confused

In the recent High Court case of Seery v Leathes Prior (A Firm) Judge Sir David Eadya judge has thrown out a professional negligence claim lodged against a law firm by a former client.


Dan Carter
Dan Carter
Partner & Head of Professional Negligence

On the 24th January 2017, the Judge said "he had ‘no alternative’ but to dismiss the claim, brought by the former client against a full-services firm".

The claim

The former client brought the claim against the firm after a settlement agreement that stemmed from a dispute with two colleagues.

Among the claims made by the Claimant was that the Solicitor with conduct of the matter could have encouraged litigation, which might have led to a more favourable outcome.  However, the judgment said that although the option would have been considered by the firm, it would have been ‘a costly, acrimonious, long-drawn-out fight’, which was exactly what the former client wanted to avoid.

Why the claim failed

The Court said there was no evidence that the former client would have received a better outcome had he been encouraged to sue.

Importantly, the former client also suggested that he had suffered from stress and was unable to take on board the legal advice he was given, in particular, that which he had previously received from his former Solicitors (which pre-dated the defendant firm).

However, the Court said the former client did not tell his Solicitor at the time that he did not understand the advice and that much of the advice was in writing and could have been re-read at any time.

He added that a Solicitor will have fulfilled his duty of care to his client if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said.

Concluding, the Court said that there was nothing to be gained by exploring the case on contributory negligence by the former client, or entering further into the arguments about expert evidence, an exercise which would have been in its view too speculative to have been of much practical use anyway.  The Court added that the former client received a ‘very good service from the firm in the difficult circumstances in which he found himself’.

We Can Help

At MW, our mission is  is "To make quality legal services accessible to everyone" and we strive to ensure that clients have complete understanding of what can in some cases be complicated advice.  A client who does not understand the advice given to them will place themselves at risk in litigation in particular.

If you or anyone you know has received advice on a critical matter that they have not understood or has left them confused, call our specialist professional negligence lawyers today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Young Detainee

Despite what some media outlets might suggest, UK detention facilities are no holiday camp for those spending time inside.

Whilst images have surfaced in the media showing inmates playing computer games and taking ‘group selfies’ that could well fool us into believing that there is enjoyment amongst those on the inside, no one has considered what it is like for those that are mistreated and harmed when their care is within the hands of the state, and what it would be like to loose the basic human rights that we are all granted.

What Happens When Detention Facilities Reach Capacity?

When detention facilities start to reach capacity, in a similar way to any institution that is designed to house human beings, the pressure on that institution, and the staff that work within it, increases. When capacity turns into over crowding, the ratio between the supervisors and the supervised becomes disproportionate, unsafe and creates an environment such that incidents occur which would normally have otherwise been prevented.
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. Whilst those that are detained may have to suffer the curtailment of certain rights, such as personal freedom and the right to vote, they are still entitled to share the benefit of and receive the protection of all other basic human rights, and in particular the rights to life and prohibition of torture. We must consider whether we are doing enough to protect the human rights of some of the most vulnerable people in our society.

The Tragedy of Restraint Techniques

The issues surrounding the mistreatment of detainees was brought into the centre of media storm in April 2004 when Gareth Myatt, at the age of 15 years, became the first child to die in a privately run Secure Training Centre (a young offender’s institution equivalent to a prison). Gareth died after being restrained by three adult officers, under a Home Office and Youth Justice Board approved restraint technique known as the ‘seated double embrace’. Gareth weighed a mere six and a half stone. The restraints system, introduced in 1998, came with a promise that the use of it would be constantly reviewed, however a medical review into the use of restraints was ordered after Gareth’s death, and the ‘seated double embrace’ technique was withdrawn.

In August 2004 Adam Rickwood became the second individual to die in a privately run Secure Training Centre. Adam hanged himself, taking his own life, after being restrained by centre staff.
The mistreatment of detainees, especially those under the age of eighteen, is not a subject that has been greatly reported on, nor is it considered to be one of the major pressing issues of today’s society, a troubled child is more easy to pass by, Oliver Twist, and not Artful Dodger, got the happy ending.

