2 forged wills

The amazing story of 2 forged wills

This story surround a situation where a wealthy businessman died suddenly without leaving a will, but leaving an estranged wife and mistress.

The individual, Chris John, was in the process of getting divorced, but as this had not been finalised, in theory his wife would have been the principal beneficiary under the intestacy rules.

This of course is a sad story, but there are some comical aspects. It appears that the forged will allegedly created by the mistress twice got the name of Mr John’s 15-year-old daughter wrong. Mr John’s daughter told the court that her father had told her he had made no will but after he died she knew people were looking for it.

The wife has admitted her forgery and apparently has received a police caution but the mistress is denying forging a will and the case is currently ongoing.

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Employment rights at disciplinary hearings

Disciplinary Hearings and Representation

All Employees are entitled to be represented at a disciplinary hearing by a colleague or trade union representative in accordance with Section 10 of the Employment Relations Act 1999.

The employee’s representative should be given the opportunity  to speak at the hearing to put forward and summarise the employee’s case, and to reply on behalf of the employee to any issues raised. He/she should also be allowed an opportunity to confer with the employee during the hearing. However, the representative does not have the right to answer questions on the employee’s behalf, or address the hearing without the employee’s consent.

The ACAS code of conduct states that:

To exercise the statutory right to be accompanied workers must make a reasonable request. Whether a request for a companion is reasonable will depend on the circumstances of the individual case and, ultimately, it is a matter for the courts and tribunals to decide. However, when workers are choosing a companion, they should bear in mind that it would not be reasonable to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest. Nor would it be reasonable for a worker to ask to be accompanied by a colleague from a geographically remote location when someone suitably qualified was available on site.

However it is becoming increasingly common for employees to request that an employment lawyer represent then during the disciplinary. An employee may find it difficult to request that a colleague attend with them or they may not be a member of a trade union. There is no right of representation purely because the employee cannot obtain the assistance of a colleague or trade union representative. There are however certain circumstances were an employer must consider a request for legal representation. These remain limited, and will be covered below, but this is an ever evolving area of employment rights and it is important that employers and employees alike keep abreast in order to properly understand their rights and obligations. It will continue to evolve as case law develops and courts and lawyers alike obtain a better understanding of the implications of Article 6 of the European Convention on Human Rights (ECHR).

Following R (on the application of G) v The Governors of X School, legal representation may be appropriate where any decision for dismissal can have potentially severe automatic consequences for an employee’s career. This applied Article 6 ECHR. The provisions have been applied to professions such as doctors where the decision of the employee dismissal could automatically prevent the employee continuing in that career.

Human Rights & Employment law

Provides that, in determining civil rights or obligations or criminal charges, everyone is entitled to a “fair and public hearing by an independent and impartial tribunal” (Article 6(1), ECHR). The Human Rights Act 1998 (HRA 1998) gives effect to this (and most other) Convention rights under the ECHR and makes them enforceable through the UK courts.

The Court of Appeal has considered the application of Article 6 to internal disciplinary hearings in public bodies during two cases, holding that Article 6 required the employer to allow the employee to be legally represented (Kulkarni v Milton Keynes Hospital Foundation NHS Trust [2009] IRLR 829; R (G) v Governors of X School and others [2010] IRLR 222).

The court suggested that Article 6 would not be engaged where only the loss of a specific job was at stake. However, it would be engaged where the effect of the proceedings could be far more serious, such as the loss of the claimant’s right to practise their profession. The court should apply the test set out in Kulkarni and G namely whether the outcome will have a “substantial influence or effect” on the employees right to practise. In Kulkani the employee was accused of criminal conduct which if proved would have effectively barred him from further employment with the NHS. As such, legal representation was appropriate in accordance with Article 6.

The decision in Kulkani means that any NHS Trust doctor (or dentist) facing disciplinary charges is likely to have a contractual right to legal representation where  the doctor is a member of a medical defence organisation and that organisation instructs an employment lawyer on his or her behalf.

In addition Article 6 may allow many medical professionals, including doctors, dentists and nurses, who are employed by the NHS to insist on the right to legal representation at disciplinary hearings where a potential outcome of the disciplinary hearing is the termination of their employment by the NHS. However the NHS has been granted leave to appeal the Kulkani decision and the full extent of this case is not yet known.

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Service of court papers using social media

Facebook used to serve a court summons

All too often as part of the “game” of litigation a party to a dispute will seek to delay or prevent a case proceeding by avoiding service of court documents. The English civil procedure rules provide different requirements for different types of cases, essentially along the lines that, the more important the document, the more important it is to be able to demonstrate to the courts that the recipient received the document. A good example of this is that the rules are typically quite strict for bankruptcy proceedings, since obviously, such proceedings have significant implications and the courts want to be satisfied that a person potentially being made bankrupt has had full notice of the proceedings. The problem created by this can be that a debtor who knows proceedings are being issued may seek to deliberately avoid service, even by involving friends and family, who will deny to a process server that the person lives at an address, or they are never there when attempts are made at service.

In some circumstances, the English courts have allowed documents to be served by email, but in a  very recent development, it seems a court has for the first time accepted valid service via Facebook.

In this case, the lawyer had made appropriate attempts to serve the summons directly upon the debtor but failed, and consequently applied for specific permission in Hastings County Court for permission to serve the court papers via Facebook. The court was satisfied that all appropriate methods had been tried and that the recipient was active on Facebook and would receive the  papers and consequently made the Order.

One interesting consideration likely to apply in the future is to ensure that any service by facebook or other social networking site still respects the recipients right to privacy under Human Rights law, so care needs to be taken that service is not effected in any way which is visible to any friends of the recipient.

