In our article on 2nd July Cashing in on Death (link to) we reported on the alarming news that banks, specialist probate firms and Will-writers were exploiting the public with their probate charges.  Since then our investigations and links with local support groups have highlighted a worrying development.
 
Grieving families registering deaths at town halls or visiting their local GP are being lured into signing up to a ‘coffin chaser’ firm which can charge eye-watering fees for basic probate services.
 
Registrars, GPs, hospitals, churches and funeral homes are all handing out leaflets advertising the Bereavement Advice Centre.
 
The official-looking document appears to be for a free independent advice service. But those that call a free helpline or visit the website are pointed towards ITC Legal Services, one of the biggest probate providers in the UK.
 
ITC’s fees can be much greater than similar services offered by local solicitors. In one case, mentioned in an article in This is Money, a reader was quoted £2,400 by ITC, almost three times more than a local solicitor.

Probate is the legal process the executors of a Will have to go through to make sure the estate of a loved one is dealt with properly when they die.  Despite claiming its fees are competitive with solicitors and can be half that charged by banks, ITC’s charges can be hugely more expensive than services offered by trained lawyers.  This is because the firm charges a percentage of the estate, unlike solicitors, which tend to charge an hourly rate.
 
As reported in This is Money, Chris Partington, from solicitor Slater Heelis, recently persuaded Trafford Council in Manchester to withdraw these leaflets from Sale Town Hall. He is now trying to persuade Stockport and Manchester town halls to do the same.
 
He says: ‘This firm is preying on people who are going through a traumatic time. Creating misleading alliances with GPs or local authorities implying that there is an endorsement from these establishments is an insensitive way to establish sales leads.’
 
We have recently been involved in communication with the Register of Births, Marriages and Deaths on Corn Street in Bristol who have confirmed that they too are investigating the matter and removing leaflets.
  
For more information about this, or related matters, please get in touch.

The law has rapidly caught up with the development in electronic communications by broadening the scope of the rules to incorporate emails, text messages, blog posts and every other form of electronic communication into the category of documents that have to be disclosed in litigation.

The ease and speed of electronic communications have lead to the replacement of ‘talking around the water cooler’ with incriminating, permanent evidence that can be analysed in court.

The obvious solution to this ‘modern’ problem is to delete the sensitive messages, but the reality is that they can almost always be recovered.  The information is not easily accessible (in that the deletion process scatters the information around the ‘system’) but an expert can forensically piece the data back together.  In most cases, files are not truly deleted until the information has been overwritten.

The recent case of CPC Group v Qatari Diar Ltd brought into the spotlight the concern that parties to litigation delete relevant, disclosable emails to stop crucial evidence emerging and undermining their case at trial.

Qatari Diar had pulled out of a contract with CPC where they were appointed to redesign Chelsea Barracks.  It was widely assumed that this was because Prince Charles had openly criticised the modern architectural plans and had used his influence behind the scenes.  CPC wanted to prove that was the case by accessing email records between key employees that would expose their most candid discussions.

It transpired that the emails between the parties involved had been deleted and, although CPC did eventually manage to have them recovered from Qatari Diar’s computers, they arrived too late to be used against them at trial.  Luckily for CPC, the emails were not needed, on this occasion, to demonstrate that Qatari Diar had breached the terms of their contract.  However, in many other cases the contents of deleted emails would be required, to prove key facts.  On this occasion, the recovered emails did, however, show that witnesses had misled the court from the stand.

The process of recovery has to be undertaken by an expert and is time consuming and notoriously expensive.  The question arises: who will pay for these costs?  Generally, at the conclusion of litigation, the loser will pay the winner’s costs and document recovery can form part of this.  That is why an increasing number of litigants attempt to argue that the costs of recovering these documents are disproportionate to the matters in dispute, and this conveniently prevents them from having to disclose the documents that might ‘torpedo’ their case.

