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Selling a Property? You Have a Duty to Be Honest About its Downsides

Fri, 2020-02-21 05:00

If you are selling a property, it may seem counterintuitive to reveal its downsides to prospective buyers – but, if formally asked, you are under a legal obligation to do just that. In a case on point, a couple reaped a whirlwind after keeping quiet about the fact that land near their home was to be the subject of a major hotel development.

Prior to agreeing the sale of their barn conversion home, the couple were required to answer a number of questions posed in a standard property information form. Asked if they knew of any correspondence or notices that might affect the property, they answered ‘no’. A question as to whether they were aware of any proposals to develop the property or nearby land also received a negative answer.

On the basis of those answers, contracts were exchanged for the property’s sale at a price of £1,085,000. The prospective buyers paid a 10 per cent deposit. After subsequently learning that planning consent had previously been granted for the hotel and car park, however, they rescinded the contract and demanded the deposit’s return. They launched proceedings after the couple refused that demand.

Ruling on the matter, a judge noted that the couple were well aware of the proposed hotel development, having actively opposed it. They must have known that it would affect the property but had sought to downplay its significance. They knew that their answers to the questions were false and were thus guilty of making a fraudulent misrepresentation on which the prospective buyers had relied.

The latter were thus entitled to rescind the sale contract and to have their £108,500 deposit returned. The couple were also ordered to pay substantial legal costs and £1,778 in compensation to the prospective buyers, that sum representing their losses arising from the abortive property deal.

Gross Misconduct Justifies Dismissal – But What If an Employee is Disabled?

Thu, 2020-02-20 05:00

Workplace misconduct may appear so serious that dismissal is the only option – but it is vital to take into the account the impact that mental health disabilities may have on such behaviour. A case on point concerned a teacher who admitted that he was complicit in an illicit attempt to boost pupils’ marks in a controlled assessment.

At the request of a colleague, who later resigned, the teacher gave pupils taking the GCSE assessment handwritten notes which had been prepared for them to follow and which they copied almost verbatim. A disciplinary hearing before the school’s head ensued and he was dismissed on grounds of gross misconduct.

The man had a history of depression and severe anxiety of which his employer was aware. He said that he had agreed to his colleague’s improper request when feeling overwhelmed. He accepted that he had crossed a moral line but said he felt under extreme pressure to improve his performance. His complaints of unfair dismissal, disability discrimination and a failure to make reasonable adjustments were, however, rejected by an Employment Tribunal (ET).

In ruling on his challenge to that outcome, the Employment Appeal Tribunal (EAT) could find no flaw in the ET’s rejection of his unfair dismissal claim. His appeal in respect of the disability discrimination and reasonable adjustments claims was, however, upheld and a fresh hearing ordered before a different ET.

Whilst acknowledging the gravity of his admitted misconduct, the EAT found that the ET had applied the wrong legal test when assessing whether it had arisen in consequence of his mental health disability. The connection required was a relatively loose one and the ET had set the legal bar too high.

In determining whether his dismissal was a proportionate response to his wrongdoing, the ET also failed to consider with a sufficiently critical eye whether a lesser sanction would have sufficed. Such a lesser sanction would arguably have been a reasonable adjustment taking account of his disability.

You Don’t Have to Be in Prison to Be Imprisoned – Supreme Court Ruling

Tue, 2020-02-18 05:00

You do not have to be in prison to be imprisoned. The accuracy of that statement was confirmed by the Supreme Court as it upheld an award of damages to an immigrant who was for years subjected to an unlawful home curfew.

On being released on bail from immigration detention, the man was served with a notice of restriction on behalf of the Home Secretary. He was required to report to an immigration officer three times a week, to live at specified address, to submit to electronic tagging and to stay at home every night between the hours of 11pm and 7am. The curfew remained in place for a total of 891 days.

An electronic system was installed to monitor his compliance, and he was warned in the clearest terms that any breach of the restrictions could lead to a £5,000 fine, six months’ imprisonment, or both. The curfew was, however, eventually lifted by a judge after the Home Secretary conceded that it was unlawful. In a ruling that was subsequently upheld by the Court of Appeal, the man was awarded £4,000 in damages for false imprisonment.

