Missing persons’ law should protect families in limbo

by , February 22nd, 2012

A select committee of MPs today urged the Government to tackle the complicated laws around missing persons that affect 1,000 grieving families each year.

As the law stands, when someone disappears and is believed dead, families cannot deal with all kinds of practical issues until a death certificate is obtained. In England and Wales relatives have to wait at least seven years before a court application can be made for a person to be presumed dead.

During these years the missing person’s financial and legal affairs continue as normal – often at considerable cost to the people left behind. Bank accounts are not frozen, direct debits continue to be raised and with no income, debts can build up quickly.

Shared mortgages pose a particular problem as properties may not be sold without the missing person’s signature and life insurance policies cannot be used to cover the debt. As a result people stand to lose their home while they are at their most vulnerable.

The courts do make a few exceptions. In major disasters such as the Asian tsunami the seven year time delay can be shortened as the court will often accept evidence proving the individual was in the area and there were no survivors.

Married people have the option of divorcing a missing spouse after five years as this is legally recognised as abandonment. Yet this doesn’t help resolve the issues around possessions and financial obligations. The law provides no way of coming to a financial settlement when there is uncertainty over whether a person is alive or dead. In any case it seems quite wrong that grieving husbands and wives have to divorce their partner when they are convinced they have died.

Of the 200,000 people who go missing each year, a recent report states that 99% are found within 12 months, but each passing year reduces the likelihood of families being reunited. Peter Lawrence, whose daughter Claudia went missing in 2009 told the Ministry of Justice select committee families face immense difficulties in resolving practical issues. He said: “There are upwards of 1,000 families going through this at a time when they’re emotionally at their lowest ebb.”

The select committee is proposing new legislation which would clarify the law around presumption of death and introduce the idea of “guardianship” of an estate until the seven years have elapsed. This would allow families to administer the estate of the person who has disappeared after three years, sorting out everything from financial obligations to property ownership. Mirroring the legislation which has been in place in Scotland since 1977 this guardianship would come with inbuilt protection if the person ever reappears.

Fortunately few people will find themselves in this position, but the impact on those that do is extraordinary. It is quite right that the law should be improved to make things easier for families and it is to be hoped the new proposals are adopted as soon as possible.

Man Faces Contempt Proceedings After Dropping ‘False’ Compensation Claim Against Council

by , February 21st, 2012

Local Authority The High Court has granted permission for a local authority to bring contempt of court proceedings against a man who claimed compensation for personal injury and who subsequently abandoned his claim.

The Claimant – Leon Wells – claimed that he had suffered a tear to his left knee when he fell down some steps near to his home, whilst out jogging on Boxing Day in 2006. He issued proceedings against the local authority – Caerphilly County Borough Council – alleging that the fall was caused by the two bottom steps being defective and in a state of disrepair, as they were broken and missing.

The local authority admitted liability but the matter proceeded to an assessment of damages hearing at Cardiff Civil Justice Centre in October 2011. Just as the hearing started, the Claimant abandoned the case.

The local authority alleged that the claim was false and applied to the High Court for permission to bring contempt of court proceedings against the Claimant.

The High Court subsequently granted permission on 15 February 2012 to bring contempt proceedings, stating that it was in the public interest for the Claimant to face a civil court hearing. The judge added: ‘The statement of facts said here to be false had in fact led to an admission of liability from the council, and would have led to a settlement of the claim if the suspicious circumstances had not occurred.’

The Claimant could face jail if found guilty of contempt of court.

 By Michael Mulcare

 

 

 

 

First time buyers. Do they exist?

by , February 20th, 2012

I ask the question as our BDM (business development manager) sent me a link to a article on the BBC website about first time buyers a few days ago and said – you should blog about this.

Due to various things like holidays and internal meetings I have not got round to it until now.

The year on year figure for First Time Buyers is up 14% according to the Council for Mortgage Lenders.  This sounds good but is it?

I guess being a lawyer I tend to be pessimistic plus we have all seen surveys normally in the same week that say things are improving then getting worse and then are dire. 

I think there are a number of reasons why this figure is perhaps slightly inflated.

1                    First Time Buyers are getting geared up to exchange and complete before the 24 March when the stamp duty threshold will revert to £125,000.00.  One has to wonder how many first time buyers there will be in the system after 25 March.  I suspect there will be a significant decrease whilst they all save up to pay SDLT at 1%.

2                    The various Government Schemes are now available that means that First Time Buyers are sucked out of the general market as these schemes relate to new builds.

