If you are a first time buyer or even if you have bought or sold a house before, conveyancing might be a bit of a mystery to you; something you have to do which involves carrying out various registry checks and ensuring the contract is sound.
This is your chance to find out what conveyancing is and, more importantly, why you need the service.
Conveyancing is the legal process which governs the transfer of property from the buyer to the seller in a property transaction. This process begins once the seller accepts an offer on the house and ends when the keys are finally handed over to the buyer.
If you are buying a house, you are permitted to deal with the conveyancing yourself provided you are not taking out a mortgage on the property but unless you really know what you are doing, we don’t recommend this. It is time consuming and there are pitfalls along the way. It is better to leave it to the professionals. Suitably qualified solicitors or conveyancers will know the process back-to-front and will have the necessary experience to deal with any issues that crop up.
Make sure you know what you are buying before you even think about hiring a conveyancer. That means a thorough inspection of the property when viewing it.
If you are selling your property, you can save time by finding the right conveyancer or solicitor in advance although. Then you can instruct them once you have accepted an offer from a buyer. Your solicitor or conveyancer will ask you to fill out several questionnaires. These are designed to gather all the information required to draw up a draft contract which can be sent to the buyer’s solicitor for approval. The information gathered will cover:
Vendors are personally liable for the information they supply using these forms. If it is later discovered, after completion of the sale, that the questionnaires have not been filled in truthfully, sellers leave themselves open to a compensation claim.
On the other hand, if the buyer discovers the information is incorrect before exchange of contracts, they will possibly lose faith in the vendor and the transaction will fall through. We advise sellers to be as honest as they possibly can and if they don’t know the answer to a question, just say so.
The seller’s solicitor or conveyancer will use the information provided in the TA forms to draw up a draft contract. This is sent to the buyer’s legal representatives along with other items such as the property’s title. The draft contract forms the basis for negotiations to begin. Issues for negotiation include:
If money is still owed on the property, the seller will need to request a redemption figure from their mortgage provider. This is the amount they have to pay upon completion of the sale.
Unless they are making a cash purchase on the property, buyers need to have a mortgage in place for the transaction to happen and this will include having the financing available for a mortgage deposit. When a lender makes an offer, their solicitor or conveyancer will receive a copy of the mortgage offer to scrutinise the terms and conditions.
Mortgage lenders will require a mortgage valuation so they can be sure the property will provide sufficient security against the amount being borrowed. This is usually paid for by the buyer but sometimes the lender will include it as a free gift.
The mortgage lender will also require the buyer to take buildings insurance before an exchange of contracts can take place. This is in the buyer’s interest as well as the lenders. After all, owning a property is a big responsibility which may span many years.
The buyer’s solicitor or conveyancer will examine the draft contract and supporting documents. If any issues scream out at them immediately, they will raise them with the seller’s legal team. Assuming everything looks alright on the surface, they will encourage the buyer to go through the material with a fine comb to see if they have any queries or concerns.
The buyer’s main concerns should be:
Buyers may also be advised to carry out specific location searches, as part of the environmental search, such as tin or coal mining searches. Understanding the geology of the area can help to determine the possibility of sinkholes among other things.
The information provided by the seller in the TA forms will be comprehensive but the buyer may have other questions they want to ask such as additional Local Authority questions relating to public paths, pipelines, noise abatement zones or common land for example.
Before the buyer can sign the contract, any issues arising from the draft document need to be ironed out and the conveyancer will make sure that all the necessary checks have been carried out on the property.
If the buyer has obtained a mortgage for the purchase, the deposit will need to be in their solicitor’s account in good time for an exchange. The deposit is usually around 10% of the value of the property. Sometimes a smaller deposit is negotiated but buyers need to be aware that if they pull out of buying the property after the exchange of contracts they will still be liable to pay the 10% deposit in full.
Buyers are also advised to pay a final visit to the property with the estate agent before the contracts are exchanged just to make sure everything they are paying for is still there and the house has not been damaged in any way.
Buyer and seller agree a date and time to exchange contracts but the actual exchange is handled by their solicitors or conveyancers who usually carry out the exchange, reading out the contracts to each other during a recorded phone call. This phone exchange is just a preliminary procedure to ensure both copies of the contract are identical so things can move forward. Once this has taken place, the legal representatives send their hard copies of the contract to one another by post.
If there is a chain, then the buyer’s conveyancer or solicitor will only release the contract if the other people in the chain are all happy to go ahead. All it takes is one person in the chain to pull out or delay and this has a knock effect for everyone else.
Once the contracts have been exchanged, both buyer and seller are legally bound to the property transaction by contract with a fixed date for moving. From this point:
Once the contracts have been exchanged, the buyer’s solicitor or conveyancer will have lodged an interest in the property. From that moment, the deeds to the property will be frozen for 30 working days to allow the buyer to pay the seller and lodge their application to the Land Registry to transfer the deeds into their name.
Buyers are advised to make sure the balance is paid into the seller’s conveyancer’s account at least one day prior to completion date just to make sure it is cleared and visible.