Judges are getting wise to this and despite the fact that ‘proportionality’ is still a crucial principle of the Civil Procedure Rules, there are judgements like Digicel where the Judge ordered the defendant re-do their whole electronic disclosure which cost them around £2 million.  As the Judiciary starts to realise the importance of these documents, to the facts in dispute, solicitors who fail to respond to these developments risk harsh treatment from Judges in the form of cost penalties.

Business owners are able to guarantee avoiding expensive document recovery exercises in the future by linking all the business computers and mobile communication devises to one server, which collects, orders and stores all these documents ready for potential disclosure.  The downside of this is that even the deleted emails would be collected and therefore proportionate to recover and disclose. This would facilitate easy compliance with disclosure requirements but would expose any underhand practices that the business may have undertaken.

The decision on whether to be totally transparent, or risk having to pay huge costs to recover deleted files, depends entirely on what a business has to hide.

James Murray is a trainee solicitor in the disputes team at Wards.  This article was written with Elizabeth Fry.

Back in April Hannah Cotter, Emma Pitt and Ann Sheppard from the Staple Hill branch were handing out balloons on the local high street.  We would like to thank the gentleman who took this photo and who was kind enough to bring a copy into the office for us.

On 21st June, the Daily Telegraph reported on the story of Nicholas Newlife’s estate and the impact it could have on the charity Oxfam.
 
Mr Newlife left his entire estate to Oxfam when he died in February 2009, aged 69, which included the outcomes of the series of outstanding bets he had placed.
 
The bet reported on was one set to benefit Oxfam to the tune of £100,000 if (then) favourite Federer won Wimbledon in 2010.  We now know that this was unsuccessful but there are a further four bets, still ‘in play’.
 
-  £1,520 on Federer to win Wimbledon men’s singles at least seven times before 2020 at 66/1 – this would win £101,840 for Oxfam if he comes out on top at Wimbledon

-  £1,000 on Andy Roddick to win at least seven grand slam singles titles before 2020 at 33/1 – this would win £34,000 for Oxfam

-  £750 on Andy Roddick to win at least 10 grand slam singles titles before 2020 at 100/1 – this would win £75,075 for Oxfam

-  £350 on Ramnaresh Sarwan to make more than 7,000 Test match runs by end of 2019 at 50/1 – this would win £17,850 * £300 on Ramnaresh Sarwan to make more than 8,000 Test match runs by end of 2019 at 100/1 – this would win £30,300 * £250 on Ramnaresh Sarwan to make more than 9,000 Test match runs by end of 2019 at 250/1 – this would win £62,750
 
The first of Mr Newlife’s bets, £250 on Federer to win at least 14 Grand Slam titles before 2020 at 66/1, won £16,750 for Oxfam and was claimed earlier this year. Because Mr Newlife died whilst these bets were still outstanding they were included in his legacy to Oxfam and any proceeds go to the charity, as beneficiaries.
 
The wagers, placed with bookmakers William Hill between 2000 and 2005 by Mr Newlife, from Kidlington, Oxfordshire, could raise a further £330,000 for the charity over the next 10 years.  
 
Cathy Ferrier, fund-raising and supporter marketing director at Oxfam, said: “We’re enormously grateful to Mr Newlife for his generous gift.
 
“Legacies amount to 10 per cent of our total income from individuals, so they’re essential to us, and as this case proves they can come in all shapes and sizes. It is very easy to make a Will and including Oxfam could leave a lasting legacy for those most in need.
 
“Every time someone leaves us a gift in their Will, whether that’s a few pounds or a few thousands pounds, it helps us make a huge difference to thousands of lives around the world.
 
William Hill spokesman Graham Sharpe said: “Mr Newlife was clearly a very shrewd sporting gambler whose early identification of potential superstars won tens of thousands of pounds for himself while he was still alive – but to ensure that a respected charity would benefit from any bets which came to fruition after his death makes him unprecedented in my 30 year experience of the betting industry.
 
“We will, of course, be handing the profits from his far-sighted wager to them just as soon as Federer holds the trophy aloft for a seventh time.”
 
