Blog

The True Cost of Free Advice – professional negligence and gratuitous services

13-12-2018

Posted by Michael Axe

You’d be forgiven for thinking that a professional couldn’t be sued for negligence if they were simply providing free advice or assistance to a friend, but the Court of Appeal has previously confirmed that such a professional can owe a legal duty of care to the friend.  However, a recent High Court decision has shown that succeeding with such a claim may be more difficult in practice than in theory. It is a common misconception that a professional only owes a duty of care to a client once the professional has been “engaged” and a formal contract entered into.  The reality is that although a professional’s duties to a client may be closely related to the terms of the contract between them, a duty of care can arise independently of the contract, and a breach of that duty can lead to a claim for professional negligence. Mixing business and friendship This principle was highlighted in the case of Burgess v Lejonvarn, where the Claimants sued their friend (a professional architect) over free advice and assistance she provided in relation to the Claimants’ landscaping project at their property. The Claimants and the Defendant had been friends for some time, and during […]

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Soaring fees set deadline for executors and estate planning

07-12-2018

Posted by Penny Wright

Controversial court fees which have been branded a stealth tax on bereaved families are expected to prompt a surge in probate applications before the hike hits.  The new banded fee structure will see the cost of probate soar by thousands of pounds for higher value estates.   The current flat fee is £215 for a personal application for probate, or £155 when handled through a solicitor, but this is to be replaced by a tiered set of fees.  While the fees have been reined in from the original proposal last year, which would have seen charges of up to £20,000, the biggest estates will still find themselves paying £6,000 in court fees. The fees are payable to the court when the executors apply for formal authority to act in the administration of the estate, once they have identified and itemised all the assets owned by the person who has died.  This follows submission of the inheritance tax return for the estate and payment of any inheritance tax that is due. And until the application for a Grant of Probate or Letters of administration has been approved by the court, the executors are unable to bring in the assets of the estate.  […]

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Driverless cars and the criminal law

07-12-2018

Posted by Stephen Bennett

The Government have indicated that they expect driverless cars to be available for use on UK roads by 2021. We already have passed into law, albeit not yet in force, the Automated and Electric Vehicles Act 2018 which received Royal Assent on the 19 July 2018. Section 2 of the Act places the liability for accidents caused by automated vehicles fairly and squarely on the shoulders of the insurer of the vehicle in question. Section 3 of the Act deals with the contributory negligence that may arise where the driver of the automated vehicle allows the vehicle “to begin driving itself when it was not appropriate to do so”. To this extent there is some qualification to what might otherwise be seen as the strict liability of the insurer to compensate for losses arising from the use of automated vehicles on our roads. So much for the question of civil liability but where does that leave us on the question of criminal liability for the large number of road traffic offences we are currently subject to as either drivers, users or owners of motor vehicles? The Law Commission Report on Automated Vehicles https://www.lawcom.gov.uk/project/automated-vehicles The Law Commission has been asked to […]

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Private Renting Sector – the Wind of Change?

29-11-2018

Posted by Joanna Hemsley

What with the Government’s Universal Credit scheme being in the spotlight recently, coupled with reports of affordability of monthly rent, plus the fact private tenancies are estimated to rise, it is no surprise that the Government is taking steps to review the regulation of the private renting sector (‘PRS’). As recently explained by property law expert, Michelle Di Gioia, of Gardner Leader, since 1 October 2018, landlords face ever tougher new regimes for tenant protection. However, landlords may yet face the possibility of future stringent rules. Possible Reform Despite changes to the law over the last two years, the Government recognises that further adjustments can be made to the PRS, in particular to protect vulnerable tenants. Some organisations suggest the PRS should be overhauled. The not for profit organisation, Generation Rent, which campaigns for secure, affordable and fair tenancies, is calling for ASTs to be scrapped entirely, with a model brought in similar to that in Scotland. ASTs were introduced 30 years ago and became standard within 10 years. However, in Scotland, from 1 December 2017, a new type of private residential tenancy was brought into force. New tenancies no longer have fixed terms and remain open-ended; rent increases occur […]

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Civil partnerships for heterosexual couples – an update

27-11-2018

Posted by Amy Wilson Weymouth

Big news for heterosexual couples who don’t want to get married – the law is about to change to allow you to apply for a civil partnership. It’s been a while coming, but one of the last areas of inequality in the world of formally recognised partnerships is about to be rectified. The choice to opt for a civil partnership rather than marriage has been closed to heterosexual couples ever since civil partnerships were introduced in 2004, when the Civil Partnership Act stated that only same-sex couples were entitled to apply. A couple of landmark cases in recent months have challenged that, and on 2 October 2018, the Prime Minister announced that heterosexual couples would now have the same entitlement as same-sex couples to apply for a civil partnership. Is there a demand for civil partnerships? Currently, there are approximately 3.3 million unmarried couples in the UK. These couples live together, have children together, and share financial responsibilities. However, because they are not legally ‘married’, they don’t have the same financial protection as a married couple. With a civil partnership, these couples would now have the same legal treatment for a whole range of issues, including inheritance issues, tax breaks […]

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Safe Buying Online

20-11-2018

Posted by Andrew Shipp

With Christmas fast approaching and the purchasing of presents at the front of people’s minds, it’s a good time to go through some advice about safe shopping online. How do you keep your credit card details secure? Do you have a ‘cooling off’ period if you change your mind? Are online sellers subject to the same consumer rights regulations as those who are brave enough to tackle the high street on Christmas Eve? Let’s take a seasonal look at safe buying. Online security You probably already know all this, but it’s worth going through once again. Online credit card fraud is at an all-time high, so it’s never been more important to be as robust as you can when it comes to protecting your details. Here are our five top security tips: 1. NEVER use the same password for everything. If your account is compromised then all of your online activity is vulnerable, including online banking details. Make it complicated, random, and our top tip is to include the £ sign in your password: it’s a symbol that overseas hackers may not have on their keyboard. 2. Look for the padlock. Before you type in your details, check that you’re on a […]