On the other hand there are some glimmers of hope.

1        Lenders are now lending at higher loan to price ratios – possibly with a view to helping when the SDLT changes.

2        First Time Buyers have had time to save up.

The real test will be to see what the increase (if any) of First Time Buyers is in April when the effects of the SDLT exemption being withdrawn will appear.

Given also that the number of movers is down (see my earlier blog) I think regrettably we will see a slow start to the year.  Still the sun is shining which always helps and the number of enquiries is reasonable which is good.

Isaw a report today that shows that the % of home owners is down to 66% of the total the lowest figure since Mrs Thatchers reign.  Certainly buy to lets have been high and given the amount charged for rental I think we will see a swing back to ownership provided that people can save money towards the deposit (and Stamp duty) they need.

I think that the market will be stable for a few months more but I am not sure, so I am sitting on the fence and getting splinters.

Fernquest v Swansea City and Council [2011]

by , February 17th, 2012

Public sector newsThis Court of Appeal case considers a local authority’s duty of care to a user of a park and ride scheme and whether it should have warned the Claimant of a known hazard at his destination.

Circumstances of the Claim

On 10th December 2008, the claimant – a Mr Fernquest – had driven from his home to a park and ride facility in Swansea. He parked his car and caught one of the buses to the city centre. The park and ride bus service was run by the local authority in partnership with a bus company, who operated the bus itself. The local authority were also the owner and occupier of the car park. On reaching a bus stop in the city centre, the Claimant got off the bus and slipped on an icy pavement near to the stop, breaking his wrist. The bus driver had warned the Claimant on his getting of the bus, but the Claimant had a degree of hearing loss and did not hear the warning.

The bus driver had previously seen another accident on the icy pavement that day. About 90 minutes before the Claimant’s accident happened, the bus driver had asked the local authority’s park and ride attendant to report the icy pavement to their Highways Department, which he did. However, due to the high level of calls the Highways Department were receiving due to the bad weather, no one was able to attend the scene prior to the accident, as they were responding to reports which had been given a higher priority.  

At Trial

The Claimant had issued proceedings against the local authority alleging that:

i) They had failed “to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice” under s 41(1)(a) of the Highways Act 1980.

ii) They were negligent due to their role in the operation of the park and ride service.

Responding to the claim under s41(1)(a), the local authority gave evidence  in support of its winter maintenance plan including:

  • The precautionary gritting of some roads when the weather forecast warranted it, but not the precautionary gritting of footways.
  • That before dawn, a highway inspector would assess some selected footways, such as those in main shopping areas, designated safe routes to schools and major transport interchanges. If necessary, they could order these areas to be gritted.
  • On the overnight inspection before the Claimant’s accident, the city centre was noted to have been dry and ice-free. However, as the weather later changed, any reports of snow and ice on the roads or pavements were attended to as quickly as possible, depending on the availability and location of the highways crews and the priority attached to the complaint. Not all of the reports being received could be attended to.

Judgment

The Trial Judge found that the Claimant’s claim under s41 failed, as there had been no breach of its statutory duty. Commenting on its winter maintenance policy, the Judge stated that the local authority had a proper system in place to ensure that the important highways were gritted before the less important ones, with carriageways being given priority over footways. The Judge also found that the selective inspection of certain footways was also satisfactory and accepted that there would inevitably be a delay in responding to the numerous reports of icy pavements, when considering the available resources of staff and grit and the demands from the public.

Turning to the negligence claim, the Judge held that the authority had not been negligent in continuing to operate the park and ride service, despite the weather, as it was perfectly possible for pedestrians to be careful and avoid slipping.

However, the Judge concluded that in no way would it have been unfair, unjust or unreasonable to have expected the local authority to warn passengers of the ice near the city centre bus stop. By failing to warn passengers before they boarded the bus of the icy conditions, the authority had been negligent and in breach of the duty of care owed to the passengers.

The local authority was on notice of the danger presented by the ice close to the bus stop, following the message relayed to it by the bus driver. It had also known that it would not be able to deal with the ice promptly in its capacity as the highway authority and that the ice would therefore remain there, constituting a slipping hazard.

Given the relationship between the local authority, being the provider of the park and ride service and the Claimant, paying for that service, the local authority’s knowledge of firstly, the hazard and secondly, that the Claimant – unless warned – would have been unaware of that hazard, created such a proximity or neighbourhood between the parties that it gave rise to a duty of care. Further, the risk of injury had been plainly foreseeable.

