BLOG

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.

Does Divorce Bring to an End All Financial Claims of a Marriage? By Katie-lee Pearson, Solicitor

 

Going through a divorce can be one of the most difficult and stressful times of someone’s life. We have found in our work that there are a lot of common misconceptions about the divorce process, including whether or not the divorce brings to an end both spouses’ financial claims.

 

What is a Decree Absolute?

The Decree Absolute is the final Decree within divorce proceedings, which actually dissolves the marriage. Once this is granted, spouses are divorced.

Since April 2018, spouses have been able to obtain a divorce online.  The Ministry of Justice do not intend that the online service will replace the existing paper-based application at present, but suggest that the online service provides a quicker, easier service.

However, in attempting to simplify the divorce process, without legal advice from a solicitor, many applicants may be unaware that their spouses may be able to make a financial claim at any time in the future.

There is no time limit on when a spouse can issue a financial claim. Spouses are able to bring financial claims years after separation or divorce. It is a common misconception that Decree Absolute of divorce brings all matters to an end.

There are various ways for financial issues of the marriage to be resolved:

  • Agreement between spouses;
  • Agreement reached through solicitors correspondence;
  • Agreement reached through mediation;
  • Agreement reached using collaborative law;
  • Issuing court proceedings.

 

How can a spouse protect their financial position in the future?

Even if spouses have agreed on the division of finances, unless the agreement has been approved by the Courts, either spouse could make a claim for resolution of financial matters in the future.

The only way to avoid a claim in the future, is to obtain a court order. If spouses have reached a financial agreement, the agreement should be recorded in a Consent Order which will need to be approved by the court. If parties do not have any current assets to divide, it is recommended that a Clean Break Order is submitted to the court for approval. A Clean Break Order would ensure that neither spouse can make a financial claim in the future, which is particularly important if one spouse’s wealth increases significantly post divorce.

 

What is the remarriage trap?

If a person re-marries, they cannot make an application to the court for financial relief. This means a person may lose all their financial claims of the marriage. It will depend on what you have put in your divorce petition and whether you were the petitioner or respondent as to whether you fall into this trap.

 

If you would like to discuss any aspect of divorce or financial matters and need advice from a solicitor, please contact our dedicated family team on 01325 281111.

Leasehold Property – Soaring Ground Rents by Diane Hall, Solicitor

In England and Wales properties are mainly split into freehold and leasehold. A freehold property is owned outright and not limited to a set number of years. A leasehold property is subject to a lease and managed by a freeholder or a management company appointed on the freeholder’s behalf. The key features being the length of ownership set for a number of years and the leaseholder being obligated to comply with the terms of the lease which frequently includes payment of ground rent and insurance rent to the freeholder and payment of a service charge for the provision of communal facilities.

Whilst only 20% of all properties in England and Wales are leasehold, this is a growing sector as 46% of properties in new build developments are likely to be sold as leasehold. This is not only in relation to flats but houses are often sold as leasehold with the freehold title being retained by the developer and sometimes sold to an investment company in order to obtain additional profit. This issue has been in the news over the last year with coverage featuring in the political manifestos of the main parties and even in the Queen’s speech.

Historically ground rent has been a nominal figure (often called a “peppercorn” rent) or a fairly low sum paid to the freeholder on an annual basis. However, the amount of ground rent has now escalated to an average of between £300 and £1500 per year and can include lease clauses requiring the ground rent to be periodically increased so whilst the ground rent can start off in the hundreds, after 20 or 30 years it will most likely be in the thousands.

Mortgage lenders’ guidance is that lease terms should only be accepted if the increase is fixed or can be readily established and the amount is reasonable. Some lenders impose a requirement that the ground rent will not be increased any sooner than every 25 years. The effect of this is that not all lenders are willing to lend on leasehold property.

The government published a paper in December 2017 entitled Tackling Unfair Practices in the Leasehold Market which describes the system as feudal and unjustified. The Secretary of State for Communities, James Brokenshire stated “unfair ground rents can turn a homeowners dream into a nightmare by hitting them in the back pocket and making their property harder to sell”.

A government consultation into leasehold reform has been underway and we expect to see a report published in Spring 2019 followed by new legislation as early as 2020. The consensus is that legislation will be introduced to significantly reduce the number of new build houses being sold as freehold and new leaseholds will only be created where essential, such as with shared ownership schemes. In addition the government propose to cap ground rent to a nominal sum of £10 per year for all new leasehold property. Although the tide is turning on the leasehold property market, these proposals will not have any impact on existing leasehold property.

