uklawyers legal newswire - issue 90
==========================uklawyers legal newswires
==========================
By Steve Butler and Joe Reevy
Number 90
2nd March 2006
To make sure you continue to receive our e-mails in your inbox,
please add smb@e-solicitors.co.uk to your address book or safe
sender list.
Once again this is sent out in the text only version this week.
Once we sort out our mailing problem we shall revert to the HTML
format. Solution is on the horizon and closing in.
(NB: At the time of writing some Government News Network links
appear to be broken in some way and so alternative shortform links
are provided.)
Contents
========
The Leading Question - Under Resourced and Under Fire
Conveyancers Practice Notes Feature
DebtLine Feature
Site Of The Week - whataboutclients.com
uklawyers legal newswires
Practical Cases and Materials
Lawindexpro
Chernobyl Disaster Section
Oh! What Lovely Law!
Legal Practitioner
The Leading Question
~~~~~~~~~~~~~~~~~~~~
Under Resourced and Under Fire
------------------------------
The report by the Probation Inspectorate into the supervision on
parole of the men who killed the banker John Monckton has lead to
the suspension of 4 probation officers pending further
investigation. They are alleged to have been at the forefront of
the catalogue of errors which left Damien Hanson, a man with a 91%
risk of re-offending, without adequate controls, if indeed it is
ever possible to provide adequate controls for such a man.
The true source of the problem is revealed in such facts about the
processes involved as "Hanson was not interviewed before release
on parole because the government had cut funding for interviews by
90% that year."
What it boils down to is a lack of resources.
This is endemic in all the "social services" including probation,
CAFCASS and basic social services departments in local
authorities, and has been for at least 20 years but it is getting
worse. It first really came to my attention when the Children Act
1989 came into force in 1991. We had all been on courses which
stressed the importance of the statutory time table - all care
cases to be dealt with within 12 weeks including full
investigations by guardians ad litem. I cannot think of one case
where that was ever achieved. That period had to be extended by
Practice Direction to 40 weeks but it is not unusual for cases to
take over 12 months. The work I have done for a social services
department brought me face to face with the huge shortage of
social workers - in one case the social worker for a family has
changed about three times each year since it started. My mole in
the probation service often bewails his lot - he has too many
cases and they are not being handled as well as he would like.
There are two sources of difficulty. The first is simple lack of
money. Government and local government do not have the cash to
fund the services properly to the standard which we would like to
see in a perfect world. However, this is made worse by
insufficient funds for a basic service being provided (like the
interview funding cut). The second is that there is only a finite
supply of the most important resource - people who are suited to
the job. There is one basic issue - some people are more suited
to jobs than others and some people are not fit to carry out some
jobs at all. I would not be any good as a professional footballer
because I do not have the skills or the aptitude - even if I was
able to juggle a ball on my knees (that's what they do isn't it?)
I would not have the aggressive attitude required. Similarly most
bricklayers would not have the mind set necessary to be a social
worker or a probation officer or a CAFCASS officer. If only, say,
one person in five hundred has the aptitude for this type of job,
then in the UK there are only 140,000 possible suitable applicants
(assuming a population of 70 million). But 25% of those will be
under 18 or over 65. 25% will have found other suitable
employment. 25% will be doing jobs they don't like. 10% will be
promoted to levels where they no longer do the hands on work they
were trained to do but manage other people (something they were
not trained to do). And so on. I could never be a statistician,
but you get the idea of what I am saying. There are simply not
enough of the right people in the right place or at all to do all
the jobs needed.
So when the government comes up with brilliant ideas like
releasing all prisoners half way into their sentence and
supervising them all with a huge body of skilled manpower, the
idea is good but it is doomed to failure. That huge body of
manpower does not exist and in fact could never exist at any
price. Add to this the fact that they underfund the organisations
in the first place (see the CAFCASS fiasco for a prime example)
and you create an impossible task.
Isn't it therefore a bit harsh to seek scapegoats and isn't the
probation union, Napo, right to call rather for corporate
responsibility to be accepted?
Regards
Steve Butler
Solicitor
Newswire Editor
mailto:smb@e-solicitors.co.uk
Conveyancers Practice Notes Feature
===================================
Conveyancers Practice Notes
---------------------------
The Council for Licensed Conveyancers produces on its website an
interesting selection of useful notes for its members
http://digbig.com/4gmyq
Some which might be of interest to all property lawyers are:
Relations with Solicitors
Dealing with Unqualified Agents or Unqualified Persons
Retention of Clients' Files
H. M. Land Registry : Practice Points
Mortgage Fraud
Third Party Legal Charges and Guarantees
Undertakings
DebtLine Feature
================
Free Helpline Launched by UK's Leading Debt Advisers
----------------------------------------------------
DTI Press Release
27 February 2006
http://digbig.com/4gnbb
"People living in Yorkshire and Gloucestershire will be the first
to be given access to a new national helpline for those with debt
problems following the launch of the Debt Advice Helpline. It is
envisaged that once established nationally, the Helpline will
generate sufficient funds through its arrangements with service
providers to be self-funding."
