Archive for April, 2013

Best endeavours vs. Reasonable Endeavours
Michael Lowry, partner and Team Leader for Stephens Scown’s Cornwall Family Team

Frequently, when parties reach a divorce settlement, the Applicant Solicitor will draft a Consent Order to include an obligation as an undertaking to the Court that “best endeavours” will be used to procure the release of one party (usually the Husband) from liability under a mortgage of the former matrimonial home.

This undertaking is usually accepted without any debate recognising that it would be impossible for the party to accept an absolute obligation as opposed to best endeavours considering it is a third party; here the mortgage company, who will ultimately release the party from the mortgage.
However, the definition of “best endeavours” is a classic grey area with little family case law as guidance. A term which evidently invokes an expectation of performance also carries a risk of non performance as there is no set definition on what must be achieved through the performance of a best endeavour.

Guidance can be found in the case of Lyons v Lyons [2010] where Rimmer LJ comments that a best endeavours undertaking is “one that imposes a high burden of responsibility”.

It is in commercial cases that the most useful guidance can be found. An obligation to use best endeavours has been held to constitute as following:

1. To do what can reasonably be done in the circumstances (Terrell v Mabie Tood & Co Ltd (1952))

2. To leave no stone unturned (Sheffield District Railway Company v Great Central Railway Company (1911))

3. Will not require actions which would be detrimental to the financial interests of the company or would undermine commercial standing or goodwill (Rackham v Peek Foods Ltd (1990))
Performance of a best endeavour obligation steers towards the necessity to take all practicable action.

In comparison, “reasonable endeavours” imposes a fair less onerous performance on the obligor. Rhodia International Holdings Ltd v Huntsman International LLC [2007], another commercial case, presents the obligation to follow one course of action and not all courses of action.
A comparison of the two definitions then determines that a reasonable endeavour obligation probably only requires the obligor to take one reasonable step, whereas a best endeavours obligation most likely requires the obligor to take all reasonable steps available.
Commercial law evidently is attempting to define the boundaries between best and reasonable endeavours. However, within the family context, the grey area in definition remains open to interpretation by the Courts. A Solicitor must therefore be comfortable with the degree of difference between the two. Such knowledge on board, a Solicitor would be mindful to advise their client what specific action must be taken in compliance. Similarly, a draftsman will be wise to set out a particular course of action specifically required to guide not only the Obligor but also the Court in determining if the clause or paragraph has been complied with.

Appropriate advice and accurate drafting therefore will limit the inherent risk which comes with a best or reasonable undertaking to the Court.

By Michael Lowry

Michael is a partner and Team Leader for Stephens Scown’s Cornwall Family Team. With offices in Exeter, Truro and St Austell, Stephens Scown Solicitors support some of the South West’s key sectors with specialist legal advice. For more information please visit http://www.stephens-scown.co.uk/

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How To Deal With Bullying At Work

Workplace bullying is more common than what people may realise. Employees that are being bullied can suffer from stress, lose self-confidence and not do their job properly, not to mention how miserable it makes them.

What is bullying?

Bullying can be described in several ways – an abuse of power that undermines, embarrasses or hurts a person and also behaviour that can be offensive, insulting or intimidating. Some examples of bullying in the workplace could be having someone spreading malicious rumours about you, intimidating you physically, making threats about your job or using abusive language towards you.

What can you do?
This can be a tough one to deal with. Firstly you should talk about it. Don’t keep quiet about it, as this is probably what the bully wants you to do! Talk to as many work colleagues, family and friends about it so that they know what is going on. They can offer you a great level of support and may have some advice for you.

Don’t retaliate! As tempting as it may be, this only makes things worse and is a BAD idea!

If you think you are being bullied at work you could start by keeping a diary of all the incidents. Note down date and time and what occurred. If you have witnesses you can also ask them to record what happened. If you are suffering from stress, you should seek medical advice and keep a record of this also. You can then bring this to your employer’s attention. A good idea is to write a formal letter to your employer so you are clearly bringing the bullying to your employer’s attention and there is a permanent record of this if needed for future reference. Remember to keep a copy for your own records!

