Lord Justice Longmore said it was a ‘great pity’ that appliance supplier Indesit had not pursued the option of Mediation as advised by Lord Justice Toulson in a Personal Injury case. Indesit had successfully defended a Claim by an Employee who was subsequently given permission to appeal.

The Employee, who had aggravated a back injury while lifting washing machine parts for a stock-take in 2007, sued his Employer for personal injury, alleging a breach of Manual Handling Regulations. It was agreed that Damages (if the Claim succeeded) would not exceed £60,000 because of the nature of the injury.

It was then that the Appeal Judge encouraged Indesit to resolve the ongoing Proceedings by Mediation. The company rejected that advice on the grounds that Legal Costs had already exceeded the likely amount of the claim. On May 17^th Lord Justice Longmore said this was an ‘inadequate response’ that will ‘inevitably result in a substantial increase in costs’.

He added: ‘Indesit’s reaction is all too frequent and the Court has, since April of this year, decided that any claim for less than £100,000 will be the subject of compulsory Mediation.  It is devoutly to be hoped that such Mediation will mean that these comparatively small claims will not have to be adjudicated by this court so frequently in future.’

Martin Maginn Head of the Personal Injury Team at Brown Turner Ross Solicitors commented

“Mediation as a means of resolving disputes as varied as Matrimonial, Personal Injury or Commercial Litigation has for some time been championed by both the Government and Judges as a means of reducing the backlog of Cases facing Courts & Tribunals and reducing Costs.

These comments now put Mediation on a different level – far removed from the option most Defendants in Personal Injury Claims choose to ignore. It is interesting to note that for the Court of Appeal, Claims with a value of up to £100,000 are “small” – the reality is that Appeal Court Judges want to focus on litigation of the greatest complexity with the amount at stake being commensurate. Personal Injury Claims involving loss of earnings can, however, easily reach these levels. There is some merit in the points made by Lord Justice Longmore and Litigation Lawyers & their Clients will now have to think carefully before deciding to knock on the door of the Court of Appeal.”

The Queen said that economic growth was a key focus for reform. As part of this, it was announced that: “Legislation will be introduced to reduce burdens on business by repealing unnecessary legislation.”  The commitment to strip away rafts of the Regulatory framework built up under the previous Labour Government has been a recurring theme of the Coalition Government, as has tipping the balance in favour of the small business owner in terms of Tribunal Claims.

The Enterprise and Regulatory Reform Bill

This includes a number of measures that the Government says will encourage business growth by giving Employers more confidence to take on new Employees even if the business growth they are planning is high risk or speculative. One of these proposals is an overhaul of the Employment Tribunal process, especially involving Unfair Dismissal Claims. The Bill will contain provisions as, predicted by us in previous Blog Posts, to facilitate the earlier resolution of disputes by means of a “more efficient and streamlined Tribunal system for all users”.

This will be achieved by encouraging “early conciliation,” where all Applicants would lodge details of their Claim with ACAS, giving Parties the opportunity to engage in Conciliation and somewhat curiously renaming Compromise Agreements as “Settlements”.

The Bill also includes a commitment to “simplifying the regulatory system and giving confidence to business that they will not be held back by outdated and unnecessary legislation”.

The Children and Families Bill

This was also announced in the Queen’s Speech – one of the shortest for a while as it lasted only 15 minutes. This includes reforms that will have implications for HR. Parents will be allowed to swap their parental leave following the birth of a child, and Mothers will be allowed to return to work earlier, following Maternity Leave, by transferring remaining time off to their Partners.

Tony Marriott Head of Employment Law at Brown Turner Ross commented

“The changes to the Employment Tribunal process come as no surprise as these were expected to have been brought in even earlier than currently envisaged. The likelihood is that once an Application has been lodged with a Tribunal, there will be a mandatory referral to ACAS while the Proceedings are put on hold. If this helps to weed out Claims with little or no merit and, see some low value Claims settled as a result of this Conciliation process, then Employers could make significant savings on their Legal Fees. ACAS must of course have the resources to deal with the anticipated volume of referrals they will receive under this process because justice delayed is often justice denied. It is in the interests of both Parties that Applications are either resolved speedily by the involvement of ACAS or, proceed to a Hearing without any avoidable delay.

The proposal to let Mothers exchange Maternity Leave with their Partners may suit many working Mothers but, I have no doubt that in many cases this change could cause disruption for small businesses and be seen as unwelcome. Time will tell how it works in practice and, from a family point of view it certainly makes sense.”

The winner of the Award will be determined by the number of votes we receive from you so please cast your vote in our favour! You can do so by clicking on the link http://www.downtownliverpool.com/

The Awards will be presented on July 26th in the magnificent Sefton Park Palm House at a Dinner which is a sell out every year attracting key decision makers and business leaders from across the region.

