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No.1 “The Zebra”

Why We Are Seeing Stripes

Those of you reading this who follow us across our social media channels or who we have met recently at the Darlington Business Expo will not have failed to notice we have gone all dotty over stripes with the introduction of a Zebra combined with the phrase ‘Clear Legal Advice.’

Whilst a Zebra is instantly recognisable in its own right with its iconic stripes and is certainly eye catching across an Exposition hall, the choice of a Zebra to launch a series of black and white images over the coming months runs a little deeper than enabling us to be easy to spot.

Colour

Black and white have long been the colour scheme of Clark Willis Law Firm. Our heritage of providing legal services to the people of Darlington goes back nearly 50 years and so it was natural that the colours chosen by the firm during that early period reflected the colour scheme associated with the town itself and the football club.  As a firm we are proud to be headquartered in the heart of Darlington town centre and wear our colours to display this.

Clarity

‘Black and White’ is traditionally associated with clarity and an issue being easy to understand. The legal world, legislation and terminology can often be confusing  and daunting to those who wish to have matters clearly explained. One of our core values as a firm is that law should be made simple and we explain options clearly, in plain English to ensure our clients fully understand their position and enabling them to make informed choices.

Family

Zebras are family oriented animals and live in family groups of between 5 – 20 individuals. As a firm we enjoy a family team mentality across our 27 members of staff, many of whom have been with us for a significant period of time – the longest working with us for 40 years! Many of the current team have trained with us and we have even had several team members who have left to explore life outside of our herd and who have returned back to the fold. We believe this internal team ethos flows through positively into our service to clients as it enables us to work together across legal disciplines, to work more productively and efficiently and most importantly to focus on delivering an excellent service to our clients to uphold the firms reputation. You may have seen ‘Let Our Family Look After Yours’ included in our literature for this reason.

Resolution

Zebras are surprisingly courageous animals who will stand their ground and are not afraid to confront predators if required. The preferred choice however, is to avoid confrontation and the Zebras dazzling pattern structure and quick pace means that confrontation is normally a last resort. As one of the only firms in the area that can undertake mediation services, with two trained mediators in our ranks, we certainly believe in settling disagreements without confrontation where possible, but if required to do so we also have the legal expertise and experience to adopt a more robust position. This may be a simple pre action warning shot to a debtor for credit control or a more dogged pursuit of the right outcome on personal injury matter to achieve the best result for our clients.

‘No1. The Zebra’ is the first of a series of monthly monochrome images to be featured over the next 12 months across our social media channels to highlight some of the key elements of our service so be sure to follow us on Facebook, Twitter, Instagram and LinkedIn to see the series as they are released.

Trust Advice Darlington

Trustees – Managing trust money correctly.

One of a trustees main roles is to manage a trust fund correctly for the beneficiaries. This will often involve making decisions and investing money held by the trust correctly. Whilst this sounds easy, this is often one area that trustees find themselves in error, especially when family or friends are acting as trustees and can lead to personal liability for not achieving a reasonably return, failing to take advice and the potential for family disputes. Where a professional is appointed as a trustee they are expected to exercise an even higher standard of care and skill.

Investment Choice

The general financial principles are contained in the Trustee Act 2000 (s3) and may also feature in the trust instrument itself, to give the trustees power to put trust assets into any investment which they would be able to invest in if they owned the funds themselves. This is obviously a wide ranging power however, there is further guidance as to how the trustees exercise this function.

– Trustees must consider the suitability of proposed investments for the trust.

– The investment strategy should be diversified if appropriate to spread risk.

– Where trustees do not feel they are suitably experienced to take qualified financial advice to ensure the trustees are complying with their obligations.

 

Dependent on the nature of the trust other factors may need to be considered in the appropriateness of any investment, for example an Income in Possession trust (IIP) to produce income for a beneficiary for life before being distributed to remaining beneficiaries must way the balance between producing the income for those currently entitled against preserving or increasing the capital for those ultimately interested following the termination of the life interest.