A consortium of Advice Agencies have created this scheme. Here
are there websites:
Advice UK:
http://www.adviceuk.org.uk/
Citizens Advice:
http://www.citizensadvice.org.uk/
Consumer Credit Counselling Service:
http://www.cccs.co.uk/
Money Advice Trust:
http://www.moneyadvicetrust.org/
National Debtline:
http://www.nationaldebtline.co.uk/
Payplan:
http://www.payplan.com/
Debt Advice Helpline 0800 980 2800 9am to 8pm Monday to Friday
The scheme is the brain wave of the Debt Advice Gateway Trust.
Here is an article which shows that this organisation might not be
as successful as might be hoped:
"New Debt Advice Agency Delays IVA Tender."
It sounds very like the Legal Services Commission!
http://digbig.com/4gmyr
Words4Business
**************
Image:
http://www.words4business.com/w4b_logo.gif
You want to get a newsletter out. You want to send press releases
or short articles to your local paper or a journal. You want to
get the material on your website up to date. Client work, admin
duties and a hundred other things stop you.
If you want to get it done, right now, you can: call
Words4Business.
We have what you need. It is professionally written, up-to-date,
at a price that will make you smile and provided by a company that
believes in delighting clients rather than just pleasing them . .
. which is why we are the UK's market leader.
Contact: Words4Business ( http://www.words4business.com ).
Tel: 01392 423607
Fax: 01392 214495.
E-mail mail@words4business.com
*************************************************
Courses - CPD4Lawyers
=====================
CPD4Lawyers
-----------
http://www.cpd4lawyers.com/
They have a nice looking new website; they are reasonably priced
and they have an interesting selection of online lectures booked
already for 2006:
http://www.cpd4lawyers.com/acatalog/2006.html
Here is the March selection:
MARCH 9th 6-7pm 1 hour CPD Law training lecture:
"Employment Law - Contract of Employment"
Speaker: Justin Patten
MARCH 16th 6-7pm 1 hour CPD Law training lecture:
"The pre-owned assets regime: Practical applications with worked
examples, in the light of HMRC guidance"
Speaker: Matthew Hutton
MARCH 23rd 6-7pm 1 hour CPD Law training lecture:
"Civil Partnerships and the Wills and Trust practitioner"
Speaker: Gill Steel
They also have a good selection of recorded lectures:
http://www.cpd4lawyers.com/acatalog/Recordings_Section.html
currently with a five for the price of four price tag.
Site of the Week - http://www.whataboutclients.com/
========================
http://www.whataboutclients.com/ is a blog run by Dan Hill from
San Diego - but clients are the same the world over. Here are
some of his rules:
1. Represent only clients you like.
2. The client is the main event.
3. Make sure everyone in your firm knows the client is the main
event.
4. Deliver legal work that changes the way clients think about
lawyers.
5. Over-communicate: bombard, copy and confirm.
6. When you work, you are marketing.
7. Know the Client.
8. Think Like the Client--Help Control Costs
9. Be There For Clients--24/7.
uklawyers legal newswires
=========================
Many thanks for all the kind and useful comments including:
"I write to say how well you have put the arguments about the
90-day detention proposal. I agree with every word you say"
"It's one of the few things that arrives in the email each week
that I can honestly say I make time to study."
Don't forget to take advantage of your free trial credit search
with Creditsafe.Com
Contact CreditSafe and ask for:
Gavin Tierney, Account Consultant
Gavin.tierney@creditsafe.com
2920 886500 ext: 2011
http://www.creditsafe.com
Tell him you got his name from Uklawyers.
Many thanks to those who have asked their colleagues to subscribe
to the wire. Why not join them? Please ask three friends to
subscribe to this today - just get them to send an e-mail with
their name to mailto:smb@e-solicitors.co.uk with 'subscribe' in
the subject line and we'll do the rest.
PRACTICAL CASES AND MATERIALS
=============================
Commercial and Contract
=======================
Companies House - WebFiling and WebFilling
------------------------------------------
Make use of the Companies House Web systems and save money!
https://ewf.companieshouse.gov.uk/
New Companies House Fees
------------------------
Effective 1 February 2006
http://www.companieshouse.gov.uk/toolsToHelp/productPriceListCompare.shtml
Crime and Punishment
====================
Double Jeopardy - Reporting Restrictions
-----------------------------------------
In re D (Acquitted Person: Retrial)
CA
27 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/feb0.3.htm
If, on an application to quash an acquittal, a new trial were
ordered, publicity of the very fact that the Court of Appeal
(Criminal Division) concluded that there was "compelling" evidence
for making such an order might of itself realistically be regarded
as prejudicial to the subsequent trial so that, although a press
release by the Director of Public Prosecutions in advance of the
first such application might have been appropriate, it was
doubtful whether any form of press release would be appropriate in
future.
