News

Business Law

Section 8 Notice or Section 21 Notice?

30th September 2019

There is one question a lot of landlords have asked us over the years and that is “What is the Difference Between a Section 8 and Section 21 Notice?”.

The most basic difference between a section 8 and section 21 is that a section 8 notice is served when a tenant is in breach of contract (eg rent arrears), and a section 21 is served to end a tenancy agreement, simply so that the landlord can regain possession.

A section 8 notice, or notice to quit as it is also commonly known as, is so called because it operates under section 8 of the Housing Act 1988. A section 8 notice is served on the tenant by a landlord wishing to regain possession of a property during the fixed term of an Assured Shorthold Tenancy (AST) when the tenant has broken the terms of the tenancy. You can give between 2 weeks’ and 2 months’ notice depending on which terms the tenant has broken.

Once the period of notice has lapsed and the tenants have not vacated then you can apply to the court for an Order for Possession.

If you need help in completing a Section 8 Notice with the correct notice periods and/or assistance with the grounds for possession then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to assist you with this.

With respect to a Section 21 notice, you can use this notice to evict your tenants either after a fixed term tenancy ends - if there’s a written contract, or during a tenancy with no fixed end date - known as a ‘periodic’ tenancy.

Section 21 Notices are only for use when the prescribed documents have been served on the tenant at the start of the tenancy. You cannot use a Section 21 notice if you have not given the tenants copies of:
• the property’s Energy Performance Certificate
• a current gas safety certificate for the property - You must have given the tenants a copy of the current gas safety certificate before they moved in.
• the government’s ‘How to rent’ guide
You are also required to secure the tenant’s deposit in a Tenancy Deposit Scheme. This government-backed scheme ensures that the tenants get their deposit back at the end of their tenancy, so long as they have not damaged the property, have met the terms of the tenancy agreement and have paid all their rent/bills. You must ensure that such a deposit is put in a scheme within 30 days of its receipt and provided the information of where it is secured to the tenant. Failure to secure a tenant’s deposit will invalidate a Section 21 Notice.

You are also unable to use a Section 21 Notice if it is less than 4 months since the tenancy started, or the fixed term has not ended, unless there’s a clause in the contract which allows you to do this.

If the tenants do not leave by the specified date then you can apply to the court for a Possession Order. You may wish to use the accelerated possession procedure if you are not claiming rent arrears as generally this route is quicker than applying for a standard possession order and there is usually no hearing involved.

If you want to claim rent arrears then you may either use the standard possession route or use the accelerated possession procedure but then make a separate claim for recovery of the outstanding rent.

The decision as to whether or not to use the section 8 or section 21 route is complex and we would recommend a landlord seeks early advice as to which mechanism to use.

If you require more advice and assistance on Section 21 Notices or which possession proceedings route would suit you then please contact laura.day@maplessolicitors.com or daven.naghen@maplessolicitors.com and we will be happy to help.

Changes to the Taxation of Termination Payments

19th July 2017

Many businesses may be aware that the first £30,000 paid to an employee as a non-contractual termination payment (say under a Compromise Agreement) can normally be paid free of tax. However the tax treatment on any amount in excess of £30,000 has recently changed.

Previously the employer only deducted tax at the rate of 20% on any excess over £30,000, using the tax code BR. In the event that the employee had an additional tax liability over the basic rate, say because the employee was a higher rate tax payer, then the employee was personally responsible for accounting for this through the self-assessment process. Now the employer is required to deduct the full tax liability on a termination payment in excess of £30,000 through the PAYE system using the tax code OT. This tax code assumes that the employee has no personal allowances available and requires the employer to tax the termination payment in excess of £30,000 on the employee’s appropriate rate of tax (e.g. basic 20%, higher 40% etc).

For more advice on this subject please contact Daven Naghen on 01775 722261, daven.naghen@maplessolicitors.com or 23 New Road, Spalding, Lincolnshire PE11 1DH.

Do you have empty Commercial Buildings?Watch out !

25th January 2013

New rules came into force this year (2012) making it a criminal offence to squat in residential buildings. As a result of this new legislation there is some evidence to suggest that squatters have now started to use empty commercial premises. Calls are now being made for the legislation to be extended to cover commercial properties as well as residential.

Unfortunately, squatting in non-residential properties is only a civil wrong so the only option for owners of commercial properties who find their premises occupied by squatters is to issue Court proceedings in the civil Courts. Owners of residential properties who find their property invaded by squatters can simply call the Police to deal with the matter.

If therefore you have commercial properties which are unoccupied at the present time then you would be well advised to take steps to ensure the premises are as secure as possible to avoid having to take lengthy, protracted and expensive Court proceedings to remove squatters.

For any further information or assistance in this area please contact Gemma Mayer on 01775 722261 or email gemma.mayer@maplessolicitors.com or contact James Turner on 01775 722261 or email james.turner@maplessolicitors.com.

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Dispute Resolution

Section 8 Notice or Section 21 Notice?

30th September 2019

There is one question a lot of landlords have asked us over the years and that is “What is the Difference Between a Section 8 and Section 21 Notice?”.

Once the period of notice has lapsed and the tenants have not vacated then you can apply to the court for an Order for Possession.

The decision as to whether or not to use the section 8 or section 21 route is complex and we would recommend a landlord seeks early advice as to which mechanism to use.

If you require more advice and assistance on Section 21 Notices or which possession proceedings route would suit you then please contact daven.naghen@maplessolicitors.com and we will be happy to help.

Women to Pay Same Insurance Premium as Men!

16th March 2011

A recent case from the European Court of Justice means that from December 21st 2012 that insurers cannot take gender into account as a risk factor when setting premiums and payouts in respect of annuities, retirement savings and accident cover.

The European Court of Justice considered that using “the gender of the insured individual into account is a risk factor in insurance contracts constitutes discrimination” contrary to article 4(1) and 5(1) of the EU Directive 2004/113/EC which implements the principal of equal treatment between men and women in the access to and supply of goods and services. Hence for example insurance companies, as currently is the case, will not be able to offer lesser premiums to women as opposed to men.

The European Court of Justice has ruled that from December 21st 2012 insurers will not be allowed to take gender into account as a risk factor for setting premiums. Therefore from that date, a rule providing for unisex premiums and benefits will come into effect. Before 21st December 2012 there is a transitional period which will allow EU Member States to decide what action to take on domestic laws and give companies a chance to adjust and to find ways to mitigate the potentially very substantial knock-on effects

Daven Naghen, head of our Employment Team commented as follows:-

“This decision from the European Court of Justice comes as little surprise. In essence this country has until 21st December 2012 to implement the ruling. It will be interesting to see what if any action is taken by insurance companies between now and the implementation date. I would suspect that as of 21st December 2012 at the very latest that premiums for women will generally increase, and whether there is any knock-on increase for men remains to be seen.

This ruling also affects many insured benefits provided by employers such as life assurance and private medical cover. This may well lead to a substantial increase in the level of pensions paid to women for example, although the pension contributions payable by women may also increase substantially.”

We at Maples Solicitors LLP will keep you up to date with any developments in respect of this ruling. If currently you do require advice in respect of this ruling, or any other issue relating to discrimination then please do not hesitate to contact Daven on 01775 722261 or email Daven at daven.naghen@maplessolicitors.com or write to Daven at 23 New Road, Spalding, Lincolnshire PE11 1DH.

Neighbour Disputes

21st July 2013

One of the most distressing things that can happen to you is to fall out with your neighbour, especially over boundaries and property rights. You cannot leave this problem behind, it is there at home with you constantly.

Our aim is to help you resolve your neighbour dispute as quickly and cost effectively as possible. Such disputes are notorious for leading to lengthy and costly litigation, many incidents of which have been widely publicised in the media.

We can advise you as to your legal position and rights, communicate with your neighbour on your behalf and hopefully bring the matter to an end by reaching a sensible agreement. Failing that we can litigate your case and look to assert or defend your rights before the Courts.

We offer fixed fee interviews and cost caps (you set the budget that we work within) to help you avoid the risks of a large sudden and unexpected legal bill.

In some cases you may be able to fund the case with the help of an insurance policy. Many forms of insurance, e.g. home insurance etc carry an element of legal expenses cover. We can check your policy to see if it has this cover. If you are covered then the Insurer may ask you to use one of its Panel Solicitors. However you have the right to choose your own solicitor and can insist that we represent and advise you.

If you are having any problems with a neighbour over any issues then please contact Daven Naghen for advice.

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Agricultural Law

Tenancies and Farm Business Tenancies

20th July 2017

Agricultural Tenancies entered into before January 1996 are governed by the Agricultural Holdings Act of 1986. They are known as Agricultural Holdings Act (AHA) Tenancies and offer the tenant security of tenure. They also have beneficial terms for the tenant relating to reviewing the rent

AHA Tenancies ordinarily run for an agreed length of contractual term but then continue from year to year after that contractual term until brought to an end by the correct notice. The tenant then has an opportunity to challenge that notice and could bring proceedings in the Agricultural Land Tribunal. The Agricultural Land Tribunal (except in very limited circumstances) is obliged to let the tenant remain in occupation.

An AHA Tenancy also gives a right for someone who has worked closely with the tenant to claim succession of the tenancy upon the death of he tenant. There can be two applications for succession of any AHA Tenancy; it is easy to see therefore that an AHA tenancy can be in existence for many years and at least two generations. If the tenant is a company the tenancy could go on indefinitely

Worryingly, many farmers/ land owners did not even know that they were entering into AHA’s at the time of so doing as the legislation did mean that many agricultural licences were converted into AHA’s.

Compare AHA Tenancies with the Farm Business Tenancy (FBT) however. An FBT is an agricultural tenancy that was created after January 1996 when the Agricultural Tenancies Act 1995 came into force. This made the agricultural tenancy more akin to the tenancies that the rest of the commercial world was using. The FBT allowed the parties freedom to contract. The FBT is far more flexible in that the parties can readily agree what they want in relation to rent, rent reviews and term etc.

How can the above affect me?

If you are a tenant and have one of the above tenancies it is vital to understand which one so that you know your rights. If you have an AHA, you are probably in a very secure position and may be able to challenge any notice that is served. If you enter into an FBT it is important that you understand the terms that are being agreed and the ways in which the tenancy can be brought to an end.