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Employment law – when ‘Banter’ crosses over into abuse

19-11-2018

“It’s just bants, mate! Just bants!” If you work in any kind of environment, from an office to a building site, you’ll be familiar with the term ‘banter’. It’s that humorous back and forth we all use to make the day a little brighter, to have a joke and a laugh with our colleagues, and to generally brighten up what can be a mundane working environment. But is it ‘just bants’, or could it be something more sinister, and more harmful? Workplace banter has its place. However, the term ‘banter’ should never be used as an excuse to humiliate, upset or abuse someone else. What may seem like ‘bants’ to one person could be deeply offensive or upsetting to someone else. Suggesting that the person who has been upset by a bit of banter should accept it as a bit of ‘light-hearted fun’ is a classic case of blame shifting in what could be a deeply intimidating and demeaning situation. Victims of workplace banter that goes too far are often reluctant to do anything about it. This is when banter has definitely crossed that line into abuse and bullying. Anyone who feels that confronting this behaviour could be detrimental to […]

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Remember remember the fifth of November…

02-11-2018

Posted by Hilary Messer

Yes it’s that time of year again. The summer that went on forever has abruptly stopped. The sunny evening skies are gone. We breathe in cold air full of the promise of either spectacular fireworks or damp squibs – depending on the venue and budget. Hearing the squeals and bangs of those disparate fireworks from about mid-October each year means we’re all hard-pressed not to remember the (allegedly) treasonous acts of those who plotted to blow up Parliament. Should you be planning your own Bonfire Night party or are tired of your neighbour’s rowdy celebrations do you know what you can you do? Here’s the legal take on ‘Gunpowder, treason and plot’… Is it legal to hold a firework party? What you do on your own land is your affair but, be warned, you are subject to a raft of legislation regarding noise levels, health and safety towards the public as well as what exactly you can put on that bonfire. You cannot burn household waste or rubbish if it could cause harm to the environment or people’s health. Don’t be tempted to stick a couple of bags of rubbish or an old tyre or two on the pile. Keep […]

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Delays, Departures and Direct Payment of Compensation

25-10-2018

Posted by Jack Hobbs

Most of us, at one time or another, have enjoyed the luxuries of overpriced beer and expensive sandwiches whilst killing time in the terminal waiting to be told to board a delayed flight. The Flight Compensation Regulation (EC) No 261/2004 is a regulation of EU law which governs the compensation payable to passengers affected by flight delays, cancellations and denied boarding. This blog will review the High Court’s ruling in the case of Bott & Co Solicitors Limited v Ryanair DAC [2018] EWHC 534 (Ch). Bott & Co Solicitors Limited (“Bott”), a claims management company, brought the claim as a result of Ryanair DAC (“Ryanair”) choosing to communicate and pay compensation directly to Bott’s clients, thus not allowing Bott the opportunity to deduct their fees before transferring the remaining compensation to their clients. The issues are in dispute were outlined at paragraph 55 of Mr Justice Murray’s judgement, they were as follows: Is Ryanair obliged to refrain from communicating directly with Bott’s client in respect of a claim brought through Bott? (“the Direct Communication Issue”) Is Ryanair obliged to pay compensation directly to Bott? (“the Direct Payment Issue”). Is Ryanair obliged to indemnify Bott in respect of fees where it […]

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Minimising the impact of incapacity on your business and family

23-10-2018

Posted by Penny Wright

Business owners in West Berkshire are urged to consider what would happen to their business in the event of an unexpected illness or accident. The temporary or permanent incapacity of an owner or director can have a devastating effect on a small business. It is likely to lead to failure to pay suppliers, deliver customer goods or services, compliance with regulatory requirements and reputational damage to the business. This could result in financial difficulties for the business owner and their family. Businesses that have only one active director and majority shareholder, and sole traders, are particularly adversely affected by incapacity. In that situation, there may be nobody with power to appoint another director or access bank accounts. In the case of partnerships, death or incapacity might result in liquidation of the partnership. Penny Wright, a solicitor with Gardner Leader, suggests 3 steps to help prepare and reduce the impact of incapacity on your business. Commercial Lasting Powers of Attorney (LPA) A commercial LPA (also known as a business LPA) allows a business owner to appoint a trusted friend, relative or colleague who would be authorised to take over their functions, in the event of physical or mental incapacity. An LPA […]

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Life-sustaining treatment decisions and the importance of Powers of Attorney

23-10-2018

Posted by Penny Wright

A recent Supreme Court case highlights the importance of making Health & Welfare Lasting Powers of Attorney (LPAs) Health & Welfare LPAs often contain valuable guidance about the person’s preferences, for example in relation to medical treatment; and usually include specific authority for the attorney(s) to give or refuse consent to life-sustaining treatment. If a patient has not made a Health & Welfare LPA, or an Advance Decision, then the doctor must decide whether it is lawful to give life-sustaining treatment. The law protects the doctor from liability if they reasonably believe it to be in the patient’s best interests. Medical professionals will consult with the patient’s relatives or close friends, if there is no attorney appointed, about the patient’s best interests; and if there are no relatives or friends involved then an independent mental capacity advocate is consulted. The advocate is unlikely to know the patient personally so will not know how the patient felt about the issue. Case study: An NHS Trust and others v Y and another [2018] UKSC 46 This case focused on the question of whether it is mandatory always to seek a court order before withdrawing clinically assisted nutrition and hydration, which is keeping […]

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