David Bushell – Managing Director of Brown Turner Ross Ltd commented:

“We are absolutely delighted to have been nominated for this prestigious Award. Although the Firm can trace its history back many years our emphasis has always been on looking to the future and ensuring that we provide a cutting edge service to our individual & business clients. In recent years we have invested in Digital Marketing and in building new long term commercial relationships from Southport through Liverpool to Wirral. There are many challenges facing all businesses and the legal profession is no different from any other business, especially now that the provision of legal services has been opened up to organisations other than conventional Law Firms. We are ready for the challenge and confident in the belief that the personal & professional service we provide will continue to ensure that our Clients retain us for years to come as their Law Firm of choice. We hope they all vote for us!”

As a result of Section 184 of The Localism Act 2011 a Landlord must protect the Tenant’s Deposit within 30 days by either

• insuring it or
• paying it into a recognised Deposit Scheme – The Deposit Protection Scheme (“DPS”) currently provide the only Scheme available for this purpose

Any Deposits not held in Schemes must be paid into them or insured through a recognised Scheme by May 6^th 2012. Doing so later, or after issue of Proceedings by either Party, will not be sufficient to remedy the Landlord’s failure and gives rise to two major issues for the Landlord:

• a Penalty of between one and three times the value of the Deposit can be awarded
• the Landlord’s ability to seek Possession by serving a Section 21 Notice is limited

Section 21 Notice

This brings the Tenancy to an end in the form of a Notice to Quit – it is a specific “no fault” Notice where possession MUST be given on the expiration of a fixed Term. Landlords who do not protect Deposits will not be able to rely on this streamlined procedure for obtaining a Possession Order.

Agents and Landlords must ensure that the Deposit has been protected and that the Tenant has been provided with
“prescribed information” which is the identity of the organisation which holds the Deposit within 30 days of receipt of the Deposit before a Section 21 Notice can be served.

Where the Deposit has not been registered or insured and the prescribed information not been sent to the Tenant within 30 days, the Landlord or Agent has only one viable option if he seeks vacant possession and there are no “fault based” grounds – he has to hand the Deposit back to the Tenant and then serve the Section 21 Notice.

If a Landlord or Agent has not protected the Deposit within the specified 30 days and returns the Deposit to the Tenant so that a Section 21 Notice can be served, any deductions must be agreed by the Tenant. This should be confirmed in writing.

Mike Kirkham, Consultant in the Brown Turner Ross Property Department commented:

“Whilst the purpose of the legislation is to protect Tenants from Commercial Landlords becoming insolvent the practical
effect will also be felt by the Landlord who has perhaps one or two properties which are often let long term without Agents being involved.

Every Landlord ought to review their portfolio to ensure compliance with these changes - a short period of time reviewing your current property portfolio will save both time and money in the future.  Prevention is always better than cure!”

Research carried out by the AA shows that a single conviction will be sufficient to either see you blacklisted or hit with a massive hike in your Premium – possibly as much as 20%. The argument advanced by Insurers is that no-one uses a mobile phone by accident while driving whereas exceeding the speed limit can be done inadvertently. A low level speeding offence carries 3 Penalty Points, as does a conviction for using a mobile phone while driving. The fear is that while using a phone a driver does not have both hands free for the steering wheel or changing gear – an argument that could be applied to a variety of other in car activities such as eating, smoking, operating an in-car music system etc.

The AA contacted Insurers, seeking cover for a 40 year old man using a Ford Mondeo – 3 Companies refused point blank to offer any cover at all if he had a conviction for using a phone while driving. For a single low level speeding conviction Premiums were increased by 10% – an increase way below what you can expect if you have a conviction for using your phone!

More than 170,000 motorists a year are caught using their phones while driving in England & Wales.

Frank  Rogers, Head of the Brown Turner Ross Motoring Prosecution Team commented: “Magistrates are taking a very dim view of drivers who get convicted of more than one mobile phone offence but they can still only give them 3 Penalty Points. However, if they are facing a disqualification for “totting up” and have more than one such conviction then persuading them not to disqualify a client because of “exceptional hardship” can be more difficult. Our recent experience with Clients shows that Police are now stopping and reporting drivers when they have their phone on their lap if they see them looking down at it when there is no proof they have been using it. Insurers have always raised Premiums based on convictions and you have to disclose these. The obvious answer Is to go hands free or pay what is fast becoming a very high price!”

Andy Thomson, was fined £60.00 and had 3 Penalty Points endorsed on his Licence this week having been caught on camera driving at 84mph on the A1 in Scotland in October 2011.

He was driving his Lifeline Private Ambulance to St James’s Hospital in Leeds and arrived just in time for the life saving operation involving a young child. He described his prosecution as an “absolute disgrace” adding that “somebody’s life depends on this organ and for me to be delayed in any way and for the hospital to have to turn around and say “sorry, you’re too late” would be awful.”