If you are purchasing Freehold land that is subject to a tenancy it is vital that you know what type of tenancy affects the land. If it is an AHA Tenancy, chances are that you will have the current tenants on the land for some years to come without being able to increase the rent, which may affect the value of the land .An AHA Tenancy also has significant tax implications, it is important therefore to speak to someone who is suitably qualified to deal with such matters

If you want any advice in relation to AHA’s or FBT’s then please contact Gemma Mayer on 01775 722261 or email gemma.mayer@maplessolicitors.com or write to Gemma at 23 New Road Spalding Lincolnshire PE11 1DH.

Competition Law and Land Agreements

20th April 2011

From the 6^th April 2011 all Land Agreements became subject to Competition Law. Until then they were excluded from UK Competition Law and the prohibition on anti-competitive agreements.

Land Agreements are agreements between businesses which create, alter, transfer or terminate an interest in land. One party to the agreement may seek to impose restrictions on the way in which land may be used or how a right over land may be exercised.

An example of a land agreement which would fall foul of competition law would be, for instance, where two competitors in a particular industry seek to restrict the use of land with a view to restricting competition from other competitors in the same industry.

However not all such Land Agreements will offend the law and many will be able to claim an exemption especially where the benefits of the agreement outweigh its negative aspects

Also some land agreements will remain unaffected. For instance covenants relating to the payment of service charges; restrictions imposed on a lessee regarding alterations, repairs, obstructions to the premises, applications for planning permission, advertisements or hours of use and provisions which relate to the use of premises.

If the law in this area is breached however the consequences include, amongst other things financial penalties and director disqualification orders

If you need further advice on this subject please contact James Turner on 01775 722261 or james.turner@maplessolicitors.com.

Whither Agricultural Property Relief?

5th May 2010

There is a general belief in the agricultural community that there is no Inheritance Tax to pay on gifts – in lifetime or on death – on agricultural property. This is because agricultural property attracts 100% relief effectively meaning no tax is payable.

Sadly, whilst in many cases that is true there are a number of situations that the Revenue has challenged recently where the Court has restricted the way in which the relief works. This is particularly the case with farmhouses.

The rules are complicated and the following is very much a ‘potted version’. Each situation needs to be looked at individually but there are two areas where it is becoming increasing easy to lose out on some or all of the relief inadvertently.

1. The Farmhouse

Agricultural property is defined as ‘agricultural land including buildings and the farmhouse’. To qualify for relief the property must have been occupied by the person making the gift for two years prior to death or owned for a period of seven years and throughout that period used for the purposes of agriculture.

Although there are certain exceptions the property must be vacant possession – or at least vacant possession must be available within twelve months.

Many ‘non-farmers’ have attempted to take use of this relief by buying up agricultural land with a nice house and turning their hands to farming – often through contractors. These are the arrangements that have been challenged but unfortunately these challenges have restricted the availability of the relief for all so far as the farmhouse is concerned. The main points to remember are as follows.

a) The farmhouse has to be of a character appropriate to the property, appropriate that is to the property being given not the entire extent of what is being farmed. The classic problem is of the farmer owning 400 acres with a house in the middle of it and on retirement giving 380 acres away but just keeping 20 acres and the farmhouse will almost certainly mean the farmhouse is no longer of a character suitable to the 20 acres still retained.

b) The farmhouse must be occupied for the purposes of agriculture. The cases – but not the legislation – basically state that the farmhouse must be occupied by ‘the farmer of the land’. Here ‘the classic sin’ on retirement is to let the land on a Farm Business Tenancy but retain the farmhouse. That loses agricultural property relief on the farmhouse. A more recent decision actually disallowed the relief because for the two years prior to the date of death the farming was effectively carried out by somebody else. This was even though there was a written contracting arrangement in place and – in theory at least – the decisions were taken in the farmhouse. This is a very worrying situation given that on retirement many farmers either let their land or go in for contracting arrangements to save work. Clearly to have a fighting chance of getting full agricultural property relief on the farm the contracting arrangement is the better of the two but the farmer must continue being actively involved in the farming business – whatever that might mean! If some acts of husbandry can be carried out such as ploughing that would be helpful. Similarly retaining ownership of the crop and doing the selling would be helpful. Certainly annual accounts should continue to be made and sent in showing the gross income as sales.

c) It has to be remembered that agricultural property relief is only given on the agricultural property value. In other words the value on the assumption the property can only be used for agriculture. For practical purposes that means the farmhouse would be valued on the basis of a theoretical agricultural habitation clause as is typically imposed by planners on new farmhouses and this will mean that anywhere between 15% and 30% of the value does not attract relief. The more integral the farmhouse is with the yard and other farm buildings – including such things as common access – the lower the discount will be but if the house is a very nice free-standing house perhaps away from the main buildings and even worse with a nice paddock between it and the buildings, then the discount is likely to be at the higher end of the scale.

2. Who/what should own the land?

Most family farms have ownership of the land spread between the family: some might even be owned by the farming company. It is very easy to fall foul of the rules and end up with only 50% relief where land is owned by one person but actually farmed by another entity – such as the company – even though it is all ‘family’. Again each case needs looking at individually but fundamentally if the person making the gift does not have control of the company when the gift is made (including on death) agricultural property relief will be reduced to 50%. This can make a very significant difference to the tax that is payable.

Similarly farming through a company where the person making the gift has taken a back seat in running the farming business could well result in the loss of agricultural property relief on the farmhouse. There can also be problems if the farmer leaves a spouse who lives in the house but is not part of the business.

There is no one simple answer to these problems but with care they can be addressed as part of the planning process.

For example, where land is owned by one person but farmed by another entity care should be taken not to pay rent.

So far as the farmhouse is concerned this should be considered as and when the business is passed down to the next generation. In some cases careful use of the transferable nil rate band between husband and wife may well be sufficient to offset the problem but in other cases consideration might need to be given to make sure as and when the farmer retires he also leaves the farmhouse – and will probably not retire until he does leave the farmhouse. Of course tax should not be the sole consideration. It must go hand in hand with operating the farm commercially and making sure that farmers and their surviving spouses are properly looked after financially. However it is an important part of the consideration in terms of keeping the business intact and is likely to become increasingly important if – as many of us suspect will be the case – the current very generous levels of agricultural property relief are reduced to pay the national debt!

If you need advice on Agricultural Property Relief or any other aspect of Agricultural Law, then please contact us on 01775 820 353.

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Wills Probate and Trusts

Dangers of Making a Homemade Will

23rd March 2017

In recent months we have seen a number of homemade Wills brought to us following the death of a family member or friend. Suffice to say, a homemade Will is often cheaper than using a firm of solicitors to make a Will but, in the long run, this can cost the surviving family members or friends a great deal in terms of the cost of rectifying any errors (if possible) or legal fees in bringing a claim against the estate as well as the unnecessary stress and heartache at what is already a difficult time.

Whilst we are more than willing to assist with the administration of an estate with a homemade Will, this article provides a brief indication of the dangers involved.

It is common practice for close family members or friends of a person making a Will (a Testator) to complete the Will on their behalf, particularly if that person is suffering from ill health. If those close family members or friends are due to substantially benefit from the Will then this could be classed as undue influence and those due to benefit may need to provide evidence to remove the suspicion.

There are stringent rules in place with regard to the signing of a Will (attestation) and one of the reasons for such stringent rules is to assist with the prevention of fraud. If the rules are not followed correctly then the Will may be invalid and could not be admitted to probate. If this is the case then it may be that a loved one is considered to have died intestate (i.e. without a Will) and their estate may pass to someone they had never intended. Whilst it may be true that the Testator has never seen their long lost relative(s) for many years, where there is no Will or no valid Will then the intestacy rules must be followed and this is exactly who the beneficiary could be. Those the Testator would want to inherit could receive nothing.

Additionally, a beneficiary of a Will cannot be a witness to the signing of a Will, otherwise they will forfeit their entitlements and would receive nothing.

In some cases a Will may be valid in that it has been correctly attested however where certain parts of the Will have not been completed then this could result in a “partial intestacy” and, again, some or all of the estate may pass to people the Testator had never intended. Where a Will has been incorrectly completed or where the wording is ambiguous then this could cause the family or friends unnecessary expense as an interpretation or construction of the Will may be required which may or may not result in the expected outcome.

Although it may be obvious from the circumstances of the Testator or it may seem obvious from the terms of the Will, if every element of the Will has not been correctly completed then the estate may pass to those who were never intended to benefit. Whilst there is the possibility that a claim may be brought against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 by those who have effectively been disinherited because of an invalid or incorrectly completed Will, there are only certain categories of people who may bring such a claim and they are not guaranteed to be successful. In addition, such a claim could be costly, time-consuming and can be stressful.

It is therefore clear that there are many pitfalls to making a homemade Will and whilst there is a slight saving to be made by making a homemade Will, there are many dangers involved that could become very costly and the intended beneficiaries of a Will may find themselves disinherited. It is therefore always recommended to seek professional advice when creating a Will to avoid such pitfalls. Our fees for making a single Will are £175 plus VAT or £300 plus VAT to make mirror Wills (usually for couples). The expense incurred at this stage could save your family and/or friends incurring unnecessary expense and stress in the future.

To discuss Wills, please contact one of our lawyers in the Wills and Probate Department:-

Jamie Dobbs- jamie.dobbs@maplessolicitors.com

Jane Mawer- jane.mawer@maplessolicitors.com

Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team

Grounds for Challenging a Will

25th July 2016

Introduction

One of the advantages of making a Will is ensuring that the maker’s (“the Testator”) loved ones/family are provided for and to avoid family squabbles. Notwithstanding this, the provisions in a Will can be challenged or the contents contested by relatives or interested parties because for example they feel that it does not reflect the wishes of the Testator or that they believe that they have not got their fair share. It appears (sadly) that the number of challenges to wills is on the increase and that there are a significant number of grounds upon which someone can challenge a Will.

Grounds for Challenging a Will

Lack of Capacity

For a valid Will to be made, the Testator must be of sound mind. The Testator should:-

have understood that they are making a Will and the effects of that Will;
know the nature and value of their estate;
understand the consequences of including and excluding certain people under the Will;
not be suffering from any “disorder of the mind” which may influence their views.

For example it is common to challenge wills on the grounds of lack of capacity if the Testator suffered from a disease like Alzheimer’s or Dementia.