For advice on all aspects of legal disputes or social media, we suggest obtaining advice from solicitors. A few firms who may be able to help can be found by clicking here or here.

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Housing Market & possession claims

The current state of the housing market and the reluctance of banks to agree mortgages has led to a buoyant rental market. For those who have already established themselves, buy-to-lets are gaining popularity, particularly amongst those looking to provide for their future. Nevertheless, as a profession, being a landlord is not without its hazards, so should not be looked upon as an easy way to make money. Even the most careful checks of potential tenants can fail to weed out every possible problem, so there is occasionally the need to evict a troublesome residential tenant.

The method for evicting a tenant is clearly laid down by law and those landlords who fail to adhere to the correct methods can find themselves facing prosecution. Pressurising and harassing tenants is regarded as a criminal offence, so it is imperative that the correct procedures are followed. The laws governing eviction are provided as a means of protecting tenants’ rights and have mostly eradicated the scare tactics used by unscrupulous landlords. Despite the very real potential of having troublesome tenants to deal with, many landlords do not have any knowledge of the necessary eviction procedures prior to a problem arising. This is where expert legal advice can help. Landlords would be well advised to know their rights and the rights of their tenants prior to entering into any tenancy agreements, so if things do go wrong, the landlord is already familiar with the necessary legal requirements for an eviction. A good solicitor is an invaluable asset to any landlord, whether their portfolio consists of one or a hundred properties.

Although there are around 17 grounds for possession, the usual cause for desiring eviction is for rent arrears, for which there are two common court procedures. An initial warning should be sent, giving notice of intention to start proceedings, followed by a Possession Notice under either Section 21 (end tenancy) or Section 8 (rent arrears) of the Housing Act. These possession notices warn the tenant to either pay the arrears or leave the property and are often enough to make the tenant realise the severity of the situation. If the tenant decides to co-operate, either the rent arrears may be paid or the property vacated, depending on which possession notice is served. Those tenants who remain obstinate require the landlord to take further action.

The next step depends on the type of tenancy agreement that is in effect. If the fixed term of an assured or assured shorthold tenancy has come to an end, the landlord can usually seek possession under the accelerated possession procedure, using Section 21. This procedure dispenses with the need for providing grounds for possession, as long as at least 6 months has passed since the start of the tenancy. Although this procedure is designed to be quicker and easier than other methods of eviction, landlords should be aware that it can takes weeks, or sometimes months, before the process is complete, especially if the court is experiencing a backlog of cases.

Where the accelerated possession procedure is not the appropriate method, a Section 8 notice can be served, using the rent arrears as grounds for possession. The arrears need to total at least 2 months rent and a fixed date action can be taken whereby the court will provide a date for a hearing, at which the landlord must provide evidence of the arrears. If possession is the main issue at hand, this is not the procedure to use, as the possession order will not be granted if the tenant has cleared the arrears prior to the court date. In these cases, it is often better to serve a Section 21 notice and wait for the longer notice period to expire before using the accelerated possession procedure.

The two procedures both have their recommendations and their pitfalls and a good solicitor will be able to advise on which method suits the particular needs of the landlord. If rent is an issue, landlords should be aware that Section 21 does not provide for arrears recovery, but can be quicker due to the dispensing of proof of grounds for possession. In this case, it is possible to secure new tenants and thus new income, relatively quickly. Section 8, however, will allow for the recovery of arrears and is useful where the main issue is the money and the term of the original lease has not yet exceeded 6 months.

Whatever the cause for action and the desired outcome, the landlord would be well advised to seek professional legal advice. This is particularly the case where the landlord owns more than one property, as valuable time can be spent in trying to deal with an eviction and it is not unusual for those with large property portfolios to have more than one eviction pending at any one time.

You can get useful advice on property leases here.

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Contaminated land

Contaminated land

Anyone buying a property (or indeed vacant land) should be aware of the problems which can arise with contaminated land. Property can be contaminated by many substances, for example asbestos, arsenic or methane gas produced by buried waste to name only a few.

Property owners should be aware that their land may in the past have been used for purposes which may have contaminated it, especially these days when old industrial land is frequently re-used for other purposes.

Legal implications

Local authorities are under a duty to take steps to identify contaminated land. If land is found to be contaminated the local authority is under a legal duty to decide whether action should be taken to remove the contamination.

If a clean-up is necessary, the Local Authority will serve notice (called a “remediation notice”) requiring reasonable steps to be taken to clean up the land.

Cleaning up contaminated land

The starting point is “polluter pays” however it will not be possible to identify the actual polluter due to passing of time and it is not unusual for a remediation notice to be issued against the present owner or occupier. Thus a home owner might well find himself liable to clean up land even though he did not contaminate it and did not know it was contaminated when he bought it. If a person responsible for complying with a notice fails to do so, the local authority can carry out the work itself and to recover the cost of the work from that person.

You can get a simple environmental report free for any post code area by visiting www.homecheck.co.uk but it is generally worthwhile investigating further on a local basis.

Commonwealth countries legal position on contaminated land

www.aclca.org.au is a helpful site on the Australian legal position on contaminated land. Other sources can be sparse on information.

Back to the British position

Contaminated land is a major issue in large British cities. An example of a recent case involving Birmingham can be found at http://www.empublishing.org.uk/clb/backheads.htm.

London in particular has large areas of land which may have had a potentially contamination issue historically, such as in the Docklands area. Save for obtaining a contaminated land legal indemnity policy, it can be difficult to obtain useful local information about the prevalence of contaminated areas in an individual London Borough.

Investigation is the key

In summary, whilst legal insurance can be obtained but it is always best to investigate since the legal implications of buying contaminated land can be very severe.

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