Often something as simple as this can be overlooked and recently the writer has been involved in assisting a trust where a capital sum of approximately £10,000 was placed onto a trust in the 1980’s for the benefit of a surviving widow were only consideration was given to generating income for that surviving widow and not any subsequent capital growth.  In the 1980’s £10,000 had a significantly greater value then £10,000 in 2018 and had the fund been invested to both generate income and increase the capital then the trust fund wild have been substantially more, all beneficiaries would have been happy and more importantly the trustees would have acted correctly.

Beneficiaries age or tax position may also be relevant to investment choice of trustees and should be considered. If only £1,000 is held for a child until they reach 18 and they are currently 16 then a low risk choice would be sensible but if £25,000 is held for a 2 year old so there are 16 years to manage the fund, a longer term approach to grow capital would be more sensible. Income tax and reporting requirements to HMRC will be covered in a speedster blog but as a note of caution where trust funds are to be held for minor beneficiaries then trustees may consider a investment strategy to mitigate the need for income tax accountable to HM Revenue & Customs.

Investment Review

Following initial investment choices by trustees regular reviews should be undertaken and if necessary amendments made to ensure that trustees continue to discharge their professional duties and responsibilities.  Where financial advisors are utilised by trustees in relation to investments, this obligation is often met by the financial advisors submitting regular investment reports to the trustees.

With the uncertainty over Brexit and market reaction it is perhaps an ideal time for trustees to consider the investment strategy of their trust funds and as always document any decisions made to confirm that trustees have considered the investment.

Failure to Manage Correctly

Where trustees do not manage a trust fund correctly they can be held to have breached their position and be held accountable for loss. Where a loss has been incurred but the trustees have acted in accordance with their duties, for example if the stock market fell, trustees will not normally be liable if they have acted appropriately.

Often it is inaction of trustees rather than a incorrect informed choice that can lead to a question of negligence and in the pre-trustee act case of Nestle v National Westminster Bank PLC (1994) the beneficiaries argued that the trustees had exercised their investment powers too restrictively and that if the trust had been properly invested, it would have been worth a significantly greater value (over £1 million) Whilst the Court accepted the beneficiaries’ arguments they dismissed the claim because the trustees could not be held as following a investment strategy which no reasonably confident trustee would have done in the same circumstances.

Had they not taken any action at all in considering investments the outcome would have been significantly different with the trustees facing liability for the loss.

How We Can Help?

Our private client solicitors include members of the Society of Trusts and Estates Practitioners, the internationally recognised body of leading professionals in the areas of estate planning and trusts, and are available to provide advice on trust establishment, administration and winding up a trust to ensure trustees are complying with their obligations and reporting matters to HMRC correctly.

We can assist with ad hoc advice to trustees or undertaken a full administration service. We can also act as a trustee should you require a professional trustee to be involved in the trust administration.

Should you consider that you may need advice in relation to your role as trustee then contact our trust team at our Darlington office on 01325 281111 or visit www.clarkwillis.com or call into your nearest office.

Divorce law Darlington

Pensions and Divorce by Tanya Bloomfield, Family Solicitor and Mediator

Getting divorced can be an emotional, worrying and difficult time, however, for most couples sorting out the finances can be the most daunting part. In particular, pensions are not always straightforward and the options for dealing with them can be tricky depending on the circumstances of you and your family.

Do you need to consider pensions as part of a divorce?

The short answer is generally yes. When considering the resolution of finances on divorce the assets of the marriage are all considered. The starting point is to ask both parties to provide voluntary disclosure. This really means obtaining evidence to show how much all the assets are worth. Pensions form part of this process and we will generally request that you try and obtain a ‘transfer value’.

What is a transfer value and how is it used?

A transfer value is a calculation of how much the pension pot is worth on the date it is valued. You might get an annual statement every year which will give you an indication of how much the pension will pay out when you start drawing on it, but for divorce purposes we need to know how much the pension is worth as a whole. Most people will now have a pension in light of the auto-enrolment provisions, even though these new pensions tend to have quite a low value at the moment.

