The Supreme Court ruled recently that damages could not be awarded to a disabled passenger for distress and injury to feelings caused during air travel.

The claimant in this case was severely disabled and a permanent wheel-chair user. On booking flights for himself and his wife to Greece he arranged with the airline that he would be seated next to his wife so that she could attend to his personal needs during the flight. On the return flight no such seating arrangements were available and his wife encountered extreme difficulty in attending to him.

The claim was supported by the Equality and Human Rights Commission and also by the Secretary of State for Transport, who intervened on behalf of the claimant. The Supreme Court ruled however that what mattered in the case was not the quality of the cause of action but the time and place of the mishap. The damages claim was focussed on events occurring on board the aircraft in the course of flight. Damages in this type of case are currently excluded by the terms of the Montreal Convention unifying rules for international carriage by air adopted by the European Union. In light of this, the court rejected the compensation claim.

The Court acknowledged that the judgement was unfair but reported that their hands were tied by the international rules on air travel. 

If you would like assistance in relation to a claim please call Anthony Scott on 01638712243 for further information.

Posted 3 September 2014

 

 

Families of missing people will be given help to cope with the complex legal and financial issues they face as a result of new rules that come into force on 1st October 2014. From this date, Presumption of Death certificates will be able to be issued in England and Wales which will be equivalent to death certificates and can be applied for by relatives of people who have gone missing and are presumed dead – bringing it in line with Scotland and Northern Ireland.

No one can prepare for the heartache and confusion arising from the disappearance of a loved one, gone without trace, but the new rules will at least ease the process of dealing with the bureaucracy. If you would like assistance in relation to any family matters please contact Anthony Scott on 01638 712243 for further information.

Posted 3 September 2014

 

 

Children will be given a greater voice in the family justice system so that they can tell judges how they feel and what they think about the family disputes in which they are involved. Children and young people must by law have their views heard before decisions are made about their future and where decisions are made that will impact them. At the moment, it is still too often the case that their views are not fully heard.

The government has made the commitment that from the age of 10, children and young people involved in all family court hearings in England will have access to judges to make their views and feelings known. 

The announcement was made by the Ministry of Justice following calls from young peoples’ representative group, the Family Justice Young People’s Board, that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them. The government will also work with mediator sector so that children have appropriate access to mediators in cases which affect them. 

These changes to procedure will be put into place as soon as practically possible. 

If you would like assistance in relation to mediation, divorce or children’s matters, call Anthony Scott on 01638712243 for further information.

Posted 3 September 2014

 

The England & Wales High Court has upheld a will executed on his deathbed by a man who left everything to his long-term partner.

The challenge in this case was brought by the man’s daughters, who alleged that the will was written under the undue influence of the man’s partner.  The sequence of events leading up to the new will was unusual and, as the judge accurately noted “may be expected to heighten family tension”.  The man had been suffering from terminal cancer and, when told he had only days to live, he returned home from hospital to settle his affairs. He immediately married his partner of 32 years and, just before the ceremony, he executed the contentious will making his partner his sole beneficiary. The will was made ‘in contemplation of the marriage’.  He died three days later.

The testator’s three daughters challenged the deathbed will, claiming that undue influence had been used to make their father execute a document that was contrary to his wishes.  However, the judge disagreed, finding that: “He quite plainly understood marriage as a solution to the inheritance tax problem which overhung the business that he and his partner had created and for which he had made no provision”.

The law provides individuals with wide discretion on how their estate should be distributed on their death; although there are specific circumstances under which this discretion can be challenged. Whilst there are circumstances when a will can be challenged by a person’s dependents, this does not mean that close relatives have an automatic right to receive money from a will.

If you would like assistance in writing or reviewing your will, call Andrew Geddes on 01638 661116 for further information.

Posted 25/07/2014

German law and not English law was applicable to the assessment of a widow’s claim for damages in respect of the death of her husband, a British national killed in a road traffic accident in Germany, which was caused by the negligent driving of a German national, insured by a German insurer.

Major Cox, was a serving officer with the British forces in Germany; he was killed on the verge of a road near his army base when a car left the road and hit him. Major Cox’s wife subsequently sued the insurers of the driver at fault in England for bereavement and loss of dependency. Liability was not in dispute but the preliminary issue which arose was whether the assessment of damages was governed by English law or German law.

The two relevant respects in which an award from an English Court might differ from an award under German law are:

  • damages awarded to a widow under German law would take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non-marital relationship following the birth of a child. Current English Law expressly excludes remarriage or the prospect of remarriage as a relevant consideration; and
  • under German law the widow might in principle be entitled to compensation for her own pain and suffering but that would require proof of suffering going beyond normal grief and amounting to psychological disturbance comparable to physical injury.

The Court ruled that German law and not the English Fatal Accidents Act 1976 applied in the assessment of damages against the defendant’s insurance company.

Laws vary significantly even within the wider confines of the European Union and this can have significant implications in awards for damages. Having your case heard in the context of the correct country’s laws can have a major effect on practical outcomes and should be thoroughly researched before any action is started.

Posted 21/07/2014

 

The Supreme Court recently turned down an application for a parcel of publicly used land to be registered as a Village Green on the basis that the land was being used for recreation “by right” and not “as of right”.

The land in question was part of an overall housing development built over sixty years ago by a local authority.  The local authority had designated an area for recreational purposes and had maintained it as such by marking out football pitches and so forth.  In other words, it was giving local people the opportunity to use the area “by right”.  When the council later considered building on the land, a local movement was started to save the space and an application was made to have it registered as a Village Green (which would keep it safe from development).  However, the guidelines around designating land as a village green are based on the use of that land “as of right”.  The Court ruled that this phrase referred to people using the land as if they had a right to use it but where they did not actually have any formal right to use it. As such the phrase “as of right” was the opposite of “by right”.  As the council was giving local people the right to use the land, it could not also be deemed to be being used as of right. On this basis, the court rejected the application.

