Docklands Solicitor

Latest legal news from Docklands Solicitors, Kaslers Solicitors LLP.

Friday, 30 January 2009


Who can attend disciplinary, dismissal or redundancy meetings

Under the Employment Relations Act 1999 Section 10, an employee has a right to be accompanied at a disciplinary or grievance hearing. This includes hearings where the employer is thinking of making redundancies

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.


Thursday, 29 January 2009


Statutory Demand Debt

There are several ways you can go about collecting a 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)


Wednesday, 28 January 2009


Statutory Demand Dispute

You receive a statutory demand and are therefore facing bankruptcy (if you are an individual) or winding up (if the debtor is a company). What can you do? You can

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)


Tuesday, 27 January 2009


Finances in Short marriages

In a short marriage, the Court will generally look at what assets each of the parties brought into the marriage, especially where there are no children.


Monday, 26 January 2009


Agency workers and continous service

If an employee

· 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


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.


Saturday, 24 January 2009


Retention of Title

Your terms and conditions should provide that ownership of goods supplied by you do not pass to the buyer until they have been paid for.

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


Friday, 23 January 2009


Contract Expert Determination

Many people in dispute prefer to avoid the courts and lawyers!

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


Tuesday, 20 January 2009


Consumer Contract Arbitration

Who would have believed that an arbitration clause in a standard consumer contract might be ineffective! However

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


Monday, 19 January 2009


Local Search Permitted Development

Planning permission is usually required do any building works in under or over ground

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


Saturday, 17 January 2009


Employment Law Summary Dismissal and Holiday Pay

Your employee behaves so badly that you dismiss outright

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


Friday, 16 January 2009


Employment Law Notice Periods and Holiday Leave

An Employee hands in his notice. He has 2 weeks holiday coming to him.

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


Thursday, 15 January 2009


Unfair dismissal ‘informal’ Complaint

An employee makes a complaint but says it should be dealt with ‘informally’

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

How crazy is that !

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


Monday, 5 January 2009


Alzheimers schizophrenia dementia Lasting Powers of Attorney

Many of our middle-aged clients are signing up Lasting Powers of Attorney (LPAs) as a direct consequence of their experience of dealing with the affairs of an elderly parent who did not have one. They do not want to put their children through the same hassle

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.



Divorce separation Fixed Fee Meeting

Family or Relationship Breakdown?

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:

Offer ends 28 February 2009


Friday, 2 January 2009


Conditional Fee Agreements 'no win-no fee' agreements - in commercial litigation

A solicitor's perspective

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


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Call Michael Breeze on 07900 195 195 or call 0845 270 2511 to if you need legal advise about any of these issues

Kaslers Solicitors LLP is a limited liability partnership registered in England under LLP no. OC310653; authorised and regulated by the Solicitors Regulation Authority under reg no 408936; governed by professional rules set out in the Code of Conduct click here to visit and has its registered office / main trading address at Suite 3, 10 Churchill Square, Kings Hill, West Malling, Kent ME19 4YU - tel: +44 (0)845 270 2511; fax: +44 (0)845 270 2513; DX 92863 West Malling.
The LLP Members are Michael D Breeze LL.B (Hons) (SRA reg no 110184) and Simon McCree Scott LL.B (Hons) (SRA reg no 298202).