In challenging that outcome, the Home Secretary argued that the curfew, although unlawful, did not amount to imprisonment. In rejecting the appeal, however, the Supreme Court noted that the restrictions dictated where the man should live and he was warned of dire consequences if he failed to comply with the curfew. Although it was physically possible for him to leave his home at night, his compliance with the curfew was enforced and far from voluntary.

There were sound reasons for maintaining the distinction between the established concept of imprisonment under English law – which encompasses restrictions on physical liberty short of deprivation – and the more demanding and much less nuanced concept of deprivation of liberty, enshrined in Article 5 of the European Convention on Human Rights.

Professional Landlord Heavily Fined Over Hazardous Property Defects

Tue, 2020-02-18 05:00

Some professional landlords may view their primary role as the collection of rent, but they owe wide duties to ensure the safety and reasonable comfort of their tenants. One landlord who signally failed to match up to those obligations found himself on the receiving end of a substantial financial penalty.

The experienced landlord owned or controlled a number of tenanted properties. A local authority inspection of one of them revealed a number of hazards, including a lack of roof insulation, resulting in excessively cold rooms, a hole in the bath, which meant that the bathroom floor became sodden on each use, and electrical fittings that were either defective or in a dangerous state of disrepair.

The council issued him with an improvement notice, requiring the completion of remedial works by a certain date. After that deadline came and went without compliance, a £25,000 financial penalty was imposed. The landlord challenged his liability to pay that penalty, and its amount, before the Property Chamber of the First-tier Tribunal (FTT).

In ruling on the matter, the FTT found beyond reasonable doubt that, in failing to comply with the notice, the landlord had committed an offence under Section 30 of the Housing Act 2004. Although he was at the time suffering serious ill health, and personal and financial difficulties, that did not amount to a reasonable excuse.

As an experienced residential landlord, he could and should have taken steps to effectively manage the property after he fell ill. He claimed not to have been properly served with the notice, on the basis that it had not been sent to his home address, but the FTT was satisfied that he was throughout aware of the action being taken by the council.

In reducing the penalty to £10,000, however, the FTT noted that remedial works had since been completed and that the landlord had no previous record of offending. The gravity of some of the defects in the property and the level of his culpability had also to some extent been overestimated.

High Court Rectifies Clerical Error in Retired Joiner’s £1.6 Million Will

Mon, 2020-02-17 05:00

Clerical errors in the drafting of your will can have the very serious consequence of frustrating your true wishes. As a High Court case showed, however, judges thankfully have the power to correct them even after you are gone.

The case concerned a retired joiner who, on his death aged 80, left an English estate worth more than £1.6 million after tax. He also had substantial assets in Ireland, the country of his birth. His will, as drafted about four years before his death, split his estate into 10 equal shares to be divided between his five surviving siblings and the five children of a sister who died before him.

One of his brothers, who was also an executor of his estate, launched proceedings under Section 20(1)(a) of the Administration of Justice Act 1982 seeking rectification of the will on the basis that it contained a clerical error. He argued that the intention of the deceased had been to split his estate into six, rather than 10, parts and that only one of them should be divided between the children.

In upholding his arguments and rectifying the will accordingly, the Court found that an error had been made when the document was typed up which had escaped everyone’s notice when it was formally signed. The will as drafted did not give effect to the deceased’s true testamentary wishes and conferred on the children an unintended windfall.

Two of the children had resisted the application on the basis that the deceased was domiciled in Ireland on his death and that the English courts thus had no jurisdiction to rule on the matter. The Court, however, found that he had made his life in England after moving here in the 1970s and that this country had thus become his domicile of choice by the time he died.

The application to rectify the will was not issued within six months of probate being granted, as it should have been, but the Court found that it was just and proper to extend that deadline. The consequences of the error would have been severe if it had remained uncorrected. Under the will as drafted, the children stood to inherit £167,436 each, compared to £33,487 each under the rectified document.

Substantial Compensation Secured for Victims of Negligence at Birth

Fri, 2020-02-14 05:00

Compensating victims of clinical negligence costs the NHS many millions of pounds every year – but it is no more than is needed to ensure that they are properly cared for. In two cases, heard on a single day, an NHS trust which admitted liability in full for devastating birth injuries suffered by two girls at the same hospital agreed to settlements worth a total of almost £26 million.

