You’ve started a divorce application, or are divorced, and you’ve reached an agreement about the financial settlement arising out of your divorce. Is it necessary to obtain an order from the court to formalise the agreement?
Should spouses decide not to obtain a court order dealing with financial provision, and in the event that the re-marriage trap does not apply (see our previous blog which covers this topic), then the claims which each spouse has against the other are left open, with the possibility of one spouse making a claim against the other, even where money and or property may have been paid out or transferred to one spouse by the other. The absence of a court order dealing with the financial claims on divorce creates uncertainty and risk.
We have a number of expert lawyers in our Family Department who specialise in this area and we can advise and assist you in respect of such matters. For more information, please contact us.
It is very common for informal loans to be made between family members and friends but whilst the arrangement might be an amicable one, it is still common for the lender to want to protect themselves to ensure they get their money back. This is usually provided by way of a legal charge over a property – known as a mortgage. In line with this, we get a large number of enquiries to put together short-form loan agreements between family and friends. What is not very well-known is that in certain circumstances, informal loans are still regulated by the Financial Conduct Authority (FCA) which means that a lender would need to be approved in order to provide the loan.
If someone lends money and takes a legal charge as security, if that arrangement is regulated but the lender does not have the necessary approvals, the lender will not be able to enforce the terms of the loan (including the charge), and will also commit a criminal offence.
There are certain exemptions to the legislation that mean family and friends can lend money to one another, and take a mortgage, without falling foul of the legislation. The most common one in this scenario is that the loan in question is not made “by way of business”.
We advise that all individuals wishing to put a loan agreement in place consider the implications of the proposed loan. In order to assess whether a loan is made “by way of business” we recommend that the following matters should be considered:
Although the above is not an exhaustive list, it sets out some of the points which are relevant as to whether the lender must obtain FCA approval in order to provide the loan.
What if I do not draw up a loan agreement?
The usual position on lending money is that a lender can request repayment in full at any time. However, if you do not have an agreement in place, and this is contested, it can take some time to prove this and retrieve the loaned money. Proving that the money was intended to be a loan can be easier in some circumstances than in others. For example, if you sent £5,000 to a friend six years ago and they have been paying you back in monthly instalments since that time, there is a pattern of repayments which would most likely amount to evidence of a loan. Whereas, if you loaned £5,000 to a friend two years ago and you had orally agreed for this to be repaid on the two year anniversary of the loan but they are now refusing, there is no evidence of other repayments to back this up. If a loan is to be paid back in one lump sum payment, especially over an extended period of time, it is advisable to have a loan agreement drawn up to protect your interests.
Every situation is different and must be determined on a case by case basis. We advise anyone intending to lend money to a third party, even if it is to a family member, to obtain legal advice to ensure that they are adequately protected and to ensure that the loan does not breach FCA regulations.
Please contact the Corporate and Commercial Team at Lanyon Bowdler if you would like to discuss a loan which you are considering making.
Making a will is something that everyone should do even if you consider that you do not have many assets or possessions. One in three people do not have a will, and dying without one could lead to your assets passing to someone who you would not wish to benefit from your estate.
We appreciate that thinking of making a will may cause you worry or distress, and so we have compiled a list of 10 things that you should consider before making a will to try and make the process easier.
1. Your Assets
Before seeing a solicitor to make a will, it is useful to make a list of the assets in your estate and, (if possible), obtain the most up to date valuations of those assets.
It is also important to know whether you own those assets on your own, or jointly with another person.
2. Beneficiaries
It is sensible to make a list of people that you wish to include as beneficiaries of your estate.
Beneficiaries can take a percentage of your estate, a cash sum, or a specific asset or item that you want them to inherit.
Chief things to consider are:
3. Children Under 18 Years Old
If you are the guardians of children who are under the age of 18 years, it is vital to consider who you would want to appoint as their guardian(s) if something happened to you and any other individuals, with parental responsibility, during their minority.
A Letter of Wishes can also be drafted to explain why you would wish that person/people to be their guardians.
It is always a good idea to have the discussion with them before appointing them in your will.
4. Executors
When making a will, you will need to appoint an executor to act in the administration of the estate. The executor will deal with settling any debts, paying for the funeral and dealing with the estate as you have set out in your will.
