Tuesday 30 November 2010

ACCESS TO JUSTICE AND SENTENCING PROPOSALS

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The Justice Committee, Chaired by Sir Alan Beith has launched an inquiry on Access to Justice and Sentencing Proposals.
On 15 December 2010, the Committee will question the Lord Chancellor and Secretary of State for Justice, Rt Hon Kenneth Clarke MP QC, on the court closure programme and the proposed reforms to legal aid and sentencing.
On 15 November 2010, the Ministry of Justice launched Green Papers on the provision of legal aid and the implementation of the Jackson review on civil litigation funding and costs that seek to effect a “fundamental reform of the system”.
The Committee is inviting written evidence with particular reference to the questions set out below, by 6 December 2010.
  •  What impact will the proposed changes have on the number and quality of practitioners, in all areas of law, who offer services funded by legal aid? 
  • The Government predicts that there will be 500,00 fewer cases in the civil courts as a result of its proposed reforms. Which cases will these be and how will the issues they involve be resolved? 
  • What action could the Government be taking on legal aid that is not included in the proposals (for example, on Very High Cost Cases)? 
  • Do the proposals to implement the Jackson report recommendations on civil court funding and costs adequately reflect the contents of that report? 
  • What are the implications of the Government’s proposals?
It is anticipated that the Government’s proposals on sentencing and rehabilitation and the administration’s response to the consultation on court closures will be released before the Secretary of State appears before the Committee.
The Committee would also welcome written evidence on these proposals once they are released.
Submissions must address the terms of reference. They should be in the format of a self-contained memorandum and should be no more than 3,000 words.
Paragraphs should be numbered for ease of reference, and the document must include an executive summary.
Further guidance on the submission of evidence can be found at www.parliament.uk/parliamentary_committees/witness.cfm
Submissions should be original work, not previously published or circulated elsewhere, though previously published work can be referred to in a submission and submitted as supplementary material. Once submitted, your submission becomes the property of the Committee and no public use should be made of it unless you have first obtained permission from the Clerk of the Committee.
PLEASE BEAR IN MIND THAT THE JUSTICE COMMITTEE IS NOT ABLE TO INVESTIGATE INDIVIDUAL CASES.
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 Justice/ Limited Too Gift Card

Monday 29 November 2010

LAW FIRM HITS ITS GOAL

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Sunderland law firm Emmersons Solicitors has reported a 120
per cent rise in turnover of its conveyancing department, as it
provides organisations like the Sunderland fan magazine, A
Love Supreme, with critical property advice.



THE FAMILY-RUN solicitors firm, which has
offices on John Street, Sunderland, and
also on Gosforth High Street, Newcastle,
has assisted the magazine in securing a
long-term lease on its offices.

A Love Supreme (ALS) previously didn’t
have a permanent lease on its premises on
Stadium Way, next to the Stadium of Light,
but with a new landlord in place,
Emmersons managed to cement a formal
fixed tenancy agreement on the office.
As the club had operated out of the
building for more than 11 years, the team at
Emmersons negotiated a ‘right to stay’
clause in the new contract in accordance with
the Landlord and Tenant Act 1954, giving it
permanent rights and residency of the
office.

Emmersons Solicitors’ head of conveyancing,
John Coulter, said: “ALS’s new
lease deal comes only days after
Emmersons’ calculated turnover in its convenyancing
department up by more than
120 per cent on last year’s figures.
“It’s great news that despite tough economic
times, when conveyancing has typically
been at an all time low, that we have
actually bucked this trend and are holding
our own.
“This year we have seen a huge rise in
the amount of work coming into our conveyancing
department. We have been particularly
pleased with the amount of commercial
property work that we have undertaken.
I think this comes off the back of
more Sunderland-based companies realising
that they don’t have to take their legal
work outside of Sunderland, and that we are
capable of providing all of their legal
requirements.

