Kent Solicitors

noreply@blogger.com (Jane Friel) — Tue, 07 Feb 2012 14:48:00 +0000

In November 2008 the BBC reported that the “High Street legend Woolworths has buckled under its debt and is set to go into administration”, and everyone thought that was that!

As a result of the closure of Woolworths’ operations all of its employees lost their jobs. The administrators of the business failed to consult collectively about redundancies, and in due course the employees’ issued claims in the Employment Tribunal. The Employment Tribunal has now held that the administrators had failed to comply with their legal obligation to consult collectively about redundancies and has awarded the ex-Woolworths staff compensation up to £67 million. Employers should note, if they are considering making redundancies, whether they are going into administration or not, should seek legal advice regarding the process before making any decisions. As can be seen from this case, any hasty action or incorrect decisions can turn out to be costly.

If you need any employment advice as an employer or employee contact Selwan Yousif on 07795 821 803 or email sy@kaslers.co.uk

Tenancy Agreements and the Unfair Terms in Consumer Contracts Regulations 1999

noreply@blogger.com (michael) — Fri, 23 Dec 2011 16:03:00 +0000

The Unfair Terms in Consumer Contracts Regulations 1999 (“the Regulations”) is a UK legislation which implements the EU directive into domestic law.

The majority of residential landlords and tenants enter into contract as consumers and therefore the Regulations will apply. Accordingly, knowledge of Regulations is essential in drafting and negotiating any tenancy agreement.

In general under the Regulations care must be taken by the landlord in limiting the tenant’s right in the following areas:

· Clauses which impose any penalty or charge on the tenant must state that the charge should be both reasonable in amount and reasonably incurred. For example, clauses which require the tenant to pay a sum in excess of the landlord’s actual loss will be considered unfair and unenforceable.

· Clauses which require the landlord’s written consent, must be followed by the words “consent not to be unreasonably withhold or delayed”.

· Clauses which limit or exclude rights of a tenant are almost certainly going to be the breach of the Regulations and be deemed unfair. For example, the court has held in a deciding case that the clause in a tenancy agreement which prohibited the tenant to do anything which in the landlord’s opinion might be or become a nuisance was unfair and unenforceable.

· Clauses which are difficult to understand, legal terminology which is not in common use or legal jargon with a specific legal meaning which may not be understood by an ordinary person is considered to be unfair. Terms such as ‘indemnity’, ‘lien’, ‘joint and several’, ‘liquidated damages’, ‘void or voidable’, ‘estopped’, ‘demised’ are considered unfair unless a clear explanation is given alongside.

Without a good knowledge of the Regulation and tenants’ rights, one may unwittingly beach the rights of a tenant while drafting a tenancy agreement. This is why non-lawyers must be very careful when drafting or amending tenancy agreements.

Alireza Nurbakhsh Ph.D Solicitor: Tel. 0845 270 2511

Eviction Without Court Order is a Criminal Offence

noreply@blogger.com (michael) — Mon, 19 Dec 2011 16:00:00 +0000

Private landlords should take care not to commit harassment and force the tenant to leave the property without a court order. The harassment of a tenant intending them to leave the property is a criminal offence as well as a tort (civil wrong).

In a recent case the tenant lost her job as a cafe worker and applied for housing benefit. There was a delay in getting the money from the council. The landlord started sending the tenant text messages on a regular basis demanding rent. Although none of these texts contained obscene language, the court’s finding was sending text demanding rent on a daily basis amounted to harassment.

Although the council warned the landlord not to take any action until the tenancy had been formally surrendered, the landlord ignored the council’s advice and changed the locks.

The landlord finally pleaded guilty to one offence contrary to the Protection from Eviction Act 1977 and the District Judge Anthony Browne ordered the landlord to pay £250 fine plus £15 victim surcharge plus £425 in legal costs and in his judgment he stated: “Sending texts on a daily basis demanding rent would unsettle anyone. In the face of advice from the council, which was to do nothing, you took the thing back into your own control, which was unacceptable.”

