Member Blog

The 10th of October 2017 is World Mental Health Day, a time to promote good mental health for all and reduce the stigma associated with mental health conditions. The focus this year is on managing mental health in the workplace. 

Mental Health conditions affects 1 in 6 adults in the workplace

Mental health is everyone’s business. 1 in 4 adults will be currently experiencing a common mental health condition. 1 in 6 of us will be experiencing this in the workplace. Whether we feel comfortable talking about it or not, stress, anxiety and depression is something that none of us are immune to, so let’s start to talk about it. 

The cost of poor mental health to individuals and businesses is substantial. Mental illness affects people’s lives. It can interfere with our ability to maintain good relationships, carry out normal day to day tasks and affects our performance at work and our overall enjoyment in life. 

Mental Health in the UK and the cost to business 

The OECD estimates the cost of mental health to the UK economy to be £70 billion per year, equating to 4.5% of GDP. Mental ill health, alongside muscular skeletal problems are the leading causes of sickness absence in the UK and mental illness is on the increase. 15.2 million days of sickness absence in 2013 were caused by everyday conditions such as stress anxiety or depression – a dramatic increase from 11.8 million days in 2010. Mental ill health costs on average £1035 per employee, costing UK employers £26 billion each year (OECD, 2014). Presenteeism (the practice of being at work despite illness, injury, anxiety often resulting in reduced productivity) from mental ill health alone costs the UK economy £15.1 billion per year, almost twice the business cost of actual absence from work (Centre for Mental Health). One-quarter of employees have considered resigning due to stress and a further one in ten has done so (Mind, 2015).

The statistics are pretty compelling, but the majority of businesses do not focus on managing mental health in the workplace or see it as a business priority. Why is this?  There will be many reasons for this, such as perceived time and cost pressures, although perhaps this could be challenged in view of the cost of absenteeism and presenteeism. A significant factor in reality is likely to be fear and stigma associated with mental health issues. In a survey carried out by MIND (2014) 69% of individuals feel there is a stigma around mental health and 54% fear colleagues would judge them for having mental ill health. 

Looking after your business assets – your employees 

We have a long way to go to break down the stigma associated with mental health and employers can play a vital role in this. Employees are often seen as the most vital asset within a business, therefore it makes sense to look after employees and by talking about and creating a working environment that supports good mental health employers can play a vital role in reducing discrimination and stigma associated with mental illness.

A useful starting point for businesses is to access good information.  Business in the Community (BITC) is a useful resource as well as Mind and the Mental Health Foundation. The BITC 2015 report, Mental Health: We’re Ready to Talk – One year on, shows the quick pace at which business Champion companies had started to promote mental wellbeing within their organisations. The Mental Health Foundations guide on Managing Mental Health in the Workplace is also a good read in my opinion and looks at strategies to safeguard good mental health, how to address problems before they become severe and how to support employees when issues do emerge. The guide recommends that companies seek the help of outside agencies who offer specialist support to employees who are struggling in or out of work due to poor mental health. 

Accessing specialist Mental Health services in Norfolk

At Feel Well Therapy we recognise that employers need to access specialist services that provide the right type of help for their employees.  We specialise in providing Cognitive Behavioural Therapy (CBT) which is recommended by NICE (National institute for Clinical Effectiveness) as an effective therapy for treating stress, anxiety disorders (including GAD, panic disorder, OCD and PTSD)   and depression and Eye Movement Desensitisation Therapy (EMDR) for the treatment of PTSD. 

Helping individuals to achieve good mental health is our business. Based in south Norfolk, we provide services to individuals, business, and insurers and feedback from our clients shows that 100% of those surveyed would recommend us to friends and family.

 Whether you are an individual seeking private therapy, or a company looking to access specialist therapy services to improve the mental health of your employees then please contact us via our website at www.feelwelltherapy.co.uk or contact Michelle Webster Clinical Lead and Founder of Feel Well therapy at [email protected] or call 07957 350396

