17 Jan

Legal Expenses Insurance

A lot of people have Legal Expenses Insurance as part of their home or car insurance. Sometimes it is automatically included as a feature of the policy. Sometimes it is an extra that has to be specifically selected. For certain types of legal problem it is always worth checking to see whether cover is in place.

The way to find out if you have cover is to check your insurance policy schedule and somewhere it will say “legal expenses insurance” or it might say “family legal protection”. It will then say “included” or “not included” as the case may be. Or it might say how much the premium is to indicate that you do have cover.

If you do have cover, then your insurance policy terms and conditions booklet (usually a glossy pamphlet) will tell you what types of dispute it covers and any conditions attached to it. Most Legal Expenses Insurance policies will cover personal injury claims and employment disputes. Some will also cover general contractual disputes.

The terms and conditions booklet will also tell you how to claim on the policy. There will be a telephone number and if you phone it they will refer you to one their “panel solicitors”. In our experience, the panel solicitor is rarely local and so the client does not get to meet their solicitor in person. In order to get on the panel in the first place, the solicitor has probably paid a referral fee (in the case of personal injury claims) or agreed much lower rates than usual (in other cases). The solicitor is then forced to keep their costs down and they often achieve this by using paralegals to do the work.

The good news is that you do not have to use the solicitor nominated by your Legal Expenses Insurer. You are free to choose your own solicitor however they will not tell you this. If we agree to take your case on, and if you have legal expenses insurance, we will contact your legal expenses insurer for you and ask them to pay our fees.

So in the first instance, we would encourage you to speak with us first about your legal issue and we will check to see if you have legal expenses insurance to pay our fees.

Hastings & Co Solicitors specialise in personal injury claims and employment law. Telephone 01245 835 305 for further advice or assistance.

Disclaimer: this blog is only intended to give a brief overview of the law and is not a substitute for independent legal advice.

14 Jan

Cohabitation and the Trusts of Land and Appointment of Trustees Act 1996

The Trusts of Land and Appointment of Trustees Act 1996 is an important piece of legislation for unmarried couples and other people who jointly own property together or who live together. This includes for example gay couples that have not entered into a civil partnership and relatives that live together, for example, siblings living together and children  living with their parents.

Where the property is held in joint names the law presumes that it is held equally (i.e. 50/50 where there are 2 owners).

Sometimes, for whatever reason, the property is held in one person’s name only. However, it is possible for someone else to also have an interest in the property.

Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 gives the courts power to determine who owns a property and what shares they have. It also gives them the power to make an order for sale of the property. These are often referred to by lawyers as TOLATA claims.

It was my experience after the last recession, that couples would often do nothing after separating especially if there was little or no equity in the jointly held property. However, as property prices increased it  became worthwhile to make a TOLATA claim. A lot of property owners became very disappointed to learn that their ex-partners still had an interest in their property and that because the property had increased in value it would now cost a lot more to buy them out. This was often many years after their ex-partner had left the property. Unmarried couples splitting up should get advice early on. 

It is adviseable for anyone thinking of making an application, or faced with an application, to get advice from a solicitor. Liam Hastings specialises in TOLATA claims and litigation generally. Please telephone 01245 835 305 for advice.

Disclaimer: this blog is intended to give a brief overview of the law and is not intended as a substitute for independent legal advice.

07 Jan

Employment contracts checklist

Strictly speaking employers are not required to give their employees written employment contracts however they are required to give each employee a written statement of particulars of certain important terms within 2 months of the employee commencing employment (section 1 of the Employment Rights Act 1996).

The written statement should contain the following information:-

  1. The names of the employer and employee.
  2. The date when the employment began.
  3. The date when the employee’s period of continuous employment began.
  4. The scale or rate of remuneration or the method of calculating remuneration.
  5. The intervals at which remuneration is paid (eg weekly, monthly or other specified intervals).
  6. Any terms and conditions relating to hours of work.
  7. Any terms and conditions relating to (a) holiday entitlement (including bank holidays), (b) sickness and sick pay and (c) pensions and pension schemes.
  8. The length of notice required by the employer and the employee to terminate the contract of employment.
  9. Job title or brief job description.
  10. Where the employment is not intended to be permanent, the period for which it is expected to continue.
  11. The place of work or, where the employee is required or permitted to work at different places an indication of that and the employer’s address.
  12. Any collective agreements which directly affect the terms and conditions of the employment.
  13. Where the employee is required to work outside the UK certain further particulars.

