Winter 2014

Motoring troubles

Over the Christmas period, the police will increase their

presence on the roads.

If you are stopped it is important to remember that the police

must have a reason for doing so. It is important to cooperate
with the police officers as they are carrying out a public duty.
Over Christmas and New Year, the police often ask drivers
that they have stopped to provide a sample of breath if they
suspect that they have been drinking. If you are asked to
provide a specimen of breath then it is advisable to provide
one.

Often clients are surprised that they are not permitted to seek
legal advice before submitting to a test. However, a person
properly required to provide a sample must do so as soon as
they are asked, failure to provide a sample at the roadside will
result in your arrest. Failure to provide a sample at the police
station will result in a charge which carries with it the same
penalties as a charge of drink-driving.
If you provide a breath sample which registers as red you will
be immediately arrested and taken to the police station, your
car will be impounded temporarily. It is upon arrival at the
police station that you should seek legal advice and are
entitled to do so.

Family troubles

Over the
festive
period, we
all recognise
that things
can become
strained
whether it
is organising
a family
Christmas
with underlying
problems or resolving a timetable for when the children will

You will be asked for a

further sample of breath
to be taken on a more
sophisticated machine.
If your lowest sample is
above the limit you will
be charged and should
immediately seek legal
advice.

Usually people find out

about motoring allegations
(other than drink driving) by
way of a Notice of Intended
James Kiely
Prosecution received in the
post. These are sent to you within
14 days of the date of the alleged offence. You must return the
form within the time given on the letter stating the name of the
driver. If you do not do so, then it is likely that the police will
charge you with failing to provide information. Once you return
the forms, the police have, normally, six months to either
proceed with the matter or do nothing.

If you need assistance with any motoring offence please

contact James Kiely.

see each parent over the Christmas period if they are

separated.

Christmas can be a very worrying time for people whether

they are thinking about their relationship or if they are trying
to resolve issues concerning their children. Whilst it is hoped
that these issues can be resolved, often people need to talk
about their concerns to an impartial person who can give them
guidance and unbiased advice and, more importantly, options.

If you are having any difficulties over the Christmas and New
Year period and need some help, please call one of our family
solicitors.

Quality Solicitors Rose & Rose

The Riverside Centre, 40 High Street, Kingston. KT1 1HL

Tel: 0208 974 7490
Email: info@roselegal.co.uk
Sally-Ann Joseph is
www.roselegal.co.uk
a member

Use of DIY executors sparks explosion

of claims

formalities and procedures,

which means that they can
handle these promptly;
n They have expertise in
dealing with the relevant
taxation etc. requirements;

Claims against dishonest

executors have trebled in 12
months, according to the
Law Gazette.

The increase in the number

of claims is thought to result
from the appointment of
friends and family members
as executors rather than
professional executors such
as solicitors. There are
many reasons for using a
professional executor, such
as:
n They have experience in
dealing with the legal

n They will act objectively

in dealing with the
beneficiaries;

n They have a detailed

knowledge of the law
relating to wills and
probate and are able to
anticipate any issues that
may arise; and

n In the unlikely event

that something does go
wrong, they are covered
by professional indemnity
insurance to cover any
losses.

Contact us if you would

like advice on your will and
executorship arrangements.

New National Minimum Wage

rates a reminder
Employers are
reminded that the
following changes to the
National Minimum Wage
(NMW) rates came into
effect on 1 October
2014:

n the adult NMW rate

increased from 6.31 to
6.50 per hour;

n the NMW rate for

workers aged 18 to 20
increased from 5.03 to
5.13 per hour;

n the NMW rate for 16and 17-year-olds

increased from 3.72 to
3.79 per hour; and
n the apprentice

rate of the NMW, which

applies to apprentices
under 19 or over 19
and in the first year of
their apprenticeship,
increased from 2.68 to
2.73 per hour.

Millions for pensioner after negligent hospital treatment

A pensioner who was paralysed owing

to a rare spinal infection has won
millions in compensation from the NHS
because her suffering was made far
worse by pressure sores she developed
whilst being treated in hospital.

The woman was in her 60s and enjoying

an active life before she developed a
spinal cord inflammation which left her
paralysed from the chest downwards.
Doctors could not be blamed for that.
However, during extended hospital
admissions, she developed deep
pressure sores, which had
devastating consequences.

