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Young Enterprise

Lanyon Bowdler was delighted to attend the Young Enterprise celebration event in May 2019. As always the students’ creativity and commitment to building their businesses was inspirational. They came up with a product to sell, built up their brand and designed their marketing materials, and attended numerous trade fairs where they sold their products to the public. They were then assessed through a formal presentation, company report and a dragon’s den style interview where they were grilled on all aspects of their business by a variety of local business people.

Lanyon Bowdler was very pleased to sponsor the Best Dragon’s Den Interview award, which went to Planet Box, an innovative Young Enterprise group who sold lifestyle boxes filled with sustainable household items, such as a bamboo travel mug and metal straws.

Over 100 students attended the celebration event from schools across Shropshire. Altogether, 22 teams competed for the title of Young Enterprise Shropshire Company of the Year. A total of 29 awards were presented, but Scrambled from Idsall School were the winners, taking home the trophy.

After deciding on their business idea – making items from recycled Scrabble tiles - they sold their products at trade fairs in both Shrewsbury and Telford shopping centres, endured an eight minute interview with judges, and delivered a four minute presentation in Wolverhampton University’s lecture theatre at Priorslee. They also had to put together a business plan and submit financial accounts, learning in the process, not just how to run a business, but many useful employability skills.

Scrambled will be representing Shropshire at the Young Enterprise Regional Awards Ceremony at HSBC offices in Birmingham on Thursday 6 June. We wish them all the best!

Mooting Competition

Staff from Lanyon Bowdler were proud to judge the final of the 2019 Regional Schools Mooting Competition at the University of Wolverhampton in April. This involved students from Thomas Telford School, Madeley Academy and Sutton Coldfield Grammar School.

The students were asked to prepare both prosecution and defence cases in respect of a complicated legal scenario where the defendant was being prosecuted for murder following perpetrating an acid attack on a victim. Whilst the victim did not die as a direct result of the acid attack, the impact of this attack later led to the victim committing suicide. This gave rise to a central question of whether the defendant should be considered to have killed the victim and as such to be culpable for manslaughter.

The students did amazingly well and presented a number of interesting and well-researched arguments. This resulted in an excellent mooting competition, of which the winners were Sophia Teague and Rhiannon Griffith from Sutton Coldfield Grammar School for Girls.

Building up your legal experience

For any student interested in a legal career, mooting competitions along with mock trials represent an excellent opportunity to gain an insight into legal work and to start developing the skills that you will need as part of that career. Law is an increasingly competitive field and being able to demonstrate a passion for the subject and relevant skills is very important in terms of making yourself stand out from the crowd.

Lanyon Bowdler regularly run mock trials for local schools. Please contact Lucy Speed or Holly Edwards at Lanyon Bowdler if you are interested in finding out more. If you are interested in legal work experience, applications for 2020 are being accepted until 15 January 2020 and can be sent to work.experience@lblaw.co.uk enclosing your CV and cover letter.

Bereavement Damages

All too often, when the government announces an intention to change the law relating to personal injury and clinical negligence, it results in claimants being left worse off. It is therefore nice to be able to report a recent announcement that the law is likely to be changing for the better.

Under the Fatal Accidents Act 1976, when a person dies as a result of negligence, either following an accident or clinical negligence, there is a set category of people who are entitled to receive what is known as a bereavement award, which is a set sum of £12,980. Currently the only people eligible to receive this award are the husband, wife or civil partner of the deceased, or if the deceased was a child, the parents of the deceased.

The law therefore does not reflect the realities of the modern world where many people choose to live together without getting married; as such people do not receive the bereavement award.

The case of Smith v Lancashire Teaching Hospitals

This issue came to a head in 2017 when the Court of Appeal considered the case of Smith v Lancashire Teaching Hospitals. This case involved John Bulloch, who died as a result of clinical negligence. Mr Bulloch had lived with Jacqueline Smith for over 11 years prior to his death and their relationship was akin to a marriage in every way, they had simply chosen not to get married.

Court of Appeal decided that excluding cohabiting couples from receiving a bereavement award was in breach of the European Convention to Human Rights (ECHR), as it discriminated against people who chose not to marry. Jacqueline Smith was therefore entitled to compensation from the Secretary of State for Justice because the Fatal Accidents Act 1976 was incompatible with the European Convention on Human Rights. However, she chose not to pursue a claim for compensation; it seems her motivation in pursuing the case was to highlight the unfairness of the law.

The Court of Appeal was able to declare that the Fatal Accidents Act was incompatible with the ECHR, it did not have the power to change it, which is why the government has now acted. The amended wording will now entitle a cohabiting partner to receive the bereavement award providing they were living with the deceased immediately before the death, had done so for at least two years prior to the death and had lived as husband and wife during that period.