Not properly executed

For a valid Will to be made it must meet all the following requirements:-

it must be in writing, signed by the Testator or somebody in their presence, who is being directed to do that by the Testator;
it must appear that the Testator intended by their signature to give effect to the Will;
the Testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time; and
each witness must either attest and sign the Will or acknowledge the signature in the presence of the Testator, but not necessarily in the presence of any other witness.

There is a legal presumption that a will has been validly executed unless there is evidence to the contrary of either one or more of (a) to (d) above.

Undue influence

If the Testator has been coerced into making a Will on particular terms, then it may be invalid. The Testator’s freewill must have been overcome by someone else. If the Testator was elderly or vulnerable then this may provide more scope for arguing about the validity of the Will upon the grounds of undue influence.

Fraudulent or Forged Wills

For example someone may forge the Testator’s signature on a document, purporting to leave everything to that person.

Lack of Knowledge and Approval

A Testator must have knowledge of and approval of the contents of the Will. For example if a person helped prepare a Will and included a substantial gift to himself, then if the Testator is not aware of that then the Will could be contested.

The Will makes no or insufficient provision for a family member/dependent

Certain classes of people, usually close family members, may be able to challenge a Will if it does not make reasonable financial provision for them. For example if a spouse is left with little or nothing from a Will but the Will includes say a large gift to a Charity, then a spouse might argue that he or she has not been left enough money from the estate to live off.

The Testator made promises

A claim may arise if the Testator promised someone that they would inherit when the Testator died and that person acted upon this and to his detriment. For example if that party worked for the Testator without payment or carried out significant work to the Testator’s property.

Rectification

A Will may be rectified when it fails to carry out the Testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the Testator’s instructions. A party can apply to rectify the Will and/or alternatively make a claim in negligence against the solicitor who prepared it.

Another Will found

Each successive new Will normally cancels the previous Will automatically, but often people forget where the last Will is kept so that a “wrong” last Will may be found initially. Subsequently when the correct last will is found, this can give grounds obviously for contesting the older Will.

Will invalidated

Sometimes certain events invalid a Will, e.g. divorce. Foreign Wills can often cancel a UK Will and vice versa.

Will destroyed, could it still be valid?

Sometimes a Will can be destroyed, but this does not necessarily mean that it is invalidated. There have been occasions where a will has been unintentionally destroyed or thrown away, but remains valid as there was never an intention by the Testator to revoke. In such circumstances it is possible to prove the Will by way of a copy.

So how do I contest a Will?

If you want advice about contesting a Will, or defending a claim that has been made against a Will, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment to see Dav at 23 New Road, Spalding, Lincolnshire, PE11 1DH

If you want advice in making your Will in order to reduce or eliminate the risk of such claims being made against your estate then please either contact one the Wills, Probate & Trusts Team:

Jane Mawer on 01775 722261 or email jane.mawer@maplessolicitors.com

Faye Blair on 01775 722261 or email faye.blair@maplessolicitors.com

Jamie Dobbs on 01775 722261 or email jamie.dobbs@maplessolicitors.com or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

Claiming against the Estate of a Deceased Person

4th March 2015

Introduction

If a family member dies and either as a result of the deceased’s Will or the intestacy rules (which govern who gets what when a person dies without leaving a valid Will) you do not get an inheritance or an inheritance that you consider to be insufficient, you might still be able to make a claim/further claim against the estate of that deceased person under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

The Grounds for the Claim

There is just one ground upon which you can make such a claim namely:-

“That the disposition of the deceased’s estate effected by his Will or the law relating to intestacy or the combination of his Will and that law, is not such as to make reasonable financial provision for the applicant.”

The Act does provide some guidance on “reasonable financial provision”.

Reasonable Financial Provision

Expectations of reasonable financial provision will depend upon the type of applicant.

Spouse

Unless at the date of death there was in force a separation order and the separation was continuing, the standard of reasonable financial provision shall be:-

“Such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.”

If there is a separation order in force and separation is continuing, then the standard will be:-

“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

When the deceased and the survivor were engaged in matrimonial proceedings that have not resulted in an order for ancillary relief at the date of death (i.e. financial issues were outstanding) and an application is made for reasonable provision within 12 months of that death, the Court will in effect entirely ignore the fact that there was a divorce.

This will not apply to a separation order situation unless, at the date of death, the order was in force and the separation was continuing.

Civil Partner

Similar provisions apply in respect of these applicants as per spouses.

Other Applicants

The standard here is the same as that for a spouse/civil partner with a separation order, namely, such provisions as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

Categories of possible applicants here include former spouse/civil partner who has remained un-married/not in a civil partnership, a co-habitee, a person who prior to the date of the death of the deceased was wholly or partly maintained by the deceased (and not necessarily a family member), a child of the deceased and any other child treated by the deceased as a child of the family in relation to a marriage/civil partnership.

Factors to be considered

In determining an application, the Court must consider factors which may vary according to the status of the applicant. There are some common factors as follows:-

(i) The applicant’s future financial needs and resources (including earning capacity).

(ii) The future financial needs and resources (including earning capacity) of any other applicant.

(iii) The future financial needs and resources of any beneficiary (including earning capacity).

(iv) The deceased’s obligations and responsibilities towards any applicant or beneficiary.

(v) The size and nature of the deceased’s net estate.

(vi) The physical and/or mental condition of the applicant or any beneficiary.

(vii) Any other matter the Court considers relevant (including the conduct of any party).

If you wish to consider making a claim against an estate, or you are a beneficiary or executor in effect facing a claim from another party then please contact Daven Nagen on 01775 722261 or email daven.naghen@maplessolicitors.com or call in or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

If you want advice in making your Will in order to reduce or eliminate the risk of such claims being made against your estate then please either contact one the Wills, Probate & Trusts Team:

Jane Mawer on 01775 722261 or email jane.mawer@maplessolicitors.com

Faye Blair on 01775 722261 or email faye.blair@maplessolicitors.com

Jamie Dobbs on 01775 722261 or email jamie.dobbs@maplessolicitors.com or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.

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Employment Law

Default Retirement Age Abolished

25th March 2011

The Government has confirmed that it will abolish the Default Retirement Age (DRA) from October 2011. The process will begin in April 2011. This has been welcomed by some who say this will protect against ageism. It also has the advantage of keeping experienced valuable workers in the workplace. They, in turn, can pass on their knowledge and experience to others. In 2009, it was estimated that 100,000 workers were forced to retire.

The law should evolve and change to reflect the social and economic changes in society. The Equality and Human Rights Commission already argue that a compulsory retirement age is discriminatory. The change in the law will hopefully lead to a change in people’s views about retirement and shift away from the current ‘countdown culture’.

Some people in the 60’s do not relish the prospect of retirement and enjoy the social and financial benefits of remaining in employment.

The current law is contained in the Employment Equality (Age) Regulations 2006. Under the provisions it allows employers to force employee’s retirement at the age of 65. This is arguably an arbitrary and unfair rule. The only statutory procedure in place is that notice must be given to the employee 6 months before reaching the age of 65 of a meeting with their employer. At the end of the meeting it is entirely at the discretion of the employer as to whether he will terminate the employment. Legally there is no redress for the employee.

The changes mean that people over 65 will have full employment law rights for the first time. The regulations are expected to take effect from 6 April 2011. From the 6 April employers will no longer just be able to give notice of a meeting. Notice made prior to 6 April will be valid on the condition retirement must take place before the 1 October 2011.

For Employers the choices are that either they end the traditional retirement age, or keep it on the basis that they can objectively justify it. The statutory notice and consultation procedure will be abolished as well. ACAS has published guidance for employers on the changes titled: ‘Working without the Default Retirement Age’. Businesses have raised concerns about the effect this will have on them.

Another aspect of this of course is that it will help public finances, in the fact that employees will be paying tax and putting off claiming their state pension. Under such austere economic times, the ageing population places a strain on Government resources. An ageing, working population could potentially save the Government £3.5 billion a year.

For advice for your business on retiring a member of staff please contact Daven Naghen on daven.naghen@maplessolicitors.com or 01775 722261.

Employment Tribunal Claims on The Rise

25th July 2010

The Employment Tribunal Service has published its annual statistics report for 2009 to 2010, which shows a substantial increase in the number of claims lodged in Employment Tribunals. The number of claims in 2009 to 2010 rose to 236,100, which is an increase of 56% on the number of claims lodged in the previous year.

The report also reveals that the number of claims associated with unfair dismissal, breach of contract and redundancy rose 17% as compared to the previous year, which is probably as a result of the recession.

Daven Naghen, head of the Employment Team at Maples Solicitors LLP commented as follows:-

“These statistics do not surprise me. In the current economic climate, disgruntled employees who lose their jobs have little to lose by making a claim – since they are unlikely to have another job to go to. It is therefore more important than ever that employers or all sizes ensure that they get full and proper legal advice before considering dismissal and redundancy of staff.

I would also highly recommend that any small to medium sized business considers insuring against the risks of Tribunal claims, by signing up for my firm’s Employment Guard Scheme. The premiums for such insurance can be as little as £13.13 per month, and can cover claims of a value up to one quarter of a million pounds.”

If you need advice regarding any employment issues, or require a free no obligations quotation for the Employment Guard Scheme then please contact Daven Naghen on 01775 722261 or email Daven on daven.naghen@maplessolicitors.com

Employment Law/Managing Staff Absences

25th July 2010

Apparently statistics show that in this country staff are absent from work on average 7.4 days per year, and these absences cost businesses an average of £710 per employee per year.

If for example your business employs 10 staff with average absence rates, then you could be losing £7,100 a year! This does not even cover other consequences of staff absence such as reduced productivity, additional costs of overtime for others and poor customer service.

There are a number of methods which can help to reduce and manage staff absenteeism. These include:-

(a) limits or restrictions on contractual sick pay, e.g. only at the discretion of the employer;

(b) return to work interviews, so that staff that may be ‘swinging the lead’ know they are being monitored and may need to give full explanations of absences;

(d) a contractual requirement to have an employee medically examined by an independent doctor in order to confirm the employee’s medical condition;

(e) the use of trigger mechanisms to monitor attendance such as the Bradford Factor;

(f) having line managers trained in absence management; and

(g) incentives to keep staff at work (e.g. rewards for good attendance records – but beware employees who when really unfit for work will come in in order to preserve their good attendance record!).

