As the article (which is available at the link below under the heading “Complex web”) illustrates, it is not always a given that online firms will necessarily be a cheaper option than traditional firms.

In the case in question, the firm’s final bill was more than four times the initial estimate of £650 which the firm had provided. The ombudsman did not object to the firm’s actual fees, but did decide that they should refund £300 to the client as a result of searches which they had carried out on his behalf without providing adequate information. In this regard it is worth noting that one advantage of using a solicitor with local knowledge is that they may be able to avoid undertaking searches which are not relevant to the property in question.

Solicitors are obliged by professional rules to provide frequent updates as to costs, but in the case discussed in the article the ombudsman found that the firm had presented this information in an unclear, poorly structured and cumbersome way, which firms should self-evidently take pains to avoid.

It is also worth bearing in mind that although solicitors’ fees are obviously an important consideration in any conveyancing transaction, they are usually a relatively small part of the overall cost and are typically much smaller than the fees payable to estate agents for their work in marketing the property.

While in some cases online conveyancers undoubtedly do a good job at an affordable price, in many cases clients may find that they prefer the greater experience and the personal touch generally offered by solicitors at traditional firms.

It’s goodbye to Tier 1 (Post Study Work) which will be disappearing as of 6 April 2012. We would advise anyone who may be able to qualify under this category to apply immediately. In its place comes the Tier 1 (Graduate Entrepreneur) category which will allow world class students to stay and develop their ideas and businesses here in the U.K. – maybe a few could even enter The Apprentice to up the quality of contestants!  Following their time on Tier 1 (GE), migrants will be allowed to switch into the Tier 1 Entrepreneur category and will only have to show a £50,000 investment. Places on Tier 1 (GE) are very much limited and competition for them is likely to be tough.
Tier 2

The big changes to Tier 2 are the implementation of a maximum period of leave to remain as a Tier 2 Migrant of six years after which unless the Tier 2 Migrant has been granted indefinite leave to remain in the UK he or she will have to leave, and secondly the introduction of a minimum annual salary of £35,000 as a precondition for indefinite leave.
What has been lost through the disappearance of Tier 1 (PSW) is being gained. To a degree, through the Tier 2. Companies will no longer need to satisfy the resident labour market test to employ ex-students and ex-PSW migrants. Moreover, there will be no necessity for Tier 1 (PSW) migrants to show that they have been working for their current employer for six months.
Unfortunately Tier 4 (General) Migrants and those in former student categories will only be able to ‘switch’ to Tier 2 if they have obtained a degree, Postgraduate Certificate in Education or Professional Graduate Diploma of Education, or have studied for a minimum of a year in the UK towards a PhD.

Central to deciding whether to appeal or not is working out whether the evidence submitted at first instance is capable of leading to a successful appeal and secondly whether extra evidence can be submitted at appeal stage.

In some instances, the initial application has been fatally flawed to the point where a fresh application is not only indicated but is absolutely necessary. This is particularly the case where a PBS application has been made but with evidence missing. In those cases, evidence not submitted at first instance cannot be submitted at a later date. Generally, even where applications are ‘out of time’ a fresh application is the only way forward. Perhaps a little nougat of information that many people in that position will benefit from is that the Immigration Rules DO allow ‘out of time’ PBS applications so long as certain criteria are met. This is something we can help with, and indeed have helped with.

Many of our appeals are appeals against refusal of spouse entry clearance, in these instances, the situation is far less clear cut. Where evidence was available at the time of the first application, but was not utilised, this can be submitted at appeal. However, where a matter arises after the initial application, for example a pay rise, this new evidence cannot be included. In the later case, if the failure of the application was based on maintenance, we would be inclined to suggest a fresh application.

In any event, there are also considerations about cost and time. A fresh application is almost always cheaper and faster than an appeal where the applicant is here in the U.K. Overseas, however, the situation is different and an application for entry clearance will often take longer than the appeals process. In some instances there are also questions around whether a fresh application, if very similar in nature to the failed application, will stand a renewed chance of success. In those instances it can be much more effective to get the case in front of a  judge rather than take chances with the UKBA again.

As you can see, the decision as to whether to appeal or make a fresh application is a complex one that can only often be decided by experience. We would urge anyone who is thinking about appealing, or making a fresh application, to obtain sound advice to make sure that they are going down the right road.

In any event, prevention is better than cure. We always recommend getting advice from the start of a matter rather than later on when things have gone wrong!

The ideal position would be that upon death, a will clearly outlines how a deceased’s assets are to be distributed (probate). However this is not always the case. Problems with the will may make it invalid, or the will may not cover certain property if, for example, it was acquired after the will was drafted. Where a will is not left, the law must step in to decide how to distribute a person’s assets between survivors.

The report examines the law as it currently stands and concludes that much of it is outdated and confusing. In accordance with the aims of the Law Commission, their proposals are intended to simplify, codify and clarify the law in this area.

