The ruling came in a ‘Finding of Fact’ trial in child care proceedings, which has subsequently brought calls from ex Justice minister Sir Simon Hughes for there to be a reopening of the criminal investigation against the father.

On paper, it is a confusing set of circumstances. How can somebody be found to have committed such a serious and distressing crime and yet not be criminally charged and/or tried for it?

The answer lies in the procedure for family law cases in which specific allegations have been made against a parent which relate to the welfare of his/her child/children. In this particular case the question was whether there should be concern for the siblings of the little girl in circumstances where there was suspicion against the father.

In many families, and in particular children cases, allegations are made which will have an impact on the assessment of whether there is a risk to the welfare of the child/children. In these circumstances the Court will look to either Cafcass (Children and Family Court Advisory and Support Service) or Social Services to prepare a report to the Court which investigates and advises as to whether or not such welfare risks exist.

The difficulty that these authorities have is that often the allegations are denied and so a report cannot be completed until it is decided whether or not the events took place as alleged. This is where the Finding of Fact hearing becomes relevant.

The family court will list a Finding of Fact hearing in which all of the parties concerned will give statements and be questioned as to the allegations. At the end of the hearing the Judge will make a judgement as to whether or not any or all of the allegations are founded.

The Finding of Fact hearing is similar to a criminal trial, apart from the crucial difference of the standard of proof required. Family law cases are civil cases and so the standard of proof required is that of a ‘Balance of Probabilities’; i.e. was it more probable than not that the events took place as alleged?

In criminal cases the standard of proof is much higher, with the prosecution having to prove the allegations ‘beyond reasonable doubt’. This is where the confusion often reigns. The ‘balance of probabilities’ test is a lesser standard to ‘beyond reasonable doubt’ and so a parent can be found ‘guilty’ in the civil Courts and yet not face trial in the criminal Courts.

If you are thinking about making an application to Court regarding your children and need some advice do not hesitate to contact one of our expert family solicitors on 0113 201 4900 or email andrew.smith@emsleys.co.uk. 

1. Believe the employee to be guilty of misconduct;
2. Have reasonable grounds for believing the employee was guilty of that misconduct;
3. Have carried out as much investigation as was reasonable in the circumstances when it formed that belief.

(British Home Stores Limited v Burchell [1978]IRLR 379)

Human Resources (HR) are often involved in disciplinary proceedings. For many Line Managers, Operations Directors, Finance Directors, Managing Directors and others conducting disciplinary investigations and chairing disciplinary hearings/appeals is not the normal day job. It is not at all unusual for them to seek help from HR.

When seeking that help a case from the Employment Appeal Tribunal (EAT) called Ramphal v Department for Transport (UKEAT/0352/14) reminds us that the role of HR should be limited to matters of law, procedure and consistency. It is not for HR to decide culpability. The case in question concerned an employee’s alleged misuse of his company credit card. An investigating officer prepared a draft report recommending a final written warning. When HR reviewed this draft favourable comments were removed, critical comments added and the recommendation changed to dismissal. The EAT found HR’s involvement  to be “disturbing” and highlights that improper influence from HR may compromise the disciplinary procedure and render the dismissal unfair.

For more information on any of the issues above or if you’d like help with a disciplinary policy or procedure, give one of our employment experts a call on 0113 201 4900 for a free, initial discussion.

If you’d like more information on any of the issues above, give one of our employment experts a call on 0113 201 4900 for a free, initial discussion.

Employers must tread carefully however and be mindful of the legal maze which includes the right to privacy under the Employment Rights Act 1998, the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000. Added to this is the implied term of trust and confidence which runs through all employment contracts, the breach of which may lead to a claim for constructive dismissal.

Many employers recognise the need for Electronic Communication Policies covering (amongst other things):

• Standards of conduct and performance
• Examples of inappropriate use, which may be dealt with under a disciplinary procedure
• A requirement that the employer’s standard disclaimer must be used
• The restrictions on personal use
• The purpose and types of monitoring and who will have access
• Responsibility for the policy
• Subject access rights
• Guidance on blogging and use of social networking sites.

If you’d like help with your Electronic Communication Policies or for more information on any of the issues above, give one of our employment experts a call on 0113 201 4900 for a free, initial discussion.

So Christmas is over, the financial stress and increased time together has not helped to repair difficulties in your marriage: Where do you start?

