Docklands Solicitor
Latest legal news from Docklands Solicitors, Kaslers Solicitors LLP.
Friday, 30 January 2009
Who can attend disciplinary, dismissal or redundancy meetings
The employee can ask for either a trade union representative or work colleague to be with him
The employee may ask for the hearing to be postponed, within specified limits, to an alternative time, if the companion cannot attend the meeting at the time scheduled by the employer
The companion may address the hearing and confer with the employee, but cannot answer questions on his or her behalf.
Labels: disciplinary dismissal redundancy
Thursday, 29 January 2009
Statutory Demand Debt
If the debt exceeds 750 pounds and there is absolutely no hint of a reason why it might be contested, you can serve a statutory demand
Failure to comply with the demand (or to contest it) within 3 weeks means that the debtor is deemed unable to pay the debt for insolvency purposes
You can then petition for bankruptcy (if the debtor is an individual) or winding up (if the debtor is an company)
Labels: debt collecting winding up banktuptcy
Wednesday, 28 January 2009
Statutory Demand Dispute
Pay up in full if you agree you owe the money
Try to agree a payment plan with the creditor
Dispute the debt in full or part. The Court must be satisfied that there is a genuine dispute on substantial grounds. If the undisputed part of the debt is reduced below 750 pounds, the creditor cannot proceed to issue a bankruptcy or winding up petition
Raise a genuine and serious cross-claim, which either exceeds the debt, or reduces the undisputed debt to below 750 pounds
Pay an amount which reduces the undisputed debt to below 750 pounds
If you told the creditor beforehand that you disputed the debt, you should speak to us about setting aside the statutory demand (if you are an individual) or getting an injunction to restrain the creditor from issuing a winding-up petition winding up (if the debtor is a company)
Labels: bankruptcy winding up statutory demand debt
Tuesday, 27 January 2009
Finances in Short marriages
Labels: finance marriage assets
Monday, 26 January 2009
Agency workers and continous service
· works though, and is paid by, an agency for X months at a client
· then joins the client and works for Y months
· and is then dismissed
How many months continuous employment does the employee have - X months? Or X+Y months?
It is important because the employee does not acquire the right to be unfairly dismissed until he has clocked up 12 months continuous service.
In several 2008 cases, the
· employer argued for X months only and
· employee argued that there existed an implied employee contract with the client so that the period of continuous employment was X + Y months
The Courts have now said that where an agency contract is genuinely in place, then there is no need to imply a contract between the agency employee and the client (“an implied contract”), especially where there is no need to do so
This means that the Tribunal should now consider whether the client
· could (or did on occasions) refuse to accept a different employee
· guaranteed work throughout the period of contract
· paid the employee when work did not take place
If he could or did do these things, then this points towards an implied contract - otherwise not
Labels: agency worker continuous services employment contract
Sunday, 25 January 2009
Whistle Blowing
Unfair dismissal claims are capped at 66,200 pounds from 1 February 2009. However, Employment Tribunals can award unlimited damages for breaches of whistle blower protection laws.
Whistle blowing is not just to do financial irregularity or criminal offences. Staff can report employers for
breach of contractual obligation, for example, breach of contract for failing to pay a bonus
breach of statutory obligation, for example, breach of health and safety
failure to protect an employee who reports stress or bullying.
The ultimate cost in the loss of reputation to the employer might be more damaging than the money claim.
Labels: whistle blowing unfair dismissal employer
Saturday, 24 January 2009
Retention of Title
You will be able to reclaim the goods if the full price is not paid.
Since title has not passed, the goods will not be included in any security given by the buyer to his bank or anyone else.
Depending on the nature for your trade, you might want to use a more sophisticated ROT clause which:
Reserves title until the buyer has paid for all goods supplied by the seller (not just those being sold in this particular instance)
Extend your rights to the proceeds of sale of the goods
Retains your rights over goods, even if they have been mixed and incorporated into other goods (not easy, that one!)