Oxfam benefits from the generosity of around 600 legacies every year and the charity receives on average around £10 million per year from legacy gifts.

As suggested by Ms Ferrier, the importance of making a Will should not be under-estimated, particularly if you wish to make provisions for legacies to charities (or take such an imaginative approach as Mr Newlife).  For more advice on making a Will, charitable legacies or dealing with Probate on matters raised in this article, please get in touch.

The Land Registry’s reliance on paperless deeds gives ID theft opportunities.

When the Land Registration Act 2002 abolished paper deeds, professionals voiced concerns about how easy it would be for fraudsters to impersonate landowners to bring about sales or mortgages of property. With anyone able to check ownership, and mortgage status of registered property at the click of a mouse, a lot of information is publicly available which can help villains transfer ownership of properties fraudulently.

Previously, homeowners or mortgage lenders would be issued with a certificate by the Land Registry, which had to be produced when land was sold or mortgaged. Abolishing those certificates has made costs savings for the Land Registry in terms of printing and postage costs but what of the increased vulnerability of our national land records to fraud ?

Fraud can occur when a criminal succeeds in impersonating the owner of property to sell it and pocket the proceeds. If the fraudster picks a vacant property and obtains fake ID, he can impersonate the true owner and sell the property or mortgage it to raise easy money. If the fraudster chooses the property carefully, it can be months before the true owner realises that his property has been sold.

Thankfully, the Land Registry guarantees the accuracy of its land registry records, and is obliged to compensate property owners who lose out because of mistakes or fraud. However, it’s not always what might be called “no-quibble”…

Official figures reveal that in 2008/09 of a total of £9.9million of public money paid out by the Land Registry for problems with this system, some £4.2m, and £815,000 of legal costs was compensation for losses arising out of fraud on the register.

The Land Registration Act 2002 has provisions for an indemnity to be payable to people who have lost out in these circumstances. However, the Land Registry does not always pay out the full amount and can reduce compensation payable if they believe that the victim has not taken proper care to protect their own position.

We have experience of making claims for disappointed property owners and of negotiating indemnity claims with the Land Registry. It’s important to look at all stages of the conveyancing process, which our qualified property experts are able to do, so that we can negotiate robustly to achieve the best possible outcome.

Fraud fact: Just over £5 million was paid out by Land Registry in 2008/9 for 62 fraud and forgery claims, out of more than 4 million applications to change the register

Anyone who owns a property they do not live in, such as buy-to let landlords, or those living abroad may be at increased risk of registration fraud.

Owners can reduce the risk by ensuring that their address in their title register is kept up to date. Up to 3 addresses can be given for service. Up to 2 of these can be email addresses. A none UK address can be given, or a ‘care of address’. The care of address could be that of a professional adviser. These are then used by the Land Registry  to contact the owner if necessary. In addition, owners may include in their title a ‘restriction’ requiring the Land Registry not to register any change to the title  (i.e a change of ownership or a mortgage) without the consent of a specified person.

Most applications are dealt with by conveyancers who carry out identity checks against their clients and so such applications should carry less risk of fraud for the Land Registry.

Applications however can be made in person. In these cases the Land Registry will serve notice of the application to the registered owner using the address or addresses in the register. In these cases therefore it is vital that the contact details are up to date.

Need more information ?

For more information, please speak to your usual Wards contact, or email Susan Ellis on susan.ellis@wards.uk.com.

This guide is  not intended to be definitive or to act as a substitute for legal advice.

Introduction

It is a question nearly as old as employment litigation itself: If as an employer, I win at Employment Tribunal will I be able to recover my costs, from the employee who brought the claim against me?  As you may be aware the general rule is no.  The reason behind this is that when the legislation was set up it was thought that an employee would be put off taking action against the employer if they had liability for not only their own legal case but also that of the employer.  But is this now always the case? 

The law

Three recent cases have suggested that this hard and fast rule is being eroded in certain circumstances, they are “Daleside Nursing Home v Matthew”, “Dunedin Canmore Housing Association v Donaldson” and “Nicholson Highlandwear Ltd v Gordon Nicolson”.