Change is very welcome and does make sense as it brings the eligibility for a bereavement award into line with other areas of the law relating to fatal claims. Unfortunately, it will only apply to claims arising from deaths which happen after the order implementing it is made, which is likely to be within the next six to 12 months. However, any unmarried partners pursuing claims currently, or prior to the order being implemented, would have a strong case against the government, in much the same way as Jacqueline Smith.

My review of the London Marathon 2019

Well, the day started really well. We woke up around 6am to the clanking of barriers outside the hotel, which on arrival the night before we found to be immediately opposite mile 14, making the event all the more real. Looking outside there was a hive of activity, as a water station was being set up, along with a number of charities marking their pitches for the day.

Obligatory coffee whilst attaching number to top, securing timing chip to trainers, showering, then re-taping knee, followed by copious amounts of vaseline, and more vaseline, just to be sure!

Forced down bowl of porridge, decided against two, whilst watching hubbie consume full English.

The journey there

8am - a short walk to Limehouse DLR station for the short trip to Greenwich in a sardine-like train full of runners with the same goal in mind, finding the first toilet! The train was eerily quiet for one so full. Brief glimpses on the way of parts of the course, the task ahead began to become a reality.

A 10 minute walk with thousands of runners and spectators meant there was no need to worry about my appalling navigational skills – just follow the pink panther and minion in front. Walking up the hill in Greenwich we came to the red start area, where loved ones were left behind. It was here saying goodbye, with echoes of good luck and I’ll see you at mile 3, that tears caught me by surprise! I was on my own amongst thousands of people and rhinos!

Having told myself to get a grip and pull up big girl pants I arrived in the drop off area and found the nearest toilet queue, where I queued and queued for over 30 minutes. With time to spare I sat down and considered the fact that you can never have too much vaseline! Or too many trips to the toilet, so off I went, and queued and queued again.

15 minutes before my assembly time, did I need more vaseline? Yes, best had! Then I found the correct baggage lorry amongst at least 30, all marked with a range of running numbers. I handed in my kit. Did I need my headphones? Yes, no, yes, no, yes I will! Maybe I need to go to the toilet again just to be sure? The queue was enormous but was I brave enough to attempt the ladies urinals and the contraption of the ‘she-wee’ where the queue was much smaller? Going around the corner? No, I decided that was one step too far for today, so I joined the end of what was the longest queue I had been in that day, perhaps ever. Shall I leave it? Do I really need to go? Yes I do, no I don’t, best had. Panic set in that I would miss my assembly time until a marshall said to us at the end of the queue, ‘you do realise if you go around that corner, there are 50 toilets with no queues’! Mass rush down the park like teenage girls getting to the front of a One Direction concert, to walk straight into the marathon’s best kept toilet secret hidden from view by a row of trees.

The start

Standing in our pens according to our predicted finishing times, with hundreds of different charities being represented, the atmosphere was electric with the anticipation of what was ahead. We watched the men’s elite race start with loud cheers for Mo. I realised that I wouldn’t even be past halfway by the time Mo was back, showered, changed and eating lunch! The buzz of conversation - random strangers wondering what would happen on the course, all with targets and times in mind, but with an overriding theme to have fun. I am not sure that ‘fun’ is quite how I would describe it!

Slowly, we were moving down the road to the start and off we went around 10.35am. The first few miles I settled into a pace comfortable at my target of 10.45-11 minute miles for the first half of the course. Crowds were lined around the whole of the courses. Bells, whistles, tambourines, children offering runners high-fives, two random horses peering over a wall and so many signs! My personal favourites: ’I’ve trained for months to hold up this sign,’ and, ‘The end is far,’ which made me smile at mile 1.

Next was mile 3, where I was due to see Trev. Much searching, then I heard a scream of 'Deb,' and there he was waving excitedly like I was Paula Radcliffe (which I'm clearly not)! A swift wave and smile, and on I went knowing that I would see him again at mile 9 and 11. Mile 3 is where all the starts merge and the course became increasingly congested with lots of running around people. The crowds were getting deeper with the crowd wanting high fives and children holding out sweets in sticky hands. My mind switched to fuelling - must remember gel at 4 and electrolytes at 6.

At 6 miles was Cutty Sark, crowds everywhere. I could see a steel band under a bridge along with bollywood dancers. Running around in the shadow of the ship with a strong smell of takeaways, whilst trying to undo a water bottle, get an electrolyte tablet out of waistband into water bottle and not tripping or spilling was a feat in itself!

I was comfortably running near the 4 hour 45 pacer and my mind moved to mile 9 where the cheer squad would be. My neck was aching at this point and I realised the bone conduction headphones I’d been so indecisive about using were tight around my neck and I hadn't actually used them. I decided at this point that music would irritate me with the background noise, but I could pass them to Trev at mile 9.

