Articles for January
Stories included
- Bank ordered to install a lift for disabled customer
- Distributor must pay £125,000 damages for breach of contract
- Consultation begins on amendments to Companies Act measures
- Tenant wins professional negligence claim against surveyor
- Late payments still a major headache despite slight improvement
-
- Grandmother wins legal battle over the care of her grandson
- Home loans at highest level for nearly two years
- Council workers win age discrimination appeal
- New Act will modernise rules relating to trusts
- Carer inherits MS sufferer’s estate despite challenge from his son
Bank ordered to install a lift for disabled customer
The Royal Bank of Scotland has lost its appeal against an injunction ordering it to install a lift for a disabled customer at one of its branches.
The branch is a listed building and the cost of the alterations could be in the region of £200,000.
The case was brought by teenager David Allen who suffers from muscular dystrophy. He asked the bank to install the lift at a branch in Sheffield so he could access the premises in the same way as other customers.
The bank declined and invited Mr Allen to visit three other branches or use its services by other means such as the internet.
Sheffield County Court ruled that the bank had breached the Disability Discrimination Act and ordered it to install a lift. The court also awarded Mr Allen £6,500 compensation.
That decision has now been upheld by the Court of Appeal.
Giving the lead judgment, Lord Justice Dyson said: ““The public at large have physical access to banks in order to make use of traditional counter banking services and the bank’s non-disabled customers have physical access to all of its branches, including the main branch.
“The judge was entitled to conclude that the provision of the alternative methods of making those banking services available that were relied on by the bank was not a reasonable alternative, unless there was no reasonable way of affording Mr Allen physical access to the main branch.”
The Disability Discrimination Act 1995 requires businesses to make “reasonable adjustments” to enable customers to use their services. This case shows that the courts are prepared in some circumstances to interpret “reasonable adjustments” to mean that substantial and costly alterations should be carried out.
Please contact us if you would like more information.
Distributor must pay £125,000 damages for breach of contract
A distributor has been ordered to pay a manufacturing company £125,000 compensation after failing to promote its products in the way that had been agreed by contract.
The manufacturer made cladding panels for use in the construction industry. It entered into an agreement in 1999 with another company and its subsidiary which were given exclusive rights to distribute its products in the UK.
The agreement was to run for 20 years but in 2005 the manufacturer terminated the contract on the basis that the distributors had not used all reasonable endeavours to promote and sell the products in the agreed territory.
The distributors made a claim for compensation saying the early termination was in breach of contract and caused them to suffer losses. The manufacturer counter-claimed for damages on the basis that the distributors had not marketed its products properly.
The High Court held that, looked at overall, the evidence clearly showed that the distributors had failed to use all reasonable endeavours in marketing the products as required by the contract. Nor had they rectified this breach during the 30-day period allowed after the service of the default notice.
The manufacturer was therefore entitled to terminate the contract. It was also entitled to receive £125,000 compensation.
Consultation begins on amendments to Companies Act measures
The latest raft of Companies Act measures only came into effect on 1st October but already there are moves to make some amendments.
One issue to have emerged relates to registered office addresses. The Department for Business, Innovation and Skills (BIS) says there is evidence that some companies are using the addresses of other businesses or private individuals with whom they have no connection. This can be very distressing for those affected.
BIS has now begun a consultation seeking views on how to change the law to reduce the risk of innocent parties having their addresses used in this way. It is also looking at ways to allow companies to challenge information on the register.
The Act’s requirements relating to “statements of capital” have also caused concern. The statements are a snapshot of share capital and must be produced at various stages of a company’s life cycle, including each year in its annual return.
BIS says it has become clear that it could be difficult for some companies to comply with the requirement for certain financial information. It acknowledges that “in certain circumstances, it may not be possible or meaningful for a company to identify the amount of premium paid up on each share”.
It is now looking at ways to amend the requirements in a way that will “balance the interest of third parties in obtaining information with the cost to the company of supplying it”.
We shall keep clients informed of developments.
Tenant wins professional negligence claim against surveyor
A tenant has succeeded in a professional negligence claim against a surveyor even though the surveyor had told her he would no longer be able to act for her unless she paid his fee.
