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Times are tough, as we all know, but we came across a story which really is quite shocking. It’s not a UK story but it’s not a third world story either. It’s from the US.

In short, the story from a local US publication concerns the fact that an increasing number of relatives of dead people are refusing to pay for their burial or cremation – this means the local authorities have to deal with the body and are fighting back by suing the relatives in the small claims court.

Presumably the legal action could only be taken against executors or administrators of the deceased’s estate ? Law is different of course in the US but under English law this is the only basis we can see for such a claim, although if we are incorrect, please do let us know.

Follow this link for the story in full. It seems to us to be a sad indictment of not only economic change, but societal and legal change also.

What do you think ?

 

Useful data from the US on social media

Social media law is becoming an increasingly important area of law impacting on areas such as employment law, defamation, privacy, family law and human rights.

Things are moving very fast, as with all things relating to the new digital world we live in. Trends in the legal interpretation of social media activity in the USA are worth noting for the future of English law in this area.

In a recent US study :-

• 43% of businesses have had issues relating to employee misuse of social media at work
• 30% of businesses surveyed have taken disciplinary action against employees relating to social media use
• Both employers and employees are becoming increasingly aware that social media may be a useful source of evidence in court claims, although most are unclear as to where the lines are drawn in terms of what can be legitimately accessed and used in evidence at court.

Two recent cases from the Inidianma and New York states courts indicate that courts are becoming increasingly receptive to social media activity evidence and in particular that as part of the vital disclosure discovery) obligations on all parties in litigation, it is likely to be legitimate for parties to request social media activity evidence from each other, although again, this is unlikely to be total disclosure and the  extent of disclosure in this area is still a developing area of law worldwide.

Probate research

Saga, the highly successful specialist services provider for the over 50’s, is moving into the legal services market, and as part of it’s initial moves it is marketing for probate and has commissioned and undertaken some research. The findings are summarized below :-

• It claims that by not shopping around up to 5% of the value of an estate is being lost on fees, which has an average value of some £7,200.00.
• Of 11,000 surveyed, some 90% of older people currently opt to make a will and have probate dealt with by solicitors. Saga claims probate can be dealt with much more cheaply than the average, it says of about a 5% charge on the value of the estate
• Just over 60% of those surveyed said they may shop around for probate services when it is necessary and where other options to solicitors are available
• some 500,000 pass away each year

Removal of Directors

A director’s role in a company is to promote the success and enhance the efficiency of the company. Included within this is ensuring that day to day business is conducted within all applicable laws and regulations. It is therefore of great importance that the director of a company does not underperform or fail to comply with the strategies the company has adopted which could harm its performance. In such a circumstance there may be a need to remove the director in question.

 

In most companies the Articles of Association (the ‘Articles’) provides for methods for the board of directors or shareholders to remove a director. However, even if this is not the case, or if the Articles contain a clause to secure the directors position, under the Companies Act 2006 (the ‘Act’) the shareholder always retains a right to remove a director. This is irrespective of what may be contained in the director’s contract of employment.

 

In order to remove a director under this statutory procedure, it is necessary to follow the steps set out by the Act. Any error or oversight can make the removal unlawful, which is why it is always advisable to seek legal advice on removing a director, or if you are one, to see if the members of the company have acted lawfully against you.

 

The following steps should be taken to remove a director:

 

• The shareholder proposing the removal must give 28 days notice to the board that he wishes for the director to be removed.
• This notice must then be sent to the director to be removed to give him the opportunity to make written representations to the other members.
• Notice to convene a meeting must then be sent out along with any written representations by the director in question.
• At the meeting the director to be removed must be given a chance to make representations to the members should he wish, or to have his written representations read out, if they had not been circulated prior to the meeting.
• A resolution to remove the director must be made by a majority vote.