What happens if I do not give my employee written particulars or an employment contract? This is not a standalone right so that the employee cannot bring a claim simply for not having written terms. However, if the employee brings another type of claim, the employee can also claim compensation for not having written particulars of between 2 and 4 weeks pay. More importantly however a well drafted employment contract will contain a number of important terms which are there for the benefit of the employer. It is therefore in the employer’s best interests to ensure that all employees have written employment contracts. Employers should consider including the following clauses in their contracts (in addition to the clauses mentioned above):-

  • Restrictive covenants. This is a must for sales staff and other key staff to reduce the risk of employees leaving and poaching customers or staff or setting up in competition.
  • A clause entitling the employer to put the employee on garden leave during their notice period.
  • A clause entitling the employer to make a payment in lieu of notice.
  • A mobility clause entitling the employer to move the employee’s place of work.
  • A clause reserving the right to make deductions from wages.

It is also advisable to have a handbook containing various policies and procedures. The handbook will often contain the following types of policies and procedures:-

  • Disciplinary and grievance procedures.
  • Detailed sickness policy.
  • An internet / IT policy.
  • A car policy.
  • An expenses policy.
  • An equal opportunities policy.
  • A retirement policy.
  • A harassment policy.
  • Health and safety policy.
  • Maternity/adoption/paternity/parental leave policy.

The employer should think about what rules and procedures they want in place whether it be a provision in the employment contract or a separate policy.

As dispute lawyers we are mindful that a significant number of disputes (and not just employment disputes) are caused by uncertainty. Parties enter into relationships and the expectations are unclear. If the parties at the beginning set out what they expect from each other they are less likely to fall out at a later date.

Hastings and Co Solicitors specialise in all aspects of employment law. For further advice please telephone 01245 835 305 without any obligation.

Disclaimer: this blog is only intended to give a brief overview of the law and is not intended as a substitute for legal advice.

06 Jan

Commercial Agreements

These are some of the commercial agreements we’ve drafted recently for our clients:-

  • Terms and Conditions of sale for an ecommerce business.
  • Terms and Conditions for a clothing supplier.
  • Terms and Conditions for a telemarketing company.
  • Licence Agreement between a marketing company and a distributor.
  • Introducer’s Agreement for a company wishing to accept referrals from independent introducers.
  • Terms and Conditions for an estate planning company.
  • Terms and Conditions for a consultant.
  • Consultancy Agreement for company wishing to appoint self employed consultants.
  • Terms and Conditions for a social media company.
  • Deed of Dissolution for a partnership.

Hastings & Co Solicitors specialise in drafting different types of commercial agreements. Telephone 01245 835 305 without obligation to obtain a fixed quote.

03 Jan

Debt collection: Hastings & Co recover £20,000 for building subcontractor

We recently acted for a subcontractor that was owed in the region £20,000 by a major building contractor. There were various unpaid invoices going back 12-18 months.

Upon being instructed we immediately issued a claim in the County Court. We did not need to send a warning letter as the debtor had already had sufficient warning. Within 28 days our client was in receipt of a cheque that was sufficient to cover the full value of the debt. together with late payment interest at the rate of 8.5% per annum. In addition, we recovered the court fee and sufficient compensation pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 to cover our costs.

Hastings and Co Solicitors specialise in debt collection and litigation. Call 01245 835 305 for a consultation without any obligation.

02 Jan

Settlement Agreements

Until 29th July 2013 settlement agreements were known as compromise agreements, however, they are essentially the same thing with a new name.

A settlement agreement is a binding agreement between an employer and an employee. The employee usually agrees to accept a sum of money in return for agreeing not to bring certain claims against the employer in the Employment Tribunal or other courts. Essentially the employee is signing away his or her rights.