Daven Naghen, head of our Employment Team, advises that “Every business has different needs, and some of the above methods work for some and not others. However it is essential that all businesses have suitable policies and procedures in place to manage staff absences. If these policies and procedures are properly implemented, with appropriate action taken when applicable, then the level of staff absences should reduce significantly and this will provide the business with significant cost savings as well as improved productivity.”

If you need your policies and procedures reviewing, or even prepared from scratch, then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com

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General Interest News

Client Feedback Questionnaire

11th October 2016

As part of our attention to our client’s needs, at the conclusion of every matter we send our clients a Client Feedback Questionnaire. From our clients’ comments we can gauge if we are providing the level of service that they want, and if needs be make changes.

These are some of the results from the responses to our Client Feedback Questionnaire for the period January 2008 to the end of June 2009:-

98% of our clients said that they were either fairly satisfied or very satisfied with the overall level of service provided.
97% of clients said that we gave them information or advice that was either fairly or very easy to understand.
96% of clients said that they were likely to or certain to recommend us to someone else.
94% of clients said that we kept them up to date fairly or very well.
91% of clients said that the outcome in their case was either the same or better than we had advised.

Thank you to everyone who responded to the Client Feedback Questionnaire, and for letting us know what you, our clients, think about our services.

Please see our Testimonials Page for more detailed comments from our clients.

Maples Proudly Sponsors Grammar School Rugby Team

11th March 2010

On Tuesday 9^th March 2010, Gemma Mayer was proud to present to the Spalding Grammar School Rugby Team a set of jerseys that had been sponsored by ourselves.

Maples has longstanding and well established links with the school, and we are pleased again to be supporting local sport in the Spalding and South Holland community following on from last year’s sponsorship of the Spalding Cricket Club.

We wish the boys at Spalding Grammar School all the success for future matches, and you can follow their progress as we will be regularly publishing match reports on this website.On 13^th March 2010 our Managing Partner, Anita Toal and Gemma will be the Guests of Honour at the Rugby Dinner at the school, and will be handing out awards to the players.

Maples Solicitors Recognised!

22nd May 2013

We are proud to announce that recently the firm has been successful with its application to the Law Society to become a member of the CQS.

The membership of the CQS recognises the high quality standards that our team of Solicitors apply when dealing with your residential property transactions.

Mike Pepper, head of our Residential Conveyancing Department says:-

“This is recognition of the firm’s adherence to high practice management standards and to prudent and efficient conveyancing procedure. Our clients can be rest assured that they will get great service from us when dealing with their house sale and/or purchase.”

If you are buying or selling a property, then please contact Mike Pepper on 01775 722261, or email mike.pepper@maplessolicitors.com or write to us at 23 New Road, Spalding, Lincolnshire PE11 1DH.

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Licensing Law

19th July 2017

What are the Licensing Objectives?

The Licensing Objectives are the 4 key elements that all Licensing Decisions will have regard to.

The Licensing Objectives are:
The prevention of crime and disorder;
Public safety;
The prevention of public nuisance; and
The protection of children from harm.

What is a Premises Licence?

This is a Licence that covers the actual Premises. If the Premises are sold or transferred the Premises Licence will remain although there will need to be an application to change the Premises Licence Holder. The Licence will detail things such as opening hours and any conditions upon the Licence. A Premises Licence is required if the Premises undertake any licensable activity such as the supply of alcohol, the supply of hot food after 11pm or the provision of regulated entertainment.

What is a Personal Licence?

The system is split into 2 parts with a Licence for individuals as well as for the Premises. For a Premises to supply alcohol they will need a Designated Premises Supervisor who will need to hold a Personal Licence. Any person who is over 18 and who has passed an accredited licensing qualification may apply to the Licensing Authority for the area in which they reside for a Personal Licence. It is normally expected that they have no convictions for a relevant offence.

What is the Designated Premises Supervisor?

The Designated Premises Supervisor (often shortened to DPS) is named on the Premises Licence and must hold a Personal Licence. They are the person who is responsible for the day to day control of the Premises. They are the ones who will be held responsible for any failings and so could be prosecuted for allowing the supply of alcohol to a person under 18 even if they were not present when the sale or supply took place.

Must the DPS always be present?

No. They are expected to be in control and to know their responsibilities but they need not always be present. Indeed it is possible to be DPS on more than one Premises Licence. It will be expected that the DPS has ensured that all staff have been trained and are aware of their responsibilities.

What happens if a DPS is convicted of an offence?

It will depend on the nature of the conviction and the punishment imposed but the Personal Licence may be revoked. We would strongly advise that you seek immediate legal advice if you are a DPS who is arrested or charged with any offence.

Can we change the hours or conditions on the Premises Licence?

Yes it is possible to apply to extend the hours by making an application to vary the Premises Licence. Often Premises have accepted shorter hours or onerous conditions as a compromise to ensure that the initial Licence was granted as soon as possible. The application process is similar to applying for a new Premises Licence and so it must be advertised and there will be a 28 day period in which responsible authorities such as the police, trading standards and certain departments of the local council may object. Other interested parties such as local residents may also object. If there are no objections the variation should be granted. If there are objections there may be discussions as to whether a compromise can be reached but if not the matter will be heard by the Licensing Authority. The application will have in mind the 4 Licensing Objectives and any decision will have to have regard to these. It may be the case that an extension of hours may be agreed if other conditions are met such as minimum staffing levels, provision of CCTV or agreement to provide SIA registered Door Supervisors.

Should you have any query in respect of Licensing matters please do not hesitate to contact us on 01775 722261 or email to daven.naghen@maplessolicitors.com

New Alcohol Code to be Introduced this Year

29th January 2010

New Alcohol Code to be Introduced this Year to Call Time on Binge Drinking Culture

Mandatory Licensing Conditions designed to reduce binge drinking culture in England and Wales will come into force later this year according to a recent Government announcement.

Alan Johnson, the Home Secretary, is still to confirm the final details of the Code. However it is designed to tackle drink related crime and disorder that is estimated to cost the United Kingdom between £8 billion and £13 billion per year.

Pub owners who breach the Code could face extra conditions, the risk of losing their licence as well as fines of up to £20,000 and even 6 months in prison.

The new mandatory conditions will include the following:-

A ban on ‘irresponsible’ promotions such as “all you can drink for £10”, woman drink for free deals, speed drinking competitions and “Dentist’s Chairs”.
Ensuring that free tap water is available.
Ensuring that all those who sell alcohol check the identity of anyone who looks under 18.
Ensuring that establishments make available a choice between a single and double measure of spirits and a small and large glass of wine.

However a ban on the bulk discounting of alcohol by shops and supermarkets that led to Police complaints that lager is being sold more cheaply than water has been dropped from the Code. The Government did admit that there were issues (around rock bottom cheap alcohol) but has rules out a compulsory minimum pricing in England and Wales by stating “it would not at this stage be sensible”.

It is believed that the Code is to be introduced in two stages during this year. The first stage will come into effect on 6th April and will cover the ban on promotions, drinking games and the provision of free tap water. The second stage will come into effect on 1st October, and will cover issues relating to smaller measures and age checks.

Licensing Partner Daven Naghen commented as follows:-

“For many this Code is considered long overdue. Licensees should make sure that they are fully aware of the new codes as and when they come into force. If Licensees do not comply with the Code, as well as running the risk of losing their Licence they could also face criminal prosecution (and a possible large fine and/or jail sentence).”

For further details on the new Alcohol Code please log on to our website for updates.

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Family Law

A Summary of Maternity Leave

22nd May 2015

Introduction

The most common area for enquiries on employment law from our clients relates to maternity leave. I have written this overview to assist our clients in having a general understanding of the law on maternity leave.

Types of Maternity Leave

There are 3 types of maternity leave as follows:-

i) Ordinary Maternity Leave (“OML”)

ii) Additional Maternity Leave (“AML”)

iii) Compulsory Maternity Leave (“CML”).

OML

This lasts up to 26 weeks or until the end of CML, if later. OML can start at any time from 11 weeks before the week the baby is due. An employee who is eligible for OML is also entitled to CML.

AML

AML lasts up to 26 weeks. AML starts on the day after the last day of OML. Entitlement to AML depends on the employee’s expected week of childbirth.

CML

In addition to OML and AML, there is also CML which is required essentially as a health and safety measure. An employer must not permit an employee who is entitled to OML to work during the period of 2 weeks (extended to 4 weeks for some factory/workshop workers) commencing with the day on which childbirth occurs. An employer who does so is guilty of an offence and is liable on summary conviction to a fine.

Entitlement

All employees are entitled to both OML and AML, together totalling 52 weeks’ leave, provided they satisfy certain notice requirements.

A woman must still be employed by the relevant employer at the point when she commences statutory maternity leave from that employment; indeed if she were not employed at that point there would be no employment from which to take leave. This contrasts with the position in relation to entitlement to statutory maternity pay (“SMP”). Once an employee qualifies to receive SMP from a given employer, she will not lose that entitlement even if she ceases to be employed by it (and even if that employment ceases before the period during which she is to receive SMP payments commences).

Notice

In order to take maternity leave an employee has to give notice to her employer on or before the 15th week before the week that she expects her baby to be born. The notice must state that she is pregnant, the week that her baby is due and the week that she plans to start her OML.

If the employer asks for proof of pregnancy, then she has to provide a medical certificate.

Within 28 days of receiving notice that an employee intends to take maternity leave, the employer must write back informing her of her expected date of return from either OML or from AML if she is entitled to it.

If the employer fails to provide this information then the employee may be entitled to return to work early without giving the requisite notice and be protected from detriment for failing to return to work on what otherwise would be her return date.

Starting maternity leave

OML can start at any time from 11 weeks before the week the baby is due.

The employee needs to give notice of when she wants to start the leave, but she can change her mind as long as she gives at least 28 days’ notice of the change. In rare circumstances, where it is not reasonably practicable to give 28 days’ notice, she may be able to change her mind even later than this but should give notice as soon as it is reasonably practicable to do so.

If the baby is born early, OML starts automatically on the date of the birth.

If the employee is entitled to AML, it starts on the day after the last day of the employee’s OML.

Premature babies and stillbirth

If the baby is born early then the employee does not have to give notice of her intended leave date but should inform her employer as soon as possible after the birth that she is starting maternity leave. If she loses the baby after 24 or more weeks of pregnancy, or if the baby is stillborn, she is still entitled to maternity leave. There is no need to notify her employer of the intended leave date, but she should tell her employer as soon as possible after the baby is lost that she is starting maternity leave.