 

It should be noted that since the shareholders will be trying to remove a member of the board of directors, the board themselves may not be willing to co-operate. Aside from being able to circulate their own representations before the meeting either for or against the proposed removal, the directors could refuse to convene a general meeting. This would force the shareholders to have to request that the board convene a meeting. In order to do this these shareholders must hold at least 5% of the shares, either singularly or collectively.

 

Another potential pitfall under company law is when a director is also a shareholder. This may not seem to be a problem especially if he is only a minority shareholder. However it is usual that in situations such as these the company’s Articles of Association may provide for his enhanced voting rights. This would mean that when a vote is being taken to remove him, his vote would hold more weight than it normally would. This needs to be considered before embarking on the procedure to remove him, as it may turn out that there is not the requisite majority to remove the director.

 

Even though the shareholders can remove the director regardless of any clauses in their employment contract, such a removal does not stop them from being able to claim damages or compensation for unfair or wrongful dismissal. Furthermore, if the director remains a shareholder after his removal he may cause difficulty by trying to block certain measures that the rest of the shareholders would like to implement. The ability to do this will depend on the quantity of his shareholding, however it can create a major problem for the company. In most circumstances the only solution is to negotiate the purchase of his shares.

 

The result is that the financial implications of removing a director must be taken into account before making the final decision. Overall it is usually more advisable to persuade the director in question to resign, rather than using the procedure under the Companies Act to remove them.

 

Aside from the methods mentioned above there are two additional ways to remove a director from his position:

 

1. Under certain circumstances prescribed in the Company’s Articles of Association; and
2. Disqualification by the Court under company law.

 

Most Articles of Association, especially if utilising the Model Articles as set out in the Companies Act, provide for situations where the director shall automatically cease to hold office. These include situations where the director becomes bankrupt, or has become physically or mentally incapable of acting.

 

The Court has the power to disqualify someone from holding the office of director for any period of time. Generally such orders would be made where the director is guilty of general misconduct in relation to the running of the company, such as where they have been found guilty of a criminal offence by actions they have done whilst running the company, or because they have persistently failed to comply with the filing requirements of the company.

 

Whatever the situation we are able to advise both shareholders and directors of their position including advising on:

 

• The viability of removing a director should he have enhanced voting rights.
• The procedure necessary to follow to remove a director.
• The rights as shareholders if the board refuse to convene a meeting.
• The Articles of Association and what it says in relation to situations where the director is automatically removed.
• The Directors employment contract and the possible financial implications of removing him.
• Your rights as a Director both during and after a procedure to remove you from office.

What is an assignment ?

An assignment is the legal word for transferring a legal right from one person to another. One form of assignment is the assignment of a contract. The benefit but not the burden (transferring of a burden is known as novation in legal terms) of a contract can be assigned, although in practical terms the assignee (transferee) and the 3^rd party who originally contracted with the assignor (transferor) tend to co-operate to make the contract work, since both parties to a contract will generally have benefits and burdens.

What is the effect of  a contractual assignment ?

After assignment, the assignee is entitled to the benefit of the contract and to bring proceedings against the other contracting party to enforce its rights. It is important to note that an assignment only transfers existing rights and does not create any new rights. Additionally, the assignee will take over the contract as it was at the time of assignment and thus any benefits obtained will be subject to any pre-existing reduction of possible contractual benefits. A good example might be the assignment of a debt where the debtor has a claim for a set-off against that debt.

As regards the assignor’s position on a contract, it is very important to understand that he/she/they will remain liable after the assignment to perform any obligations in the contract that remain to be fulfilled. In practice, the assignee generally deals with such tasks but nevertheless the assignor should be aware of potential liabilities and perhaps specifically obtain a release for the other contracting party or at the very least to seek a full indemnity from the assignee in relation to any breach of contract or failure to perform by the assignee.

For general legal advice, it is always important to get solid advice from good solicitors.

Big changes are afoot in the legal services market and many law firms need to adapt.