We recommend that you instruct an expert conveyancing solicitor to advise you thoroughly with your leasehold property purchase. As part of our service we will:

  • Provide you with a full copy of the lease.
  • Obtain the seller’s replies to a Leasehold Information Form including copies of ground rent receipts, service charge accounts and insurance details.
  • Obtain contact details for the landlord and management company.
  • Advise you on what further information is needed from the landlord or management company.

 

If you need advice from a solicitor, contact our conveyancing team on 01325 281111 (Darlington) or 01748 830000 (Catterick).

What Should You Do If You Receive a Letter Before Proceedings From The Local Authority In Relation To Your Children? by Philip Duffy, Solicitor

 

I am told that the local authority want to arrange a legal meeting in relation to my children as part of the Public Law outline and are to send a letter before proceedings. What does this mean?

The local authority have legal responsibilities to ensure that children are not at risk of significant harm. Attempts will be made to work with parents and the family to avoid the local authority having to make an application to the court for orders that could determine where the children live and the future plans for the children. In many cases the local authority will try to avoid decisions being made by a judge and instead by parents or those with parental responsibility working together with the children’s social worker. The local authority will provide a formal letter identifying their concerns and also what steps need to be taken to avoid the local authority feeling compelled to make an application to court for a care or supervision order.

What should I do?

You should contact a solicitor preferably a solicitor who has experience in these sort of cases. Many solicitors have an accreditation from the Law Society. If you have a copy of the letter before proceedings bring it with you to your appointment. There is a type of legal aid known as Public Law legal help that is regarded as a non-means non-merits legal aid i.e. as long as you are the parent named in the letter then you would get legal aid regardless of your financial circumstances.

Strictly speaking there is a merits consideration as the solicitor would need to be able to justify that the client requires advice and assistance with a view to avoiding proceedings or narrowing and resolving any issues with the local authority.

What happens next?

You will need to explain your views in response to the local authority concerns and hopefully acknowledge any valid concerns. It is likely that there will be a meeting attended by you, your solicitor, the social worker and the local authority legal representative to see whether there is an acknowledgement of the concerns, whether matters can be put right and the position to be maintained. If so court proceedings can be avoided and hopefully the best outcome reached in relation to the children.

This does not stop the local authority from issuing care proceedings.

Please note that this sort of legal meeting is different to other types of meetings such as a case conference or looked after review and so the type of involvement from the local authority needs to be clearly identified beforehand.

If you receive a letter like this or have involvement with social services and need advice from a solicitor, contact our family team on 01325 281111.

 

Are You Entitled to a Refund of Fees? by Miranda Richardson, Solicitor

Are You Entitled to a Refund of Fees?

It is not often that a Government department offers a refund of fees but anyone who has been charged more than was necessary to apply to register Lasting Powers of Attorney (LPAs) or Enduring Powers of Attorney (EPAs) in England and Wales between 1st April 2013 and 31st March 2017 is able to apply for a refund of the overpaid amount.

The refund scheme is run by the Office of the Public Guardian and the claim can be made by either the donor (the person who made the power of attorney) or the attorney, but must be made by 31st January 2021. Full details can be found at https://www.gov.uk/power-of-attorney-refund

The refund is paid to the donor’s bank account and depends on when the fees were paid. The following table shows the amount which will be refunded. Interest at 0.5% will also be added.

Date fee paid Refund for each Power of Attorney

April to September 2013 £54

October 2013 to March 2014 £34

April 2014 to March 2015 £37

April 2015 to March 2016 £38

April 2016 to March 2017 £45

If the donor made both types of LPA (Financial Decisions and Health and Welfare Issues) then two refunds can be claimed (although you only need to make one claim). It takes up to 12 weeks for the claim to be processed and, if approved, the refund will be paid to the donor’s bank account.

If the donor was eligible for a fee remission when the power of attorney was registered (for example, because the donor was on a low income) one half of the figure shown above will be refunded.

The claim is made online unless:

(a) the donor (the person who made the LPA or EPA) does not have a UK bank account, or
(b) you are a court appointed Deputy for someone who previously had a registered LPA or EPA or
(c) you have a trust organisation as the attorney (eg a Bank)

If any of the above applies, the claim must be made by phone. The Refunds Helpline is 0300 456 0300 (choose option 6).

What if the donor has died?