#WorldMentalHealthDay

The objective of agricultural occupancy conditions (AOC), from a national and local planning perspective, is to protect property in agricultural settings from development and to ensure that agricultural workers are able to secure low-priced accommodation in the locality in which they work. An AOC usually requires that: “the occupation of the property is limited to a person solely or mainly employed, or last employed, in the locality in agriculture…or in forestry (including any dependents of such a person residing with him) or a widow or widower of such a person” In effect this means that the property is subject to a planning condition which requires the occupant of the property to be locally employed in agriculture. Section 336(1) of the Town and County Planning Act 1990 defines ‘agriculture’ broadly to include: 1. Horticulture, fruit growing, seed growing, dairy farming; 2. The breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land); 3. The use of land as grazing land, meadow land, osier land, market gardens and nursery gardens; and 4. The use of land for the woodlands where that use is ancillary to the farming of land for other agricultural purposes. Effect of an Agricultural Occupancy Condition The key effect that an AOC has is upon the value of the property, which is why our teams are so often involved in ensuring they are removed. Although the value of a property subject to an AOC is case specific, in general it will be valued at 10%-40% below the market value of the property unencumbered by the AOC. This is particularly important in transactions which are being funded by mortgage finance, as disclosure of an AOC could result in the lender withdrawing a mortgage offer or the lender’s valuation of the property being adversely affected. It is vital when considering re-financing an agriculturally tied property to ensure that the reduction in value of the property is considered when assessing whether it provides sufficient security for the loan. It is, therefore, crucial in rural property transactions to commission a Local Search and review all planning permissions connected with the property at an early stage to ascertain whether an AOC applies. Complying with an Agricultural Occupancy Condition As with all planning conditions, owners and occupiers of the property are required to comply with them. If an occupier fails to comply with an AOC, the Local Authority may serve an enforcement notice detailing the steps required to comply with the planning condition within a set timeframe. Once this has been served it will apply indefinitely to the property, this means if the notice is initially complied with but there is a subsequent breach, the enforcement notice will be reactivated. Failure to comply is a criminal offence and upon conviction the offender is liable to an unlimited fine.  The time limit for enforcement action for a breach of a planning condition is 10 years from the date of the breach. The difficulty in cases of AOCs is that the breach of the condition must be continuous over the period of 10 years. This means that if at any point within, or after, the 10 year period the AOC is complied with, i.e. an agricultural worker occupies the property, then the 10 year time limit on enforcement action will be restarted. Solutions for an Agricultural Occupancy Condition An individual wishing to negate the adverse effects of an AOC in relation to a property has two options; apply to remove the condition under an application pursuant to s 73 of the Town and Country Planning Act 1990 or apply for a Certificate of Lawful Established Use (CLEUD). 1. Application to remove a Planning Condition In order for an application to remove an AOC to succeed, the applicant will need to demonstrate that there is no longer a need for the property to be reserved for an agricultural purpose. Demonstrating this point can usually be achieved by marketing the property unsuccessfully at a price which adequately reflects the decreased value of the property due to the AOC. The period of time that the property will need to be marketed to provide sufficient evidence can vary so relevant enquiries should be made to the local planning authority, but in general a six month period is usually sufficient. However, there is a risk that a genuine offer is received which makes it more difficult to argue that there is no longer a need for such a dwelling in the locality. 2. Certificate of Lawful Established Use A CLEUD establishes that an existing use is lawful and therefore prevents enforcement action from the local planning authority. If an AOC has been breached continuously for at least 10 years then the occupier may apply for a CLEUD. The application must contain sufficient evidence to demonstrate that the breach has been continuous over a period of 10 years working back from the date of the application. This evidence can take the form of statutory declarations of previous occupiers, letters of employers of confirming previous occupier’s employment or employment contracts. It is important to note that if the AOC is complied with after the CLEUD is obtained, it can no longer be relied upon, and the AOC would come back into force again. For this reason, it is preferable to apply to remove the AOC to prevent any risk that the AOC will be revived upon future compliance. Furthermore, even if a CLEUD is successfully obtained, it does not remove the AOC from the property so a planning application to vary or remove the condition will need to be made. If your property is subject to an agricultural occupancy condition and you need assistance or if you have any questions on anything covered in this article, please do not hesitate to contact our Property Disputes, Planning or Agriculture teams on 01603 610911. Please note, the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

A common source of tension between adjoining landowners is when differing views are held in respect of the position of the boundary which separates their respective land. Disagreements of this nature can often lead to protracted disputes and an irreparable breakdown in neighbourly relations. Part of the problem is the very common misconception that the first port of call, when seeking to determine the position of the boundary, is to consider the Land Registry title plans. Whilst this may seem like an obvious and sensible starting point, the reality is that the Land Registry plans will often show “general boundaries” only, rather than the legal position of the boundary, and can therefore have significant limitations in respect of their accuracy. Warring neighbours often rely solely on the “Land Registry” plans which kicks off the dispute on the wrong foot. The primary source of establishing the boundary line between properties should, instead, be the original conveyance – that being the conveyance which first divided the land and created the boundary. A conveyance contains a “parcels clause” which should define the land in question with sufficient clarity to enable the boundary to be determined. There are, however, occasions where the parcels clause falls short of being able to provide a definitive answer, particularly where the measurements in dispute are small. In those circumstances, the next step is to consider the extrinsic evidence, such as; the physical features on the ground, sales particulars, the conduct of the parties, photographs, architects drawings – to name but a few. Therefore, whilst the position of a boundary may initially seem like a straightforward matter of fact, it can be a far more complex issue, often requiring detailed consideration as well as specialist legal advice. At Leathes Prior we have a dedicated Property Disputes Team which is extremely experienced in working out the legal positon of the boundary by reviewing the deeds and extrinsic evidence; members of our team are often found rooting around searching for old fence posts and tree stumps! If you require advice on any boundary issues, please do not hesitate to contact our Property Disputes Team on 01603 610911 who would be more than happy to assist. Please note the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

