The internet remains largely unpoliced and we are always amazed that there aren’t more problems with the amount of money spent on the internet daily in situations where it is impossible to properly check who you are dealing with, whether on e-bay or millions of other sites. This is not to say we are not big fans of the internet, we are, it’s just that there are risks, and it’s all too easy to make assumptions. One such assumption which is very wide of the mark, would be that advertisers on google results are necessarily legitimate, that’s simply not the case. Google has very rudimentary checks on it’s advertisers and doesn’t prioritise rooting out the bad guys either.

A recent example of the above, perhaps inevitable, is the trade in Olympics tickets. In an investigation by the BBC, this found that google pay per click ads include unauthorised 2012 Olympics tickets together with ads selling illegal drugs and fake ID’s, notwithstanding that all of these constitute criminal offences.

Part of the difficulty with these sites is that many are not hosted in the UK or aren’t UK companies, and this creates jurisdictional havoc in terms of whether any action can be taken legally.

Google does have some techniques which can find obvious attempts to sell unlawful products, but the individuals or businesses who want to try and sell these items will use all available tactics to get past google’s automated techniques.

All in all not ideal, and remember, that the best way of protecting yourself if you are buying online is to use your credit card, which gives you some comfort, although this comes with it’s own risks, in terms of giving out your confidential information and card details.

One option for sharing the risk of litigation which has been steadily gaining ground and popularity is litigation funding, whetre a third party funder puts up the money for legal fees and other expenses, and possibly pays for the crucial after the event insurance to cover the contingency of losing and being ordered to pay the opponent’s costs.

The only problem for the average small business or individual is that litigation funding, save for one existing funder, First Class Legal, has only generally been available for big litigation cases, typically over £500,000.00 in value and upwards. This means unavailability for the vast majority of cases.

So, it’s potentially good news that there’s a new entrant to the market potentially offering to look at cases of £50,000.00 and over. Whilst this is still a smallish sector of the overall litigation market, it does bring forward the possibility of a larger number of commercial disputes where risk might be shared. The new funders, as reported by this week’s Law Society Gazette, are called Caprica and state that they have a war chest of some £100 million, so definitely a player.

The funders will always carefully pick and choose cases and if you are considering funding be aware that the fiunder may have many conditions, you may have to pay for an appraisal of your case with no guarantee an offer will be made, you will almost certainly need after the event insurance, your funders may not accept your chosen solicitors and perhaps most crucially of all, they will certainly want a significant if not the controlling decision making power if a settlement is offered. Such a settlement may not be what you would otherwise accept, so there are many compromises to be made with this sort of funding.

On the other hand, litigation is as often as not as much about tactics and bluffing as it is about the underlying law. If your opponent knows that you are well funded, he, she or it may well rapidly change assessment of the case and appetite to fight, which can often lead to a faster settlement.

All in all, well worth considering in our view. You may find that many litigation solicitors in smaller practices are not all that aware of litigation funding and may try to persuade you against it. They have a duty of acre to explore all funding options with you, so don’t be afraid to push the point or find a solicitor with a more pragmatic and progressive approach.

1. Check that it is genuine. It should show your name as a Defendant, with your proper address, or the full and proper name of your Limited Company. There should be a Claim number and the name of a Court in the top right corner. Slightly below on the right hand side, is the word ‘seal’, and there should be a round seal with the name of the Court and a Crown at the top of that seal usually in red. Telephone the Court from which the Judgment is sealed to ensure that the Judgment is real.

2. If it is genuine, do not ignore the Judgment. On Judgment debts more than £5,000 interest usually is charged at 8% per annum pursuant to Section 69 of the County Courts Act 1984.

3. A County Court Judgment is registered against your name on the Register of County Court Judgments, 28 days after the Order is made, and not paid in full by then. That County Court Judgment, or CCJ will then adversely affect your credit score and therefore your ability to obtain credit is likely to be compromised and therefore restricted.

If you owe the debt, sometimes it is better to simply pay and avoid an adverse entry on your Credit record.

If you pay the debt after the CCJ is registered, you can ask the Judgment creditor to write to the Court and have the Judgment against you, marked as satisfied. You can then write to the Register of County Court Judgments and for a fee currently of £15 you can ask that the Judgment is also marked satisfied with the credit agencies.

From the date of Judgment, the adverse entry will remain for 6 years, after which time it will be removed.

4. If you received Judgment, and no letter of claim, chaser letters, or Claim Form and Particulars of Claim, and you have a reasonable prospect of successfully defending the Claim, you can apply to set aside the default Judgment. If any of the ingredients above are missing, you are unlikely to be successful in setting aside a default Judgment. There may be all sorts of reasons not to have received any prior notice, including documents being sent to the wrong address, the address cited being wrong, postal strikes, problems with post generally. Just remember that the Claim Form is usually sent by the Court, and if the address is wrong, it is usually returned to the Court marked ‘inaccurate address’, or addressee gone away’, or ‘not known at this address’.

