RWPS Law

Agency Workers to Gain Equal Treatment (but not yet)

Nick Hanning — Sun, 07 Mar 2010 12:02:29 +0000

The Government has confirmed that legislation implementing EU Directive 2008/104/EC, usually referred to as the ‘Agency Workers Directive’, will not come into force in the UK until 1 October 2011 after a delay because the Government is ‘mindful of the need to avoid changing requirements on business until the economic recovery is more firmly established’ and considers that the delay will afford ‘recruiters and their clients time to prepare and plan’.
The effect of the Agency Workers Regulations will be to provide equal treatment for temporary agency workers, compared with permanent workers, in terms of basic working and employment conditions (including pay, holidays, working time, rest periods and maternity leave). In the UK, the current intention is that agency workers will acquire these rights once they have been in a given job for 12 weeks.

Other benefits that agency workers will gain from the first day of their assignment include:
information about vacancies so that they have the same opportunity as other workers to find permanent employment;
equal access to on-site facilities, such as child care and transport services; and
improved rights to protect the health and safety of new and expectant mothers, including the right to reasonable time off work to attend ante-natal appointments and adjustments to working conditions and working hours.

The Draft Agency Workers Regulations 2010 can be found on the BERR website.

Planning Loophole Upheld as Man Keeps House

Paul Reynolds — Sun, 07 Mar 2010 11:56:32 +0000

A man who requested his local council to give him a certificate of lawfulness after living in a property in breach of the existing planning permission for four years has seen his stratagem bear fruit in the Court of Appeal.
Alan Beesley obtained permission in 2002 to build an agricultural building on green belt land, but instead of using it for agricultural purposes, he turned it into a three-bedroom home. From the outside the property looks like a conventional barn, which is presumably why the local council failed to notice the breach of planning permission.
Lord Justice Mummery commented that the decision was “a surprising outcome which decent law abiding citizens will find incomprehensible” as a public authority that had been “deceived into granting planning permission by a dishonest planning application can be required by law to issue an official certificate to the culprit consolidating the fruit of the fraud.”

Family Asks Court to Remove Executor

Ian Campbell — Sun, 07 Mar 2010 11:53:22 +0000

It is not uncommon for the beneficiaries under the will to want to have a different executor from the one appointed in the will. A case now starting will determine if they have the right to do so.
It concerns a man from South London who is taking legal action to have the executor appointed under his late stepfather’s will removed. The executor, a firm of will-writers, has refused to step down and the Court will be asked to rule on whether the beneficiaries of an estate can act to remove an unpopular executor.
An executor can decline to act, but cannot normally be removed so this will be an interesting case and we will let you know as soon as we know the result.

Who Gets the Family Home?

David Williams — Sun, 07 Mar 2010 11:45:44 +0000

Family break-up is always complicated and when there is a property involved, things can get very complex indeed.
In principle, when a couple are cohabiting (not married or in a civil partnership) the property belongs as of right to whoever is shown on the deeds as the owner.
Where there are minor children, the court will put their interests first and will normally ensure that their accommodation needs are met until they reach the age of majority. The most common circumstance in which a specific arrangement is necessary to secure the accommodation needs of minor children is when the mother and children live in a property which is owned by the father. Such arrangements may well involve a settlement into trust with the trust capital (the property) reverting to the father when the youngest child reaches 18.
In some circumstances, the courts will conclude that there is a ‘constructive trust’, which arises as a result of the arrangements made by the couple. In such cases, it is necessary for the person claiming an interest in the property which is not the same as a legal interest to demonstrate this.
The courts in such cases will consider the intentions of the parties involved. When one party claims a share in the property, the court will first ask whether there was the intention to share the beneficial interest in the property. If the answer to that question is ‘yes’, then the court will decide, on the basis of the evidence, what the nature and proportions of the couple’s shares should be. Note that it must also be shown that the claimant relied on the common intention to own the property jointly to his or her detriment.
Factors which will help substantiate a claim to a beneficial interest in a property in these circumstances will include:

making a contribution to the costs of purchase;
making a contribution to the mortgage, rates etc.;
making a non-financial contribution (such as working to renovate, improve or maintain the property); and
making an indirect financial contribution (e.g. paying other household bills so that the other partner can pay the mortgage etc.).

