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Monthly Archives: December 2011

Professional negligence and curbing wild optimism

By Professional Negligence Department | Published: Dec 31,2011

Sometimes it pays to look on the dark side. Although it befits no-one to be cynical, there is a growing suspicion among professional negligence lawyers that predictions of continued falls in the housing market may have more than a little to do with fears of negligence litigation.

Yes, when times get tough and disgruntled clients get litigious, the market does have a habit of coming over all doom and gloom.

It is a shame, really, that surveyors and valuers so often seem to be afflicted by a kind of reactive bi-polar disorder: one moment things are amazingly bright and sunny and the next there is a looming mass of dark and louring clouds, sometimes if only because the grandiose predictions of halcyon days have resulted in an over-compensatory caution.

These thoughts come after hearing that house prices will fall by an average of 3% next year – well, according to the Royal Institution of Chartered Surveyors (RICS).

Whether this prediction is due to significant growth in investors and private buyers instructing professional negligence lawyers to claim compensation for negligent valuations, or a more sober, realistic climate, is hard to tell.

Furthermore, with the law regarding negligence claims against surveyors and valuers continuing to evolve, it is an interesting time for negligence lawyers.

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Family law review 2011

By Family Department | Published: Dec 28,2011

As we march headlong into 2012, it’s time to take a quick look back at some of the family law news stories and legal happenings which caught the eyes of Healys’ family law solicitors in Brighton during 2011.

  • On 6 April 2011, the new Family Procedure Rules came into effect providing a much-needed single set of guidelines and rules for family proceedings.

  • In January 2011, we reported on the Law Commission’s consultation on pre-nuptial, post-nuptial and marital property agreements which was welcomed by family law practitioners, especially in light of the Radmacher v Granatino ruling, which had left practitioners unclear on the enforceability of such agreements. A report on the consultation is now pending.

  • Following the publication of the Family Justice Review in November many family lawyers nationwide felt that the review merely served to reiterate the profession’s calls for legal reform and that the recommendations made, although worthy, were in danger of being supplanted by the negative impact of legal aid reforms.

  • And finally, also in November, the ruling made in the Supreme Court in the matter of Jones v Kernott gave welcome clarification on financial settlement and property claims for cohabitees, with the importance of express or inferred intentions, relating to the sharing of property, brought sharply into focus.

So, there you have it, a little snippet of what went on in the world of family law 2011. For more reports, opinion and discussion, why not look back through the Explaw archives yourself. We look at many topics including divorce, financial settlements, legal rulings and any legal news which may affect our clients.

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Professional negligence claims and complaining over Christmas

By Professional Negligence Department | Published: Dec 22,2011

No person wants to become embroiled in a professional negligence claim during a time that should be all about seasonal goodwill. However, life must go on, and for many across the UK, calling a professional negligence solicitor to commence litigation may be an unavoidable reality at some period over the festive season.

For information about how to do this with Healys LLP, click here .

However, it is also true that negligence can some times be followed by recognition, acceptance, contrition and goodwill, and under these circumstances it may not be necessary for the person who has suffered to proceed with a professional negligence claim – provided, of course, that they are given every indication that they will receive suitable redress for their inconvenience and financial loss.

One of the best ways to ensure that this happens without recourse to professional regulatory bodies or the civil courts is to write a letter of complaint. A good letter of complaint is something of an art form and getting the tone, structure and content right can be helped by the assistance of good firm of negligence lawyers.

By way of advice, if you’re looking to write a complaint letter yourself, make sure it’s prompt, but not too hasty – simple and concise but well-researched and thorough – polite but assertive and to-the-point – above all, stay calm and be clear!

Good luck, let’s hope you avoid the need to make a professional negligence claim this Christmas!

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Law Commission proposals for reform of laws on intestacy published

By Professional Negligence Department | Published: Dec 20,2011

The Chair of Resolution, David Allison, has welcomed the recently published Law Commission recommendations regarding reform of the laws on intestacy and family provision on death, and particularly the proposals that cohabitants’ rights should be brought more in line with married and civil partnered couples.

Published on the 14th December, family law solicitors in Brighton and throughout the UK have been examining the Commission’s two draft Bills – the draft Inheritance and Trustees’ Powers Bill and the draft Inheritance (Cohabitants) Bill.

The latter Bill would see certain cohabiting couples who have lived together for five years given the right to inherit if their partner dies intestate. Further, if the couple has a child, the entitlement would commence after two years of living together, providing the child was living in the same home as the couple at the time of a partner’s death.

