Interesting case of turning the tables on cold callers

Like many others, we welcome the news that a cold calling company recently received it’s comeuppance as highlighted by this article in the Daily Mail. We hope this does lead to many others taking the same kind of action because the cold calling business gives a very bad name to genuine personal injury law firms and is clearly making some companies a lot of money.

One perhaps interesting point to note from the Daily Mail article is the claim for £10.00 a minute made by the claimant. We think this is entirely legitimate, but it is important to be aware that this is not some kind of “going rate”. It appears that the claim was settled and it’s worth being aware that, under English law, whilst a county court judge would be highly likely to be sympathetic to a claim such as this, especially with proof, English law generally does require a claimant to prove loss and damages for inconvenience or such like are certainly not the norm, so it is also possible that if a number of further claims like this are made in the courts, even though the cold calling company may be unable to contest liability, they may well test the quantum, or value, of the claim, so as to seek to put off anyone not making a claim against them purely for reasons of principle.

It’s also important to remember that any court claim, including a small claim, costs money to start, and a cold calling company could be out of business by the time you get them to a hearing, so this is also worth considering as well.

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Trends and problems in internet & IP law

Guest post from Gannons, a specialist law firm for business offering commercial legal advice for entrepreneurs, shareholders, directors and employers.

Social media brought vast changes to the online world not only for the users but perhaps primarily to those who need to shape the law to ensure that sufficient safeguards against personal data misuse exist.

Although, the law has not yet been settled and well-tested there is very little time to do so. The dynamic growth and implementation of new technologies and solutions in the online sector has been booming and is heading towards its peak. Continue reading

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Bribery Act and hospitality – businesses are nervous

When does Hospitality turn to Bribery?

With the emergence of the Bribery Act in 2011 a wave of nervousness has struck businesses with regard to corporate hospitality and the question now being asked is how much hospitality is too much hospitality?

This new act is causing those in business to tighten their belts where hospitality is concerned for fear of being accused of corruption.

The Bribery Act was intended to cause problems for the small percentage of corporations intent on corruption but instead seems to be having an impact on many businesses operating on the right side of the law.

Unreasonable or disproportionate hospitality will be seen as a breach of the Bribery Act as will failure in preventing bribes being made on behalf of companies and corporations will need to show that they have the appropriate procedures in place to deal with such occurrences.

This has prompted many companies to review their hospitality rules and employ the help of compliance officers.

The intention of prohibition of ‘lavish’ entertainment via the Bribery Act is causing great confusion, especially as there is no clear definition of exactly what constitutes ‘lavish’ entertainment. Companies are just not being made aware of how much is too much and are making drastic rule changes and over compensating to avoid falling foul of the law.

This couldn’t be more obvious than with Olympic sponsors. The 2012 Olympics are quite literally just weeks away and sponsors are still trying to finalise their ticket allocations. One particular sponsor felt that their opportunity to showcase their association with the Olympic Games to their clients had been lost and they certainly never imagined they would have to telephone guests to find out whether being their guest at the Olympics would cause problems.

Some guests are even requesting complete breakdowns of their hospitality packages so that they can calculate the exact value of each section.

Sponsors are also asking legal advisers whether their invitations should include the guests’ spouses and whether they should make the offer to pay the travelling expenses of guests coming from overseas.

Amongst others, two well known Olympic sponsors, Adidas and Lloyds, have made the decision not to take up their full Olympic allocation this year to keep it in line with the current economic climate.

Mr. Grant Rogan from Blenheim Capital, a company which organises offset agreements within the defence industry, has admitted that he has cut the company’s expenditure on corporate hospitality.

Blenheim Capital’s corporate hospitality includes Six Nations Rugby, Wimbledon and Royal Ascot and their average expenditure on corporate hospitality for these events is between $2 and $3 million but, because of the Bribery Act, Mr. Rogan has seen no option but to cut this amount down to £300,000. And again it all comes down to the ‘lavish’ entertainment thing.

Mr. Rogan believes it makes sense to play it safe and not test the boundaries unnecessarily until everyone is clear on the exact definition of lavish.

Mr. Rogan also claimed that he had noticed that some clients were willing to pay face value for their tickets and decline offers of hospitality for the Olympic Games and Wimbledon and some customers have even been prompted to remove their names from the corporate boxes.