Sellers need to vacate the property before completion date which could be any time from the same day to several weeks away.
This is a big day for everyone, especially the buyer.
Completion is usually officially set for midday on the specified date although in practice this time is nominal. In reality, completion takes place when the seller’s solicitor or conveyancer confirms that they have received the outstanding balance on the house. They then drop the keys off at the estate agents for the buyer to collect.
Following completion, the buyer’s solicitor will need to tie up some loose ends such as paying Stamp Duty Land Tax if applicable. They will inform the Land Registry of the transaction and, where a mortgage lender is involved, a copy of the title deeds are sent to them to hold until the loan is paid off.
The freeholder has to be notified if the property is a leasehold.
Finally, both buyer and seller will receive a final invoice from their solicitors or conveyancers and the seller will also need to pay their estate agent.
One thing that is overlooked by people when they move house is letting others know their new address. We produced this quick guide to make sure nobody important is left out of your list.
What now?
Buying or selling a house is major transaction so it is best to get it right. We are here to ensure the process runs smoothly. If you are about to enter a property transaction, get in touch today so our experts can assist.
When sinkholes appear, threatening to swallow cars and buildings, they can be quite bizarre phenomena and often hit the headlines. A great example was reported a few years ago, when a huge sinkhole appeared over night in St Albans, Hertfordshire. Fortunately the hole, which measured 10m deep and appeared in the middle of a residential area, didn’t cause the collapse of any buildings. Apparently, the area is a former clay pit site and the most likely explanation for the phenomena was chalk excavation in the bedrock beneath the clay.
The sinkhole was filled with 48 lorry-loads of foamed concrete
Image source: South Beds News Agency
Investigators studying the sinkhole believe that there is a much larger void underneath and there are likely to be many others in the vicinity.
The depressing news for homeowners in the area is that their homes may be at risk of sudden collapse at any time and they are responsible for any remedial work under their homes.
Sinkholes can develop where previous mining has took place, leaving holes deep underground and a certain amount of instability in the ground. With time, there is always the chance that the surface ground will collapse to fill the void.
While the phenomenon has always occurred across the globe, the UK has definitely seen an increase in recent years. Why? When water sinks into the ground it can encounter certain materials which then dissolve. The disintegration of this deeper land coupled with the increased weight of the surface ground can naturally lead to a collapse and there you have it–another sinkhole. There has been an increase in rainfall in recent years, which has led to a higher risk of collapse even in areas where no mining has taken place. This video illustrates the phenomenon very clearly and also shows some shocking footage of sinkholes from around the world.
There is no such thing as a ‘sinkhole’ search however your conveyancer can undertake a thorough ‘environmental search’ to highlight risk factors but you must request this. After all, most of us don’t buy a home to live in for just a couple of years and the mortgage term will typically cover a 25-year-period; plenty of time for a sinkhole to develop.
An effective environmental search will uncover areas where extensive mining has taken place. These areas will be littered with underground voids. The search will also look for certain geological signatures–substances such as lime that are more likely to dissolve in water, coupled with surface materials such as clay which will become heavier and worn down over time.
Gypsum dissolves very quickly and can cause sinkholes
Image source: Creative commons
For example, the prevalence of gypsum in Ripon, North Yorkshire, means that there is a whole labyrinth of voids underground. Gypsum can dissolve quicker than limestone and in March 2014, a sinkhole measuring 7.5m wide caused the collapse of a 100-year-old house and the evacuation of several families in Ripon.
Needless to say, areas where sinkholes are known to have occurred should be highlighted as part of any decent environmental search.
Well it is up to you whether you buy a property in a high risk area although it would be wise to ensure your home insurance covers you for the risk. Insurance policies will vary. For example, many will not cover you for a sinkhole that appears in your garden if it is not directly affecting the foundations of your home.
It is always best to approach a broker for your insurance, as opposed to trying to put it in place yourself through popular money saving websites. The old adage ‘you get what you pay for’ certainly applies to insurance.
Ensure that you have a policy which has a defaqto rating of between four and five, as this will confirm that they are a reputable company.
The bottom line is that a home is a serious long term investment and employing a highly competent and thorough conveyancer to make sure you are not buying a future headache is worth every penny. We are experts in conveyancing. If you have your eye on a property now, give us a quick call today so we can make sure all the T’s are crossed and all the I’s are dotted.
The recent press coverage surrounding John Worboys’ imminent release has brought the spotlight on decisions taken by Government departments. Some of Warboys’ victims called for a Judicial review to have the decision for his release to be re-examined.
John Worboys|Source: Independent online
Judicial review (the right to legally challenge decisions taken by Government, Government departments, Local Authorities and the like) has been around for a long time. However, as one of many steps taken to protect victims in recent years, Judicial review’s cousin, VRR, has only been around since 5 June 2013.
The Lord Janner case brought major media attention to this relatively new legal procedure, which was probably a good thing. There were still plenty of lawyers who were not aware of its existence.
