Mediation

Mediators in Hungerford Berkshire, mediation

Why consider mediation? At Dickins Hopgood Chidley we understand that becoming involved in a dispute, whether it be with a business, customer, or between individuals, can be stressful, time consuming and expensive.

So when we look at how best to resolve your dispute, we look not only at Court proceedings, but also at methods of Alternative Dispute Resolution (ADR).

There are many varieties that are suitable for different types of dispute, but this fact sheet considers Mediation.

What is Mediation?

Mediation is a voluntary process whereby the parties agree to appoint an independent third party, the mediator, whose role is to assist the parties in coming to a mutually agreed resolution to a dispute. The mediator is not a judge; they will not decide the case or come down on one party’s side. Instead they discuss the parties’ positions on the case and settlement offers and discuss risks of the case and other factors that a Court would consider, to help the parties narrow the issues and eventually, all being well, come to a negotiated position.

Mediation is confidential and without prejudice, which means that nothing said at the mediation can later be used in any court proceedings. This gives the parties the freedom to say what they like and come to any agreement they wish, which a Court may not be able to award.

Proceedings do not need to have been issued for a mediation to be attempted between the parties to a dispute;

indeed the trend is moving towards early mediation to avoid the costs of issuing Court proceedings at all.

How does Mediation work?

The parties, either together or at the suggestion of one, will agree to attend mediation. This will not be ordered by the Court, as Mediation is a voluntary process, but the Court does have an expectation of the parties to attempt to settle the dispute at all stages, and can impose cost sanctions on a party that unreasonably refuses to mediate. Once the parties have agreed to attend mediation, they will propose mediators and agree which one is to be appointed. Some mediators specialise in certain areas and it is important that a mediator is appointed who has the relevant knowledge of the area of law the dispute covers. Sometimes a party wants ‘their’ mediator to be appointed, but in reality, as the mediator is independent, it makes little difference which party nominates him or her.

Once the mediator has been appointed, the parties will agree a bundle of documents, known as the mediation bundle, which the mediator will review prior to the mediation. The parties may, and the mediator may require them to, exchange a position statement, which is a document that sets out their position on the dispute and what they wish to achieve at the mediation. The position statement may even set out thoughts on offers they would make. A ‘for the mediator’s eyes only’ statement may also be produced, which would only be disclosed to the other party with the consent of the other.

On the day of the mediation, it may begin with a joint session, where all parties sit in one room and the mediator chairs a discussion of the issues of the case. This is not a requirement and it may be that the parties do not meet through the entirety of the mediation. The parties will then break out to their own room and the mediator will shuttle between them, initially discussing the dispute generally to get an understanding of the parties’ position, perhaps facilitating an exchange of legal arguments before building up to the exchange of offers and counter offers until, hopefully, a settlement is reached.

Mediation is a voluntary process and one party may stop participating at any time. Equally, mediations can be quite long, with discussions going on into late evening. Once an agreement has been reached, it is not binding until it has been recorded in writing and signed by all parties. This is usually undertaken by the legal advisers with assistance from the mediator.

What does Mediation cost?

The fees of a mediator are variable and are sometimes based on the value of the dispute being mediated. Typically, a contractual dispute mediator would charge a fee in the region of £800- £1,500 per party. Additional costs on top may be travel, and additional charges if the mediation runs over a certain time of the day.

On top of the mediator’s fees are legal fees, which also vary depending on the complexity of the dispute being mediated, and whether there is a requirement for barrister attendance, which is sometimes beneficial in complex disputes. If you would like more information regarding mediation or any other method of ADR, please contact Robert Salame to arrange a consultation: 01488 683555 or rsalame@dhcsolicitors.co.uk.

Unfair Dismissal, Wrongful Dismissal and Discrimination

Dismissal – Key Issues to Consider

Employers must take great care to act fairly and lawfully when dismissing employees to reduce the risk of a claim being made at the Employment Tribunal.