Illness in late pregnancy

If the employee is absent from work in the last 4 weeks before her baby is due for reasons related to the pregnancy or childbirth, she has to inform her employer that the absence is pregnancy-related. This is important because if she does go off sick in this period her maternity leave starts automatically from the date of her first absence. If her absence is not related to pregnancy or childbirth then her maternity leave will not start automatically.

Rights during OML and AML

An employee who takes OML or AML is entitled to the benefit of all the terms and conditions of employment that would have applied had she not been absent, with the exception of wages or salary. The obligations during maternity leave apply both ways so that employees can continue to have contractual obligations to their employer during maternity leave such as trust and confidence and fidelity.

The employer must therefore continue to provide all contractual and discretionary benefits during maternity leave but need not pay anything which constitutes wages or salary which would include overtime, shift pay or attendance allowance.

For example an employee would therefore be entitled to continue to receive (provided she was entitled to them before she want on maternity leave) things such as life insurance, permanent health insurance, medical cover and gym membership.

Employment terms and conditions with no personal benefit

When an employer normally provides an asset or facility to an employee from which that employee derives no personal benefit, it is probably the case the employer is not required to continue to provide it during maternity leave. For example in respect of the provision of a company vehicle which is solely for work use or the provision of a mobile phone which may only be used to make or receive work calls.

Where the employee is entitled to some personal use of the assets/ facility, the employee clearly derives a benefit from it and hence the employer is required to continue to provide it throughout maternity leave. For example if a company car or mobile telephone can be used partly or even exclusively for non-work activities then the employee must continue to be given the benefit during OML and AML.

Childcare vouchers

The issue as to whether or not an employer must during maternity leave continue to provide childcare vouchers is a tricky subject. This is because it is debatable in most circumstances as to whether childcare vouchers are a personal benefit (which should be continued during maternity leave) or part of wages (which do not have to be continued during maternity leave).

Pension contributions and certain other benefits during maternity leave

A maternity equality rule is implied into all occupational pension schemes (see definition below). This means that any period when an employee is on maternity leave should be treated as a time when she is not, in particular in relation to any rule of an occupational pension scheme which can be applied in respect of scheme membership, accrual of scheme rights and determination of benefits.

Similar provisions apply in relation to any discretion under scheme rules which can be exercised in a way that treats a period of maternity leave differently from time when a woman is not on maternity leave.

During any period of maternity leave the employer must continue to make its usual contributions to the pension scheme, the employer’s pension contributions must be calculated on the basis of the employee’s normal pay (i.e. the pay she would be receiving if she was at work), the employee’s pension contributions must be calculated on the basis of the pay she is actually receiving (i.e. SMP) and the employee’s service must count as pensionable service for a final salary (defined benefit) pension scheme.

A woman who is on maternity leave will be entitled to continuing membership of the scheme throughout the period of maternity leave whether or not she is paid.

These provisions do not apply to the accrual of scheme rights whilst the employee is on AML and is not being paid by her employer.

The reference to “paid by her employer” includes any time when the employee is receiving statutory maternity pay (“SMP”) or other pay (e.g. contractual maternity pay, including payment for “keeping in touch” days). For SMP this will usually be a period of up to 39 weeks.

The definition of occupational pension scheme under the Equality Act 2010 is relatively wide and probably means that the employer must also continue to provide life insurance, health insurance, medical cover and permanent health insurance during paid maternity leave.

Holiday entitlement during maternity leave

As with other terms and conditions employees will continue to accrue holiday entitlement during OML and AML.

Work during maternity leave

Employees are entitled (but not obliged) to work up to 10 days (“keeping in touch days”) during their maternity leave without bringing their maternity leave to an end.

Bonus entitlement and maternity leave

Complex statutory provisions from the Equality Act 2010 apply to protect the position of pregnant women and those on, or who have taken, maternity leave, in relation to their contractual pay including bonuses. Protection for such workers in respect of non-contractual, discretionary benefits (such as truly discretionary bonus scheme) is provided by the prohibited conduct provisions of the Equality Act 2010.

SMP

In order to quality for SMP the woman needs to be an employee as defined and satisfy the following:-

i) she must have been employed for a continuous period of 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement/childbirth (“EWC”);

ii) she must have average earnings for the period of 8 weeks ending with the week immediately preceding the 14^th week before EWC of not less than the lower earnings limit in force (currently £112 per week with effect from the 6th April 2015;

iii) she must have become pregnant and have reached, or given birth before reaching the commencement of the 11th week before EWC

iv) she must give the requisite notice to the employer of when she expects his liability to pay her SMP to start; and

v) be off work.

In certain situations these conditions do not need to be satisfied for a right SMP to arise, such as the following examples:-

i) when an employee has been employed for at least 8 weeks and the employer dismisses her solely or mainly to avoid liability for SMP.

ii) when an employee is confined (i.e. gives birth) more than 14 weeks before EWC, and would have otherwise qualified.

It follows from this that an employee does not need to be employed by the employer from whom she receives SMP at the point when she begins to receive that pay (or indeed after that), provided she was working as an employee of the employer for the continuous 26 week period immediately preceding the 14th week before EWC (and was earning at or above the required average rate), that employer will be fixed from then onwards with a liability to pay her SMP, whether or not she remains in employment with it subsequently. Once a woman qualifies for SMP against a particular employer in this way, she will retain the entitlement to be paid SMP by that employer throughout her period of entitlement even if she ceases to be employed by that employer (and it does not matter whether she ceases to be employed by that employer before the period of entitlement starts, or at some point during the period of entitlement). This contrasts with entitlement to take statutory maternity leave as the woman must at the point that she takes maternity leave still be an employee of the employer from whom she is taking that leave.

However if a woman starts, during her period of SMP entitlement, to work for an employer (“Employer B”) other than the employer (“Employer A”) that is liable to pay her SMP, then Employer A will not be liable to pay SMP from then onwards for any of the remainder of her period of SMP entitlement (even if she subsequently stops working for Employer B before the original period of SMP entitlement has ended).

SMP – period of entitlement

This is for 39 continuous weeks. An employee is not allowed to any payment after this SMP period unless she is entitled to any contractual maternity pay.

SMP – rates and payment

During the first 6 weeks of maternity pay, the rate is 90% of the employee’s normal weekly earnings during the 8 weeks immediately before the 14th week before EWC (“the Higher Rate”). Thereafter another rate is payable which is the lower of the Higher Rate and the set rate currently of £139.58 per week (with effect from the 5th April 2015).

SMP – recoupment

SMP is generally paid by the employer but can mostly be recouped by making deductions from the employer’s National Insurance contributions.

Maternity Allowance

Some people who do not qualify for SMP will quality for maternity allowance (“MA”). For example the self employed and people with insufficient qualifying service to get SMP.

Currently MA is £139.58 (with effect from the 6th April 2015) or (if lower) 90% of the employee’s normal weekly earnings, and is payable for up to 39 weeks. To qualify for MA an employee must:-

i) have become pregnant and reach, or been confined before reaching, the commencement of the 11th week before the EWC;

ii) have been engaged in employment as an employed or self employed earner for any fraction of the week, in at least 26 of the 66 weeks immediately preceding her EWC.

iii) have average weekly earnings which are not less than the maternity allowance threshold for the relevant tax year (currently £30) and

iv) not be entitled to SMP for the same week in respect of the same pregnancy.

Employees are disqualified from MA if they work as an employed or self employed earner for more than 10 days in the maternity allowance period.

If you need any further advice or guidance on maternity leave, whether as an employer or an employee, then please contact Gemma Mayer on 01775 722261 or email gemma.mayer@maplessolicitors.com or Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment at 23 New Road Spalding Lincolnshire PE11 1DH .

Child Abduction

6th November 2014

The recent case of AVH v SI and Another [2014] EWHC 2938 (Fam) highlights the principles to be considered by the court when deciding whether, on the application of a parent, a child should be returned to a different jurisdiction.

The case concerned a 15 year old child who had been living with her mother in Mexico since the separation of her parents in 2010. In 2014 the child visited friends in London albeit unbeknown to her mother went to visit her father. At the time of the hearing the child was living with her father and the mother made an application for return of the child to Mexico.

It was held by the court that the retention of the child in the UK was wrongful and Article 12 of the Hague Convention required the court to order the return of the child forthwith to Mexico.

While the child wished to remain in the UK and the court had to take her views into account this merely gave the court discretion to consider whether or not to return. However, the court had to consider the child’s views in the context of the strength, conviction and rationality of those views and in the particular circumstances of the case the court ordered the return of the child to Mexico.

For more information on any aspect of Family Law please contact Anita Toal at anita.toal@maplessolicitors.com or alternatively telephone us on 01775 722261.

Mums and Dads to Share Parental Leave

25th March 2013

In November 2012 Deputy Prime Minister, Nick Clegg announced that from 2015 the UK will have a new system of flexible parental leave. The changes will allow both parents to share up to a year’s leave to look after their new-born children, allowing fathers to play a greater role in raising their children and helping mothers to return to work at a time that’s right for them.

Under the new radical system of parental leave, parents will be able to choose how they share the care of their children in the first year after birth. Employed mothers will still be entitled to 52 weeks of Maternity Leave, but working parents will be able to opt to share the leave. Mothers will still have to take at least the initial 2 weeks of leave after birth as a recovery period, but following that they can choose to end the Maternity Leave and the parents can opt to share the remaining leave as flexible parental leave. It will be up to the parents to decide how they share the remaining weeks of the leave.

Obviously each parent will have to meet the qualifying criteria for leave and/or pay in their own right. The qualifying criteria is likely to mirror the current requirements of statutory maternity and paternity pay.

It is believed that the greater flexibility for parents will provide a more motivated and productive work force for businesses.

The Government also announced plans to extend the right to request flexible working to all employees, not just employees with a child under 17 (or under 18 if the child is disabled) so to again give greater choice and freedom to workers and businesses.

The current statutory procedure for considering requests will be removed, and instead employers will have a duty to consider all requests in a reasonable manner and within a reasonable period of time. Businesses can still refuse requests on business grounds but the Government believes that these new laws will bring benefits to employers as well as to their staff.