From 1 October 2017 there will be a significant change to the way in which businesses have to deal with pursing debts owed to them by individuals and sole traders, which is likely to impact most businesses’ credit control procedures.

Please note: these changes are compulsory and very prescriptive.

If you are a business then these new procedures must be followed prior to issuing a debt claim against an individual or sole trader which in the case of any new debtcollector matters means that you either need to have complied with the protocol before passing a debtor to us for further action or we can look at assisting you with the protocol.  However, from 1 October 2017 onwards we will no longer be able to apply our very low cost debtcollector rates to claims against individuals or sole traders (see below), though the cost is still likely to be far less than most solicitors’ fees for similar claims.

In order to comply with the changes you must send the debtor a letter before claim along with a statement of account and a response pack (as prescribed by the Pre-Action Protocol for Debt Claims, which includes an information sheet and reply form, along with a financial statement form). The letter before claim will allow the debtor 30 days to pay or respond, whereas previously 14 days was the norm (and indeed that should remain the case for claims against larger businesses). The next step will depend upon the response received from the debtor, if any, though it is possible for the debtor to extend the process by up to 90 days, or in some circumstances even more. 

Failure on the part of the creditor to comply with the steps set out in the protocol may result in penalties such as costs orders or denying interest you have claimed, or the court could even stay proceedings pending further compliance and costs.

Broadly speaking, you have the following options if you wish to ensure compliance with the new protocol:

1.    You may be able to seek payment from all individuals and sole traders in advance (though for some industries that may be commercially unrealistic)

2.    You can instruct Leathes Prior to pursue the debtor in the usual way and we will follow the steps of the protocol on your behalf. Such claims will not be covered by the terms of our debtcollector service and the cost is likely to be a little higher than the cost prior to 1 October 2017. We are happy to provide a quote for our fees but, given the way the protocol operates, the initial cost is likely to be a little higher and the cost at the outset of pursuing a debtor is likely to be around £150 – £200 plus VAT (whereas prior to 1 October 2017 our initial fee was around £40 – £100 plus VAT), plus the usual debtcollector rates once proceedings have been issued (assuming no dispute arises).

3.    Alternatively, Leathes Prior can provide your business with the necessary training and resources required to instigate and comply with the new protocol before passing a debt to us to then issue legal proceedings. Please just give us a call on if we can help at all and we can provide a quote over the phone.

If you have any questions on any of the changes, or on debt collection in general, please get in touch with us on 01603 610911.

In April 2019, the United Kingdom of England and Wales will leave the European Union. But at the moment, it is a legislative act that happened 480 years prior to that date which seems to be concerning everyone. In 1539, Parliament enacted the Statute of Proclamations, which is supposed to have given King Henry VIII absolute power. The wording of the Act states that proclamations shall be “obeyed, observed, and kept as though they were made by act of parliament”. Big words. Some historians appear to consider this to have been a power grab by the King, trying to rule as an absolute tyrant. In practice, actually, the rest of the Act goes on to say that these proclamations must be given in council, and then gives a list of things that a proclamation cannot do (including, for example, protection of property, the right to life and the preservation of the common law). Comparisons have been made between the Statute of Proclamations and the European Union (Withdrawal) Bill 2017-2019 (also known as the Great Repeal Bill). As at the date I write this blog (19 September 2017), the Bill had just had its second reading approved in Parliament by 38 votes. Labour is opposed. The reason apparently is because of the delegated legislation provisions, which are the Henry VIII clauses.  One key provision is clause 7, which provides that the government can make any law it wishes to prevent, remedy or mitigate a deficiency in EU law as transposed to UK law. Subsection 4 states that “regulations under this section may make any provision that could be made by an Act of Parliament” which has such similarities to the Statute of Proclamations that I wonder whether the drafters put that in on purpose. Like the Statute of Proclamations, it also then goes on to create a list of things it can’t do (including, for example, increasing taxation or revoking the Human Rights Act). It might be worth having a bit of a debate about whether Henry VIII was more restricted, because he had to make decisions in council, as compared to David Davis who appears to be able to make any decision he likes. However, no doubt this legislation is going to get scrutinised to death in Parliament and these sorts of issues are going to come up. What is more interesting is the effect of the legislation itself, specifically the core provision that EU law will be transposed into UK law. Going back to the immediate aftermath of the EU referendum, I wrote in this blog that what was needed was legislation that transposed all UK law into EU law, and I then wrote another post gloating about how the government had decided to do exactly that, and that politics had become all too predictable.  However, it is worth thinking a bit more carefully about the impact that the Great Repeal Bill has on the UK’s membership of the single market.  Politicians of all stripes are talking about remaining in the single market, having access to the single market, retaining all the benefits of the single market or leaving it altogether. The single market is an area where laws relevant to trading are harmonised, to make it easier for seller from Country A to sell products and services in Country B. That is achieved by the institutions of the EU generating laws which apply to all members of the single market. If one of the members were to not comply with those laws, it would be harder (though usually not impossible) for its citizens to sell products elsewhere, and harder for citizens elsewhere to sell products in that country. The single market works because the EU enforces those laws directly onto EU citizens. Regardless of where David Davis takes our Brexit negotiations, the Great Repeal Bill is a bit of a coup d’état for those who want to leave the single market (there are others who want to remain in the single market whilst still leaving the EU). It provides that EU law will become part of UK law, and in turn the UK can then legislate at will. That is the very definition of withdrawal from the single market.  The UK will no longer have that mechanism in place to make the buying and selling of goods across the EU a bit easier. It will probably still be possible to buy and sell goods and services across the EU, but it will be a little bit more expensive.