“We deal with business disputes, commercial
conveyancing and leases for a large
number of businesses. Also, as far as we
believe, we are the only solicitors firm in
Sunderland undertaking commercial litigation.”
A Love Supreme editor Martyn
McFadden said: “We are very grateful to
Emmersons Solicitors for the swift and professional
service they gave us in helping us
to secure a fixed tenancy agreement at the
club, which was potentially a complex job.
Emmersons were excellent and the research
and planning stage of our lease agreement
as well as offering advice on the content of
the lease and other business arrangements.
This really was a ‘back of the net’ deal.”
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Adidas WC 2010 Repliqué Soccer Ball, White/Black/Pure Yellow, 5 
News reaches Emmersons, and it is worrying, that there has been a delay in setting out how the ConDems wish to deal with the prison crisis.
There had been an expectation, raised by the Government, that prison policy and sentencing would be a high priority and that a Green Paper would be published in October-and then in November. Now we understand it is delayed.

In the meantime the ConDems have issued a Report into anonymity for those accused of rape.

Unfortunately rape is one of those offences with a low conviction rate. Those who wish to protect the victims of rape-although as with domestic abuse the focus tends to be on women as victims and men as the criminals-have yet to come up with any suggestions as to how this can be improved-except to say that the system needs to be changed to make convictions more likely.

How is this aim achieved? Rape tends to be an offence involving two people. The person who alleges rape and the person accused of it. My experience is that the complainant is believed. That special measures are put in place so she may give her evidence via videolink or on tape.

My experience is that the accused is disbelieved.

The problem is thatunless there are injuries to teh complainant consistent with having been beaten or forced to have sex a jury find it hard to convict the accused. It is the nature of the offence and what it entails that is the problem rather than the system that tries to establish the defendant's guilt.

When sentenced-which takes me back to the start of this article-the Judge will be looking at reasons to impose a Life sentence or sentence that is Indeterminate.

Recently, whilst talking to a barrister about a client's case concerning rape of family members, she told me of a case which she had prosecuted whereby a 6 and 8 year old girl has lied about sexual assualts upon them by a step parent simply because they were not allowed to watch certain programmes on television. How did those girls know how to complain about sexual assault? How was such a case allowed to go all the way to trial-only then for both girls to admit that they had made it up? What about the accused and how the experience of those events will have impacted on her/him?

One assumes they knew what to say from the television programmes they had been allowed towatch. One can say that the CPS/Police will pursue allegations of sexual assault and domestic violence with vigour. One can also say that often there is not the objective analysis of evidence nor the willingness to review a case to consider if it ought to proceed to trial.

The problem is that the complainant is entitled to anonymity-the accused is not. Is that fair? 

Sunday 28 November 2010

So why on earth do I need an LPA?


Obviously the same reasons for having LPAs applies to those who co-habit, those in same sex partnerships or if you are single and wish for someone to be able to manage your affairs should you become incapable of so doing.
Not to consider an LPA is as daft as jumping out of a plane without a parachute!

Friday 26 November 2010

Dont touch that snow-we’ll get sued

Thankfully Lord Young is no longer an unpaid adviser to David Cameron. Unfortunately he left behind a report which was supposed to look at Health and Safety but actually seemed to focus on “compensation culture”.

This is a much loved topic of libertarians and of the media. Any time anyone claims compensation which, due to the way the case is reported, seems barmy the media scream and shout about “no win-no fee”, “ambulance chasing” and “lawyers”.

Lets start with no win-no fee. These agreements were introduced at the behest of the insurance industry to stop claimants using legal aid to seek compensation for injuries sustained. The ABI (Association of British Insurers) seems to hate people being able to claim a reasonable amount for injuries sustained so screams wildly about any unusual claim and how ridiculous compensation payments are without mentioning that the award about which they complain is unusual and failing to mention in detail the circumstances surrounding the cause of the accident. The greatest irony is that most of these claims are backed by ATE insurance or BTE insurance  (such as with DAS or Home Insurance) and before a claim proceeds the insurer reviews the potential for success.