Their report makes a number of recommendations, including:

1. Where a deceased is survived by a spouse solely, their spouse should inherit the deceased’s property.
2. Where a deceased is survived by a spouse and others, their spouse should receive half of the value of the estate outright.
3. Previously, a child of the deceased could only make a claim under family provisions if the deceased was married or in a civil partnership. The Law Commission has recommended this limitation be removed, allowing the deceased’s child to make a claim whether or not their parents was married or in a civil partnership.
4. Where a couple live together without getting married or forming a civil partnership, the survivor under the current rules does not inherit any part of the estate. As the idea of a traditional family unit has changed, the law needs to reflect the changing nature of society. The Law Commission recommends that in certain circumstances a cohabiting partner should be entitled to inherit property. They recommend that cohabiting partners who have been together for five years should benefit, or two years if they have a child.

These changes to the law bring it into line with public conceptions and other commonwealth jurisdictions. It also provides greater security to the approximately 2 million cohabiting couples within the UK.

Although these reforms have been published in a report by the Law Commission they do not have to be accepted by parliament and become law. Two draft bills have been published to implement these reforms, but until these are passed the current rules still apply.

The safest option to protect your survivors upon death is to have a will. If you have any questions over the contents of this article or your will please contact our probate department on 020 7790 2000 or email Richard Dale directly at rdale@adamslaw.co.uk.

~ Richard Padley

Reports will be quarterly. Here is the first one for our area, it’s short but it shows the gravity of what is to come for business owners…

UKBA Report

– Jill Gray

Wikipedia describes whiplash as:

“a non-medical term describing a range of injuries to the neck caused by or related to a sudden distortion of the neck associated with extension.  The term “whiplash” is a colloquialism. “Cervical acceleration-deceleration” (CAD) describes the mechanism of the injury, while the term “whiplash associated disorders” (WAD) describes the injury sequelae and symptoms.”

The movement of your head as it “whips” back and forth causes a strain which can often take a considerable length of time, and physiotherapy, to properly heal. Whiplash commonly occurs in a road traffic accident, often at low speed, but any jolt to the head could potentially cause a whiplash injury.

Symptoms to look out for are:

• Neck pain and stiffness
• Headache
• Sickness
• Shoulder/arm pain
• Loss of movement
• Back ache
• Dizziness

Symptoms can appear at the time of injury but it is more common for the effects to show in the days after the accident.

Suffering a whiplash injury could have a lasting effect on your daily life and change the way you live.  Straining the ligaments in your neck can cause movement to be restricted and could, in severe cases, cause disabilities.

Whiplash injuries are not minor.  The injury is to your neck, a very important part of your body.  The length of time that whiplash symptoms remain following an accident can vary greatly – some will last only a matter of weeks, some will last years and some people may be left with permanent symptoms. As a result it is important to seek independent legal advice if you are considering a personal injury claim for a whiplash injury.  Associated costs can also make up part of your compensation claim, such as:

• Prescription charges
• Physiotherapy treatment
• Loss of earnings
• Travel costs

If you have been affected by whiplash because of an accident that wasn’t your fault, or if you have any questions regarding personal injury claims generally, please feel free to contact Jon Finebaum on 020 7790 2000 or email him directly on jfinebaum@adamslaw.co.uk.

~ Rachel Lyndon

From a structural perspective, if having brought the property you discover that the walls were not correctly built or that there are problems with the foundations, any loss in the value of the property or reinstatement amounts cannot be reclaimed from the seller. To lawyers, this type of loss amounts to ‘pure economic loss’ which has been ruled as not reclaimable. If you are purchasing a property with the assistance of a mortgage, lenders will undertake structural searches on the property to ensure that their interest in the property is protected. For many this will be satisfactory, however should you wish to undertake further independent searches, local surveyors’ details can be found on the internet.

However the structural soundness of the property is not the only search that should be undertaken on a property. The most common searches undertaken are outlined below. The outcomes of these searches may go as far as changing your decision to purchase the property.

A chancel search looks at whether the property is in an area that is subject to old chancel laws. These allow the local church to reclaim amounts spent on the upkeep of the church from property owners in the local area. Although it is rare for the church to demand such sums, it is not unheard of. If you find that the property is within an area where this may happen, insurance can be taken out to cover this risk.

A drainage search may also be undertaken. This search uncovers whether the property is at risk from flooding and also considers drainage and sewer works around the area.

The environmental search considers the suitability of the ground and the local environment. This uncovers whether the land that the property is built on is at risk of contamination. It may be that the property has been built on land that was previously used for industry. This may potentially risk contamination of the land from released chemicals. Whether this is the position will be uncovered in this search.

A plan search provides information about the local area. This includes, as well as other information, distance from schools and crime rates. Although not essential to the conveyancing process, the information contained in this report should be of interest to any future resident.

Arguably the most important search is the local authority search. This search outlines the relationship between the property and the local authority. As well as outlining which local authority the property falls under, the search outlines the planning history of the property and applications for planning permission. It is important that the correct planning applications have been approved and your solicitor will make enquiries of the seller’s solicitor should anything be missing. It is important that you inform your solicitor if you believe any work has been done on the property so that they can check the appropriate authorisations have been achieved.