The rules on intestacy would be simplified for married and civil-partnered couples including an assurance that assets would pass automatically to a spouse where there were no children or descendants and, where there were children or dependants, the rules on asset sharing on intestacy would be demystified

In response to the publication of the draft Bills David Allison said, “The death of a partner is a painful enough experience, without becoming embroiled in disagreements about financial settlements during a time which should be spent mourning the loss of a loved one.

“We believe this news will come as a relief to the more than two million couples that currently live together, and we would urge the government to take this recommendation forward.

“There is a popular myth that the “common-law” spouse is afforded legal rights – this simply isn’t the case. This doesn’t mean cohabitants would have equal rights to married couples, but it does reflect the way that many people are choosing to live their lives, and it is important that the law recognises this.”

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False village green claims are costing councils millions of pounds

By Residential Department | Published: Dec 19,2011

A report has revealed campaigners’ false claims that pieces of land are village greens are preventing new affordable housing from being built. The Local Government Association (LGA) has stated that planning rules are being exploited.

Village greens and pieces of community land can be protected if it can be proved that the land has been used for sports or recreational purposes for more than 20 years. However, according to reports, planning applications which claim that car parks and beach huts, for example, are village greens are costing councils millions of pounds.

Although councils consider it important to protect genuine village greens, large numbers of applications are allegedly being used by environmental campaigners to delay the construction of affordable housing.

David Parsons, chairman of the LGA’s Environment and Housing Board, said, “Councils are keen to protect genuine village greens and community land in their neighbourhoods. However, the idea that a beach hut or car park constitutes a village green is clearly ridiculous.

He added, “Unfortunately, millions of pounds of taxpayers’ money is currently being spent by councils processing ‘village green’ applications whose primary aim is to prevent development.

“Councils are ready to transform and regenerate local areas, but these long delays are preventing job growth and new affordable housing in our local communities.”

These delays in the construction of affordable housing caused by campaigners may be preventing many people from seeking advice from house purchase solicitors in London and throughout the UK because they may not be able to afford to commence the residential conveyancing process.

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Av L – the financial claim of a couple with modest means

By Family Department | Published: Dec 14,2011

Family Law Week has reported on the decision by Moor J in the case of a financial remedy claim between a divorcing couple whose assets were described as “relatively modest”.

The case, A v L, has been reported for its “uncommon example” of a judgment on a case heard by the High Court involving a “middle income” dispute.

The claim, originally heard at county court, was described by Moor J as “difficult for the District Judge” as well as himself.

He said in his judgment, “There is simply insufficient capital and income available to cater for the needs of both parties. The court has to be fair to both parties but, in one sense, the only way to do that is to balance the unfairness.”

The case of A v L is possibly representative of the majority of cases handled by family law lawyers and, being that it has been heard in the High Court, the ruling may well provide useful guidance for practitioners advising clients on possible resolution of such problematic divorce financial claim disputes.

On ordering a clean-break settlement, Judge Moor finalised his ruling by saying, “I have made it very clear from the outset that this was a very difficult case because no outcome is in the least bit satisfactory. It will not be easy for either party. I am, however, satisfied that the order I make is as fair as it can be and is justified on the facts of this case taking into account fully section 25 of the MCA 1973.”
To find out more about how Healys’ family law lawyers in Brighton could help you through a disputed financial remedy claim, please click here.

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Negligence claim illustrates truths

By Professional Negligence Department | Published: Dec 14,2011

For the most part, the vast majority of legal firm clients receive, if not a first-rate, at least a reasonable standard of advice and representation – as such those who pursue negligence claims against solicitors should always carefully consider the merit of their case before proceeding.

This fact was well illustrated recently by the failed claim of a woman banker who alleged that a leading legal firm had negligently mismanaged her sex-discrimination claim.

According to the claimant she had sought advice from the firm after having her bonus reduced from £800,000 to a relatively meagre £36,000.

“She had been paid less than men in a comparable position to her own. She also referred to the sex discriminatory environment in which she had been working,” outlined her professional negligence lawyer.

The legal team alleged that the defendant had told the claimant that she should “start crying” in front of her boss in order to boost her bid for damages.

However, the High Court heard that the negligence claim against the solicitors firm was “completely unfounded”. Astonishingly, it was also heard that the firm had never been ”retained to advise on a potential claim for sex discrimination” – furthermore, it was heard that the firm had never even been instructed to act on any such claim relating to the alleged sexual discrimination suffered by the woman banker.

It certainly makes for a confusing claim and is one from which the claimant emerges with little credit – in judgement she is described, variously, as “wholly unconvincing” and being “prepared to give a false impression”.