“No win-no fee” does not mean that there is no risk to the Claimant. The Claimant could face a costs bill if the claim is unsuccessful. The “no fee” element relates to paying one’s own lawyers-and does not mean that there is no risk of having to pay the defendant’s lawyers. This is why costs insurance is usually so essential. Unfortunately most media coverage of “ compensation culture” screams about “no win-no fee” without understanding what it means.

Along with “no win-no fee” (actually called conditional fee agreements) came Claims Management Companies. They were unregulated, wide boys who would advertise hard, approach people in the street, at home via cold calling and then sell the claim to Solicitors if they couldn’t get a settlement before having to issue. Eventually they were regulated and many companies left the “industry”. Still ABI wasn’t happy.

The Government introduced a portal so that all RTA claims had to be commenced through it. Costs which had been fixed for RTA claims in an agreement between Insurers and Solicitors were reduced even more. Insurers started to approach claimants direct-even those who were represented-and attempted to settle claims at much less than the claim was worth. it is suggested that this portal be extended for other claims.

Still ABI whinged about “spiralling costs and claims”-yet remarkably now accepts that “compensation culture” does not exist. Lets say that again, all together now “compensation culture does not exist”. Lord Young says so in his own report!!

The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.The number of claims for damages due to an accident or disease has increased slowly but nevertheless significantly over recent years. Furthermore, there is clear evidence that the public believes that the number of claims and the amount paid out in damages have also risen significantly. [page 19]

Goodness!

The insurance industry is competitive. Those who run such companies seek business and profits. Premiums are too low. The money to pay claims in a low interest economy is not there-answer blame the “lawyers”, talk about excessive claims and excessive costs but don’t mention the fact that premiums are ridiculously low for most people.

What has this got to do with health and safety-absolutely nothing. The health and safety regulations are not oppressive, they are necessary and again if insurers charged proper premiums they would gather in appropriate sums to ensure that claims, including costs, could be paid.

Insurers need to work with the insured to address issues of behaviour to reduce claims whether this is motor car drivers or owners of companies with obligations to employees. Employers need to review and fully understand what the health and safety regulations are and what they require rather than listening to a consultant who may be motivated to be overly cautious. Educating employees is highly important.

The media needs to stop churning out old stories of “compensation culture” and analyse what is actually going on.

Can you get sued if you clear snow from in front of your house or shop that is on the public highway and someone slips? No-absolutely not. Could a local authority be sued if children came to school and slipped on snow? No. Those who make decisions fear, perhaps, being sued through ignorance. The reason schools close is that teachers cannot make it into school-or the boiler blows up!!

Can you be sued if a hazard remains on your property and someone who enters your property is injured and you do nothing about it? Perhaps?

Wednesday 24 November 2010

A good day for Justice

A Northumbria Police Officer has been convicted of sexual offences, including rape, and misconduct charges having spent years preying on vulnerable women with whom he came into contact whilst on shift.

The trial lasted for a few weeks, the jury took time to consider their verdicts, the defendant was acquitted of some offences and now he faces some considerable time in custody. A good day for English Justice?

Absolutely.

The witnesses were the sort of people who when they appear in Court as Defendants are not believed. Indeed those of them who were drug addicts would have turned lying into a fine art. Not only that their memories would be shaky to say the least. They gave their evidence, the jury listened to what they had to say to the Prosecutor and in cross examination by Defence Counsel.

The trial will have cost money-quite a bit, of that I have no doubt along with the costs of the investigation and the defendant’s legal aid.

The jury members gave of their time too and took part in the process in what I believe is the second most important role a citizen of England and Wales can participate in after voting.

Already Northumbria Police have had to apologise for recruiting the Officer in the first place when there were warnings of his future conduct ignored-and they failed to deal with him properly when previously made allegations were investigated.

It was Northumbria Police Officers who undertook hours of work to gather evidence against their former colleague.

There is a monetary cost to Justice and there is the cost to lives-already fragile lives made even less bearable through the actions of someone in whom all of us should have immediate trust.