Alireza Nurbakhsh Ph.D Solicitor: Tel 0845 270 2511

Employment Law Reforms

noreply@blogger.com (michael) — Fri, 09 Dec 2011 09:38:00 +0000

Chancellor George Osborne has announced two major changes to Employment Law cases that he hopes will reduce the number of employment tribunal claims and boost the economy.

Firstly the qualifying period for unfair dismissal will be increased from one year to two years with effect from 1 April 2012.

Secondly fees will be introduced for tribunal claims, namely:

· An issue fee of £250

· A further fee of £1,000 when the claim is listed for hearing

· Higher fees if the claim is over £30,000

· Fees to be refunded if the Claimant wins and forfeited if they lose

· Fees to be waived where the Claimant has no money

Contact our employment team on 0845 270 2511

Legal Expenses Insurance

noreply@blogger.com (michael) — Sun, 04 Dec 2011 09:35:00 +0000

For some time it has been quite clear that legal expense insurers cannot restrict an insured’s right to choose his own solicitor, but that does not mean that the solicitor can necessarily charge his normal hourly rate.

In Brown-Quinn v Equity Syndicate Management the Judge held that whilst a solicitor may not be able to charge his normal hourly rate, the insurer cannot insist that he receives only its panel rate.

On the conclusion of the case, the hourly rate payable by the insurer will be assessed as a reasonable hourly rate having regard to the insurer’s standard panel rates. In particularly complex cases the panel rate becomes less important as a guide and other considerations will apply i.e. the complexity of the case and the need for senior and/or specialist fee earners to be involved.

Felicity Keeler, Senior Paralegal tel 0845 270 2511

Part 36 Offer – time limitations

noreply@blogger.com (michael) — Mon, 28 Nov 2011 09:34:00 +0000

A recent Court of Appeal decision has clarified the issue of whether or not a Part 36 can be time limited.

In C v D [2011] EWCA Civ 646 the claimant purported to make a Part 36 offer to settle a dispute. However, he specified that the offer was only open for acceptance for 21 days. The offer was not withdrawn by the Claimant and the Defendant decided to accept the offer outside of the 21 day period.

The Court of Appeal considered whether the offer lapsed after 21 days or whether the Claimant simply intended the offer not to be withdrawn for 21 days.

It found that a part 36 Offer cannot be time limited. The offer lies on the table until formally withdrawn. In this instance the 21 day limitation period was to be read as meaning that the offer would not be withdrawn within the 21 days.

The Defendant was free to accept the offer.

Care should be taken to formally “withdraw” any Part 36 Offer that is no longer open for acceptance.

Employment law changes

noreply@blogger.com (michael) — Wed, 23 Nov 2011 09:25:00 +0000

There could be at least 3 major changes to the way in which employer / employee disputes are managed

1. An employer may be able to have a 'protected conversation', with an employee about performance / on-going employment, without the employer fearing that his words will be used against him a constructive dismissal claim

2. There may be fees for bringing employment tribunal claims

3. The unfair dismissal qualifying period may go up from one year to two years with effect from April 2012

Michael Breeze, Solicitor tel. 0845 270 2511

Employed or “Self-employed” ?

noreply@blogger.com (michael) — Mon, 21 Nov 2011 11:53:00 +0000

The Southampton Employment Tribunal has found at a pre hearing review (PHR) that a ‘self-employed’ independent financial adviser (IFA) was an employee.
Key to the Tribunal’s decision in Johnson-Caswell v MJB (Partnership) Ltd was the level of control the employer exerted over the IFA in order to ensure compliance with FSA rules.

When Johnson-Caswell’s contract was terminated he lodged several claims including a claim for unfair dismissal.

At the PHR it was held that MJB Ltd exercised a ‘sufficient degree of control’ and the ‘control’ test laid down in the Ready Mix concrete case was met, thus Johnson-Caswell was held to be an employee.

That the control was exercised in order to meet the firm’s FSA obligations was irrelevant and the test was met despite Johnson-Caswell’s autonomy in determining how he worked and charged his clients.

This is a first instance decision but it is likely to cause concern to firms who are FSA regulated and may well impact on other regulated industries.