In both cases, the trust admitted that brain injuries suffered by the girls – one aged nine, the other 14 – had been wholly caused by negligent delays in their delivery. It was also accepted in both cases that, had they been born when they should have been, the girls would have been unharmed.

The nine-year-old is catastrophically disabled, physically and mentally, and has a limited life expectancy. The 14-year-old suffers from mobility and other difficulties, but is predicted to live a near normal lifespan. Her intellect has been spared and she is doing well at school. She is expected to attend university and find employment, and is determined to have a family of her own one day.

In the case of the nine-year-old, the trust agreed to a settlement – consisting of a lump sum and index-linked annual payments to cover the costs of her care for life – which has a capitalised value of £8.17 million. A similar settlement was agreed in respect of the 14-year-old which was valued at £17.8 million. Both settlements were approved by the High Court within hours of each other.

Criminal Assets – Unexplained Wealth Order Upheld in Important Test Case

Thu, 2020-02-13 05:00

Unexplained Wealth Orders (UWOs) are a potentially powerful tool that can be used by the National Crime Agency (NCA) to track down criminally tainted money and assets. Although only one such order has been issued to date, they may well become more common following a guideline Court of Appeal ruling.

The case concerned an Azerbaijan national’s connection to a London property which was purchased in 2009 for £11.5 million. The property was legally owned by a British Virgin Islands (BVI) company but, when applying for leave to remain in the UK, the woman claimed to be the company’s beneficial owner.

NCA inquiries in the BVI, however, indicated that the true beneficial owner was her husband. He was the former chairman of a bank in which the Azerbaijan Democratic Republic owned a majority stake. After his departure from that role, he was convicted in Azerbaijan of offences including fraud and embezzlement and received a 15-year jail term. He was also ordered to pay about $39 million to the bank. The woman had also been arrested in her absence by the Azerbaijan authorities.

The NCA obtained a UWO against her under the Criminal Finances Act 2017 which required her to provide a statement setting out, amongst other things, the nature and extent of her interest in the property and explaining how she had obtained such an interest. An interim freezing order was also issued, preventing any change of ownership or other dealings in respect of the property. Her application to discharge the UWO was subsequently rejected by the High Court.

In ruling on her challenge to that outcome, the Court noted that, in order to obtain the UWO, the NCA had been required to show that she held the property and that there were reasonable grounds for suspecting that her known sources of income would have been insufficient to enable her to obtain it. It was also necessary to show reasonable grounds for suspecting that a member of her family – in this case her husband – had been involved in serious crime and that he was a politically exposed person, in the sense that he had been entrusted with prominent public functions by an international organisation or a state other than the UK or another state within the European Economic Area.

In rejecting the woman’s appeal, the Court found that those stringent conditions had been satisfied. The bank being controlled and majority owned by a foreign state, her husband had effectively been a state employee and, as a member of his family, she too was a politically exposed person. A reasonable suspicion that the husband’s legitimate earnings would have been insufficient to fund the property’s purchase was also clearly established. Other arguments, including that the UWO offended against the rule against self-incrimination and represented a wrong and disproportionate exercise of judicial discretion, were also rejected.

Life of Baby Boy Who Experiences Only Pain ‘Intolerable’, Court Rules

Wed, 2020-02-12 05:00

When is life not worth living? The High Court grappled with that fundamental issue in authorising doctors to withhold life-sustaining treatment from a baby boy who can neither see nor hear and experiences only pain.

The boy’s mother conceived him following a one-night relationship and was unaware of her pregnancy prior to his birth. She relinquished his care to the local authority on the basis that he would be better off living in an adoptive family. The council duly placed him in foster care with a view to adoption.

It later emerged, however, that he suffered from hydranencephaly, a rare congenital condition which results in some of the brain hemispheres not forming properly and being replaced by fluid. Only a brain stem and some deeper parts of his brain were present. He had been fitted with a shunt to drain fluid from his skull, but he remained at constant risk of potentially fatal infection.

In those circumstances, the council, with the support of local NHS authorities, sought judicial declarations that it would be lawful not to resuscitate the boy if his condition worsened, and that it would not be in his best interests for him to receive intensive care or artificial ventilation.