But there is also a price paid by the Defendant. We often we hear of the rights of victims and of rebalancing the scales of Justice in favour of “victims”. The truth is that the Defendant is and must be the centre of the Justice process. When a shift is made away from that position we see excesses perpetrated in the name of Justice. Too many people being arrested and charged to Court when the policy was “the Party’s over”. Too many children brought to Court under the guise of addressing anti-social behaviour. Sentences being created and imposed which take away all hope of rehabilitation and release (IPP) and turn too many people into Life prisoners. We have a ridiculously high proportion of our population in custody. The alternatives do work and could work better if properly funded.

The jury system works. The criminal investigation and prosecution system works. The defendant was properly and rigorously represented. All of these things require proper resources. Too often we have seen politicians promise too much for too little investment.

However sometimes, in relation to less serious matters, the resources are not made available to ensure that Justice is properly served. In those cases-often involving minor offences and incidents-people feel let down and disappointed.

I hope for a Justice Secretary and home Secretary who is not overly worried about what the papers say and is more worried about making sure the Justice system is just that a system that delivers Justice.

Monday 22 November 2010

What shall I give my children for Christmas?

How about a well thought out will, it could save them thousands of pounds in legal fees later.
Last week a couple came to my office to sign their wills. They had lived together for 27 years and Bob had in effect brought up Suzanne’s children. Those children had long since left home and had families of their own. Bob and Suzanne are not married and Bob doesn’t have any children of his own. After she had signed her will Suzanne asked me what would have happened if they had not made their wills. I explained that things could potentially have become very messy, especially if Suzanne were the first to die. Her adult children would naturally have assumed that they would inherit everything as next of kin. Bob on the other hand probably would have thought that everything was to come to him as Suzanne’s common law husband. The answer is that if Bob and Suzanne’s children could not agree on how much of the estate they would each take then Bob would have to try to prove that he had a financial dependency upon Suzanne and that she had failed to provide adequately for him. In this case the legal fees involved in sorting this out would have been nearly as much as Bob and Suzanne have in savings.  
OTHER ISSUES TO CONSIDER
1)      At what age should your children inherit your estate?
Unless your will states otherwise your children will inherit at 18. Will they be responsible enough to spend your money wisely or will your life’s accumulation of assets be spent on beer? Even if they are responsible is it possible that their suddenly devoted boyfriend or girlfriend will help them to spend all of your money?
2)      If you have young children should you appoint a guardian?
A guardian would be the person chosen by you to care for your children in the event of the death of you and your child’s other parent. Such a person must be consulted before you appoint them as it is a huge commitment to take on someone else’s child.
3)      Who should you appoint to be a trustee?
You should appoint two trustees or one firm of solicitors, especially if you own a house. In relation to your children your trustee’s job will be to look after their inheritance until they are old enough to receive it. I usually suggest that if you are choosing relatives or friends then they should not be a couple. You need to think of checks and balances. One of our clients, Bert, left money to his grandchildren which they would inherit when they were 18.  He appointed his two daughters as trustees. A very wise move as it turned out.  Sally had two daughters and at every turn suggested to her sister Paula (the second trustee) that the girls would love this or that. Apparently they would have loved a holiday to Florida accompanied by Sally and her new partner Mr Waster. Paula said no. They would have loved a new computer which Sally’s partner could also use in his new business. Paula said no. Eventually the girls each received their money at 18 just when they needed it for university.
Not the most exciting Christmas present I realise, but it’s bound to be of more use than a Barbie doll or a pair of Jimmy Choos!   

Jacqueline Emmerson

Wednesday 17 November 2010

MICHAEL ROBINSON IS PROBABLY ONE OF THE UGLIEST MEN YOU WILL EVER MEET

What has that got to do with anything? Nothing! But it makes a change from the usual blurb that you’ll get from Solicitors about their fee-earners and services.

Anyone being investigated by the Police or by HMR&C is entitled to free legal advice and representation in the Police Station. If the investigation is being conducted by any other prosecuting authority away from a Police Station then legal aid will only cover advice and representation during an interview if a Constable (ie a Police Officer or HMR&C Officer) is present. Otherwise the suspect will have to pay to be represented.