Sometimes an employer will ask an employee who is being made redundant to sign a settlement agreement. Whilst redundancy is potentially a fair reason for dismissal it can become an unfair dismissal if the employer does not follow the correct procedures. Some employers like the assurance of knowing that the employee will not be able to bring a claim for unfair dismissal, even if the claim has no merit. Other times, there is a difficult history between the employee and employer and hence an even greater reason for the employer to end the relationship on agreed terms.

One of the key features of a settlement agreement is that the employee must receive independent legal advice from a qualified adviser (usually a solicitor) before the settlement agreement is signed. The employer usually pays for the employee to be advised and usually the settlement agreement says how how much the employer is willing to contribute toward the cost.

Since the recession started I have advised more than a hundred employees in connection with their settlement agreements. I also act for employers and so have experience seeing it from both sides of the fence.

Liam Hastings specialises in employment law and civil litigation. For further information please telephone 01245 835 305 without any obligation.

Disclaimer: this is only a brief overview of the law and not intended as a substitute for legal advice.

02 Jan

Accident claims: what am I entitled to claim?

So you’ve had an accident and someone else was at fault. This blog looks at what you are entitled to claim when making an accident claim.

You are entitled to “General Damages” which is compensation for pain, suffering and loss of amenity. You are also entitled to “Special Damages” which are out of pocket expenses.

The starting point for calculating General Damages is the Judicial College “Guidelines for the Assessment  of General Damages in Personal Injury Cases” (commonly referred to by legal practitioners as the “JSB Guidelines”). These are guidelines set down by judges to help judges and other legal practitioners calculate how much personal injury claims are worth. The JSB Guidelines tend to be a bit broad (some might say vague) so we also rely on case law to see what judges awarded in similar cases.

Special Damages are any out of pocket expenses and can include things like loss of earnings, medical expenses, medical treatment, damage to property, travel expenses, the cost of adapting property, the cost of care etc.

If the injured person is put at a disadvantage on the labour market because of their injuries then they are entitled to a “Smith -v- Manchester award” (named after a famous case).

It’s the special damages which are nearly always the difference between a small or modest claim and a big claim. Take a random example for demonstration purposes. An office worker loses a foot in a car accident. However, the nature of his work means that he will be able to carry on with his career as he did before the accident. The JSB Guidelines give a tariff between £60,000 to £78,000 for General Damages (11th Edition). He returns to work and so the loss of earnings claim is modest. However, the same injury to a different person could have a very different outcome. Imagine that a young professional footballer loses a foot in a car accident. His General Damages are the same as our office worker. However, his loss of earnings could run into millions.

Hastings and Co Solicitors specialise in accident claims and are accredited members of the Law Society’s prestigious Personal Injury panel. Nearly all cases handled by Hastings and Co Solicitors are done so on a “no win, no fee” basis. For a free assessment of your accident claim please call 01245 835 305.

Disclaimer: this blog is only intended to give a brief overview of the law and is not a substitute for legal advice.

23 Dec

Why use a solicitor?

In this day and age solicitors are competing with other service providers, so we have to differentiate ourselves as a profession and explain why we should be preferred over other service providers. We can think of a number of reasons why you should use a solicitor:-

1. Professional Indemnity Insurance. Solicitors are required to have professional indemnity insurance so that if they make a mistake, the client is assured that the loss is underwritten by an insurer. In effect, our advice is insured.

2. Compensation Fund. Thankfully not many solicitors are dishonest however in cases where they are, there is a Compensation Fund which clients can call upon.

3. Knowledge and Expertise. The standard route to becoming a solicitor involves a minimum 4 years at University and then a minimum 2 years on the job training. Whilst at University the wannabe solicitor has to undertake a number of compulsory areas of law including contract and tort law, criminal law, property law, trust law and public law. If the wannabe solicitor studied law then he or she will have studied a number of other areas of law. As a Trainee Solicitor the wannabe solicitor is required to practice at least 3 areas of law one of which must be a contentious area of law and one which must be a non-contentious area of law. So the wannabe solicitor gains a good grounding in a number of different areas of law and gets a well rounded education. This comes in useful in practice where often areas of law will overlap.

4. Client Account. Solicitors are required to keep client monies in a client account separate from the solicitor’s own resources. Every year solicitors are required to have their accounts audited by Chartered Accountants to make sure they are adhering to the Solicitors Accounts Rules.