Your employer may not be aware of the situation you are in and you need to let them know. It is then your employer’s responsibility to sort the issues out. Hopefully your employer will sort things out successfully and professionally and you can go back to getting on with your usual work. It is up to your employer to provide a safe environment for you to work in and take action when required to keep it that way.

If you don’t have higher management to turn to you could try seeking out your union official and asking them for advice or else a health and safety officer where you work.
If your employer does nothing, you could then file a personal grievance against your employer for failing to provide a safe workplace.

If things do not turn out as you hoped and do not get resolved, they could in fact make the situation worse and you may have to seek legal advice to see where you stand and what you can do about your situation. Before you look to head down that track it might pay for you to think seriously about looking for employment elsewhere. Court cases can become stressful and you may be in for a battle so ask yourself first if it is worth it?

Unfortunately, leaving your job should not be something you are forced into. It should be the bully that is leaving. If you leave then the bully will probably find another target and the cycle will continue. So try leaving this as a last resort if you can.

This article was written by Diane Povey who is a specialist in accident at work claims and employment law.

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On April 1 cuts of £350 million from the legal aid budget of £2.1 billion came into effect.

As of now, there is no free legal advice for employment cases, non-asylum immigration cases, consumer rights and, most perniciously, welfare benefits.

Those needing welfare benefits advice are, obviously, the poorest in our society. The Department for Work and Pensions (DWP) should of course get its decisions on who is entitled to what right.

Yet 40 per cent of challenges against DWP decisions succeed, showing that it freq­uently gets decisions wrong, most scandalously when disabled people are certified as fit for work.

From now on it will be almost impossible to get independent advice on whether to challenge a DWP decision.

There is now no legal aid available for family disputes, unless domestic violence is involved. This will actually lead to more disputed court cases and more acrimony between separating couples….

The full article by Liz Davies – The Fourth Pillar of The Establishment –  is a severe indictment of the current policy on legal aid and is well worth reading

The present Lord Chancellor, Chris Grayling, is not a lawyer.  This may not matter if he had a good understanding of the way his policies are likely to impact on people and the legal profession.

Interestingly, Simon Myerson QC tweeted this weekend in response to a tweet from Adam Wagner

@AdamWagner1 Hmm that’s such a difficult question. Yes. The AG said yesterday that Grayling didn’t understand the impact of his proposals…

Adam Wagner tweeted: Grayling in today’s Times: “cuts were .. painful for many in the law. But were they really the wrong thing to do?” http://www.thetimes.co.uk/tto/law/article3740749.ece …

It is an unfortunate state of affairs, to say the least,  when the Attorney-General feels obliged to make a comment of this nature about a Cabinet colleague.

With the row over QASA – many barristers are opposed – and the dire reforms of legal aid,  the government is compromising the quality of legal advice and representation available – often to the most vulnerable in society -and access to justice is being denied.

PJM QC@pjm1kbw 19 Apr

It can come as no surprise whatsoever to MoJ or HMCTS or the Judges that finally things have come to a head? #QASA

#FailingGrayling – as he is becoming known on twitter by lawyers – will, I am fairly sure,  reap the consequences, including unintended consequences, of his lack of grasp and understanding.

And if you still have any doubts about Grayling’s plans being overblown in the media – please read this article

High Street solicitors could be forced to close by Government legal aid changes
MORE than 1,500 High Street solicitors will be forced to close branches “within a year” if the Government’s controversial legal aid reform plans succeed.

The loss of High Street solicitors would also have a severe impact on barristers. Michael Turner QC, head of the Criminal Bar Association, warned: “Our barristers’ system will fail. Our brilliant judiciary comes from the Bar. Once you have Tesco and G4S providing advocates, you will get Tesco and G4S judges in 10 years’ time. Make no bones about it, we are facing absolute devastation to what is the finest legal system in the world.”

He rejected claims that Britain’s legal aid was the most expensive in Europe. “You have a different system there, with investigative magistrates who interview witnesses, and the big cost is the judicial spend.”

I shall leave the last word in this post to Simon Myerson QC…“Sundays in chambers. All it needs for perfection is that I have to do it for nothing. Oh wait. @MoJGovUK.”