The five potentially fair reasons for dismissal:

Conduct. This could be a single act of misconduct or a series of less serious acts

Capability or qualifications. This includes poor performance, ill-health and formal qualifications

Redundancy. This includes workplace closure, business closure, or reduced need for employees

Illegality. Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)

‘Some other substantial reason’. This is a catch-all category of other potentially fair reasons.

If the employer does not have one of these reasons then the dismissal will be unfair even if a fair procedure is adopted. Once the employer has established one of these reasons it must act reasonably, and be seen to do so, before dismissing an employee.

The employer must follow a fair procedure.

Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss. This means that it has carry out a proper investigation, consider alternative penalties, act consistently (by reference to how it has dealt with similar incidents) and generally act reasonably and fairly.

The employer must act reasonably in treating the reason for dismissal as sufficient to dismiss.

Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal.

The employee should be dismissed in accordance with their contract.

Employees generally have a right to be given a period of notice (or, depending on their contract, a payment in lieu of notice if their employment is terminated). Employers must not base the dismissal on a reason that is discriminatory. An employer must not base a dismissal on a reason that is directly or indirectly discriminatory based on a protected characteristic, and must not discriminate against an employee during the dismissal process

Restrictive covenants and wrongful dismissal

Dismissing in a manner that breaches an employee’s contract is likely to lose the employer the benefit of any contractual rights, such as post employment restrictions preventing the employee working for a competitor. It would also result in the employee having a claim for wrongful dismissal.

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to leave. There are risks in proposing such a solution, so it is advisable to take legal advice before entering into any negotiations.

Qualifying periods

Generally, employees must have completed a qualifying period of two years’ continuous employment before they can bring a claim for unfair dismissal, although there are exceptions (for equality and/or discrimination claims).

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to ensure that they do not take any further action as a result of the termination of their employment. It is advisable that employers take legal advice before entering into any negotiations, and that a formal settlement agreement is signed by the parties.

For advice on all employment law issues, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Why make a will?

If you die without leaving a valid Will, then the law decides how your estate is distributed, regardless of any wishes you had or promises you made during your lifetime.

The Intestacy Rules

If you are married, or registered civil partners, and have children

If your estate is worth less than £250,000 then your husband or wife gets everything.

If your estate is worth more than £250,000 then your husband or wife will get £250,000, all personal belongings and one half of everything over this sum. Your children would be entitled to the other half of the sum over £250,000, equally between them if more than one, held on trust until they are 18. Should any of your children die before you, then their children would be entitled to take their parent’s share

If you are married or civil partners and have no children

Your husband or wife receives your entire estate.

If you are not married but have had children

Your estate will be shared between your children equally but it will be held on trust until they are 18.

If you are not married and have no children but do have surviving relatives

Your estate goes to your relatives, depending on who survives you, in this order of priority: parents; brothers / sisters; half brothers / sisters; grandparents;
aunts / uncles; half aunts / uncles.

If you are not married and have no other relatives

Your estate will go to the Crown.

The intestacy rules do not recognise “common law” partners, and “children” includes adopted and illegitimate children but not stepchildren.

Everyone should have Will, but it is of exceptional importance if:

  • you have been married more than once;
  • you have young children for whom guardians should be appointed;
  • you want to provide for a child who is not your own;
  • you are separated or divorcing;
  • you run a business and wish to plan for succession.

Making a Will is the only way to make sure that your wishes are carried out after your death. We offer a bespoke Will-making service, and we ensure that we take the time to discuss all aspects of your assets and potential estate before we start to prepare your Will. We are happy to answer any questions you may have relating to inheritance tax and trusts, legacies and residuary gifts. We will provide you with a draft of your Will and explain it fully to you, giving you the peace of mind of knowing that your estate will be handled in the way you wish if the worst were to happen.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

What to do when someone dies

There are many matters which require consideration at this difficult time. This summary is to assist you in dealing with the first steps.

