Kent Solicitors

The Courts today actively encourage parties to mediate rather than litigate. So much so, that where there is a real prospect of success, refusal to mediate can lead to severe cost consequences for the refusing party.

The process of mediation often brings a more conciliatory attitude between parties who were previously unable to agree even the time of day.

Before commencing proceedings, it is therefore worthwhile exploring the possibility of mediation with your solicitor.

Labels: mediation litigation

The increased availability of after-the-event insurance and the changes of Companies Act 2006 are likely to increase the amount of litigation brought by shareholders against companies and their management/directors.

Companies might like to consider amending Articles of Association to require that all shareholder disputes to go to compulsory arbitration. This might avoid costly and embarrassing litigation.

Labels: shareholders arbitration

A step-parent cannot apply for a free-standing parental responsibility order. However, the court can make a residence order, so that the child lives with that step-parent, effectively conferring parental responsibility.

Labels: divorce children shared residence

M(ale) and F(emale) bought a home in joint names. M paid the deposit, the joint mortgage and the bills. No declaration of trust was completed.

When their 23+ year relationship came to an end, M argued that the property had only been put in joint names as he wanted it to pass to F on his death.

The Court of Appeal held that in the absence of an express agreement, one must presume joint equitable ownership and therefore it was for M to rebut that presumption

He did not succeed because:

M never told F that M only wanted F to own the house if he predeceased her. There was therefore no shared intention

Contribution to other household expenses permitted an inference that the parties treated their incomes and assets ‘as one pool from which household expenses will be paid’

Labels: cohabitees joint ownership dispute

You may decide that you want to register your Trade Mark

Your TM may be quite well known in your locality and you may be thinking of franchising, but now that the world is shrinking at an alarming pace, to your horror, you find that someone, on the other side of the country, has already registered something identical or similar

TMA Section 5 says that a Trade Mark will not be registered if:

It is identical to an earlier trade mark and the goods or services for which registration is sought are identical to the goods or services for which the earlier trade mark is protected.

It is identical with or similar to the earlier trade mark and the application for registration is in connection with identical or similar goods and services for which the earlier trade mark is protected, and there exists a likelihood of confusion on the part of the public which includes the likelihood of association with the earlier trade mark.

It is identical with or similar to an earlier trade mark and the earlier mark has a reputation and the use of the later mark without due cause would take unfair advantage of, or be detrimental to the distinctive character or the repute of the earlier mark

Ok, so the first one is simple, they are either identical, or they are not

The next two involve require evidence as to the likelihood of confusion or the earlier reputation - and so if you proceed, you may get dragged into an argument with the Registry and litigation with the registered owner

You will spend much time effort and money gathering your evidence, and so will he

Until you see his evidence and compare it with yours, you will not be able to gauge the success, or otherwise, of the outcome. Even then, it might a fine call and you will need to have the question expensively decided for you

The moral is: get your TM registered ASAP

If you have already invested time effort and money in promoting your TM, you need to decide whether to spend more (readying yourself for a fight) or back another horse.


Michael Breeze Mobile: 07 900 195.195 email: mdb@kaslers.co.uk

Labels: Trade Marks

The calculation of child maintenance is changing. It will be based on gross (not net) weekly income

For absent parents earning up to 800 pound p.w [x 52 weeks = 41,600] the percentage payable to the resident parent is 12% for one child, 16% for 2 children and 19% for 3 or more children

To cover higher rate tax-payers, the amount of gross income between 800 pound p.w [x 52 weeks = 41,600 p.a. ] and 3,000 pound p.w [x 52 weeks = 156,000 p.a.] (the new top rate of gross income) child maintenance is calculated at 9%, 12% and 15% for 1, 2 and 3+ children respectively

Labels: child maintenance

A right of way is often the subject of dispute where it was granted years ago and the use, to which it is now being put, is alleged to be different / excessive

If there has been a radical change in the character / identity of the right of way, then clearly an injunction might be appropriate e.g. the grant of way was granted to give access to an isolated farm but is used by lorries accessing the semi - industrial buildings built on the farm land

If however, there is an intensification of use of the right of way, an injunction might only lie if there is a substantial increase in the burden on the land over which the right of way goes e.g. it might make a difference whether there are 3 or 30 houses built on the farm land and accessing the right of way.

Labels: Land right of way excessive use

More and more employers are knee jerking into firing employees without observing proper procedures. In more and more cases in the Employment Tribunal, there is an element of discrimination alleged, be it sex, race, religion, age, disability etc.

The burden of proof is on the employer to show why he made the decision to sack that particular individual.

Often, there is no documentation and find it hard to prove the thought processes in thus making it very difficult for the employer to succeed.

Call Michael Breeze on 07900 195 195 if you, an employer, are having to make changes or if you, an employee, feel that you have been unfairly treated.

Labels: employment credit crunch

The Advocate General has said that UK Age Discrimination Regulations are not incompatible with the Equal Treatment Framework Directive, provided that they are justified within national law. It is likely that the European Court of Justice will follow his opinion as it usually does.