It’s now over two years since the Director of Public Prosecution’s (DPP) Alison Saunders made the decision not to allow Lord Janner to face trial on allegations of child abuse. The decision had been made based on a judgement that he was unfit to stand trial due to his being too ill with dementia.
Janner|Source: BBC online
At the time, many legal commentators were surprised that there had been no decision to at least proceed with what is known as a ‘trial of facts’. This is where a jury is asked to make a judgement, based solely on the presentation of evidence adduced by prosecution lawyers and lawyers appointed by the court to act for the defence.
However the family sought the aid of VRR, the DPP’s decision was overturned, and an order was made for a trial of facts to proceed. This trial was scheduled to take place in April 2016 but then halted when Janner died in December 2015.
More recently, the family of a man shot dead by armed police put in an application for a victims’ right to review after the CPS decided the officer concerned would not face charges. Jermaine Baker was shot by police in December 2015 during an attempt to free an inmate from a prison van. In June 2017, it was reported that the CPS had received the application and were considering it.
Jermaine Baker|Source: The Guardian online
According to media reports in 2014 there had only been 1186 Victims’ Right reviews from the previous June up until March 2014. Of those, 162 were upheld – a success rate of 13.7%.
The Janner case was believed to be the first time a DPP decision had been overturned as a result of the victims’ right to review procedure.
These statistics reflected that the new procedure was working or not working depending on the perspective. From the victims’ point of view, too many poor decisions were not being overturned. From the perspective of the Criminal Justice System and Crown Prosecution Service, the relatively low figure was a reflection of the system’s ability to get things right first time.
A claim can be brought by a ‘victim’ defined after revision of the Rules as:
‘A person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by criminal conduct’
This definition also includes:
In brief, the main CPS decisions that the Code allows you to seek a review of are:
Unlike certain judicial review cases, compensation is not paid to victims whose cases are upheld after review, however, the process is simpler and less costly to bring about. While the judicial review covers a much wider scope of issues, the victims’ right to review is a simpler, more cost-effective route for questioning justice.
While you have the right to source and execute the procedure without a lawyer, your lawyer is fluent in the procedure and the most effective language for outlining your reasons for wanting a review. This can only increase the strength of your argument and make it more likely that a decision will be made quickly, perhaps in your favour. Once the request for a review is submitted, there is a 10-day period for processing, followed by a 20-day period for the actual review to take place, so you can get a result relatively quickly.
Need our help? Get in touch today.
We are still in the holiday season and people will be jetting off to more sun-kissed locations. Most people will have a great time and return home with happy memories to cherish on rainy days in England. For many, however, their holidays will be disastrous because of illness – sometimes quite severe and even life threatening.
When there is a significant outbreak of an illness such as salmonella in one location, the incident is more likely to hit the headlines over here. The stories that hit the headlines are only the tip of the iceberg. Most people do not research what sort of bugs and infections they may encounter while holidaying abroad. Forewarned can mean forearmed.
This article highlights some of the many phenomena that can ruin your holiday. These range from the minor discomforts such as bedbugs in Chicago to painful infections such as Chikungunya in the Caribbean. Some illnesses can kill you such as African Trypanosomiasis (otherwise known as ‘Sleeping Sickness’).
Sometimes getting ill is nobody’s fault. The risk of infection is simply something you must live with if you are going to travel to certain regions or engage in certain activities. Where an infection has not been caused by human error such as poor hygiene, incompetence may make matters worse further down the line. For example, ‘Sleeping Sickness’ attacks people in two stages. If it is detected and dealt with earlier enough, then it is fairly easy to treat. If it is not detected until the second stage then more powerful treatment needs to be administered urgently. Failure to act at the second stage will result in death.
There are other very severe infections that are the result of poor hygiene and low standards in restaurants – Salmonella, Cryptosporidium, Campylobactor and E-Coli. If you are struck down with one of these while on holiday, you have not picked them up by being near an infected person. These bugs are transmitted directly from a poorly prepared food source such as undercooked chicken. The only people who will fall victim will be those who ate the same food. Therefore, if you pick up the bug while on holiday, you can be fairly sure that somebody else has too.
Picking up an infection while on holiday is not pleasant and can completely ruin the experience. Furthermore, on returning to the UK, the victim may continue to suffer a negative impact on their lives because of secondary issues. They may need significant time off work. The question would then be: who is to blame and can a case for compensation be brought against the person or organisation responsible?
Every case is different so legal advice is always advisable. Here is a rough breakdown of some of the issues involved.
Let’s say you had visited a resort somewhere in Europe and, while you were there, you and your spouse had contracted Salmonella. It turned out that the restaurant where you had eaten had a cockroach infestation and were leaving food out all night before re-serving. Yuck! This is clearly not the sort of establishment anybody would want to buy food from however would your claim be against the restaurant?
There would most likely be a claim against the restaurant. This would be messy because you would be dealing with a foreign body in a foreign country with foreign laws etc. If the restaurant was part of the resort where you were staying, it would be more likely that your claim would be against the tour operator that the holiday was booked through.