Will I lose my pension as part of a divorce?

Not always, but it will depend on a number of different factors. We will look at pensions with you as part of the divorce process and discuss all the different options available when looking at all the assets involved in your case.

We offer specialist legal advice on pensions and all of your other assets on separation and divorce. If you would like to discuss your case with us, please contact a member of our family team on 01325 281111.

Cash Is King – Debt Recovery for Business following Bathstore Going Down The Drain by Karl Medd

Why Keeping Your Debtors in Check is Vital for Your Business

 

When the specialist retailer Bathstore collapsed last month, 500 shopfloor and head office jobs were put at risk together with up to 300 bathroom fitters, suppliers and small businesses  paying a price. An article in the Guardian on The collapse of Bathstore makes a clear point, as do the case studies set out within it, that these are challenging times for businesses in all sectors. It does feel like there have been so many stories within the media regarding the precarious finances of some of the UK’s biggest businesses including Debenhams and Arcadia Group to name but two.

The difficulties of big business and the wider economy can also have a significant trickle down effect upon small and medium sized businesses, which are referred to in business jargon as “SMEs”. The article lays bare the effect that the failure of large business can have upon SMEs. One large contract or transaction can make, or break, an SME.

For the sake of impartiality, we have so far not mentioned Brexit, but this is clearly a matter of ongoing financial concern for business.

It is not just the financial fortunes of Big Business which can impact upon SMEs, as small and medium sized businesses very often work and trade with each other and therefore the livelihoods of all of employees are likely dependent upon receipt of payment, or contractual provision of goods and services, promptly.

Cash flow is extremely important for SMEs. In fact even law firms are not immune to the financial pressures of cash flow and bad debt. There is a well rehearsed adage in business and accounting circles which sums up the position neatly: “Turnover is vanity, Profit is sanity, but Cash is king.”

Reality can be extremely harsh if your business is struggling to recover bad debts which are impacting upon the financial health of your business.

At Clark Willis Law Firm, our Civil Litigation team are experienced in pursuing recovery of trade or commercial debts on behalf of individuals and SMEs and we act for some well-known business in the town to assist with their debt recovery. We can also provide practical advice and information as to your legal position should your debtor become insolvent, be it liquidation, Administration or a Voluntary Arrangement. So before outstanding invoices start having a detrimental impact on your business call our team on 01325 281111 to discuss ways we can help you.

Life Interest Will Trusts – Protecting Property & Assets by Alex Spurr, Solicitor

Life Interest Trusts In Wills – Why You Might Need One To Protect Your Property & Assets

What is a Life Interest Trust?

Life Interest Trusts, sometimes called Asset Protection Trusts, are the familiar term given to a legal arrangement called an Interest In Possession Trust. They are termed Life Interest Trusts because they give a particular person (the life tenant) the legal right to benefit from the assets being held under the trust. If this is a residential property, this would include a right to reside in the property, or if it is liquid assets, such as cash or investments, the right to receive the income.  This right normally lasts throughout the beneficiary’s lifetime, hence the name life tenant, although sometimes the right might end earlier, for example if the beneficiary required full time residential care or on remarriage.

A Life Interest Trust can hold money, but the arrangement is most often used over a residential property by spouses, civil partners or cohabiting partners.

The Will would specify what happens to the trust property when the life tenant dies (or stops having a benefit if an earlier event occurs) for example passing down to children or other nominated persons.

Normally, the trust allows the assets of the trust to be altered so that if the life tenant wished to move for example, the trust could dispose of property A and acquire, or part acquire, property B to enable the trust to adapt to life events and circumstances.

If the trust held other financial assets, a property sold and the trust held funds not used entirely in the purchase of a new property, then the life tenant would normally be entitled to the income generated by these funds although the trust could be drafted to enable the trustees to pay out capital sums to the life tenant or ultimate benefactors.

Why Might I Want One in My Will?