Why seek legal advice from a criminal lawyer?
Who best understands how the Police and HMR&C operate? Who best can explain the suspect’s rights and obligations when being investigated? Who better to lead you through the Justice maze?
Some suspects believe that having a lawyer present in the interview indicates guilt. What it actually indicates is that the suspect is taking the process and his own and his business’s and family’s future seriously.
If you have any clients who are being investigated by the Police, HMR&C or any Regulatory body then you would be doing the client a favour by referring that client to Michael Robinson.
To judge for yourself how ugly he is, his photo is available at  www.emmersons-solicitors.co.uk along with other information about him and the firm.

Brief guide to LPAs by Helen Martin

There are 2 types of Lasting Power of Attorney - one is in relation to Property and Affairs, and the other relates to Personal Welfare. Anyone over the age of 18 can enter into a Lasting Power of Attorney, provided that they have the necessary level of understanding in relation to the meaning of the Lasting Power of Attorney and what it will enable their Attorney(s) to do.

The Lasting Power of Attorney will need to be registered at the Office of the Public Guardian before it can be used. By registering the document straight away, this means that it can be used by the Attorney at any time in the future. The donor is able to provide their Attorney(s) with guidance if they wish to do so regarding the powers that they will have.

An LPA is a complex matter but extremely beneficial for the donor and his/her family as it protects the donor’s position and ensures provision for the family and other beneficiaries should the donor’s health deteriorate.
In some ways an LPA is more important than making a will and deserves careful consideration and preparation by a Solicitor.
Helen Martin is a member of Solicitors for the Elderly.
More information is available from Helen Martin and from the Office of the Public Guardian.
Helen has received extensive coverage as a result of her expertise in this area in The Northern Echo and on Sun FM.

I’m far too young to make a will! by Jacqueline Emmerson

So thought Steve, one of my clients.  However, I received a call just after Christmas advising me of his death. As he was only 42 this was a shock.
His family wanted to know if he had made a will. I knew that he hadn’t as he was always very busy at work. This means that his estate will not be straightforward to sort out. You see Steve had children from his marriage which ended years ago. They live with their mother in a house still in the joint names of Steve and his ex wife. His ex wife will automatically become the sole owner of the house. This is not what Steve wanted. He always wanted his children to receive his half share of the house. If his ex wife ever re-marries there is the possibility that her new husband will inherit the house instead of the children.
 After his marriage ended Steve bought a new house in his sole name. He eventually met Ellen and she move in with him. They lived together for over two years, Ellen did not work and Steve looked after her financially. Ellen can now make a claim against Steve’s estate. His children will now have to negotiate with Ellen to see how much of his estate each of them will receive. If they can’t agree a settlement then they will have to ask the court to decide. This could cost them all thousands of pounds.
What is really sad about this case is the fact that Steve adored his kids and always used to say that he was building up his business to make sure that they would always be financially looked after.
So how could Steve have provided for his children in the way that he intended?
He should have severed the Joint Tenancy in respect of the property he owned with his ex wife.  This is a simple and very inexpensive process. Instead of his ex wife being left as the owner of the whole house she would have been deemed for inheritance purposes to have owned only half. Then Steve should have made a will setting out how much of his estate was to go to his children and how much to Ellen.
Two thirds of adults haven’t made a will, don’t be one of them!

