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Greene & Greene is a long established firm of solicitors based in Bury St Edmunds, Suffolk. Our lawyers advise individuals and businesses based all over the UK.

We regularly attract new clients who have been using firms in London, but now receive a more cost efficient and more personal service from us here in Bury St Edmunds.

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Entries in Dispute Resolution (46)

Friday
Mar172017

Ilott v Mitson – Testamentary freedom back from the grave?

On 15th March 2017 the Supreme Court handed down a landmark Judgment in the well documented case of Ilott v The Blue Cross and Others (known as Ilott v Mitson).  This is the first case in which the Supreme Court has been tasked with considering the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).  The 1975 Act allows certain categories of applicants, such as a surviving spouse or adult child, to challenge a Will on the basis that it fails to make reasonable financial provision.

Ilott concerned a claim by an independent adult daughter who had not been left anything in her Mother’s Will.  The Mother left her Estate entirely to three charities.  Her Estate was worth £486,000.

Astonishingly this case was first heard around 10 years ago.  The Supreme Court’s Judgment has been much anticipated in the hope of clarifying the law governing the circumstances when adult children may be able to successfully challenge a Will of their parents.

It is likely that the dust will need to settle further following this Judgment, however, a number of points at first glance appear to be of great interest in this fascinating area of the law.

Claims for applicants, other than surviving spouses or civil partners, are limited to “maintenance”.  The Supreme Court has attempted to further clarify the meaning of “maintenance” and said: “The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have.  It must import provision to meet the everyday expenses of living.”

Testamentary freedom, which is the ability for you to decide who you leave your Estate to on your death, is back (sort of).  The Supreme Court underlined the significance of a Will maker’s (Testator) wishes in deciding whether a Will should be varied with the result that beneficiaries lose out or see their “entitlement” reduced or redirected completely.

In relation to claims by adult children, the Supreme Court said that they must establish:

  • a need to be maintained (nothing new here);
  • the relevant relationship to qualify the claimant; and
  • that the testator had a moral obligation to look after the claimant (the resurrection of the, so called, “moral claim” requirement).

However, the Supreme Court said that long estrangements could be an example of where needs are not always enough to justify a claim under the Act.

What does this all mean?

It initially appears that claims by adult children are likely to be more difficult to succeed and the wishes of the Testator may now finally be given more weight in light of this decision.

If you have any questions regarding the contesting of wills, trusts or probate matters please contact Ben Fox (benjaminfox@greene-greene.com ~ 01284 717442).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com

Friday
Jan292016

Flooding: An Act of God?

The dreadful effects of flooding have been graphically illustrated once again by the events in Cumbria, Lancashire, Yorkshire and areas of Scotland over the course of the past few weeks. In legal terms flooding is often described as an act of God: in other words it is something for which no person can be held responsible. This is not always true for, on occasions, those affected by flooding can have a legal remedy.

If the way in which a landowner or occupier uses or manages his land generates flooding that would otherwise not have occurred or makes flooding worse, he may be liable for those consequences on a number of grounds, including negligence and nuisance.

We have successfully pursued flooding claims for a number of clients. Two examples include: -

  1. Recovering compensation for a client whose house was repeatedly flooded following a change of use of the adjoining farmland by its owners, which resulted in water run off whenever it rained heavily.
  2. Establishing liability against a landowner who mismanaged the repair and maintenance of, and the drainage associated with, a large pond on her land with the result that it overflowed during periods of heavy rain and flooded our client’s property. Our client’s compensation ran into hundreds of thousands of pounds.

If you have been affected by flooding or are worried about your responsibilities as a landowner or occupier please contact Michael Batty (michaelbatty@greene-greene.com / Telephone 01284 717414) or Andrea Nicholls (andreanicholls@greene-greene.com / Telephone 01284 717531) in our Dispute Resolution Team.  For more information please visit http://www.greene-greene.com/energy.html and follow @greenegreenelaw.

Monday
Jan112016

Farmers Weekly: What to do if escaped stock cause damage by Andrea Nicholls

(This article was first published in Farmers Weekly, 4 December 2015)

Question:               My stock have escaped and damaged my neighbour’s property what should I do and am I liable to pay for damage to their lawn for example?

Answer:                  Yes.  Your liability for damage caused to property by straying livestock (and the legal definition of livestock includes all the usual farm stock species) is a strict liability.  This means that there is no need for the person whose property has been damaged to prove that you were at fault in any way in allowing the animals to stray.

If your stock stray you are liable to pay both for the damage which they cause to property and any costs which the property owner incurs in controlling or looking after the animals. 

You are liable to pay for the damage caused to the lawn and any costs that the lawn owner incurs in looking after the animals. It is best to collect the animals as soon as possible and pay for the damage.

Question:               Who is liable to pay for damage caused to property?

Answer:                  The person in possession of the livestock is liable to pay for any damage to property caused by straying livestock. The person “in possession” includes both the owner of the livestock and the owner of the grazing land from which the stock escaped. Either person can be sued and any savvy property owner would probably sue both. If you are grazing someone else’s stock on your land, you must agree as part of the Grazing Licence how liability for damage for strays is going to be shared.