The main reason is to preserve whatever is in the trust, such as a share in the family home or financial assets. As the life tenant does not physically own the trust assets they cannot be included in their own financial affairs. This can be important post retirement for safeguarding assets from long term residential care costs and throughout life to safeguard assets for the bloodline, to ensure your children inherit. If you consider multiple marriages are now common place and an ageing population means care costs are a increased risk, you may appreciate that building in levels of security for your financial affairs can have long term benefit.

Example One – Care Fees

Alan and Rita are retired and live in a 3 bedroom detached property valued at £250,000 and have £20,000 each in the bank. Alan dies and leaves his property share and money in the bank to Rita. Rita later requires care and all of the property and cash in the bank can be used to fund that care. Rita is self-funding and when she passes away, is left with the bottom threshold of £14,250 which passes between their 2 children.

If Alan and Rita had included a Life Interest Trust in their respective Wills over the property only, in the above scenario, after Alan died, Rita would own her half of the house outright and have the benefit of Alan’s whilst she was alive, meaning she had security, but Alan’s Will specifies that ultimately his 50% of the property passes to the children after Rita’s death. When Rita went into care this time, only her 50% of the property and the savings could be used to fund her care, meaning the children would inherit the £14,250 from Rita’s assets on her death and 50% of the home that was subject to the Life Interest Trust, being an extra £125,000.

Example 2 – Young Family

Neil and Sue are in their 30s with three children under 10. Sue has a fatal accident and Neil inherits her estate. After a few years of being a single parent, Neil meets Helen, another single parent with one child, and several years later they cohabit and ultimately marry. Neil then dies at 76 leaving Helen as his surviving widow. Helen inherits everything and then makes a Will leaving her entire estate to her child and nothing to Neil’s three children. Neil’s original three children are disinherited.

If Neil and Sue had included a Life Interest Trust in their respective Wills over the property, in the above scenario, after Sue’s death, half of the matrimonial home would always have been protected for her three children rather than them being disinherited.

Who are the Trustees?

The executors, or possibly alternative specified trustees by you in the Will, have the job of safeguarding the trust assets and must always act in the best interests of all the beneficiaries.  Care must be taken when choosing who should act in this role.  The surviving partner can be a trustee, but should not be the only one, and perhaps a adult child or sibling should act together with them.  Unless the Will provides otherwise, the trustees will have to act unanimously, so that a surviving partner cannot override the terms of the trust or act in their own best interest.

If there is a property share involved, the trustees would usually go on the title deeds together with the surviving partner and a restriction placed on the title deeds to make reference to the trust.

Inheritance Tax (IHT) Issues?

The life tenant is treated as if he or she owned the trust property for the purposes of Inheritance Tax (IHT) and so will attract the usual spouse exemption if established under a spouses Will. On the death of the surviving spouse they may also have the ability to use the unused element of the predeceasing spouses tax free level, and unused extra residential property allowance, which will not have been decreased by establishing the trust.

If cohabiting partners include Life Interest Trusts then no similar spouse exemption is available although the level of IHT, if payable, will be no different by including this arrangement. There can be circumstances, if each cohabiting partner has their own children that the arrangement can cause the full or partial loss of the additional residential property allowance dependant on circumstances.

The primary position is Inheritance tax (IHT) is payable at 40% on a person’s assets over £325,000 on death and certain gifts made during their lifetime. There are also additional residential property allowances, transferable allowances between spouses and a range of exemptions and reliefs before IHT becomes payable.

On the life tenant’s death, subject to any exemptions or reliefs which then apply, IHT will be payable on the combined value of the trust assets and the life tenant’s own estate.  The trustees will be responsible for paying the proportion of the IHT payable in relation to the trust assets and the executors of the life tenants other estate, on the estate other than the trust.

Other Taxation Issues?

The trust may also be liable for Income tax and Capital Gains tax.

If the trust only includes a share in a residential property then no income tax is likely to arise or capital gains tax issues if the equivalent of an individuals main residence relief is available. For most Life Interest Trust this is the outcome.