We would recommend appointing at least two executors, or to appoint a substitute executor if your original executor cannot act.
A beneficiary can also be appointed as an executor.
5. Financial Dependence
You should consider those who are financially dependent on you when making a will and making your solicitor aware of those individuals.
It may be that you would like to use your will to set some money, or an asset, aside for the use of an individual that you support financially during their lifetime, whether that be a child or a spouse/partner, rather than for that money to pass to someone else on their death.
6. Inheritance Tax
Inheritance tax is a tax applied to the estate of someone who has died. The standard rate is 40% which is applied to the part of your estate which is over the tax-free threshold (currently £325,000.00). Certain exemptions and reliefs apply and it is important to discuss these with your solicitor if you are concerned about inheritance tax.
Our lawyers can assist with inheritance tax planning to help avoid paying tax unnecessarily or helping you plan for the payment of inheritance tax.
7. Assets Outside of the United Kingdom
If you have assets outside of the UK, it is important to make your solicitor aware of them.
Your will in the UK may be able to deal with your overseas assets, but it may be advisable to make a will in that country too, depending on your requirements, your inheritance tax position and the country where those assets are owned.
8. Funeral Wishes
Funeral wishes in a will are not legally binding, but including them can be very useful as instructions for your family and executors, if they were not aware of your wishes, or to avoid disagreement between your family/executors.
You can use your will to record any wishes that you may have in respect of your funeral or the use of your body after your death.
9. Excluding Someone from your Will
If you are excluding someone from your will who would have benefitted from your estate if you had not made a will, or who would have expected to inherit your estate, it is important that you make your solicitor aware.
Although it would not prohibit someone from making a claim against your estate, it is recommended that you store a statement with your will to explain why you have decided to exclude that person.
10. Getting Married
A marriage revokes a will, unless that will is made in anticipation of marriage.
If you are planning on getting married in the future, it is important to make your lawyer aware of this.
If you get married after making a will, it is important to revisit the will to ensure that your estate still passes in accordance with your wishes.
Following the introduction of “no-fault” divorce in England and Wales on 6 April 2022, spouses who are separating may be tempted not to use solicitors and start a divorce application themselves, or take the view that involving solicitors will not be necessary.
Whilst there is no rule of law which requires lawyers to act for you in respect of a divorce, we would always encourage a spouse who is contemplating divorce to take legal advice from the outset. Even though the divorce process has been simplified, there are still important considerations which should be taken into account before any divorce application is started. These include issues over which country would be the most appropriate to deal with any divorce proceedings, where one of the parties has a connection to a different jurisdiction, or where one party may have a limited life expectancy such that alternatives to divorce may be more appropriate.
Furthermore, many people are not aware of the fact that, if you do not apply for a financial order within the divorce application, or do not start a formal application for a financial order on Form A before they re-marry, then they will be caught in what is known as “the re-marriage trap”. The effect of the same is that they will lose the right to apply for certain financial orders against their former spouse as part of any financial settlement on divorce.
For more information, please contact us.
The Government have announced they will be rolling out a new application service for victims of violent crimes in Great Britain by 15 September 2023.
The Criminal Injuries Compensation Authority (CICA) have confirmed they will be closing their existing application service on this date. This will mean any applications which have been started on the site before this date will be lost if these are not submitted before 15 September 2023.
The CICA have advised that the reason for the update was to simplify the process for victims of violent crimes when applying for compensation, as well as altering the service design to remove as many potential triggers for re-traumatisation as possible, whilst ensuring that they have enough information to accurately process applications.
What is a CICS Claim?
The Criminal Injuries Compensation Scheme (CICS – “the Scheme”) is a government-funded system designed to compensate victims of violent crime. It is administered by the CICA, who decide if applicants are eligible and assess the appropriate compensation value of any award.
There have been numerous versions of the Scheme since its inception. The present version of the Scheme is known as the ‘Amended 2012 Scheme’ and came into force on 13 June 2019. If you were the victim of a violent crime prior to this date then an earlier version of the Scheme may apply.
The rules of the current Scheme and the value of the payments awarded, are set by the Secretary of State and approved by Parliament. To qualify for an award, an injury must be described in the Tariff of Injuries at Annexe E of the Scheme. The CICA must pay an award in line with these prescribed amounts, based on the severity of the injuries and the impact upon you.