On Friday 1 September 2017, shortly after 2 am, former England football captain Wayne Rooney was seen by the police to be driving a Black VW Beetle, which transpired to belong to woman he had met earlier that evening when socialising with friends. At the time, the police noticed a rear tail light had gone out and intended to follow the vehicle but it pulled over with Rooney seen to be at the wheel with a female passenger. Rooney was suspected to have been intoxicated and provided a positive roadside breath test before being taken to the police station where the reading was confirmed.

Rooney having been arrested and charged with an offence of driving with excess alcohol appeared before Stockport Magistrates’ Court on 18 September 2017 where he tendered his ‘guilty’ plea. The Court heard that the breathalyser reading showed the footballer’s alcohol level was 104mg per 100 millilitres of breath, which is almost three time the prescribed legal limit (35mg). The court also heard that Rooney currently had three points on his driving licence for a speeding offence on August 24 2016.

Rooney’s legal team acknowledged the severity of the matter, and during mitigation invited District Judge Termperley to consider not imposing a community order because of his ongoing charitable work the footballer carries out. Alternatively, the District Judge was asked to resolve the matter by way of a driving ban and financial penalty. In doing so, the Court were also informed that Everton Football Club were to fine him two weeks wages as a result, which is understood to be in the region of about £300,000.

However, District Judge Temperley stated this was a serious matter that placed Rooney and other road users at risk due to his poor judgment that particular evening. Whilst the judge accepted Rooney’s remorse was genuine and he was aware of the adverse effects the events that night has have had, the judge was not convinced that the imposition of a large fine would have the same effect.

Accordingly, the 31 year old was disqualified from driving for two years and ordered to perform 100 hours of unpaid work as part of a 12 month community order. Rooney was also ordered to pay £170 in respect of prosecution costs and a victim surcharge.

In a statement of apology issued after the hearing, Rooney said,

“Following today’s court hearing I want publicly to apologise for my unforgivable lack of judgment in driving while over the legal limit. It was completely wrong.

I have already said sorry to my family, my manager and chairman and everyone at Everton FC. Now I want to apologise to all the fans and everyone else who has followed and supported me throughout my career.

Of course I accept the sentence of the court and hope that I can make some amends through my community service.”

Rooney has agreed with leave of the Court to undertake a drink-driving rehabilitation course, which if successfully completed in the allocated time could reduce his driving ban by a period of 24 weeks. In the meantime, he will have to rely on chauffeurs to and from football training and for his unpaid work requirement, which will be costly.