A reminder, if any were needed, of how a negligence claim against a solicitors firm should only ever be taken once a claimant has carefully considered all aspects of the alleged grievance.
For more information about our services, click through to our Pre-Action Protocol page.

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RICS launches three-month claims consultation

By Professional Negligence Department | Published: Dec 9,2011

Following on from last week’s post which concerned professional negligence claims against valuers and surveyors, this week’s blog is concerned with the effects these claims are having on the indemnity insurance market for chartered surveyors and valuation professionals.

This week the Royal Institution of Chartered Surveyors RICS revealed that many firms are now struggling with the cost of Professional Indemnity Insurance (PII), as a result, it says, of a rise in the numbers of professional negligence claims against valuers and surveyors.

In light of this, the institution has opened a three-month consultation on the issue and is asking for stakeholders to put forward their thoughts on the matter and how rising rates and market dysfunction might be addressed.

Once this consultation period has expired, RICS hopes to then present a number of proposals to the Government, as well as lenders and the insurance industry.

Much as the Solicitors Regulation Authority has recently looked at ways of addressing indemnity insurance issues for law firms and reformed the Assigned Risks Pool, RICS will look at alternative ways of addressing professional negligence claims against valuers and surveyors.

For help and guidance from Healys’ professional negligence solicitors please click here.

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Legal aid reform delays welcomed

By Family Department | Published: Dec 6,2011

As Supreme Court judge Lord Wilson and president of the family division Sir Nicholas Wall added their public voices to the many family law solicitors and welfare organisation representatives who have condemned the Government’s plan to cut the legal aid budget, Kenneth Clarke has unexpectedly announced that there will be a six-month delay before implementation of the civil justice reforms and a further delay for criminal legal aid changes.

Previously, the deadline for the reforms to be initiated was October 2012, but Kenneth Clarke told the House of Commons, in a written ministerial statement, “We intend, subject to parliamentary approval of the Legal Aid, Sentencing and Punishment of Offenders Bill, to implement all of the legal aid reforms in April 2013. This will include the abolition of the Legal Services Commission under the bill and the creation of the new agency in its place.”

A Ministry of Justice spokesperson, commenting on the delays, said, “New contracts to provide civil and family advice will be offered to lawyers in April 2013, which will give them sufficient time to consider the final details of the new legal aid scheme which Parliament is expected to agree in spring 2012.”

As Lord Wilson and Sir Nicholas Wall branded the legal aid reform proposals as a false economy and an impediment to swift justice, the Chairman of the Bar Council, Peter Lodder QC, said that he hoped the delays for civil legal aid cuts and the criminal justice legal aid reforms would be an “opportunity for the government to reflect further on the wisdom of what is proposed in the light of all the representations which have been made to both houses of parliament and the views of parliamentarians themselves”.

Divorce lawyers and family law solicitors will now have to wait to see whether this apparent change of pace in the reform programme will actually signal a U-turn in the Governments direction on legal aid reform.

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Buy-to-let investors make negligence claims against surveyors

By Professional Negligence Department | Published: Dec 1,2011

Negligence claims against surveyors have risen dramatically in some parts of the country, according to some professional negligence lawyers.

For example, there is evidence that such claims are up by around 20% in the Sheffield area.

However, as has been noted in earlier posts on these pages, a rise in negligence claims related to property purchases should hardly come as a surprise. After all, with so many areas of the UK experiencing a dip in the housing market, with many properties down in value by 20-30%, it would make sense that property investors who have fallen foul of bad advice should look to claim something back.

Things may look good in places like London, where property prices seem to be on an ever upwards trajectory, but even a desirable city like Brighton has seen prices fall by around 15-20% in some parts.

Understandably, the largest source of negligence claims against surveyor work is coming from those buy-to-let investors who have found that their nest eggs have gone rotten.

“The increase in buy-to-let property investment ahead of the credit crunch has been well-documented,” said one professional negligence lawyer from the city.

“Many of these landlords have since struggled to find tenants due to an over supply in some cities, and this in turn has forced many to sell in order to avoid defaulting on their mortgage.

“Landlords rely on surveyors to provide an accurate valuation of the property as well as the likely rental income that will be achieved. It appears, however, that an increasing number are alleging significant discrepancies between the true market value and the figures provided in surveyor reports.”

This can indeed be a distressing scenario. However, it is not one that always makes the possibility of a successful negligence claim straightforward, as claimants must prove, among other things, that the negligent surveyor owed a duty of care when proffering figures and values.
For more information about how Healys’ professional negligence solicitors can help you make a claim against a surveyor click here.

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