Independent Review of Restraint in Juvenile Secure Settings

Following the tragic deaths of Gareth Myatt and Adam Rickwood, reports were commissioned and opinions were sought. One such report was the Independent Review of Restraint in Juvenile Secure Settings, commissioned in 2008. This was carried out by two social workers with many years’ experience in practice and management, and they attended, quite freely, many Secured Training Centres to speak directly with the children and staff on the topic of restraint.

Minimising and Managing Physical Restraint

The Ministry of Justice, followed up on the recommendations with a new behaviour management and restraint system known as Minimising and Managing Physical Restraint (MMPR). The aim of MMPR was to provide staff with the knowledge and ability to recognise certain behaviours in young people, and to use de-escalation and diversion strategies, through the application of behaviour management techniques to minimise the use of restraint. The report also highlighted that staff must be able to clearly demonstrate why restraint was necessary.

We have also seen the introduction of the Criminal Justice and Courts Act 2015, which brings in the construction of ‘Secure Colleges,’ in place of the Secured Training Centres, where the emphasis is on greater education for the young offenders for rehabilitation purposes.

Young and Vulnerable People are Still at Risk

The introduction of the MMPR, together with the Act, arguably demonstrates that the Government  has recognised the need to overhaul the rehabilitation of young offenders. It paints a picture that there will not be a reoccurrence of the tragic events that led to the death of the two young individuals.

However, when a copy of the MMPR was requested by charity Article 39, a largely redacted version was provided. The reasoning given for the large redaction was that the techniques used on young offenders, are also used on adult prisoners, and it was argued that disclosure of the manual will allow adult prisoners to develop counter measures against the techniques.

Changing Culture Takes Time

The report stated that ‘it is recognised that the required cultural change is expected to take a sustained period of time.’ However, many would argue that there has been no significant change in the way in which the human rights of detainees are being safeguarded and that the Secure Colleges are merely a cheaper and easier to run alternative to the Secured Training Centres as they are intended to house more offenders in one location than their predecessors.

Some believe that the new systems, and not the actual restraint techniques themselves, are what have been specifically designed for children.  It certainly raises the question “have we honoured the deaths of Gareth Myatt and Adam Rickwood?”. 

Only time will tell.

The Fight for Civil Liberties Goes On

At McMillan Williams, we strive to uphold the rule of law and challenge any abuse to the human rights of those who have been detained. We believe that as a nation, we must protect each other from those who seek to harm us or prevent us from enjoying all civil liberties, and whilst Government reports  bring much needed public scrutiny and awareness of the issue, there is still a way to go to ensure that we are fully protecting those that are detained by the state.

A special consideration should apply to those most vulnerable, such as the youth members of our society.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including vulnerable young people who find themselves detained in Secure Training Centres.

If you believe that your or a family members Human Rights have been breached and you wish to discuss the case with one of our experienced and dedicated Civil Liberties Lawyers, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

holiday

MW Employment Law specialist Andrew Norris discusses Workers rights to Holiday Entitlement and the potential implications of a change in European Law.

Your Right to Paid Holiday


Andrew Norris
Andrew Norris
Solicitor - Employment Law

All "workers" have the right to take paid holiday.  The term worker is wider than employees and includes those who work under a contract to personally provide their services to an employer. Those who are genuinely self-employed are not entitled to paid holiday.

A worker’s entitlement to holiday arises from two sources.

Statutory Holiday Entitlement

The first is a worker’s statutory holiday entitlement. This statutory entitlement is governed by the Working Time Directive (WTD) and the Working Time Regulations 1998 (WTR).  The WTD is European Union legislation and is implemented into UK law through the WTR.

Contractual Holiday Entitlement

The second is a worker’s contractual holiday entitlement.  It is not uncommon for a worker’s contractual entitlement to be more than their statutory entitlement.  Holiday in excess of statutory holiday is governed by workers employment contract.  