Mile 8, more gel. Mile 9 came and went, as I scoured the crowd. Mile 11 went too. I was becoming increasingly irritated by the headphones and the fact the next meeting point was mile 14, so I stuck one side of headphones down my waistband, which felt immediately better on my neck, although running was now accompanied by an irritating bump on my hip. But it was ok as I felt good, pace was on course and I could still see the pacer.

Mile 12 meant more gel, more electrolytes and Tower Bridge. Running over the bridge was a wall of sound, deafening and surreal the sides were packed with supporters. I geared myself up for the sight of the elite runners going the opposite direction on the home leg.

The middle

Mile 13 I was buoyed by the knowledge I was halfway – 2 hours 22 and bang on course for a 4 hour 45 finish and my friends were waiting for me at mile 14.

Mile 14 spurred on by a quick hug, photo stop, words of encouragement and finally getting rid of headphones. I moved on knowing I had more support at mile 16 and more gel – funny how the whole race became focused on meeting people and times I could have gel and electrolytes! But just after mile 15 I started to feel strange. I had a nagging pain in my side, which wouldn’t seem to ease. By mile 16 I realised it was a stitch and decided to walk whilst I had more gel to try to get rid of it. Big mistake - the second I stopped, the knee that I had been having problems with felt weak and the pain started. The stitch eased slightly, so I started again at a steadier pace. Fortunately the knee started to feel ok, but the stitch came back, so I stopped again and the knee started again. This was to be the course of the next 10 miles.

I managed to spot Trev in the crowd at mile 16 and the welcome, friendly face spurred me on for a while in the knowledge that he would appear again on the opposite side of Canary Wharf. Mile 17 and 18 were tough through the tunnel, trudging through points where so many had dropped gels that my feet were sticking to the roads. It was like being in a dodgy bar with sticky carpets! It was at this point I realised that my watch was clocking up more miles than the mile markers were showing, with all the weaving around people. The 4 hour 45 pacers were moving ahead and I resigned myself at this point to give up on this target and focus on finishing. This was feeling increasingly difficult as my mindset had changed. I plodded on and focused on the next meeting point at mile 19, where it was time for another hug, to raid Trev’s water supply and to admit that it hurt!

Mile 21 was where friends would reappear and was the point where I was close to giving up. Still annoyed with myself for slowing down, I felt I was getting slower (even if I wasn’t), but now also becoming frustrated by the constant chants and cheering. I ran straight past my friend, literally inches from me. As this was pointed out to me by another runner, a spectator commented, ‘that’s what you call focus.’ In my head it was, ‘that’s what you call having had enough and wanting to give up.’ A brief chat and apparently my words were, ‘I don’t want to play this game anymore,’ to be told helpfully, ‘you’ve only got 5 miles to go.’ My response was not polite at this point, but I was sent packing, and onwards I went, focusing on some 5 mile routes I did at home and picturing where I would be in that route.

The end is nigh

Coming out of Canary Wharf the crowds increased and at times there was only room for two or three runners. I was at the point that I couldn’t face gels, electrolytes or water, so I tried a random piece of Soreen, which didn’t go down well. Around mile 22 a couple of spectators on a central reservation were standing with bottles of Lucozade. I don’t like Lucozade, so had taken none at any of the official aid stations around the course, but for some reason I decided it would be a good idea to befriend spectators and see if I could have one. Well, it was the best drink I had ever tasted! At mile 24 I had another one of the official aid station ones and hung on to it.

I began to look at time and put my goal to under five hours, which was going to be a scrape and focused on running along the embankment looking out for Trev again at miles 23 and 25. My watch by now was ticking the miles off half a mile ahead of the mile markers, which was disheartening, I realised that when my watch eventually told me I had run 26.2, I would still have half a mile to go. I missed Trev at mile 23, but did see him at 25 and he could see how disappointed I was in myself. He chose not to say anything for fear of being on the receiving end of my wrath, so we did a cursory wave and off I went again. The spectators and supporters were amazing, but at this point I didn’t feel amazing and had started to hate my own name. I just wanted some quiet after nearly five hours of constant cheering and noise, I tried to run in the middle of road to distance myself from the continuing chants of ‘Debbie’ and ‘you’re doing so well!’

Big Ben was a blur and past the Houses of Parliament I focused on the 800 and 600 metres to go signs. A brief wave and a nod to Liz, I found some motivation for the finish at that point. All I wanted to see was the 365m to go sign. However, you quickly realise that from this point it feels like forever!

