask to speak to one of our commercial law specialists to organise a discussion of your situation.”
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Recent figures from the Chartered Management Institute show that 39% of people in employment have suffered some form of bullying at work during the last three years.
The issue is so important that specialist charity The Andrea Adams Trust believes that over 1 million people across the UK will participate in activities during its fourth ‘Ban Bullying at Work Day’ on 7 November, when bystanders to workplace bullying will be encouraged to speak out against it.
Many people, though, are unaware of the legal protection that exists to guard against workplace bullying. According to Kevin Modiri of Bakewells, “While there is no specific law in place relating to this very serious issue, there are many aspects of employment law that can be used to prevent bullying in the workplace. For example, the Employment Rights Act contains a section on victimisation, and legislation preventing age, sexual and racial discrimination can be relevant in many cases.”
Kevin also believes that too many business owners and managers are unaware of their responsibilities. “It is a standard line in many contracts of employment that employers shall give reasonable support to prevent employees from harassment and disruption by fellow workers,” he continued. “But there have been cases of employees successfully taking action against their employers, which can be very expensive for the business concerned.”
Any employer or employee seeking advice on their responsibilities and rights should call Bakewells on 01332 348791 and ask to speak to Kevin Modiri, their employment law specialist.
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This summer saw major changes to the rule book that governs how solicitors carry out their business, designed to give even more protection to the public and increase further the quality of legal services.
The new Solicitors Code of Conduct, created by the Solicitors Regulation Authority, uses simplified language to ensure that all solicitors understand their duties.
According to Martin Jinks of Bakewells, “The world we and our clients operate in is very fast-moving, and it’s extremely important that we work in a way that reflects the realities of modern life. So, while we still base the way we operate on some historic principles – upholding justice and the rule of law, acting in the best interests of our clients with integrity and independence – it’s refreshing to have a guide that brings the rules right up-to-date and makes legal service delivery as transparent as possible.”
Critically, the new rules allow solicitors more flexibility in deciding what is best for their clients, and introduces important changes to how a practice is managed and supervised to ensure the best possible standards of service.
Martin went on to say, “We welcome the new Code of Conduct wholeheartedly, and are very happy to discuss its meaning for our clients with anyone who would like to know more. Simply call us on 01332 348791 during our normal working hours of 8.30am – 5.30pm, Monday to Friday.”
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A recent case has shown vividly that a spoken agreement can be enforceable when it comes to property rights – so it pays to be careful when entering an agreement, however informal it may appear at first sight.
When two men bought a house together in 1995, they agreed to pay an equal share of the mortgage. When one of them, Mr A, moved out in 1997, he agreed to sell Mr B his share of the property for £2,500 when Mr B could afford to pay him.
In 2000, after paying the mortgage on his own for some years, Mr B attempted to pay the money. Mr A denied the agreement existed, and claimed £50,000 as his rightful share. When the case came to court, the judge found in favour of Mr B, telling him to pay the original £2,500 as agreed to Mr A and awarding him the full value of the house.
As Andrew Murfin of Bakewells says, “It is easy to assume that only written agreements have any standing when it comes to property rights – but as this case shows, verbal agreements too can have significant force. So we advise anyone to talk to a solicitor if they have any doubts about the validity of an agreement.”
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There are only days left before the ability to make an Enduring Power of Attorney (EPA) ends, to be replaced by a more complex and expensive arrangement, warns Teresa Ruddock, Head of Wills, Tax & Probate at Bakewells Solicitors in Derby.
An EPA arrangement is used to appoint someone to act on your behalf if you lose your mental capacity.
"It has traditionally been used by elderly people who are worried they may not be able to handle all their affairs, in matters relating to property or money for example" says Teresa.
From the first of October 2007, the EPA is to be replaced. In future, people will need to take out a new arrangement called a Lasting Power of Attorney. It may sound like it's just a name change, but in fact, Lasting Powers of Attorney are slower to set up, and more complex, with many forms to fill in. That inevitably will make them more expensive to arrange.
"For those who have been meaning to sort out an EPA, our advice is to act now before the October deadline," says Teresa Ruddock.
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Companies need to wake up to the reality of age discrimination laws – or find themselves in court.