Online Services:

The starting point for many is an online search for information or an online enquiry. This information gathering process is sensible but it can be difficult to know what is relevant and can be equally difficult to apply general information to specific facts.

For those with no assets, no disputes about children and little money to pay on legal fees and a general consensus that there should be a divorce, online services may be a sensible option. It is advisable to research these:

• Some services are provided by qualified solicitors, others are not.
• Some fail to emphasise that you are “acting in person” i.e. dealing with the divorce yourself and they are just providing you with information and the relevant forms – this means that if you face a hiccup in proceedings, the online service provider can just abandon you and leave you to sort it out.
• Those who encourage you to pay a low fee for a pack of forms are often just charging you for information that can be downloaded free of charge from the Ministry of Justice website.

Solicitor Services:

For those who need a bit of help in knowing which way to turn, the free initial appointment with a solicitor remains invaluable. A solicitor is unlikely to be able to tell you the “answer” in an initial appointment, but can give you information about your immediate situation which often gives reassurance and enables you to focus on what needs to be done, if anything, straightaway. A solicitor will give you information about alternative processes which may be cheaper and more suitable to your situation, such as family mediation. You will be given advice about what further information you need to obtain to enable you to obtain more specific legal advice as to possible outcomes. Some solicitors limit the time to 20 or 30 minutes and then charge you, others such as Emsleys provide the first appointment entirely free of charge.

If you face an unavoidable battle ground and tensions are running high, there are lots of ways to keep your legal costs manageable. Make sure you have a solicitor who is a member of Resolution i.e. one who keeps to a code of practice not to run up legal costs for you by dealing with your case in an unnecessarily adversarial way. You want a solicitor who will sensibly support and give you the right advice legally to obtain a fair outcome, not pick costly fights about issues not worth fighting about. Many solicitors offer payment plans, fixed fees to keep to a budget, a pay as you go service and if need be, can help you with applications to lenders who loan you fees which can then be paid out from the sale of a house or a lump sum. Emsleys offers all of these options. It is important, however uncomfortable you feel about it, to communicate about fees and be realistic about what you can afford: If you find it difficult to talk about fees, communicate by email or letter with your solicitor before you face an unexpectedly high bill: Your solicitor will want to give you the best possible service but this may mean spending far more time on your case than you anticipated.

Free Advice:

There are lots of free resources to help those who have very limited money to fund legal fees: Your local County Court/Family Court will have a public service unit staffed by a rota of law students. The Citizen Advice Bureau often operates a rota of local solicitors who will attend to offer free advice. The Government has published an online advice information service to help those divorcing. The Child Maintenance Service (CMS) website and calculator are an invaluable resource for many. Legal aid remains available to those financially eligible for family mediation – it can be much cheaper to negotiate face-to-face in the presence of a mediator and turn to a solicitor for specific legal advice, than to engage a solicitor to negotiate on a time taken basis and pay for each letter and telephone call.

Our Team:

Members of Emsleys’ family team are Resolution solicitors: Gabbie Clasper is accredited by Resolution nationally as an expert in financial cases and Andrew Smith is a nationally accredited family mediator who can offer a legal aid service for family mediation to those who are financially eligible. Members of the family team are accredited by the Law Society as experts in Family Law. We offer an initial appointment free of charge at any of our offices and can give you an estimate of our fees and information about payment plans and funding during your appointment. If you then decide you want to instruct us, we confirm the work we have agreed with you that we are to carry out on your behalf and estimate our fees in writing. We ask you to sign documentation before incurring any charges. The family team assistant Abbey can help you with any additional preliminary enquiries you may have: abbey.thompson@emsleys.co.uk or call Abbey on 0113 201 4900.

In any situation where a landlord wishes to regain possession of his or her property, they must follow the possession procedures outlined in the Housing Act 1988. Very simply, the possession procedure is as follows:

1. Serve a valid notice on your tenant asking them to vacate the property.

2. If your tenant does not leave voluntarily upon expiry of the notice, commence Court proceedings to obtain an Order for Possession.

3. If your tenant does not leave following on or before the date specified in the Order for Possession, you must obtain a Warrant for Possession which will enable a bailiff to evict your tenant if necessary.

It is a criminal offence to evict your tenant without following the steps above.

The two most common procedures for landlords wishing to regain possession of their property are outlined under Section 8 and Section 21 of the Housing Act 1988. In cases of rental arrears, Section 8 is usually the quickest and most effective procedure.

