A landmark ruling by the Court of Appeal has been made against Network Rail following their failings to adequately treat Japanese Knotweed on their land.
Announcing the decision, Master of the Rolls Sir Terence Etherton said:
"Japanese knotweed, and its roots and rhizomes, does not merely carry the risk of future physical damage to buildings, structures and installations on the land… it can fairly be described as a natural hazard which affects landowners' ability fully to use and enjoy their property,” and is a “classic example of an interference with the amenity value of the land.”
This means that landowners could now be held liable to their neighbours for the presence of the Knotweed, even if the Knotweed has not yet spread to the neighbour’s property. Following the ruling, a Network Rail spokesperson has stated that the organisation is considering the implications of the ruling.
The claimants in the Network Rail case, Mr Williams and Mr Waistell, were successfully able to show that the presence of Japanese Knotweed within seven meters of their properties interfered with their ability to use and enjoy their land. This is legally defined as a private nuisance.
Whilst there was no actual physical damage to the properties concerned, Mr Williams and Mr Waistell were able to recover damages to reflect a loss in value.
If you know of - or suspect there to be - Japanese Knotweed on neighbouring land, early action is key. We will be happy to advise you in respect of a claim against a neighbouring landowner.
When you purchased your property, it is likely that you paid for a professional survey to be undertaken. Surveyors have a legal responsibility to check for the presence of Japanese Knotweed whilst conducting such surveys but this has been overlooked, or missed, on many occasions.
If your surveyor did not pick up the presence of Japanese Knotweed (and this is likely to include the presence of it on neighbouring land, if it can be successfully demonstrated that the presence of it is affecting the use and enjoyment of your land), it may be that you are able to bring a claim against the surveyor for professional negligence, this is if you are able to demonstrate that the presence and/or evidence of Japanese Knotweed should have been identified by the surveyor.
When a property is affected by Japanese knotweed, it can lose considerable value and your home may be worth less than you paid for it. This is called diminution of value and the basis on which you would be able to bring about a claim.
If, after having purchased your property, you discover an infestation of Japanese knotweed on your land, or within close proximity to your land, we may be able to help you bring about such a claim if this is something that your surveyor should have identified.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to pursue a Japanese Knotweed claim. Our Property Disputes Department are experienced Civil Litigators who provide pragmatic and cost effective solutions to end your dispute quickly.
Houses are usually the most expensive purchases anyone ever undertakes and therefore we would encourage our clients to be as thorough as possible in respect of their due diligence including taking out searches, full surveys and not simply relying on mortgage lender valuations. Where properties are in certain areas it is always recommended that a buyer takes out extra searches and/or insurance for specific risks associated with those areas
My first Professional Negligence claim involved a transaction where the coal mining search came back clear.
So far so good you would think, but this property was in Cornwall and the correct search (which can be done) is for tin mining and this would have shown a risk which could have been insured against. When the garden subsided it became a Professional Negligence claim against the Solicitor. Whilst this claim was ultimately successful without litigation it caused considerable unnecessary stress for the homeowner whose property was condemned and ended up living in alternative accommodation in her advanced years.
An Insured Event is any accidental, unexpected or unforeseen event which is be insured against under your Home Insurance.
The type of subsidence damage described above is an “insured event” and there may be a third party, such as the National Coal Board (or its successor), who can be held liable for the damage.
In these circumstances your insurer will deal with your claim and look to recover what it pays out under your insurance policy by bringing a claim against the third party.
In our previous article Subsidence - Getting to the Root of the Problem I described how in heavy clay soils tree roots may cause a problem for homeowners.
However, in areas where soluble rocks such as limestone or chalk exist a “solution feature” (an erosion of the underlying soil that results in an underground cavern) may occur which eventually gives way and may cause subsidence to your property.
These collapses are often triggered by an escape of water or a rise in the water table. The first sign is usually a small hole appearing at surface level and needs to be dealt with promptly.