Where the trust holds other assets then the taxation position may change. If the trust holds income producing assets, trustees will be liable for tax at the normal rates for income or dividend income.  Where any income is mandated to the life tenant, for example interest credited straight to their bank account so the trustees do not touch the income, then the life tenant would simply reflect this on their own tax returns as their own income.

If the assets held on trust increased above the trustee annual exemption for Capital Gains tax (currently half of an individual’s allowance) then the trustees may be liable for paying CGT if no reliefs are available.

Summary

In modern society, second often third marriages are common place and healthcare advances coupled with lifestyle changes mean that life expectancy has increased causing greater demand on residential care in later stages of life. These two factors alone mean that taking simple steps like including a Life Interest Trust arrangement in a Will for a spouse, civil partner or cohabiting partner can ensure protection for your descendants but without compromising the survivor’s ability to benefit during their lifetime. Where the residential home is included in such arrangements, the taxation side of things is often a non issue.

Whatever stage of life you are at, when owning a property jointly and making a Will, or where one person owns the property in their sole name but cohabits, then we will always discuss with you protection opportunities, including Life Interest Trusts, so that you can make an informed decision on planning your affairs.

As with all legal advice, your own particular circumstances may impact on the suitability of such an arrangement and so we would recommend you contact our specialist Wills team at your local office to discuss your affairs. Call us today on 01325 281111 or 01748 830000 to arrange your no obligation, complimentary discussion.

First Time Buyer’s Guide to the Conveyancing Process by Jane Mafham-Jackson, Solicitor

We know how daunting it can be to buy your first home, but it is important that you understand the process involved so you can stay in control.

Step 1 – Offer Accepted

Once you have had your offer on a property accepted, you will be required to provide your solicitor’s details to the selling agents. For a no obligation quotation, please contact the Darlington office on 01325 281111 or the Catterick office on 01748 830000 or use our online quotation tool at www.clarkwillis.co.uk.

Step 2 – Instruct Your Solicitor

Once you have decided on your chosen firm of solicitors, they will send you some initial client care paperwork for you to complete and return. This will normally include a questionnaire, firm’s terms, information in respect of stamp duty, proof of funds and ID. You will need to complete and return all documents in order to instruct the firm. An upfront payment will also be required which will be around £250.00 for disbursements such as your searches and ID checks.

Step 3 – Contracts Received

Once the contracts and protocol documents are received from the seller’s solicitors, your searches can be requested. It will be a condition of your mortgage offer that searches are carried out on the property before funds can be requested. The searches include a local authority search (which we request direct from the relevant local authority) a water and drainage search, an environmental search and, in some circumstances, a coal search. At this stage the contract documents will be checked and any enquires will be raised with the seller’s solicitors. You will receive a report on title of the property which you are purchasing.

Step 4 – Mortgage & Survey

Once the solicitor’s offer of mortgage arrives, this will need to be checked to ensure the same is in line with the contract, we will also need to check whether there are any specific mortgage conditions within the offer. A mortgage report will be provided. The mortgage valuation is not a survey and can only be relied upon by your lender. You may wish to instruct an independent surveyor who will advise you on the different types of reports available.

Step 5 – Providing the Information

Once we have replies to the enquires raised at Step 3 and your search results, we will be in a position to provide you with all the necessary information about the property.

Step 6 – Signing Documents & Deposit

Once all enquires are satisfactorily responded to and search results are clear, the contracts will be issued to you for signature. You may attend the office or the documents can be posted or collected by you. You will be asked to sign a contract, transfer, mortgage deed, confirmation form, file plan and stamp duty form. You will also be provided with a completion statement which details all receipts and payments that need to be made on your transaction. We would require the deposit/balance funds from you in a cleared format together with confirmation of the source of the funds and up to date bank statements.

Step 7 – Exchange of Contracts

At this point you must be sure that you are happy to purchase the property. Once contracts are exchanged the completion date will become legally binding. There are penalties if you change your mind and wish to withdraw. Upon exchange of contracts a fixed date is inserted into the contract. There is no set time frame between exchange and completion. Some people wish to book removals or hand in a notice on a rental property so will require a period of time between exchange and completion.