Prestige Ticketing, the sole commercial Olympics corporate hospitality rights holders are offering their tickets for the opening ceremony at the highest price of £7,500 and, even though they are confident of selling their entire ticket allocation, having already sold 68% of the 100,000 tickets allocated to them, they don’t expect to make a great profit.

In 2008 the UK market for corporate hospitality was set at £1.04 billion, the forecast for 2012 is £1.03 billion and by 2013 the market for corporate hospitality in the UK is expected to drop to £1 billion.

Other useful resources :-

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Intestacy rules

What is intestacy?

Intestacy occurs when someone dies without making a valid will and their property (estate) will be distributed according to the statutory intestacy rules. The intestacy can be total where no will was left or partial where some but not all of the property is disposed of by a will.

Who is entitled to inheritance?

The rules of intestacy depend on the personal circumstances of the deceased.

  1. If the deceased person was married or in a registered partnership and there are children, grandchildren or great grandchildren:

The partner or spouse will inherit:

  • All of the personal property and belongings;
  • A statutory legacy of £250,000 free of tax plus interest (if the estate is valued more than £250,000); and
  • A life interest in half of the remaining estate.

The surviving children will inherit:

  • The other half of the remaining estate.
  1. If the deceased left a spouse or partner, no children but parents or brothers or sisters:

The partner or spouse will inherit (if they survive the deceased by 28 days):

  • All of the personal property and belongings;
  • The first £450,000 of the estate plus interest (if the estate is valued more than £450,000); and
  • One half of the remaining estate.

The surviving parents/ brothers or sisters will inherit:

  • The other half of the remaining estate
  1. If the deceased left a spouse or partner, no children, no parents or brothers or sisters:

The surviving spouse or partner will be entitled to the whole estate.

  1. If the deceased was not married or in a civil partnership:

The estate will go to either:

  • Children on statutory trusts (if any);
  • Parents;
  • Brothers or sisters of full blood;
  • Brothers or sisters of half blood;
  • Grandparents; or
  • Uncles and aunts.

If none of the above applies the estate will go to the Crown and the Treasury Solicitor is responsible for dealing with the estate.

Who is excluded from the intestacy rules?

The following people have not got the right to inherit if there is no will:

  • Unmarried partners – which is a very good reason to make a will and also to ensure that with a along term relationship you seriously consider a cohabitation agreement – as to what it might include, see here.
  • Relations by marriage (such step children, mother-in-law)
  • Friends
  • Carers

Special rights of the surviving spouse or partner

There are two special statutory rights, which must be exercised within 12 months of the grant of probate (the legal document which confirms the authority to deal with the property). These are:

  • Redemption of life interest (a spouse can choose to take a lump sum instead of receiving trust income)
  • Appropriation of the family home, which depends on the ownership of it:
  • If it was solely owned by the deceased, the whole value of the property will pass to the estate and will be distributed according to the rules of intestacy.
  • If the deceased and the surviving spouse or partner owned the house jointly as tenants in common then the share held by the spouse will still belong to him and the share of the deceased will pass to the estate.
  • If the house was owned jointly as joint tenants the survivorship rule applies and the house will pass to the surviving spouse or partner.


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People are buying online – law is no exception

Online retail sales hit £50bn

It always amazes, and continues to amaze us, that so few law firms, other than personal injury law firms. Really accept that business of all kinds now get a sizeable and rising proportion of instructions directly from the internet. This is fact, whether lawyers accept it or not.

Whilst legal services are of course different to selling widgets, the principle of increasing internet usage and decisions made due to surfing still applies to services and professional services. People are using and spending money on the internet like never before, growth continues to be exponential.

Research published just after Christmas on the online retail market proves that consumers, and buyers of legal services are also consumers, prefer to shop online. In the research :-

  • Online shoppers spent an average of just under £1,500 on 39 items each last year,
  • Kelkoo’s survey reveals that sales growth online for retailers was an average of 14%, and that’s in a recession
  • The overall expenditure in the Uk online is now over £50 billion per annum

Most estimates for the UK legal market suggest that over 15% of instructions, and rising, are derived directly from the net. If your website is invisible in google for numerous search terms, you are not going to get any work from the web, simple as that.

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Missing a trial date, applying to adjourn a trial and overriding objective

Practice Direction 39A of the Civil Procedure Rules 1998, (‘CPR’), gives guidance as to what happens if one Party fails to attend Trial.