This case demonstrates how the nuances of language can be key in deciding legal matters.  If you would like assistance in the drafting of any contracts please telephone 01638661116 for further information.

Posted 21/07/2014

Repair clauses are often forgotten by tenants and can become an expensive headache at the end of a tenancy. The Supreme Court recently ruled that a term in a commercial lease requiring a tenant to carry out repairs necessary to keep the premises in a tenantable condition did not require a notice from the landlord to activate it.  

In the case in question, the landlord had agreed with the tenant that alterations to the building by the tenant would be allowed, subject to the provision that at the end of the lease the tenant was to restore the premises to their original state if requested to do so before the tenancy ended. Shortly before the expiry of the lease, the landlord’s agent telephoned the tenant and told her that the landlord wished her to remove the alterations she had made to the premises so as to restore them to their original condition. A surveyor then prepared a written schedule of dilapidations, setting out the work required to restore the premises, but that was only received by the tenant after the tenancy had ended.  The tenant refused to carry out the work, referring to the clause in the tenancy agreement which said that all notices had to be received in writing and that the obligation only arose where a tenant had been asked to remedy such defects during the tenancy.   

However, the Supreme Court ruled that the lease imposed a continuing obligation on the tenant, which did not require any notice from the landlord to activate it.  It followed that on the expiry of the lease the landlord could claim the cost of necessary repairs. 

This judgement emphasises the need for tenants to bear in mind their obligation to maintain and keep leased property in good repair so as to avoid a substantial bill for repairs at the end of the term of the lease.  

If you would like assistance in relation to a commercial lease, call Andrew Geddes or Jacqueline Spencer on 01638661116.

Posted 09/07/2014

Under new rules announced by the government as part of its crackdown on fraud, claimants that significantly exaggerate the severity of their injuries will have their whole case thrown out of court.

Recent figures from the Association of British Insurers have shown that the number of dishonest motor claims increased by 34% to a record 59,900 in 2013, with an approximate value of £800 million.

A new package of measures to tackle insurance fraudsters and dishonest claims has been announced by the Ministry of Justice which will reduce the amount being paid out unnecessarily by insurance companies on fraudulent claims and enable them to pass on savings to honest customers. These will affect bogus claims, both motor claims and others, such as ‘trips and slips’ at work and in public places. They include: 

  • requiring courts to throw out compensation applications in full where the claimant has been fundamentally dishonest – to stop people who have had an accident from exploiting the system by making bogus claims or grossly exaggerating the extent of their injuries;
  • reducing questionable whiplash claims by improving medical assessments, ensuring they are only conducted by independent accredited professionals, and setting fixed fees for medical reports this year;
  • introducing new rules to restrict the practice of settling whiplash claims without confirmation of the claimant’s injury. 

The new rules will have a significant benefit for honest motorists that have, for years, been paying for the cheats by way of increased insurance premiums.  If you would like assistance with a personal injury claim, call Anthony Scotton 01638712243.

Posted 02/07/2014

 

Under new rules which have just come into force, the government is encouraging divorcing couples to settle the issues surrounding their separation using mediation rather than by going to court.

The Ministry of Justice reforms, which were implemented on 22 April 2014, introduced compulsory family mediation information meetings.  These are to give separating couples alternatives to potentially harmful and stressful court battles when resolving financial matters and arrangements for child contact.  This is not to say that couples will be required to mediate, or that mediation is appropriate in all cases, but rather that they must now consider this as an option. That said, recent Ministry of Justice figures show that mediation was used successfully in 73% of cases in a sample period and that more than 17,000 people used mediation to settle their divorce in 2012/13.

The reforms mark a significant moment for the family justice system and are aimed at reducing both the potential for conflict and also the time taken to settle the divorce.  When mediation is appropriate it can make the process simpler, quicker and less stressful to all concerned.

If you would like assistance in relation to family matters, please contact Anthony Scott on 01638 712243 for further information.

Posted 21/05/2014

Recently published research shows there are now over two million regular electronic cigarette  smokers in the UK.   E-cigarettes are not covered by current legislation on smoking in the office and the majority of employers seem to be taking a ‘wait and see’ attitude rather than dealing with it by making and communicating a policy to their staff. 

The anti-tobacco charity Ash (Action on Smoking and Health) has reported that the number of e-cigarette smokers is increasing rapidly and has gone from 700,000 to 2.1 million in the past two years.  Furthermore, the research indicates that a third of users are ex-smokers and two thirds are existing smokers.  The jury is out on the health implications of e-cigarettes but concern has been expressed, for example, by Welsh Health Minister Mark Drakeford, that e-cigarettes are re-normalising smoking (and, indeed, Wales is considering adding the banning of e-cigarettes to their current smoking legislation). 

Health implications aside, allowing e-smoking or ‘vaping’ in the office could reduce the time that may otherwise be spent having cigarette breaks and may aid staff health by reducing the smoking of tobacco, but equally the vapour may cause irritation and annoyance to other members of staff.  Whilst the health benefits or consequences of electronic cigarettes remain uncertain, employers need to err on the side of caution and are advised to formulate their own policy.  Where companies do not create a standard policy then staff are likely to create their own informal policies with the associated risk of inconsistency and conflict. 

If you would like assistance in relation to the legal aspects of your office policies, call Andrew Geddes  on 01638661116 for further information. 

Posted 21/05/2014