The Scheme does acknowledge that no amount of compensation can ever truly make up for the harm and suffering caused to victims by violent crime, with the injury awards being intended as an acknowledgement of harm and an important gesture of public sympathy.
Eligibility for the CICS Scheme
You may be eligible to claim compensation under the Scheme if you were the victim of a violent crime. A ‘violent crime’ is defined by the CICA as an intentional or reckless act that involves at least one of the following:
Examples of claims which may fall within this category include:
You may also be eligible for compensation if you were taking a ‘justified and exceptional’ risk trying to stop a crime.
You usually have to claim within two years of the crime taking place and the crime must be reported to the police before you apply.
Here in the Personal Injury Team at Lanyon Bowdler we can assist you in the preparation of your CICA application and then formally represent you if you would like to investigate the matter further, or challenge a Tribunal decision if you believe that you have been undercompensated. If you would like more information please contact us.
We have seen a number of cases where, following a final order being made by the court in relation to a financial settlement arising out of a divorce or dissolution of a civil partnership which includes a pension sharing order, the relevant documentation has not been sent to the relevant pension provider. This has then caused considerable difficulties later on for a variety of reasons, such as the person with pension benefits being able to draw down on funds to which they are not entitled, or the relevant pension fund changing such that the original pension sharing order cannot be implemented.
Under the relevant court rules, a court which makes such a pension sharing order must send, or direct one of the parties to send to the person responsible for the pension arrangement concerned, certain prescribed documents to start the implementation process. If you have obtained a pension sharing order, it is important to ensure that the correct formalities are complied with so as to avoid falling foul of such problems.
Here at Lanyon Bowdler, we have a team of expert lawyers in our Family Department who specialise in this area and can advise and assist you in respect of such matters. For more information, please visit our page.
For some people, suffering a traumatic or shocking experience can result in problems which linger long beyond the trauma event itself, sometimes for years.
Any shocking or traumatic event may precipitate the onset of PTSD (Post Traumatic Stress Disorder) but it is common in those who have witnessed extreme violence or death, such as those who have experienced war (although they are far from the only demographic affected). Other causes may be childhood trauma or other harrowing experiences, such as being involved in a serious accident, for example.
What causes PTSD in one individual, however, may not affect another - factors such as temperament, life experience and environmental factors all impact on susceptibility to the condition. Interestingly, about twice as many women develop PTSD than men (approximately 5% of men and 10% of women), with the difference thought to be related to women’s greater likelihood of experiencing sexual assault or abuse in childhood.
A scenario common in our experience as clinical negligence lawyers, are mothers suffering from PTSD following particularly traumatic labour and birth, sometimes sadly resulting in the loss of their babies. Likewise, those who have suffered with life-changing and life-long injuries as a result of negligent treatment, can suffer psychological trauma in equal measure to the physical trauma.
An individual may experience some or all of the symptoms listed below, with realistic flashbacks and nightmares, or memories of the event, often accompanied by the physical manifestations of stress, such as sweating, shaking and a pounding heart. They may become hyper-vigilant, so they are constantly in a state of heightened awareness to potential danger in everyday situations, despite the absence of cause for alarm.
Common Symptoms include:
The physical responses many people experience are thought to be related to the release of hormones, like adrenaline and cortisol, in the body which then reacts rapidly when it perceives itself to be in an extreme stress/danger situation. The heart rate, breathing and blood pressure all increase and this physical response is real, although the actual source experience is past.
A common consequence of living with these symptoms are problems with sleeping and concentration, both of which have obvious implications from an employment perspective, but also impacting on an individual’s ability to maintain close relationships and get enjoyment out of life. Unsurprisingly, other mental health disorders such as anxiety and depression are often diagnosed alongside this condition.
Treatment
PTSD is a common, but debilitating, disorder requiring specialist intervention to enable suffers to move forward. The first step in dealing with the condition is to see a GP, who will be able to assess or refer to the relevant services. Treatment will vary depending on individual circumstances, but may involve Talking Therapies, Cognitive Behavioural Therapy (CBT), or Eye Movement Desensitisation and Reprocessing (EMDR). On occasion, antidepressants, such as sertraline, may be prescribed alongside or instead of psychological treatments.
Can we help?