Your solicitor would want to investigate as much as possible about the circumstances surrounding the incident. They would, most likely, want to identify as many other victims who had eaten at the same restaurant as possible. This would allow them to gather a portfolio of individual stories and build a bigger general picture. It would also be important that anybody who had seen or heard evidence relating to the case (regardless of whether they fell victim or not) came forward to submit relevant information.
People may have seen rats near the premises or signs of undercooked food. Perhaps others who were ending their vacation had made reports to those who were starting. As well as being aware of the circumstances leading to the outbreak, it would be vital to understand how much knowledge the tour operator had that standards were below par. What had they done to monitor the conduct of the restaurant? Had they been given reports from other holiday makers and had they acted on those reports? Was there anything they could have done to prevent the outbreak in the first place or to stop things getting worse later on?
The last question is also significant. It is already extremely unfortunate to contract an illness such as Salmonella. The response of your tour operator can make a massive difference to how the incident impacts on your life. Were they prompt in getting you a high standard of medical treatment? Did they take immediate action to safeguard the health of the other people also staying in the resort? How compassionate were they – did they keep regular checks on you to see if they could help further? Did they accept any responsibility or offer any sort of compensation?Did they even offer a gesture of good will without accepting responsibility?
You may have gathered by now that the likely focus of any claim for compensation will be the tour operator. You will have entered into an agreement with them here in the UK and they are seen as your guardians for the duration, there to act as a friendly, familiar trusted guide so you can feel at home in a foreign land.
It is a good idea to research your intended holiday destination as much as you can. Be aware of any vaccinations you need to take. Are there any bugs or strange laws, for that matter, that you need to know about? Remember the case of a British lady being arrested for posing topless at the top of a sacred mountain.
Secondly while you are on holiday, if you see anything that raises eyebrows or leads you to suspect that standards are not being met, take photographs. Keep records of anything at all that may be used in evidence later should things go pear shaped. Speak to the tour operator at the earliest opportunity and make them aware that you have taken photographs. This may not make you the most popular tourist on their books but it is more likely to provoke an immediate response to your concerns and, after all, it would be better to have a tour guide who is not your best friend than to pick up a life threatening bug.
If you or somebody in your family contracts a nasty bug while abroad (or at home) take steps to find out if anybody else has picked up the same infection. Having those details could be really helpful for your solicitor. We are here to help.
Enjoy the rest of the holiday season, at home or away, and stay healthy and happy.
In recent years, you may have noticed bits and pieces in the press about airlines having to pay compensation for delayed flights. A common theme of discussion has been the validity of airlines’ objections to paying out. This article explains what it’s all about and should give you a rough idea of whether or not you may be entitled to compensation yourself.
On 23 October 2012 the Court of Justice of the European Court passed regulations governing a compensation scheme in relation to EU regulated flights. For non-EU regulated flights, there may be other similar compensation schemes but we are going to focus on the flights affected by the European compensation scheme.
If you think you may be due compensation here are just a few questions that may cross your mind.
If your flight is from Manchester to Dubai, it doesn’t matter which airline you are using as you are flying from an EU airport. However, if you were flying from Lusaka to Manchester, for example, you would have to be using an EU regulated airline such as KLM in order to claim for any delays. Sometimes, different airlines operate on a ‘codeshare’ basis meaning that one airline may sell tickets for a flight that is actually operated by another airline. When this is the case, it doesn’t matter if the ticket was sold by an airline that is not EU regulated provided the operator airline is EU regulated.
According to the Civil Aviation Authority, the courts will need to consider whether this kind of journey is to be classed as one flight or two separate ones. They will also need to ascertain where the cause of the delay was and whether the flight that the delay related to was EU regulated or not. Ultimately, if your journey has involved a mix of EU and non-EU regulated operators, it may come down to a court’s decision.
No. It may be possible to claim back as far as 2005, but that is unproven, and it would be safer to assume that you may only claim up to 6 years after the date of the flight affected. Six years is the statutory limitation period for contractual claims.
If the company has gone bust then you may be classed as a creditor and would have to make your claim to the administrator or liquidator, but if the company has been brought out the new owner is likely to have taken on liabilities as part of the purchase and you can claim your compensation through them.
Perhaps your flight was not EU regulated or the airline concerned has gone bust and there is no money available to pay you compensation. There are still options. For example, if it was a non-EU regulated flight, there may be an equivalent compensation scheme you can use depending on the airline and regulating body concerned. Failing that, your travel insurance may have it covered. No business wants unhappy customers so you can always try complaining to the airline that has let you down.
So you couldn’t claim because it was not an EU regulated flight. Your insurance didn’t cover it and the airline just made excuses when you wrote to them. All is not lost. Section 75 of the Consumer Credit Act 1974 was put in place to protect you from having to owe money for goods or services that you did not receive. If you paid for the flight with a credit card and the cost of the flight was over £100 and less than £30000 then generally speaking your credit card company will compensate you for the cost of the ticket and subsequent secondary expenses caused by the delay.