Landlords often make the mistake of serving a simple letter on their tenants asking that they leave. This is not a valid Notice. A Section 8 Notice must match the prescribed format set out in the Housing Act 1988.

The Notice must be served on your tenant affording them at least two weeks to vacate the property. The length of notice depends on the ground relied upon and can be as long as two months. Your Notice will not be valid if you do not give your tenant the corresponding length of notice for the ground relied upon.

The 17 grounds for eviction under Section 8 are set out in Schedule 2 of the Housing Act 1988. You must cite at least one of these grounds in your Notice, explaining why the ground is being relied upon. Again, failure to cite at least one ground and explain why it is being relied upon will mean your Notice is invalid.

Grounds 1 to 8 are known as ‘mandatory’ grounds. This means that if a landlord can prove to the Court that one of these grounds applies, the Court must grant a possession order.

Grounds 9 to 17 are ‘discretionary’. This means that even if a landlord can prove that a ground applies, the Court can exercise its discretion as to whether or not a possession order will be granted. In other words, the Court will listen to your tenant’s side of the story and may decide, based on their arguments, not to grant possession.

It is therefore common for landlords to rely on a mandatory ground if possible in order to avoid the wasted expense of commencing unsuccessful possession proceedings.

The appropriate mandatory ground for rental arrears is Ground 8. To rely on this ground, the landlord must prove that the tenant is:

1. At least eight weeks in rental arrears if rent is due weekly

2. At least two months in rental arrears if rent is due monthly; or

3. More than three months in rental arrears if rent is due quarterly or annually.

The tenant must be at these levels of arrears both on the date the Section 8 Notice is served and on the date of the Court hearing for possession. In cases where a tenant is in significant rental arrears with no intention or means to pay, this ground should be used.

In cases where tenants are in some rental arrears but not enough for Ground 8 to apply or may pay off some arrears between the dates of the Notice and the Court hearing, a landlord can rely on Ground 10. This ground requires that a tenant is in some rental arrears both at the time possession proceedings are commenced and was in arrears at the date of service of the Section 8 Notice.

Clearly, this is a far easier ground for landlords to satisfy. However, Ground 10 is a discretionary ground. If your tenant can demonstrate to the Court a valid excuse for the rental arrears, the Court may decide not to award a landlord with possession.

Ground 11 is another option. This ground does not require the tenant to be in arrears at all when possession proceedings are commenced, only that the tenant has persistently delayed in paying rent throughout the tenancy. Again, this ground is discretionary.

Please note: If it is only feasible for a landlord to rely on the discretionary grounds under Section 8, it is often more sensible to use the Section 21 procedure which we will look at in a future blog.

If you are a landlord with a troublesome tenant and wish to discuss your options, please contact Jonathan Robson in our Dispute Resolution department on 0113 201 4900 or email jonathan.robson@emsleys.co.uk for more information on our fixed-fee residential possessions service.

A High Court Judge has ruled that farmer Robert Fidler will be jailed should he fail to demolish his mock-Tudor castle by 6 June 2016.

Mr Fidler built his home in secret at some point between 1999 and 2006 without planning permission. During this time, the farmer erected hay bales all around the property hiding it from view. His reasoning being that should the building exist for a period of four years, he would be immune from enforcement action by Reigate and Banstead Borough Council under planning laws.

The hay bales were removed in 2006, revealing the completed castle and prompting the council to serve an enforcement notice on Mr Fidler requiring the property be demolished.

A legal battle ensued culminating in an injunction from the High Court in 2014, ordering Mr Fidler to demolish the property within 90 days.

Following Mr Fidler’s failure to demolish the property as per the injunction, the council made a further application for contempt of court.

Mr Justice Dove, sitting in the High Court on 9 November, agreed with the council’s application and found Mr Fidler in contempt of court, ruling that the farmer would be jailed for three months for his ‘intentional defiance’ of the previous Order should he fail to demolish the property by 6 June next year.

Whilst it remains to be seen whether or not Mr Fidler intends to defy the Court any further, this ruling offers a clear warning to people who believe it is easier to ask for forgiveness than it is to obtain permission.

If you require assistance with Court proceedings or disputes in general, please contact Jonathan Robson in our Dispute Resolution department on 0113 201 4900 or email jonathan.robson@emsleys.co.uk for a free, initial consultation.