In granting the declarations sought, the Court noted that the starting point was the legal presumption that life should be preserved. However, the evidence pointed to the boy’s quality of life being minimal, if not non-existent. The likelihood was that he experienced no pleasure and that the only sensation he did have was one of pain. Describing the case as truly tragic, the Court found that his life consisted of nothing but suffering and reached the threshold of intolerability.

Paying Those Who Work for You Gross of Tax Is a High-Risk Strategy!

Wed, 2020-02-12 05:00

Paying those who work for you without deducting tax at source is a high-risk strategy which leaves the door wide open to dispute. A man found that out to his cost after a woman who provided him with childcare and property management services failed to pay tax on her income for seven years.

When the woman was taken on, she was informed in writing that she would be paid in the form of a management fee and would bear responsibility for paying her own tax. She did not do that, however, and later claimed that the man had failed in his duty to operate a PAYE system for her and other employees and that information had been manipulated to give the impression that she was self-employed.

Unpaid tax and late payment penalties in respect of sums she had received from the man were estimated at around £100,000. After she was dismissed, she lodged Employment Tribunal (ET) proceedings, claiming that her dismissal was wrongful, unfair and amounted to detrimental treatment for whistleblowing, contrary to the Employment Rights Act 1996.

The ET found that she was not dismissed because of her protected disclosures, but because she wanted the man to pay her outstanding tax bill. Her dismissal was unfair, in that there should have been one further meeting beforehand. It was also wrongful because she should have been given 10 weeks’ notice. However, in refusing to grant her relief, the ET found that she was not entitled to enforce her contract because she had performed it illegally by failing to pay tax.

In ruling on her challenge to that outcome, the Employment Appeal Tribunal (EAT) found that any detriment she had suffered was not materially influenced by her protected disclosures. The ET was also entitled to find that, by reason of illegality, she would not have been able to enforce her contract throughout the seven-year period during which she failed to pay tax.

In upholding her appeal in part, however, the EAT noted that any illegal performance of the contract for which she was responsible ceased about three years prior to her dismissal. There was no bar on her enforcing her contractual and statutory rights during that period and no public policy reason why she should be precluded from presenting her unfair and wrongful dismissal claims. The EAT heard further argument as to how effect should be given to its conclusions.

Is Food Beyond Its ‘Use By’ Date Automatically Unsafe?

Mon, 2020-02-10 05:00

Must food that is beyond its ‘use by’ date always be considered unsafe as a matter of law? Or is that merely a presumption that can be displaced by expert evidence? That fundamental issue was raised in a High Court case of great importance to food retailers and environmental health professionals.

A supermarket chain faced prosecution after an environmental health officer spotted various food items on the shelves of one of its stores which were beyond their ‘use by’ dates. The chain was charged with 10 counts of displaying unsafe food items for sale, contrary to the Food Safety and Hygiene (England) Regulations 2013, but presented expert microbiological evidence which indicated that the items posed no imminent danger to human health.

Following a preliminary hearing, a district judge sent the chain for trial after finding that the items were unsafe as a matter of law. That was on the basis that, under Article 24(1) of the EU Food Information for Consumers Regulation No 1169/2011, food items that are beyond their ‘use by’ date are deemed to be unsafe.

Opening the way for the chain to mount a judicial review challenge to that ruling, the Court noted that the case raised an issue of importance not only to public safety but also to the practical operations of food suppliers who might find themselves obliged to destroy food that is, in fact, safe.

The chain had an arguable case that Article 24(1) does not create an absolute rule of law but only a presumption that is capable of being rebutted by evidence. The chain also proposed to argue in its defence that it had taken all reasonable precautions and exercised all due diligence in order to avoid the commission of an offence.

Diplomatic Immunity Defence Trumps Servant’s Modern Slavery Claim

Thu, 2020-02-06 05:00

It might seem obvious that the law should come to the aid of domestic servants who are trafficked into Britain and set to work in conditions of modern slavery – but what if they are employed by overseas diplomats? The Employment Appeal Tribunal (EAT) tackled the burning issue of diplomatic immunity in a ground-breaking decision.

A woman of Philippine nationality was brought to the UK by a foreign diplomat to work as a servant in his official residence. She was issued with a visa on the basis that she would be a private servant in a diplomatic household. Her employment contract stated that she would be expected to work 50 hours per week, with one day off per week and one month off per year. She was to be provided with sleeping accommodation and paid the National Minimum Wage.