Where a property’s boundaries do not directly abut a public road, issues can arise concerning access to the property. In such circumstances, a right of way (legally defined as an easement) over the road or land connecting the property to the road is necessary to ensure that the property is legally accessible. Problems arise where, despite a Landlord granting express rights of access and egress to a Tenant in a Lease, no legal rights of access to the Landlord’s freehold property exist. This can result in the Tenant’s access to the property being barred. This article highlights potential solutions which can be utilised by companies, or individuals, when taking a Lease of a property where no legal rights of access to the freehold property exist.   Creation of an Easement The most effective solution to the absence of a legal right of access is to request that the Landlord obtain one.  An easement can be created by:

• Express grant by a deed of easement. Typically this will involve the payment of a premium to the owner of the servient land (the land over which the easement is being granted).
• Implied grant where the owner of the servient land disposes of part of the land.
• Prescription (continual exercise of a right over a period of 20 years or more exercised openly, continually and without hindrance, licence, payment or permission of any kind). A statutory declaration by the person who has exercised the right of way for the 20 year period is sufficient evidence, provided no evidence is produced by the owner of the land to the contrary, that the easement has been acquired. The statutory declaration can be sent with an application to the Land Registry in order to register a notice on the title to the affected land. That notice will then protect the easement and allow it to be exercised in future.
• Under an exchange of land (for example on a compulsory purchase order).

Protective Clauses within a Lease If a potential Tenant decides to proceed to acquire a Lease where the freehold property does not benefit of the right of way to enable sufficient access to the property, and the Landlord has refused to take the requisite steps to obtain an easement, it is sensible to ensure that protective provisions are negotiated into the Lease.  A well drafted break clause can provide the Tenant with the option to terminate the lease upon experiencing difficulties exercising the right of way to access the property. This grants the Tenant the flexibility to elect to terminate the Lease in circumstances where barred access to the property is adversely affecting their occupation of the property. In addition to this break right, a rent suspension clause within a Lease can provide that the rent for the lease to be suspended during any period where access to the property is barred. Indemnity Insurance A lack of easements indemnity insurance policy can be obtained to protect a Tenant from any financial loss arising from lack of access to the property. Obtaining indemnity insurance may involve an initial financial outlay of the premium cost by the Tenant if the Landlord refuses to cover the cost of obtaining a suitable indemnity insurance policy. However, indemnity insurance can be an expeditious method of resolving legal access concerns where time is of the essence in a transaction. If you are granting or acquiring a Lease and need assistance, or if you have any questions about the contents of this article, please contact our Commercial Property Team on 01603 610911. Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Compensation in Discrimination Claims set to Increase New “bands” for calculating compensation to Claimants for “injury to feelings” in discrimination claims have been published, which come into effect for claims brought on or after today, 11 September 2017. For claims issued from today, compensation for “injury to feelings” will be at the following rates:

• Lower band: £800 – £8,400
• Middle band: £8,400 – £25,200
• Upper band: £25,200 – £42,000
• Exceptional cases: £42,000 +

What is injury to feelings? Injury to feelings is compensation awarded in discrimination claims. It is compensation to a Claimant for “injured feelings” – i.e. the hurt, upset, anxiety or distress that they have suffered as a result of discriminatory acts. A Claimant does not usually need to show medical evidence or a diagnosis of any psychiatric injury arising from the discrimination in order to claim injury to feelings. Where a Tribunal is satisfied that a Claimant has been subject to unlawful discrimination, it then assesses how much upset a Claimant has suffered, looking at all of the circumstances of the case before it, to decide how much compensation should be awarded for injured feelings. The Tribunal does that by categorising treatment into “bands”:

• The lower band. 

This band is used in less serious cases of discrimination, for example where the act of discrimination is an isolated or one off occurrence.

• The middle band. 

This band is helpfully described by the Tribunal as being for “serious cases, which do not merit an award in the highest band”.

• The upper band. 

The Tribunal will find that an award in the upper band is appropriate in the most serious cases, for instance whether there has been a lengthy campaign of discriminatory treatment.  Only in the most exceptional cases will an award for injury to feelings exceed the upper band limits. Once the Tribunal has determined which band the matter falls into, it then looks to the set compensation levels for that band in order to determine how much compensation the Claimant should receive.  So, if the Tribunal determines that the compensation awarded should be in the lower band, the Claimant will receive between £800 – £8,400 compensation for injury to feelings.  The Tribunal also has the power to award a Claimant other compensation on top of that, including for any financial loss suffered, and for being unfairly dismissed (if applicable). Why the change? Earlier this year, the Court of Appeal made clear that it felt that compensation for injury to feelings had fallen behind inflation and was therefore in need of adjustment. That prompted the increase. What does this mean? The increase in the compensation bands is dramatic. Previously, the limits were £600 – £6,000 for the lower band; £6,000 – £18,000 for the middle band; and £18,000 – £30,000 for the upper band. As a result, the potential exposure to employers in discrimination claims has markedly increased. For discrimination claims brought on or after 11 September 2017, the position is simple; a Claimant can now recover more than they would have done had they issued the claim last week. That said, it is important to take this uplift against the backdrop that awards in the upper and exceptional bands are rare, with the current average award for discrimination claims being just under £14,000. Whilst that average may increase, it is unlikely that many will ever face the upper band awards above. For ongoing claims, the position is less clear. The Tribunal may exercise its discretion to apply a percentage increase on the previous bands (likely a 10% increase), though it is unlikely it would apply the new bands absolutely to any existing claims. What happens in practice we will wait and see… So, the advice to employers does not change: tread carefully and try not to unlawfully discriminate against employees…whilst it was potentially costly before, it is even more so now! If you are facing any allegations of discrimination, or are faced with the task of managing employees who you believe are likely to allege discrimination, please do not hesitate to get in touch with one of the team for advice. If you would like more information on the content of this article please contact our Employment Team on 01603 281153. Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

