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Force Majeure Clauses and COVID-19

The impact of COVID-19 has meant that many events, services and goods cannot be performed, delivered or produced due to government guidelines and legislation. Given this, a vital question to be answered is whether a force majeure clause can exclude a party from performing its obligations on time or at all, due to COVID-19.

What Is a Force Majeure Clause?

A force majeure clause is a clause that suspends, and may bring to an end, the performance of obligations under a contract where a party is prevented from performing these obligations due to events outside of its control. For example, the clause will set out a list of circumstances in which a party is excused from performing its obligations and the contractual consequences that will follow such a clause being triggered.

Although these clauses are typically standard clauses, they vary considerably from contract to contract, depending on what the parties agreed. Hence, when it comes to deciphering whether or not such a clause is triggered by COVID-19, it will depend on the particular terms set out in the contract.

The key question for many individuals, as well as companies, who are trying to understand their contractual position, is whether or not COVID-19 is a force majeure event.

Is COVID-19 a Force Majeure Event?

The definition of a force majeure event within a contract tends to be either a list of specific events or a broad range of general criteria. Within law, “force majeure” has no specific definition so whether or not COVID-19 satisfies the definition will be contract dependant.

Given the current unprecedented times that we are living in, it seems likely that courts would be generous in their rulings in relation to whether or not COVID-19 falls within the definition, especially when it can be said that parties have encountered genuine difficulties in performing their contractual obligations. However, such parties will still need to show that their non-performance, or late performance, was truly outside of their control and could not have been prevented or mitigated.

It is important to recognise that even if a force majeure clause is found to have been triggered by COVID-19, this does not necessarily mean that the party/parties trying to rely on the clause will be protected entirely from liability for failing to perform or delay in performance.

Contract Specific Factors

It is common within force majeure clauses for particular words to be used to specify when the clause will be triggered. The words used within the contract are of the utmost importance when it comes to deciding whether or not the clause is triggered.

For example, if the clause states that performance is “delayed”, this is not as onerous as if it said “prevented”. When it comes to proving that the clause has been triggered, if “prevented” is used then it will be much harder to prove as this essentially means “unable to perform”. It would not be enough that the contractual obligations are more difficult to perform, more expensive or less profitable. Whereas, if “delayed” is used, it is not necessary to show that the obligations have been prevented from being performed, just that complying as quickly as required under the contract is substantially more difficult.

Overall, if the force majeure clause that you are aiming to rely on uses wording referring to “delayed” performance, you are more likely to be able to rely on this to postpone your obligations or even terminate your agreement than you are if the clause states “prevented” performance.

Conclusions

Firstly, it is important to consider whether COVID-19 would be covered by the definition of force majeure within the contract in question. Even if a force majeure clause does not list “pandemic” as a triggering event, it is likely to be caught within the general scope of “events beyond your control”, unless the contract was entered into after the breakout in Wuhan became known worldwide. If this is the case, then the specific contract would need further consideration.

Secondly, if the clause is found to cover COVID-19, then it needs to be decided whether the parties will be released of their obligations and the agreement terminated or whether their obligations will just be postponed. It is more common for the parties’ obligations to be postponed.

Finally, as each contract is drafted on its own terms, it is important that you understand your rights and obligations before you act. If you wish to discuss a contract to which you are a party to determine the extent of your obligations, please contact our corporate and commercial department.

An Employer’s Defence to Harassment Claims

For the purposes of the Equality Act 2010 anything done by an employee in the course of their employment is treated as having also been done by the employer. This means that an employer can be liable for harassment when an employee harasses another employee and this is the case whether or not the harassment is done with the employer's knowledge or approval.

There is a defence available to an employer if it can show that it had taken all reasonable steps to prevent the harassment. Such steps are often found to include relevant training for employees and also having suitable policies in place. When considering such a defence put forward by an employer, an employment tribunal will consider the steps that have been taken by the employer and whether further reasonable steps were required.