However, she asserted that those terms bore no relation to the circumstances in which she was in fact required to work. Claiming to be a victim of international trafficking, she said that she had been exploited by the diplomat and his family and that her treatment amounted to modern slavery.

After her employment came to an end, she complained to an ET of, amongst other things, wrongful constructive dismissal, unlawful deductions from wages and breaches of the Working Time Regulations 1998. The diplomat, who denied all her allegations, applied to strike out her claims on the basis of the diplomatic immunity from suit which he enjoyed under the Vienna Convention on Diplomatic Relations 1961, as enacted into domestic law by the Diplomatic Privileges Act 1964.

In refusing his application and directing a full hearing of the woman’s claim, the ET found that, in employing the woman, the diplomat was engaged in a commercial activity, exercised outside the remit of his official functions, and that his diplomatic immunity defence therefore failed.

In ruling on the diplomat’s appeal against that decision, the EAT noted that the law on the question of what constitutes unofficial commercial activity by a diplomat is far from clear. In a previous case involving almost identical facts, the Court of Appeal and, by a majority, the Supreme Court had reached different conclusions on the issue.

Under the doctrine of precedent, the Supreme Court’s ruling meant that the Court of Appeal’s decision was no longer binding. However, it remained persuasive and the EAT found that, given the emphatic minority opinions of the two dissenting Supreme Court justices, it continued to represent the current state of the law on the issue.

The EAT noted that it required no persuasion of the natural impulse to provide legal redress for victims of human trafficking and modern slavery. However, the concept of diplomatic immunity involved countervailing issues of high international policy. The diplomat’s appeal was allowed and the woman’s claims were struck out.

Self-Employment Has Its Benefits – But Also Its Serious Disadvantages

Wed, 2020-02-05 05:00

Self-employed people enjoy certain tax benefits and often place a high value on their independence. However, an instructive Employment Tribunal (ET) decision in the context of the building industry illustrated the serious disadvantages of not having employment status.

The operator of a general building firm had engaged a man to carry out painting and decorating jobs for him. After their working relationship ended, the man lodged ET proceedings, alleging, amongst other things, unfair dismissal and breach of contract. The ET only having jurisdiction to consider those complaints if the man were an employee, his status was considered as a preliminary issue.

Ruling on the matter, the ET noted that the man had been in business on his own account for many years before he even met the operator. There was no written contract between them and the man had been engaged on the clear understanding that he was a self-employed independent contractor.

The operator had carefully checked that the man was registered as self-employed with HM Revenue and Customs and had paid him an enhanced hourly rate on the basis that he would be responsible for paying his own Income Tax and National Insurance Contributions, which he in fact did.

He raised invoices for his services, which he was not contractually bound to perform personally, and was free to carry out jobs for others whilst engaged by the operator. He was not entitled to holiday or sick pay and the operator, who had no employer’s liability insurance, had no control over the manner in which he performed his work.

Having ruled that the man was self-employed, the ET dismissed his unfair dismissal and breach of contract claims for want of jurisdiction. He did not press alternative arguments that he enjoyed the status of a ‘worker’, within the meaning of Section 230(3) of the Employment Rights Act 1996, and withdrew further complaints in respect of alleged unlawful deductions from wages and arrears of holiday pay.

‘One House Only’ Restrictive Covenant Triggers Neighbourhood Dispute

Tue, 2020-02-04 05:00

In an era of ever-increasing demand for new homes, large domestic gardens present a clear opportunity for so-called ‘infill’ development. As one case strikingly showed, however, such projects can be a source of considerable neighbourhood ill-feeling.

The case concerned a leafy estate of 44 detached homes laid out in 1928. All of the properties were, from the date of their first sale, subject to restrictive covenants that forbade construction of more than one house on each plot. The owner of the estate’s largest plot had obtained planning consent to construct a new house in his garden, but the covenant stood in the way of the development.

The owner applied to the First-tier Tribunal (FTT) under Section 84(1) of the Law of Property Act 1925 to modify the covenant relating to his property so as to enable him to proceed with the development. That, however, gave rise to very strong feelings amongst his neighbours on the estate, 26 of whom (the objectors) resisted the application on numerous grounds.