The Executor or Administrator of the estate of the donor can claim a refund of overpaid fees on behalf of the deceased donor but it will be necessary to send in photocopies of the Death Certificate and the Will or Grant of Letters of Administration. These documents can be emailed to poarefunds@justice.gsi.gov.uk or posted to POA Refunds Team, 7th Floor, Office of the Public Guardian, P O Box 16185 Birmingham B2 2WH. You should also supply your name, contact phone number, address, email address, the donor’s name and case reference number (this can be found on the LPA). When the Refunds Team has received all the required information, they will phone the Executor or Administrator to complete the refund.

If you would like to discuss a possible claim for a refund or need advice about making an LPA for Financial Decisions or Health and Welfare Issues please contact Miranda Richardson on 01325 281111.

Mediation – What Is It All About? by Tanya Bloomfield, Solicitor

What is Mediation?
Mediation is one of the processes available to try and help people who are in dispute. This could be about separation, divorce, finances and/or children. People can come to mediation whether they have just separated or been apart for a number of years.

In a nutshell, it involves having a third party present to help you have constructive discussions and work towards reaching a joint agreement. Legal Aid is still available for mediation, but even if you do not qualify it is intended to be a quicker, cheaper and more amicable process than, say, court proceedings. The parties are in control of the process and the outcome, as the mediator is impartial, and although is there to help, will not make the decisions for you.

Do I Have To Do It?
The Government wants people to try and sort things out outside of the court area so they have introduced a requirement that, before you can make an application to court about finances or children, you have to attend a MIAM appointment, unless you fall into one of the limited exceptions. This is an information and assessment meeting with a mediator where you learn about the mediation process and an assessment about whether your case is appropriate for mediation is made by you and the mediator. You attend this meeting on your own and it is not mediation in itself, as only if both parties attend a MIAM, wish to proceed and it is assessed as suitable will mediation then be organised.

Should I do it?
Ultimately it is your decision whether to enter into mediation as the process is voluntary. You are only required to attend a MIAM. However it is hoped that if both parties want to sort things out then mediation can provide a great opportunity to do so in a more amicable and cost effective way. You can talk about a lot of things at mediation that go beyond what a court would go into. It is hoped that at the end of the process you can move forward with your lives and avoid a very messy and acrimonious break up, particularly if you have children together.

More information about mediation can be found at our website www.familymediationsolutions.co.uk and the Family Mediation Council website www.familymediationcouncil.org.uk.

Should you wish to consider mediation please contact our mediation line on 01325 289856.

Our Miss Bloomfield is a Solicitor in Family Law, an accredited Family Mediator and trained collaborative practitioner.

Personal Injury Claims – How Not to Be Left Out of Pocket by Victoria Machin, Solicitor

The impact of being involved in an accident can go far beyond the physical and mental injuries sustained, affecting not only the injured party but also those around them. An injured person may not be able to return to work immediately, or at all, causing significant financial worry.

It is therefore important to be aware that a claim for personal injury encompasses many elements beyond the injuries themselves. Did you know that you could also make a claim for any out of pocket expenses incurred as a direct result of the accident? These are known as ‘special damages’ and can include the following:

LOSS OF EARNINGS – If you are unable to return to work whilst you recover from your injuries, you may be able to recover loss of earnings suffered during this time and, if you are unable to return to work at all, you may be able to claim for your loss of earnings up until your projected retirement age. This can be calculated to reflect a number of factors, including loss of pension benefits.

CARE AND ASSISTANCE – You may require assistance from your friends and family, for example, with household tasks and personal care. If your injuries are more severe, you may require assistance from professional carers both now and in the future.

ACCOMMODATION AND ADAPTATIONS – If you have been seriously injured, you may find that your current home does not meet your needs and you need to adapt your property. The cost of such adaptations can be included in your claim, and may include things such as ramps and widened doorways for wheelchair access, bathroom adaptations such as walk-in showers, or stair lifts and lowered work surfaces.

REHABILITATION – You may require rehabilitative treatment to help you recover, including physiotherapy, counselling, speech and language therapy, occupational therapy or pain management courses. It may be appropriate to put in place an in-depth and intensive rehabilitation programme which may include an inpatient stay at a specialist rehabilitation hospital.

MEDICAL AIDS AND EQUIPMENT – Following an injury, you may require certain medical aids, medication and/or equipment to assist you.