These changes and the right to request flexible working are likely to be introduced in 2014.

Daven Naghen of our Employment Team commented as follows:-

“I can see the obvious benefit to working parents but I am not so sure that these two sets of proposals are as advantageous to businesses as Mr Clegg thinks. From my experience there are plenty of businesses already who have difficulties managing the current working patterns of their staff under the current regime, and adding more flexibility for staff could be a real headache to businesses and may involve greater administration and cost for businesses.”

If your business needs help on any current issues relating to flexible working for staff or parental leave then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or Gemma Mayer on 01775 722261 or email gemma.mayer@maplessolicitors.com

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Criminal Law

20th July 2017

We are able to assist you upon all matters involving Criminal Law ranging from the very outset at the Police Station to the Crown Court and even appeal beyond to the Higher Courts.

It is likely that if you are suspected of a criminal offence that you will be interviewed at a Police Station and we will be able to attend with you no matter what time of day or night, or day of the week your attendance at the Police Station takes place.

It is likely that we will be able to provide this service at no fee to yourself as Police Station attendances are nearly always covered by the Legal Aid scheme.

Assistance at the Police Station may result in no further action being taken against you or possible alternative disposals such as a caution or a warning rather than a prosecution.

Our attendance at the Police Station may also result in your release from custody sooner than otherwise and we may make representation as to bail which will result in no conditions or less onerous conditions being imposed upon you.

We hold a Legal Aid Agency franchise and contract and subject to a means test and the merits of the case you may qualify for Legal Aid to cover your proceedings in both the Magistrates Court and Crown Court if necessary.

We have many years experience in applying for Legal Aid meaning that in many cases our fees will be met by public funds.

If you are not able to qualify for Legal Aid you should note that if you are successfully acquitted or the charges are dropped that our fees would be payable by way of a Defendant’s Costs Order from Central Funds again leaving you with nothing to pay.

If you do need to instruct us on a private paying basis we will keep you up to date with our costs and provide detailed estimates for each and every stage of your case.

If you require advice and assistance regarding a criminal matter, please contact a member of our Criminal Team, Daven Naghen or Anita Toal.

Regulatory matters

The Team, headed by Daven Naghen from our Dispute Resolution Team has acquired a niche practice in the prosecution of health and safety breaches. The Team can also defend such matters and advise in respect of other regulatory offences (both from a defence and prosecution point of view) such as data protection, environmental protection, breach of planning law, food safety and hygiene, building regulations etc.

Legislation returns Police Station Bail to normal

13th July 2011

Further to our recent article in which we highlighted the chaos that had been caused to Police Station bail returns following a court decision made in the case of Hookway, we can now confirm that the emergency legislation has been passed bringing the situation back to normal.

The Act was passed on 12 July 2011 and provides that periods spent on bail do not count towards the total detention period. This means that is someone is arrested and held in custody for 10 hours and then released on bail the custody clock is frozen and if they are booked back in to custody when they answer bail the police could detain the person without charge for up to a further 14 hours.

What does this mean for suspects? Unfortunately this means there is no problem with the police bailing on numerous occasions with no time limit for making a decision in the majority of cases. For summary only offences such as common assault there would be a six month time limit to lay the charge but for any offence which is capable of being heard in the Crown Court, the police can keep re-bailing often leaving persons on bail for significant periods of time.

Unusually the legislation is retrospective and so cuts off any possibility of civil claims for false imprisonment against the police for persons who were detained prior to this Act being passed.

If you have been arrested or need any advice on a police station investigation please do not hesitate to contact Daven Naghen or Anita Toal of our offices on 01775 722261.

Police Bail for Suspects, thrown into Chaos!

4th July 2011

In recent days it has emerged that a High Court decision has thrown what had been seen as the established interpretation of the law on bailing suspects into disarray.

After taking legal advice on the issue it does seem that most police forces now accept that for the time being at least the effect of the case is binding. The matter is however due to be appealed to the Supreme Court at the end of July and the Government has already suggested that there will be emergency legislation to rectify the situation.

The case of Hookway involved a murder investigation in which the police were initially entitled to hold the accused for up to 24 hours from the ‘Relevant time’ of him arriving at the police station. That period was extended by a superintendent up to 36 hours after arrival. As the police enquiry was not complete they had to apply to a court for a warrant of further detention which was granted for a further 36 hours. Before that time had elapsed the police bailed the suspect to return at a later date. A number of months passed and the suspect was re-bailed a number of times. The police then wanted to apply for another warrant for further detention. Ultimately the decision of the court was any extensions must be applied for within the periods specified within the Act.

The effect of this seems to be that for most ordinary cases by the end of 24 hours from arrival at the station the police ought to charge, take no further action or apply for extensions which could total up to 96 hours. If suspects are to be bailed whilst further enquiries take place this should be within the relevant time limits.

It is of note that this only applies to police bail during an investigation prior to charging and so bail to court is unaffected. The suggestion seems to be that if the police have insufficient evidence they should take no further action but it is of note that they have the power to re-arrest a suspect if new evidence is obtained.

If granted bail, the common view now seems to be that an accused person should still attend the police station to avoid committing a separate offence of failing to surrender. However, the police may only be able to book a suspect in to detention if there is new evidence.

It should be born in mind that the police do have the ability to commence cases by the issuing of a summons and so do not always need to charge people within the custody suite to bring the matter to court.

The approach of all police forces remains to be seen but the best advice that can be offered to anyone who is on police bail is to seek full advice from a solicitor specific to their individual case.

Commenting upon the issues raised by this case Dav Naghen a partner in our Criminal Law Department indicated:

“There has been much confusion surrounding the interpretation of this case. There may be circumstances where individuals and even the police do not know where they truly stand. There is no substitute for full legal advice based on the individual circumstances of each case. Given the expressed intention of the Government to pass emergency legislation on this issue, I hope that this is given proper consideration to balance the rights of detainees and the practical considerations that no doubt will be put forward by the police. I have seen cases where the accused has been on police bail for 18 months and that is not in the interests of the detainee, any victim or the interests of justice. There are many cases where people end up having to answer bail at the police station several times before any decision is made and again this is a practice which cannot be in the public interest. Against that it is of no assistance for victims or the accused to be told that there is no action on a matter only for the accused to be further arrested at a later date if new evidence that could not be obtained within a short period of time then comes to light. My only hope is that the Government will use this opportunity to create a more efficient system in which some of the worst practices of the police are eliminated or at least reduced to allow fairness to those who are accused (and often wrongly accused) of offences.”

Should you need any assistance regarding a Criminal allegation against you please contact Daven Naghen or Anita Toal on 01775 722261 or ask for Maples Solicitors LLP when booked in to the police station.

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Motoring Law

Motoring Case May Result in Less Prosecutions

26th March 2012

If a vehicle travels through a speed camera above the legal limit, the next step in the process is that the Police issue the Registered Keeper of the Vehicle with a Notice of Intended Prosecution which requires that person (either a company or an individual depending on who owns the vehicle) to name the driver. If this is done and the driver is identified, then that driver may be offered a speed awareness course, or a fixed penalty or in the worst case be prosecuted at Court. The requirement to provide this information is under section 172 Road Traffic Act 1988 and the notice received is often referred to a section 172 notice.

However, there are many occasions when the recipient of the notice is unable to provide the necessary information as to the identity of the driver. The recipient even though they may not have been the driver themselves could face prosecution for failing to provide the identity of the driver and have 6 penalty points endorsed upon their licence.

For a summary only offence which most motoring offences are, the prosecution have to lay the information before the court within 6 months of the date of the offence. A recent Scottish case has cast doubt on the approach to these prosecutions and the legality of many prosecutions brought by some police forces may now be called into question. It should be stressed at this point that until the same issue is heard by an English court the judgement in the Scottish case is merely of persuasive value, although it is noted that it was persuasive enough for Greater Manchester Police to withdraw 300 cases that may have been out of time as a result of the ruling.

The ruling in the Scottish case was that the 6 month time limit for bringing a prosecution applied only when the initial offence of failing to provide the information took place ie at the end of the 28 days that the recipient of the notice had in order to provide the information. Many police forces incorrectly believed that they could prosecute within 6 months of any request for the information ie they could keep sending out further notices to the same recipient effectively rendering the time limit as meaningless.

What does this mean for motorists? Well if you have received a summons or charge for failing to provide information as to the identity of a driver (or ever in the future find yourself in that position) you should seek immediate legal advice as to whether the proceedings have been commenced within time. Common scenarios in which this problem can arise are where there is a company vehicle with different employees permitted to drive it or families in which more than one person may have driven the vehicle (eg husband, wife, teenage children etc) and due to the passage of time the Registered Keeper is unable to name the driver at the time of the incident.

It is not clear whether all police forces will follow the example of Greater Manchester Police and so other forces may still seek to commence proceedings outside of the 6 month time limit in which case the Defendant would have a strong legal argument to suggest that the proceedings are time barred.

Should you require any advice in respect of an allegation of speeding or failing to provide information as to the identity of the driver or indeed any motoring law issue please do not hesitate to contact Daven Naghen or Anita Toal on 01775 722261 or by email daven.naghen@maplessolicitors.com or anita.toal@maplessolicitors.com.

New Insurance Law for Motor Vehicles now in force

26th August 2011

It has long since been an offence to use a motor vehicle on a road or public place with no third party insurance in force. In this situation drivers can expect to receive a minimum of 6 penalty points upon their licence and could be disqualified from driving for the offence all of which in addition to a fine.

The Continuous Insurance Enforcement Scheme is now in force and it is now an offence to be the Registered Keeper of a vehicle which is not insured. Think that this will not affect you, then read on.

Whilst the ultimate objective is to prevent people driving without insurance and it is clearly easier to enforce as there is no need to catch the driver in the act of driving, a number of people could still fall foul of this provision.

Own a motorbike or classic car which you only use in summer and you must now either be insured all year round or make a Statutory Off Road Notification (SORN) for the period that it is off the road.

Similarly if you own a car that you are repairing or modifying you cannot just cancel the insurance for the period that it would be off the road without making a SORN.

Who else could suffer? A divorcing couple for example where one party is the registered keeper but the other party is the one who uses the car in this instance the registered keeper may not even know that the insurance has not been kept in force.

Fortunately the penalties do not include penalty points but could include a fixed penalty fine, having the vehicle clamped, impounded or destroyed and possible court appearance and fine.