Ruling on the matter, the FTT noted that, in light of the grant of planning consent, it was common ground that the owner’s plans would constitute a reasonable use of the land in question. The proposed new house would be in keeping with the appearance of the rest of the estate and would be neither intrusive nor exceptional.

The FTT found that the objectors’ concerns about, amongst other things, loss of privacy through overlooking and harm to views, although sincere, were somewhat unrealistic and overblown. The value of their homes would not be diminished by the development, in that they would be no less attractive to prospective purchasers.

Arguments that the development would comprise the thin end of the wedge, paving the way for other infilling projects on the estate, also fell on fallow ground. The ‘one house only’ covenants in respect of other properties on the estate would remain in full force. The FTT concluded that retaining the covenant in unmodified form would bring no benefits of substantial value or advantage to the objectors.

The owner was granted a modification to the covenant which would enable him to implement the planning permission. Before the modification took effect, however, the FTT directed that he pay a total of £15,000 in compensation to six objectors in respect of noise and disturbance that they would suffer during construction of the new house.

The Retail Prices Index May Be Discredited – But It Is Still Very Much Alive

Mon, 2020-02-03 05:00

The venerable Retail Prices Index (RPI) has its roots in the 1940s and is nowadays widely considered to be a flawed and unreliable measure of inflation. However, in a ruling of importance to employers and pension scheme administrators, the High Court has confirmed that it is still very much alive.

The case concerned a company pension scheme with assets valued at £585 million. A definitions document attached to the deed by which it had been governed since 2011 stated that pensioners’ benefits would be increased annually in line with the general index of retail prices (all items) published by the Office for National Statistics (ONS).

If that index ceased to exist, or was no longer published by the ONS, the company and the scheme’s trustees were empowered to agree that another index be substituted. The substitution of the Consumer Prices Index (CPI), the application of which generally results in a lower measure of inflation, would achieve a very substantial reduction in the scheme’s future liabilities.

Ruling on the matter, the High Court noted that the origins of the RPI could be traced back to 1947. Until 2010, the government had used it for almost all purposes of uprating. However, by 2013, the ONS was describing CPI as the main measure of inflation. In 2015, the UK Statistics Authority (UKSA) stated that the RPI did not meet the required standards for designation as a national statistic.

However, the Court ruled that talk of the demise of the RPI is premature. UKSA, of which the ONS is an executive agency, still compiles, maintains and publishes the RPI, if only because it is obliged to do so by Section 21(1) of the Statistics and Registration Service Act 2007. Current indications are that the RPI will continue to be published until at least 2025 and possibly until 2030.

The Court found that the index referred to in the definitions document was clearly the RPI and that the circumstances in which the CPI, or some other index, could be substituted for it had not as yet arisen. The scheme’s trustees are thus obliged to continue to calculate annual increases in pensioners’ benefits by reference to the RPI until such time as it ceases to be published by the ONS for any purpose.

Suffered Discrimination at Work? Consult a Lawyer without Delay!

Fri, 2020-01-31 05:00

Discrimination in the workplace is completely unacceptable in all its forms and, if you are a victim, you should seek professional advice without delay. In a case on point, a retail worker won substantial compensation after her life was made a misery by her boss whilst she was going through the menopause.

The woman, who had worked in the retail sector for 37 years, got on well with her boss until his attitude towards her changed after she became menopausal. Making persistent fun of her in front of younger colleagues, he subjected her to a stream of offensive and humiliating remarks. Amongst other things, he referred to her as a dinosaur in front of customers and criticised her for failing to staple two sheets of paper together, relating this to the menopause.

Although she complained to senior management, she said that no action was taken and that her boss’s behaviour became even worse thereafter. Following a mental breakdown, she resigned. By that time, she was in a terrible state: having been diagnosed with anxiety and depression, she was effectively housebound for six months and broke off all her social contacts.

After she launched proceedings, an Employment Tribunal (ET) upheld her sex and age discrimination complaints, also finding that her boss’s conduct amounted to harassment. Her former employer, who bore indirect legal responsibility for her boss’s behaviour, was ordered to pay her total compensation of £27,975, including £18,000 in respect of injury to her feelings.