If the cause of the escape of water is due to mains pipes then you should put the Statutory Water Authority (SWA) on immediate notice of the problem and have them remedy the same. If the nuisance is not stopped then any damage that occurs after the point at which the SWA might reasonably have stopped the nuisance becomes recoverable in law.
The simple step of communicating with the SWA in time could prevent later difficulties.
At MW Solicitors our mission is "To make quality legal services accessible to everyone" including homeowners who are worried that their home is suffering or might be at risk from subsidence. If you believe that your property is suffering subsidence damage, it is important to act quickly.
We can help homeowners whose property is damaged through the actions of a third party. We will explore every legal avenue and our experts in MW’s are not just experienced in the law regarding these matters, but also in the underlying geological and biological causes.
We can advise if you are entitled to bring a claim for the recovery of your insurance excess and any repairs costs and we will act on behalf of your insurer should you wish to instruct a local firm. We can assist you with any discussions and negotiations with third parties in order to resolve any dispute. We are keen advocates of mediation and other forms of Alternative Dispute Resolution (ADR) and we will do all we can to resolve your dispute in a sensitive and cost effective way.
Fans of the ITV Soap Opera Coronation Street will no doubt be familiar with the current inheritance storyline following the tragic suicide of Aidan Connor. Whilst Coronation Street is a fiction, it has to be assumed that the bigger, more sensational storylines are researched thoroughly to ensure a true depiction before it reaches the homes of millions.
Aidan Connor left a Will which was found by family friend Michelle when the family was sorting out his possessions after his suicide. The Will purportedly leaves Aiden’s share of his business to his business partner Alya who had helped Aidan rebuild the business after it had previously gone bankrupt. Until recently, the terms of the Will have been concealed from the wider family and from Alya herself.
After the Will was made, but before Aidan's death, Carla Connor had given Aidan her share in the business in order to assist Aidan in a new venture. This was against the background of Aidan donating his kidney to Carla to save her life.
Michelle originally held back the Will and didn’t show anyone; but then showed it to Carla after she witnessed Carla’s "bullying" treatment of Alya and she also told Jenny, Aidan’s stepmother.
Everyone was outraged and promptly headed to the local solicitor (Adam Barlow) to get some legal advice.
Adam's initial advice was that the Will appeared to be valid and it would be difficult to challenge.
However, the three women were not satisfied with this answer and urged him to “think again" referring to the fact that he, previously, had not always acted by the book. That episode ended with him saying he would have a rethink. While in the solicitor's office, Jenny started to attempt to destroy the Will by tearing it up, but was prevented from doing so.
Adam has since suggested that the family could challenge the Will for lack of mental capacity; this is based on Aidan’s depression and subsequent suicide.
The story now hangs in the balance and we will have to wait, in true soap land style, for all the threads to come together before we see any outcome in relation to Aidan’s affairs. In the meantime, I will set out the facts of the scenario so far:
The Will will be deemed valid as long as Aidan had the necessary mental capacity to make the Will and was not unduly influenced to do so, and so long as it was signed by him and witnessed by two independent witnesses who were both in the presence of Aidan at the time he signed the Will (as per Section 9 of the Wills Act 1837). This can be challenged if there is strong evidence to support such challenge. It is unlikely that depression would be a sufficient reason to allege lack of capacity.
If the Will is deemed to be valid it is the duty of the executors to administer the Will in accordance with the terms of the Will. In the case of Aidan's Will, it is not clear who the executors are or what other provisions were made, but certainly insofar as the business is concerned, Alya is entitled to Aidan’s share.
It is illegal for anyone to destroy or otherwise conceal the existence of a Will. If Jenny had succeeded in destroying the Will it would have been a criminal offence.