Step 8 – Completion Day

This is the day in which the funds are sent to the seller’s solicitor and upon receipt, subject to the agreement of time, keys will be released to you. These are normally collected from the selling agents.

 

If you are ready to take the first step, contact us for a no obligation quotation on 01325 281111 (Darlington office) or 01748 830000 (Catterick office) or use our online quotation tool at www.clarkwillis.co.uk.

 

 

 

 

 

Relax & Enjoy Your Retirement Knowing You Are Covered – Wills, LPAs, Care Fee & IHT Planning by Alex Spurr, Solicitor.

Retirement is a significant life event and often coincides with a change in your financial circumstances. Whilst sorting your legal affairs might not be the first priority on your to do list, dealing with matters at the start of retirement, or even better whilst planning your retirement with your financial adviser, means that you are free to enjoy your retirement years with peace of mind that you are protected.

Wills

The most important consideration is to make a Will. A Will is the only way of ensuring your property and affairs benefit those whom you would wish to do so. People who do not make a Will are leaving unnecessary work, possible complications and costs to their family.

If you do not make a Will the “Intestacy Rules” will decide which family members will receive your money and possessions after you die. Your whole estate may not automatically pass to a surviving husband, wife or civil partner as most people presume. Unmarried partners will not automatically inherit often causing financial hardship and distress. Surely it would be better to make sure that the people you wanted to benefit following your death was controlled by you?

Wills are also a useful way of including any specific funeral wishes you may have. Even a basic decision as to whether a family member wanted cremating or a burial can cause conflict or be emotionally challenging during a period of grief.

If you already have a Will it is also important to consider reviewing it. Changes in family, financial circumstances or the law may no longer reflect your current wishes or include unnecessary complications. Since 2007 there have been significant changes to inheritance tax for married couples/ civil partners and the introduction of a residential property inheritance tax allowance which may make Wills made over 5 years ago, and certainly prior to 2007, no longer appropriate for estate planning or certainly worth a review.

Lasting Power of Attorney

Have you considered what would happen if you were unable to manage your financial affairs or make decisions over your healthcare treatments due to an accident, old age or illness? This may be temporary, such as hospital stay, or permanent with an illness such as Dementia.

Lasting Power of Attorney (LPA) allow you to appoint the person or people you would like to take those key decisions for you. Without it, a family member or friend would have to make an expensive and time consuming Court application and suffer annual administrative requirements.

You can give authority to assist you with your financial affairs, including property, and/or your health and welfare.

It is important to note that an LPA does not take away your independence or control whilst you have capacity and you can limit the decisions you may wish your Attorney(s) to take on your behalf.

An LPA can only be drawn up whilst you have mental capacity and whilst it might sound daunting, the key is to deal with it sooner rather than later whilst your health is not an issue. Think of LPAs like an insurance policy to protect you should you need it in the future.

Asset Protection & Long Term Care Costs

As a population we are living longer and an increasing number of us face the real possibility of going into residential care in the future. Most people are concerned about funding long term residential care with an average cost of £700 per week in the North East.

Currently, if your assets exceed £23,250 (including the value of your property) then you will be self-funding and have to pay for your care yourself with the exception of certain medical conditions. Life savings are being eroded and family homes intended to pass as inheritance may be utilised to fund care for those without planning in place.

As the need for residential care approaches, people may be tempted to transfer their homes into the names of children or to give away large sums of money. If you do so and the Local Authority claim you have purposely done so to avoid the asset being used to pay for care you can still be treated as owning that asset. There is also a significant risk that children may get divorced, have financial difficulties or predecease you causing someone outside the family to get an interest which ultimately could cause you to lose your own home.