If you have any questions about conveyancing please contact our conveyancing partner Ruhel Alom on 020 7790 2000 or email him directly on ralom@adamslaw.co.uk

  ~ Richard Padley

For the employee the consequences of working illegal are obvious. The UKBA is likely to arrest the individual and take steps to remove them from the country.

For the employer, the Immigration, Asylum and Nationality Act 2006 introduced civil and criminal consequences for using illegal workers. Section 15 of the Act provides civil penalties for employing an illegal worker. The fine for employing an illegal migrant can be up to £10,000 per worker. In determining the level of fine the UKBA will consider what checks have been undertaken by the employer and whether warnings have previously been given.

Additionally, it is also a criminal offence to knowingly employ illegal workers under section 21 of the same Act. This offence will be used where the matter is more serious, such as where illegal workers are used for personal gain. Upon conviction an employer may face a custodial sentence, an unlimited fine, or both. 

An employer can avoid a civil penalty by undertaking the relevant checks on an employee’s eligibility to work before the commencement of their employment. You will be required to see original documents proving an entitlement to work. Additionally, if a person has a time limit on their stay in the UK you will also be required to carry out repeat checks on the employee(s) (at least yearly) to establish they have a continued right to work. 

The UKBA has provided extensive guidance on preventing illegal migrants from working. This can be found here.

If you have any concerns on this matter or have any questions about immigration, please contact Jill Gray on 020 7790 2000 or email her directly at jill@adamslaw.co.uk   

 ~ Richard Padley

• not causing a nuisance to your neighbours,
• not carry out any development work, or
• not to use the land for business or trade.

Before the use of planning regulations and legislation to restrict how property was used/maintained, restrictive covenants were the primary function of controlling land owners and developers. Even today, restrictive covenants are an important and effective way of managing land use.

Planning needs change over time, but a restrictive covenant can often impede such development. Fortunately, section 84 of the Law of Property Act 1925 allows for challenges to be made to restrictive covenants.

The nature of restrictive covenants means that their effect passes with the land, rather than being a private agreement between individual landowners. Consequently even if the land is sold, the restrictive covenant continues to be in force. Unfortunately sometimes the restrictive covenant becomes detrimental and prevents socially desirable developments.

Section 84 allows for the Lands Tribunal to modify or discharge a restrictive covenant. An order of this kind can be made in four circumstances:

1. Where the restrictive covenant becomes obsolete;
2. Where the continued enforcement of the covenant would be obstructive to some public or private use of the land, and that the covenant confers no practical benefit or is contrary to the public interest and any loss is adequately compensated financially;
3. With consent of all persons entitled to the benefit of the restrictive covenant;
4. The discharge or modification to the restrictive covenant would confer no injury on the person entitled to the benefit.

In coming to a decision on whether to modify or discharge a restrictive covenant the Lands Tribunal will consider not only the views of those set to burden from the covenant, but also the Local Authority development plan. This allows the tribunal to gain a view of the broad context and direction of local planning policy, and whether the modification or discharge of the restriction would be in line with this policy direction.

If you have any questions about restrictive covenants or their effect please contact Ruhel Alom on 020 7790 2000 or email him directly on ralom@adamslaw.co.uk

~ Richard Padley

The Limitation Act provides deadlines for when claims can be brought. The reason for this is to prevent claims being brought for matters that occurred many years ago. As well as providing fairness for parties on the end of a potential claim that occurred many years ago, it takes into account the fact that evidence may have deteriorated and, as a result, it may not be possible to adequately present a defence.

In the case of personal injury matters, the limitation period is 3 years. If a case is brought outside the three year period this does not amount to a defence, but instead is a matter of jurisdiction. A court has no jurisdiction to hear a claim that is brought outside of the time limitation period. However, for limitation to become an issue, it must be raised by the parties.

The point of contention is often the date at which the limitation period begins. Very often this will simply be the date of the accident (the ‘accrual of the cause of action’) that is the subject of the claim. However it can be more complicated than this, and a broad range of case law has developed around this subject. The limitation period begins when three things are present. These are:

1. The Claimant is aware that the potential for a claim exists, i.e. an accident has occurred; and
2. The Claimant sustains an injury. This may not be the same time as the accident occurred, as some injuries do not manifest until years later (such as mesothelioma); and
3. The Claimant is aware that the accident is attributable to the Respondent and their conduct.

When these factors are present the limitation period begins. The limitation period stops when the claim form is issued.

Personal Injury cases are somewhat unusual insofar as in PI matters, the court has discretion to disapply the limitation period under section 33 Limitation Act 1980 if proceedings are issued out of time. In deciding whether to disapply the limitation provisions, the court must consider all the circumstances of the case as well as a list of set factors such as at what point the defendant was notified of the claim and if that in itself has prejudiced the defendant’s ability to defend the claim, the length and reasons for the delay, the effect of the delay on any evidence and the conduct of the parties, among others.

If you have suffered an accident and want to take legal advice in respect of this, contact our litigation team on 020 7790 2000 or email Jonathan directly at jfinebaum@adamslaw.co.uk     

~ Richard Padley