HMRC forced to
match repayment with
earnings

When an employee who left his

employer prematurely was forced to
repay part of a bonus he had been
awarded, the refusal of HMRC to
regard the repayment as a reduction
in income for the year in which the
bonus had originally been paid came
as an unpleasant surprise.

The sores were so severe that they

infected her bone marrow, shortened the
muscle tissues in her legs and resulted
in a hip dislocation. She had been left
largely bed-bound, unable to achieve a
comfortable posture and could only sit in
her wheelchair for a maximum of four
hours at a time.

The NHS trust where she underwent

treatment admitted failing to treat the
sores appropriately and conceded full
liability in the case. The womans
damages were assessed on the basis
that she had a near-normal life
expectancy and would require 24-hour

The 250,000 bonus was taxed as

usual in the year of receipt.
However, when the employee left
the following year, his employer
demanded a repayment of a
proportion of the bonus. The
deduction of tax etc. from the
original bonus payment was not
relevant for this: the repayment was
of a gross sum.

The employee expected to be given

tax relief for his repayment, but
HMRC refused, claiming that it was

The accommodation
offset increased from
4.91 to 5.08 per day.

In recommending the
rates that will apply from
1 October 2015, the
Low Pay Commission
(LPC) has been asked
to consider whether any
changes can be made
to the apprentice NMW
rate in particular,
whether the structure
and level should
continue to be
applied to all levels
of apprenticeship,
including higher levels.

In addition, the LPC will

review the conditions
that need to be in place
to allow the value of the
NMW to increase in real
terms and assess
whether such increases
can be afforded at the
current time.

help from two live-in carers plus she

would need a larger home in order to
accommodate them.

Although the precise amount of the

womans compensation award has yet to
be determined, lawyers confirmed that it
will come to between 2 and 3 million.
It will include 115,000 for her pain,
suffering and loss of amenity; however,
the vast majority of the award will relate
to the provision of her future care and
accommodation needs. We can advise
you on claiming compensation in
circumstances such as this.

a form of liquidated damages for his

breaching the original contract.
The case has now been heard by
the Upper Tax Tribunal, which has
ruled that the repayment does
qualify for tax relief as negative
taxable earnings.
If you are required by your
employer to repay earnings after
leaving your job, contact us for
advice on the steps you can take
to ensure that you are not
unnecessarily disadvantaged.

Dementia sufferer let down by selfish nephews

When an elderly lady appointed

her two nephews to act as her
attorneys under a power of
attorney, she could not have
expected that the result would be
her not having enough money to
pay for her care in a care home.

The woman set up the power of

attorney in 2007 and now lives in
a care home as she suffers from
dementia.

The local authority became

concerned at the handling of the
woman's finances and launched
an investigation, which led to a
hearing in the Court of Protection.

The two nephews had committed

several acts which had led to a
dissipation of their aunt's estate.
They had given their mother

Rugby sponsorship
claim fails

In an important decision for corporate

sponsors and those who benefit from
their financial help, a fishing company
which stumped up 1.2 million in
support of its cash-strapped local
rugby club has suffered defeat in
its legal campaign to deduct that
sum from its profits assessable to
Corporation Tax.

Over a three-year period, Interfish

Limited had entered into a sponsorship
deal which provided vital financial
assistance to Plymouth Albion Rugby

15,000 to buy a new car, sold the

aunt's house to a sister at a
considerable undervalue, loaned
another brother 50,000 to help
him buy a property and had
withdrawn other sums in excess of
60,000 for which there was no
adequate explanation.

Despite their claim that it was in

the woman's best interests for them
to continue to manage her affairs,
the Court concluded that the pair
had treated their aunt's funds as if
they were their 'private piggy bank'
and stripped them of their power
of attorney, appointing the local
council in their place.

There has been a steady stream of

similar cases reaching the courts for
some time now. Whether holders
of powers of attorney act out of
Football Club, which was in severe
financial difficulties and badly needed
funds for, amongst other things,
improving its squad of players.

The main benefit to Interfish was greater

public visibility for its business. It was
also hoped that the exposure would
make it easier for the company to obtain
bank funding for expansion and that
those involved with the club would 'look
favourably upon the company in ways
that would assist its trade'.

Interfish cited Section 74(1) of the

Income and Corporation Taxes Act
1988 in its bid to write off the cost of

Complex divorces to be made simpler?

procedures designed to enhance

efficiency in the disposal of financial
remedy cases to be heard by a High
Court judge.