In a recent appeal heard in the Employment Appeal Tribunal (EAT) on this subject, the EAT agreed with an employment tribunal (who had heard the case first) that the training undertaken by the employer was not sufficient to show that all reasonable steps had been taken and therefore the employer could not avoid liability for its employee’s actions.

The tribunal had found that the anti-harassment, bullying, equality and diversity training which had been delivered to the perpetrator of race harassment and other relevant employees (including two managers who failed to report matters to HR), was several years before the events in question and was clearly stale and, further, it did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace because a reasonable step would have been to refresh that training. Agreeing, the EAT said that the employment tribunal was entitled to make this conclusion.

What Does This Mean for Employers?

This case shows that employers who do not undertake meaningful and effective anti-harassment and bullying and equal opportunities training on a regular basis are at risk of being found liable for the actions of their employees.

It is also important that employers have in place well drafted anti-harassment and bullying and equal opportunities policies. If these policies are already in place, they should be reviewed to ensure they are up to date and that all members of staff are aware of them.

There are other important benefits to taking these steps than ultimately defending claims. Appropriate policies and training helps promote an inclusive workforce and avoid actions that can give rise to grievances and/or claims; and if there is nevertheless harassment or otherwise unlawful discrimination, they will make it more likely that concerns are properly reported and addressed.

Employers who would like more information on the above-mentioned policies and/or training for staff, should contact a member of Lanyon Bowdler’s employment team.

Planning Enforcement: Beware of the PCN

Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.

PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court [2021] EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.

The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.

What Will Be the Consequence If the Landowner Fails to Respond to the PCN?

Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.

Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.

What Happened in the Case of Russnak?

The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.

An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.

The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.

The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.

The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.

World Cancer Awareness Day 4 February 2021

Today is World Cancer Awareness Day. A day aimed to unite people across the world in raising awareness of cancer and its impact in the hope of preventing future deaths.

Never has this message been more important than in the wake of the COVID-19 pandemic. Cancer patients have been one of the groups of people most badly affected by the pandemic, and this may not just be current patients. In particular, concerns have been raised in relation to a lack of research funding. This could mean that not just current patients but future patients are affected. This could easily include any one of us.

This year, the World Cancer Day theme is “I Am and I Will”. I have signed up to one of the 21 day challenges on the initiative’s website. These include challenges to raise awareness, improve your own health and to support someone else with cancer. In the spirit of raising awareness, here are six things I have learnt about cancer over the past 10 years.

  • Side effects of treatment are not just hair loss and feeling sick. Don’t get me wrong, they are big ones, but side effects can include almost anything and can be incredibly debilitating.
  • Once you have had treatment, if it’s successful, that’s it. Perhaps it is for some, but for many it really is not. Even if successful, patients can suffer long-term side effects or complications as a result. And of course there is the follow up and potentially years of “scanxiety”. It really is a marathon and not a sprint, and support is needed for the long haul, not just immediately post diagnosis.
  • Never underestimate the kindness of strangers. People’s reactions can surprise you and support can come from the most unlikely of places. Any gesture, even small ones, can mean the world to someone going through treatment.
  • Neutrophils are your best friends. What is a neutrophil? A type of white blood cell that protects us from infection. Some cancer treatment effectively wipes these cells out and can lead to neutropenia (an abnormally low level of neutrophils) and potentially, neutropenic sepsis. Cancer patients can be extremely vulnerable to infection, something which the COVID-19 pandemic has undoubtedly increased awareness of.
  • Cancer treatment can be expensive. I don’t mean the actual treatment here – I mean the knock-on effects. The potential loss of earnings, the bits and pieces you need to get to make treatment more bearable, and don’t forget the many, many hospital appointments and associated travel costs.
  • Cancer affects the whole family. Of course the main focus should be the patient, but don’t forget their support network, who sometimes need support too.

No doubt many of us know someone who has been or is affected by cancer. Through my work and personal life, I have had the privilege of knowing and working with many people who have had a cancer diagnosis. These people are some of the most inspirational characters you will ever meet. They need our support, now more than ever.