Under the WTR, those working 5 or more days each week are entitled to 5.6 weeks (or 28 days) holiday each leave year.  The entitlement is pro-rated for those who work part time.  The 5.6 weeks is comprised of four weeks paid holiday, which are provided for under the Directive, and an additional 1.6 weeks paid holiday entitlement, which are provided for by the WTR.

A worker’s statutory holiday entitlement may normally only be taken in the leave year to which it relates. The general position therefore is that a worker will need to use such holiday entitlement during that leave year or they will lose it.  There are certain exceptions to this such as where a worker is on maternity leave or sick leave (and they have been unable to take such holiday in the leave year it accrues). Where these exceptions apply, it has been determined that a worker can carry over such untaken statutory holiday for a period of 18 months after they should have taken it. 

European Court Challenge

This long standing position is currently being challenged in the European Court in the case of King v The Sash Window Workshop Limited. One of the central issues of this case which needs to be determined, is whether the statutory holiday entitlement that Mr King had accrued over many years but not taken (because he was told it would not be paid) should have been paid when his employment ended.

If the case succeeds, it could open the door for claims for unpaid statutory holiday claims going back many years.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including employers and workers struggling to get to grips with holiday entitlement issues.

Our specialist Employment Lawyers are experts in resolving employment issues.  If you would like more information on the case, the law surrounding holidays or to discuss your employment law issues call us today on on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Inheritance Law Clarity for Adult Children

Hayley Bundey, Head of MW's Estate & Trust Dispute Team, discusses today’s landmark decision by the Supreme Court which brings to an end the long-running battle of Ilott v Mitson.  This is the first judgment handed down by the highest Court in the land on the important issue of how to deal with adult children bringing claims against their deceased parent’s Estate.

Case History


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Hayley Bundey
Partner & Head of Estate & Trust Disputes

As discussed in previous articles, the years of developments in the Ilott v Mitson case date back to the original judgment which was made in 2007 following Mrs Jackson’s death in 2004.  It has therefore taken some 13 years to reach a final resolution to this case.

In summary, Heather Illott pursued her claim against her mother’s Estate pursuant to section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).  She argued that as a child of the deceased, she did not receive reasonable financial provision from her mother’s Will from which she was specifically excluded (with reasons provided in a side letter of wishes relating to Mrs Ilott’s choice of husband and which had led to an estrangement from her mother for some 26 years). Instead Mrs Jackson left her £486,000 Estate to three charities; The Blue Cross, the RSPB and the RSPCA (with whom she had little or no involvement during her lifetime).

In 2007 the original judge decided that it was unreasonable for Mrs Ilott to be excluded from her mother’s Estate, due in part to her straitened financial circumstances, and she was awarded £50,000 from the Estate. Mrs Ilott argued that £50,000 was not enough and so she made an appeal to increase the value of the award to the High Court.  The charities, also dissatisfied, cross-appealed making a claim that no award should be made. The outcome of the second judgment overturned the first Judge’s ruling thereby cancelling Mrs Ilott's original award, leaving her with nothing.

Mrs Ilott then appealed this second decision to the Court of Appeal who, in 2011, reinstated the first judge’s decision (that it was unreasonable for Mrs Ilott to be excluded from the Will) and sent it back to the High Court for a further assessment of the value of the claim to be made.  In March 2014 the High Court dismissed Mrs Ilott’s second appeal on the value of the claim (so the £50,000 award remained).

In 2015 Mrs Ilott took her appeal back to the Court of Appeal (but this time solely on the issue of the value of her award) and in July 2015 the Court of Appeal overturned the first judge’s order of £50,000 and replaced it with one for circa £164,000 (nearly 1/3 of the Estate), on the basis she could buy her Housing Association property and have an option to draw down £20,000 from the Estate on top for a small nest egg.

The charities then appealed that decision to the Supreme Court and they have given the final judgment on the case today.

