Archives for 2015

Wells Aims to Become Dementia Friendly

Harris & Harris are supporting the Wells Dementia Action Alliance which aims to make Wells a dementia friendly city. Joshua Eva, Partner at our Wells office, who has joined the Alliance committee said “We are delighted at the news that the campaign, which has featured in the Wells Journal, has received a £5,000 grant from the Aviva Community Fund.  This means there will be funding available for local projects to improve the experience of individuals living with dementia”.

To make the money go further the Alliance plans to match-fund projects that will benefit people with dementia and encourage further fundraising.  A number of local businesses are already involved and it is hoped that support for the initiative will grow.

Joshua Eva and also Caroline Fletcher, Associate Solicitor at our Frome office, have both trained to become ‘Dementia Friends’ with the Alzheimer’s Society.

A Dementia Friend is someone who learns more about what it’s like to live with dementia and turns that understanding into action.

Harris and Harris have also arranged to have staff in Wells who deal regularly with elderly clients trained as Dementia Friends.

Read the Contract!

English Law can be a tough beast. Some European jurisdictions have an obligation on parties to act in “good faith”. English law has a longstanding rule “caveat emptor” – until 1998 when the Civil Procedure Rules banned the use of Latin – so let’s call it “Let the Buyer beware”. If you sign a contract you are bound by the terms, even if you haven’t read them. Where judges think that innocent people have been exploited they will strive to find a way to release them, but that isn’t always possible.

The Supreme Court has dismissed (by a majority of 4:1) the tenants’ appeal on the interpretation of a service charge clause in the tenants’ 99 year leases of chalets in a holiday park. The Court held that the natural meaning of the clause requiring the tenants to pay the service charge to the landlord was clear. The reasonable reader of the clause would understand that:

  • The first part of the clause required the tenants to pay an annual charge to reimburse the landlord for providing the services.
  • The second part of the clause identified how that service charge was to be calculated and that was a fixed sum which increased at a compound rate of 10% per annum.

The fact that this meant that by 2072 each tenant would be paying a service charge of over £550,000 per annum did not justify departing from the natural meaning of the clause. Therefore the court could not apply the power it has where a clause is ambiguous to apply a meaning that it thinks accords with business sense.

Commercial common sense is not a relevant consideration where the natural meaning of the language is clear, even if this results in commercially detrimental consequences. The court will not step in to save a party from a bad bargain.

Arnold v Britton and others [2015] UKSC 36

Fundraising for the Alzheimer’s Society

According to the Alzheimer’s Society, it is predicted there will be around 850,000 people in the UK with dementia in 2015.

The word dementia describes a set of symptoms that may include memory loss and difficulties with thinking, problem-solving or language.  These changes are often small to start with, but for someone with dementia they have become severe enough to affect daily life.

Dementia is caused when the brain is damaged by diseases, such as Alzheimer’s disease which is the most common cause of dementia.  However not all dementia is due to Alzheimer’s.  The specific symptoms that someone with dementia experiences will depend on the parts of the brain that are damaged and the disease that is causing the dementia.  Each person is unique and will experience dementia in their own way.

Dementia is progressive, which means the symptoms gradually get worse over time.  How quickly it progresses varies greatly from person to person.  In the late stages the person will need more and more support to carry out everyday tasks.  However, many people maintain their independence and live well for years after their diagnosis.

On 5 September Caroline Fletcher, will be participating in the Alzheimer’s Society’s Stonehenge Trek.  Starting at 6.30 am, Caroline will start her trek with many others in Old Sarum, Wiltshire.  Her walk will take her past Salisbury Cathedral, over high ridges, through woodland and at her furthest point, Stonehenge, before she circles back to where she started, some 25 miles later.

As a Solicitor in our Wills and Probate Department, Caroline has seen the impact of dementia on both her clients, their families and carers.  After becoming a Dementia Friend in early 2014, she has decided to take on this challenge to raise money to help improve the quality of life for people affected by dementia in England, Wales and Northern Ireland.

For more information regarding Alzheimer’s Society:

http://www.alzheimers.org.uk/

Doing Law Online

It can be convenient and easy to do things online.  However, it isn’t always the most prudent way to do things, and can make it easier to defraud or exploit the vulnerable.

In August 2014 the government shelved plans to create a fully online process for creating Lasting Powers of Attorney (LPAs) including electronic signatures, in light of concerns that such a system would increase the scope for fraud and financial abuse, and would not be suitable for the elderly. In many cases the best way to protect the person making the LPA is to get specialist advice to ensure that an LPA is both appropriate and effective.

Recently the Court of Protection revoked an LPA made without such advice, which was drawn up by the 77 year old donor’s daughter online and appointed the daughter as sole attorney.  The donor, who suffered from Alzheimer’s disease, did not receive any independent advice, although her daughter claimed to have fully explained the document to her before she signed it, which seems unlikely as she admitted she hadn’t read it.  A friend of the family witnessed the mother’s signature.

