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Wednesday October 15, 2014 at 1:39pm

There has been further fall out from the hacking trial with Rebekah Brooks’s husband Charlie Brooks faling in his costs application for recovery of costs despite being found not guilty.  He lost his attempt to recover the £600,000 in legal fees he incurred as a result of being a co-defendant in the phone-hacking trial.

Mr Justice Saunders also ruled on Wednesday that he was rejecting the application for costs by the News of the World’s former managing editor, Stuart Kuttner.  The judge pointed out he was “satisfied that the defendants’ conduct brought suspicion on themselves and misled the prosecution into thinking that the case against them was stronger than it was”.

I do have a measure of sympathy for the defendants here as they "won" but it is worth pointing out that even if you have been found not guilty and have a costs award made in your favour it is unlikely that you will get all of your costs paid. Indeed, the presumption is you will not.


Wednesday October 15, 2014 at 1:16pm

As we approach a general election we will see all of the political parties making some kind of play for the elderly vote. One of the key issues is Inheritance Tax and the IHT threshold of £325k each; The headline remains the government aspiration to increase the IHT theshold to £1million. Note, aspiration as it remains to be seen if this willl happen.

 

 

Tuesday October 7, 2014 at 1:26pm
With the 25th anniversary of the founding of the world wide web, there are now calls led by Sir Tim Berners-Lee for a Digital Bill of Rights in the UK.

I think one of the complaints that people have about our political classes is that they seem out of touch with everyday issues.

We will see if next year anyone picks up the baton.

Research just published claims to show that 40 percent of adults in the UK have lost trust in the web over the last year - a situation that has been caused by a rising tide of government surveillance and privacy breaches..

The research also found that 57 percent of respondents think there should be a `Digital Bill of Rights' in the UK. .

Sir Tim Berners-Lee, credited as the inventor of the World Wide Web and founder of the World Wide Web Foundation, said that a trusted Web is crucial to the UK's future..

"Our tech sector has led the way out of recession, creating more jobs than any other industry in recent years. A Britain in which people no longer trust the Web as a safe and private place will be a Britain that is less free, less creative and ultimately less prosperous," he said, adding that the 2015 General Election is an opportunity for party leaders to enact a new digital bill of rights.".

According to Berners-Lee libel laws are reasonable. Destroying facts that are true is much more worrying. .

He also refers to the fact that the European Court of Justice (ECJ) ruled that Google should heed those seeking the “right to be forgotten” and hide embarrassing stories from search engine results. .

The rationale was to help ordinary people escape their past, especially if caught in compromising situations.

As ever this is a balancing act between the potency of the search engine which can remember many details about us and the right to some privacy and this has been covered by us previously.

I think one of the problems we have is that the political classes simply do not get it and I wonder if they have the flair to do what is right.

Monday October 6, 2014 at 3:53pm
As many of you will know, new rules governing the way estates are divided when someone dies without a will have come into play.

This is relevant for the bulk of people as almost two-thirds of UK adults have not written a will..

Of those that have written a will, almost a third are out of date.

From experience there is still too much of a trend to doing your own will which leads to problems.

The new rules principally affect estates worth over £250,000, but rising house prices mean that more estates will breach this threshold.

Figures from the Office for National Statistics showed that the average UK house price was £272,000 in July.

The main change in the reforms, which are effective in England and Wales from 1st October is that widowed spouses will inherit a larger share than is currently allocated under intestacy rules at the expense of the claims of any children.

While the reforms look to bring many aspects of the rules up-to-date, they have been criticised for not addressing all of the perceived injustices that can arise under intestacy. In particular, the unmarried continue to have no claim to their late partner’s estate.

We are all aware of the number of people who are not married, but their legal rights are shakey. No a common-law spouse does not have any legal rights.

From October 1st, a widowed spouse will inherit all of the estate, however high its value.

Where there are surviving children, the widow will now receive the first £250,000 of the estate plus half of the remaining assets.

The other half of the remaining assets will be shared equally among any children.

What I would like to see is a decision made on if unmarried people should have rights if they live with someone for a set period. The alternative is that individuals will make legal claims for reasonable provision. This protection comes in the shape of the Inheritance (Provision for Family and Dependants) Act 1975; known as the Inheritance Act. The Inheritance Act is there to help spouses, children, civil partners, cohabitees and other surviving dependants who have been left to cope without sufficient money to enable them to get by.