However, if the existence of the Will had not been found and brought to the attention of Alya (or any of the family) then it would be assumed that Aidan did not leave a Will and the estate will be administered under the Intestacy Rules. In this case, Aidan did not leave a spouse so his estate would go primarily to any children of his. He recently fathered a child with Eva (Susie) but none of the family know this about Susie so the assumption would be that his estate would be shared between his closest relatives. He has a sister, Kate and father Johnny. Also a half sister, Carla. In this scenario everything would go to Johnny.
If Eva comes clean about Susie, Susie will be entitled to the whole estate under the Intestacy Rules. However if the Will is not destroyed, and deemed valid, Susie will have a potential claim under the Inheritance (Provision for Family and Dependents) Act 1975 as a child of the family who was not left reasonable provision. As a minor child in all the circumstances. she could have a very strong claim. However if Susie is formally adopted by Toyah and Peter, she will not have recourse under this Act. Therefore, if Eva is going to acknowledge that Aidan is Susie’s father, she needs to act quickly before Susie loses her right to any claim once the adoption process is complete.
Carla may be able to bring a claim for a share of the business, given the monies she invested but if that money was deemed to be a “gift” to Aidan then this will no doubt be the subject of the litigation.
If the Will is ‘lost’ she may have a claim to a share of the business if she invested money in it.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who find themselves in a similar situation to those of the fictional characters of Weatherfield. Whether you are part owner of an up and coming knicker factory or a minor beneficiary about to be adopted there are avenues that can be explored to help you.
In a recent article MW Solicitors highlighted the tragic case of Robin Richards and others who suffer from Aspergers and who are cared for in a failing system which does not meet their specific needs.
As instructed by the findings of the inquest, the senior coroner for Somerset, Mr Tony Williams, has written to the Health Secretary expressing concerns about the shortage of suitable supported accommodation for vulnerable people with Asperger syndrome following Richard's death in a home that had not even been inspected by the care regulator.
Mr Williams has given the Health Secretary, Jeremy Hunt MP and the chief executive of Somerset Partnership NHS foundation trust, 56 days to reply to his report "Prevention of Future Deaths" outlining the actions which have or are proposed to be taken.
Mr Richard's family are represented by Clare Evans, a member of MW Solicitor's special Inquest team. She said:
"Robin’s family sadly came to a conclusion, long before his untimely death, that such was the almost inevitable, though avoidable, outcome in a system which does not cater for people diagnosed with Asperger’s Syndrome.
One of the main aims of the family in this inquest, was to highlight the ongoing risk of death to other Asperger’s sufferers nationally, created by this void in care provision, so that lessons could be learned from Robin’s death.
They are pleased the Coroner has communicated this message. One can only hope that the Department of Health will now take the action desperately required to prevent further Asperger’s deaths.”
All too often Domicile is thought to be a relatively straightforward concept and Paul Young’s song is considered to be fairly apt in setting the scene that Home is wherever you want it to be. However, this is not the case and Domicile is often a complex concept. It is an important consideration in Inheritance Act claims as a claim can only be brought against the estate of a deceased person who was domiciled in England and Wales at the time of his/her death.
Everyone has a domicile of origin which is based upon the domicile of your father (in the event that your parents are married) or your mother (if unmarried or father has deceased), i.e. where they consider their permanent home to be at the time of your birth. Therefore, even if you were born in, say, England; if your parent(s) permanent home was in, say, India – that is the domicile of origin that you will take.
An individual over the age of 16 can revert to a Domicile of Choice. They must be living in a different country from their domicile of origin and must have an intention to remain in that country permanently or indefinitely.
A recent case in the Chancery Division of the High Court addressed the domicile question as a preliminary issue in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Proles –v- Kohli  EWHC 767 (CH) found that the deceased was domiciled in England at the date of his death on 8 December 2015.
The Claimant was the 5 year old daughter of the deceased (by her mother and litigation friend) and, given the content of section 1(1) of the 1975 Act, the burden of proof was on the Claimant to show that the deceased was indeed domiciled in England and Wales at the time of his death.