You can only claim for delays that are the airline’s fault. This is where there have been bones of contention. Below is a list of the ‘extraordinary circumstances‘ not considered to be the fault of the airlines:
On this note, some disputes have arisen on what constitutes ‘bad weather‘ and also ‘technical problems‘. Some say the weather must be classed as ‘freak‘ in order to be classed as an extraordinary circumstance and in the case of manufacturing defects it has been argued that one should expect to see the manufacturer concerned exercising a product recall – this would effectively leave whole fleets grounded.
This does not make any difference at all.
This doesn’t matter either. The compensation claim is based on the overall distance covered by the delayed flight and how many hours late you were in arriving at your destination.
This can actually be quite difficult because if the airline says it was not their fault you would then involve the CAA and they will speak to the airline concerned to find out what happened. All that means is that you will perhaps get a more detailed version of events but it is still the airline’s version of events.
The amount you can claim will depend on how many miles were to be covered by the flight and your lateness in arriving at the destination. You must be delayed by 3 hours or more, so if you departed over 3 hours later than planned but arrived at your destination airport only 2 hours and 45 minutes late, you will not be able to claim any compensation at all.
You can claim anything from €125 to €440 depending on the circumstances but do note that the pay-out is in Euros, not Sterling.
The minimum bracket of compensation relates to flight lengths of up to 1,500km where the arrival time was delayed by up to 2 hours. The maximum will be paid out for flights of over 3,500km between an EU and non-EU airport, where the arrival time was delayed by over 4 hours.
Compensation is paid per person so if you have been travelling with the family you may be due a large amount.
Some airlines have been known to try paying compensation using vouchers but you have the right to refuse these and to ask for the cash amount that you are due.
You are actually entitled to costs for any delays over two hours to cover food, drinks and communications. If you are delayed overnight, you are also entitled to accommodation. Costs are due even if the delay was not the airline’s fault. Ryanair challenged this in 2013 but the Court of the European Union upheld consumers’ rights to care and assistance. If you are significantly delayed the airline may give you vouchers for food and drinks on the spot however you can’t count on this. If you have pay these costs yourself, you are advised to keep the receipts so you can claim them back later from the airline.
If you are delayed by 5 hours or more you may decide not to travel and you qualify for the total refund of the ticket cost, no matter whose fault the flight delay was. That said, if you demand a refund any subsequent costs for accommodation and sustenance are your own.
Demanding a refund does not disqualify you from claiming compensation as well if the delay was caused by the airline and all other claiming criteria has been met!
A lot of the time, the airline will cough up because it knows and accepts blame for the delay but if they choose to wipe their feet, it will help you to have the following to hand:
We can only cover so much in a blog post such as this. Getting compensation doesn’t have to be a major hassle but it is quicker if you know what you are doing and that is where a solicitor can be really helpful and cost effective.
If you think you have a claim and could do with the reassurance that comes with professional help, get in touch with us today.
Both in civil law and criminal law, timing and deadlines are absolutely essential to proceedings. Whether looking at the obligations of others in terms of their actions or considering the procedures we need to stick to, deadlines are important and not meeting them will make a difference on whether or not you get what you are entitled to or, more importantly, suffer a seemingly unfair consequence.
What’s even more complicated is that the deadlines vary greatly from hours and days to years. The implications of missed deadlines can be quite dramatic. The deadlines for making personal injury claims for example will vary depending on the specifics of the claim and the deadline for claiming compensation for a delayed flight is an entirely separate matter again.
Likewise, you could find that a claim being made against you, such as for a speeding fine for example, cannot be enforced because a deadline has not been met by those who are trying to enforce the fine.
The different deadlines can be a complicated and muddled affair for anybody, lawyers included, and we don’t want to blind you with a stack of different deadlines here. That would defeat the object. There are some general rules of good housekeeping however that will set you in good stead.
When you receive correspondence and you see perhaps that there is a stack of forms to go through, don’t just put them aside thinking you can come back to them later on. Nobody likes forms but at least checking what has been asked will give you a chance to be sure of any deadlines that need to be adhered to, and you may find that the form is not that great a nuisance after all.
If you are taking an action to get something you want whether it is some kind of appeal or decision, claiming something that is owed to you, complaining about an issue, be as prompt as you can. Your deadline may be passed if you delay.
Those who keep good records of where they have been and what they have done are more likely to be able to spot a deadline has been passed and whether or not others have not followed procedure in terms of timing. Of course, even the smartest people would be wise to get legal advice on these matters as the rules can be complex.
By keeping good records and making a note of when correspondence was sent (using recorded delivery) or received as well as dates showing on the top of any correspondence received, these dates can be compared and contrasted with the dates of events referred to in the correspondence and this evidence could affect outcomes for or against you.
By having a policy of acting immediately on all written requests, phone calls and emails you make it less likely that you will trip up on a deadline and, where appropriate, make it more likely that the people you are dealing with may miss theirs.