5. Professional rules. As solicitors we are bound by professional rules and ethics. These include for example (a) a duty to act in the best interest of our clients, (b) a duty not to allow our independence to be compromised, (c) a duty to act in a way that maintains the trust the public has in us, (d) to act with integrity…the list goes on (see the SRA Code of Conduct 2011).

6. Regulation. Solicitors are required to adhere to strict rules of conduct and they are watched over by the Solicitors Regulation Authority.

7. Redress. If you want to complain about a solicitor you can complain to the Solicitors Regulation Authority or the Legal Ombudsman.

So when you instruct a solicitor you know that you a getting all of the above. This is not always the case if for example you instruct a non-regulated will writer to write your will or you instruct a non-regulated employment adviser to advise you on an employment issue.

Hastings & Co Solicitors are a niche practice in Chelmsford, Essex specialising in debt collection, litigation, employment law, personal injury claims, landlord and tenant law and commercial law. For further advice please telephone 01245 835 305.

20 Dec

Debt collection: making a statutory demand

For a company or individual that is owed more than £750 a statutory demand can be a useful tool to put pressure on the debtor.

A statutory demand has to be made on the correct form and then served on the debtor. If the creditor wishes to rely on the statutory demand in a subsequent bankruptcy or winding up petition then the creditor will require proof that the statutory demand was served on the debtor.

Once served with a statutory demand the debtor has 18 days to either (a) settle the debt, or (b) reach an agreement with the creditor or (c) in the case of individuals apply to the court to dismiss the statutory demand (the rules are different for companies).

If the debtor still has not paid by 21 days then the creditor can apply to the court for a petition to wind up (in the case of a company) or make bankrupt (in the case of individual).

When is not appropriate to serve a statutory demand?

I acted for a homeowner recently in connection with a building dispute. The facts briefly are that my client had engaged a builder to carry out building works on his property. The builder then subcontracted some of the work to another building company. As you would expect my client paid the contract price to the main building contractor. Unfortunately, the main building contractor did not pay his subcontractor who was left out of pocket. Thinking that my client was a better prospect of getting paid that the main contractor the subcontractor demanded payment from my client. As you would expect, we pointed out to the subcontractor that he had no contractual relationship with my client and that his claim was against the main building contractor. Not satisfied with this the subcontractor served a statutory demand on my client. That proved very costly for the subcontractor as we applied to the court to have the statutory demand dismissed and the subcontractor ended up paying my client’s costs. The moral of the story there is that it is not appropriate to serve a statutory demand in circumstances where the debt is disputed.

Liam Hastings  specialises in debt collection and litigation. For further advice or assistance please telephone 01245 835 305.

Disclaimer: this blog only gives a brief overview of the law and is not intended as a substitute for legal advice.

17 Dec

What is civil litigation?

Civil litigation is the process of resolving disputes through the civil courts.

Historically, your typical high street firm of solicitors had a criminal law department for clients in trouble with the law, a family department dealing with divorces and children issues and a civil litigation department dealing with other types of dispute.

What types of dispute are we talking about? It could involve private individuals or businesses and the subject could be about anything. We regularly deal with the following types of dispute:

  • businesses or private individuals which are owed money
  • personal injury claims
  • contractual disputes
  • probate disputes
  • disputes between landlords and tenants
  • disputes about land including rights of way and boundaries

The common theme for all of the above is that claims are usually brought in the County Court or High Court and are governed by the Civil Procedure Rules. The practice of civil litigation is reserved to solicitors so that only solicitors can undertake civil litigation on behalf of other people. In theory, you do not need to instruct a solicitor in order to bring or defend a claim in the civil courts as it is possible to act as a litigant in person. However, the court rules can be complicated and litigation is not for the faint hearted. Furthermore, if you get it wrong litigation can be very expensive and so unless you know what you are doing it is wise to get advice from a specialist.

Hastings & Co Solicitors are a niche solicitors practice in Chelmsford, Essex specialising in debt collection, employment law and civil litigation. For further advice or assistance please contact Liam Hastings on 01245 835 305.