Electronic Communications Code Consultation

The Electronic Communications Code (“the Code”) came into force on 28 December 2017. Since then there have been several high profile disputes between the operators of telecom mast sites and landowners that have been resolved by court rulings. Not all of the rulings have gone in favour of the operators and some have denied operators rights under the Code.

The government is concerned that the Code is not operating in the way it was originally intended and recently opened a consultation on the shape, scale and scope of alterations to the Code. The consultation period ends on 24 March 2021.

The consultation is focusing on three areas of concern:

Obtaining and using Code Agreements, including failures to respond to requests for Code rights.

Low rents and concerns over the new Code rights may have resulted in landowners not wanting anything to do with Code Agreements and burying their heads in the sand when asked to grant Code rights. This may be causing delay in securing new mast sites and problems with the roll out of 4G and 5G networks.

The right to upgrade and share – when should these rights be available and what should happen when the conditions for automatic rights are not met? The government is also consulting on limited retrospective rights to share equipment installed before December 2017.

Operators occupying under old agreements cannot use the new automatic sharing rights under the Code. It looks like the government is considering retrospectively imposing these sharing rights in old pre-Code agreements in limited circumstances. This might be where sharing is required in the public interest, eg to expand networks without delay. If this suggestion is implemented there are likely to be disputes over the operators’ rights to exercise the new sharing rights.

Difficulties regarding the renewal of expired agreements. There were a number of court cases in 2019 and 2020 where operators failed to persuade the courts to impose Code right.

  • on a non-occupying landowner (a third party operator occupied the property);
  • where the occupying operator was holding over under an expired lease that was protected by the Landlord and Tenant Act 1954; and
  • where an operator was occupying as a tenant at will after the expiry of a lease that was outside of the security of tenure provisions of the LTA 1954. The Court held the operator had no rights under either the old telecommunications code or the Code and could not apply for temporary rights.

The court’s decision in the second case was confirmed by the Court of Appeal in January 2021.

The government is likely to close the loopholes in the Code that were exposed by the recent court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

The consultation may be the result of lobbying by operators who want to revise the Code to address its perceived shortcomings in the Code and the “loopholes” exposed by the recent Court decisions. Landowners will need to make their voices and concerns heard through their industry representatives (e.g. the NFU and the CLA) if they want to avoid or limit additional or enhanced rights being granted to operators or at least ensure that provisions are included in the revised Code to protect the interests of landowners.

The government is likely to close the loopholes in the Code that were exposed by the recent Court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

Perineal Tears During Childbirth

It is common knowledge that a mother who delivers a child by caesarean will need six weeks to recover physically. If a caesarean is required then the implications are discussed at length during the antenatal period, and preparations can be made by the mother to ensure she can rest and recover once the baby arrives. What is less talked about by midwives, doctors and mothers themselves are tears, despite research finding that nine in 10 women will tear to some extent during a vaginal delivery.1

Grading a Tear

Tears are graded from first degree to fourth degree. Small, skin-deep tears are known as first degree tears and usually heal naturally. Tears that are deeper and affect the muscle of the perineum are known as second degree tears. These usually require stitches by a midwife. A third degree is a tear that extends into the muscle that controls the anus (the anal sphincter). If the tear extends further into the lining of the anus or rectum it is known as a fourth-degree tear. Third and fourth degree tears require surgical repair by a doctor as soon as possible after your baby is born, under spinal anaesthetic or an epidural in theatre. You are likely to need a catheter for a short period afterwards and the follow-up care includes pain relief, a course of antibiotics to reduce the risk of infection, laxatives for comfort and physiotherapy follow-up. Most women make a full recovery within four to six weeks, although rarely complications can arise and medical advice should be sought as soon as possible. Key complications to look out for include:

  • Signs of infection such as if your stitches become more painful or smell offensive;

  • You cannot control your bowels or when you pass wind; or

  • Continued pain and discomfort when having sexual intercourse.