In our view (comments welcome) one of the biggest challenges for small and medium size law firms is to take control of their own destiny and realise that a law firm is a business. This seems an obvious point to make, but still seems to be overlooked by many practices who believe usual business rules do not apply to them.

A good example of the above relates to marketing. Many small and medium law firms either do very little marketing or do not plan marketing, ignoring the fact that marketing is a “process not an event”. Many law firms think that there has to be an immediate pay off, they would rather pay for a referral because this does not involve that word, “risk”, than to invest in and create their own marketing strategy which does not involve paying brokers or intermediaries a fee for doing the marketing for them. Lawyers seem to forget that in paying brokers, they are paying a premium and in fact damaging their own market position and strengthening the power of the intermediaries, upon whom they become increasingly dependent. This is particularly the case in terms of online marketing.

Well run businesses in a myriad of other sectors generally :-

1. spend between 3-10% of turnover on marketing consistently

2. take control of their own destiny

3. Carefully plan and measure marketing activity

4. Have a strategy

5. Accept that marketing, like all business issues, carries risk but also reward.

6. Take marketing seriously

 

Unless and until many more legal practices behave like other businesses, we have little sympathy.

 

ev

Mediation Services

Mediation – a modern way of resolving disputes

Mediation is a part of ADR (Alternate Dispute Resolution) that has more recently been embraced by the legal community as a quick, cheap and amicable way of resolving disputes.

 

Mediation defined

Mediation is type of negotiation procedure where a neutral third party (the mediator) aims to find common ground between the parties so a settlement can be reached.  For mediation to work, both parties have to be willing to negotiate and be legally bound by any settlement that is reached, although it is possible to enter into negotiations on a “without prejudice” basis such that the parties agree that the content of the negotiations can be relied on in court and have a bearing on litigation.

 

The process in detail

The parties will agree to meet at a certain time and place.  Both sides will then make a statement outlining their position after the mediator confirms that both parties are in a position to negotiate.  The mediator will then talk to both parties individually and in private in order to establish what the respective parties want and whether there is any common ground.  Both parties will then meet again and the mediator will facilitate negotiations by emphasising common ground and dispelling any antagonism that the respective parties may hold for one another.

 

What mediation is used for

Mediation can be used for a wide-range of disputes including:

 

• Contractual disputes
• Landlord/tenant disputes
• Disputes with employees
• Intellectual property disputes
• Disputes between shareholders and/or directors
• Partnership disputes
• Family business disputes
• Nuisance disputes

 

This is an non-exhaustive list.  You should bear in mind that mediation is suitable for a wide-range of disputes, even ones that are not strictly legal in nature; it is a very flexible procedure.

Paternity Leave entitlements and rates

The Additional Paternity Leave Regulations 2010 apply to parents and adoptive parents of children born after 3 April 2011 and entitle fathers to up to 26 weeks’ paternity leave, which leave can commence from 20 weeks before the expected date of birth expiring on the first anniversary of that date. Employers will need to update employment policies and procedures in response to the changes. Also note that from 11th April 2011, statutory maternity, paternity and adoption pay entitlements will increase from £124.88 to £128.73 per week, with the weekly earnings threshold increasing from £97 to £102.

Bribery Act – watered down version but in force on 1^st July 2011

Finally, the Bribery Act debacle seems to have moved on to the next stage.  The new guidelines offer a more sensible and altogether more proportionate view on this important topic.

It seems that the message from the UK government, broadly speaking, is that if you have a small or medium sized business, save for blatantly criminal attempts at bribery, there is little to worry about. The new rules reinforce that it is big businesses, particularly those who undertake business internationally, who should remain vigilant and concerned. This is especially because, on a worldwide basis, there is clearly a trend towards governments being seen to “clean up” the actions of big business and the potential fines and other sanctions where enforcement action is taken, generally run into the millions of the relevant currency, so there is a lot at stake.