The UK Government must now prove to the High Court that its social and employment policies are important enough to justify retiring people at 65.

Meanwhile, employers should follow the retirement procedure carefully.

Labels: Employment Retirement

The Court has to ask itself 2 things

First, looked at objectively, does the will fail to make 'reasonable' provision for the claimants maintenance

Secondly, if so, to what extent, if at all, should the court exercise its discretionary powers under the Act?

Labels: Inheritance

Often, the court will order that a child be with one parent or the other. It will make its decision in what it perceives to be the best interests of the child.

However, a shared residence order may be regarded as appropriate to emphasise to both parents the equality of their position and responsibilities.

Labels: divorce children shared residence

If you have had a County Court Judgment (CCJ) entered against you without your knowledge and you have a “runnable” defence, apply as soon as possible to get the judgement set aside

If you have had a CCJ entered against you but you do not have a 'runnable' defence, pay the judgment as soon as possible to avoid getting it listed as an unpaid judgement

Talk to Experian and Equifax to see if you can get the CCJ removed from your credit record

Even where you have a CCJ on your credit record , this does not necessarily mean that you cannot get finance - it all depends on the amount, how long ago and the circumstances generally

A mortgage broker friend of mine (I can put you in touch) tells me that these are the guidelines issued by one financial institution recently, although be aware that they are changing all the time

No doubt, there are other lenders out there who will lend in more difficult circumstances, but at a price

CCJs

The Lender may ignore Credit reference agency data in the following circumstances

Where there is a maximum of 1 satisfied CCJ/default for up to 250 pounds in the last 3 years and / or
3 outstanding defaults of less than 50 pounds each in the last 3 years

Any CCJ/Default regardless of the amount that was satisfied more than 3 years ago will be ignored.

Arrears 1 month in the last 12 months and/or 3 months in the last 3 years. The Lender requires evidence that the default has been satisfied.

Bankruptcy

Cases where there is evidence that any applicant has been made bankrupt or has been the subject of an IVA are outside of the lenders Standard Policy, however in certain circumstance they will assess them on their individual merits subject to the below

Discharge must have been more than 4 years ago

Discharge must have been earned through repayment

Evidence of discharge must be provided

Any previous or current mortgage or loan must have been serviced satisfactorily

No element of criminal bankruptcy

An agreement in principle must be obtained prior to the applicant being submitted. Further information may be requested

Arrears greater than 1 month in the last 12 months and/or 3 months arrears in the last 3 years are not acceptable.

Repossessions

Where a mortgage property has previously been repossessed the case will be declined.

The Lender will judge customers with previous or existing adverse credit in a flexible manner and every case will be judged on its individual merits, along with the customer's ability to keep up repayments on the mortgage, taking into account his/her existing liabilities.

The Lender will consider cases of financial difficulty and mortgage arrears sympathetically.

The Lender follows the general principles of the Council of Mortgage Lenders' Statement of Practice on Handling Arrears and Possessions, including:

With your co-operation, developing a plan with you for dealing with your financial difficulties and clearing the arrears, consistent with both your interests and the Lender.

Possession of your property will be sought only as a last resort when attempts to reach alternative arrangements with you have been unsuccessful.

Labels: credit CCJ bankruptcy

Often, the court will order that a child be with one parent or the other. It will make its decision in what it perceives to be the best interests of the child

Where the child actually spends time equally with each parent, a shared residence order may be regarded as appropriate to provide legal confirmation of the factual reality of a childs life.

Labels: divorce children shared residence

If you are thinking of selling or renting your property, these Regulations state that you must provide the prospective buyer or tenant, an Energy Performance Certificate (EPC), which will generally be valid for 10 years.

Labels: Energy performance certificates

Crazy as it may seem, you can buy a house near to a cricket pitch/racetrack/airfield and then complain in nuisance about its interference with your enjoyment of your property

Labels: nuisance

Crazy as it may seem, you can buy a house near to a cricket pitch, racetrack, airfield and then complain in nuisance about its interference with your enjoyment of your property

Labels: property nuisance interference

In the current economic climate, many financial institutions, including banks in London Docklands and Canary Wharf, are laying off staff.

An employer dare not just agree a compensation package with a leaving employee. The employee may pocket the money and still sue the employer for any one or more of the many possible employment claims - unfair dismissal, wrongful dismissal, unfair selection for redundancy, discrimination on the grounds of race, sex, sexual orientation, religion, age and so on.

The only thing an employer can do to prevent this is by a properly drawn up compromise agreement signed off by the employee and an independent solicitor. Employers usually foot the bill of the employees solicitor.


Call Michael Breeze 07 900 195 195 www.docklandssolicitor.co.uk for advice and if appropriate, to get your compromise agreement signed off by an independent solicitor.

Labels: financial compensaton compromise agreements

As an employer, make sure that your compromise agreement covers the possibility that you discover, after signing the agreement but before payment to the employee, that he has been up to no good

Labels: compromise agreement