On Appeal

The local authority appealed, submitting that the Judge had erred in his conclusion, going beyond any existing authority on the duty of care owed to passengers and had created an unwarranted extension of the ambit of a bus operator’s duty of care. There was no proximity between the parties as the bus journey was over and that in any event it was not fair, just and reasonable to impose such a duty. 

On the facts, the Judge had erred in law. To hold bus companies liable to compensate passengers who, shortly after getting off,  fell over near to bus stops, due to a hazard – such as ice– which they were aware of but failed to warn passengers of as they boarded, would create a considerable burden and extension of the law of negligence, which was difficult to justify.

The local authority was not the actual carrier, meaning that the relationship between it and the Claimant was more remote, making it harder to justify such a duty. Any duty that the bus company owed to the Claimant was discharged when the bus driver warned him as he got off.

The hazard in itself had not been a particularly unusual one and in fact, it had been one which the public could have been expected to have been aware of and to guard against on that particular day. It was noted that the Claimant had driven to the park and ride and as a road user it would have been obvious to him that there was a risk of ice.

This was one of those accidents that was nobody’s fault. The appeal was allowed.

 By Michael Mulcare

 

Increase in compensation for mesothelioma claims?

by , February 16th, 2012

Local Authority CasesA recent High Court case ruling on damages for pain and suffering, may see elderly victims of mesothelioma entitled to increased compensation.

In this case, the 92 year old Claimant, Dennis Ball, was awarded £50,000 compensation for pain and suffering after he developed asbestos-related cancer following his work for the National Coal Board and its successor. The significance of this case is that the award is greater than the recommended figure of £35,000 found in the Judicial Studies Board Guidelines, where the duration of the pain and suffering is relatively short.

Previously, the JSB guidelines had reduced the lower bracket of recommended damages to allow for smaller awards in cases where the time the victim actually lived and suffered with their symptoms was less than average.

The Defendant – the Secretary of State for Energy and Climate Change – argued that at 92, the Claimant had only a short life expectancy and as such the amount of compensation he received should be reduced accordingly.

The Judgment stated that: ‘A person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed is likely to suffer a good deal of distress…Even if a deceased’s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store.’

This ruling paves the way for elderly sufferers to receive increased settlements to compensate them for the pain and distress the disease causes, regardless of their age or the amount of time they live following their diagnosis

 By Michael Mulcare

Pedestrians and Highways

by , February 16th, 2012

Local authorityDIONNE ARMSTRONG (BY HER MOTHER  & LITIGATION FRIEND KAREN ARMSTRONG) v (1) KEEPMOAT HOMES LTD (2) NORTHUMBERLAND COUNTY COUNCIL (3) BLYTH VALLEY BOROUGH COUNCIL (2012)

Circumstances

The accident occurred in 2001, when the 12 year old Claimant tried to cross a dual carriageway. As she did so, she was struck by a car and suffered extensive head injuries.

Despit there being two safe routes to cross the dual carriageway, the Claimant had decided to walk across a grass area instead, close to an estate which had been constructed by the First Defendant – Keepmoat Homes Ltd – between a nature reserve and an arboretum. Alongside the edge of the road there was an area of dense scrub and trees which had a significant gap. The Claimant chose to walk through this gap and to cross the road at this point.

Claimant’s case

The claimant claimed damages against the Defendants for personal injury under both the Occupiers’ Liability Act 1957 and in negligence.

It was her case that firstly, Keepmoat Homes Ltd had created a danger by removing a fence and enlarging the gap; and that secondly, the Second and Third Defendant local authorities - Northumberland County Council and Blyth Valley Borough Council – had failed to take steps to prevent visitors to the adjoining land from accessing the dual carriageway by failing to fence off that gap.

Trial

Evidence was heard at trial that Keepmoat Homes Ltd had removed a fence that had been in place across the gap, so that they could put up an advertising sign.  A witness gave evidence that they had contacted the local authority to inform them that the fence was missing.

Judgment

Despite the absence of any right of way, the Court held that on the evidence, there was a path from the local authority’s land to the edge of the road. At some point there had been a fence and later a gap in that fence through which any child or adult could pass.

It was beyond argument that the local authority should have known of the existence of the path and the ready access to it and accordingly, it was held that the local authority had constructive knowledge of the existence of the gap and the path.

There was no firm evidence that the fence had been removed by Keepmoat Homes Ltd and therefore they could not be found liable.