New Seat Belt and Child Restraints Rules- Details Announced
-----------------------------------------------------------
Dept of Transport Press Release
27 February 2006
http://digbig.com/4gnbe
Details of proposed new regulations aimed at improving road safety
through more appropriate use of child restraints were announced
today by Road Safety Minister Stephen Ladyman.
New Code of Professional Standards for the Police
-------------------------------------------------
Home Office Press Release
27 February 2006
http://digbig.com/4gnbf
Equality, accountability and professionalism are at the heart of a
new Code of Professional Standards for the police service and will
replace the existing outdated Code of Conduct, will form an
integral part of the new police discipline system currently being
developed by the Home Office in consultation with the Association
of Chief Police Officers (ACPO), the Association of Police
Authorities, police staff associations and the conciliation
service ACAS.
Victims' Voices Get Go-ahead: Ministers and Judiciary
Agree Pilot Courts
-----------------------------------------------------
DCA Press Release
23 February 2006
http://digbig.com/4gnbg
Ministers gave the green light after agreeing the piloting courts
with senior members of the judiciary. Victims' advocates will be
tested for one year in the Old Bailey and the Crown courts in
Birmingham, Cardiff, Manchester [Crown Square] and Winchester.
ASBO's for Youths - Constitution of Magistrates Bench
-----------------------------------------------------
Practice Direction
24 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/QBD/feb0.3.htm
Common Law Hearsay Rule Abolished?
----------------------------------
Regina v Singh
CA
23 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/feb0.1.htm
If ss 114 and 118 of the Criminal Justice Act 2003 were read
together they abolished the common law hearsay rules (save those
which were expressly preserved) and created a new rule against
hearsay which did not extend to implied assertions.
Extradition - Nat West Three
----------------------------
R (Bermingham and others) v Director of the Serious Fraud Office;
Bermingham and others v Government of the United States and
another [2006] EWHC 200 (Admin)
QBD
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/QBD/feb0.2.htm
Where a criminal case was triable in either of two jurisdictions,
there was no legislative provision by force of which the
decision-maker was to reach a conclusion as to place of trial, as
the means of affording protection to a defendant’s rights under
the Convention for the Protection of Human Rights and Fundamental
Freedoms in fulfilment of his duty under s 6(1) of the Human
Rights Act 1998.
Criminal Practitioners' Newsletter Special Edition
--------------------------------------------------
Law Society Publication
13 January 2006
http://digbig.com/4gmys
Edition 63 updates the Special Edition issued in Oct 2003,
focussing on advising suspects in the police station in the
context of the law on adverse inferences, by Professor Ed Cape, an
expert in the subject.
Employment and Discrimination
=============================
The following items are reproduced with the kind permission
of Daniel Barnett, barrister (http://www.danielbarnett.co.uk):
27 February 2006
Functions of Acas
-----------------
The EAT has recently handed down judgment in Clare & ors v Redcar
& Cleveland Borough Council and Wilson & ors v Stockton-on-Tees
Borough Council.
The cases concern the narrow question of whether COT3 agreements
in the North-East Equal Pay Litigation were valid.
Of more general significance, the EAT set out (at paragraph 36)
the principles under which Acas operates:
* the Acas officer has no responsibility to see that the terms of
settlement are fair on the employee
* the expression 'promote a settlement' in s18 of the Employment
Tribunals Act 1996 must be given a liberal construction
* the Acas officer must never advise on the merits of the case,
and s/he is under no obligation to go through the framework of the
relevant legislation.
* it is not for the tribunal to consider whether the Acas officer
correctly interpreted her duties; it is sufficient that the
officer intended and purported to act under s18
* in theory, if an Acas officer were to act in bad faith or adopt
unfair methods when promoting a settlement, the agreement might be
set aside (not established in this case).
Clare & ors v Redcar & Cleveland Borough Council;
Wilson & ors v Stockton-on-Tees Borough Council
EAT Judgment
http://digbig.com/4gmyt
24 February 2006
Continuity of Employment
------------------------
The Court of Appeal has, this morning, handed down a judgment
containing an important gloss on Carmichael v National Power (in
which the House of Lords held that two tour guides working on a
series of ad hoc engagements was not employed due to lack of
mutuality of obligation).
Mrs Prater was a schoolteacher, who worked as a home tutor to
children who were unable to attend school. She worked under a
series of contracts, but without any guarantee that she would
receive further work once a particular placement finished (or,
indeed, being under any obligation to accept a new placement when
offered).
Although there were some short breaks when she was not working (eg
August), there was no appeal from a finding that these amounted to
'temporary cessations of work', so that they would not break
continuity of employment if Mrs Prater otherwise qualified as an
employee.