Click to read more ...

Wednesday
Dec022015

Alternative Dispute Resolution for Traders and Consumers - The New Law

Alternative dispute resolution (commonly referred to as ADR) is the process whereby an independent and impartial third party (an ADR provider) considers the evidence in a dispute and makes a decision or brokers a settlement between the parties.  ADR offers the parties to a dispute an alternative to pursuing what could be a protracted and costly case through the Courts.

In 2015 ADR for Consumer Disputes Regulations have been passed and apply to all businesses in the UK that sell goods, services or digital content to consumers (except health professionals).  In particular, with effect from the 1 October 2015, all traders selling to consumers are required to give certain information to consumers if, having received a complaint from the consumer, they have been unable to resolve that complaint through their internal complaints process.  The information that must be given includes:

  •             details of a certified ADR provider to whom the dispute or complaint could be referred; and
  •             confirmation of whether the trader intends, or is obliged, to use that provider.

For certain traders (including those in sectors such as financial services, energy and communications), their regulators or trade bodies already require them to offer ADR, and where this is the case, those traders must provide further information in their terms and conditions.  This review and update should take place immediately.  For all other traders, ADR is not mandatory, and they are only required to provide the required information at the end of the complaints process.  These traders should review their procedures for dealing with customer complaints or disputes to ensure that they are regulation compliant.

Irrespective of that, it is important that traders do give serious consideration and take legal advice if necessary before rejecting ADR as the Courts have recently ordered that an unreasonable failure to engage in ADR could result in that party being penalised at the conclusion of the trial i.e. you could win your case but not recover costs if you have unreasonably rejected ADR.

There will be further demands placed on traders in January 2016 when the European Commission will set up the Online Dispute Resolution platform (ODR).  This will allow consumers who have a complaint about a product or service bought online to submit the complaint via an online complaint form to a trader based in another European country.  From 9 January 2016 all online traders must include a link on their website to the ODR platform, which will be in addition to the requirement to give details on the website of the named certified ADR provider. 

For more information on ADR or a dispute that you may have, please contact Henry Nydam in our dispute resolution department on 01284 717433 or by email: henrynydam@greene-greene.com.  For more information on Greene & Greene go to www.greene-greene.com and follow us on Twitter @greenegreenelaw. 

 

Tuesday
Sep222015

Arbitration: A Swift Cost Effective and Confidential Solution to your Dispute

 

Litigation to resolve a dispute can be a drawn out and expensive process and changes within the Court Service over the course of the past few years have not improved matters.  For example, did you know that the fee payable to the Court for the issuing of a claim worth over £200,000 is now £10,000?  It is rumoured that further Court fee increases may be in the pipeline.  Courts are also being closed and we have seen trials not being listed for up to nine months after all procedural steps are completed, with parties simply waiting for a Court and a Judge to become available.

We have always prided ourselves on achieving swift and cost effective “dispute resolution” solutions for our Clients.  Working with a number of leading Barristers Chambers we are now able to offer a private arbitration service.  This is a sensible alternative to Court proceedings in those cases where a solution cannot be negotiated between the parties.

The advantages of arbitration include the binding determination of the dispute:

  1. by an experienced barrister (many of the barristers involved hold judicial roles);
  2. within a timescale determined by the Client;
  3. within a budget determined by the Client; and
  4. that produces a confidential outcome.

For more information please contact Michael Batty (01284 717415 or michaelbatty@greene-greene.com) and Andrea Nicholls (01284 717531 or andreanicholls@greene-greene.com) in our Dispute Resolution Department.  Follow Greene & Greene via Twitter @greenegreenelaw.

Thursday
Apr092015

An invitation not to ignore!

A recent High Court decision has emphasised that if you are a party to a dispute, whether or not it has resulted in Court proceedings, you should think very carefully before rejecting or even ignoring an invitation to explore the scope for resolving the dispute through some form of Alternative Dispute Resolution (ADR).  ADR is used to describe dispute resolution methods such as mediation, expert appraisal and expert determination, but not court proceedings or arbitration.

A failure to respond reasonably or at all can have significant financial consequences even if your case is successful at a trial or final hearing.

In Laporte v Commissioner of Police of the Metropolis, although the Metropolitan Police successfully defended the Claimant’s claim, the Judge concluded that “the Defendant’s failure fully and adequately to engage in the ADR process should be reflected in the costs order I make…” and, having weighed up various factors, directed that the Metropolitan Police’s claim for costs should be reduced by one third.

Whilst ADR may not be suitable in all cases, this latest decision highlights the need for parties to take all ADR proposals seriously and only reject them after seeking appropriate legal advice.

Even in a case where settlement appears unlikely, ADR can help you to better understand your opponent’s case, narrow down the issues and, if the case does proceed to trial, avoid costs sanctions of the type imposed in Laporte.       

For more information, or advice in relation to a dispute that you may have, please contact Ben Fox, a Solicitor in our Dispute Resolution Team on 01284 717 442 or benjaminfox@greene-greene.com. For more information on Greene & Greene go to www.greene-greene.com and follow us on Twitter @greenegreenelaw.