Woman Run Down by Elderly Driver Wins Over £4 Million Compensation

Tue, 2020-01-28 05:00

Life-changing road accidents can come out of nowhere as innocent people go about their daily lives, but expert lawyers are thankfully there to ensure they receive just compensation. In one case, a woman who was struck and dreadfully injured by an elderly motorist who mistook his accelerator for his brake won over £4 million in damages.

The middle-aged woman and her husband were walking through a supermarket car park when the 83-year-old motorist ran into them at speed. She suffered a traumatic brain injury and has since been stricken by severe headaches, vision difficulties, fatigue, dizziness and serious memory and concentration problems.

Her personality has changed dramatically since the accident and she is subject to the disinhibition typical of frontal lobe damage. She has no sense of smell or taste and has a lack of insight into the extent of her difficulties.

After lawyers launched proceedings on her behalf, the motorist’s insurers admitted liability for the accident and agreed to pay her a lump sum of just over £4.3 million. The negotiated settlement of her claim, which was approved by the High Court, was achieved not much more than three years after the date of the accident.

Her husband was also badly injured in the collision, and her son endured psychiatric injury due to the nervous shock of coming upon the scene soon after the accident to see his stricken parents. Their claims against the motorist were also successfully settled, on confidential terms.

Court of Appeal Acts to Protect Gypsy and Traveller Human Rights

Mon, 2020-01-27 05:00

Gypsies and travellers are amongst the most vulnerable groups in British society but their freedom to pursue a nomadic lifestyle is enshrined in law. The Court of Appeal resoundingly made that point in discouraging attempts by some local authorities to ban them from every scrap of publicly owned open land in their areas.

A borough council applied for an injunction which would have the effect of banning persons unknown from entering, occupying or encamping on 171 sites in its area – effectively the entirety of public spaces in the borough, save highways and cemeteries. The application was refused by a judge, principally on the basis that such a borough-wide embargo was too broad and would fail to respect the rights of gypsies and travellers under human rights and equality legislation.

In dismissing the council’s appeal against that outcome, the Court noted that similar injunctions were currently in force in 38 local authority areas across the UK, but that this was the first such order to be challenged at appellate level. That was largely because members of the gypsy and traveller communities had not been legally represented during hearings at which the orders were granted.

Ruling that there was no basis for the Court to interfere with the judge’s conclusions, the Court observed that Romany gypsies and Irish travellers have been present in Britain for centuries, but that they remain particularly vulnerable minorities. The grave and long-standing shortage of gypsy and traveller transit sites throughout the UK had led to an inescapable tension between the law of trespass and the human right of gypsies and travellers to respect for their family lives.

Giving guidance for the future, the Court stopped short of ruling that such local authority-wide injunctions should never be granted. It was, however, incumbent on councils to regularly engage with the gypsy and traveller communities and such orders should be regarded as exceptional measures which could only be justified if they represented the only way forward.

Local authorities that applied for such orders would be required to demonstrate an understanding and respect for gypsy and traveller culture, traditions and practices. Evidence that councils had complied with their duties to provide sufficient authorised gypsy and traveller sites would also generally be required. Welfare assessments of individual gypsies or travellers, particularly children, would constitute good practice and the Court emphasised that it will never be enough for a council to argue that a travelling community can simply move elsewhere or occupy private land.

Shipping – EAT Spots Uncomfortable Gap in Anti-Discrimination Laws

Mon, 2020-01-27 05:00

The Employment Appeal Tribunal (EAT) has expressed deep concern about a gap in the law which enables overseas recruiters of British seafarers to engage in flagrant discrimination if the vessels on which they wish to serve are foreign-flagged and operate outside UK territorial waters.

A British woman who had qualified as a cadet deck officer applied for work to a Hong Kong-based agency which provides personnel to serve on foreign-registered vessels outside UK waters. Her application was made in England. She was outraged after being informed that the agency recruited only men, not women, to work on its clients’ ships. Although describing itself as an equal opportunities company, the agency said that it could not offer an appropriate on-board environment for female cadets.