The changes include a requirement that

a 'pre-trial review' be held before the
allocated trial judge (unless this is
completely impracticable) approximately
four weeks before the final hearing.

All too often, the wrangling over the

financial arrangements on divorce turns
out to be lengthy, expensive and a
cause of anxiety and anger.

In order to reduce these negative

aspects, Mr Justice Mostyn has
released a statement outlining

Among a number of other requirements

is one that stipulates that these reviews
contain only evidence (not argument)
relating to the parties' financial
resources, living standards etc. There is
also a requirement that the evidence
bundle presented to the Court does not
exceed 350 pages.

ignorance or out of a desire for

personal enrichment, the effects
can be the same depriving an
elderly and vulnerable person of
the funds they need to see out their
declining years in the style they
should reasonably expect.

We can assist you to create a power

of attorney that will provide for
competent professional oversight of
financial transactions.

sponsoring the club against its tax

liabilities under the heading of
'advertising and marketing'. However,
the deduction was refused by HM
Revenue and Customs in a decision
which was subsequently upheld by the
First-tier and Upper Tribunals.

In dismissing the company's challenge

to those decisions, the Court of Appeal
noted that the payments had also been
motivated by a desire to improve the
financial position of the rugby club.
As the money had not been paid out
exclusively for the purposes of the
company's own trade, it was not tax
deductible.
Since only higher value and more
complex cases are allocated to the High
Court in the first place, these
requirements will pose a tough test in
some cases and make it important that
information you wish to rely on is well
organised and carefully considered for
its evidential value.

The proposed changes follow hard upon

several 'high net worth' divorce cases in
which the costs of litigation have
spiralled.

There is no substitute for good quality

legal advice at all stages of a marriage
break-up. Our family law department is
able to provide expert representation in
all areas of family law.

Failure to notice flaw does not defeat indemnity

An argument over who was responsible for water leaks in an
apartment block recently led to an appearance in the Court of
Appeal for a contractor and subcontractor.
The contractor had won a contract to design and install the
water system for a block of flats, using a 'boosted water'
system to ensure the flow of water to the topmost flats was
adequate.

This work was subcontracted to another firm. The contractor

was warned about a possible danger to the system as
a result of surges of pressure and arranged for the
subcontractor to install two pressure arrestor valves to
prevent surges from causing leaks.

The subcontractor's installation of the valves was defective,

and this was not noticed by the contractor when its employees
inspected the system.
The contract between the contractor and the subcontractor
contained an indemnity clause in which the subcontractor
indemnified the contractor for any loss resulting from the
default or negligence of the subcontractor.

When a pressure surge subsequently caused a burst pipe, the

question arose as to who was liable for the damage caused.

Economic surge contains risk warning

With the ICAEW having revised its

business investment forecast for the
next twelve months sharply upwards, a
predicted growth rate in investment of
8.2% in the spring has now been revised
to 8.8%, it is clear that there will be
substantial contracts in the offing for
many businesses.

At the first
hearing, the court
decided that the
subcontractor was
liable under its
indemnity.

The subcontractor
appealed, arguing
that the contractor
itself was at fault
because it had
been negligent
when inspecting
the system.

The Court of Appeal confirmed the original decision.

The indemnity held good because the subcontractor had
committed a negligent act which caused the damage. The
indemnity clause could not be 'stretched' to mean that it
included only defects that would not be visible on inspection
by the contractor.

For advice on limiting your risk in any construction contract,

contact us.

Although this represents good news in

principle, the 'recovery phase' of the
economic cycle is always the most risky
as companies seek to finance greater
working capital requirements and cash
flow is normally tight.

Services for you

Conveyancing
Disputes
Employment law
Enfranchisement
Family law
Housing and property
Injury claims
Medical negligence claims

Winter 2014

It is the ideal time to make sure that your

terms and conditions of trade, and any
other agreements you have which can
impact on your ability to manage your
cash, are dusted off and reviewed as
part of your process for controlling
commercial risk.

Mental capacity
Motoring offences
Wills and probate
Services for business
Buying or selling a business
Disputes
Employment law
Managing your business
Property

The Riverside Centre, 40 High Street, Kingston upon Thames, KT1 1HL
Telephone: 020 8974 7490 | Email: info@roselegal.co.uk

www.roselegal.co.uk

Authorised and regulated by The Solicitors Regulation Authority (SRA No: 559162)
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