TRAVEL EXPENSES – You may incur significant travel expenses attending medical appointments. You may also require adaptations to your vehicle or a new vehicle altogether.

As it is essential to consider all of the above elements when submitting a claim for personal injury, you must ensure that you seek legal advice at the earliest opportunity to ensure that you secure enough compensation to protect, safeguard and address your future needs.

If you or someone you care about has been injured in an accident which was not their fault, please do not hesitate to contact Clark Willis Law Firm LLP at enquiries@clarkwillis.co.uk or on 01325 281111.

Divorce in England – Time for a Change? by Bethany Grimwood, Paralegal

Current Divorce System

When you apply for a divorce in this country you must prove that your marriage has irretrievably broken down and rely on one of the following five grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • You have lived apart for more than two years and both agree to the divorce
  • You have lived apart for at least five years, even if your husband or wife disagrees

 

However, it is problematic that under the current system if a divorce is sought before there has been two years of separation then blame must be placed on the other party. This problem has been highlighted in the current case of Owens v Owens [2018] UKSC 41.

In this case, the Judge accepted that the marriage had irretrievably broken down, but he felt unable to grant Mrs Owens a divorce as Mr Owen’s behaviour had not been sufficiently unreasonable. In the recent unsuccessful final appeal to the Supreme Court, Lord Wilson expressed that Justices had ruled against Mrs Owens “with reluctance” but it was a case for Parliament to review the current law on divorce.

Time for Reform?

The case of “Owens” has sparked a nation-wide debate on whether the law surrounding divorce is in need of reform. Nigel Shepherd, the chair of Resolution (a national organisation of family lawyers), said: “We are today repeating our call on the Government to change the law and introduce no-fault divorce. The reasons for marriages breaking down are often complex and rarely will both spouses agree on them.”

Following the ruling, the Ministry of Justice said: “The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system”

Nevertheless, unless reforms are implemented, the current system will remain in place.

How can we help?

We understand that divorce can be a lengthy and emotional process. If you would like advice on your circumstances, call our excellent specialist family team on 01325 281111 or email enquiries@clarkwillis.co.uk.

How to Protect Your Property From Fraud by Jane Mafham-Jackson, Solicitor

Your property is probably the most valuable asset you will own. You will have read in the papers of many cases of property fraud, which can be very worrying for home owners and investors. Fraudsters can, and do, target properties for fraud, the most common involving the theft of the owner’s identity. The fraudster will then try to sell or mortgage your property, pretending to be you, leaving you to deal with the consequences.

You are more at risk if:

  • Your property is left empty for long periods;
  • Your property is rented out;
  • Your property is not subject to a mortgage or charge;
  • Your property is not currently registered at H M Land Registry;
  • You live overseas;
  • Your identity has been stolen;

 

How can you reduce this risk?

Property Alert Service

Property owners should sign up to the Land Registry’s free Property Alert Service (www.gov.uk/property-alert). This alerts property owners to certain applications such as a new mortgage or change of ownership for up to ten registered properties in England and Wales. You don’t have to own the property, so you could monitor the property for an elderly relative. If you receive an alert about suspicious activity, you should take immediate action. Alerts are sent by email but you can still use the service if you are not online by telephoning the Land Registry Property Alert team on 0300 0060478.

Updating Your Contact Details

Ensure your contact details are up to date with the Land Registry. You can provide up to three addresses, one of which must be a postal address, but can also include an email and overseas address.

Apply for a Restriction on Your Title Deeds

A restriction can be placed on your title deeds to stop the Land Registry registering a sale or mortgage on your property, unless a conveyancer or solicitor certifies that the application was made by you. The Land Registry will charge a fee for this restriction, currently £40.00, and require a completed RX1 Form. For an additional fee, we would be able to assist with this and complete your application at the Land Registry.

Register Your Property

The vast majority of properties in England and Wales are now registered. The most unlikely to be registered are properties that have not changed ownership or been mortgaged since 1980. The cost of registering your property will vary depending on the value of your property. If your property is not currently registered at the Land Registry, there are a number of advantages in doing so:

  • To obtain greater protection against the possibility of fraud and against the possibility of losing title by adverse possession;
  • To reduce conveyancing costs in the future as it will simplify the title;
  • To obtain clarity, as you will receive a copy of your title and plan showing the extent of your property and land;
  • To obtain peace of mind that deeds can no longer be lost as your property will be registered at the Land Registry.

 

For a no obligation quotation, please contact the office on 01325 281111.