5. Do not delay or ignore a Judgment received. Do not delay or ignore applying to Court to set aside a default Judgment. The Court will want to see that you took steps to address the Judgment as soon as it reasonably came to your attention.

6. If in doubt, seek independent legal advice.

The writer is a Solicitor-Advocate, Partner and Head of Litigation at Darlingtons, a member of the London Solicitors’ Litigation Association, and a visiting Associate Professor of Law at Brunel University.

Like many things in life, there are pro’s and con’s to social media generally and twitter specifically. On the positive side, it’s a great, fast and easy way of making contacts and communicating rapidly and effectively with a potentially big audience of people who share something in common with you.

On the other hand, in a world where everything gets faster and faster and where there are competing demands for time and attention, and a sub-conscious if not conscious feeling that you have to keep tweeting regularly, it is all too easy to act in haste and repent at ;leisure…. Compose a quick tweet, don’t think, press return and … boom… trouble .

Here is a recent example ….PR agency Redner Group has had it’s contract terminated in the last week when it’s Managing Director, acting on behalf of a major games publishing company, slapped down some complaints from customers  with a  twitter post… not only did this go viral very quickly, but it was terrible PR, exactly the opposite of what the company was retained for. So, Redner Group lost it’s biggest customer as a result of a short tweet.

As recent examples have shown, there are growing legal; risks of saying what you want online, and our advice is to think… pause….. and stay away from controversy on twitter unless you have deep pockets.

A fiduciary relationship arises under common law where A and B agree that A will act on behalf of or for the benefit of B in circumstances which give rise to a relationship of trust and confidence. A has some discretion or power which affects B’s interests. B in turn relies on A for information or advice.

In determining whether a relationship is fiduciary, the substance of the relationship must be examined in light of its commercial context and the entirety of the obligations undertaken (and not just the label given to the relationship).

Fiduciary duties are owed by:

• Partners (to their fellow partners).
• Solicitors and other professional advisers (to their client).
• Trustees (to beneficiaries).
• Agents (to principals).
• Directors

In company law, directors owe fiduciary duties to their companies under the Companies Act 2006 which codifies certain duties. The relevant statutory duties under the 2006 Act are:

• To act within powers.
• To promote the success of the company.
• To exercise independent judgment.
• To avoid conflicts of interest.
• Not to accept benefits from third parties.
• To declare an interest in a proposed transaction or arrangement.

Remedies

The remedies for breach of fiduciary duty vary in accordance with the severity of the breach. Possible remedies include:

• Injunction. This is a discretionary remedy. It may be granted for breach of confidence, no conflicts or undivided loyalty. If the fiduciary misuses information by taking notes or drawings then the courts may make an order for delivery up
• Setting aside of the transaction, restitution and account of profits.
• Voidable transactions. A voidable transaction may be set aside by the beneficiary, for example if the fiduciary buys or sells the beneficiary’s property on his own account or if the fiduciary breaches the duty of no conflicts or undivided loyalty and the beneficiary is unaware of the conflict or is misleadingly informed of it. Where the transaction is set aside, the fiduciary may still be able to claim reasonable remuneration for work he has completed
• Account of profits. This is relevant when the fiduciary has been unjustly enriched at the expense of the claimant, for example, where he has received money belonging to the claimant.
• Damages. Where a fiduciary fails to discharge fully his duties, he will be liable to his beneficiaries if they suffer loss as a result. If there is a contractual link between the fiduciary and the beneficiary then damages may be available for breach of fiduciary duties.

Some fascinating opinions are revealed by some research from  Age UK which indicates the view that age discrimination is the most prevalent form of discrimination in Europe. Headline data from the survey is :-

• 64% of those asked in Britain consider that age discrimination is a serious issue in the Uk
• 44%. of those asked in Europe consider that age discrimination is a serious issue in the Uk
• in the UK we believe that youth ends early at 35 and old age starts at 59
• In  Greece they consider that people stay young until 52 and are not thought of as old until their 68th birthday.
• The majority of those interviewed said they would find it easier to accept a suitably qualified 30 year old as a boss than a 70 year old with the same qualifications.
• People over 50 feel extremely concerned that employers will always favour an applicant in their 20’s rather than an older person. In the UK 49.7% believe this is a problem.

Is the law in favour of mothers when deciding which parent to grant a residence order to ?

Whilst officially there is no bias, mothers are more often than not granted custody of very young children.  However, for older children, there is less of a bias in favour of mothers.