After the woman complained to an Employment Tribunal (ET), the agency admitted that her treatment amounted to direct sex discrimination. It argued successfully, however, that the ET had no jurisdiction to hear her claim. The ET found that the combined effect of Section 81 of the Equality Act 2010 and Regulation 4 of the Equality Act (Work on Ships and Hovercraft) Regulations 2011 was that the anti-discrimination provisions of the Act did not apply to protect the woman in respect of her recruitment in England to work on foreign-flagged vessels outside UK waters.

In rejecting her appeal against that ruling with regret, the EAT could find no fault in the ET’s interpretation of the legislative and regulatory provisions. However, it noted that the surprising effect of those provisions was to confer complete immunity on foreign-based recruiters of seafarers on UK soil in respect of what would ordinarily be viewed as abhorrent acts of discrimination, including harassment.

Expressing profound discomfort at the inescapable outcome of the case, the EAT noted that it was at least doubtful whether the Regulations conform with the provisions of Directive 2006/54/EC (the Equal Treatment Directive). However, the woman had no possible remedy against the agency because it was not an emanation of the state, and the only potential cause of action open to her was against the UK itself. The EAT considered that the government would be wise to review the scope of the Regulations as a matter of urgency.

Divorce – Being Less than Frank About Your Wealth Is Anything but Clever

Fri, 2020-01-24 05:00

Some divorcees sadly think it is clever to be less than forthcoming about the value of their assets, thus rendering a fair division much more difficult. In a vanishingly rare case, big money divorce proceedings had to be reopened not just once, but twice, due to a multi-millionaire husband’s dishonesty.

Following the end of their 14-year marriage, the former couple agreed to a consent order whereby the wife received the former matrimonial home and a lump sum of £4 million. It later emerged, however, that the husband had failed to disclose the existence of two valuable trusts of which he was the principal beneficiary.

The consent order was in those circumstances set aside and, following a rehearing, a judge awarded the wife a further £6.42 million. However, that was not the end of the matter and, in what was probably a unique application, the wife sought to reopen the financial aspects of the divorce for a second time.

In upholding her application, the High Court found that the husband had failed to disclose information relevant to the valuation of his majority shareholding in two companies. The shares had been professionally valued during the rehearing at about £16 million, but a subsequent deal entered into by the husband revealed that a buyer was willing to pay more than £80 million for them.

The Court found that the astute businessman was well aware of his duty to make full and frank disclosure. In failing to reveal at the rehearing the extent of his continuing contact with the potential buyer of his shares, he had signally failed in that duty. His deliberate decision to withhold information and documents which he knew should have been disclosed was dishonest and amounted to fraud.

In allowing the wife’s application and directing a second rehearing in respect of her financial remedies, the Court noted that, due to the husband’s dishonesty, finality had yet to be achieved almost a decade after the marriage ended. The former couple had to date run up about £1.3 million in legal costs between them. The outcome was enormously regrettable from the wife’s point of view and the Court urged the former couple to seek a negotiated settlement rather than continuing to engage in a vortex of profligate spending and mutual destruction.

Breach of Contract – Judge Orders Reinstatement of Golf Club Member

Thu, 2020-01-23 05:00

Club members who abide by the rules and pay their subscriptions have contractual rights and the courts are more than capable of enforcing them. In a striking case on point, a judge came to the aid of a man whose cherished membership of a prestigious golf club was cancelled irrationally and in bad faith.

The Australian citizen had paid a substantial fee to join the club but, as an overseas member, paid greatly reduced annual subscriptions on the basis that he was only permitted to play 30 rounds of golf at the club annually. His membership was terminated by the club’s governing committee on the basis that he was not permanently resident outside the UK.

After the man launched proceedings, the judge found that that conclusion was simply wrong. The evidence established that his real home was in Sydney and that he had never settled permanently in the UK. He was thus entitled to overseas membership under the club’s rules.

Noting that the man had been given no notice of the crucial committee meeting, the judge found that he had deserved better. It was very difficult not to accept that personal dislike, and a perception that he was not the type of person that the club wished to have as a member, had played a part in the committee’s fundamentally flawed decision. Having been taken in bad faith, for an improper purpose, the decision was one that no rational decision-maker could have reached.

There was no dispute that the man’s membership of the club gave rise to a binding contractual relationship and, notwithstanding the breakdown in trust and confidence between him and certain other members, the judge issued an injunction requiring his reinstatement. He was also awarded £250 in damages to reflect the embarrassment he suffered.

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