A Judge should not exercise his discretion to strike out a claim merely because a Party failed to show, when legally represented.

Where a Party fails to attend, and has no legal representation, the effect of which means that the Party is absent from Trial, the Court has a general discretion under Part 1 CPR to effect the overriding objective having regard to all the circumstances, which includes effectively managing a case, and disposing of cases where no evidence is tendered, under Part 3.1 CPR.

Where a Party fails to attend without any explanation, the Court should still, in addition to striking out a Statement of Case, Defence, or Counterclaim, nevertheless invite the attending Party to state/prove his/her case.

What happens when a Party asks the Court to adjourn a Trial ?

The adjournment is likely to be considered by the Trial Judge, but will have to consider the administration of Justice, and Court time, as well as the effects on all parties and the costs involved.

What happens when a Judge takes the view that the Trial is to proceed in the absence of a Claimant or a Defendant?

It is likely that a Judge will rule against the party who is absent.

What do you do if you asked for an adjournment of a Trial, but the Court proceeded in any event ?

That absent Party may be able to apply to set aside the Judgment. That Party will need to make an application under Part 23 CPR. That application must be supported by evidence. The application must be made promptly, and must state the date upon which they found out that there was Judgment against them.

The Court would then have to consider relief from sanctions under Part 3.9 CPR.

It would be an abuse of process to Appeal such a decision in the first instance, but an Appeal of the decision not to set aside Judgment is not an abuse of process.

Things are different for Possession Claims:

In a Possession claim, where a Defendant does not attend, the Court has power under CPR 3.1(2)(m) to set aside Judgment because there has not been a trial per se, therefore CPR 39.3 is not applicable according to the case of Forcelux Limited v Binnie [2009] EWCA Civ 854.

The Forcelux case was expanded in Hackney London Borough Council v Findlay [2011] CA that in the absence of some unusual and highly compelling factor as in Forcelux, a Court asked to set aside a Possession Order under CPR 3.1 should generally apply the requirements of CPR 39.3(5) by analogy and should give precedence to the provisions of CPR 39.3.(5) above that of the principles set out in CPR 3.9.

David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, a member of the London Solicitors’ Litigation Association, and a visiting associate Professor of Law at Brunel University.

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Insurers not playing fair ?

In times of economic hardship, one area where few of us will take risks is in the myriad types of insurance we all have, and for understandable reasons. Insurance in many areas is either compulsory or highly advisable.

However, many of us have also had problems in being able to rely on insurance, with insurers seeking to rely on contract clauses which are either unclear or blatantly unfair. The biggest problem of all is that, if facing a dispute with insurers, this is a classic David vs Goliath situation and many individuals or businesses simply give up or give in.

The above are the obvious ways in which insurers may not always play fair, but there are unfortunately others as well.

Another example relates to fraud. There is very significant and hard evidence of  major fraud in car accident personal injury claims over the last decade. So much so that there are postcodes in the UK with ridiculously high incidences of minor accidents and whiplash claims. the insurers have known about these areas for some time and yet have done little, in conjunction with the police to sort the problem out. Instead, they have taken the line of least resistance. Car insurance is of course compulsory – so their response has simply been to raise premiums for all drivers, which is frankly outrageous.

another scandal has been the misselling of unecessary insuarnce products such as Payment Protection Insurance and only yesterday, it came to light that vulnerable old people were being sold policies to cover care home costs by a subsidiary of HSBC which were inappropriate for their circumstances.

Other than a generalised moan against insurance companies, this post was prompted by a US story we came across today, which makes interesting reading. Here is the link to the story, which in essence shows that insurers are quick to access death records so as to stop paying benefits but slow in advising beneficiaries of rights to pay outs where policies provide for this.

What do you think of this issue – have you had bad experiences with insurance ?

Finally, not all insurers operate in the above ways, there are of course good and bad, but the general principles about the power of insurance companies nonetheless apply.

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Bribery Act summary

Bribery Act

After 104 years, Britain has finally reformed the law on bribery. The Bribery Act 2010 came into force on 1 July 2011. Under the act bribery is defined as “giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so”. One of the criticisms of the act has been centred on this definition; it is largely being seen as too wide and largely vague.