What can fathers do to help their application for a residence order ?

You need to keep accurate records which detail your contact with the child.  You should record the dates and times during which you saw your children, the kind of activities you did with your children and the amount of money you spent.  It is crucial to show that you play an important role in the children’s lives, such as their care, education or extra-curricular activities.

If you are of the opinion that the mother is not fit to take care of the children, then you will want to collect and record evidence of this.  If the mother has a drink or drug addiction, for example, you should record any instances of intoxication whilst taking care of the children.

Of course, in all circumstances, it is best to seek the advice of an experienced solicitor to find out the best way to construct a case that displays you in a favourable light.

I am legally separated from my partner.  How should we settle where the children are to live ?

Where possible, it is best to try and come to a settlement with your partner, either through private negotiations, through your solicitor or through mediation (a type of dispute resolution).  If you are able to negotiate with your partner, you may be able to use a separation agreement which will state where the children will live and on what terms the non-resident parent (if we assume joint custody is not agreed on) will be allowed to maintain contact with the children.  If the agreement is legally valid and is consequently breached, you will be able to rely on it in court.

Where it proves impossible to come to an agreement or your partner has breached a separation agreement, you will have to apply to the courts for either a residence or contact order.

I am the grandparent of a child and I am being denied contact with my grandchildren by the parents who have recently gone through a divorce.  Does the law give me a right to contact with my grandchildren ?

Whilst you do not have an automatic right to contact with your grandchildren, you are entitled to apply to the courts for a contact order.  The law does view the role of grandparents in their grandchildren’s lives favourably.

BY SIMON WOLMAN, LLOYD PLATT & COMPANY

When the family courts deal with the separation of assets applying the Matrimonial Causes Act 1973 the first step in every case is financial disclosure.   Divorce lawyers are always looking for both parties to give full and frank disclosure so that a client can be advised as to an appropriate outcome of the financial proceedings between them.  The duty of disclosure is a full and frank one which both parties have on an ongoing basis.  Until the recent case of Imerman the idea that a spouse could rifle through the other parties’ financial documents and serve the originals on the other party retaining a copy of the same used to be heard regularly in the family courts.  In recent years information technology has replaced paper sources of financial information so that almost anyone can access their banking records on line or via their mobile phone.  Emails are now used to convey either short bursts of information or more detailed matters about a variety of topics.  So as to preserve a client’s confidentiality at the point of separation it is always advisable for a client to open either a new email account or to ensure that their existing one is secure.  Divorce lawyers have to be able to give clients practical advice about maintaining security for both sensitive and non sensitive information.

Family lawyers are constantly being asked to advise clients about financial disclosure.  Client and divorce lawyers alike need to have confidence in a system which will ensure that full and frank disclosure is provided by both parties to ensure a fair outcome following an application of the principles under the Matrimonial Causes Act 1973.  Whereas previously wives and/or husbands could engage in self help disclosure this is no longer the case following the case of Imerman.

Whilst on the one hand the Court wants wish to ensure that full disclosure is made no party is entitled to breach the other parties’ rights to protect the confidentiality of his financial documents and information nor is a party entitled to breach elements of criminal law.  Indeed anyone acting in “self helping” could find themselves in real difficulties before a Court if confidentiality is breached with copies of documents taken which pertain or supply to a third party (which could include a parties’  divorce lawyer) or to use such information in any other way.  The Court upheld in Imerman that confidence exists in principle between a husband and a wife but it can be lost surrounding information or disclosure which is of a joint nature or potentially if information is left lying around.

The case of Imerman was very much a case on its facts but the implications of Imerman reverberate every day cases as well as the mega rich.  A spouse whose confidentiality is breached is entitled to any number of remedies to preserve their confidentiality and to ensure that disclosure is made in the right way.

Whether evidence it should be admitted requires a Court to balance both parties’ rights.  It is clear that it is not open to a spouse to pre-empt consideration of the other parties’ disclosure.  If a party believes that the other is going to conceal or otherwise dispose of assets there are remedies available to help protect divorce assets and to ensure that disclosure takes place.

Emails increasingly are being used as a method of communication not only between spouses but also divorce lawyers and their clients.  Care must be taken to ensure that privilege between a divorce lawyer and the client remains intact whilst at the same time ensuring that disclosure is made of anything which may be relevant to the exercise of the Courts discretion.  Clients must be exceptionally careful when dealing with the question of the other parties’ emails.  There are laws protecting confidentiality and misuse of information.