Frank Rogers, Head of the Motoring Prosecution Team at Brown Turner Ross commented

“Special Reasons for not endorsing his Licence with any Penalty Points could have been found if the Magistrates were satisfied that he exceeded the speed limit by reason of an emergency. Either that argument was not raised in this case or, for some reason the Magistrates were not convinced that he was responding to an emergency – this seems strange on the facts as briefly reported by the Press.

However, the major anomaly in the Law here is that if he had been driving an NHS Ambulance he would not have been subject to the speed limit. Vehicles being used for Fire & Rescue Authority, Ambulance or Police purposes are not subject to speed limits if observance of the limit would hamper the driver in carrying out his duties at that specific time. This does not give these Emergency Service drivers a blank cheque to ignore speed limits – they have to be able to demonstrate that at the time in question observing the limit would have seriously interfered with the performance of their duties.

It is high time that this anachronistic distinction between Private & NHS Ambulances was removed. This man has been harshly treated by the Law and the general public will understandably have some considerable sympathy with him.”

John got involved in a warm up with all the Players before choosing a Team that he then played in. The John Bishop Team beat Forum Housing Association 3–0 but John was frustrated by the  outstanding man to man marking job done on him by Dave from Forum Housing’s Beacon Project in Rock Ferry.

The Brown Turner Ross sponsored Team had a great day enjoying all the banter and the non stop humour from John Bishop who deserves much praise for giving up so much of his time.

Forum Housing Association has been a specialist provider of supported accommodation to young  people aged 16-25 for over 40 years. During the last 4 decades they have increased their accommodation projects in Wirral, Sefton, and Ellesmere Port and Neston. Alongside providing housing for young people they work with young people supporting their varied and diverse needs in order to prepare them for successful, independent living.

The Association is conscious of addressing local needs and fulfilling its obligations fully within Local, Regional and National Strategies They aim to invest in young people to enable them to influence and add value to those same Local, Regional and National Strategies, Initiatives and Programmes.

They are currently working each week with over 350 young people. More details about the work they do can be found at www.forumhousing.co.uk

Frank Rogers, Head of Business Development at Brown Turner Ross  commented

“Brown Turner Ross was delighted to assist such an outstanding Charity as Forum Housing
Association with a kit for their Football Team. The work done by Forum Housing from Wirral to Southport fits perfectly with our Office network and our own values. We are delighted that someone as well known as John Bishop took time to recognise the outstanding work they do and to specifically support the Homeless Football League in which they play.”

Chelmsford Magistrates issued an Arrest Warrant on April 23^rd for Steven Pienaar, Everton’s goal hero from Sunday’s 4-4 draw with Manchester United.

Pienaar was due to have appeared in Court to answer a Summons alleging that he had not given details of who was driving his Aston Martin DBS when it was caught speeding twice on the same road in the space of 11 days.

If he is arrested he will then be bailed to attend Court at a later date. The Charge of failing to comply with two Notices of Intended Prosecution was proved in his absence.

His Aston Martin was caught being driven by a person so far not identified by him doing 43mph and 38mph in a 30mph zone in Chigwell, Essex, on October 10th and 21st 2011 when he was playing for Spurs, the Magistrates were told.

The Sentencing Guidelines used by Magistrates suggest that

• for driving at 38mph he would have 3 Points endorsed on his Licence and
• for driving at 43mph anything between 4-6 Points or even, be disqualified from driving for anything between 7-28 days.

The two separate Offences of failing, as the Registered Keeper of the vehicle, to identify the driver each carry 6 Points which would see him reach a total of 12 (subject to him currently having no Points at all now) and he would then be liable for a 6 month “totting up” disqualification. This could only be avoided if Magistrates were persuaded that he would suffer “exceptional hardship” if he was disqualified from driving for any period at all.

Pienaar was disqualified from driving for 12months in March 2010 after being caught drink-driving.

Frank Rogers – Head of the Brown Turner Ross Motoring Prosecution Team commented

Most Police Forces send a Notice of Intended Prosecution to the Registered Keeper of a vehicle twice before a Summons is issued. Where a genuine error or oversight can be shown to have arisen the Prosecution will normally withdraw the Driver Identity Charge substituting the main Charge which here, was Speeding.

What may have happened here is that Pienaar, given he only moved to Everton on Loan

•  may not have had his Post re-directed or
• may not have notified DVLA of his new address –something you should never overlook

If the Case was proved in his absence on the first Hearing Date this seems harsh as the Magistrates knew he was a Professional Footballer and their Legal Adviser was asked to check his date of birth on Google so someone should really have picked up on the fact that as he was then playing for Everton, he might not be commuting from his address in Essex. In those circumstances it would not have been unreasonable to have adjourned the Case and sent Notice of the new Hearing Date to him c/o Goodison Park. If I was consulted by him I would certainly apply to set these convictions aside.