Following on from the above, the UK  Ministry of Justice  has emphasised in the latest guidance that minimal procedures will be required for small and medium sized businesses who should effectively adopt a common sense approach, whilst still bearing in mind that the Act does apply to them also. Proportionality is the key consideration.

What has not been “watered down” in the new guidelines is the need for all businesses to be vigilant about vicarious liability for employees or agents involved in bribery. In those circumstances the Directors of the business may face a fine or even a prison term.

The revised guidance contains 6 principles for bribery prevention :-

1. Proportionate procedures

2. Top level commitment

3. Risk assessment

4. Due diligence

5. Communication

6. Monitoring and review

Trespass law in the Uk covers a variety of issues and is governed by the law of Tort. Although the law encompasses trespass against the person and trespass against chattels, i.e. personal possessions, it is trespass against property that is considered in this article.

 

A person who owns property is, to a certain degree, entitled to defend their property against intruders. Whilst this may have once meant that extreme measures could be taken to prevent trespass, the actions that can be taken under law are now more circumscribed. The erection of fences and walls to secure a boundary are permitted, although height restrictions do apply. Also considered reasonable is the fitting of deadbolts and alarms, but actions beyond this may fall foul of other laws pertaining to the rights of the intruder.

 

An individual who has been found trespassing can be legally ejected from the property, providing that the amount of force used to do so is deemed by the courts to be reasonable. Any amount of force exceeding that which is commonly regarded as reasonable could result in the perpetrator, usually the property owner, being held liable for assault or similar. The old maxim that an Englishman’s home is his castle does not give him the right to inflict excessive force. The first step should always be to request that the intruder leaves the area, either verbally or in writing. If the trespass continues once the offender is made aware of the trespass, further action can be taken, always bearing in mind the rights of the intruder.

 

Furthermore, the rights of the intruder should always be borne in mind when securing a property against trespass. It would be illegal, for example, for a landowner to set up traps as a deterrent to would-be intruders. Similarly, whilst the erection of walls around the property might be acceptable, setting shards of broken glass around the top is not. A low voltage fence would be within the realms of acceptable protection, although the landowner would be expected to clearly display warning signs for all approaching persons to see.

 

There have been several instances in recent years regarding trespass onto industrial sites, where the intruders have fallen through roofing or glass panels and have subsequently successfully sued the company whose property they were trespassing on. Although the company were unaware of the trespasser’s presence, they had a duty of care to the intruder to the extent that they should have maintained their property in a reasonable state or repair. Where an injury has occurred as a result of neglect, the fact that the intruder was uninvited is not always relevant.

 

Trespass as it applies to land barriers is a little less confusing. One of the more common forms of trespass relates to garden plants and garden borders. If a neighbour has a large shrub or tree that either blocks light or physically intrudes onto another’s property this is a form of trespass. In this instance, the neighbour whose land is being encroached upon is legally entitled to saw off branches of the offending plant. Whilst there is no need to ask the permission of the offending neighbour to do this, the sawn-off branches must be returned to their owner, as technically speaking, they belong to him/her. Failure to give back the trespassing foliage may result in a charge of criminal damage.

 

As far as garden borders go, it is quite easy for a fence, garage or similar structure to be erected that intrudes slightly onto the adjacent property. It is not necessarily an active act of trespass. In these cases, it is the responsibility of the landowner that has been trespassed against to inform their neighbour of the intrusion and give reasonable time for the problem to be rectified. It is not acceptable to take back land by pulling bricks out of a structure or pushing fences over. It may even be necessary to show the neighbour or their legal representative the deeds to the property to confirm a legal right to request the removal of the offending structure. If a landowner chose to say nothing in regard to the encroachment, preferring to keep the status quo in neighbourly relations, they have, by law, a maximum of seven years to challenge the intrusion. Failure to challenge within seven years results in the land becoming the neighbour’s property by way of estoppel. Failure to be aware of the trespass seven years earlier does not entitle a person to a longer period of time; the law expects people to be mindful of their property