Today’s Landmark Decision by the Supreme Court

In today’s judgment - [2017] UKSC 17 - the Supreme Court have allowed the charities’ appeal and reinstated the first Judge’s order for a £50,000 award. They did so because they said the Court of Appeal had made two fundamental errors when coming to their decision in 2015, namely:

  1. They were wrong to say that the first Judge was required to explain the extent to which he had limited his award for Mrs Ilott because of the long estrangement she had from her mother and the lack of expectation she had for any benefit from her Estate.

  2. They were also wrong to say that the first judge had made his award of £50,000 without knowing what the effect of it would be upon Mrs Ilott’s state benefits.

The Court of Appeal was only allowed to replace its award of £164,000 with the first Judge’s award of £50,000 if the first judge had made those two legal errors (or any others, which it was found they didn’t) and as the errors hadn’t been made at the first hearing this meant the Court of Appeal did not have the right to replace the award with one of its own calculation.

Commentary

It is important to note that today’s judgment is not a landmark decision because of the level of the award made for Mrs Ilott nor is it for the fact that she has received any award at all (both decisions which the Court says were correctly made back in 2007). The judgment is a landmark one because it is the first time that we finally have some clarity from the Supreme Court on the key issues which the Courts should take into account when deciding these very difficult and discretionary cases going forward.

It is important to remember that Mrs Ilott hasn’t lost her case.  Indeed the result is quite the opposite as she has succeeded on recovering an award of £50,000 from her mother’s Estate despite the estrangement and lack of expectation of provision.  The purpose of this appeal was simply for the Supreme Court to provide some clarity on the law.  Indeed it seems the parties have come to some form of out of court arrangement between them, regardless of the outcome of this appeal, given that it was so important for it to be used as a vehicle to provide clarity for the Courts and for future similar cases.

The parties are of course to be commended for coming to such an arrangement which now affords other Claimants and Defendants more guidance on how their own claims should be resolved going forward.

The Supreme Court made it clear that these claims are so discretionary that it will rarely be justified for them to be appealed in future (so long as Judges don’t make an error of law) because there is such a broad scope of outcomes which the Court can legitimately order for these cases. The Court expressly stated that if Mrs Ilott’s original case had been heard by a different judge it could have resulted in her getting nothing (as was the case in the first High Court hearing) and equally it could have resulted in her getting provision for her housing (as was the case in the second Court of Appeal hearing).

Neither approach was stated to be wrong when assessing the claim, the difficulty was that neither of those subsequent courts had the power to substitute their orders in the end as the original Judge had not made an error in his own judgment. His judgment was within the range of reasonable judgments which a judge could make based upon the facts of this case.

A New Clarity for Inheritance Claims

So what does this mean for Claimants and Defendants to adult child claims under the 1975 Act in future:

  • The Section 3 factors are to be equally applied to both stages of the two stage test which the Court needs to determine before making an order, namely:- 1) did the Will/intestacy make reasonable financial provision for the Claimant and 2) if not, what reasonable financial provision ought now to be made. It is not necessary to separate out these questions and the Judge can simply set out the facts as he finds them and then address the answer to both questions together if appropriate. There should be no need for two separate (split) hearings on these questions. The reference to this process as a “value judgment” was endorsed by the Supreme Court.

  • The time to assess the relevant factors under section 3 is at the date of the trial (as per section 3(5) of the 1975 Act) and even on the rare occasion when a case is successfully appealed in the future, so that a higher Court needs to re-exercise the value judgment as to the level of award to be made,  this should be done using facts and evidence available as at the original trial. Later evidence (including evidence of changes to financial need) should only be heard if the Court allows that evidence in on specific application. Predominantly the test for this is whether that evidence could not, with all reasonable diligence, have been obtained for use at the first trial.

  • “Maintenance” remains the test to be applied to determining the value of an adult child’s claim under the 1975 Act. Whilst the provision of a property can be considered to be maintenance it is more likely that this will take the form of a life interest in the property (the right to live there – or take the rent from the property – for the remainder of the lifetime of the Claimant) than an outright transfer of property or payment of a lump sum being provided to enable the purchase of the same.