If a will (or intestacy in this case) fails to make 'reasonable financial provision' then the Inheritance Act will come into play..

In order to bring a claim you must satisfy the Court that you are entitled to make the claim. The Act states that the following must apply: 1.The deceased must have been living in England and Wales at the time of their death..

2.You, as the applicant, must be one of the following:.

- the spouse or civil partner of the deceased;.

- the former spouse or former civil partner of the deceased (as long as the deceased has not re-married or formed another civil partnership);.

- a child of the deceased;.

- where there is a marriage or civil partnership, a person who was treated by the deceased as a child of the family; - immediately before the death of the deceased you were dependent, either wholly or partly, on the deceased. - if cohabiting with the deceased, then you must have been living with the deceased for a period of at least two years..

3.The application must be made within six months of the grant of probate or letters of administration.

Whether one has made a will or not, this is an area of growth, namely trying to obtain reasonable provision when either the will or intestacy fails to provide.

 

Friday October 3, 2014 at 3:52pm
One of the key legal issues of our time is the human rights of the elderly and a key focus is how restricted the elderly are in care..

Recently, the Supreme Court judgement, in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council, brought in a revised test that effectively lowered the threshold for deprivation of liberty in care..

It also rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements..

The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. .

However, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.

The overall numbers have soared from just over 10,000 last year, to a predicted 94,000 this year, according to the Association of Directors of Social Services. While the ruling brings welcome clarity to the area, it could cost councils nationally an extra £80m this year, Adass calculates.

By way of background, doctors may decide to apply to deprive an individual of their liberty because they believe the patient, who usually has dementia or severe learning difficulties, would come to harm otherwise.

Since 2009, if a hospital or care home wants to deprive a patient of their liberty – by stopping where they can go, or what they can do – it must get any such restrictions approved by the local authority

Any restrictions must be the minimum necessary. Patients' views and best interests must be taken into account and decisions must be reviewed regularly. Those wishing to appeal can challenge any decision to curb their liberty in the court of protection. Similar safeguards apply where the person whose liberty is restricted is living in their own home, but the decision to deprive their liberty is taken by the court of protection, not the local authority

The numbers are not totally pretty. Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion.

Local authorities are seeing their budgets impacted as they have to spend more money to deal with the applications..

Thursday September 25, 2014 at 8:33am

As has been recently reported within some of the press, paying inheritance tax is now the norm for bereaved families in the south east, with new figures showing the average cost of a home has exceeded the IHT limit threshold for the first time.

The average price of a house in the south east of England reached £326,000 in June, after gaining almost 10 per cent in a year. If your estate upon death is more than £325,000, IHT kicks in at 40% above the balance.

The inheritance tax threshold(known as the nil rate band) has been frozen at £325,000 since April 2009. 

This is mitigated by the fact that if one is married, your spouse can receive everything inheritance tax free, the IHT liability applies in on the second death.

Having dealt with a number of elderly people in a consultancy capacity, despite protestations by the press, I do not think that IHT is of massive concern to most elderly people.

It does not apply and its mitigation involves significant costs in professional fees which people cannot be bothered to pay.

In my experience what is of greater concern to elderly people and their families is the quest for care fees avoidance. The recent Care Act which imposes a cap of £72,000 will in fact lead to some elderly people face paying £150,000 for residential care before they hit the cap on care costs in England, an analysis suggests.

The sum is more than double the £72,000 figure the cap will be set at when it comes into force in 2016. That is because extra costs, such as the fees for accommodation, do not count towards the cap. And people can get desperate to avoid paying care fees despite the fact that it puts them in the hands of the Local authority in choosing the care home.

As some people do not have confidence in lawyers fees, they unwisely head to the unregulated sector.

In particular many individuals are purchasing products such as setting up a family trust. It can be that that thuis may work but it is worth reflecting that this can be considered a deliberate deprivation of assets by the local authority.

The things people will do to protect the inheritance for their children.

Thursday September 25, 2014 at 8:00am

There has been a recent article in the Lawyer Magazine by Sir Nigel Knowles who is the Chief Executive of DLA Piper which highlights that the legal market is going to hit a crisis. 

As Sir Nigel writes "The recent run of good economic data and increased deal activity should not fool anyone into thinking that the good times have returned for legal businesses. Law firms that believe recovering economic conditions, increased corporate activity and better markets will come to their rescue are deluding themselves. Reform is not brought about by an economic downturn, but rather is based on commercial imperatives. "

Quite so.