Self-investigation can help but googling does not often give the full picture. Yes, you may be able to gain some insights but a little information is also a dangerous thing. Most solicitors are happy to give you some free time to explain what the issue is and have a chat with you before you commit to their legal service. Sometimes that one conversation is all you need. Other times, while you may resent paying for the justice you are entitled to, you will save yourself a lot of money or inconvenience by bringing in a professional.
Here at Hallam Solicitors, we pride ourselves on being friendly, approachable and thorough, ensuring that you get the best advice possible and are spoken to with plain language. Just give us a call to discuss.
If you have noticed car insurance premiums increasing in recent years, you are not alone. Premiums have continued to rise because of personal injury claims and the ‘claims culture’ according to insurance companies.
This, it is said, is because of the prevalence of whiplash claims, many of which are fraudulent according to insurance assessors. While there is little doubt that fraudulent scams have been increasing with claims for personal injuries such as whiplash being the mechanism of preference, it is still important that those who are injured in a RTA (Road Traffic Accident) have access to justice and to a personal injury claim.
With this in mind, George Osborne announced a new tactic in the fight against fraud in his Autumn Statement last year. The tactic came as a surprise to many, including the Ministry of Justice, as the Chancellor appeared to pull it out of the hat from nowhere. So what was this new tactic?
Mr Osborne announced an increase in the Small Claims Limit for damages for pain and suffering and loss of amenity from £1000 to £5000 for all claims, and furthermore there would be no compensation whatsoever for “minor soft tissue injuries”.
On the surface, one may think this sounds like a good move in the fight against fraudulent claims however, given that the vast majority of all accidents attract damages for pain, suffering and loss of amenity below £5000, clearly the losers will be genuine victims while the insurers will make big savings.
If there are any doubts at all that the insurers stand to cash in on the changes, these can be completely quashed by the fact that had these proposals been implemented earlier up to the 95% of the 759,763 RTA victims in 2014 who were awarded compensation would have been unable to claim for their injuries at all. Many legal commentators and lawyers who act for victims of accidents consider this outrageous.
These rules don’t just affect those involved in RTAs either.
Last year, out of the 208,310 claims by those injured at work through public liability or the fault of occupiers, up to 85% would have been forced to bring their claims in the Small Claims Court.
The small claims process is designed for people to bring claims without the help of lawyers. Well, they can, but they cannot, as now, recover the costs of the lawyers from the Defendant. Personal injury claims can be complex and you can be sure that, even though you would not be able to rely on legal help the insurers certainly will and the chances are you will be at a disadvantage in the claim.
The reality of the changes is that those involved in claims of less of than £5000, and that is a substantial percentage of those wanting to make claims, now have grim choice to either face insurance companies head on without a lawyer or have to pay their legal costs in full out of any compensation they are awarded. No prizes for guessing who is likely to win in these disputes. What it boils down to is no representation for injured persons and a blow against justice for all!
Sadly, even for those that decide to pay for a lawyer, who are resolved to sacrifice anywhere between 30 and 40% of their compensation, are still going to struggle to find a suitable personal injury lawyer to help them. Specialist personal injury solicitors are dropping like flies which is opening up the door for the less scrupulous and unqualified chancers to step up and make a killing.
Another consideration that is preventing justice from being delivered is the financial risk to injured persons. This is leading to injured parties not making claims. This leaves the insurance companies to benefit from withholding compensation that they would have been paying out before. For victims of RTA’s with small claims of less than £5000 they are doing well if an insurance company makes an offer that is only a small percentage of what they are really entitled to.
The chancellor had claimed that with the drop in fraudulent pay-outs for things like whiplash or soft tissue claims, that we call all expect a reduction in our motor insurance premiums of between £40 and £50 per annum.
Many argue that no reductions in car insurance premiums have materialised. Have you noticed any difference in yours? To add insult to injury, Osborne has increased Insurance Premium Tax (IPT) by 3.5% which is hardly going to help keep premiums down.
We believe in justice for all and are proud of the fact that we are still going strong. Don’t be denied access to justice if you are involved in an RTA or any other incident where you believe you have a claim for injury.
To find out how we can help you with your personal injury claim, get in touch.
This article explains what making a will is for and why you should do so. If you haven’t, you need to read on.
None of us want to think that the reaper is round the corner but the fact is that death is one of the few certainties in life. As we grow older many of us accumulate wealth in the form of money, possessions, assets, investments etc., and our personal lives can also become more complex with children and spouses for example. (more…)
Only recently, many people were perplexed by decision made by the Director of Public Prosecutions (DPP), Alison Saunders, not to allow Lord Janner to face trial on allegations of child abuse. The decision had been made based on a judgement that he was unfit to stand trial due to his being too ill with dementia. A claim was brought for Victims’ Right to Review! (more…)
If you are buying or selling a house, you need a plan for informing others of your change of address. When we think about moving house it is very easy to think about the obvious task of shifting furniture and other belongings. We may even be vaguely aware that we want to keep (more…)
It is important to know what you’re buying when you buy anything but most purchases you make in life won’t be as large or important as buying a house. You need to make sure you know what issues you are taking on as part of the package. We have highlighted some of the DO’s and DON’Ts to ensure you don’t buy any unexpected headaches when you are buying a house. (more…)
Changes brought about last year mean an end to 100 percent compensation. We explain exactly why the changes came about and how they will affect your claim.