Further information in relation to these issues can be found on our website at http://bit.ly/I9us38

Postscript

As reported on May 11th Steven Pienaar successfully applied for the original convictions to be set aside. He was then convicted of the two substantive Speeding offences with 3 & 4 Points respectively being endorsed on his Licence. This was the course of action and likely outcome suggested by Frank Rogers in our original Blog on this issue.

Contact Frank through our website for Free initial advice on all Motoring Prosecutions across England & Wales.

The Department of Business - www.bis.gov.uk  – is continuing the fundamental review of Employment Law started shortly after the Coalition Government was formed. They are now examining current levels of understanding of the dismissal process in the workplace, and want to hear from Employees, Employers and all other interested parties.

This specific review will cover:

• awareness, understanding and use of the ACAS Code of Practice on Discipline and Grievance

• the idea of compensated no-fault dismissal for micro-businesses with less than 10 Employees

Business Secretary Vince Cable told The Department for Business:

“The UK already has one of the world’s most flexible, adaptable labour markets, making it one of our strengths and it stands up very well in international comparisons. However, we recognise that there is room for improvement which balances the needs of business while ensuring that the necessary employment protections are upheld.

“We are already implementing a radical package of reforms to the employment tribunal system and increasing the qualifying period for unfair dismissal from one to two years. These are all measures that will help improve the way businesses hire, manage and end a working relationship.

“But we also recognise that not all jobs work out for both parties – the staff member doesn’t quite fit or simply the elationship has irretrievably broken down. And for micros in particular, who often don’t have legal or HR teams, the process to let a staff member go can be a daunting and complicated process.

“We want to give businesses the confidence to hire new staff and make sure when a dismissal needs to be made, they aren’t tied up in red tape. This is an effort to see how extensive the problem is and shed some light on the desire for a change to the rules.”

Employment Law Review

The Government has also published its annual update on the Employment Law Review.

This includes an update to the Employer’s Charter, which now includes guidance on Sickness Absence and Recruitment.

The Charter is intended by the Government to counter the misconception that Employment Law is all one-way – in favour of the Employee. It aims to give greater clarity to Managers on what they can already do to deal with issues in the workplaces, on subjects such as performance, sick leave, maternity leave, requests for flexible working and redundancy.

Tony Marriott, Head of Employment Law at Brown Turner Ross commented

“We normally expect to see changes to Employment Law in April and October each year but since the Coalition Government was formed there has been one of the most far reaching Reviews of Employment Law. Changes are normally fairly minor, concentrating on levels of Awards Tribunals can make and calculations of weekly wages etc. This Review has begun to change fundamental principles from Unfair Dismissal Qualifying periods to how Tribunal Proceedings are started and managed prior to any Hearing taking place.

Generally speaking Employer’s organisations will welcome these changes. Liverpool has hosted the Global Entrepreneurship Congress and Entrepreneurs will also be pleased that the risk for them of taking on new Employees and possibly having to lose them if a new venture does not succeed will now be less costly for them. Will these changes encourage business start ups and see real business growth? Time will tell.”

There has been a great deal of consultation on Employment Law during the course of this Parliament and these are the first changes to be implemented – expect more to follow!

• the maximum weekly income for calculating the Basic Award in an Unfair Dismissal Claim and a Redundancy Payment has increased to £430 per week
• as a result the maximum Statutory Redundancy Payment has risen to £12,900
• in cases of Unfair Dismissal the maximum Compensatory Award has been increased to £72,300
• the amount that Tribunals can order Claimants with a weak case to pay by way of a Deposit has increased from £500 to £1,000.

Qualifying Period for Unfair Dismissal increases to Two Years

• as from April 6th 2012 the Qualifying Period for taking a claim for Unfair Dismissal will increase from one year to two
• Unfair Dismissal claims with no other element will be dealt with by an Employment Judge sitting alone
• Cases involving Discrimination and other non Unfair Dismissal claims will still be heard by a Panel of three Tribunal Members

Tony Marriott Head of Employment Law at Brown Turner Ross commented

“While the increases in some of the Awards that can be made are always welcome for Employees the other changes will undoubtedly receive a mixed response and acclaim only from Employers. There has been an increasing call from the business community – CBI, FSB and other organisations – for the Deposit payable by Claimants to be increased and for the Unfair Dismissal Qualifying period to be doubled as has now been done. It remains tro be seen whether other proposals that would have seen ACAS have a greater involvement in Cases at their outset will be acted on. What is not in doubt is that the perceived increase in Unfair Dismissal Claims and their impact, especially on small businesses, has provoked this response. As can be seen elsewhere in earlier Blogs the statistics paint a different picture.”