There are a number of reasons why this is taking place: Rise in client expectations, economic recession and the fact there are too many lawyers

And the solutions for law firms are to either develop a global presence or to become niche.

In the meantime what you will see is many law firms merging, folding but not addressing the fundamental reason why their days are numbered namely that we live in a different world.

Frankly, I see the solution as not only heading to niche areas, but focusing on growing areas of law which involve complexity. 

Thursday August 28, 2014 at 12:35pm
The recent report of the Rotherham Child scandal has not only uncovered failings with the police and child services but also exposed defects in legislation drafted by the Coalition government.

The Prime Minister, the Home Secretary, the Deputy Prime Minister and others may be calling for a certain Shaun Wright to resign/consider his position from his £85,000 per annum as Police and Crime Commissioner(PCC) but there is little they can do.

Under the legislation that created the roles in 2012, a PCC can only be suspended if:

(a) the commissioner has been charged in the United Kingdom, the Channel Islands or the Isle of Man with an offence, and

(b) the offence is one which carries a maximum term of imprisonment exceeding two years

Did they think the legislation through when it was drafted?

We are left to a Labour MP John Mann who has written a letter to the Home Secretary Theresa May calling for multiple misconduct charges to be brought against those responsible.

He said: to the BBC "Having looked at the misconduct law it clearly can apply in situations like this and the severity of the issue makes a misconduct in public office charge appropriate for those who sat on reports in the council and in the South Yorkshire police. Multiple charges need to be considered.
 
"As Shaun Wright is one who needs investigating I will be asking the Home Secretary to use another police force to investigate."

Nice try but I would imagine it would be very difficult to prove criminal charges against Mr Wright and politicians do not have exactly the greatest record in conducting legal cases.

Just ask Shadow Chancellor, Ed Balls in connection with the dismissal of Haringey Head of Child Services, Sharon Shoesmith. Here the employee could (theoretically be sacked) but this was messed up with severe financial consequences for the taxpayer.
Tuesday August 12, 2014 at 1:41pm

So, the government has made the commitment that from the age of 10, children and young people involved in all family court hearings in England and Wales will have access to judges to make their views and feelings known.

The announcement was made following calls from young peoples representative group, the Family Justice Young People’s Board, that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them.

This is clearly to be welcomed and good luck to the government will also work with mediator sector so that children have appropriate access to mediators in cases which affect them.

The age of 10 has been used to be consistent with other existing policy and practice in this country. It is the age of criminal responsibility for young people in England and Wales.

Children are already having to go through a lot as they negotiate their parents divorce and if a Judge can get involved (sooner rather than later) it may not only help the child but may encourage parents to act with more sense.

Monday August 4, 2014 at 4:18pm
Dealing with probate it  is interesting to note that according to the High Court, claims for mishandling a deceased’s estate have more than tripled over the last year.

The data shows there were 368 claims lodged for breach of fiduciary duty in 2013, up from 107 on the previous 12 months.

The claims range from theft of assets by the executor to fraudulent distribution of assets to favour certain beneficiaries of the will above others.

The Law Society Gazette refer to Matthew Evans, a partner in the Cardiff office of Hugh James, who believes that this is due to the rise to the increased use of acquaintances or family members as DIY executors and trustees, rather than instructing solicitors.

Matthew Evans is probably right.

People want to save costs.

Many people are still scared of lawyer's fees and some people are still intimidated by seeing a lawyer.

They try to use family members or sometimes they use unregulated will writers who can charge more than lawyers, which rather defeats the point.

DIY lawyers do not just have problems with say irate beneficiaries instructing lawyers to sue them.

There are other potential threats and this focuses on tax.

Earlier this year it was reported that the HMRC has seen a 23pc rise in the amount raised by challenging estates over inheritance tax. The take from death duty has been climbing steadily in recent years. In the last full tax year, ending April 2013, £3.1bn was collected, up from £2.9bn the year before. But research had shown that an increasing slice of that total derives from challenges made by HMRC over the correct valuation of estates.

It found HMRC raised an extra £108m through these challenges in the in the year to April 2013, up from £88m in the previous tax year.

You can understand individuals wanting to save on lawyer fees; the problem is that many people do not know what they are getting themselves in for.
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