It is also important to focus on your mental health. Experiencing complications when giving birth can be very distressing and disturbing, and for some women there is a risk of post-traumatic stress disorder. Following a perineal tear, if you are developing anxiety, have low mood or feel that you need additional support, you should talk to your healthcare professional.

The diagram below from The Royal College of Obstetricians and Gynaecologists helpfully summarises the anatomy and how tears are graded.

Difference Between an Episiotomy and a Tear

A tear happens spontaneously with delivery, however, an episiotomy is a cut made by a healthcare professional through the vaginal wall and perineum. This may be done if your baby needs to be born more quickly or to make more space for your baby to be born. If you have an episiotomy you will need stitches. These are normally done under local anaesthetic.

On the most part, it is thought that an episiotomy will help prevent a severe tear as it can be controlled, however, it is possible for an episiotomy to extend and become a deeper tear.

When to Consider Making a Perineal Tear Claim

Whilst suffering a tear is incredibly common, there are situations where the acts and/or omissions of midwives and doctors can lead to a mother either suffering a worse tear or having a more complicated recovery. Women tend to be reluctant to discuss their symptoms and see this as part of having a baby. Whilst not all tears will give rise to a legal claim, it is important to talk about your delivery and recovery and be aware of potential failings. The most common types of claims we see include:

  • Poor birth planning and/or management of labour;

  • Failing to repair a tear in a timely manner after delivery;

  • Failing to appropriately identify the severity of a tear leading to a sub-standard repair; and

  • Failing to act on signs of infection post-repair.

If you would like to discuss your labour or perineal tear with one of our experts, please call us on 0800 652 3371.

Further Information:

If you would like further information, the following organisations specialise in supporting women who have suffered perineal tears:

RCOG Perineal Tears Hub: www.rcog.org.uk/tears

Mothers with Anal Sphincter Injuries in Childbirth (MASIC): https://masic.org.uk

Birth Trauma Association: www.birthtraumaassociation.org.uk

Bladder and Bowel Community: www.bladderandbowel.org

1 https://www.ouh.nhs.uk/patient-guide/leaflets/files/12101Ptear.pdf

Common Intention Constructive Trusts

A recent case in the High Court highlighted the importance of using the correct legal structure or vehicle to hold business assets.

In Oberman v Collins (21 December 2020) an unmarried couple had built up a portfolio of investment properties over 20 years. Some of the properties were owned by one person, some by both and some by a company, in which both were shareholders.

When the couple separated one of them applied for a court order to ensure they had a 50% interest in all of the properties. The application was based on that person making financial contributions, working unpaid and giving their partner day-to-day control of the portfolio, whilst providing bank guarantees and assuming financial liabilities.

The court rejected the claim that there was a business partnership, but did accept there was a common intention constructive trust, even though the case concerned investment properties and not the family home. It did not matter that the case concerned a fluid portfolio of properties provided the trust was established. If the judge was wrong about that point there could be a common intention constructive trust for each property that was purchased because he found that the couple intended to acquire each property in equal shares. This finding was based on the couple’s agreement about the portfolio and the actions taken as regards the rents and sale proceeds that were received.

The court agreed the applicant’s failure to protect their interest in the property was inconsistent with their argument that there was a common intention the couple would have equal shares in the properties. However, the court found that because the failure to protect those interests prejudiced the applicant, it supported their claim.

It is important to consider, from the start, how business assets will be owned in order to protect the interests of all of the investors in the business and to keep this issue under review as a business develops.

When building up a property portfolio, eg buy-to-let houses, it is important that the properties are held within an appropriate legal structure and that the interests of all of the investors in the property business are properly protected. Legal advice should be obtained at an early stage to decide whether to use a formal partnership agreement or a company. If a company is formed, is a shareholders’ agreement required? Alternatively, is a declaration of trust appropriate to record the investors’ interests in the properties and to protect both of their positions?

Obtaining good legal advice at any early stage can avoid costly disputes and litigation later on. For more information please contact us.