A 20 year-old cyclist has recently been acquitted of manslaughter, but alternatively found guilty of ‘wanton or furious driving’, after a 44 year-old woman died having been struck by the cyclist on his bicycle in February last year when crossing the road in East London. It should be noted that this appears to be the first occasion a cyclist had been prosecuted for manslaughter in such circumstances. Causing bodily harm by ‘wanton or furious driving’ is an offence under section 35 of the Offences Against the Person Act 1861. This historic piece of legislation is still used in criminal courts up and down the land, being the basis of the offences of actual bodily harm and grievous bodily harm, and wounding. Such an offence encapsulates being in charge of any kind of vehicle or carriage, including bicycles. At the time of the incident the cyclist was riding a Planet X fixed wheel bike which he purchased during the preceding month. The bicycle was designed for riding in a velodrome, thus not lawful for use on the road without first being modified to add front brakes. Having no front brakes on a pedal cycle (with a saddle more than 63.5cm from the ground) on a public road is an offence in itself in accordance with regulation 7(1)(b) The Pedal Cycle (Construction and Use) Regulations 1983, however in this case the prosecutors took the unprecedented step of charging the individual concerned with manslaughter, which carries a maximum life sentence. Crash investigators who studied CCTV of the incident concluded the cyclist would have been able to stop and avoid the collision if the bike had been fitted with a front brake. Posting online after the incident, the cyclist described how he warned the individual twice to get out of the way. He went on yo state: “It is a pretty serious incident so I won’t bother saying oh she deserved it, it’s her fault. Yes it is her fault but no she did not deserve it…Hopefully, it is a lesson learned on her behalf, it shouldn’t have happened like it did but what more can I say.” The alternative offence for which the cyclist was ultimately convicted carries a maximum sentence of two years imprisonment and/or an unlimited fine. The cyclist will be sentenced at the Old Bailey on 18 September 2017, with Judge Wendy Joseph QC commenting that a custodial sentence is a distinct possibility. Judge Wendy Joseph QC, in her closing remarks, also stated: “If you want to rely on remorse, I am bound to say I haven’t seen one iota of remorse from Mr Alliston at all – at any stage.” This case has led to suggestions that cyclists who cause incidents should be subject to the same or equivalent offences as those charged against drivers. Whilst collisions between pedestrians and cyclists are comparatively much rarer and less likely to result in serious injury than collisions between pedestrians and motorists, serious incidents evidently still occur. A report compiled by Cycling UK claims that, in the period between 2005 and 2015, 32 pedestrians were killed in collisions with cyclists. If you have any questions on anything covered in this article, contact our Criminal Defence Team on 01603 610911.

A few years ago, I heard a speaker at a conference talk about ‘finding out what your people’s purpose is.’ It was a comment which has stayed with me ever since because I believe that if we truly understand our people, really know what drives them, what matters to them, then we will be able to engage, manage and work together much more effectively.

That which drives us, which propels us out of bed in the morning, will vary greatly as we are all uniquely, wonderfully different. But chances are that for many of us, that which matters to us, above all else, isn’t work. That’s not to say that what we do isn’t hugely satisfying and important, and indeed, integral to our being. But, rather there may well be a different motive behind all that we do –  be it our family, our hobby, our charitable interest, or a heartfelt ambition which has no correlation to our day job.

And yet, many employers don’t recognise this and instead expect employees to behave as if their number one priority is work. Some employers will expect their people to prioritise work, and its demands, above all else.

But they are missing the point. Because expecting employees to put work first creates dissatisfaction and demotivation. By creating cultures of long hours, where people are not empowered to bring themselves to work, by encroaching constantly on out of office times, by not giving people space to follow that which matters to them – be that attending a child’s sports’ day or doing voluntary work – creates frustration and ultimately, disengagement.

I am lucky. I love what I do – and in setting up The Engaging People Company, I have been able to marry my personal beliefs with my career. I want to make people happy, be it loved ones, friends, people I meet, people I work with, and myself. But behind that is a far bigger priority, a far deeper purpose – my family. Everything I do, I am doing for them.