It was accepted that the deceased’s domicile of origin was India, but that he had lived for a considerable amount of time in England before travelling to and remaining in India for just a month before he died. Therefore the preliminary issue to be decided can be divided into two further issues:
When considering domicile, the whole of the deceased’s life and what his inferred intentions were, need to be taken into account.
The facts in this case were, of course, detailed and varied and beyond the scope of this article. However, the evidence before the court showed a long history of the deceased living and working in England. Although he remained married, he held himself out as divorced and had other relationships, including a brief relationship with Amelie’s mother in 2012. Although that relationship did not work out, he accepted Amelie as his child (at least initially) and retained a cordial and friendly relationship with her mother. He did not travel to India much over the years and certainly spent more time in England and his business ventures were all ultimately in England.
There are some records of conversations around domicile while the deceased was alive which were not conclusive. There is a report of him saying, in 2014, that he hadn’t decided whether he wanted to stay in England or return to India. He was resident in the UK for tax purposes. Solicitors acting for him in relation to a Will around this time mention that the deceased considered himself to be domiciled in India; however, the deceased did not respond to this, nor sign the draft Will.
Later, in 2015, he instructed different solicitors to prepare a Will and told them that he was domiciled and resident for tax purposes in the UK and that he held no property abroad or offshore, but his wife was currently in India.
The deceased was diagnosed with cancer in 2014 and after lengthy treatment decided to travel to India for rest and recuperation.
The claimant’s case was that in about 2010, following lengthy residence and estrangement from his wife, it is to be inferred that the deceased had the intention to reside in England indefinitely and to abandon his domicile of origin. His return to India in 2015 was only intended to be temporary. Indeed he had shown an intention to become a British national after Christmas 2014, for tax purposes, and as he has no intention of ever returning to India to live.
Mrs Kohli’s case was that the deceased never formed an intention to abandon his Indian domicile or acquire any settled residence in England He held an Indian passport, identity card and election card; he had an international driving permit and a limited visa to live and work in the UK.
There is strong contemporaneous evidence that the deceased intended to return to England after a rest from his cancer treatment. He had follow up appointments in England which he appeared to be intending to keep.
Therefore, in this case, it was found that the deceased took on a domicile of choice in England and Wales and did not abandon that domicile of choice when he returned temporarily to India. Therefore, it was found that the deceased was domiciled in England at the date of his death on 8 December 2015.
Although it remains the case that domicile can be a choice; it is clear that this is not a simple concept and involves many factors; not just where you lay your hat.
At MW Solicitors our Mission is "To make quality legal services accessible to everyone" including those who wish to pursue Inheritance Act Claims.
Our Estate & Trust Disputes Team are dedicated and specialist inheritance disputes Solicitors and are experts in pursuing Inheritance Act Claims. Take advantage of our FREE CASE REVIEW, call us today on 020 3551 8500 or email us at email@example.com.
A daughter claimed an entitlement to a dairy farm owned by her mother and late father. The basis of her claim was that a promise had been made to her by her late father that the farm would pass to her on his death. As such she relied on this promise to her detriment dedicating almost 30 years of her life to her parents’ farm. This claim is known as a proprietary estoppel claim.
In order to assess the claim, Justice Birss referred to the well established indicators of a proprietary estoppel claim in Thorner v Major  1 WLR 776 HL: “a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance”.
The claimant was able to successfully evidence that many representations or promises were made to her about the future of her inheritance such as being told to deal with the employees as they would in time be working for her, or that you cannot have it now and have it later. Justice Birss was satisfied that such assurances had been made.
In order to show that the claimant had relied on these promises to her detriment, Justice Birss accepted the evidence that she had been paid low wages, worked long hours, hardly had time off, and made a commitment to her parents’ farm as opposed to other farms because of the assurances given to her. Consequently, Justice Birss stated that her proprietary estoppel claim had been made out.