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Iain Gould, Solicitor and Partner at David Phillips & Partners
TourLawcast 15

The Police and the Crown Prosecution Service  play a pivotal part in the criminal justice system – but, what happens when the Police break the rules or are negligent?

Solicitor Iain Gould has built up specialist expertise in the field of actions against the police and shares his thoughts and experience in this podcast

Listen to the podcast

iTunes version of the podcast

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What are DBAs and do they need Re-examination?
Lee Foster, Solicitor and Head of Motor Litigation at Spencers Solicitors.

So, April has arrived and that long-forecasted wave of reform has finally hit British law.  Practitioners up and down the country are adapting to change right now and a couple of new legal abbreviations have spawned as a result.  Here’s my breakdown of what they mean…

Damage Based Agreements Explained
First of all, let’s look into a descendant of the ‘no win, no fee’ model we’re all familiar with – Damaged Based Agreements (DBAs). The Director of my law firm outlined the acronym’s definition in a recent blog post:

“A contract between the claimant and his or her solicitor, in which the solicitor agrees to be paid a percentage of the damages recovered in the case.”

So, with a DBA the solicitor would have vested interest in the compensation pay-out, instead of claiming fees separately from the losing side; the theory behind this being the lawyer becomes more inclined to get the best pay-out for their client (which I’d argue the best solicitors do this regardless).

The government has stamped a 25% cap on personal injury DBA fees, meaning representatives are paid no more than a quarter of the claimant’s total pay-out.

Concern from MASS about DBAs
As with any major change, there has been a certain level of concern from professionals on the frontline of the legal industry.  The Motor Accident Solicitors Society has expressed concern about the indirect negative impact this cap could have on ethics in law…

If the lawyer will only ever be paid 25% of the total damages and not according to the amount of hours invested into the case, it could urge practitioners to settle claims as early as possible.  This takes away from the ethical duty a personal injury solicitor has to their client, as rushing a case will likely result in an under-settlement, through inadequate representation.

This reason alone gives cause for concern and so it’s understandable why some UK lawyers still have their reservations about DBAs.

What we are doing instead…
Conditional Fee Agreements (CFAs) are slightly different and more rigid as a claims model in my opinion.  Solicitors are free to charge ordinary rates as well as attach a ‘success fee’ if they win the case.

Before the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act this success fee was recoverable from the losing party, now it is taken from the client’s compensation.
Still, the CFA is more ideal as solicitors are paid according to the hours they put in and rewarded for delivering results.  It remains akin to the ‘no win no fee’ model and all parties can benefit.

CFAs were first introduced in the ‘90s and although they have now been modified by LASPO, to me, they are more reliable than the fresh-faced DBA – which could do/have done with further assessment before adoption en masse.

About the Author

Lee Foster is a Solicitor and Head of Motor Litigation at Spencers Solicitors. A lawyer with over twelve years’ experience in personal injury litigation with an extensive background in road traffic accidents and industrial disease claims. Lee has been involved in a number of high profile Court of Appeal cases including ground-breaking litigation in the fields of industrial deafness and solicitor’s negligence. Lee is a Law Society PI Panel Member, Deputy Regional Co-ordinator ofMASS and an APIL Senior Litigator.

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There are three distinct legal systems in the United Kingdom:  Scotland, Northern Ireland and England & Wales – each subject to the appellate jurisdiction (save for criminal cases in Scotland) of the United Kingdom Supreme Court.

Over the course of the next year, as I resume my UK Tour, I shall be looking at, among many other issues, the many and various ways law is practiced in the UK from sole practitioners to traditional High Street firms through to the new models arising from the Legal Services Act like Riverview Law and Lawyers On Demand and on to the rarefied echelons of ‘City’ practice with the ‘Magic Circle’ and BIGLAW law firms of the City and other commercial centres.