Two ex-wives have successfully won the right to re-negotiate their divorce settlements. Ms Sharland and Mrs Gohil both found out, some years after divorce, that their husbands had lied about their wealth.

Ms Sharland divorced in 2010. Her ex-husband was a software entrepreneur and at the time of divorce, she accepted £10 million and 30% of the proceeds of shares held by her ex-husband in his company if he sold them. She did so on the understanding and belief that this was 50% of her ex-husband’s overall wealth.

At the time of the divorce settlement, Mr Sharland lied to the Court about the value of his company and deliberately concealed his plans to float his company on the stock market.

Ms Sharland appealed to the Court of Appeal on the basis that she had been deliberately misled but the Court of Appeal rejected her case stating that even though Mr Sharland had lied, he had not lied so much about his wealth as to make a significant difference.

Ms Sharland appealed to the Supreme Court asking for a decision to be made about the impact of her ex-husband’s fraud on financial cases decided within a divorce. The Court agreed with her that the case should be looked at again, with Lady Hale stating in her Judgment that Ms Sharland had been “deprived of a full and fair hearing” because of “her husband’s fraud”.

Ms Sharland’s case will now return to the High Court for the Court to look at the distribution of wealth all over again.

Mrs Gohil’s divorce settlement in 2002 involved a payment to her of £270,000.00 and a car. In 2010 her ex-husband, a solicitor, was convicted of money laundering and imprisoned for 10 years. During his 2010 criminal trial evidence was submitted to the Court that he had lied about his true wealth in divorce proceedings.

The Supreme Court has agreed with Mrs Gohil’s request that the case should be passed to the High Court for the Court to look at the distribution of wealth again.

Asking the Court to look again at a financial divorce settlement is a complex legal process. It is important that you get expert legal advice before making any such application to the Court. To find out more, contact Emsleys’ Family Law team on 0113 201 4900 for a free, no obligation consultation.

From 1st October 2015 the new Consumer Rights Act 2015 aims to make consumer rights clearer. Covering everything from the sale of goods, services, digital content and more, the intent is to require businesses to deal with consumers in a fair and transparent way.

A brief overview (including sections of the Act to help you quote chapter and verse):

The above statutory rights are in addition to other existing common law and equitable remedies.

In addition to the headline-grabbing short term right to reject within 30 days; significant changes have been made to competition claims. Where businesses are engaged in cartels or breaching anti-competition rules (which could cover anything from sports retailers selling football kits at artificially high prices to banks improperly selling payment protection insurance) new rules are intended to make it easier to bring claims into the Competition Appeal Tribunal. Claims can now be brought on behalf of a group without having to identify all of the individuals in the group and their losses. Claimants in the group are automatically included until they ‘opt-out’. Businesses engaged in cartels and breaching competition rules BEWARE.

If they have not done so already, businesses should be reviewing their consumer contracts, notices, advertising and staff training to ensure they comply with the new consumer focused regime. 

To learn more about the new Consumer Rights Act 2015, and how we may be able to help, please contact Emsleys’ Solicitor Robert Bates on 0113 201 4900, for a free, initial consultation.

Leeds-based Emsleys Solicitors offers both of its trainees NQ positions after qualifying earlier this month, and appoints another trainee to its expanding team.

Jonathan Robson, who qualified as a solicitor earlier this month, joins the firm’s Commercial team, whilst newly-qualified Rachel Sharp joins the Personal Injury team. Rachel said: “We’re delighted to have qualified; even more so now that we’ve both been offered NQ positions. It’s great knowing that all our hard work has finally paid off.”

Emsleys also welcomes Laura Jones, who joins the team as a trainee solicitor. Laura brings with her a wealth of knowledge after graduating with a law degree from Northumbria University and completing five years at Plexus Law as a legal assistant.

The firm will also see an addition to its Residential Conveyancing team later this month through the Leeds Legal Apprentice Scheme; which provides alternative opportunities to those who would like to pursue a career in law without using the traditional route through university, developing their legal knowledge and business skills.

Emsleys’ Director and Head of Personal Injury, Andrew Greenwood, said: “These latest appointments demonstrate our ongoing commitment to train and retain our recruits, and it’s through the continuous growth and development of our business that is enabling us to do this.”

Alistair McKinlay, Director and Head of Conveyancing, added: “We’re certainly seeing an increase in confidence within the property market, so it’s great to be able to reap the benefits of that by providing further employment opportunities.”