The tenant had retained the surveyor to act for her as she attempted to acquire an extended lease. The surveyor then served notice to the landlord of her intention on 8th May 2000. The landlord agreed all the terms except for the level of premium to be paid.
This meant an application would have to be made to the Leasehold Valuation Tribunal for it to determine the level. This application had to be made by 8th November 2000 or the notice relating to the lease would be deemed to have been withdrawn.
However, on 1st August, the surveyor wrote to the tenant saying that he would be unable to continue acting for her unless she paid his invoice. Following that, no application was made to the tribunal by 8th November so the notice was considered to have been withdrawn.
The tenant brought a claim for professional negligence saying that the retainer had continued past the deadline and so the surveyor should have warned her of the need to make the application. He argued that he had terminated the retainer in August.
The Court of Appeal has now ruled in the tenant’s favour. It held that the letter about the invoice in August did not terminate the retainer agreement and it was still in place on 8th November. The surveyor should therefore have warned her of the impending deadline and he had been negligent in failing to do so.
Late payments still a major headache despite slight improvement
Late payments are still causing a major headache for many businesses despite new research showing there’s been a slight improvement in the time firms take to settle invoices.
Experian’s Late Payment Index shows that, on average, UK businesses were paying their bills 21.54 days beyond terms in September compared with 23.6 days in August – an improvement of 2.06 days.
Larger businesses employing more than 501 employees produced the biggest monthly improvement, down 13.5% to 24.63 days beyond terms. This still leaves them a long way behind the September 2008 level of 15.44 days.
Businesses employing 26 and 50 employees also made improvements and are now paying 18.52 days late.
The improvements are certainly welcome but have to be put in the context that we were starting from a very low base and the late payment problem is still far worse than it was only a year ago.
It continues to remain a major problem for many businesses, despite the slight improvements of a day or two here and there. A recent survey carried out by the Forum of Private Business found that late payments continue to cause small businesses the most headaches, even more so than lack of sales and the decline in bank lending.
Businesses still need to keep a close watch on cash flow and late payments and take action to protect themselves as quickly as possible.
Please contact us if you would like more information about recovering debts and ensuring prompt payment.
Grandmother wins legal battle over the care of her grandson
A grandmother has won a legal battle to ensure that her four-year-old grandson lives with her rather than with his father.
In reaching its decision, the Supreme Court ruled that a child’s welfare must take precedence over the interests of the biological parents.
The boy’s parents had separated before he was born and he had lived all his life with his grandmother. His mother had left the grandmother’s home shortly after the birth.
The grandmother was granted a residence order in 2006. Two years later, the father applied for a residence order which was eventually granted by the High Court. The judge referred to earlier landmark cases which had established that in the “ordinary way” it would be in a child’s best interest to be reared by his parents.
The judge then ruled that the level of care the father could provide was good enough and so it did not matter whether or not the grandmother could provide something better. That decision was later upheld by the Court of Appeal.
However, the Supreme Court has now ruled in favour of the grandmother. It held that while in the “ordinary way” children tended to thrive best with their parents, many residence and contact disputes did not follow the ordinary way. This was such a case.
In giving the court’s ruling, Lord Kerr said: “The court’s quest is to determine what is in the best interests of the child, not what might constitute a second best but supposedly adequate alternative.
“He has lived virtually all of his young life with his grandmother. He has naturally formed a strong bond with her. There is reason to apprehend that, if that bond is broken, his current stability will be threatened.”
Each case must be taken on its individual merits, of course, but this ruling will help to strengthen claims by grandparents to care for their grandchildren in certain circumstances.
Please contact us if you would like more information about this or any aspect of family law.
Home loans at highest level for nearly two years
The number of home loans being granted is at its highest level for nearly two years, according to the Council of Mortgage Lenders (CML).
The CML says there were 55,000 loans granted for house purchase in October – that’s an increase of 43% on October 2008 and the highest level since December 2007.
Separate figures issued by the Halifax show that house prices rose by 4.2% between January and November last year.
The figures show growing confidence in the housing market although there is a still some way to go before we see the levels of a few years ago.
One negative development could be the ending of the Stamp Duty holiday. In 2008, the Government increased the threshold at which the duty becomes payable from £125,000 to £175,000. That threshold reverted back to £125,000 on 1st January.