  • The judges confirmed that adult children do not have an additional obligation to overcome to prove a “moral claim” to their parent’s Estate, however this is one of the factors which will be weighed in the balance with other factors when making the value judgment. Equally the Court has clarified that something more than being an eligible applicant and having a relationship with the deceased needs to be proven in order for the claim to succeed. That “something more” can be a moral claim (including financial contribution to Estate assets or care for the deceased). Financial need cannot by itself be sufficient to make an award but again it is one of the factors to be weighed in the balance with the other section 3 factors.

  • The state of the relationship (i.e. an estrangement or being particularly close) with the deceased can impact the level of the award to be made but as part of the wider value judgment to be exercised by the Court and not by way of the Court needing to discount or add sums of money to a notional baseline figure in order to account for those issues.

  • State benefits are of significance when calculating a Claimant’s financial needs but the provision of a capital sum of £50,000 here did not automatically mean Mrs Ilott would lose her state benefits (because the sum was more than the £16,000 means-test threshold). The Court found that Mrs Ilott could have spent a large proportion of this on necessary equipment for the property (i.e. white goods, carpeting, flooring and replacement beds etc) so as to reduce her capital below the threshold and thus not impact her state benefits if she so chose. An award for payment of such items “sensibly fits” the concept of an award providing maintenance for a claimant. The Court also expressed concern that the £20,000 nest egg provided by the Court of Appeal’s judgment would not necessarily have avoided Mrs Ilott losing her benefits in any event, unless it was ordered by way of a discretionary trust (which it wasn’t).

  • Courts should not give little weight to the testator’s expressed wishes to benefit the beneficiaries nor disregard an estrangement of some quarter of a century. Further, Mrs Ilott’s lack of expectation of provision from the Estate is not balanced by the Charities’ lack of expectation of provision also. Charities rely heavily on testamentary gifts for a public benefit purpose and it is wrong to say they wouldn’t be prejudiced by an (increased) award to a Claimant. Equally all beneficiaries of an Estate do not need to put forward a needs-based defence to a 1975 Act claim and can simply rely on the fact that the deceased chose them to benefit as justification for them receiving provision from the Estate. The testator’s wishes and the issues of expectation and estrangement are all issues to be considered in the round with the other section 3 factors when the Court makes the value judgment on whether to make an award or not.

  • The 1975 Act and the value judgment should not be used as a mechanism for rewarding good Claimant conduct or poor Testator conduct. In Mrs Ilott’s case, although the Court found fault on both sides for the estrangement the Judge found that Mrs Jackson was more to blame than Mrs Ilott and that her reasons for excluding her from her Will, as a result, were unreasonable. That judgment was reflected in the fact that Mrs Ilott succeeded on her claim to receive an award from the Estate, however the Supreme Court clarified that the nature of their relationship (and the estrangement) shouldn’t then be irrelevant when weighing up the section 3 factors. As such, they found that the first judge had correctly tempered the award made to Mrs Ilott as a consequence of that estrangement/lack of expectation of provision to the £50,000 award.  The difficulty, of course, is that the Court does not need to explain the extent to which the award has been discounted for such issues so it will be difficult to assess where that particular issue leaves Claimants in terms of valuing their claims in the future.

One thing is certain as a result of this judgment.

It is crucially important for future Claimants and Defendants to seek specialist legal advice when dealing with adult child 1975 Act claims in the future.  As the months and years unfold this judgment will be applied by future judges on numerous occasions to help them make the necessary value judgments and provide further clarity for practitioners in this complex and discretionary area of the law.

In the meantime, it is all the more important that parties instruct lawyers who are specialists in the field if they wish to have the best chance of a successful outcome and of either maximising or minimising, the value of these claims.

We Can Help

At MW,our mission is “to make quality legal services accessible to everyone” including those who find themselves embroiled in a 1975 Act claim.