The finish

Running down The Mall is surreal – focusing on finishing and trying to find that photographer shot, which makes it seem like you did enjoy it, but also the relief and elation that after nearly five hours of running, you have done it! Over the line I went, thumbs up to the photographer clutching that bottle of Lucozade like my life depended on it. Incoherently mumbling to the lady with the medals, who knows what I said to her? Then the stopping and walking - I use the term “walking” loosely, to collect t-shirt and goodie bag. I was looking forward to the goodie bag - after that far, it would be good and I was starving! So I looked inside to find an apple, a bag of Lentil crisps, a beetroot and apple bar and a bottle of Lucozade! Hold on - where is the Mars Bar, if not a doner kebab and chips? What do I do with an apple and a fruit bar? I’ve just run nearly 27 miles!

I collected my bag and walked to find the others at our pre-arranged meeting point, I dutifully followed the signs and got lost. I ended up by Admiralty Arch, decided I was moving no further and rang the others to come and find me. Rescue me they did, armed with a hot cheese and onion pasty, Reece’s peanut butter chocolate, maltesers and bottles of full fat coke. Probably not the fuel of the champion athletes, but definitely my kind of fuel at that point! Do you know what? I tried that goodie bag bottle of Lucozade later and I didn’t like it!

In reality, I didn’t fare too badly. Only one blister and a swollen and twingy knee, but no chafing (vaseline paid off). I have some finishing photos I’m happy with which make it look like a lovely time was had, but some pretty awful photos, which show a very different story in the middle!

Would I do it again? The jury is out.

Lanyon Bowdler opens Conwy office

Lanyon Bowdler is extending its business into North Wales with the opening of a new office.

The firm has had a presence in Conwy since March 2018, when leading commercial property solicitor and Welsh speaker Edward Nutting joined the firm. To date, services have been provided through serviced office space on an appointment only basis, but demand for services in North Wales has led to the formal opening of a fully staffed office. The firm now offers a full range of legal services to both companies and private individuals from its Conwy base at Riverside Business Park. Clients already include many leading local companies, such as some of the largest leisure and tourism destinations in the area, landed estates and many agricultural clients.

Brian Evans, Lanyon Bowdler managing partner, said: “The proximity of our Oswestry office to the Welsh border has always given us a significant client base from Mid and North Wales. Last year we were able to make a strong lateral hire in Edward Nutting who was a natural leader for our North Wales practice and we made a commitment to having a permanent presence in the area. Lanyon Bowdler prides itself on providing the best quality legal services available as easily-accessible as possible to its clients in local markets. The demand for our services in North Wales is such that we are now formally opening an office there to provide clients with full access to the range of services available across the firm. Edward Nutting will be joined by long-standing residential property specialist David Foden who moves from our Oswestry office after almost 33 years there. David lives in Wales and will be assisting clients with all kinds of residential property transactions. We have also welcome newly-qualified solicitor and Welsh speaker Llinos Roberts, who will work closely with Edward on commercial and agricultural property matters.”

Other services to be provided from Conwy will include employment, corporate and dispute resolution for companies; and wills, trusts and probate, family, clinical negligence and personal injury for private clients.

Brian added: “Our client base in North Wales has grown significantly and with our working knowledge of the Welsh market and the growing Welsh economy, we are excited about the year ahead. We see the formal opening of our Conwy office as an important commitment to supporting the region and the people who live there.”

For more information, call 0800 652 3371.

Civil partnerships – a marriage by another name?

Statistics show that the number of same sex civil partnerships is falling (most likely because many same sex couples are now choosing to get married), but will this trend change when heterosexual couples are offered the ability to enter into a civil partnership? What are the similarities and differences between civil partnerships and marriages?

Similarities:

The major and most important similarity is that both provide legal recognition to a relationship between two people. In turn, both marriage and civil partnerships offer many of the same legal rights in respect of various areas of law including, financial remedy claims against one another in the event the parties’ relationship breaks down, parental responsibility, inheritance tax and intestacy rights.

Both heterosexual and same sex couples may enter into a marriage in England, Wales and Scotland.

Differences:

The differences between the two are not significant, but here are the main points:

  • Currently only same sex couples can enter into a civil partnership, but this may well change in the near future given the Supreme Court’s decision that it was against the human rights of heterosexual couples to be prevented from entering into civil partnerships;
  • Civil partners cannot refer themselves as ‘married’ and married couples cannot refer to themselves as ‘civil partners’;
  • Civil partnerships are registered by the couple signing the civil partnership document as opposed to marriages where the couple exchange vows;
  • Both parents of the couple are named on the civil partnership certificate whereas only fathers of the couple are named on the marriage certificate;
  • In the event the couple’s relationship breaks down and they seek legal recognition of the same, the legal terminology for the two differ with a decree absolute / divorce being sought in respect of a married couple and a dissolution order being sought in respect of a civil partnership couple;
  • Some countries do not recognise civil partnerships;
  • Some associate marriage with patriarchy and a marriage can have religious connotations, whereas civil partnerships do not;
  • Those seeking the dissolution of a civil partnership cannot cite adultery as the reason for the same.
  • Those in a civil partnership can convert the same into a marriage whereas the same is not true vice versa.