The Court of Appeal (upholding the ET and EAT) held that each of
Mrs Prater's short-term engagements amounted to discrete and
self-contained episodes of employment, under a contract of
employment. They therefore combined to give her sufficient
continuity to accrue employment rights.
The Court of Appeal made it clear that Carmichael did not address
the status of the Claimants when they were actually working as
guides - only whether there was an 'umbrella' contract - and
therefore Carmichael could be distinguished.
Cornwall County Council v Prater
BAILII Judgment
http://www.bailii.org/ew/cases/EWCA/Civ/2006/102.html
Daniel Barnett TUPE Web Seminar
-------------------------------
When and where?
---------------
Date: Thursday, 16th March 2006 at 11.00am
Duration: 1.5 hours (including Q&A)
Location: your desk!
CPD Information
---------------
The course is accredited by the Law Society for 2 hours' CPD from
the Law Society (which includes time to answer five
straightforward multiple-choice questions at your convenience
after the seminar to prove participation).
What if I can't make it?
------------------------
A recording of the seminar (both powerpoint and audio) will be
available within 24 hours of the seminar.
Course Fees
-----------
Just 135 GBP + VAT
Book Here:
http://www.danielbarnett.co.uk/seminars_tupe_order.htm
Law Society Handbook on Employment Law
--------------------------------------
by Daniel Barnett and Henry Scrope
Third edition just published
49.95 GBP
Click here for more details
http://www.danielbarnett.co.uk/publications_lawsoc.htm
To subscribe to Daniel's Newswire, go to his smart new site:
http://www.danielbarnett.co.uk/bulletins.htm
Daniel Barnett Archive Now Available
------------------------------------
By arrangement with emplaw, an archive for Daniel's bulletins is
now available: http://www.emplaw.co.uk.
Four cases from the ICLR Site this week:
Withdrawal of Claim
-------------------
Khan v Heywood & Middleton Primary Care Trust
EAT
20 January 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/feb0.6.htm
Rule 25(4) of the Employment Tribunals Rules of Procedure 2004 was
not directed at conferring any jurisdiction to set aside a notice
of withdrawal, its sole purpose being to preserve a respondent's
right to apply for the dismissal of a withdrawn claim. It followed
that the last sentence of paragraph (4), whereby if a dismissal
application was granted the "proceedings are dismissed and cannot
be continued by the claimant", was concerned only with the
consequences of the success or failure of such an application and
was directed at providing that, if a withdrawn claim was also
dismissed, the claimant could not start a fresh claim based on the
same cause of action. Accordingly, the chairman was right to
dismiss the claimant's application to set aside the withdrawal
notice.
Part-Time Workers
-----------------
Manson v Ministry of Defence: [2005] EWCA Civ 1678
CA
4 November 2005
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/feb0.3.htm
Regulation 13(2) of the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 did not purport to disapply
the Regulations entirely in the case of service as a member of the
reserve forces but only in so far as that service consisted in
undertaking certain types of training obligations.
Grievance Procedure - Equal Pay
-------------------------------
Holc-Gale v Makers UK Ltd
EAT
21 December 2005
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/feb0.4.htm
The Employment Tribunal held that the claimant had failed to
provide the Employers with a statement of grievance as required by
paragraph 6 of Schedule 2 to the 2002 Act. The EAT upheld the
decision but said "The question of the claimant's compliance with
the statutory grievance procedure having been raised by the
employer, it was then open to the claimant to restart the
proceedings after putting in a written grievance; and that was the
proper course for the claimant."
Frustration
-----------
Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust: [2005] EWHC
2407 (Admin)
QBD
2 November 2005
Daily Law Notes Report Summary
http://www.lawreports.co.uk/ICRE/2006/feb0.5.htm
The consultant claimant was suspended by his employers pending a
12 month re-skilling period with a different hospital. Then the
employers decided to claim that the contract of employment was
frustrated by the fact that he could not work until the re-
killing was completed. The employers sent detrimental information
to the hospital due to carry out the re-skilling process. The
claimant sought directions as to whether there was frustration and
if not for injunctions against the employers. Held, there was no
frustration and there should be injunctive relief.
Family
=======
Lord Falconer Re-appoints Law Commissioner for Second Term
----------------------------------------------------------
DCA Press Release
28 February 2006
http://digbig.com/4gnbh
Stuart Bridge has been re-appointed after 5 years of tenure. He
leads the Property, Family and Trust Law Team. He is currently
responsible for the consultation exercise on the law of
cohabitation on which a paper is expected to be published in April
2006.