Immediate steps:

  1. Register the death at the register office – 01635 279230 (West Berkshire) or 0300 003 4569 (Wiltshire)
  2. Find out if there were any specific wishes about funeral arrangements (this may be in the Will);
  3. Organise the funeral;
  4. Notify friends, relatives and employers / employees
  5. Put notice in the newspaper.

Practical Matters:

  1. Cancel all deliveries (papers etc.);
  2. Remove valuables from his/her home;
  3. Redirect mail;
  4. Inform the building, contents and car (if appropriate) insurers;
  5. Arrange for the immediate welfare of any pets. The Deceased may have provided for their long term care in his/her Will

Collect the following information:

  1. The Will;
  2. National Insurance Number, tax office and reference number;
  3. Date and place of birth, and date and place of marriage or civil partnership.
Will, Personal attorney  in Berkshire

Notify:

  1. The executor of the Will, and if there is no Will, an administrator of the estate will need to be appointed in accordance with the probate rules;
  2. If you need any help speak to a solicitor

Contact in due course:

  1. Banks and building societies;
  2. Department for Work and Pensions if receiving any benefits;
  3. Pension providers;
  4. Solicitor and accountant
  5. Deceased’s tax office;
  6. Landlord if deceased lived in rented property;
  7. Local authority – council tax, parking permit or if a blue badge was held for disabled parking;
  8. Care providers (Social Services or private provider);
  9. Insurance companies: travel, private health care, etc;
  10. Life insurance companies;
  11. Mortgage provider;
  12. H.P. or loan companies, credit and store card providers;
  13. Utility companies – water, electricity, gas and phone;
  14. TV/Internet providers;
  15. DVLA and passport office;
  16. Clubs and associations;
  17. Dentist or other healthcare
    providers;
  18. Creditors – anyone they owed
    money to;
  19. Debtors – anyone who owed
    them money;
  20. Digital account providers –
    email, social media, Amazon,
    eBay etc.

A solicitor can assist in notifying all the relevant organisations and obtaining the information required to apply for the Grant of Probate. Don’t forget, we are here to help as much as you would like.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Trusts explained

What is a trust?

In principle, trusts are a simple concept. They are a private legal arrangement where the ownership of someone’s assets is transferred to someone else to look after and use to benefit a third party.

The person giving the assets is usually called a “settlor” (or “testator” if it is done by Will). The people asked to look after the assets are called “trustees”, and the person benefitting is the “beneficiary”.

The distinctive feature of a trust is the separation of legal and beneficial ownership of the asset(s) involved. The trustees legally own the asset, but they must always put the interests of the beneficiary above their own. The settlor can be a trustee, but they must still act in the interests of the beneficiary, not themselves.

Trusts can take effect during the settlor’s lifetime or within their Will.

Why use a trust?

Trusts are very common in everyday life and most of us will come into contact with them at some point. Company pension schemes, for example, are usually structured as trusts, and trusts are commonly used for charitable funding.

For most people however, the type of trust they are most likely to come across personally is a trust established for managing their family’s finances.

Some common situations are:

• To provide for a husband or wife after death while protecting the interests of children in the long term;

• To protect the inheritance of young children until they are old enough to take responsibility themselves;

• To provide for vulnerable relatives who need support to look after their affairs;

• To help succession planning in family businesses.

Trusts are particularly useful when planning how money and assets should pass from one generation to another, especially when there are divorces or second marriages involved.

Are trusts secret?

Trusts are personal arrangements, and most people expect them to be kept confidential. Quite often, even beneficiaries of a trust may not be aware of it, possibly because a parent would prefer their children not to know that they are at some point going to receive benefits from it. Recognising this, there is no requirement to register a trust or to publish the names of the parties involved. However the tax authorities will generally need to be informed of the establishment of a trust and any suspicious activities should be reported and investigated, so trusts are not regarded as “secret”, but their confidentiality is generally preserved.