What are the differences in respect of marriage entered into by a same sex couple as opposed to heterosexual couple?

Very little is the answer! The main two being:

  • A same sex couple cannot seek an annulment based on non-consummation; and
  • A same sex couple cannot petition for divorce based on adultery given the current legal definition of adultery being sexual relations between a man and a woman, one of whom is not party to the marriage.

What if couples cohabit as opposed to marry or enter into a civil partnership?

Common law husbands and wives acquiring rights through their cohabitation is a myth. Couples can formalise their financial arrangements by entering into a cohabitation agreement, but this does not offer the same rights and responsibilities as married couples or civil partners.

Parental Responsibility and Same Sex Parents

Parental responsibility is a legal term which encompasses all rights and duties, powers and responsibilities which, by law, a parent of a child has in relation to that child. Parental responsibility gives a parent a right to have a say in major decisions affecting a child’s life such as education, religious upbringing, medical treatment, child’s surname and discipline.

All mothers, as defined as the woman who carried the child, automatically acquire parental responsibility.

All spouses and civil partners of the mother (as above defined) also automatically acquire parental responsibility.

In relation to heterosexual couples, unmarried biological fathers can automatically acquire parental responsibility by being named on the child’s birth certificate. If this has not occurred then the unmarried biological father could acquire parental responsibility by entering into a parental responsibility agreement with the mother, obtaining a parental responsibility order from the court or obtaining a child arrangement order specifying that the child lives with him.

But what about parents who do not fall within the above categories, such as those in same-sex couples who have used a surrogate and/or who are not married?

Two male parents

Where two male parents have a child born through surrogacy, then they may acquire parental responsibility by one of the following routes:

  • If one of the male parents is the “biological father” and is subsequently named on the birth certificate then he, like other unmarried fathers, will automatically acquire parental responsibility.

  • Two male parents may apply for a parental order from the court, which will reassign parentage to the intended parents after birth. In order to obtain a parental order, the two male parents must satisfy the criteria listed under Section 54 of the Human Fertilisation and Embryology Act 1990/2008. This criteria includes:

  • The gametes of at least one of the applicant parents have been used to bring about the creation of the embryo.

  • The applicants must be civil partners/married or two people in what the court considers to be an “enduring family relationship”.

  • The applicants must apply within 6 months from the date that the child was born (albeit the court has permitted a later application in exceptional circumstances).

  • At the time of the application the child’s home is with the applicant.

  • The woman i.e. surrogate who carried the said child has freely, with full understanding of what is involved, agreed unconditionally to the making of the parental order.

It should be noted that historically single parents could not apply for a parental order. However, in January 2019 the law was changed with the insertion of section 54A into the 2008 Act. The associated regulations came into force in December 2018. Single people are now able to apply for a parental order, provided that they are genetically related to the child (being the egg or sperm donor) and that the child lives with the applicant. Currently you can apply for a parental order of a child as a single person for a child of any age before 4 July 2019. Thereafter you must apply within 6 months of the child’s birth.

Parents should be warned that any “surrogacy agreement” entered into by the surrogate and parents will not be legally enforceable and the above criteria will still apply when seeking a parental order.

Two female parents

As noted above any woman, who has carried the child, is automatically treated as the child’s mother and thus has parental responsibility. If that mother is married or has a civil partner at the time of the fertility treatment/insemination then the said spouse or partner will be treated as the child’s legal parent, unless certain circumstances have arisen as detailed in the statute.

When the two female parents are unmarried and not in a civil partnership then as long as they sign the specified forms known as Form WP and Form PP, which details both their consents to the second parent being treated as the parent of the child, then the second parent can acquire parental responsibility in the same way as an unmarried father (see above).

What happens if none of the above is applicable?

In certain cases the second parent can apply for a declaration of parentage. This has been particularly useful given that there has been a number of cases where historically fertility clinics have either not followed the correct procedure or they have mislaid the relevant signed forms. Given that this issue has occurred more than once it is strongly advised that the two female unmarried parents retain copies of any relevant documents signed at the fertility clinic in case they need to rely upon the same in the future as evidence that such a document previously existed.

Breech Baby Scan

UK researchers have suggested that routinely offering expectant mothers an ultrasound scan at 36 weeks gestation to check the position of the baby could save the lives of eight babies per year, cut the amount of emergency C-sections and save the NHS money.

Breech births can be difficult and dangerous and often hard to diagnose. Midwives currently rely on the shape and feel of a mother’s bump. Researchers at the University of Cambridge say that if the scans could be cost-effective they would save the NHS money in terms of care.

Breech birth statistics

Approximately four babies in every 100 are in the breech position. It is often the case that the fact the baby is in the breech position is not noticed until delivery and this is when mum, baby and medical staff can run into difficulties. A scan showing that the baby is breech means that the baby could be manually turned or a planned C-section could be prepared for.