Whistleblowers Raise Concern about Patient Safety at Essex Maternity Unit

A number of incidents at a maternity unit in Essex are causing concern over serious failings in care. The Care Quality Commission (CQC) visited Basildon Hospital following whistleblowers alerting the CQC of their fears about patient safety. The tip-offs followed a number of serious incidents where six babies were at risk of brain injury after being starved of oxygen at birth.

An article published by BBC noted that the CQC found unsafe staffing levels at the maternity unit at Basildon Hospital during August 2020. This finding follows the maternity unit being rated as inadequate in June 2019. The rating followed the shocking death of a woman in February 2019 where a mother lost six litres of blood after giving birth via emergency caesarean section at Basildon Hospital. The Independent newspaper noted that the coroner concluded that there had been a breakdown in communication, a lack of leadership as well as a lack of co-ordination and team work. The NHS Trust has since apologised for not enacting improvements quickly enough and stated their services were safe to use.

Following the leaked report of the Shrewsbury and Telford NHS Trust maternity scandal detailing the number of deaths of both mothers and babies, it appears that lessons have not been learnt by maternity units in the wider NHS. The findings from the most recent CQC inspection of Basildon Hospital noted a number of concerns including the fact that only four shifts had safe staffing levels in August 2020, expectant mothers at high risk of complications had given birth in the low risk part of the unit and required safety meetings at shift handovers did not occur. The levels of skill and experience of the staff was also found to be concerning.

The NHS Trust responded to the findings by stating they had a robust improvement plan in place and that significant action had been taken since the CQC visit. Only time will tell whether lessons have indeed been learnt from another devastating death within an NHS maternity unit.

The NHS is understandably stretched due to Covid-19 but these findings pre-dated Covid and it is important that as a nation we do not accept falling standards in the care of pregnant mothers and delivery of babies.

The clinical negligence team at Lanyon Bowdler has extensive knowledge and experience in dealing with birth injury cases and handles an extensive caseload of maternity-related cases. If you, or someone you know, has been affected by a birth injury, our friendly team will be happy to discuss the matter with you in confidence. Please contact us.

Childcare, Shielding and Furlough

A very common question raised by both employees and employers alike following the announcement of the third national lockdown in England has been whether (i) parents who stay at home to look after their children following school closures and (ii) those who are shielding in accordance with public health advice can be furloughed under the Coronavirus Job Retention Scheme (“the CJRS”).

The short answer is that, in accordance with the government’s published guidance on the CJRS, employers can, but do not have to, furlough such employees.

However, some of the commentary that we have seen in the media and online has implied, if not expressly stated, that such employees can be furloughed regardless of the circumstances – including where additional labour costs would be incurred (e.g. as a result of temps being engaged or existing staff working extra hours) to perform work in their place.

It would clearly be an abuse of the CJRS to furlough any other employees and engage substitutes especially for the purpose of doing their work. (To be clear, we are not talking about employees who are not furloughed picking up within their normal working hours for no extra pay tasks of the type that could or would have been have been performed by a furloughed employee had they been working – which is certainly permissible.)

In our view an employer will be taking a risk in not applying the same considerations to employees who are staying at home to look after their children or who are shielding, unless and until a further Treasury direction (which sets out the formal rules of the CJRS) is issued, or at least the published guidance on the scheme is amended, to expressly state that this is allowed. (To be clear, the current Treasury direction does not do this, and although the government’s current CJRS guidance for employers and CJRS guidance for employees confirm that such employees can be furloughed, it does not purport that this is regardless of whether the purposes of the scheme are otherwise complied with.)

There are significant consequences for employers who make inappropriate claims under the CJRS. HMRC has made it clear that it will audit claims and that amounts found to have been claimed inappropriately will be required to be repaid – leaving the employer out of pocket at least in this regard (unless it obtained the agreement of relevant employees to recover such sums from them, and they are willing and able to enforce those agreements). Further, employers who are found to have acted deliberately in wrongfully claiming grants under the CJRS are liable to pay a penalty of an amount equal to the sums wrongfully claimed and also face prosecution.