No Costs Rule in Ancillary Relief - Commencement 3 April 2006
-------------------------------------------------------------
The Family Proceedings (Amendment) Rules 2006
SI 2006/352 (L1)
http://www.opsi.gov.uk/si/si2006/20060352.htm
Explanatory Memorandum
http://www.opsi.gov.uk/si/em2006/uksiem_20060352_en.pdf
The purpose of these rule amendments is to make changes to the
courts’ power to make cost orders in ancillary relief proceedings.
The new rules will only give the court power to make cost orders
in ancillary relief proceedings where it is justified by the
litigation conduct of a party. The policy objective is to
discourage the making of costs orders in ancillary relief cases
other than because of the conduct of one of the parties. Cost
orders have a destabilising effect on financial settlements that
have been carefully constructed by the court.
The rules also provide that courts will no longer be able to
consider any "without prejudice" or "without prejudice save as to
costs" offers (also known as Calderbank offers) when making
decisions on cost orders to avoid the procedural gamesmanship and
uncertainty for the parties which these can produce.
The rules provide that two forms (Form H and H1) should now be
completed.
General
=======
Money-Laundering Rules Amended to Help Accountants
--------------------------------------------------
The Proceeds of Crime Act 2002 and Money Laundering Regulations
2003 (Amendment) Order 2006
SI 2006/308
Effective 21 February 2006
http://www.opsi.gov.uk/si/si2006/20060308.htm
Explanatory Memorandum
http://www.opsi.gov.uk/si/em2006/uksiem_20060308_en.pdf
"the Act provides a defence in certain circumstances to the legal
profession in respect of the obligation to report money
laundering. It does not provide an equivalent defence to the
accountancy profession where they are providing directly
comparable services. The Order provides for the defence to the
"failure to disclose" offence, which currently applies to
professional legal advisers in certain circumstances, to be
extended to include accountants, auditors and tax advisers who
satisfy certain conditions."
Election Fraud
--------------
Tough New Laws to Tackle Election Fraud
---------------------------------------
DCA Press Release
27 February 2006
http://digbig.com/4gnbj
The new laws will be part of a package of 14 tough new measures to
tackle electoral fraud that will be announced today by the
Elections Minister Harriet Harman. Ms Harman will make the
announcement at the national launch of the Association of Chief
Police Officers' new guidance on election fraud prevention and
detection in advance of the forthcoming local elections.
Immigration and Nationality
===========================
Asylum Applications At Lowest Level for More Than A Decade
----------------------------------------------------------
Home Office Press Release
28 February 2006
http://digbig.com/4gnbm
Asylum applications fell in 2005 to their lowest level since 1994
and the number of removals increased for the fourth consecutive
quarter, according to statistics published by the Home Office
today. The statistics illustrate the success of the Government's
comprehensive reform of the asylum system and in particular
policies designed to target and remove those failed asylum seekers
who have no right to be in the UK.
Forgery and Refugees
--------------------
R v Makuwa:[2006] EWCA Crim 175
CA
23 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACRIM/feb0.2.htm
Where a person sought to rely on the defence provided by s 31(1)
of the Immigration and Asylum Act 1999, the prosecution bore the
burden of proving whether or not he/she was a refugee.
Intellectual Property and Computers
===================================
The Artist's Resale Right Regulations 2006
------------------------------------------
SI 2006/346
Coming into force - later
http://www.opsi.gov.uk/si/si2006/20060346.htm
Explanatory Memorandum - (full explanation given)
http://www.opsi.gov.uk/si/em2006/uksiem_20060346_en.pdf
The Regulations will create an intellectual property right
("resale right") previously unknown to United Kingdom law,
although it has long existed in certain other European countries,
in particular France (where it is known as "droit de suite"). In
implementing the Directive, the Regulations at the same time
implement the optional Article 14 of the Berne Convention for
the Protection of Literary and Artistic Works. Resale right
consists in the entitlement of artists to receive a royalty on the
resale of their works, provided that an art-market professional is
involved in that sale and the sale price is above a specified
minimum threshold.
Information Rights Journal - Issue 2
------------------------------------
DCA Publication
22 February 2006
http://www.dca.gov.uk/foi/irj220206.pdf
The Journal provides Information Rights Practitioners with a
round-up of the latest developments in the information rights
field. The information contained in this Journal is Crown
copyright but may be reproduced without formal permission or
charge for personal or in-house use.
Until recently, those with an interest in FOI have looked to
decision making in other jurisdictions as a useful reference
point. The publication over the last few months of the first FOI
decisions by the Information Tribunal in the UK, however, marks
the beginning of firm interpretation of our own legislation. Over
time these decisions will become an invaluable resource in
understanding the boundaries of information rights legislation.