However, before allowing a conclusion to take place, Justice Birss had to deal with some other interesting points in order to finalise this dispute: firstly, whether her mother would be bound to a promise that was made by her husband to his daughter, and secondly whether a reasonable casual offer that was made by her parents and later rejected by the daughter 10 years prior would prevent the claimant from pursuing her claim.
Justice Birss firstly stated that in reference to the case of Fielden v Christie-Miller  EWHC 87 (Ch) one can be bound by another’s promise if they were aware of it, and in this case he thought that the mother knew of the assurances made to her daughter and was therefore bound. With respect to the second point Justice Birss was of the opinion that “it was not put to the claimant that by refusing the offer…[that] she would forfeit that inheritance”, and that the refusal did not entitle the defendant to abandon the assurances provided to the claimant. However, Justice Birss did apply this fact into his calculation of what relief should be rewarded.
The daughter was awarded £1.17 million of an estate valued at £2.5 million. Evidently, a promise that changed her life.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including those who wish to challenge a will. Sarah and Ravandeep are members of our Estate and Trust Disputes Team based at MW Guildford.
If you believe you may have inadvertently made such a promise or wish to rely on a promise of a gift on death our specialist Estate and Trust Dispute Solicitors are here to help you. Don't delay, call our Team today on 020 3551 8500 or email us at firstname.lastname@example.org
The Supreme Court has ruled that the Metropolitan Police failed to effectively investigate allegations made against John Worboys, a serial sexual predator. As a consequence, two of his victim’s have been collectively awarded £41,250 in compensation.
The main issue in this case was the extent to which Article 3 imposes a positive obligation on the police to effectively investigate allegations made against other individuals.
The two victims brought a claim against the Commissioner of Police of the Metropolis under the Human Rights Act 1998. They argued that the failure to identify and arrest Worboys breached their rights under Article 3 of the European Convention on Human Rights, which states that
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
This judgment has significantly widened the scope of police liability and paved the way for other victims to bring claims against the police should they fail to carry out an adequate investigation.
Commenting following the judgment, the Metropolitan police have recognised the implications this case will have on how they prioritise and resource their investigations. Coupled with the potential for future claims, it is not unreasonable to draw the inference that they vigorously defended the claim for fear of the financial repercussions; they appealed to both the Court of Appeal and then Supreme Court, following the original judgment in the Claimant’s favour in February 2014.
You can read the full judgment here
McMillan Williams is a leading specialist in bringing civil actions against the Police and protecting the rights and freedoms of ordinary citizens. We can represent you in pursuing a complaint, disciplinary proceedings or a civil claim against the Police for compensation.
If you have been a victim of crime and feel the police failed to sufficiently investigate or if you wish to speak with one of our solicitors who specialise in Actions Against the Police don't delay, all us today on 0203 551 8500 or email us at email@example.com.
We urge you to do this as soon as possible as there is a one year time limit ( from the date of the incident) in which to bring a Human Rights Act claim.
The Government Minimum Energy Efficiency Standards (MEES) comes into force from 1st April 2018 and will add yet more regulation to the minefield which already affects landlords.
Essentially, the MEES will require all properties rented out in the private sector (bar a few exceptions) to have a minimum energy performance rating of an ‘E’ on an Energy Performance Certificate (EPC). It will affect new tenancy agreements and renewals of tenancies taking place after 1 April 2018, and will affect all existing tenancies after 1 April 2020.
If a property has an energy performance rating of an ‘F’ or ‘G’, the landlord must carry out energy efficiency improvements before they let the property or renew an existing tenancy arrangement.
The new regulations are additional to the existing requirement that a valid EPC must be provided to a tenant by a landlord, and form part of a wider clampdown on energy wastage as the UK works towards reaching its carbon reduction targets.
Penalties for non-compliance include a fine which is based on the rateable value of the property (up to a maximum of £150,000). It is therefore sensible for current and potential landlords to seek professional legal advice before they consider entering into a new tenancy or a renewal to ensure that they do not fall foul of the new requirements.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Landlords who want to ensure that their tenancy agreements stay up to date with lettings legislation and regulations.