When considering an extension to the home, a large shed or building a new house, most people will be aware that they probably need to check if they need planning permission. Building without planning permission is not worth the risk as it will only turn into a much bigger headache further down the line when the local council serve an order requiring that whatever has been built is demolished.
House owners can invest in Indemnity Insurance to cover for some types of work just in case they do fall foul of planning regulations, but it is still no fun to have to put all the effort into building work only to have to take it apart later.
What people are less aware of is that even relatively minor work such as replacement windows or doors may require special permission from the local council, and there may be specific rules that they have to follow.
For example, Saltaire is a “World Heritage Site”. As such, City of Bradford Metropolitan District Council has published a Sustainable Saltaire document advising people of the Planning Requirements in Saltaire.
The document states that all Saltaire housing is Grade II listed, which means that ‘the householder must apply for “Listed Building Consent” from Bradford Council when considering certain works to their property. Consent will only be granted if the proposed works will not impact on the character of the building and will not impact on any view into or out of the World Heritage Site.’
Would be renovators are advised on “What can and cannot be done in The World Heritage Site” and there are rules and regulations covering a whole boatload of potential work from loft insulation and floor insulation to double-glazing which is not permitted.
That’s right; double-glazing is not permitted in Saltaire. The planning rules state that a householder’s options will depend upon the existing windows in the property. If they have an original sash window dating back circa 1850-70, then this is of particular historic and architectural importance and must be retained and repaired. If it is beyond repair then Listed Building Consent is required for replacement and the replacement must be a single-glazed sash window to match!
Furthermore, householders are looking at stepping into a minefield if they are considering renewables. Technologies cannot be installed on roofs as they will be visible from the road so that means no photovoltaic panels, solar thermal panels or wind turbines.
In fact, Saltaire’s planning rules are so all pervading that householders in the area may well have difficulty getting Indemnity Insurance; they are expected to take the time and effort to ensure they are getting it right first time before carrying out the work. Such is the price to be paid for living in an area of historic importance.
For most people living in more ordinary neighbourhoods, rules and regulations still apply and it is always a wise move to check before carrying out any modifications to the home. Changes that are commonly overlooked are loft conversions and any work that effects load bearing walls.
There is a government website that people can visit to be on the safe side before getting work done to their home. The site is called The Planning Portal – www.planningportal.gov.uk.
Remember, while a reputable builder may very well raise an eyebrow if you are asking for work to be done that is questionable, it is your responsibility to ensure that any work carried out on your home is permitted.
Building work can add real value to your home as well as bringing extra benefits such as extra space but do it right, and ensure you have permission first. It is better to find out before you start the work than later on when you receive a letter from the council or, worse still, if you find out just as you are about to sell the house.
Like all organisations, local councils can make mistakes. If you think that work done on your house is being questioned unfairly, feel free to get in touch, and we will be happy to help.
Anybody listening to the news lately is unlikely to have avoided reports about UKIP candidate, Mark Reckless, and his remarks about the repatriation of migrants who were already legally permitted to stay here. Putting the politics aside, repatriation of migrants who were already legally permitted to stay enters into legal territory which is troublesome because it involves a type of law known as retrospective legislation.
The Oxford Dictionary of Law defines retrospective or retroactive legislation as “legislation that operates on matters taking place before its enactment, e.g. by penalising conduct that was lawful when it occurred. “ It goes on to say that “there is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure.”
As a rule, without clear words to the contrary, statutes do not apply to the past. They apply to a future state or circumstance.
When asked to outline the Government’s position on introducing retrospective legislation, former Solicitor General, Harriet Harman, replied that the State would have to consider whether the general public interest in the law not being changed retrospectively may be outweighed by any competing public interest.
The Government would be required to take into account relevant international standards including those of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was incorporated into United Kingdom law by the Human Rights Act 1998.
Where legislation has been applied retrospectively it has often been to validate activities which have no statutory basis, or to correct practices which have been found to be illegal. That is, the changes are clarifying a legal position or putting right an error.
It is rare for retrospective legislation to lead to criminal prosecutions against individuals for activities they had been involved in that had not been covered by the existing laws at the time those activities were carried out.
One example of legislation to create retrospective criminal liability was the War Crimes Act 1991. This meant that, provided they were British citizens or UK residents from 1990 onwards, individuals could be prosecuted for war crimes carried out in Germany (or occupied territories), during the Second World War, regardless of their nationality at that time.