If you think you have suffered an injury through medical negligence, which has led to symptoms or a diagnosis of PTSD, we may be able to assist you with a claim, so please get in touch and have a chat with a member of our team.
Our Personal Injury Team also deal with PTSD claims for reasons other than medical negligence, if you feel you need assistance from them please get in touch and they will be happy to advise you.
When facing a cancer diagnosis, either suspected or confirmed, every hour feels like an eternity. You are constantly waiting for the next steps – to see a specialist, to receive your results, to start treatment. All of this waiting can leave you with a crippling sense of dread and it is easy to think about the worst-case scenario: is the cancer spreading whilst I am waiting?
One comfort is that the NHS has waiting time targets, which aim to ensure that those being referred for suspected cancer, waiting to receive a diagnosis, or waiting to start treatment are seen as quickly as possible.
However, under government proposals due this week, around two thirds of NHS cancer waiting time targets are set to be scrapped. Namely, the nine existing targets will be replaced with just three.
Under the new plans, it is expected that:
• Patients who have been urgently referred, have symptoms of breast cancer, or have been picked up through screening, should have cancer ruled out or receive a diagnosis within 28 days, also known as the Faster Diagnosis Standard;
• Patients who receive a cancer diagnosis will start treatment within nine weeks from the date of referral. This will be dubbed a 62-day referral to treatment standard;
• Cancer patients should receive their first treatment within a month of a decision to treat following diagnosis. The NHS calls this a 31-day decision to treatment standard.
The proposals come as NHS England figures published recently show that cancer waiting times remain below the targets set by the government and the health service. For example, the NHS Constitution standard sets out that more than 92% of patients on incomplete pathways should not wait for treatment for longer than 18 weeks from referral. However, the figures show that, at the end of June 2023, only 59.2% of patients waiting to start treatment were waiting up to 18 weeks, thus not meeting the 92% standard.
NHS England have said that the proposals have been put forward by leading cancer experts, and have the support of cancer charities and clinicians. They say that the changes will ‘remove the need for unnecessary outpatient appointments in order to comply with waiting times rules, allowing more patients to be referred 'straight to test' and the wider deployment of diagnostic technologies including artificial intelligence’.
Cancer Research UK has supported the proposals, stating that they should lead to diagnosis improvements.
However, there are concerns that the new proposals will mean that patients with suspected cancer may have to wait longer to get a diagnosis. Professor Pat Price, Oncologist and head of the Radiotherapy UK charity considers that the new potential targets are “ominous and deeply worrying”.
Professor Price says: “While we agree chasing too many targets can be disruptive and divert resources away from the main patient 62-day treatment target, poor performance is not as a result of how we are measuring it. The clear and simple truth is that we are not investing enough in cancer treatment capacity and getting the whole cancer pathway working"
At Lanyon Bowdler, we understand how devastating a cancer diagnosis can be, particularly if you suspect that you should have received an earlier diagnosis and treatment. Our award winning Clinical Negligence Team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has a wealth of experience of dealing with delay in diagnosis of cancer cases. If you have concerns regarding your own treatment, our team is happy to discuss the matter with you and guide you through the process sensitively.
In a recent update, Director of Midwifery Annmarie Lawrence reported that the Shrewsbury and Telford Hospital NHS Trust (SaTH) is making strides in addressing the recommendations outlined by the Ockenden report – the independent review of SaTH’s maternity care services.
The Ockenden review conducted a comprehensive analysis of maternity practices at SaTH spanning two decades. The review found that failures in these practices contributed to the deaths of 201 babies and nine mothers, as well as causing life-changing injuries to other infants. At the time, it was the NHS’s worst maternity scandal in all of its history.
When the final report was published in March 2022, it identified wide-ranging actions for learning for SaTH to implement, as well as 15 immediate and essential actions for maternity services across England.
In a meeting with SaTH’s board of directors, Ms. Lawrence has proposed reducing the frequency of meetings for the committee overseeing the implementation of these recommendations, to allow for a greater focus on the remaining, more intricate actions. She conveyed her satisfaction with the current state of affairs, asserting, "We are exceeding expectations and I am very satisfied with where we are currently."