Call Vanessa Wheeler 07852 658 865 or email vjw@kaslers.co.uk

Service Charge for works to leasehold flats

noreply@blogger.com (michael) — Wed, 07 Sep 2011 08:00:00 +0000

In general terms, where a landlord (L) proposes to carry out works and recover the cost from the tenants (Ts) by way of service charge, he must consult first

The rules apply to “Qualifying Works” i.e. works to which an individual T will have to contribute more than £250

In those circumstances, L must

1. Give notice (“Stage 1 Notice”) of intention to carry out the works to each T and any recognised tenants’ association. This must describe, in general terms, the proposed works (and a description must be available for inspection); state why L believes the works are necessary; invite written observations within 30 days; and invite nominations for contractors within 30 days

2. Have regard to observations made within the 30-day period

3. Try to obtain an estimate from contractors nominated during the 30-day period

4. Serve a Statement

a. Summarising at least two estimates. Any estimates from contractors nominated by Ts must be included. All estimates must be made available for inspection and so, if not too much paper, it might be better to attach copies to the Statement

b. summarising any observations made and L’s response to those observations

c. inviting written observations on the estimates within 30 days (the Stage 2 Notice)

5. Have regard to observations made within the 30-day period

6. If he chooses to contract with his own contractor (i.e. one not nominated by Ts) or one who did not give the lowest estimate, serve written notice of his reasons for his choice and a summary of , and his response to, any observations received in response to the Stage 2 Notice

If he does not follow this procedure, L will be limited to recovering just £250 from each T in respect of works

There is a similar but slightly different procedure for “Qualifying Long-Term Agreements” i.e. service agreements entered into by L which will run for over 12 months and where the contribution payable by the T will exceed £100 in any service charge year

Michael Breeze, Kaslers Solicitors LLP - 0845 270 2511

Probate valuations

noreply@blogger.com (michael) — Fri, 19 Aug 2011 08:00:00 +0000

When applying for Probate it is important to make sure that any valuations given are accurate.

HM Revenue & Customs are ever more vigilant in checking valuations to ensure that they are correct and will impose penalties of up to 100% of the additional tax liability if they are not.

Where an estate is likely to be above the tax threshold, we strongly recommend that you use a qualified valuer to make sure that valuations are as accurate as possible.

Vanessa Adamson, Kaslers Solicicotrs LLP tel 0845 270 2511

THE IMPORTANCE OF MEDIATION

noreply@blogger.com (michael) — Wed, 13 Jul 2011 08:00:00 +0000

It is a known fact that litigation is an expensive process. Most often the parties involved in litigation, whether they win or lose, notice that they have spent far too much in the process and wish if there was a way they could have avoided the legal expenses.

The courts being cognizant of costs in litigation have always encouraged the parties to participate in mediation and to find mutually-agreeable solutions to their conflicts.

Mediation has many advantages. The mediation process generally takes much less time and it far less expensive than litigation. It is also a confidential process. No one except the parties involved in the mediation and the mediator know what has gone in the course of mediation. In addition, mediation is a flexible process and the result is achieved by negotiations among the parties in dispute. This is unlike a court order which is imposed by a judge which may be unsatisfactory for all the parties involved.

The disadvantage of mediation is that it is not binding and the parties can walk away from it at any point during mediation.

The mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and in working with difficult situations.

Under current rules, the loser has to bear the costs of litigation but this is subject to the court’s discretion which takes into account (a) conduct of the parties and (b) efforts made during proceedings to resolve the dispute. Thus the refusal of a party to engage in mediation has always been regarded by the courts to have adverse costs consequence for the non-participating party.

In a recent case, the above principle was reaffirmed by the court. The case involved a householder in dispute with a builder over the construction of a garage which costs some £50,000. The householder made offers of settlement both before and after the proceedings were issued and made it clear that she was willing to attend mediation. No reply was received. The householder made further offers of mediation throughout the proceedings that was again left unanswered.

At the trial, the court awarded damages of £2,500 to the builder but the court refused to make an order for costs against the householder. The court held that the householder made repeated offers for mediation which has been ignored and the facts indicated that mediation would have had reasonable prospects of success.

Alireza Nurbakhsh Solicitor- telephone: 0845 270 2511

Non-party costs order

noreply@blogger.com (michael) — Sat, 02 Jul 2011 08:00:00 +0000

In a recent case, the judge ordered non-parties to pay the successful Claimant’s costs.