If you are a Landlord and need help with your tenancy agreements, don't delay, contact us today. Our experienced and specialist Property Disputes Solicitors are here to help. Call us today on 020 3551 8500 or email us at firstname.lastname@example.org
April is fast approaching and with it come changes to the taxation of termination payments.
The tax treatment of termination payments has been the same for quite some time. Rather than taking note of the old saying “if it isn’t broken, don’t fix it” the Government decided to review and “simplify” the process. This has resulted in things becoming a bit more complex!
Some of the suggestions have (thankfully!) fallen by the wayside but a few are going ahead and they take effect in April 2018. A key change is the tax treatment of Payments In Lieu Of Notice (PILONs).
Under tax legislation, it has been the rule for some time that certain payments made to employees on termination of employment can be made free from tax and National Insurance Contributions (NICs) up to £30,000.
As things stand, the tax treatment of PILONs is different depending upon whether the employer has the contractual right to make the payment. In simple terms, if the employee’s contract terms set out the right to make a PILON that means there is no breach of contract and it has to be taxed in the normal way like salary. If the terms are silent it can be paid tax free as damages, therby compensating the employee for the breach of contract in not allowing them to work their notice.
This has meant that employees can end up receiving a bit more cash and employers pay out a bit less too (no employer’s NIC’s). From April 2018 all PILONs will be treated the same. They will be subject to tax and NI contributions whether or not there is a clause allowing the employer to make a PILON. This means that there will be no downside to including a clause in contracts of employment permitting payments in lieu of notice.
Other key areas of change include:
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Employers and Employees.
Our experienced and specialist team of Employment Lawyers can help across a full spectrum of Employment Law issues including termination payments and drafting of employment contracts. If you need and Emploment Lawyer call us today on 020 3551 8500 or email us at email@example.com
It can be very tempting to continue to re-use old tenancy agreements. They worked before, so why should they not work this time. Trouble is, the law moves on and those previous terms may now be deemed unfair and unenforceable.
Any contract made on or after 1 October 2015 between a landlord acting in the course of a business and a tenant, being an actual person acting outside the tenant’s business (if any), is now subject to the Consumer Rights Act 2015. The provisions made in connection with unfair contract terms by the Consumer Rights Act 2015 are similar to those made under the Unfair Terms and Consumer Contracts Regulations 1999 (which still apply to contracts made before 1 October 2015). However, the major difference is that, under the Consumer Rights Act 2015, the courts will not uphold a term that is ‘unfair’, even when that term has been individually negotiated.
The Office of Fair Trading (OFT) was abolished in 2014 and the Competition and Marketing Authority took over its power to take enforcement action in relation to unfair terms. The Competition Markets Authority also adopted the OFT’s Guidance on unfair terms in tenancy agreements.
Although the new Competition Markets Authority Guidance has not been updated to take into account the provisions of the Consumer Rights Act 2015 and the repeal of the Unfair Terms and Consumer Contract Regulations 1999 in respect of contracts entered into after 1 October 2015, it still provides useful guidance, although it does need to be read with a degree of caution, until it is updated.
The Competition Markets Authority’s Guidance identifies a number of terms as being potentially unfair, amongst which are:
If you have been using a lease precedent for a number of years, it may well be that some of the terms of such a leases would be deemed to be unfair. It would therefore be advisable to seek legal advice to update your tenancy agreement and to check that all the terms are deemed fair under the Consumer Rights Act 2015.
At MW Solicitors, our mission is "To make quality legal services accessible to everyone" including Landlords who want to ensure that their tenancy agreements are fair and in accordance with the Consumer Rights Act and other contract legislation.
If you are a Landlord and need help with your tenancy agreements contact, don't delay, contact us today. Our experienced and specialist Property Disputes Solicitors are here to help. Call us today on 020 3551 8500 or email us at firstname.lastname@example.org