Daleside was a case for race discrimination in which the central allegation was found to be untrue.  The Employment Appeal Tribunal held that on the finding that the main plank of the claimants case was a lie it followed that their behaviour was unreasonable and costs should be awarded.

In Dunedin the claimant brought a claim for breach of a compromise agreement.  The tribunal found that this was indeed untrue but did not award costs.  The Employment Appeal Tribunal found that as the claimant had not been either reasonable or honest then costs should be awarded.

Finally in Nicholson Highlandwear one of the tribunal explicitly stated that the claimant was unreasonable and dishonest, and once again costs were awarded. 

Conclusion 

The common theme in all the cases was that the employee was lying.  It is true that, generally, most employers are left with the cost of an Employment Tribunal and, unfortunately, nothing can be done, as they had no option but to defend the claim.  But if the employee lies on the ET1 and then lies to the tribunal, the cost to the employee could be a whole lot more than simply their time. 

Employers in these circumstances and where there is evidence should defend any claim brought against them vigorously.  Who knows the threat of costs may even be enough to persuade the employee to drop the case at an early stage

If you would like to talk through these issues then please do not hesitate to contact alex.lyttle@wards.uk.com

Why conveyancers obtain drainage and water searches ?

These contain information as to:

• whether foul water and surface drainage from the property drain to a pubic sewer,
• the location of public sewers within boundaries of the property or its vicinity,
• whether the sewers or proposed sewers are adopted,
• the location of public water mains and whether the property is connected,
• the basis of charging for the sewerage and water supply to the property

These were a compulsory part of  Home Information Pack (HIP), however in the absence of HIPs it is evident  that some conveyancing firms do not obtain these. They should in all cases, but  at least where the Buyer of the property is obtaining a mortgage to meet lenders requirements.

Of particular importance, as such matters can affect the valuation of the property:

• the  proximity of the connection to the foul sewer  as the greater the  length of any private network connecting the property to this, the greater the potential liability  of the property owners
• public sewers within the property boundaries as these are subject to statutory easements in favour of the water authority. Any building over these or within 3 meters should have a prior licence from the water authority
• water mains within the property boundaries, as no building is permitted over a public  water main

Need more information ?

For more information, please speak to your usual Wards contact, or email Susan Ellis on susan.ellis@wards.uk.com.

This guide is  not intended to be definitive or to act as a substitute for legal advice.

2010 News – Will Aid – Article  

Wards Solicitors with ten branches in the Bristol area raised a record £15,365.  Although the firm has participated in previous Will Aid campaigns, this amazing fundraising total smashes their previous record and makes them the current top performing firm.  Jenny Pierce, equity partner and Head of Probate Team explains how they achieved such a great result:

“I played my small part in increasing uptake as I do remind people to look out for Will Aid at the many talks and seminars I give throughout the year.  But most of our clients responded to Will Aid coverage in the meia, particularly in response to the mention on GMTV.  We decided to accept the work load between our branches and the twelve members of our probate team.  In total, we wrote about 200 Wills for clients.

Many of our Will Aid clients said they had previously been worried about seeing a solicitor but that actually they had quite enjoyed the experience.  This is why Will Aid is important to us.  As well as enabling us to support the Will Aid charities, if gives us the opportunity to show clients that we are approachable and caring.  We can also demonstrate the value of using a qualified and experienced professional to write Wills.”

See previous blog

In my  Conveyancing team I  have :

• One attendee of  Westlife concert
• A keen gardener
• 2 netball players
• A new mum to be
• An advanced driver
• A qualified driving instructor (not the same as the above)
• A lay preacher
• An equestrian
• A scuba diver (same person as the above)
• An arm chair sports fan (it’s a serious business…)
• A new Mum for the 2^nd time
• A golfer, or two
• A keen cyclist
• An occasional runner, or two

 Susan Ellis - Head of Conveyancing team