Our dedicated Estate and Trust Dispute Team are specialists in navigating the tricky waters of such claims to help ensure the best outcome for our clients.  Our specialist lawyers have experience in helping both Claimants and Defendants to adult child 1975 Act claims and we are best placed to guide you through the process as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8550 or email us at enquiries@mwsolicitors.co.uk.

Keep Out

Jessica Piper-Thompson, Solicitor and Head of Property Litigation, Wessex Region discusses the latest case law arising from Rights of Way Disputes

The Background


Jessica Piper-Thompson
Jessica Piper-Thompson
Solicitor - Head of Property Litigation - South West

The case of Winterburn v Bennett [2016] EWCA Civ 482 raised an issue as to the steps which a landowner must take to prevent others using the land, without permission, from acquiring rights over the land.

The Winterburns own and run a fish and chip shop which is next to a privately owned car park.  They have run the chip shop since 1987.  Up until 2012, when they were prevented from doing so, suppliers would park on the car park for as long as it took to make their deliveries to the chip shop.  The car park was also used by the chip shop’s customers.

The car park, together with the club house on the far side of it, was owned by the Conservative Club Association until 2010 when it was purchased by the Bennetts.

The Association put signs in the window of the club house and on a wall fronting the car park, stating that the car park was private and was for the use of patrons of the club house only.  The sign on the wall was in place until the wall was demolished in 2007.  The steward of the Association had told the Winterburns, their suppliers and customers that they had no right to park on the car park; however neither the signs nor the steward’s assertions deterred them.

The Dispute

The Bennetts rented out the car park and club house in 2012.  Their tenant obstructed access to the car park from the road, which the Winterburns were not happy about.

The Winterburns claimed that they had acquired what is known as a ‘prescriptive right of way’ for the benefit of the chip shop, over part of the car park, by virtue of the fact that they had used it for 20 years or more, as of right (i.e. without force, secrecy or permission). 

The Winterburns’ did not have permission to use the car park and they had not done so secretly.  In this case, it was the element of ‘without force’ that was in issue.  The Winterburns would have to demonstrate that their use was not ‘under protest’.  Did the circumstances suggest that the owner of the car park objected, and continued to object, to the unlawful use by the Winterburns?  Was it necessary for the owner of the car park to take steps, through physical means or legal proceedings, to prevent the Winterburns from using the car park in the way they did? Or, were the signs, which stated that the car park was private property, enough to make the Winterburns’ use of it contentious?

The Decision

This may sound as though it should be fairly straight forward, but it was not.  The case was first heard by the First-tier Tribunal (Property Chamber), who held that the Winterburns had established their claim to parking rights, then that decision was overturned by the Upper Tribunal (Tax and Chancery Chamber), who’s decision was upheld by the Court of Appeal.

The Court of Appeal decided that signs displayed on land indicating that the land is for private use only are sufficient to prevent someone from claiming a prescriptive right over the land, even where the signs are completely ignored for the prescriptive period and no steps are taken by the landowners to enforce their rights.

The Court found that it was not necessary for the owners, having made their protest clear, to take further steps or to be put to the time, expense and trouble of legal proceedings.
Lord Justice David Richards acknowledged that “[t]here is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs.  The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others.”

Conclusion

If you own land or property that may be accessible to others and which others’ use of is difficult to control or police, it is worth giving careful consideration to putting up some well-placed, carefully worded signs in prominent positions to make it clear that your property is private and is not to be used by others.  Such a straightforward step might save you from inadvertently allowing others to acquire rights over your land, by virtue of long user (i.e. 20 years or more).
If you are concerned that others have been using your land or property unlawfully over a period of time, avoid the trap created by complacency and seek advice as to whether you can prevent them from acquiring prescriptive rights over the land.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including landowners who are in dispute with others over prescriptive rights to use parts of their property.

Our dedicated Property Litigation Team have the experience and knowledge to help you to resolve your issues in an efficient and timely manner.  If you have an rights of way issue you would like to discuss with our team call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

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