A survey by the Royal Institution of Chartered Surveyors suggests that most of its members believe the lower threshold will have little impact, although, of course, that remains to be seen.
Whatever happens, the market is likely to remain highly competitive and sellers will need to ensure they have all the correct procedures in place to market their property.
For example, they must provide a Home Information Pack (HIP) for potential buyers as soon as a property is put on the market. The HIP must have an index and include various documents such as an Energy Performance Certificate - which grades the property’s energy efficiency - the terms of sale, proof of title and boundaries from the Land Registry, and the results of local searches.
Sellers must also include a Property Information Questionnaire covering areas such as the property’s service charges, flood risk information, structural damage, gas and electricity safety and parking arrangements.
Please contact us if you would like more information about HIPs or any aspect of buying and selling a property.
Council workers win age discrimination appeal
Sixteen council employees who lost out on continuous service awards because they were too young when the scheme closed have won the right to bring age discrimination claims.
The 16 were all employed by the London Borough of Barking and Dagenham. The authority ran a scheme which rewarded staff with incremental payments if they had given 25 years service and were over the age of 55. The scheme was withdrawn on 1st April 2007.
Employees who were already receiving the increments were allowed to keep them as a form of pay protection. Employees under the age of 55 before the scheme closed failed to qualify.
The 16 employees who missed out said this breached age discrimination regulations which came into force six months earlier on 1st October 2006. The employment tribunal ruled against them but that decision has now been overturned by the Employment Appeal Tribunal.
It held that the 16 employees had been discriminated against and sent the case back for a revised hearing before a different tribunal.
New Act will modernise rules relating to trusts
A new Act to update the law relating to trusts has received the Royal Assent and is due to come into effect this year.
The Perpetuities and Accumulations Act 2009 will modernise the rules which restrict how long an owner can control the future ownership of property (perpetuities) and how long trustees can add income to capital (accumulations).
The Act is based on recommendations put forward by the Law Commission in a report published in 1998. The Commission was concerned that the rules on both perpetuities and accumulations had become outdated and confusing. For example, there were different methods for calculating the perpetuity periods. These included using “lives in being” under common law and periods of up to 80 years under legislation passed in 1964.
The Commission also believed there was no good reason for restricting a settler’s ability to direct or allow for the accumulation of income. However, it said there should be a different approach to charitable trusts to ensure that income would at some point be spent for the public benefit rather than be allowed to accumulate indefinitely.
The new Act addresses both these issues. It removes restrictions on accumulations except for charities, which will be subject to a 21-year limit or the life of the settlor. It also simplifies the rules relating to perpetuities by introducing a single 125-year period.
The changes will not affect pre-existing trusts or wills. However, if the trustees of an existing trust that uses lives in being to determine the perpetuity period are unsure whether the period has ended, they may be able to opt in to the provisions of the Act.
The Act has clarified certain matters but the rules relating to trusts remains complex and legal advice should always be sought before making any important decisions. Please contact us if you would like more information.
Carer inherits MS sufferer’s estate despite challenge from his son
A carer who looked after a man with multiple sclerosis has inherited his estate despite a challenge to the will from his son.
The man had suffered from the illness for many years and towards the end of his life he needed constant care. Following his divorce, he developed a very close relationship with his carer.
He then instructed a solicitor to draw up a new will leaving his estate to her.
After his death, his son challenged the will saying that his father had lacked testamentary capacity at the time he made it – that is, he had lacked the mental capacity to understand what he was doing and to confirm that the will expressed his true wishes.
The son said there had been no estrangement between him and his father and so it was irrational that he should inherit nothing.
However, the court ruled that the will should stand. The judge said that the relationship between the man and his carer was very close. It was similar to that between a husband and wife so it was not irrational that he should want to provide for her after his death. The evidence relating to the man’s physical and mental health did not support the son’s claim that he lacked testamentary capacity.
His solicitor had explained the terms of the will to him and he must have known and approved of its contents. His only substantial possession was his bungalow and there was nothing irrational about leaving it to his carer given the closeness of their relationship.
Please contact us if you would like more information about wills and probate.
Links to useful organisations
|
Back to legal articles