As the local authority had constructive knowledge of the path and had not put up any signs warning against its use, it must have impliedly consented to it being used by lawful visitors for the purposes of the Act.

There was no authority for the proposition that there was any duty either under the Act or at common law on the part of an occupier to prevent a visitor from leaving his land so as to prevent the visitor from coming into contact with a danger on neighbouring land. The danger in this case did not arise from the local authority’s land.

The test of liability was whether what the Claimant did had been impliedly assented to. Whilst the use of the path was assented to, what she did after she left the local authority’s land was neither expressly nor impliedly assented to and there was no breach of the Act.  Neither did any other common law duty arise.

The accident had not arisen as a result of any breach of the common duty of care owed under the Act or a breach of any common law duty.

In short, the local authority was not liable either under the Occupiers’ Liability Act 1957, or at common law, for injuries caused to the Claimant who had crossed the carriageway from local authority land through the gap. The claim was dismissed

 By Michael Mulcare

Were a Local Authority negligent after a child suffers severe brain injuries during a swimming lesson?

by , February 16th, 2012

Local Authority casesAnnie Woodland (by her Litigation Friend, Ian Woodland) v (1) Swimming Teachers’ Association (2) Beryl Stotford (3) Deborah Maxwell (4) Essex County Council (5) Basildon District Council [2011]

The Court was required to determine whether a school had a non delegable duty of care to its pupils, such that it was responsible for the actions of non employees who had dealings with its pupils during the course of a school day.

In 2000, the 10 year old Claimant was taking part in a swimming lesson, which had been arranged by her school at a swimming pool run by the Fifth Defendant – the District Council.  The Second Defendant’s company – Direct Swimming Services – held the lesson which was also supervised by a lifeguard (the Third Defendant), who was an employee of that company. Essex County Council – the Fourth Defendant – was the relevant local education authority responsible for the school which the Claimant attended.

At some point during the lesson, when she was meant to have been swimming front crawl towards the shallow end, the Claimant was seen to be floating vertically in the water. By the time she was pulled from the pool and despite attempts to resuscitate her, she had suffered severe hypoxic brain injuries.

The Claimant alleged that the local authority was liable for the negligence of both the Second Defendant’s company and the lifeguard as it owed her a non-delegable duty of care. However, the Local Authority denied the existence of a non-delegable duty and submitted that their obligations were only to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that independent contractors were reasonably competent to perform tasks in respect of pupils for which they were engaged.

Held:  the school did not owe the Claimant a non-delegable duty of care and therefore was not liable for the alleged negligence of the non-employee lifeguard.

The Claimant’s claim that the Local Authority owed her a non-delegable duty of care was bound to fail and no Court could reasonably be persuaded on policy grounds to uphold such a duty. The adoption of a non-delegable duty was likely to constitute a wide expansion of liability.

The Claimant’s injury was sustained on premises away from the school, not under its direct control. To argue that the school should be responsible for any failure of the lifeguard to exercise due care would be to extend the duty it owed beyond that of a parent, as it was reasonable to suppose that a parent would entrust their child to a public swimming pool under the supervision of a reasonably and carefully chosen lifeguard. Any liability which might exist would be in respect of the extent of care the school had used when selecting the Second Defendant company for the task.

 By Michael Mulcare

 

 

What Suarez tribunal means for employers

by , February 15th, 2012

Employment tribunalWith more controversy over Luis Suarez’s failure to shake Patrice Evra’s hand the ongoing saga contains all sorts of lessons for employers – not least the value of a full and immediate apology. For those occasionally involved in Tribunals it’s also an important reminder of the difficulties caused by sparse documentary evidence.

The FA held a Tribunal to decide whether the allegations of racial abuse were true. Without clear documentation the process relied heavily on witness testimony. In these circumstances much depends on the quality and persuasiveness of that evidence. The FA’s Tribunal found Patrice Evra’s testimony more credible than that of the Liverpool striker. No consideration was given to the character of the two players apart from the incident itself. This is very much the case with Employment Tribunals unless ongoing records are available.

The FA Tribunal assessed Luis Suarez’s delivery of evidence. Allowances were made for his lack of English skills, yet the panel still decided he was less credible. Conversely Patrice Evra was found to be clear and calm. 

Consistency was also important for the FA Tribunal. They judged Evra’s evidence highly on this count, while being less impressed with Suarez. There were suggestions his evidence may have shifted in response to how the case developed.