It is thought that it would be feasible to provide the scan in a cost-effective manner and potentially avoid 4,000 emergency C-sections per year giving a better outcome to both mum and baby.

Additional scans can lead to an earlier diagnosis

Labour can occur very quickly leaving little time for decision making. Professor of Obstetrics at King’s College London said that ‘Scans are routinely available now and minimal skills are required to determine breech presentation’.

Currently, families can pay privately for ultrasound scans at any point in pregnancy but routinely offering a scan at 36 weeks would provide necessary information about the position of the baby much closer to birth. More information allows for better preparation and this can only improve safety for all.

Bereavement damages not fit for the 21st Century

Northern Ireland and Scotland are separate legal jurisdictions in the United Kingdom. It has recently been announced that statutory compensation for bereaved close family in Northern Ireland will increase to £15,100. This followed a successful campaign by the Association of Personal Injury Lawyers in 2016, which resulted in an initial increase in bereavement damages from £11,800 to £14,200. The increase has been possible because of the devolved power to the Northern Ireland Department of Justice. As a result the statutory amount in Northern Ireland has since overtaken England and Wales, where the amount remains £12,980.

In Scotland the law is based upon the Damages (Scotland) Act 2011 in which an award is made for loss of society (distress and anxiety, grief and sorrow, and loss of guidance). Awards to family members depend on the closeness of the relationship with the deceased, the life expectancy of the deceased and the circumstances of each case is considered on an individual basis rather than a prescribed figure for statutory bereavement damages. Awards can run into six figures which is a long distance from the award in England. As well as an award for bereavement damages certain categories of financial dependants of the deceased can claim damages for loss of financial dependency, which would include compensation to replace part of the earnings of the bread winner.

I have conducted many fatal accident cases over the course of the last 30 years and I quite frankly find it embarrassing to have to advise the bereaved spouse or parent, as I did only in the last week, that the award of damages for bereavement is fixed at £12,980. This award is equivalent to the sort of award that would be made for a moderate hand or arm injury. This compares to the most serious award of damages for pain and suffering in a personal injury case for those who sustained very severe brain damage or tetraplegia for which the maximum award is £354,260.

In conclusion, more consistency is needed within the United Kingdom and also damages for loss of a life should be more comparable with awards made in personal injury cases.

CASE UPDATE: Can parties agree to extend time of determination for prior approval applications?

Permitted development rights are simpler developments which do not require a formal application for planning permission. However, prior to the start of these types of development, legislation sometimes requires the applicant to go through a prior approval process.

Prior approval procedures explained

The purpose of prior approval processes is to enable local planning authorities to check certain details and impacts of specified categories of permitted development before development is commenced, for example noise, odour or highway impacts. If these impacts exceed a certain level or the details are unsatisfactory from a planning point of view, prior approval is refused, the applicant cannot rely on the permitted development right and has to submit an application for full planning permission if he/she wishes to proceed with the development.

There are prior approval procedures for various categories of permitted development rights including those permitted changes of use contained in part 3 of the GDPO[1]. Article 7 of the main body of the GDPO sets a time limit of 8 weeks, or such longer period as agreed between the developer and the council, to determine the application. The prior approval procedures, contained within the schedule to the order, usually include a ' deemed prior approval provision, which states that if the LPA does not make a decision on the prior approval submission within a certain time period, the applicant is entitled to start the development.

Are the procedures compatible?

On 8 April 2019, HHJ Alice Johnson granted developers permission[2] to seek judicial review against the determination of a Class Q prior approval application after the 56-day period set out in paragraph W(11) of Part 3 the GDPO[3]. The order granting permission[4] highlights the difficulties in reconciling article 7 with the deemed prior approval provisions in sub-paragraph W(11).

The various deemed prior approval provisions appear to be somewhat divorced from article 7 in two ways. Firstly, they make no reference to the ability in article 7 to extend the time limit for determining a prior approval application. So the applicant in the Wokingham case appears to have been justifiably wary of relying on article 7 to extend the time period for determination. The parties could have ended up with a situation where, even though the time period for determination has been extended by agreement, the application process is brought to an end because of a deemed approval. No amended details would have been agreed and the developer would have reverted to submitted details, even though it had agreed some sensible changes with the council[5].

Secondly, having looked through the various deemed prior approval provisions, the time periods which trigger the deemed approval do not tally with statutory time period for determination in article 7. In some cases it is 56 days (e.g. paragraph W in Part 3), which happens to be the same as eight weeks, but in others it is 42 days (e.g. paragraph A.4 of Part 1 relating to Part APD rights for development within the curtilage of a dwelling house) and still others, 28 days (see Part 6 which relates to development on agricultural land).