Six months after the LPA was registered, the Office of the Public Guardian made its application to the Court of Protection on the basis of evidence indicating that there had been a number of excessive and uncharacteristic withdrawals from the mother’s bank account, reducing its value by half over the six months.  The daughter admitted that she had not read the declaration about her duties in the prescribed form of LPA (who reads terms & conditions online?). She claimed that she gave her mother £600 a month “spending money”, but the judge found that the mother was living in squalor.  Her home urgently needed deep cleaning, disinfecting and furnishing with white goods.  When questioned about the withdrawals from her mother’s account, the daughter’s response was “there is no point in her being the wealthiest woman in the graveyard”.  The case doesn’t report whether any of the money which had been taken was recovered.

The judge decided that the daughter had behaved in a way which contravened her authority and was not in her mother’s best interests.  The LPA was revoked and the local authority was appointed as deputy to manage the mother’s property and financial affairs.  This wouldn’t have been the donor’s wish when the LPA was made.  If the attorney had read the terms of the appointment she might have understood her responsibilities and carried them out appropriately.

At Harris + Harris we aim to help you make the right decisions, at the right time. We have experienced solicitors in both our Wells and Frome offices who can make sure your LPA has the effect you intend, and your wishes are carried out.

Contact Annemarie Swainson or Joshua Eva in Wells or Caroline Fletcher in Frome.

Consumer Rights – all change again . . .

In May 2014 we wrote about the new Consumer Contracts Regulations. Consumer law is set for a major change later this year, and all traders dealing with consumers will need to prepare for that.

The Consumer Rights Bill is currently before Parliament. This will implement the EU Consumer Rights Directive and codify consumer law that is currently set out in a number of fragmented (and sometimes inconsistent) pieces of legislation, some of which date back to the 1970s. In particular, it introduces consistent definitions of key concepts (such as who classifies as a ‘trader’ or ‘consumer’), introduces new statutory rights and remedies for consumers, and updates and modernises the law, in particular for the digital economy.

The Bill sets out a series of tiered remedies for the consumer in the event the consumer’s statutory rights are breached. These comprise:

  • A short-term right to reject the goods, lasting 30 days. If the consumer requests that the goods be repaired or replaced (see below), this is extended by the time taken to repair or replace) or 7 days from the date of return (whichever is longer);
  • The consumer may also require the trader to repair or replace the goods at the trader’s cost, and within a reasonable time and without causing significant inconvenience to the consumer (unless this would be impossible, or the costs required would be disproportionate compared to the consumer’s other remedies).
  • If the trader refuses to repair or replace the goods or is unable to do so at the first attempt, or if the consumer cannot enforce this right as it would be impossible or disproportionate, the remedies move on to the next tier;
  • The next tier is a right to an appropriate price reduction (up to the full price paid by the consumer), or a final right to reject. The final right to reject is subject to a right of deduction for use, to take into account the use the consumer has made of the goods since they were delivered.

The Department for Business, Information and Skills (BIS) intends that the Bill will come into force on 1 October 2015 and intends to publish guidance on the Bill in April 2015. This will give businesses six months’ notice to make the changes required to inform consumers of their new rights in relation to faulty goods, services, or digital content.

The primary source of information will be the Trading Standards Institute Business Companion website, which will present general advice and also more detailed advice on the law.

Businesses will need to plan to review and update their terms and conditions for consumers once the Bill is passed and the Guidance issued, and review their sales processes and staff awareness so they are ready for the planned implementation in October 2015.

Contact: Neil Howlett

Copyright for Photographers

Copyright for Photographers

Neil Howlett, Commercial Law Partner at Harris & Harris, gave a talk on 16th January 2015 to the members of Wessex Camera Club on copyright for photographers. This covered what could be protected by copyright, and the practicalities of taking photographs in public places. He also advised them about protecting and exploiting their rights, something which has become much more difficult in the modern world of digital photography and publishing.

As in any other context good evidence and record keeping are the start. People are much better protected if they put in place good legal agreements; model releases, licensing agreements, and contracts when they are commissioned to take photographs. They should define who can do what and be practical. Legal documents can never give 100% protection but without them the position of a rights owner may be worse.

Harris & Harris are happy to help photographers and others in the creative industries with legal agreements.

There is plenty of reliable advice available for free. The Intellectual Property Office (IPO), the Government body responsible for Intellectual Property Rights, publishes useful material written in plain English. Their Copyright Notice 1/2014 “Digital images, photographs and the Internet” explains how to use digital and photographic images on the internet. The IPO also provides online tools including IP Equip training and an IP Health Check, to help you create value from your ideas, turning inspiration into sustainable business success.

Please contact Neil Howlett