Proceedings were issued by M against C a company. C was insolvent and unable to fund a defence to the proceedings. Several of C’s shareholders, having an interest of their own to protect, agreed to fund the defence and took an active part in controlling the litigation by taking major decisions themselves.

The Court held that four of the nine shareholders had not played an active role in the defence and were not liable to contribute to the costs ordered to be paid to M. However, the Court found that the remaining five shareholders had taken a decision to fund the defence and in doing so were acting outside their usual role in the ordinary run of cases. They Court ordered that they were jointly and severally liable for M’s costs.

Care should be taken when agreeing to fund litigation and if necessary legal advice sought as to the possibility of a non-party costs order being made.

Felicity Keeler: Senior Paralegal Civil Litigation telephone 0845 270 2511

Exercising Break Clauses and the Usual Pitfalls

noreply@blogger.com (michael) — Wed, 29 Jun 2011 11:50:00 +0000

A break clause in a commercial lease allows either or both parties to end the lease prematurely i.e., prior to the expiration of the term.

There are a number of pitfalls for a tenant in the correct exercise of the break clause.

The clause is usually drafted to stipulate that the tenant can break the lease only if all the covenants under the lease have been complied with. Therefore, the landlord usually insists that the tenant must be in full compliance of the covenants of the lease at the time of exercise of the break clause. This means for example that if the tenant is in breach of the repairing obligation under the lease, the tenant cannot exercise the break clause.

The timing of the notice is another crucial factor in the correct exercise of the break clause. The courts have taken the view that time will be of the essence unless the break clause states otherwise. To this end the landlord may require a strict timetable and a specific method of service of the notice to break the lease.

The break clause usually stipulates that at the time of its exercise the tenant must give vacant possession of the premises. If the tenant is unable to do so, the landlord may insist that the lease has not come to an end. The courts have interpreted “vacant possession” in a narrow sense as “the property was empty of people and that the purchaser was able to assume and enjoy immediate and exclusive possession, occupation and control of it.” This means that the tenant cannot be engaged in repairing the premises after the tenancy has come to an end in accordance with the terms of the break clause.

Alireza Nurbakhsh: Commercial Property Solicitor 0845 2702511

The Bannatyne Charitable Trust (Parachute Jump 2011)

noreply@blogger.com (michael) — Tue, 28 Jun 2011 15:31:00 +0000

The Bannatyne Charitable Trust was set up in March 2007 and has helped focus Duncan Bannatyne's charity activities to support a group of worthy causes whose excellent work has a positive impact on the lives of people across the world. Every penny donated to the Bannatyne Charitable Trust will be sent on to charities to fund their wide and varied projects. The Trust helps in various ways from housing children with HIV and Aids in Romania, feeding 16,000 school children on a daily basis in South Africa to helping injured soldiers regain their lives.

The parachute jump is in aid of the Pilgrim Bandits. In 2010 the Pilgrim Bandits became recognised by the Charity Commission as a Charity in their own right. Being a charity will allow them to take Forces amputees on adventure challenges and help them regain their confidence, it will also enable them to support smaller forces projects. They also hope to be able to fund research and development into Prosthetics for our wounded soldiers. For more info please visit www.pilgrimbandits.com All money raised via the Bannatyne Charitable Trust will be doubled and sent on to the Pilgrim Bandits Thank you for your support.
Please support Robert by donating http://tinyurl.com/6ggad6r

Donation target - £4,000. Currently at £1,912.50 the Bannatyne (Dragons Den doubles my total). In reality I am nearly there.

Buyers Should Inspect Premises Prior to the Exchange

noreply@blogger.com (michael) — Sun, 26 Jun 2011 09:15:00 +0000

It is not an uncommon problem for the seller to remove fixtures and fittings of a property and sell the property “in its present state and condition.” There have been cases where the seller removed all the light bulbs or even the waste disposal unit leaving no waste pipe in its place, so when the buyer turned on the tap in the kitchen the water came out on the floor!