Issue 1 - September 2005
For those of us who missed it:
http://www.foi.gov.uk/irj220905.pdf
To Subscribe - find the link on this page:
http://www.dca.gov.uk/foi/implem_refm.htm#part3
International/Europe
====================
Brussels Agenda - February 2006
-------------------------------
Law Society Newsletter
2 February 2006
http://digbig.com/4gmyw
Human Rights - Compulsory Membership of Professional Bodies
Professional Privilege - Data Retention Directive
Liberalisation of Trade in Legal Services Worldwide - Negotiations
Back on Track
Criminal Law - Standardised EU-wide Criminal Record Proposed
Criminal Law - Double Jeopardy Rules Revisited
And More . . .
Land and Environment
====================
Introduction of New Building Regulations Speeded Up to
Maximise Impact on Climate Change
------------------------------------------------------
ODPM Press Release
22 February 2006
http://digbig.com/4gnbp
The Government has tightened the time for the building industry to
comply with new climate change regulations, Housing and Planning
Minister Yvette Cooper announced today. Transitional arrangements
have been cut from the usual maximum of three years to just 12
months to speed up take up of the regulations to maximise their
impact on climate change. All new buildings without full building
plans approved by 6 April must comply with the new Part L building
regulations from 6 April 2006, which increase the energy
efficiency of new buildings by 20 per cent from April, and by 40
per cent since 2002.
Government Enters Next Phase in Introducing Housing
Act 2004 Measures
---------------------------------------------------
ODPM Press Release
22 February 2006
http://digbig.com/4gnbq
The Government's drive to bring long-term empty homes back into
use, improve landlord management of their properties through
licensing, as well as increasing the health and safety of
dwellings, has entered the next phase with the laying of Statutory
Instruments in Parliament today.
Legal Practice and Lawyers
==========================
Dispute Resolution Section Launched
-----------------------------------
Law Society Press Release
27 February 2006
http://digbig.com/4gmyx
The first dedicated body for solicitors involved in dispute
resolution has been launched by the Law Society. Its role will be
to represent and lobby for the interests of all solicitors
involved in litigation, mediation and arbitration.
This must be the first ADR group without the word "Alternative" in
its title!
Reduced Introductory Membership Sub:
http://digbig.com/4gmyy
The first dedicated body for solicitors involved in dispute
resolution has been launched by the Law Society. Its role will be
to represent and lobby for the interests of all solicitors
involved in litigation, mediation and arbitration.
Disability Discrimination - Office Adjustments for Lawyers
----------------------------------------------------------
Bar Council Advice
"Equality and Diversity Code for the Bar."
http://digbig.com/4gnaa
Detailed advice on Chambers' duties to make such reasonable
adjustments
and see:
DWP Advice:
http://www.dwp.gov.uk/employers/dda/booklet.asp
VAT Tribunal - Represented by Accountant or Lawyer?
---------------------------------------------------
Khan v HM Revenue and Customs
CA
23 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/feb1.0.htm
The mere fact that the defendant taxpayer was represented by an
accountant, rather than a lawyer, at the hearing of his appeal
before the tribunal was not enough in itself to put the tribunal
on notice that the representation might not be competent or
effective.
Litigation, Courts and Human Rights
===================================
Arbitration - Enforcement of Possibly Irregular Foreign Award
-------------------------------------------------------------
CA
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/feb0.8.htm
Enforcement of an arbitration award made against an absent
defendant in another jurisdiction could be refused on the ground
that the defendant had been unable to present his case because he
had never been informed of the actual case against him.
Appeals From "No Case To Answer" Decision
-----------------------------------------
Graham v Chorley Borough Council [2006] EWCA Civ 92
CA
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/feb0.7.htm
The Court of Appeal had jurisdiction to hear an appeal from a
judge’s decision during a multi-track trial to accede to the
defendant’s submission of no case to answer where the judge had
not put the defendant to an election whether to give evidence.
Money, Property and Tax
=======================
Inheritance Tax - IHT210 Insert
-------------------------------
Inland Revenue Amendment
22 February 2006
The D18 procedure for Personal Applicants is changing from 6 March
2006. The flow charts on pages 26 and 27 of explanatory booklet
IHT210 are replaced by the flow charts in IHT210 Insert.
http://www.hmrc.gov.uk/cto/forms/iht210insert.pdf
Interest On SDLT Incorrectly Charged
-------------------------------------
If you think you should have had a refund but haven't. See this:
Interest Charges made on Stamp Duty Land Tax cases from 1st
December 2003 to 25th September 2005
Details are now available:
http://www.hmrc.gov.uk/so/sdlt-changes-note.htm
VAT - Prepayments
-----------------
BUPA Hospitals Ltd and another v Customs and Excise Commissioners
(Case C-419/02)
ECJ
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/ECJ/feb0.6.htm
ECJ Judgment
A lump-sum prepayment for unspecified goods to be delivered in the
future did not constitute a chargeable event for VAT under the
second sub-para of art 10(2) of Sixth VAT Directive 77/388.