Allows you to enter the buyer’s premises to reclaim the goods
Requires the buyer to store the items separately and identifiably
Labels: retentionof title
Friday, 23 January 2009
Contract Expert Determination
They prefer to ask an expert in the particular field to decide the argument between them without too much formality
Is such an expert determination binding or not? It is a matter of contract. The parties can decide although what is the point of doing it this way if the disappointed party can ignore the determination?
Informal determinations carry a risk of error and informality, but that is the price of speed and taking the cheaper option
Labels: contracts dispute
Tuesday, 20 January 2009
Consumer Contract Arbitration
The Unfair Terms in Consumer Contracts Regulations 1999 say that “a contractual term which has not been individually negotiated shall be regarded as unfair if it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer”
and “excluding or hindering a consumer’s right to take legal action by requiring the consumer to take disputes exclusively to arbitration will be indicative of a term being unfair”.
So an arbitration clause in a standard consumer contract will probably be ineffective, unless it is explained to the consumer, who then consents having understood the implications
Labels: arbitration consumer contract
Monday, 19 January 2009
Local Search Permitted Development
The Government can make exceptions to this rule by listing out, in a General Permitted Development Order, types of ‘permitted development’ for which it is not necessary to get planning permission.
A local planning authority (or the Secretary of State) may, however, take away the permitted development rights within a specified area (Article 4) so that planning permission is required after all
So, you want a conservatory. That is building work over land, but certain sizes of conservatory are listed in a GPDO. The salesman may tell you that it does not need planning permission. Check whether your local authority has made an article 4 direction removing that size of conservatory from the GPDO so you need planning permission after all
Labels: development local searches
Saturday, 17 January 2009
Employment Law Summary Dismissal and Holiday Pay
You do not want to pay him accrued holiday pay
The contract says you do not have to! Good!
No! Such a clause is in breach of the Working Time Regulations, which say that accrued holiday pay must be paid irrespective of the reason for the termination.
Change your contract. Provide that on summary dismissal, holidays will be paid for but at the rate of 1 pound per day
Labels: employment law summary dismissal holiday pay
Friday, 16 January 2009
Employment Law Notice Periods and Holiday Leave
Check that your standard contract allows you to insist that he takes holiday during the notice periods, without your having to give him prior warning
Labels: employment notice periods holiday leave
Thursday, 15 January 2009
Unfair dismissal ‘informal’ Complaint
Do not do this – it is a trap!
Treat all informal complaints as step 1 notifications under the statutory grievance procedure
Carry out the full statutory procedure (i.e. arrange a step 2 meeting)
Wednesday, 14 January 2009
Working Time and on Call hours
You run a residential home and employ a care worker
She works only 8 hours a week but sleeps over 7 nights a week in a flat provided for her for free and is “on call” for 11 hours overnight
She is “called” on average once every 2 weeks
How many hours per week does she work as far as the Working Time Regulations (WTR) and the National Minimum Wage (NMW) legislation is concerned.
WTR - You guessed it. She has a working week of 85 hours (the eight hours actually worked, plus 77 on call) - more than the 48 hour limit on average weekly working hours.
NMW - She has a working week of 85 hours less the time when she was actually asleep. Ask her when she dozed off and when she awoke. Pay her the NMW for all that time less those sleeping hours
Labels: working time regulations
Monday, 5 January 2009
Alzheimers schizophrenia dementia Lasting Powers of Attorney
Why? What happens if you lose mental capacity and you have not given an LPA? Answer: Neither you nor your family can mange your financial affairs or make decisions about your personal welfare. Your nearest relatives have to apply to the Court of Protection for a “Deputy” to be appointed. This is a complicated and expensive procedure.
By signing up an LPA, you simply appoint somebody else (“the Attorney”) to act on your behalf if and when you lose mental capacity to act. It cannot be used until it has been registered with the Court.
You can appoint one or more Attorneys, who must be over the age of 18. You can say whether your Attorneys have to act jointly or independently or you can state that they can act independently on some matters and jointly on others. For example, you could say that they have to act jointly on all transactions involving over £500.
You can also lay down guidelines for your Attorneys- e.g. whether they should use your funds to make gifts to friends, family and/or charity and even do a new Will for you
You can stipulate whether the Attorney can make decisions regarding life-sustaining treatment for you.