Leaving the issue of fraud aside, the moral of such cases for the buyer is always to inspect the property immediately prior to the exchange of contracts and make sure that all fixtures and fittings are still in the property and the property is not damaged.

The importance of inspection immediately before the exchange became paramount in a recent court case. The buyer inspected the property over many hours and two weeks before the exchange took place. However, between then and the date of exchange thieves stole many of the fixtures causing about £300,000 damage.

The question before the court was who was liable for the loss: the buyer or the seller? The judge ruled that in the absence of fraud the contract placed the risk on the buyer. The buyer should have inspected the property immediately before the exchange to ensure all is in order.

Alireza Nurbakhsh - Commercial Property Lawyer - 0845 270 2511

Part 36 Offer – Time Limits

noreply@blogger.com (michael) — Thu, 23 Jun 2011 08:00:00 +0000

A Part 36 offer is a formal offer made by one party to the other ,either before or after proceedings are issued, with a view to settling a dispute. If the offer is accepted, that compromises the dispute. If the offer is declined, it will not be disclosed to the judge until after he has made his decision and then it may carry costs consequences

CPR Part 36 does not allow for a time limit to be set for the acceptance of an offer which purports to be a Part 36 Offer.

An offer to settle which purported to be made under Part 36 of the CPR included reference to the offer “being open” for 21 days from the date of the letter and to the costs effects of a failure to accept the offer within the “relevant period”. Almost a year later the offeree purported to accept the offer.

The Judge found that Part 36 did not allow for a time-limited offer. Offers made under Part 36 remain open for acceptance until withdrawn in writing. However the Judge accepted that the words “open for 21 days” could be read to mean that the offer would not be withdrawn within the 21 days and further they were a warning that after 21 days the offer could be withdrawn.

In this instance the Judge found that the offer had been made under Part 36 and attracted the costs consequences of that rule. However, care should be taken when drafting a Part 36 offer to ensure that the provisions of the rule are correctly applied otherwise the Court may rule that the offer was not made under Part 36 and that the costs benefits do not apply.

Setting aside Judgment and dishonesty

noreply@blogger.com (michael) — Mon, 20 Jun 2011 08:00:00 +0000

An application to set aside judgment was refused by the Court on the grounds that the defendants had given inaccurate and dishonest explanations. The Judge allowed his findings as to dishonesty to cloud his view of the proper approach to the application and did not consider whether the defendant’s had a real prospect of successfully defending the claim.

On Appeal it was held that the judge was not entitled to rely on his finding of dishonesty to refuse the application to set aside. He should have considered whether the defendants had a good chance of successfully defending the claim. No matter how badly behaved the defendants, if their defence had a real prospect of success, judgment should have been set aside.

If thought necessary, the Court could reflect the dishonesty when dealing with costs, but the defendant’s should not be denied the chance of a fair trial.

Leaseholders Right to Manage

noreply@blogger.com (michael) — Fri, 17 Jun 2011 08:00:00 +0000

The Commonhold & Leasehold reform Act 2002 established a right for leaseholders to take over the management of their building, subject to meeting certain conditions. In situations where leaseholders or tenants of flats let on long leases are unhappy with how their building is being managed, they, together with their neighbours, may be able to take over the management of their building. In order to make it easier to assess if you and your neighbours are able to take over the management of their building, the Government has launched an online tool called “The Right to Manage Assessment Tool” which provides a simple online questionnaire which breaks down the eligibility criteria by way of a series of yes or no questions. To use the new tool, and see if you could take over the management of your building follow this link: http://righttomanage.cflabs.org.uk

For further information contact our Property Department who will be pleased to assist you.

Inheritance Tax and Property Valuations

noreply@blogger.com (michael) — Tue, 14 Jun 2011 08:00:00 +0000

The Revenue are increasing the number of challenges they make on property valuations in the administration of estates. They are concerned that beneficiaries/executors are undervaluing properties to save on Inheritance Tax.

Inheritance Tax is payable on the value of an estate worth over £325,000 at the rate of 40%. Therefore on an estate liable to Inheritance Tax if the property is undervalued by say £20,000 this means the Revenue lose out on £8,000 tax and they are seeking to recover such loses. If an incorrect valuation is submitted the Revenue can also fine the estate as well as claiming the additional tax payable.