The Class Q example (conversions from agricultural to residential)

The prior approval processes have been around for a while and no doubt others have spotted these differences. Perhaps it is no coincidence that I have come across a similar problem in relation to the, sometimes tricky and somewhat controversial, Class Q permitted development rights. Both the main body of Class Q[6] and the prior approval processes in paragraph W of Part 3 are quite involved. Decisions a planning officer has to make in order to determine a Class Q prior approval application include:

  • Whether the building is an agricultural building.

  • What its curtilage is. In one case, the Council ran over the time limit because the officer thought the proposed curtilage was too small to accommodate parking and turning for the dwellings applied for and that there was a risk that the curtilage would be extended into the wider farming unit. That was before she had got to the Class Q conditions and the various impacts she needed to consider to make a decision on whether to grant prior approval.

  • Whether the building operations amount to a conversion or rebuilding.

  • When the building was last used solely for agricultural use in an established agricultural unit.

  • The existence and status of any agricultural tenancy or agricultural use of the land.

  • When the agricultural unit itself was established. This and the above two provisions exist to ensure that conversions are restricted to redundant agricultural units to avoid unnecessary erosion of much needed active agricultural land and protected areas like the green belt.

  • Consultation responses and representatives.

  • Finally, in relation to stated impacts[7], a decision as to whether prior approval is required, which is usually, thankfully, issued at the same time as the decision whether or not to grant prior approval.

The effect of extensions for determination of prior approvals

The purpose of permitted development rights, even those which require prior approval, is for developers to be able to start types of development without going through the full planning application process. At some point, lengthy or repeated extensions to the prior approval process begin to undermine this aim. However, understandably, planning officers want to get Class Q and other applications right to avoid granting the wrong development in the wrong place, or conversely spending their time and resources on needless appeals. It is, with the availability of article 7, tempting for a planning officer to try and extend the time to deal with a particular issue rather than refuse the application and start all over again with a planning inspector, with the threat of costs hanging over the Council’s head.

Conclusion

The Wokingham case will hopefully clarify the question raised by the permission for judicial review. However, it seems to me that there is an inherent inconsistency in having a deemed approval process that does not take into account the ability to extend the statutory time period for determination, and that what we ultimately need are some amendments to either the deemed prior approval provisions or to article 7.


[1] The Town and Country Planning (General Permitted Development) Order 2015

[2] https://cornerstonebarristers.com/cmsAdmin/uploads/warren-farm-high-court-of-justice-queens-bench-division-application-for-permission-to-apply-for-judicial-review-received-9-april-2019.pdf

[3]The Town and Country Planning (General Permitted Development Order) 2015

[4] https://cornerstonebarristers.com/cmsAdmin/uploads/warren-farm-high-court-of-justice-queens-bench-division-application-for-permission-to-apply-for-judicial-review-received-9-april-2019.pdf

[5]See paragragh W(12) of Part 3

[6]Just as a reminder the Class Q right is: a change of use of a building and any land within its curtilage from a use as an agricultural building to a use falling within Class C3 (dwellinghouses) of the Schedule to the Use Classes Order; or (b) development referred to in paragraph (a) together with building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwelling houses) of that Schedule.

[7]Transport and highways, noise impacts, contamination risks, flooding risks, whether the location or siting of the building makes the change of use “undesirable”

Breakthrough blood test now available to test for pre-eclampsia

It has recently been reported that pregnant women in England will now be able to have a blood test, which can check for the potentially life-threatening condition pre-eclampsia.

Pre-eclampsia is a condition that affects tens of thousands of pregnant women (usually during the second half of pregnancy) from 20 weeks on, or soon after their baby is delivered. Early signs of pre-eclampsia are high blood pressure (hypertension) and protein in your urine (proteinuria). It is unlikely that the pregnant women themselves would be able to identify these symptoms, but they should be picked up during routine antenatal appointments. Further symptoms can include swelling of the feet, ankles, face & hands; severe headaches, problems with vision and pain just below the ribs.

Most cases are mild, however the condition can lead to serious complications for mother and baby if left untreated. It goes without saying that the earlier pre-eclampsia is diagnosed and monitored, the better the outcome for mother and baby.

Placental Growth Factor (PLGF) new blood test

The new test provided by NHS England is called Placental Growth Factor (PLGF) and it is becoming available to pregnant women in England because of evidence to suggest that the test speeds up diagnosis. In turn this will mean saving lives, because, if left undiagnosed and untreated in mums-to-be who have dangerously high blood pressure, it can damage vital organs and be life-threatening.

It is really encouraging to hear of the new blood test, which can inform doctors whether an expectant mother is high, medium or low risk. Women who are high risk need to be very closely monitored and may have to deliver their baby early should pre-eclampsia become too severe despite management and treatment. If detected early enough however, pre-eclampsia can be effectively managed with regular check ups and medication. The only ‘cure’ for pre-eclampsia is to deliver the baby.