And that’s what employers need to understand. And demonstrably too. Employers who get to know their people, understand what drives them, and who demonstrate respect for that which truly matters to the employee will create far better working relationships, leading to greater satisfaction, engagement, and productivity. Employers need to show that they understand what drives people – and empower them to fulfil their purpose, wherever feasible. Managing By Walking About allows employers to understand their people, create a dialogue and engender trust. And once managers understand that purpose, they need to be ready to support and empower their people to fulfil that through their management and engagement.

Employers should never create an expectation that work should be the priority, above all else, in an employee’s life. Because this will only lead to dissatisfaction, demotivation and possibly an employee departure.  

In the recent case of Ball v Ball, three children failed in challenging their mother’s Will on the grounds that she lacked mental capacity and had been unduly influenced by her husband; their father.

There were 11 children in the Ball family in total. In 1991 three of them reported their father, Mr James Ball, to the police for indecently assaulting them whilst they were minors. As a result, Mr Ball was prosecuted, receiving a suspended prison sentence.

Mrs Barbara Ball was reportedly disgruntled when the allegations made by her children were publicised and she was of the opinion that they had been exaggerated. Mrs Ball therefore set about executing a Will which excluded the complainant children from any share of her Estate. The Estate was left to her eight remaining children and to one of Mrs Ball’s grandsons.

Mrs Ball died in 2013 without having made any further Will, leaving an Estate of £157,000. The three disinherited children challenged the Will advancing their claim under three heads at trial:

1.    Lack of Capacity;

2.    Undue Influence; and

3.    Reasonable Provision pursuant to the Inheritance (Family and Dependants) Act 1975.

Lack of Capacity

Testamentary capacity is required when a Will is made, that is to ensure that the testator (the individual making the Will) fully comprehends the nature of the Will and the effect it will have. Challenging a Will on the basis of testamentary capacity is an extremely difficult claim, the starting point for which will be considering the deceased’s medical records, usually together with an expert report.

In this case the children accepted before trial that Mrs Ball had not been suffering from any physical or mental illness but instead based their argument on the view that Mr Ball had told Mrs Ball that he had not committed the above mentioned offences, which led to her disinheriting the children. The three children said that Mrs Ball’s mental state was impaired ‘in the sense that she was misled and… would not have reached those conclusions has she not been misled. Her state of mind was such that her capacity was lacking, because of the serious misapprehension under which she was labouring’.

However, there was evidence to suggest that Mr Ball had admitted to Mrs Ball that some of the allegations against him were true and the Court therefore held that Mrs Ball was not misled, which disposed of the lack of capacity argument.

Undue Influence

In order to establish that the Will was invalid for undue influence, the children would have to prove that Mrs Ball made the Will as a result of force or fear (through actual or threatened injury); or fraud (after being misled by some pretence) or undue influence (where her freedom of choice was overcome with intolerable pressure). Such claims are inherently challenging, not least because the main witness has passed away.

The children based their argument on the sole fact Mrs Ball disinherited them as a result of  their accusations against Mr Ball and she must therefore have been influenced by him. This was rejected by the Judge who found that ‘the evidence shows that her husband was not putting pressure on her, even though I have no doubt that she took his wishes…into account in deciding what to do’. In fact, the Judge found evidence Mrs Ball was the dominant partner in the marriage and that she ‘…was very strong minded, and it was very difficult to change her mind once it was made up’.

This strand of the children’s claim also failed. The Court considered that Mrs Ball was entitled to make the Will she had made and the fact others did not like her choice did not mean that she was unduly influenced.

Reasonable Provision pursuant to the Inheritance (Family and Dependants) Act 1975

The Court also rejected the claim for reasonable provision under the Inheritance (Family and Dependants) Act 1975. In order to succeed here, the children would first have to show that, objectively, the Will did not make reasonable financial provision for them in all the circumstances according to the relevant standard (there is a higher standard for spouses than for other applicants). Due to the fact that this is an objective question, the answer largely turns on financial evidence; it is not necessarily a question of whether the deceased acted reasonably or was morally right or wrong.

In this case the Court found nothing to suggest that Mrs Ball had not made reasonable financial provision for her children and no special circumstances to persuade the Court that Mrs Ball had failed to make reasonable financial provisions for her children’s maintenance. None of the children were considered to live “below the breadline” and they were no worse off than the remaining children and grandson who stood to inherit Mrs Ball’s Estate.

The Judge duly dismissed the claim from the three children and they were not entitled to any financial provision under their late mother’s Will.

Comment

Although this decision may come across as harsh, it serves as a useful reminder of the significant evidentiary hurdles in a claim against an Estate. The Court has no obligation to be sympathetic and it is clear the Court will assess each claim on a careful analysis of the facts and application of the relevant legal considerations.