The Law Society of Scotland quoted Lord Wallace in a recent tweet: “We have a very modern legal profession with expertise across a broad range of areas”

Today – and I plan to do a follow up podcast with Brian Inkster, Solicitor of the Year in 2006  – I am looking at the impact a small, but growing, law firm in Scotland has made in but a few short years – Inksters.  I reveal, at once, that Brian Inkster is a friend. My focus is on Brian’s use of social media and blogging as a tool for marketing his firm’s expertise.  I shall ask Brian more about the way he practices law when I do the podcast with him later in the tour.
Scots lawyers have told me that Inksters is a firm that punches above its weight.  A quick look at the history of Inksters will give you an insight into the way Inksters has developed and is an interesting read. It is worth drawing attention to the fact that Inksters, competing against some very well known Scots law firms, was one of six nominees for Litigation Firm of the Year in 2008.

Turning to specialist legal practice  interests and the use of social media (Inksters was the first law firm in Scotland to use Twitter on 11 February 2009).

I met Brian Inkster initially on Twitter and later at an Italian Restaurant – we sat outside on a balmy Autumn evening, I recall, in Battersea Square. I enjoyed the evening and it was very clear to me that Brian, a man with considerable energy, had an innovative approach to marketing and the use of social media.  Those who follow Brian on Twitter will know that he engages well with lawyers and non-lawyers alike.  His many twitter accounts do not simply ‘broadcast’ – ‘they’ respond to questions and are more than prepared to engage in discussion – a valuable lesson some other law firms could benefit from.

Blogging can be a powerful tool for marketing if done well.  There are many good examples of lawyer blogs which provide insight, analysis and comment into specialist areas of law.  I apologise for any omissions – there are too many to list, pleasingly, but here is a small  selection of some of the well known blogs written by lawyers: Nearly LegalConflict of Laws.net, The Bung Blog, Jack of Kent, The UKSC blog, Family Lore, The UK Human Rights blog.

Here is a more comprehensive survey of lawyer blogs which I covered in UK Blawg Review #10.

And on the issue of blogging – Brian Inkster has several styles – the light hearted yet insightful – The TimeBlawg  – and the more serious.

Inksters Solicitors launched a dedicated Crofting Law Blog on 18 March 2013.

 Over the three weeks prior to that Inksters posted eleven crofting law related news items on their general website. Most of these relate to the crofting law debacle created by the Crofting Commission when they suddenly announced that they were no longer processing applications to decroft (i.e. remove land from crofting tenure) made by owner-occupier crofters. The Scottish Government last week announced that it will introduce a Bill to correct the “flaw” in crofting legislation detected by the Crofting Commission. Brian Inkster has questioned whether there is in fact a flaw to remedy and clarity is still awaited from the Crofting Commission / Scottish Government as to what this flaw actually is. To date they have refused to publish the legal advice that they have obtained.

Brian Inkster said “Crofting law appears to be in turmoil in a way that has possibly not been seen since it was introduced in 1886. The time is surely ripe for a crofting law blog to air the issues arising in an open, clear and transparent way.”

While Crofting Law is a specialist legal topic – there is no doubt that Inksters will build their profile in this field with this new legal blog and resource.

Brian Inkster does not take himself too seriously – I thoroughly enjoyed (as did others) his use of Christmas Hat cards as a subtle marketing initiative

In the podcast, later on my tour, I will ask Brian Inkster about his approach to the practice of law.  The Inksters website is well worth a look at as an example of law firm marketing, and for those of you who want to bone up on your crofting law – you know where to go!

Finally – it has to be said that Brian does a ‘mean tango’ – why am I not surprised? This interview on 22 tweets will give you an insight!

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Over the last three months I have been rather ill – an understatement.  It was a close run thing.  I shall leave it at that – but thank you for your kind emails and tweets.

I return to blogging and my Tour – initially, with some profiles and podcasts remotely done over skype, but back on the road in the Jag Rouge soon.

I get a lot of support from law firms and others for my tour – so I try to ensure supporters get something back – hence the many recent guest posts. I am grateful for the support for the project  – not being a rich man!

On this day when Mrs Thatcher dies – I leave you with two tweets I put up before the news broke to leaven the rather unpleasant tweets I have seen on my timeline today.

TWILDEBEEST n. Tweeter armed with pitchfork, flaming torch and general ignorance. Stampedes when struck down with kneejerkitis vulgaris

As John Mortimer QC once observed… people should be offended three times a week and twice on Sundays 🙂

Onwards and upwards…

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