Proposed Reforms in Relation to Changes to the Small Claims Court Limit

In 2017 the government announced proposed reforms in relation to changes to the small claims court limit in personal injury claims from £1,000 to £5,000 in relation to road traffic accident claims, and £2,000 in other personal injury claims. The idea behind the reforms means that claimants who suffer injuries deemed to be worth less than £5,000 in a road traffic accident and less than £2,000 for other personal injury claims will need to make their claim without legal representation as they will not be able to recover any legal costs.

The original date for implementation of April 2019 has now been postponed on three occasions with the latest expected date of implementation of 6 April 2021. However, with only three months left to go there is still little information available as to how exactly the system will work, as the Ministry of Justice have still not published the rules and procedures.

The world is dealing with COVID-19, which has impacted everyone in some form, the delay of publication of the rules cannot solely be down to the pandemic. The proposals for the reforms date back to 2017 and if the implementation date is to go ahead, early publication of the rules and procedures is critical. I have always had serious concerns in relation to the proposed changes, because of the impact being unrepresented by a lawyer may have on injury victims.

There are many aspects of the reforms that have not been thought through and an unintended consequence may be to drive claimants into the arms of claims managers. What is clear is that there appears to be a big issue in relation to what happens if the value of a claimant’s claim cannot be agreed. There is supposed to be a system to avoid the need for the claimant to have to go through the small claims court, but it does not appear that at this stage, a workable solution has been found. The system has only recently been reformed, and that is working well so surely there is no need for any further reform. The fact that so many issues still need resolving, over three years since the reforms were proposed is an indication that things should be left as they are.

It is not surprising that the insurance industry is now calling for the Ministry of Justice to publish the rules, because, of course, they want claimants to be unrepresented in bringing their claims. If the reforms are not to be scrapped, I would like to see the government take their time in considering the reforms, to ensure personal injury victims are not deprived of access to justice. The delays in publication of the rules are not benefiting anyone.

I am also concerned some claimants may be waiting for the reforms to come into force before commencing their personal injury claim, as they may believe it is better for them to deal with their claim directly with an insurer, without legal representation, as this will mean more damages for them on conclusion of the claim. However, this will not necessarily be the case. The insurance industry does not want claimants to be legally represented, because they know a claimant will usually be advised by their legal team to obtain medical evidence in support of their claim. This will ensure that the injuries suffered, and their outcome, are fully investigated which can often lead to an increase in the value of a claim. The legal team will also advise the claimant against consideration of any offers which are made before any medical evidence is obtained. This can be frustrating for the insurers as they want to settle the claims as soon as possible for the lowest amount possible. Most importantly most clients will have no idea as to the likely award that would be made by a court, and there is a serious risk of insurers taking advantage of unrepresented claimants.

I am also concerned that some potential claimants may be waiting to start their claims because of the COVID-19 pandemic. These claimants should not wait. The current proposed date is 6 April 2021 and that will soon come around and there is every chance COVID-19 will still be prevalent at that time.

We can offer clients over the telephone or on a virtual platform such as WhatsApp or Zoom. I have started several new cases using virtual platforms as a way to provide appropriate advice and this has worked well.

The role of the legal team is more than just obtaining the correct compensation for the victim of a personal injury claim. It is also about ensuring clients have the appropriate rehabilitation to provide them with the best possible outcome in relation to their injuries sustained. And to help those with serious life changing injuries have all the right information with respect to their entitlement to benefits, and organisations, in their area, which can provide them with help and support, and to support them when going through the legal process. Having this team approach means it allows a claimant to focus on the most important thing, which is recovering from their injuries.

I would encourage anyone with a potential claim not to delay and to seek advice as soon as possible. The tariffs under the reforms mean damages for whiplash cases will be much less than they are now, and it is still not clear whether or not this will only apply to an accident after the implementation date, so it is better to start a claim as soon as possible. COVID-19 does not appear to be going away any time soon and whilst it is not clear whether the current reform date of 6 April 2021 will be met, changes are likely at some point in the future.