Sometimes, the government realises in hindsight that professionals who have been acting lawfully within the spirit of the law, have been inadvertently breaking the law because of a flaw in the wording of the legislation. In some circumstances the consequences are so insignificant as to be ignored. However, in some cases where actions carried out by professionals in good faith and within the spirit of the law have left them vulnerable to potential prosecution by others – where people have been sectioned by mental health professionals for example – the laws were altered to give the professionals the reassurance they needed that their unintentional offences were not going to haunt them at a later date.
We have all heard cases of where the super-rich have acted within the law in their tax affairs while clearly not acting in the spirit of the law, in regard to morals and ethics, by using aggressive tax evasion tactics. Retrospective tax legislation was put in place not too long ago to deal with one such specific tax avoidance technique. Appeals were made to stop the legislation but were successfully argued against by the government.
So whether you are a migrant or not, don’t let overly zealous politicians scare you. Unless you have been committing a crime against humanity or it really is in the public interest for you to be held to account over something you have done lawfully yesterday, you really need not worry about being prosecuted because of retrospective legislation.
If you ever feel as though you are on the rough end of legislation it pays to get the right legal advice and we are here to help.
Welcome to Hallam Solicitors. Please feel free to look around our website, if you have any questions or would like to have a discussion with our solicitors, please get in touch with us.
Put bluntly, the contracts are exchanged when all the nuts and bolts in regard to the sale of a property have been agreed, including the completion date. The completion date itself is when any outstanding balance changes hands from buyer to seller along with the keys of the house. (more…)
The British legal system is viewed by much of the world as being more sound and fairer than most. Sometimes legislation is unfair though or powers are misapplied. Judicial Review is a legal mechanism for challenging the decisions of Governments and Local Authorities.
Here are some examples of where a Judicial Review may be invoked:
Special powers designed for anti-terrorism being applied more generally by the police in cases where terrorism is not suspected.
Prison tariffs such as whole life tariffs.
Extradition cases where somebody may be in danger of death or torture or violation of human rights in the country they are being sent back to.
Michael Gove’s axing of Building Schools for the Future was found to be unlawful after being successfully challenged by Judicial Review.
Judicial Review was brought to establish the extent of government failings in its plans to cut support to solar power.
Remember the decision to award the West Coast Mainline franchise to First Group? Virgin Trains sought a Judicial Review to investigate the decision and the review uncovered significant errors in how that contract had been awarded.
One issue that is much more applicable to everyday people concerns the rules on Disclosure and Barring Service (DBS) checking, formerly known as Criminal Records Bureau (CRB) checking
In order to work with children or other vulnerable people, or working in certain situations, a DBS check is required to show the applicant’s criminal record. The intention is to ensure suitability for the role however if somebody has been convicted, for example, of stealing a bicycle as a 14 year old or was found guilty of trespass, then it is unfair if they are marked for life because of it. In such circumstances Judicial Review might be brought to prevent unduly prejudicial/unfair material being disclosed by the DBS.
Judicial Review is an effective way of calling Government and Local Authorities to account. Recently the Lord Chancellor, Chris Grayling, has been stopped in his tracks because of one such review.
Chris Grayling, Lord Chancellor
Grayling had bought about changes intended to make access to justice through legal aid channels more difficult. He wanted to reduce the number of legal aid solicitors able to represent you and me to such an extent as to be deemed unfair and illegal.
At the same time he has been seeking to limit the right to seek Judicial Review itself, claiming that it is too costly and often pointless.
As the late Mandy Rice-Davies once put it, though, “Well, he would say that, wouldn’t he?”
Initially, there was legislation that cut by more than half the funding for legal advice on issues that affect the poorest in society such as debt management and housing. After that, employee rights were undermined through the introduction of fees for employment tribunals.
The Criminal Justice and Courts Bill restricts access to Judicial Review. That mean it is now harder to ask a judge to make sure that the decisions of councils, government departments and other public bodies are reasonable, fair and within the law.
The fee for bringing about a Judicial Review is set to rise from £60 to £235 and ministers want to cut the time limit for seeking a Judicial Review of a planning decision from three months to six weeks.
The deadlines may be even tighter for decisions about who gets to supply products and services to Government and Local Authorities – procurement decisions; just 30 days. Furthermore, if a public body has been in breach of its duties for an extended period of time, the clock starts ticking from when it started breaking the law, rather than when it was caught out, and time for challenging any breach runs out after just three months. So it is quite possible that a person affected by the decision may never be able to challenge it because they have found out too late.
The Judicial Review process is made initially by a paper application which is considered by a Judge who makes a ruling purely on the written submission. If an applicant is not satisfied with that decision then he has the right to make an oral application before a Judge. The oral applications have a reasonable success rate (60%). The Government proposal is that the right to an oral hearing is to be more restricted which will effectively undermine access to justice.
If you feel that you are the victim of an injustice or have been on the receiving end of an unfair decision from a government body, you will need the best advice possible and we are happy to help.
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Burley, Kirkstall, Moortown, Alwoodley, Shadwell, Roundhay, Harehills and across Leeds, Bradford
and throughout the UK.
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