Business Advice from Michael Robinson

If you are a victim of the recession (after all, it has ended, hasn’t it?) or a victim of the New Politics and lose your job it can be a very traumatic time for you and your family. Some, however, see it is an opportunity to do what they have always wanted. It might be taking a world cruise or exploring the British Isles in a mobile home. For others, it is the chance to start a business.
Is your idea any good? Ask friends. Ask people who don’t like you. Ask colleagues. Try and establish if there is a market and how big it is and how much money is involved.
Business plans are an absolute necessity if you are going to borrow from a bank. Your bank manager should be able to help you draft one. There are many templates available on the internet and from business start-up agencies and advisers.
Then you have to work out how much it is going to cost you to do what you want to do so you can work out how much you will have to charge to cover costs and make a profit. You’d be surprised how few people do this.
It’s always a good idea to try to calculate a “daily price”. How many days a year are you going to work? That figure is the amount by which you will divide your expenses and totals. Obviously electricity and rent etc are for a year of 365 days, but you won’t work every day so each day you work is a day in which you must recover a proportion of your expenses.
 You need to add up the cost of electricity, loans and interest, insurance, telephone, advertising, materials, office administration and so on and divide by the number of working days in the year.
Then work out how much you expect to earn each working day (turnover) from selling your goods or services. You will then be able to say how much your daily costs are.
You then have to give yourself a notional salary per year including tax and national insurance and work that out as a “working day” cost. By adding this figure to the figures you have calculated by following the process set out above, you are now getting a good idea of the minimum you will have to charge per day. Now you must add in vat-just in case you have to start paying it.
How much profit do you want to make on top of costs plus salary plus vat? You’ll need money to mend the car, paint the premises, employ a new employee. You need to pick out an annual figure and divide this figure by your “working days” number.
You have now established the Daily Rate.
Each week, each month, each quarter you must analyse your true figures against your predicted figures, your sales rate against the predicted rate and ensure that your costs are as you had predicted. Any differences must be analysed and understood.
If you can control costs then you can control profit.
There are all sorts of computer programmes, accounts packages and other analysis tools that can assist you. But if keeping costs down is the name of the game then you must think carefully before spending any money.
The advantage of year 2 and year 3 and so on is that you will be comparing actual figures.
So quite a bit of planning is required but don’t dither. If starting up a business is what you want to do (maybe even must do to survive) then take the plunge. Your life will never be the same again.
Be enthusiastic about your new life. Promote it to all and sundry. Network via your local  breakfast, lunch and evening networking clubs. A whole new world awaits!
New businesses fail, indeed it is quite a high percentage. Why? There are as many explanations for this as there are failures but the real issues seem to be Poor Planning, Poor Cost Control (and being too eager to spend money as a reward for hard work) and Bad Choices. Advertising and having a website are most important. Many people search the web for a product or service. You need to spend some money on a properly designed website that will attract the greatest number of hits (it’s called Search Engine Optimization). Talk to several website designers in your planning stage and ask about website optimization and hosting so your site keeps ahead of the competition. In an age of recession having a web-based payment system means you don’t have to give credit.
If you are going to start up a business you must not sacrifice profit for turnover nor must you feel obliged to offer credit facilities to compete with the competition. You are in business to make money. Don’t simply undercut all competition to get the work-you may find that you are working for no reward. You don’t have to give credit. You do have to make sure that your terms and conditions are clear, available to all customers and that no exceptions are made. These days you can take credit card payments over the phone or via your website before you make the product or provide the service.
You must keep your records in proper order. You must engage an accountant so that tax returns and payments are made properly and on time. You can probably do your own vat returns if you have a reasonably sophisticated accounts package, however your accountant or another agency can be engaged to do this for you if that makes sense for you.
Those around you must understand what you are trying to do and why. They must be on board and part of the enterprise. If your family and friends say that what you are planning to do is utter nonsense then it probably is. If they support you and encourage you then it is probably right.
If you have a partner or partners or you set up a company and have fellow directors you will need legal advice. It’s all very well starting a business when everyone is enthusiastic and excited but if it starts to fall apart a properly drafted partnership agreement or directors’ contracts can make all the difference. Don’t forget to get your partners and shareholders to make a will so that if they die you get their share of the business.
At the heart of success is control of costs and money. If you let others do that for you whilst you get on with the “hard work” your business will fail. You must control costs. You must negotiate with suppliers and search for cheaper suppliers for everything you spend.
There are all sorts of helpful websites eg http://intuit.co.uk  or http://www.smallbusiness.co.uk amongst others.
The Law Society runs Lawyers for Your Business and Emmersons Solicitors is a member of that scheme. http://www.lawsociety.org.uk/choosingandusing/helpyourbusiness/foryourbusiness.law