VAT Deduction - Abusive Practice
--------------------------------
Halifax plc and others v Customs and Excise Commissioners (Case
C-255/02)
University of Huddersfield Higher Education Corporation v Same
(Case C-223/03)
ECJ
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/ECJ/feb0.5.htm
There was no right to deduct input VAT where the associated
transaction constituted an abusive practice.
Personal Injury
===============
"The Funding of Personal Injury Litigation: Comparisons
Over Time and Across Jurisdictions"
-------------------------------------------------------
DCA Research Publication
23 February 2006
http://www.dca.gov.uk/research/2006/02_2006.htm
This study provides evidence on the operation of funding
arrangements in several areas of personal injury litigation and
examines, for the first time in detail, the funding of clinical
negligence cases. It also provides some information on approaches
to personal injury litigation in other European jurisdictions.
Executive Summary:
http://www.dca.gov.uk/research/2006/02_2006excsum.pdf
Extending Limitation Period Retrospectively
-------------------------------------------
Adam v Ali [2006] EWCA Civ 91
CA
21 February 2006
Daily Law Notes Report Summary
http://www.lawreports.co.uk/WLRD/2006/CACIV/feb0.9.htm
Where a claimant brought a second action against the same
defendant, following the dismissal of a previous action, the court
was not precluded from exercising its discretion under s 33 of the
Limitation Act 1980 to disapply the limitation period in respect
of the second action provided that the first action had itself
been brought outside the limitation period.
Cases Generally
===============
Image:
http://www.lawindexpro.co.uk/g/f00.png
lawindexpro - As Good As Ever
-----------------------------
Now with 104,484 cases indexed (with over 70 added in the
last week) and over 236,737 references.
Try these cases:
Administrative - Health - Human Rights
--------------------------------------
Rogers, Regina (on the Application of) -v- Secretary of State for
Health - [2006] EWHC 171 (Admin)
15 February 2006
The claimant suffered breast cancer. She sought treatment from the
defendant with a drug called Herceptin, and now sought judicial
review of the refusal of such treatment. Various stages in the
licensing of the drug were yet to be completed. It was said that
the policy of only providing Herceptin in exceptional cases only
was unlawful as arbitrary. Held: The Authority had made it clear
that cost was not the issue. Some authorities had decided to fund
all women in the eligible group: 'Many people will think that the
more generous policy of authorities such as those listed . . .
above is a better one than Swindon's. Which is the better policy
is a matter for political debate, but it is not an issue for a
judge. The question for me is whether Swindon's policy is
irrational and thus unlawful. I cannot say that it is. 'It had not
been shown that the policy was contrary to any guidance, nor was
it unlawful under English or human rights law.
Case Map:
http://www.lawindexpro.co.uk/cgi-bin/casemap.php?rf=I060226&case=238528
This case cites 10 cases:
http://www.lawindexpro.co.uk/cgi-bin/cited.pl?rf=I060226&idx=238528
Statute(s) referred to: National Health Service Act 1977 1 2 3
Judgment Links:
Bailii Judgment:
http://www.bailii.org/ew/cases/EWHC/Admin/2006/171.html
Housing
-------
Richmond -v- Kensington and Chelsea - [2006] EWCA Civ 68
CA
15 February 2006
The borough obtained a possession order of the secure tenancy of a
flat occupied by their tenant for nuisance. It was suspended on
terms for a certain period. They alleged further breaches shortly
before the expiry of the possession order and they asked the
period to be extended. The tenant did not appear at the first
hearing, and the judge extended the term and made other
provisions. The tenant now argued that the moving of the date
revived his secure tenancy under the rule in Burrows. Held: The
tenant's appeal was dismissed. It was impossible to see the
judge's order as being intended to revive the tenancy with Burrows
type consequences: 'the combination of the two orders had exactly
the reverse effect. That the judge kept in place the application
to enforce the sanction imposed for the original breaches of the
tenancy showed quite clearly that the last thing that he saw
himself as doing was to relieve the tenant from the consequences
of those breaches.'
Case Map:
http://www.lawindexpro.co.uk/cgi-bin/casemap.php?rf=I060226&case=238524
This case cites 3 cases:
http://www.lawindexpro.co.uk/cgi-bin/cited.pl?rf=I060226&idx=238524
Statute(s) referred to: Housing Act 1985 Sch2 Gr2
Judgment Links:
Bailii Judgment:
http://www.bailii.org/ew/cases/EWCA/Civ/2006/68.html
No other research site is so powerful for such a low price. David
is happy to provide subscribers to UKlawyers with a brief guest
account to test the service.
Ring 01484 717380 or 0773 187 4426 to subscribe or enquire.
"More Cases, More Courts, More Years, More Use"
See the new artwork and look out for the different quotation every
time the front page loads including the odd poetic reference:
http://www.lawindexpro.co.uk/
Go to:
David Swarbrick's lawindexpro - http://www.lawindexpro.co.uk/.