Registered keepers should however be aware that there is an offence of permitting the use of a vehicle with no insurance which carries the same penalties as the use of vehicle with no insurance including the imposition of penalty points or disqualification.

Should you be charged or summonsed with an offence involving no insurance and require representation or advice please contact Daven Naghen daven.naghen@maplessolicitors.com or Anita Toal anita.toal@maplessolicitors.com or ring the office on 01775 722261.

If you have been hit by an uninsured driver you may still be able to claim compensation through the Motor Insurers Bureau. If you require any assistance in this regard please contact Daven Naghen daven.naghen@maplessolicitors.com or ring the office on 01775 722261.

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Consumer Law

21st July 2017

We cover all sorts of consumer issues, complaints about products that are not up to scratch, services that do not meet expectations, setting aside credit card and finance agreements, reclaiming excessive bank charges and suing for mis-sold payment protection insurances.

Your case will be run by Partner Daven Naghen, so you get an experienced solicitor to help you and not a junior or unqualified person.

We have a particular expertise in setting aside finance and credit card agreements, and could save you thousands of pounds in respect of such agreements.

We can provide fixed fee interviews to give you an initial analysis of your case, and thereafter if further work is required we can offer you written estimates, fixed fees or costs caps (you set the budget and we will work within it).

Payment terms can be agreed so that you can pay in instalments to help you budget for your case.

The Firm is committed to defending the rights of consumers, but also has vast experience in representing businesses subject to claims by consumers.

If you need help or advice on any consumer issue then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com.

The Consumer Rights Act 2015

9th October 2015

Introduction

The Consumer Rights Act 2015 (“the Act”) came in to force on the 1st October 2015. It will apply to contracts entered into on or after the 1st October 2015. It is a mixed bag of consolidating previous legislation into one statute and also some new law. It applies to contracts between traders/businesses and consumers, but not between businesses. This article summarises the main provisions of the Act.

Statutory Quality Standards (“SQS”) for the sale of goods

There are virtually identical SQS under the Act as previously, e.g. goods to be of a satisfactory quality, fit for purpose etc. In addition under the Act goods will need to:-

(i) Match any models seen or examined by the consumer, save where any differences are brought to the consumer’s attention before he enters the contract; and

(ii) Conform with pre-contract information.

Remedies in respect of sale of goods

The Act has changed the position on remedies for a consumer where goods are faulty. Previously a consumer had the right to reject and get a full refund provided he did so within a reasonable period of time subject to the right being lost if the goods were accepted by the consumer. Now under the Act the consumer, save for very limited exceptions (e.g. perishable goods) will have 30 days within which to reject and claim a refund.

If the right to reject is not exercised then the consumer has the right to a repair or replacement. The trader/business will only have one chance to repair/replace. If the goods are not repaired/replaced within a reasonable time or it is not possible or is unsuccessful, then the consumer has the right to a price reduction or a final right to reject.

The statutory remedies are in addition to other rights, e.g. to claim damages but obviously a consumer cannot recover twice for the same loss.

Digital Content

Prior to the Act, there was no specific statutory right regarding digital content. Now if any digital content supplied on or embedded in goods does not conform with the SQS under the Act, the digital content with be deemed faulty and the statutory remedies as above will be available.

Rules on Delivery

Rules on delivery have changed. Unless a business and a consumer agree a time or period for delivery before the contract is made, goods must be delivered without undue delay and within 30 days. Furthermore the goods remain at the trader’s risk until they come in to the physical possession of the consumer or the consumer’s nominated agent.

Services

Prior to the Act, consumers had no statutory rights when services were of poor quality or defective, although there were common law remedies (e.g. damages) if the services were in breach of any expressed or implied clause that the trader would use reasonable skill and care. The Act provides as follows:-

(i) Every service contract includes a term that a trader must perform the services with reasonable skill and care. Liability can only be excluded/limited if it can be limited to the price paid by the consumer;

(ii) Pre-contract statements or information about the services will become contractual terms if they are taken into account by a consumer when he decides to enter into a contract;

(iii) If the contract price has not been paid and is not fixed, then the consumer has to pay a reasonable price. A reasonable price will be a question of fact;

(iv) If the time for performance is not fixed by the contract, the trader must perform the contract within a reasonable period of time.

Remedies for Defective Services

If (i) or (ii) above is breached then in addition to other remedies the consumer can require repeat performance at the trader’s costs unless impossible. The consumer can also seek a price reduction (which also applies to (iv) above) where repeat performance is impossible or the trader has failed to perform in conformity with the contract within a reasonable time and without significant inconvenience to the consumer. The price reduction can be the full amount.

Unfair Terms

Terms that seek to exclude or limit a consumer’s statutory rights and remedies in respect of goods are not allowed.

All written terms must be in plain and intelligible language and legible.

Most contract terms and any notices will be subject to a fairness test. Terms that are unfair will be void and unenforceable.
Terms that relate to the amount to be paid, or define the subject matter of the contract will be exempt from the fairness test provided they are transparent and prominent.

Consumer Guarantees

The Act is virtually identical in this regard to pre-existing legislation. A consumer will have however a new right to require a copy of any guarantee.

Grant Shackleston, head of our Litigation Team has commented as follows:-

“The Act consolidates much of the old law, which will be helpful to us lawyers! As for the changes, traders/businesses need to be on their guard! They will need to:-

(i) Review consumer contracts and notices (including website terms) to ensure compliance with the fairness rules;

(ii) Review all advertising/additional materials provided in the run up to selling as such matters referred to therein are likely to be contractually binding;

(iii) Brief all sales staff on the new tiered remedies, reviewing cancellation and return policies in the process;

(iv) For traders in digital content, to ensure that terms and conditions of business reflect the new law;

(v) Review terms and conditions of business to ensure that they are compliant with the new tiered remedy system.”

If you are a trader or a consumer and require advice on anything relating to the Consumer Rights Act 2015 or any other consumer type issue, then please contact Daven on 01775 722261 or email daven.naghen@maplessolicitors.com or visit or attend at our offices for an appointment at 23 New Road Spalding Lincolnshire PE11 1DH.

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Residential Property

Who Will You Be Entrusting With Your Conveyancing?

13th December 2017

Who will you be entrusting with your Conveyancing work? The Choice is yours!

Are the selling agents or perhaps the mortgage broker pushing or trying to persuade you to use a particular conveyancing firm? If so, we would strongly recommend that you ask the following pertinent questions so that, armed with all relevant facts, you are better able to make a reasoned decision:-

Why?

Are the agents receiving a kickback or referral payment from the firm concerned? Using a firm in cahoots with an estate agency inevitably leads to a potential conflict of interest. Will such firm be working in your best interests or simply those of the introducer? Here at Maples we pride ourselves on being completely independent and we consider the idea of a referral fee both abhorrent and unethical. We much prefer to obtain our work based on past performance and recommendation.

How Much?

Do not be misled by a seemingly attractive basic figure initially quoted but be sure to enquire about and read the small print for add ons for so called “extras” (such as mortgage costs, preparation of a stamp duty land tax return, telegraphic transfer fees and the like) which suddenly spring up at a later date and only become apparent in the firm’s final statement. Ensure that you are comparing like for like. Here at Maples, we give you a complete and all inclusive rundown of our professional charges and all disbursements at the outset, with no hidden extras.

Where?

Is the firm local or, as is more likely, based in a completely different part of the country? If the latter, then the transaction will, without a doubt, be dealt with by post, phone or email and lack any personal contact. Here at Maples we are fully accessible, like to meet our clients to discuss and advise upon the transaction face to face and share with you the benefit of our wealth of local knowledge and experience.

Who?

Will you actually be aware as to who will be dealing with the matter for you or will you simply be a reference or matter number at the end of a phone in a firm dealing with volume conveyancing? Here at Maples, you will be assigned to your own experienced and dedicated conveyancer who will be responsible for and deal with the transaction for you from beginning to end, with a high level of personal service throughout.

Making a hasty and bad appointment could seriously prejudice or delay your transaction and cost you dearly. Getting honest answers to these four simple questions at the outset could make all the difference.

To discuss any Conveyancing matters please contact Donna Sandison of our Conveyancing Team or telephone the office 01775 722261.

Guide to purchasing a residential property

3rd July 2023

Whether you are a first-time buyer or have bought a property in the past, the conveyancing process can be overwhelming and confusing. We aim to try to provide some clarity and guidance for our clients.

The transaction will be slightly different depending on whether the property is freehold or leasehold.

Freehold – an owner owns the property outright and is responsible for all maintenance. An owner will have more freedom to do what they want with the property which will of course subject to obtaining planning permission or building consent.

Leasehold – an owner only owns the right to live in the property for a fixed period of time by way of a lease. The property will usually be a flat but could be a shared ownership house. The lease will outline terms and conditions to be complied with. The landlord ultimately owns the freehold of the building and may appoint a management company or managing agent to oversee management of the property. A leasehold property can also be subject to certain restrictions for internal alterations and you will be liable for additional costs, such as service charges and ground rent. Any alteration to the property will require the consent of the landlord.

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Debt Recovery

Claiming Debts from a Debtor in another EU Country

25th October 2011

Often businesses are put off claiming debts against persons or companies from another EU State because they assume it will just be too much hassle and too complicated.

Since 2008 the European Order for Payment (EOP) Procedure has provided a quick, easy and relatively cheap way of recovering uncontested monetary debts in cross-border cases.

How do I get an EOP?

It is quite simple, and in order to start off the process you need to complete Form A. The form is available on the European Commission’s website (http://ec.europa.eu/justice_home/judicalatlascivil/html/index_en.htm).

Within the form you need to give enough information to evidence your claim, e.g. details about outstanding invoices etc.

The Court will check to see that the form is properly completed, and if all is okay then you get an EOP and these are usually issued and served upon the debtor within 30 days.

What happens next?

The defendant may pay the amount due to you, do nothing or object to the EOP by completing a statement of opposition within 30 days.

If the debtor objects, then the case will normally be transferred to the national system of the Court issuing the proceedings. At this point you are probably best to seek legal advice.

If the defendant does nothing, then the EOP is immediately enforceable.

How do you enforce an EOP?

An EOP is treated the same as a Judgment by a Court of the MemberState when you are trying to enforce the claim. Rules about enforcement change from State to State. Information can be obtained from http://ec.europa.eu/civiljustice/index_en.htm.