Key highlights from the update include:
1. Action Delivery and Assurance: As of the last month, of the 52 actions highlighted in the initial Ockenden report, 47 have been successfully delivered. Of these, 45 have been rated as 'green', indicating that they have been both 'evidenced and assured';
2. Final Report Progress: From the 158 actions identified in the initial Ockenden report published in December 2020, 133 have been completed, with 107 of these being 'evidenced and assured'.
3. Color-Coded Ratings: Actions that have been delivered but are still awaiting full assurance are categorised as 'amber', while actions yet to be completed are marked as 'red';
4. Continued Improvements: Since the report's publication, SaTH has further improved its performance with some actions previously rated 'red' have been upgraded to 'amber', and certain 'amber' actions have now been labelled as 'green’;
5. Meeting Frequency Adjustment: As a result of the progress made, The Ockenden Review Assurance Committee (ORAC), which meets monthly, is proposed to shift to meetings every two months to provide the necessary time and capacity to focus on complex actions;
6. Influence and Control: The board members noted that several actions rated 'red' or 'amber' were those considered outside of SaTH’s direct control, including recommendations for the broader NHS;
7. National Leadership: Despite some challenges, SaTH is leading the way in certain aspects, as identified by the development and implementation of a new training package, which is hoped to be rolled out nationally.
SaTH are keen to demonstrate their dedication and commitment to reform and improve maternity care. While challenges persist, SaTH’s achievements to date signal a promising step forward in ensuring safer healthcare outcomes for all mothers and newborns.
Lanyon Bowdler are currently assisting over 300 families with claims arising out of poor maternity care at SaTH. If you require any further information, please contact us by emailing: info@lblaw.co.uk
What is a heart attack?
A heart attack occurs when the supply of blood to the heart is suddenly blocked. The two main types of heart attack are an ST segment elevation myocardial infarction (“STEMI”) and a Non-ST-Elevation Myocardial Infarction (“NSTEMI”). STEMI occurs when there’s a total blockage. NSTEMI, which is more common, is a partial blockage.
A heart attack can result in serious damage to the heart muscle. The longer a heart attack is left undiagnosed, the more the heart muscle can be irreversibly damaged which can be fatal. Early diagnosis and treatment is therefore critical to making a good recovery and outcome for a patient.
Symptoms
The symptoms that can indicate a heart attack are:
Misdiagnosis
Heart attacks are frequently misdiagnosed, and more so in women - 50% of women are more likely than men to have an initial diagnosis, often indigestion, which is different from their final diagnosis.
More specifically, women who had a final diagnosis of STEMI had a 59% greater risk of misdiagnosis compared with men, while woman who had a final diagnosis of NSTEMI had a 41% greater risk of a misdiagnosis when compared with men.
Women who were given an initial correct diagnosis of heart attack had a 2.5% chance of dying within 30 days. However, if they were initially misdiagnosed, then their risk of death increased by 70%, to 4.2%.
Complications
A heart attack is a medical emergency, and therefore if a heart attack is suspected an electrocardiogram (ECG) should be performed and the patient admitted to hospital immediately. Pain relief and aspirin should be offered as soon as possible.
Upon admission, a further ECG should be carried out and a sample of blood taken to test for specific proteins. Damage to the heart from a heart attack causes certain proteins to slowly leak into the blood. If doctors suspect a patient has had had a heart attack, a sample of blood will be taken so it can be tested for these heart proteins (known as cardiac markers). The most common protein measurement is called cardiac troponin. The troponin level can help in diagnosing the type of heart attack that has occurred.
Unfortunately, too often patients are misdiagnosed with other problems, and these tests are not carried out for some time. These delays in testing can cause the patient to suffer potential avoidable and irreparable damage to the heart. This can lead to further complications, including: arrhythmia (abnormal heartbeat), heart failure, cardiogenic shock and heart rupture. These complications can be both life impacting and life limiting. Invasive surgery may also be necessary. With timely diagnosis and treatment however, many people only require a short hospital stay and make a full recovery following a heart attack with little or no impact to their life expectancy.
Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has experience of dealing with cases where a heart attack has been misdiagnosed. If you have concerns regarding diagnosis and treatment of a heart attack our team is happy to discuss the matter with you and guide you through the process sensitively.
When do you need to pay for residential care?
There are many reasons why yourself or a loved one may have to move into residential care, sometimes this is the only place where that person’s needs can be met properly. Whatever the reason may be, a big consideration will be how to fund that care.