How should the Court then treat such evidence obtained by “self help”?  This comes down to privilege, and relevance in the proceedings.  However just because a document is admissible it does not necessarily mean that a Court has to admit it.  Therefore, where evidence may be relevant to the issues before the Court but the other party has in some way wrongly obtained the evidence, it is still open for a Court in an appropriate case to admit the evidence on the ground that to not admit it would be unfair.

What now?  Divorce lawyers and clients now and in the future must be exceptionally careful as to financial disclosure both as to how it is obtained and whether it will be admitted in Court.  If in doubt it is better to err on the side of caution than to feel the full impact on both civil and criminal law against a party.  Specific advice is required and indeed necessary in cases when this arises.

The most common example of when a Notice of Assignment is necessary regards the lease of a property. When a leaseholder sells their interest in a property to someone else, it is vital that the landlord and management company are aware of the transfer. A Notice of Assignment must be served to the landlord or management company under the Law of Property Act 1925.

There are various implications if appropriate notice is not served. The landlord or management company would be aware of a proposed transfer because a Licensed Conveyancer would be raising enquiries regarding the lease relating to a particular property. It is important, however, that they are informed of the exact date of the transfer. Until Notice of Assignment has been submitted, the previous lessee is responsible for ensuring that the terms of the lease are complied with. This may be with regard to cleanliness and maintenance of the premises. More importantly, they will be responsible for any ground rent and service charge payments. This is in accordance with Section 136(1) of the Law of Property Act 1925. If a management company are in charge of a block of flats, each tenant is likely to hold a share in that company. The Notice of Assignment will assign the existing shares to the new tenant. Landlords and management companies also need to be made aware of any charges over the premises. This is usually in the form of the tenant obtaining a mortgage in order to purchase the lease.

In respect of shares of a property, the new tenant or their Conveyancer will need to submit a Companies Form 128(4). This is pursuant to Section 128(4) of the Companies Act 1985. Once completed, this form should be sent to the Registrar of Companies in Cardiff.

Another example of when a Notice of Assignment is necessary is when a mortgage lender merges or is taken over by another company. The mortgagee may not be informed of the change straightaway. As a result, the mortgagee will be continuing to pay their original mortgagor. Once the Notice of Assignment has been received by the mortgagee, they have a responsibility to pay the new lender. Until appropriate notice has been served, it is the responsibility of the old lender to ensure that the new lender receives payment. For this reason, Notices of Assignment should be carefully thought out, taking into account every possible eventuality. They should be written in such a way that every party is clear as to their obligations.

An example of a typical Notice of Assignment in this respect may read: “Dear … You are hereby notified on this date the … we have assigned and transferred your mortgage relating to the property known as …. Registered at HM Land Registry under Title Number … to … Please direct future correspondence and payments to them at their address … Do not hesitate to contact us if you have any queries. Sincerely …”

Notice of Assignment could relate to the assignment of a contract. It need not specifically relate to property. There could by an assignment of duties, obligations or rights. One example of this is a new creditor taking on an existing debt which is not secured against property.

Without a Notice of Assignment, a transfer is merely equitable. The best way to explain this is if Alex owes money to Bob. Bob then owes money to Charlie. Bob could assign his debt to Charlie. If this happens, Alex owes money directly to Charlie. At this stage, the assignment is merely equitable, but once Bob serves a Notice of Assignment on Alex, the assignment becomes legally binding.

In this example, Alex owes the same duty to Charlie as he did to Bob. Charlie in return owes Alex the same high standard of service as provided by Bob. A promise to assign in the future has no legal effect. A Notice of Assignment must be submitted as soon as possible to make it legally binding. It is not compulsory for a Notice of Assignment to be in writing. It is, however, always advisable from an evidential point of view. An assignment will not be accepted if there is a specific clause in the contract prohibiting an assignment. There may be a clause in the contract giving one party a right to rescind the contract should assignment take place. There may also be conditions stated in the contract under which an assignment cannot occur.

In the latter case, executors are usually well advised, subject to having due authority in a will or on the basis that they have authority from beneficiaries, to take experinced professional advice. In the former case, many executors or administrators of an estate  should consider shopping around, according to a  new survey by the Office of Fair Trading, which principally focused on the selling of probate services by banks. In this regard, many such services are packaged on the basis of a percentage fee of the value of the estate, which, whilst seemingly straightforward and transparent, can equate to a very high hourly rate of charge.

In response to the OFT findings, which are summarised below, the main banks selling wills and probate services have agreed to change the way they market wills and probate services so as to make it clear that executors have options and what those options may be.

In general terms, the survey found that :-

• 43% of people appointed their will-writer or solicitor as their executor notwithstanding that there is no legal requirement for this to be the case.
• average fees for probate can be between £3,000.00 and £9,000.00 for professional executors
• an estimated £40m a year too much is being paid by executors ignorant of the options