What do trials show?

Trials of the new PLGF blood test, (each test costs the NHS about £70) show that it speeds up diagnosis, meaning life-threatening complications to the mother and baby can be avoided.

More than 1,000 women at 11 UK maternity units took part in the trials during their second and third trimesters. Using PLGF alongside regular blood pressure and urine checks cut the average time to diagnosis from four days to around two.

Earlier diagnosis was linked with a lower chance of serious complications - 5.3% (24 of 447 women diagnosed with usual checks) versus 3.8% (22 of 573 women diagnosed with usual checks plus PLGF).

Lead researcher, Professor Lucy Chappell, from King's College London, said: "This really is going to make a difference to women. The challenge for doctors is spotting which pregnancies are high risk and need closer monitoring. PLGF helps us reach that diagnosis earlier."

Professor Tony Young, from NHS England, said: "The NHS, with partners in government, will be making this test more widely available across the NHS as part of our plans to ensure as many patients as possible can benefit from world-class health innovations."

The NHS in Wales, Scotland and Northern Ireland could choose to offer the test too. Hopefully this is something that may be available in these areas in due course and consequently lead to helping more women and babies across the country.

At Lanyon Bowdler, we have acted for many clients who have had undiagnosed pre-eclampsia and sadly this has caused complications in their pregnancies. We’ve also acted for a client where, tragically, the baby was stillborn as a result of pre-eclampsia. This could have potentially been avoided had the pre-eclampsia been detected earlier on in the pregnancy.

We would urge you to seek medical advice immediately if you notice any symptoms of pre-eclampsia by calling your midwife, GP surgery or NHS 111.

Divorce – How long will it take?

On the 28 March 2019 the family court statistics for October to December 2018 were published. The statistics relating to the average duration of a divorce show that it is now taking significantly longer for parties to obtain a divorce.

According to the figures provided in 2006, the “average time” from the date the divorce petition was issued to the date the decree nisi was made was 23 weeks, but as of 2018 this has increased to 29.1 weeks. The average time from the date of divorce petition to the date of decree nisi being made has jumped up by five weeks from 2017 to 2018 alone. Furthermore, the average time from the date the divorce petition is issued to the date the decree absolute is made has increased from 42.1 weeks in 2006 to 54.3 weeks in 2018, which is over a year!

The above statistics do not take into account that currently it can take up to a month for the divorce petition to be issued from after the date of filing.

The reported court delays are not only limited to the progression of the divorce itself, but in our local area we are finding it is taking up to three months (sometimes more) to receive an endorsed order from after the date of filing. Historically, we would have advised our clients that the average would be six weeks, but this is no longer the case.

The reason for the delay is likely to be due to the recent financial cuts in respect of the funding of our court system, including the introduction of regional divorce centres, who are struggling to keep up with the level of work. Indeed, West Midlands Regional Divorce Unit had previously been transferring divorce papers to other local courts, such as Bradford family court, in an attempt to tackle the backlog.

How does this impact upon those seeking a divorce?

For most parties they would rather a prompt and amicable divorce and the longer the divorce takes, the more emotionally draining it can be upon them. There can also be financial implications. Many legal representatives will advise their client against implementing any financial settlement until a financial order has been endorsed by a court. A judge cannot consider and endorse a proposed court order until the decree nisi has been made within divorce proceedings. Without the ability to implement what is often an agreed financial order the parties are stuck in limbo and unable to achieve a financial clean break and move on with their lives.

What steps can be taken to progress matters?

The statistics show that where both parties are legally represented the average duration of the divorce is reduced. There are reasons for this; in particular legal representatives are more likely than litigants in person to file documents correctly and in a prompt fashion. Thus avoiding any delay caused by papers being returned for amendments and re-filing. Secondly, legal representatives will endeavour to resolve financial matters in a prompt and amicable fashion, and hope to avoid what can be costly and time-consuming contested court proceedings in respect of a financial remedy.

A legal representative will also be more mindful of the steps needed to implement an order and bear this in mind when drafting the papers. For example, there are cases where a financial order is reliant upon one party obtaining a mortgage offer and the said mortgage offer is due to expire shortly. In such instances a legal representative will advise parties to apply for the matter to be expedited so to hopefully avoid the mortgage offer expiring whilst the court order papers are with the court for the judge’s consideration.

In extremely special circumstances, for example, where one party has a terminal illness or where one party is pregnant by another man and wishes to dissolve the marriage before giving birth, then it is possible to apply for an expedited divorce. Again, a legal representative can advise of the appropriate way forward.

However, overall unless further funding is given to courts so that they have the resources to deal with the public’s demand or there are major changes to the legislation regarding divorce proceedings, it is feared that these delays will continue to increase year on year.

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