The new Bribery Act 2010 introduces four new categories of offence, these are:

  • Offering, promising or giving a bribe to another person (section 1)
  • Requesting, agreeing to receive or accepting a bribe from another person (section
  • Bribing a foreign public official (section 6)
  • Failing to prevent bribery (a corporate offence) (section 7).


The offences under section 1 and 2 of the Bribery Act 2010 are known as general offences, these offences are linked to improper performance of individuals. These offences apply equally to public and private companies and individuals. These two general offences are seen to have been drafted very widely; the government have been keen for this to remain the case and to rely on the discretion of the prosecutor. The government hope that this will bring about a culture of zero tolerance when it comes to bribery and corruption.

The trouble with sections 1 and 2 is that it is conceivable that someone will be in contravention of these rules without being aware. Individuals are put into positions on a daily basis in which their actions may now fall foul of the Bribery Act 2010.

The offence under section 6 of bribing a foreign official covers only the giving or offering of a bribe and not the acceptance. The guidance on this section stresses that this rule is in place to stop businesses and individuals from attempting to influence foreign officials and trying to obtain a business advantage.

A company or an individual can be liable for an offence under sections 1,2 and 6 if the act they are being accused of takes place in the UK, or takes place outside of the UK, if the individuals concerned have a certain connection to the UK. For a company to be prosecuted for an offence under sections 1, 2 or 6 under the Bribery Act 2010, the offence must have been committed by a person who has a certain standing within the company and has the power to make decisions on behalf of the company itself. Historically it has proven very difficult to prove this in relation to companies, and many commentators are not expecting this to change in relation to prosecution under the Bribery Act 2010.

The corporate offence under section 7 is the section to which most companies will be the most concerned. A company will commit the corporate offence if an associated person performing services on its behalf, not even necessarily an employee, bribes another person to obtain a business advantage. There is only one defence available to this section, which is that relevant procedures were put in place to safeguard against such a thing. If the prosecution can show that a bribe was made, the burden of proof will be on the company to prove its innocence in this regard.


The penalty for individuals who are found to be in breach of section 1, 2 or 6 of the Bribery Act 2010 is a conviction of up to ten years imprisonment, an unlimited fine, or both. If a company is found to be in breach of these sections they will be liable to an unlimited fine. The corporate offence under section 7 of the Act also carries with it an unlimited fine.

Further punishments for companies that fall foul of section 7 of the Act will include disbarment from public procurement under the UK’s implementation of the EU procurement Directive. Companies may also be liable to confiscation orders under the Proceeds of Crime Act 2002. A director who is convicted under the act may suffer disqualification under the Company Directors Disqualification Act 1986.

The first person to be charged under the Bribery Act 2010 came in August 2011 when Munir Yakub Patel was charged under section 2 of the Act for allegedly accepting £500 for offering to fix a motoring offence whilst he was employed as a magistrate’s court clerk at Redbridge magistrates court.

Advice on compliance with the Bribery Act may involve aspects of commercial law, litigation and employment law. For more advice on the Bribery Act or any legal problems arising, please get in contact with Darlingtons, the authors of this article.

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The rubber stamp game ?

There are many uses for lawyers, but some may come as a surprise.

Take, for example the war in Iraq and the burgeoning hacking scandal. what do they both have in common ? Well, powerful people who have money often havea 6th sense (or perhaps they know full well) that certain issues may come back to haunt them. They know that when this happens they need a “get out of jail” card (sometimes almost literally), and what is one of the best get out of jail cards…. confirmation from solicitors that they believe there has been no wrongdoing.

Most of us will be familiar with the numerous facile Iraq enquiries which seem to go nowhere, waste money and simply act to placate continuing protest. Anyone who watched or read about the latest enquiry will have heard ad nauseum, those criticised for going to war on false pretences stating that “we had advice it was legal from the Attorney General” or words to that effect. This is the ultimate in saying “it wasn’t me it was him”. Sounds like the school playground doesn’t it …? (by the way many successful business people learn a lot of skills in the playground).

This game of pass the parcel can continue with solicitors insisting that a barrister’s opinion be obtained and so on and so forth.

In the latest manifestation of this backside covering, those at the top of the News of the World/News International hierarchy are claiming that what looks like cogent evidence of widespread hacking some 4 years ago was not passed on to the police because they had top city lawyers advice that documents didn’t show widespread hacking. Cynics among you might ask why they felt the need to seek lawyers to confirm this… were the lawyers truly independent or were they a firm used regularly by News International which would mean the firm was in an awkward position with clearly a big and important client…. ?