Perceived reliability of a witness and the consistency of their story are crucial points which any Employment Tribunal considers. They are even more decisive when there is no documentary evidence to refer to.

A good paper trail lessens this reliance on how witnesses stand up to questioning. Without paperwork those involved need professional guidance on how to present a case right from the start.  Lawyers are not permitted to coach Tribunal witnesses so individuals must depend on their familiarity with the evidence to perform well under oath.

The FA’s Tribunal’s decision was made on their judgement of the facts at hand. Any other Tribunal would do the same and these circumstances leave little room for appeal.

 By Martin Williams

 

The most romantic thing you could do

by , February 14th, 2012

It’s not exactly flowers and chocolate but demand for pre-nups is becoming increasingly popular proving that they are not just for the rich and famous.  

A Pre-Nuptial Agreement is simply a legal document that describes how property and assets brought into and acquired during the marriage or civil partnership will be treated if the relationship doesn’t work.  They are designed to protect the assets of individuals as they enter their legal union.  Should the marriage not work out it will help to establish who comes out with what.

 A Pre-Nup isn’t essential for everyone.  However if you find yourself in any of the following circumstances it is most definitely worth considering:- 

  • You are getting married in later life and have already built up assets of your own and you wish to protect them. 
  • You have children from a previous relationship and wish for your assets to be inherited by them. 
  • You are getting married for a second time and wish to keep your assets independent of one another. 
  • You are expecting an inheritance and wish to keep it within your family. 
  • You have significant assets such as properties, investments, antiques etc. 
  • One of you or both of you own (or partly) own a business. 
  • One of you is significantly older than the other.
  • You simply want to ensure your future financial security 

Whilst pre-nups are growing in popularity, understandably it remains one of the toughest subjects for couples to discuss.  Many take the view it is unromantic whereas I believe it actually reinforces that the marriage is for love and not money.  Having an honest financial discussion prior to getting married or entering into a civil partnership can be a very positive experience and there is no doubt that it can save on future heartache should the unthinkable happen.

So as you get down on bended knee to make the ultimate romantic gesture don’t just think about the ring, think about your future as a couple and the important issues that will arise during your marriage.

A pre-nup is bespoke and as such should always be drafted by an experienced family lawyer.  Always ensure you seek legal advice.

Civil partnership & marriage – do labels matter?

by , February 14th, 2012

Same sex couples have been able to publicly declare their commitment to one another since the Civil Partnerships Act of 2004, but marriage itself is only available to a man and a woman. The Government is planning a public consultation this March on whether this law should change.

Legally civil partnerships and marriage are more or less the same. So do these labels matter? And do we need this two tier system?

Whilst the introduction of civil partnerships was an important advance I find the existence of separate laws depending on sexual orientation difficult to justify.

Opposition has traditionally come from faith groups, but the origins of marriage are not associated with religion. Historically it was a business agreement made between families to consolidate assets. It wasn’t until 1753 that marriage was required to take place in a state-recognised religious setting and just 80 years later registrars were authorised to reinstate civil ceremonies.

Today marriage means different things to different people; with the common ground being lifelong, loving commitment. Given that the law already recognises the difference between civil and religious marriage preventing same sex partners from entering into civil marriage for religious reasons seems inconsistent.

Since December 2011 the law has allowed civil partnership ceremonies to be held in religious buildings, but it does not force anyone to host them. While few church authorities have taken up the offer not every minister is against the idea. Last week 100 Anglican clerics asked the Church of England to reverse its ban on civil partnership ceremonies. They stopped short of indicating their support for same sex marriage in church.

The importance of family values is often cited by politicians and some critics point to a danger of devaluing heterosexual marriage and spurring a breakdown of the family unit. This is unconvincing. Surely allowing same sex couples to make a public commitment to a lifelong partnership would strengthen cultural support for family life. This has been David Cameron’s argument in bringing the issue back into public debate, although some of his MPs disagree.

Then there are suggestions that marriage is about having children. There are many options, such as adoption or IVF, which enable same sex couples to have children.  However, whether straight or gay not all couples want to have children. Many heterosexual couples do not have children, through choice or otherwise, yet they are free to marry.

If loving relationships are important to society I believe we need a legal system that supports and recognises those relationships.

My colleagues and I in the family law department are interested in how people feel about the possibility of opening marriage up to same sex couples. You can express your views through a short survey. The results will be sent to MPs and the press.

By Gemma Hope