For more information please contact our personal injury team.

Can Children Move Between the Homes of Separated Parents (UK) During Lockdown Three?

  • Guidance for England was published on the 4 January 2021 and states that individuals may not leave or be outside their home except when they have a reasonable excuse. A reasonable excuse includes continuing existing arrangements for contact between parents and their children where they live apart.
  • The president of the family division of the high court (England and Wales) noted that this does not mean that children must move between homes, the decision should be one for the parents to take after assessing their circumstances.
  • Parents are required to make a decision after a sensible assessment of the circumstances including the children’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. It is an assessment that should be made taking into account child welfare issues and is something that many parents may require assistance with from a qualified family practitioner.
  • There will be many circumstances that may impact this decision, for example if the children have been instructed to self-isolate by NHS Test and Trace. Where that has occurred the parents or guardians of the child should arrange for that child to remain at the same address during their period of self-isolation and make alternative arrangements for ongoing contact, for example video or FaceTime calls.
  • There are arrangements where one parent travels a significant distance in order to exercise contact with their child. Such travelling may involve the parent moving between different counties and again may impact the decision in respect of continuing those contact arrangements during the lockdown period.
  • Of course parents are right to be concerned, as whenever a court makes or varies a child arrangements order a warning notice is attached to the order itself warning of the consequences of failing to comply with it. Failure to comply with a child arrangements order is important and needs to be taken seriously, as a breach of the same may incur a fine or imprisonment. The court will not impose such penalties if it is satisfied that the person had a reasonable excuse for failing to comply with the provision. Again, if there is any concern in relation to lockdown 3 resulting in a breach of a court order the parent should consider taking urgent legal advice.

For more information please contact a member of our family team.

Foreign Divorces

For many years England and Wales have been considered the "divorce capitals of the world" for wives. There are several reasons behind this, which include the relative ease and straightforwardness of the English divorce procedure and the duty upon the court to regard the contribution made by those who look after the home and care for others in the family as being equal to that of the main breadwinner. Perhaps one of the most important reasons for the popularity of using England and Wales for divorce however is the ability of the English court to share pensions between spouses and the 50:50 starting point for capital distribution upon divorce.

On 31 December 2020 the UK will leave the EU and with it, overnight, will disappear decades of reciprocal arrangements between the UK and the 27 countries of the EU along with a host of intertwined regulations. No one knows yet what, if anything, will replace them and how long it will take for a new regime to be set up.

What Happens Currently?

Under current EU treaties if one half of a couple issues divorce proceedings first in a member state that member state establishes jurisdiction over the divorce. For wives in particular, who can show a connection to England and Wales, being able to issue in England and Wales first to protect their financial claims here has been an important asset. After 31 December, this will no longer be the case

Lanyon Bowdler is seeing a huge increase in cases involving British couples who have either lived or are living in Europe, particularly those with houses in Spain, Greece and France. There has been a sudden surge of people instructing our family department at Lanyon Bowdler, particularly those who have lived in Europe with their spouses who recognise that it is important for them to issue divorce proceedings in the UK before 31 December to ensure that the courts here can give them part of their spouse's pension and a fair settlement. The new divorce online service in England and Wales is so quick and easy it has been a godsend to many. After 31 December it is likely that we will revert to the old system whereby whoever issues first in a European country, cannot be guaranteed that they will be able to establish jurisdiction and there will be many expensive cases dealing with the argument of where the divorce should take place.

Establishing that the courts here should deal with the divorce is not the only difficulty that will arise after 31 December. Reciprocal enforcement of financial orders in between the UK and the member states is also going to be affected by the UK leaving the EU. There the situation is less certain as the system for reciprocal enforcement is notoriously slow. Although we do not yet know what will happen to the current system of reciprocal enforcement, waiting to enforce a UK order in Europe after 31 December 2020 is a risk. Anyone with a UK order that needs to be enforced abroad should begin the process of enforcement now in the hope that once started, the member state will continue the enforcement process after 31 December.

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