That's the warning from Kevin Modiri, Head of Employment Law at Bakewells Solicitors in Derby, who says companies need to update their working practices and contracts to take the new legislation into account.
A recent survey by employment relations experts ACAS (Advisory, Conciliation and Arbitration Service) showed that almost a year after the introduction of anti-age discrimination laws (October 2006), only 17% of businesses have changed their recruitment and employment policies.
"Small local firms need to take this issue seriously, because they run the risk of ending up in dispute with their own workforce," says Kevin .
"This could be costly, especially if you find yourself in an industrial tribunal. It's much better to avoid problems by learning about the new laws and getting in line with best practice.
It could be worth getting specialist advice on the scope of the legislation, the exceptions, and how it could impact your company. Employees who feel discriminated against should also seek expert advice."
The survey polled 750 small businesses. Of firms employing fewer than 10 people, only 6% had made any changes in response to the new law.
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Dyslexia can now be classed as a disability as far as employment law is concerned, following a landmark court case. It is a finding that could have a major impact on local people who suffer from the condition and the organisations that employ them.
"The case involved a policeman, Chief Inspector David Paterson of the Metropolitan Police Force. CI Paterson had asked for 25 per cent more time when sitting promotion exams because of his dyslexia," says Kevin Modiri, Employment specialist at Bakewells Solicitors.
"This was denied, and he went to an employment tribunal, which ruled that his dyslexia did not have 'a substantial adverse effect on his ability to carry out normal day to day activities'. He appealed against this decision."
An Employment Appeals Tribunal ruled he can be classified as a disabled person under the Disability Discrimination Act 1995. The Tribunal decided dyslexia caused 'a substantial impairment' to his career.
"Dyslexia sufferers who feel disadvantaged at work may want to take legal advice on their position. Employers may also want to review their current practices in relation to dyslexia," says Kevin.
The treatment of dyslexia as a disability is likely to be taken on a case-by-case basis.
"The Appeals Tribunal specifically said that the performance of the worker should not be assessed in comparison with the rest of the population. It is how they would perform if they did not have the disability that is the key," says Kevin.
Following a successful appeal, Paterson's case will now return to an employment tribunal hearing to decide whether he was discriminated against.
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Family businesses need to review their tax arrangements after a landmark ruling in the House of Lords which could affect thousands of local businesses.
Martin Jinks, Senior Partner at Bakewells Solicitors says it could be time for husband and wife teams to talk to financial experts and take legal advice over the implications.
The warning comes after husband and wife team Geoff and Diana Jones, who run an IT consultancy, won their four year battle against the taxman. The House of Lords decided that spouses could equally divide the profits of the company, paid in dividends, even if one partner does more or even most of the work.
"Ironically, the ruling could mean that many businesses might be able to pay less tax. But the Government is moving quickly to close the loophole highlighted by this case. Reforms have already been proposed," says Martin.
"In future, the wife will be taxed on dividends at the same tax rate as her husband - or vice versa. However, some family business could be owed a refund on tax already paid, because the new rules cannot, of course, be retrospective."
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Fighting a child maintenance award you think is unfair, could land you in prison, local solicitor Victor Collins is warning.
"A lot of people would like to challenge maintenance awards they think are unreasonable. But the courts recently sent a man to prison for defying an order – and the man was not only a barrister, he also represented the campaign group Fathers 4 Justice," says Victor Collins of Bakewells Solicitors.
"It shows that it's all very well to take a principled stand, but the consequences can be serious."
Michael Cox, 43, who acts as the barrister for Fathers 4 Justice, was jailed for 42 days for refusing to pay child support to his ex-wife. Mr Cox argued that, as his three children spend half their time with him, he should not have to pay maintenance on top of that. He argued that having to pay twice over was "oppressive, unjust and discriminatory."
His wife and one of his sons pleaded for him not to be sent to prison. Mr Cox was refusing to pay the Child support Agency £40,000 in unpaid maintenance. The Fathers 4 Justice organisation has claimed Mr Cox is being treated as a scapegoat.
"You can take a stand if you think an award is unfair. But we would recommend that you go into it aware of the possible consequences" says Victor.
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Bakewells Solicitors 64 Friar Gate, Derby DE1 1DJ Telephone : 01332 348791