The questions continue… who knows what the answers are at the moment, but one thing seems clear, we are in for the “it’s not me it’s him, her, them, it” merry-go-round !

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Forms of power of attorney

Enduring Power of Attorney and Lasting Powers of Attorney

Those whose mental faculties are failing require help in the management of their affairs from someone who they can trust and is willing to take responsibility for managing that person’s legal, financial and health interests

Until 2007 the authority for managing the affairs of someone whose mental faculties were failing was granted by an Enduring Power of Attorney. The Mental Capacity Act 2005 enabled people to entrust the management of their finances and assets to another in the event that they should become unable to do so themselves,  as well as health and welfare decisions, through a Lasting Power of Attorney (LPA). which replaced Enduring Powers of Attorney (EPAs) in 2007, when the Mental Capacity Act came into force.

Enduring Power of Attorney

Prior to October 2007, it was possible to grant an EPA to a trusted person to manage their finances.  Should they become incapable of doing so.

It is important to know that EPA’s remain effective whether or not they have been registered at the Court of Protection, provided that both the donor (the person granting the power of attorney) of the Power and the attorney/s (the person or person accepting the grant) signed the document prior to 1 October 2007.


An EPA may be used, with the consent of the Donor, whilst the Donor still has mental capacity,. Attorneys must register the EPA with the Office of the Public Guardian (OPG)… If the Donor appears to be losing the mental capacity to manage his or her finances, Once application for registration has been made attorneys may use their Donor’s resources to buy basic items such as paying for food or payment of regular bills. They may carry out more substantial transactions, such as selling a house until the EPA has been registered.

Lasting Powers of Attorney (LPA’s)

LPA’s replaced EPA’s in October 2007

There are two forms of Lasting Power of attorney.

Property and affairs LPA

A property and affairs LPA enables a Donor to entrust someone (the attorney) to make decisions in relation to the Donor’s property and affairs when the Donor no longer has the mental ability to take such decisions himself. This could involve paying bills, collecting income and benefits or even selling your house. It can only be used when it has been registered at the Office of the Public Guardian (OPG).

Personal welfare LPA

A Personal Welfare Order permits an attorney to make decisions on behalf of the Donor concerning personal welfare or circumstances such as residency. It can authorize the attorney to give or refuse consent to medical treatment but only where that power is expressly given in the LPA. A personal welfare LPA can only be used when it has been registered at the OPG and the Donor has become mentally incapable of making decisions about his own welfare.

Who can make an LPA?

Anyone aged 18 or over with the capacity to do so can make an LPA appointing one or more attorneys to make decisions on their behalf.

Who can act as attorney?

anyone  over 18 and not bankrupt when they the form is signed. More than one person may act. Attorneys may be replaced whilst the Donor has mental capacity If more than one person is appointed the Donor may choose whether they should act together or independently.

Your attorneys must follow the principles set out in the Mental Capacity Act sets out the principles which govern the conduct of Attorneys when they are making decisions or acting on the Donor’s behalf. Attorneys must always act in the best interest of the donor. To the extent that the Donor is capable of so doing, attorneys should take all practical and appropriate steps to help the donor make a particular decision.

How to make an LPA

There are different forms for making a property and affairs LPA and a personal welfare LPA. Forms and explanatory leaflets can be obtained from the OPG.

Before the LPA can become valid a certificate of capacity drawn up by an independent third party called a Certificate Provider is required. The Certificate Provider could be a solicitor doctor or any independent person you have known for at least two years. Relatives of your attorney cannot be a Certificate Provider. The prescribed form must be completed and signed in the presence of a witness. Each attorney must also sign to confirm they have read the explanatory information and understand the duties they are undertaking.

Donors should list a person or persons to be notified of any application to register the LPA. If none are listed then an additional certificate of capacity must be provided.

The form must be registered with the OPG before it being used. There is a fee for registering each LPA, In certain circumstances you may be able to avoid the registration fees. The OPG will advise

Do I need a solicitor?

You do not but an LPA is an  important document, the forms are lengthy and quite complicated so Donors may be wise to seek guidance from a solicitor familiar with the process .

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