In England and Wales, quite often residential care is not free, and may have to be funded in part or in full by the person who needs the care. In order to assess what level of care you need, and how much you are required to contribute, the local authority should carry out two tests: a care needs assessment and a financial means assessment.
If you are required to pay for care, you will then have to consider how to access the funds to pay for the care.
How do you pay for residential care?
If you are required to pay for care and you have capacity, then you should be able to access your funds, liquidate investments or sell properties in order to fund that care. If you are concerned, however, that you might lose capacity in the future, but you currently still have capacity, then it can provide great reassurance to you and your loved ones if you make a lasting power of attorney (LPA).
Making an LPA is where a person, who currently has capacity, can make the decision to elect one or more people to manage their property and affairs and/ or health and welfare on their behalf as attorney(s), in the event that they lose capacity. This is a special legal authority for other people to act on your behalf. So, for example, if you went into residential care, but then lost capacity, the attorney(s) would be able to take over making payments for care and make any necessary arrangements, under the powers given to them in the LPA, to make funds available, such as by selling a property to release funds. At Lanyon Bowdler our Private Client Team can assist you with making an LPA.
However, if you are at a stage where the person who has gone into residential care does not have capacity, then the person without capacity will not be able to make an LPA. Their loved ones may then find themselves in a state of limbo where the person without capacity is not able to pay the fees themselves or make fees available, but equally nobody else has the legal authority to do so on their behalf. In this event, you can make an application to become a deputy. Family members or friends of the person without capacity, or a solicitor can apply to become that person’s deputy. This involves an application process to the Court of Protection, a specialist court which was set up for the purpose of dealing with people who lack capacity.
If the application to the Court of Protection to become deputy is successful, then a deputyship order will be issued by the Court, and this will set out the powers the deputy has. These powers are usually very similar to the powers of an attorney, and will usually enable the deputy to pay the care fees of the person without capacity on their behalf, access their bank accounts to make money for spending available and, depending on the contents of the order, to sell assets or property in order to fund the care. On occasion special permission must be sought from the Court to sell property. This will mean that despite not having capacity and not having made an LPA, the person without capacity will have their care funding needs met, and someone can manage their affairs for them.
At Lanyon Bowdler, we have an expert team who specialise in Court of Protection matters, including myself, who will be able to give specialist and tailored advice for you and your loved ones circumstances. Our team are ranked nationally as being leaders in this area of law in the prestigious legal directory The Legal 500. If you or your loved ones would like to speak to someone to find out how we can help, please feel free to get in contact.
We have been told about the risks of Japanese Knotweed to our properties but do you REALLY know the implications…
Although it may appear as though the Japanese Knotweed has been cleared above ground, the rhizome root system (orange in colour when snapped), can be up to seven metres in any direction. This is why it can be so difficult to know whether it has been fully cleared from a property, and also whether it can affect your own property, if any neighbours have been having issues which you are not aware of.
Japanese Knotweed can regenerate from a piece as small as 0.7g of root material and remain dormant for up to 20 years, so when filling in a Property Information Form upon the sale of your property it is imperative to indicate “not known”, unless you have obtained an actual report indicating that your property is clear from this plant.
Have you looked to buy a property with Japanese Knotweed? This should not put you off the property. The seller is under an obligation to get the plant removed, or alternatively a price negotiation can take place if a survey has been obtained and it is confirmed the property has Japanese Knotweed. If a lender is involved then there are certain requirements which need to be fulfilled: a site survey by a qualified PCA surveyor, a management plan produced and a 10 year insurance backed guarantee.
DID YOU KNOW that there are also other plants which can cause issues and which need to be monitored:
Giant Hogweed – this plant has been in the press a lot lately given the serious blisters (third degree burns) it can cause due to the highly toxic chemicals contained in the sap.
Bamboo – this gorgeous plant is almost a staple in gardens, however, it is not without its own risks. If it grows unchecked then it can become quite an invasive plant which can cause damage to not only your own property, but also to neighbouring properties.
Her daughter from Shropshire was diagnosed with Cerebral Palsy following a birth injury, Lanyon Bowdler are working w...
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Lanyon Bowdler is authorised and regulated by the Solicitors Regulation Authority (SRA). SRA number: 534828.
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