Trusts and Tax

Trusts are often represented as being vehicles to avoid tax. In reality, there are virtually no circumstances in which anyone would be advised to set up a trust to gain tax advantages. In setting up a trust, the settlor is giving up ownership of the asset and such a dramatic move only normally makes sense if the settlor has clear objectives for this, and tax is likely to be a secondary issue.

Any tax advantages given to trusts are tightly targeted by tax authorities to those seen as doing social good, such as charitable trusts or those benefitting a vulnerable relative. Even then the rules are policed closely. Most other trusts attract few tax advantages.

The official position in the UK is that trusts are tax-neutral, although many professionals now think that the UK system penalises some types of trust. In line with the official policy, trustees must give HM Revenue full details when a trust is established and are generally personally liable for the taxes due on the trust.

Seek Advice

Anyone considering a trust, whether during your lifetime or in your will, is advised to seek professional assistance, to ensure that all options are considered and that the trust is suitable for you and meets your requirements. The tax consequences of the trust should be discussed in full so that you are fully appraised of your position.

To discuss this and to obtain more information contact:
Emily Payne at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

Providing for someone with a learning disability

Someone signing a will - Legal advice to help you provide for someone with learning difficulties


If you leave money to a relative or friend with a learning disability, or die without making a will, it could have unintended consequences.

  • If your relative or friend cannot manage their own money, the Court of Protection may need to become involved to assist in looking after the legacy. This can be complex and time consuming, and there are fees involved.

  • The person with a learning disability may have impaired understanding of the value of money and may be vulnerable to other people taking advantage of their new found wealth.

  • If the person concerned is receiving state benefits, the receipt of a legacy is likely to affect the amount to which they are entitled. Most benefits are subject to the person holding less than a statutory maximum of capital.
  • You may think of leaving your estate to your other children to use to help your child with a learning disability, but that may not be an appropriate solution, as there is no legal obligation on them to use it in that way, and the money might be treated as their money if they were to divorce, or go bankrupt, or die, or if they needed to claim benefits themselves.

    Discretionary Trusts

    The solution is to set up a Discretionary Trust within your will. You will appoint trustees who will support the person concerned to manage money and to make decisions as to how it should be used. The trust fund can be used to provide luxuries and additions to the person’s day to day needs, as well as having the flexibility to benefit other members of the family if needed.

    Contact Us

    A Will like this should be made by a solicitor who has experience of these types of wills. A Will is vitally important, particularly in these circumstances, and you should consider all the options with your solicitor who will write a will to suit you.

    To discuss this and to obtain more information contact:
    Emily Payne at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Lease extensions

    a key in a lock - Lease extensions, extending my lease, legal advice in Hungerford, Berkshire.

    If you have owned a leasehold property for over 2 years as a private individual, generally you will have a right to extend your lease (subject to qualifying conditions). This may be required when you are thinking of selling your flat or re-mortgaging, or you may wish to do it as an investment in your property for the future.

    The new lease would be for a period of 90 years plus the original term at a peppercorn rent.

    You should look at extending your lease if it has less than 90 years to run, as it can begin to devalue the property as the lease term shortens. When the lease drops below 80 years, the premium can increase significantly. Most mortgage companies will not accept leases of less than 30 years plus the proposed mortgage term.

    THE PROCEDURE

    Qualification

    Was the lease originally granted for a term of more than 21 years?

    Have you held the lease for at least 2 years or had the benefit of the lease extention process assigned to you?

    Valuation

    A specialist valuer will prepare a valuation of the lease extension and give you a suggested premium, using a special formula set out in the legislation.

    Notice of Claim

    We will prepare a notice to inform the landlord of your intention to purchase a lease extension. This is served on the landlord and any other parties to the lease (e.g. a management company).

    Landlord’s Counter-notice

    The landlord has 2 months in which to serve a counter-notice, either accepting your proposed terms or proposing new terms, or denying your claim. During this time the landlord is likely to instruct its own valuation of the property and may require access for this. They may also ask for a 10% deposit from you.

    Negotiations

    Within 2 months of the date of the counter-notice, both parties have the opportunity to negotiate agreed terms.