It is important to take advice on what assets are considered in any funding assessment, financial options available to you and the structure of your finances to appreciate how residential care may apply to your circumstances. Steps can be taken that can preserve your assets from funding long term care but these have to be considered based on your planning as a whole and reviewed whilst you are in good health. It is essential to take expert legal advice to fully understand your options as early as possible.

Inheritance Tax Planning

In 2018/2019 tax year, the money received by HMRC through Inheritance tax (IHT) was £5.4bn, a staggering level considering it is often termed a voluntary tax as with correct planning the amount of tax payable can be significantly reduced.

The basic principal is that each individual has a tax free estate of £325,000 with additional allowances (currently up to £150,000) being available if residential property is left to direct descendants.

People wrongly assume that tax planning is complicated and whilst it can be for very significant estates, it is often very straight forward with a strategy of steps to achieving tax mitigation. This may include working with financial advisers on arranging your wealth, looking at lifetime gifts or the beneficiaries of your estate to maximise exemptions and reliefs available with the combined aim of minimising the tax bill whilst achieving your succession aims.

Your Next Steps

The Private Client team at Clark Willis not only have a wealth of experience in these matters but also include members of Solicitors for the Elderly and the Society of Trust and Estate Practitioners (www.step.org) so you can have peace of mind that your retirement plans are in safe hands. Take the first steps to your peace of mind by contacting our team today on 01325 281111.

Enforcement of a Judgment by Beth Grimwood, Paralegal

If you are owed money by an individual, the law provides that you can take action in trying to recover that debt by firstly issuing a claim and thereafter obtaining Judgment. The Judgment allows the Court to order that the debtor must repay all monies owed and if no response is received from the debtor, the Judgment can then be ‘enforced’ by a number of enforcement procedures that are available. These include:

Order for Debtor to Attend Court for Questioning

Whilst this enforcement method does not require the debtor to make a payment, an order is given that the debtor must attend court to answer formal questions focusing on their current income and expenditure and also whether a repayment plan can be proposed.

If a payment plan is proposed and accepted, the court can create a variation order detailing the agreement. If a plan is not put forth then the information obtained may allow you to enforce the debt through a different method.

Attachment of Earnings

If you have knowledge of the debtor’s employer then it is possible to do an application for an attachment of earnings. Here, a proportion of the debtor’s salary will be deducted by their employer each month until the Judgment debt is repaid. However, it must be noted that an Attachment of Earnings Order cannot be made against a debtor who is self-employed.

Charging Order

When enforcing a Judgment, a Charging Order can be secured against any property a debtor owns. If a property is jointly owned by the debtor, then a charge will be made on their share of the property, rather than the property as a whole. Unfortunately, however, a Charging Order does not guarantee immediate payment of the debt as payment is usually only received if the debtor re-mortgages or the property is sold.

If you are uncertain whether a debtor owns their property then it is possible to run a search of the land registry documents to see who the legal owner is.

High Court Enforcement

Here, an application is made for a High Court Writ which allows an enforcement officer to seize goods belonging to the debtor to the monetary value of the Judgment. Once goods have been seized, they can then be sold so that the debt is repaid. The High Court enforcement officers will also recover their fees from the debtor and so have the incentive to make sure their attendance at the debtor’s residence is successful. This method of enforcement is for debts of a higher monetary value.

County Court Bailiff

Much like the High Court Writ, an application can be made to the County Court to request that a bailiff attend a debtor’s property. Here a bailiff will also recover items to the value of the Judgment obtained. This service is for debts of a lower monetary value.

 

At Clark Willis we recognise that the prospect of any civil enforcement action may be daunting. We are here to support and represent you in your journey to recover what is rightfully yours. If you require advice or assistance in relation to a bad debt or enforcement matter then please contact our dedicated civil team to discuss your options on 01325 281111.

Road Traffic Accidents – The Importance of Identifying the “Unknown Driver” by Karl Medd, Chartered Legal Executive

The recent Supreme Court decision in Cameron v Liverpool Victoria Insurance Co Ltd provides a clear reminder of the need to obtain from the third party as much information as they are legally obliged to provide at the scene of the incident when involved in a road traffic accident.