The Chernobyl Disaster Section
==============================
The Chernobyl Reactor Explosion
-------------------------------
This Statutory Instrument:
The Food Protection (Emergency Prohibitions) (Radioactivity in
Sheep) Partial Revocation (Scotland) Order 2006
SI 2006/52
http://www.opsi.gov.uk/legislation/scotland/ssi2006/20060052.htm
(Coming into force 10 February 2006)
reminded me that many parts of the UK (including my area) were
made radioactive by the Chernobyl disaster on 26 April 1986.
Here is a factual description of what happened:
"Chernobyl Accident Nuclear Issues Briefing Paper 22"
September 2005
http://www.uic.com.au/nip22.htm
After a full description the conclusion is:
"In 1998 an agreement with the US provided for the establishment
of an international radioecology laboratory inside the exclusion
zone.
The 2005 Chernobyl Forum report said that some seven million
people are now receiving or eligible for benefits as "Chernobyl
victims", which means that resources are not targeting the needy
few percent of them. Remedying this presents daunting political
problems however."
Here is an official website:
http://www.chernobyl.info/
I recently read the novel "Wolves Eat Dogs" by Martin Cruz Smith
("Gorky Park" is his most famous crime thriller) which vividly
describes the reason for the explosion and the after-effects on
the people who lived in its vicinity. It is a story based around
murders in the vicinity of the international radioecology
laboratory.
See the Amazon reviews here:
http://digbig.com/4gnab
It was a good read. I found much of it hard to believe but this
website brings it to life much more than the official site ever
could:
http://www.kiddofspeed.com/
"GHOST TOWN - Chernobyl Pictures - Elena's Motorcyle Ride through
Chernobyl"
A kid rides her motorbike through the desolated areas, taking
pictures as she goes - much as the novel describes.
If you use a geiger counter carefully and be careful what you eat
and drink you can survive, just.
Oh What Lovely Law!
===================
Pet Trusts
----------
Here's an interesting article from New York Magazine about clients
who set up trusts for their pets and the tax consequences:
http://nymag.com/guides/bestlawyers/12276/
Its good to see DLA at the cutting edge in this field - I wonder
what their Bradford branch thinks to that!
Legal Practitioner
==================
Consilio continues to impress:
Criminal Law
------------
Self Defence Case Note: Rashford [2005]
by Norman Baird.
http://www.spr-consilio.com/artrashford.htm
In Rashford [2005] All ER (D) 192 (Dec) the Court of Appeal
decided that a defendant will not be denied a defence of
self-defence simply because he was the initial aggressor.
EU Law
------
Challenging EC Legislation in National Courts
by Denis Edwards.
http://www.spr-consilio.com/arteu4.htm
If a person considers that action of the EU institutions,
including a legislative measure, is unlawful, for example,
contrary to the EC Treaty or in violation of a general principle
of law, where should the legal challenge be brought? Should the
European Courts, ultimately the European Court of Justice (ECJ),
have exclusive jurisdiction over such claims or should all
national courts have concurrent jurisdiction? If so, can national
courts quash ultra vires EC legislation?
Any feedback is welcome, positive or not - we do listen and learn.
Regards
Steve
DISCLAIMER
==========
The information and any commentary on the law contained in
this bulletin is provided free of charge for information
purposes only. Every reasonable effort is made to make the
information and commentary accurate and up to date, but no
responsibility for its accuracy and correctness, or for any
consequences of relying on it, is assumed by Joe Reevy, Steve
Butler, or uklawyers.co.uk. The information and commentary
does not, and is not intended to, amount to legal advice to
any person on a specific case or matter. You are strongly
advised to obtain specific, personal advice from a lawyer
about your case or matter and not to rely on the information
or comments in this bulletin or, if you are a solicitor, you
should check the accuracy of the information yourself, or seek
advice from Counsel on a formal basis. This Newswire may be
freely reproduced provided that appropriate accreditation is
given and so long as you do not to distribute it or any part
of it for commercial purposes.
Subscription Information
========================
To subscribe to this newswire,
send an e-mail to:
mailto:smb@e-solicitors.co.uk
and include your first and last names.
To unsubscribe: send an e-mail to: mailto:smb@e-solicitors.co.uk
and include the instruction "Unsubscribe Me" in the subject line.
Remember, it is very easy to make an error with your e-mail
address - our mailing software rejects defective addresses
automatically, so please make sure you get your address right.
Please not that to CHANGE your e-mail address: it is necessary to
de-register and re-register. If this is too much effort, just
tell us your new and old e-mail addresses and we'll do it for you:
mailto:smb@e-solicitors.co.uk
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
uklawyers.co.uk
9, Howell Rd.
Exeter EX4 4LG
Devon
United Kingdom
E-mail: mailto:smb@e-solicitors.co.uk
© S M Butler & J Reevy 2006
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~