The Wills & Probate Disputes Team at Leathes Prior recently represented a client in similar circumstances and, despite the reticent stance taken by the Court in Ball v Ball, the team secured a very favourable outcome for our client who received a significant sum on settlement. This therefore highlights that the outcome very much depends on the circumstances of each case and expert advice should always be sought to ensure proper representation.

If you wish to make a claim against an Estate, or need to defend such a claim, please do not hesitate to contact our Wills & Probate Disputes Team who can provide highly specialist advice.

The first half of the year has seen some fairly major changes to the provisions of the Policing and Crime Act 2017, which have been brought substantially into force and with somewhat unusual speed. Some of these ‘urgent’ provisions were brought into force following royal assent on 31 January 2017.

So what are the main changes?

Bail

The rules surrounding bail have been majorly overhauled. Where a case has commenced on or after the 3 April 2017, there is a statutory presumption that a suspect should only be bailed where it is necessary and proportionate to do so. It is therefore likely that bail will only be used where there are grounds to justify an arrest and bail conditions (such as restrictions preventing the suspect from going to certain areas or speaking to certain people) are required.

If a suspect is granted bailed, then the term of such bail must not exceed 28 days in routine cases or three months in Serious Fraud Office cases or those which have been designated as complex. This period can be extended by the Court, or by a Superintendent, or a senior civil servant.

This change is likely to see a significant reduction in the use of bail. The police are now able to take samples without an arrest and searches following an arrest can be carried out before the suspect is released. In addition, the police are now routinely releasing suspects ‘under investigation’. A suspect released under investigation is, in essence, ‘free to go’ and cannot be subject to any conditions (although they will often be provided with a letter which warns of the risks of contacting witnesses or taking other steps which may prejudice the case). The time limits set out above do not apply to suspects released under investigation; a status which can go on indefinitely.

Police officers are required to advise suspects when an investigation has come to an end, but otherwise they are not entitled to receive any information on the progress of the case. If the aim of this provision was to reduce the amount of suspects left in investigative limbo, it seems that this alteration takes one step forward, and two steps back. 

Firearms

‘Blank-firing’ guns are often created as props for film and television, however there has been an increasing trend worldwide in the conversion and use of these guns (and other imitation firearms) by criminal elements who value them for the difficulty law enforcement face in tracing them. This has seen the introduction of a new offence under the Firearms Act 1968 of possessing an article with the intention of using it to turn an imitation firearm into a real one. The tools used to carry out these modifications are not highly specialised and are relatively commonplace, therefore the intention element of the offence is vital. This serves as an important reminder to engineering firms that they should not carry out or offer to carry out these modifications.

Sexual Offences

A new offence has been created of sexual communication with a child. The offence arises when a person aged 18 or over communicates with a person who is under 16 in a way which is sexual or is intended to encourage the other to make a communication which is sexual, and the purpose is to obtain sexual gratification. It is a defence to show that the alleged offender reasonably believed that the other person was aged 16 or over.

“Sexual exploitation” under the sexual offences act has been redefined, with effect from 31 January 2017 to include the streaming of indecent images.

These changes demonstrate the necessity for the law to reflect changes in technology; with smartphones commonplace amongst under 16s, it is vital to ensure that conduct which puts children or vulnerable people in danger does not fall through the legislative gaps.

Harassment

With effect from 3 April 2017, changes have been introduced to the Protection from Harassment Act 1997. The maximum sentences for the offences of putting people in fear of violence, and stalking involving fear of violence or serious alarm or distress, committed after 3 April 2017 have been increased to 10 years imprisonment. If the offences are racially aggravated the maximum sentence is now 14 years imprisonment.

Criminal Finances

Much was made, before the election, about the introduction of Unexplained Wealth Orders. When this section of the Criminal Finances Act 2017 comes into force these orders will allow the authorities to investigate where a person makes a purchase which they do not seem wealthy enough to afford. The move, which follows reports that London is the money laundering capital of the world, was welcomed by anti-corruption campaigners Transparency International.

Certain parts of the Criminal Finances Act 2017, including new offences for ‘relevant bodies’ who fail to prevent the facilitation of tax evasion come into force in 30 September 2017.

Investigatory Powers Act 2016

Little of this statute is yet in force but it will in due course replace the Regulation of Investigatory Powers Act 2000.

These changes broadly represent the criminal law catching up with trends and technological advances which are changing the way crime is committed. Whilst changes to the rules surrounding bail may mean fewer people are place on bail pending charge, the increased use of “released under investigation” status means that practically not much has changed.

If you have any questions on anything covered in this article, please do get in touch with our Criminal Defence Team on 01603 610911.