Farm Sold to Pay for Chancel Repairs

Paul Reynolds — Sun, 07 Mar 2010 11:44:41 +0000

After fighting their case all the way to the House of Lords and losing, Powys couple Andrew and Gail Wallbank have been forced to sell their farm to pay for repairs to the chancel of their local church.
When the couple first acquired the property, they were only vaguely aware that it was rectorial property, which meant that it came with a legal obligation, under the Chancel Repairs Act 1932, to maintain the local church at Aston Cantlow. They thought this a mere technicality until they were presented with a bill for more than £200,000 for repairs to the 13th century church. They undertook a series of legal battles contesting the Churchs demands.
Having lost their case, the farm was sold at auction for £850,000, but only after a payment of £37,000 had been made to the Church authorities in order to remove the legal obligation to maintain the church from future owners. Unless that had been done, the property was virtually unsaleable. Mr Wallbank had inherited the farm from his father and had been unaware of the extent of the obligation attaching to the property until the demand was made by the local Diocese.

Unclear Drafting Leads to Dispute Over Right of Way

Paul Reynolds — Sun, 07 Mar 2010 11:01:38 +0000

A recent case in the Court of Appeal illustrates how disputes can arise between neighbours as a result of ambiguous drafting of legal documents. In this case, the dispute concerned the owners of neighbouring properties that had originally been one parcel of land. When the owner died, the property was divided according to the terms of her will. The consents which conveyed the land to the beneficiaries were unclear, however.

Mr and Mrs Bee inherited a cottage adjacent to agricultural land. Mr Thompson, who was a relative of theirs, had acquired the property behind the Bee’s home from his father.

The two properties were joined by a track, which led from the main street, ran alongside the Bee’s cottage and passed through their garden. The property owned by Mr Thompson contained agricultural buildings, which were in poor condition. Mr Thompson successfully applied for planning permission to build three residential properties on part of his property. Mr and Mrs Bee objected on two grounds. These were that the right of way could only be used for agricultural purposes and the number of houses proposed was excessive.

In the lower court, the judge found that the right of way was limited to agricultural use, as this was what had been intended at the time the original owner’s will was drafted. He also found that the use of the right of way in order to access three residential properties would be excessive, but did not stipulate the number of residential properties he considered would be fair.

The Court of Appeal overturned the decision. It ruled that the will and the assents should be viewed as a single transaction, so as to give full effect to the intentions of the woman who made the will. In its view, the judge had made an incorrect interpretation in limiting use of the track to agricultural purposes because it prevented Mr Thompson’s property from being used for any other purpose in the future. However, using the right of way for access to three residential properties was excessive for two reasons. Firstly, the track ran through Mr and Mrs Bee’s back garden and the increased use would interfere with their enjoyment of their own land. Secondly, it would also interfere with their own use of the right of way.

As Mr Thompson had neither put forward a case for fewer than three houses in the lower court nor advanced an argument regarding this possibility at the appeal hearing, the Court of Appeal hoped that an agreement on this issue could be reached between the parties to prevent them having to incur further legal costs.

Massive Litigation Shake-Up Proposed

Joanna Gatehouse — Sun, 07 Mar 2010 11:00:30 +0000

Lord Justice Jackson’s eagerly awaited final report outlining proposed changes to the British system of civil litigation was published in January and promises a massive shake- up of the current system.

Among the changes proposed are:

The end of the ‘loser pays’ principle in British law. The costs of successful firms are very often contested and the present situation in which an argument abut the law is routinely followed by an argument over costs is clearly not a happy one.
The end of ‘no win, no fee’ agreements by making lawyers’ success fees and the costs of ‘after the event’ insurance premiums paid irrecoverable from the losing defendant. No win, no fee was widely regarded as a panacea when introduced, but in reality has been proved problematic.
Allowing lawyers to charge contingency fees, by which they receive a percentage of the judgment sum and take the risk of not being paid if the case is not won. In effect, this will replace no win no fee arrangements and should act as a brake on pursuing weak cases.

The current pre-action protocols are to be retained and judges are to be encouraged to become more involved with cases to assist in controlling costs.