    First Tier Tribunal (Property Chamber)

    If an agreement cannot be reached, an application must be made to the Property Tribunal for a determination of the premium payable.

    Completion

    Once terms are agreed, or have been determined by the Tribunal, the landlord’s solicitor will provide the new lease and this will be signed by all parties and completed. This is the point at which you must pay the premium and costs.

    Costs

    As part of the legislation, the tenant is responsible for paying the landlord’s legal fees for service of the counter notice and preparation of the new lease, and the landlord’s valuation fees. These must be reasonable and if they are not agreed, an application can be made to the Tribunal for a determination of the amount payable.

    To discuss this and to obtain more information contact:
    Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Buying your freehold

    Signing a document, to illustrate someone buying their freehold, having received legal advice from property solicitors in Hungerford

    If you live in a leasehold flat and fulfil the relevant qualifying criteria, it is possible to purchase the freehold of the building from the current freeholder.

    This will give you several advantages, including:

    1. Control over the management of the building, including insurance, maintenance, repair and decoration;

    2. Control over the charges you pay for the management of the building;

    3. It is likely to increase the value of your property.

    Before you proceed with a freehold purchase, you will need to discuss the matter in depth with the leaseholders of the other flats in your building and obtain a commitment as to those who are going to participate. This can be done by a “participation agreement”.

    To discuss this and to obtain more information contact:
    Julian Dickins or Deborah Wason at Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

    Joint Ownership

    Row of Cotswold cottages - illustrating legal advice for jointly owning a house, from property solicitors in Hungerford Berkshire

    When two or more people are buying a property together, a decision needs to be made about how to own the property. There are two methods of joint ownership:

  • Joint Tenants: Each of you has an equal interest in the property and if one of you dies, the survivor will automatically inherit the whole of it.

  • Tenants in Common: Each of you has your own interest in the property, distinct from the other, which may be an equal or an unequal part. Your own share in the property would pass by your Will to whomsoever you choose. The amount of your share is usually based on your contribution towards the cost of the property or any work on it.
  • The method of ownership is important to consider in all cases, but particularly in certain circumstances:

    1. Where an unmarried couple is buying a property. The declaration made at the outset is the strongest evidence of intention in the event of a later dispute.

    2. Where you are making unequal contributions towards the purchase price and costs. The person contributing the larger amount of equity may wish to ensure that interest is protected in the event of sale of the property

    3. Where a third party (such as a parent) is contributing to the price or costs. The third party will be advised to obtain independent legal advice on the transaction and it is strongly recommended that an appropriate deed be drawn up setting out the respective interests or contributions of each party.

    4. Where you are buying the property as a buy to let investment. The method of ownership is likely to have tax implications which should be considered before the purchase.

    If any of these circumstances affect you, you must tell us before you purchase the property so we can ensure you receive the right advice and, if appropriate, enter into a declaration of trust. If there is no agreement between you at the outset, there may be problems in the event of separation, divorce or death and a division of the equity which does not truly reflect your intentions could result.

    Joint owners who wish to hold their property as tenants in common should consider entering into a declaration of trust to set out clearly the individual financial responsibilities for the property. Matters to consider are:

  • Who is responsible for the mortgage payments and in what proportions?
  • Who is responsible for the other outgoings (utilities, council tax etc.)?

  • Who is responsible for maintenance and repairs?

  • What happens if there is a change in those contributions?

  • What happens if one of the co-owners stops living at the property before it is sold?

  • What happens if one party wants to sell their share? Would the other party have a right to buy him or her out?

  • What happens if one of the co-owners dies?
  • We would also recommend that a restriction be placed on the property title to protect the interests of co-owners or third parties

    The law relating to joint ownership can be complicated and you may need to seek financial or tax advice before deciding what to do. Please speak with your conveyancer who will be able to refer you to a member of our private client team for further advice, if appropriate.

    To discuss this and to obtain more information contact:
    Dickins Hopgood Chidley Solicitors,
    The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

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