If you need help in enforcing a cross-border debt then please contact Daven Naghen on 01775 722261, daven.naghen@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH or Gemma Mayer on 01775 722261, gemma.mayer@maplessolicitors.com or at 23 New Road, Spalding, Lincolnshire PE11 1DH.

Top 10 Tips for Debt Control

20th July 2017

1. Check out your customer

Before conducting business with a customer get to know them to try and ensure that they will be credit worthy.

Collect evidence that your customer is who they say they are by getting copy utility bills or bank statements. Carry out credit checks, and insist on a payment up front if the credit rating is poor or questionable. Request trade references from their other suppliers, to see if they are paid promptly and in full.

2. Provide your Terms and Conditions

A well drafted set of terms and conditions can protect you in case of late or non-payment. You should ensure that the customer has these from the outset, and if possible get the customer to sign to acknowledge receipt and consent to them.

The terms and conditions should set out the maximum time allowed for payment (e.g. 30 days) together with a sanction for late payment (e.g. interest – include the rate also).

Occasionally a retention of title clause may prove handy, which states you retain ownership of the goods until paid for in full and that you retain the right to recover the goods if they do remain unpaid for.

3. Make it easy for the customer to pay

Give the customer all the information that they need in order to pay, e.g. your bank account and sort code, purchase order number etc. If possible have a variety of different payment methods available, such as direct bank transfer, card payment etc.

4. Set a Credit Limit

Do not allow customers to build up large credit limits, bill them regularly and or insist upon a payment up front or on account. Once you set a limit then stick to it, and don’t allow a customer anymore goods or services until your outstanding charges have been paid for.

In certain cases insist upon payment in full up front if for example you doubt the customer’s credit worthiness.

When dealing with limited companies it is also useful sometimes to obtain a personal guarantee for your fees from a director, so that he or she can be personally liable in the event of default by the company.

5. Submit invoices regularly

Invoice your customers regularly, so credit is not allowed to build up and to ensure so far as possible that you get paid on time.

6. Have a good Credit Control System

Keep track of invoices that are awaiting payment and those that have fallen overdue. Send reminder letters, and or call the customer to ask for payment or an explanation of the delay. Try to speak to the person responsible for actioning or authorising the payment, e.g. the accountant or financial director. Make sure you call at suitable times, i.e. not lunchtimes or too late in the day, so you “catch” the person. Monday mornings are often a good starting point!

7. Resolve problems and deal with excuses

Occasionally the customer will have a genuine issue that will need resolving before payment will be made, such as the goods are faulty or they are not happy with a certain aspect of your service. Try to resolve these as soon as possible to ensure that you get payment.

Often customers will use delaying tactics (i.e. excuses) e.g. not received an invoice, have sent a cheque in the post etc. Deal with excuses promptly, e.g. fax a copy of the invoice over to the customer and ring the customer to ensure receipt, ask for the cheque number and the date posted and check your post the following day.

8. Keep full records

It is important to keep a full log of telephone calls, correspondence etc, to help you make decisions, how to proceed and possibly to use as evidence at a later stage.

9. Stop the accounts

If payment is not forthcoming, stop providing the goods and or services until the account is brought up to date. This will at least limit the sums that you are owed.

10. If needs be take enforcement action and go to Court

Sending letters after letters demanding payment can be a wasted exercise, as the customer may think that this is just bluff. If you have not been paid and you have given the customer a reasonable opportunity to pay then if needs be commence legal proceedings promptly to maximise the prospects of recovery. Some times it may not be commercially appropriate to commence proceedings, and if you are in any doubt then speak to us!

If you do have any problems with customers relating to non-payment of your invoices, then please contact either Daven Naghen on 01775 722261 or daven.naghen@maplessolicitors.com or contact Gemma Mayer on 01775 722261 or gemma.mayer@maplessolicitors.com

A Brief Guide to Enforcing a Judgement

25th January 2013

You may have got an Order from the Court for payment of a debt, damages and or costs, but how do you turn that piece of paper into actual money if the other party (“the Judgement Debtor”) does not pay up willingly?

In such circumstances you need to apply to the Court to enforce the Judgement. This is a brief guide to some of the main options that will be available to you:-

1. Oral examination

Often you have little or no knowledge as to the Judgement Debtor’s financial circumstances and his assets. Quite often the Judgement Debtor will not volunteer information to you such as employment details, bank details, properties owned etc. One option here is to summon the Judgement Debtor to Court for an oral examination. Here the Judgement Debtor will be questioned by a Court officer, and in certain circumstances a Judge, to find out more details about his needs. You can then use this information to decide the best method of enforcing the Judgement.

If a Judgement Debtor does not co-operate, i.e. does not turn up, then he can be sent to prison for contempt of Court.

However “streetwise” Judgement Debtor’s often omit to give information to the Court (i.e. fail to disclose certain bank accounts etc) and it is then very difficult to know or prove that such assets exist unless the Judgement Debtor is completely frank with the Court.

2. Writ of Fieri Fascias (“a Writ”) and Warrant of Execution (“a Warrant”)

A Judgement can be enforced by seizing goods belonging to the Judgement Debtor by obtaining a Writ (in the High Court) or a Warrant (in the County Court). The procedure is relatively straight forward and does not usually involve any Court Hearings. The Writ or Warrant will authorise a High Court enforcement officer or a bailiff to visit a Judgement Debtor and seize goods with a view to selling them to raise funds to pay your outstanding Judgement.

Quite often when a High Court enforcement officer or bailiff visits a Judgement Debtor, the Judgement Debtor will make a payment to prevent his goods being seized and sold.

Only a few goods are exempt from seizure, such as tools required by the Judgement Debtor in his employment/business.

Of course the success of a Writ or a Warrant depends upon the Judgement Debtor having goods of a sufficient value to meet the Judgement Debt after the sale costs have been deducted.

3. A Third Party Debt Order (“TPDO”)

A TPDO freezes sums owed to a Judgement Debtor that are in the control or possession of a third party, such as a bank. The Judgement Debtor cannot access money until the Court makes a decision about whether or not the money should be paid to the Judgement Debtor.

If the Court determines that some of all of the sums should be paid to you, then the third party (e.g. the bank) will be ordered to pay the sum to you directly. This is a very useful enforcement option if you know the Judgement Debtor’s bank details (for example obtained from an oral examination or from payment made previously to you). However to succeed there must be sufficient funds in the bank account at the time you apply for the TPDO or else you will receive little or nothing.

4. A Charging Order and Order for Sale

A Charging Order is a way of securing a Judgement by imposing a charge over the Judgement Debtor’s beneficial interest in land, securities or certain other assets. The Judgement Debtor then cannot sell the land etc without paying what is owed to you provided there is sufficient equity after payment of any prior creditors.

The Charging Order itself does not realise funds to pay the Judgement, it simply secures your Judgement against the land or asset in question.

To realise money you may need a sale of the property, which may not take place ordinarily for some time. An Order for Sale can be applied for, but they are difficult to obtain if say the Judgement Debtor is paying the debt in instalments, the debt is relatively small compared to the value of the charged asset and or other persons live in the property (such as the Judgement Debtor’s children etc).

This is a useful option if there is substantial equity in a property and the Judgement Debtor is a sole owner. However this method is less satisfactory where there is limited equity in the property or it is jointly owned as a family home.

5. An Attachment of Earnings Order (“AEO”)

This provides that a proportion of the Judgement Debtor’s earnings is deducted by his employer at source and paid to you until the Judgement is paid in full. It is only available against individuals in employment and who owe £50.00 or more. If the Judgement Debtor is unemployed, self employed or a company then this is not an option for you. AEO’s are relatively inexpensive and fairly easy to obtain, and the Court administers the deductions.

The Court will determine the sum to be deducted from the Judgement Debtor’s wages, and will take account of the Judgement Debtor’s necessary costs of living.

If an AEO is obtained and regular payments made then you cannot take any further enforcement action against the Judgement Debtor, such as a Writ or a Warrant or a Charging Order. Usually the other enforcement options can be used together to try and get full realisation of the sum owed to you.

6. Bankruptcy/Company Liquidation

If you are owed more than £750.00 you can apply to make the Judgement Debtor bankrupt if he is an individual or to wind up the Judgement Debtor if it is a company. Often the process is to issue and serve a Statutory Demand detailing the sum owed and giving the Judgement Debtor 21 days in which to pay. Usually this process is carried out without the need to obtain a Court Judgement.

If the Judgement Debtor does not pay or fails to set aside this statutory demand, then you can present a petition for the bankruptcy/winding up of the Judgement Debtor.

After bankruptcy/winding up, a trustee in bankruptcy or a liquidator will be appointed to collect in and distribute the Judgement Debtor’s assets amongst his creditors. Hence this can be an expensive and time consuming process, and may lead to zero or little recovery if there are secured and or preferential creditors and or little or no assets to pay significant debts. The threat of commencement of bankruptcy/winding up may lead to the Judgement Debtor making payment to you in order to avoid the risk of a bankruptcy/a winding up.

If you are currently having problems enforcing a Judgement of payment of a debt then please contact Daven Naghen on t or email daven.naghen@maplessolicitors.com

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Coffee Morning and Pop-Up Clinic

Join us at The Ruby Hunt Centre, Church Street, Donington, PE11 4UA on Monday 11th March 2024 between 10am and 12pm for a free coffee morning and pop-up clinic to talk about Wills, Powers of Attorney and financial planning for Care Homes.

If you cannot join us for the coffee morning, please contact one of our lawyers in the Wills and Probate Department to discuss a home visit.

Or telephone the office 01775 722261 and ask to speak with one of the team.

We look forward to seeing you there.

Jamie Dobbs FCILEx

"I should like to take this opportunity to express my very sincere and grateful thanks for Jamie's unfailing helpfulness and efficiency in all aspects of the handling of my late stepmother's estate. Jamie have always replied to my (many!) queries promptly and comprehensively which has been a enormous help throughout what I know can be a fraught and stressful process. Sadly, it is increasingly rare these days to experience the highs standards of service that Jamie has provided."

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

James Turner BA

James Turner was extremely helpful with our buying process. Everything went smoothly. We are very happy with the level of professionalism demonstrated by the office. Highly recommended solicitors. Will definitely do business with them again.

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs GCILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.

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