It goes without saying that you must trust your Attorney implicitly!
Here at Kaslers Solicitors LLP we can prepare the LPA for you for a fee of £400 plus VAT. The Court charge £300 to register, but if you do not require the document to be used immediately, we can defer the registration and arrange for you to pay monthly towards the Court fee
Telephone Vanessa Adamson on 01622 844607 for further information.
Labels: Alzheimers schizophrenia dementia lasting power of attorney
Divorce separation Fixed Fee Meeting
For a Limited Period*, Kaslers Solicitors are offering a
Fixed Fee Meeting for 50 pounds inclusive of VAT
Expert advice, which is confirmed in writing, so you can make an informed decision about your future
Appointments available Churchill Square, Kings Hill, West Malling ME19
Daytime and early evening appointments available
For further details call Michelle Brennan direct on 07795 821 793
or 0845 270 2511 (local rate) contact by email: mab@kaslers.co.uk
Offer ends 28 February 2009
Labels: fixed fee meeting divorce
Friday, 2 January 2009
Conditional Fee Agreements 'no win-no fee' agreements - in commercial litigation
The use of Conditional Fee Agreements started in personal injury/road traffic accident cases and, after initial difficulties, these seem to be are working quite well. However, the issues there are usually limited to deciding whether the Defendant was at fault, deciding whether the Claimant was contributorily negligent, ascertaining the extent of the injuries, putting a price on them, ascertaining/guessing how long the claimant might be financially affected
Witness statements, medical and police reports become available at a fairly early stage and reasonably informed judgments on such matters can be made
How does this translate into commercial litigation? This issue needs to be addressed as economic conditions drive more and more potential litigants into asking for Conditional Fee Agreements, thinking that they are the solution to all their worries about the risks of litigation and legal costs
Obviously, the circumstances giving rise to the potential commercial litigation are many and various. There are a much wider range of variables, which can affect the win/lose outcome
Initially, the potential litigant, seeking a Conditional Fee Agreement, needs to understand the various risks involved and, if he does have access to money, decide whether to fund the litigation in the usual way or potentially paying more for someone else to assume those risks
The main risks are: Insolvency Risk (Opponent), Litigation Risk, Insolvency Risk (Own). Taking these in turn….
Insolvency Risk (Opponent)
In personal injury/road traffic accident cases, the Defendant is usually backed by an insurer or the Motor Insurers Bureau. There is little risk that having got judgment, one is not going to get paid
In commercial matters, the risk is significant. Who would have hesitated in, say, summer 2008 before suing, say, Woolworths or Lehman brothers on the ground that they might become insolvent?
If the potential litigant is asking for be solicitor to pursue this risk, what information is available to the solicitor about this risk? Company accounts filed at Companies House can be at least a year old and the late 2008 recession happened so quickly that they are certainly not a guide to the continued prosperity of the potential Defendant
If the potential Defendant is an individual, research at the Land Registry might reveal his potential ownership of land/house, but this does not help you assess the value of it, the amount of his mortgage and the size of any co-owner’s interest (e.g. what share does the spouse have?)
Did the client do any due diligence on the Defendant’s financial position before entering into the relationship, which gave rise to be litigation and if so, how reliable is the information?
Clearly, if the potential Claimant is going to pay someone else to assume this risk, the price is going to be high
Litigation risk
This is this is the risk that solicitors might more easily be able to judge? Or is it?
After seeing the client/potential claimant, is the solicitor in any position to judge, with any reasonable accuracy, the outcome of the case in the same way that the solicitor taking initial instructions from the potential claimant in a personal injury/road traffic accident case might be able to do?
Probably not! The solicitor will be in a better position to judge after he has written to the potential Defendant and received a response setting out the Defendant's view of the situation
At this point, a solicitor might feel able to start discussing with the potential claimant the terms of the Conditional Fee Agreement
However, this is not foolproof. Experiences of the author includes the following situations
The claimant had a "cast iron" insurance claim for damage caused to his garden and wine cellar by the neighbours lake overflowing. Many months into the litigation, the insurers produced a well documented dossier on the claimant’s
Labels: conditional fee agreements no win no fee litigation
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