The Court of Appeal had previously ruled that it was legitimate for a Claimant to issue proceedings against an unnamed/unknown driver and the motor insurer for the vehicle at the time of the incident. However, the insurance industry has successfully appealed the decision of the Court of Appeal and the Supreme Court held that an unknown motorist could not be sued by description only. The liability of the motor insurer is contingent upon a judgment being obtained against their policy holder. If the driver is unknown, the insurer for the vehicle cannot be held directly liable.

A degree of shock or inexperience can be common in the immediate aftermath of an accident and you may not have the presence of mind to ask for the necessary information. It is not uncommon for RTA claimants to be provided with scant information at the scene of the accident by the third party, perhaps a scrap of paper bearing only: “Name. NO00 REG”. 

Section 170 of the Road Traffic Act 1988 states that:

“The driver…must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle

Some people are naturally apprehensive in giving their name and address to a perfect stranger, however, if you have suffered damage to your vehicle and/or personal injuries, you have reasonable grounds for requesting the information specified within the Act.

If the third party refuses to provide the information set out above and within the Road Traffic Act 1988, I would recommend that you report the incident to the Police immediately; take a note of the registration number and a description of the driver, if possible, in the event that the Police are unable to attend the scene or the third party should leave the scene without providing any information.  I would not recommend attempting to take photographs or video footage of the third party in the event that the situation does begin to turn ugly!

If it is not possible to trace the third party and the insurer for the vehicle will not consider the claim, it is possible that you could be compensated for your injuries by the Motor Insurers Bureau (MIB) pursuant to the Untraced Drivers Agreement. In order to pursue this avenue, however, it is essential that you demonstrate that reasonable efforts have been made to trace the unknown driver.

If you have been involved in a road traffic accident, that was not your fault, and need advice, contact our dedicated team on 01325 281111.

The Mental Health Tribunal. A blog by Peter Furness, Solicitor

 

To whom does this apply?

Patients who are detained in hospital under the Mental Health Act or subject to a Community Treatment Order (CTO) are entitled from time to time to apply to The Mental Health Tribunal to be discharged. This applies whether or not the patient is being assessed for a short period of time in hospital or indeed is being detained for treatment for a longer period of time. Patients who are on a CTO are liable to be recalled to hospital, if for example there is non-compliance with medication. In all of these cases, patients have the right to be discharged from the Section even if they wish to voluntarily remain in hospital, or indeed voluntarily take medication.

When are patients allowed to apply to The Mental Health Tribunal?

This all depends on the type of Section. Detention for assessment can only last 28 days and therefore any application to the Tribunal has to be made within that time limit. Detention in a hospital for treatment generally means that within the first six months of the detention the patient has the right to apply to a Mental Health Tribunal and thereafter once in the next six months, followed by once every twelve months. If the patient is subject to a CTO they basically have the same rights to apply to a Tribunal, as those detained in hospital for treatment.

What is The Mental Health Tribunal?

The Tribunal is not connected to the hospital and consists of a Judge, an independent Tribunal doctor and a specialist member who often has a social worker or mental health background. The Tribunal is a very informal setting and every patient who appears before the Tribunal is entitled to legal representation covered by Legal Aid regardless of financial circumstances.

During the Tribunal, evidence is heard from the hospital psychiatrist, the hospital nursing staff and the patient’s social worker and of course the patient is allowed to give evidence himself/herself. The patient is allowed to ask questions of the various experts either by himself/herself or through his/her legal representative. Members of the Tribunal may also ask questions. At the end of all of the evidence being heard, the Tribunal will decide in general terms, whether the Section should remain in place, or whether the patient should be discharged.

How can we help you?

Only specialist accredited lawyers are entitled to appear on behalf of patients at a tribunal. This firm has a mental health department headed by Peter Furness who is an accredited mental health specialist and as such, we are able to assist in Tribunal applications and representations at the Tribunal itself. For more information please contact our dedicated team on 01325 281111.