Beneficiaries and Executors are therefore advised to get several valuations of the property before submitting the figures to the Revenue to calculate the tax.

Assignment vs. Novation

noreply@blogger.com (michael) — Fri, 03 Jun 2011 08:00:00 +0000

When a party assigns its rights under a contract (“the assignor”) to a third party, he may do so without the consent of the other parties of the contract. However, the assignor will always remain liable under the original contract. This is another way of saying that with assignments of rights, the obligation under the contract remains with the assignor. For example, if Party A contracts with Party B to sell Party A's car to Party B for £10, Party A can later assign the benefits of the contract - i.e., the right to be paid £10 - to Party C. In such circumstances, C cannot sue B for breach of the terms of the contract between A and B and similarly B cannot sue C if the car turns out to be defective.

Unlike assignment, novation replaces the original party with a new party and therefore for a valid novation (a) all parties must assent to novation, (b) there must be previously valid contract, (c) the duties provided for in the contract be extinguished immediately, and (d) a new, enforceable contract need be created.

Not many businessmen appreciate the legal distinction between assignment and novation but it proved fatal in a recent case.

Mr Hall who operated through a limited company entered into an agency agreement with Mr Barnett who was trading as a partnership. Three years later, Mr Barnett for tax reasons, incorporated a company and continued its business through the newly formed company.

Mr Barnett then sent formal notices to all his clients and asked his clients to pay cheques out the company and he also changed the relevant stationary accordingly to show the proper name of the company. Mr Hall continued to pay Mr Barnett’s invoices under the agency agreement to the newly formed company of Mr Barnett.

Two years later Mr Hall found out that Mr Barnett was promoting his own products and sent a notice to Mr Barnett for breach of the agency agreement and gave him three months notice of termination. Mr Barnett then started a claim against Mr Hall for damages for compensation under the agency agreement in the sum of £190,000. The claimant in this case was Mr Barnett’s company.

In the hearing the judge agreed with Mr Hall that Mr Barnett has no standing to bring a claim, as Mr Barnett’s company was never the beneficiary under the Agency Agreement. The judge ruled although the benefit of Mr Barnett’s partnership was assigned to Mr Barnett’s company, the liability under the agency agreement still remained with Mr Barnett’s partnership.

In respect of the agency agreement, Mr Barnett should have substituted his partnership with his company by means of a novation agreement between three legal entities, Mr Barnett’s partnership, Mr Barnett’s company and Mr Hall’s company. Mr Hall’s consent would have been necessary for any novation agreement.

Agency Workers Regulations

noreply@blogger.com (michael) — Tue, 31 May 2011 11:08:00 +0000

The Agency Workers Regulations come into force 1^st October 2011 and will affect all employers who engage Agency Staff.

The Regulations (AWR) provide that after a qualifying period of 12 weeks an agency worker will be entitled to the same pay and other basic working conditions as if the agency worker had been hired direct by the employer, including annual leave, overtime, night work and rest periods.

Under the Regulations both the hirer and the Agency will be required to provide information to each other and the worker regarding the hirer’s terms and conditions and changes to pay entitlements after the 12 week qualifying period.

Advertising – stationary vehicles on farmland

noreply@blogger.com (michael) — Sun, 22 May 2011 08:00:00 +0000

Farmers beware! Ad-covered vehicles parked on your land could lead to a prosecution for breach of planning regulations.

A farmer parked ad-covered vehicles on his land alongside the M62.

The Local authority (LA) objected on the basis that the vehicles were being used primarily for advertising in breach of planning laws.

The Court applied a two-part test.

1. Were the vehicles normally employed as moving vehicles - if they were not an offence would have been committed

2. If they were moving vehicles were they being used principally for the display of advertisements – if they were then an offence would have been committed.

In this case, the LA were unable to prove that the vehicles had remained stationary and the case collapsed. However, if they had been able to show that the vehicles did not move and that they did not have a primary agricultural purpose they would have succeeded.

Felicity Keeler Senior Paralegal – tel: 0845 270 2511

First two Trade Mark Judgments delivered by Patents County Court

noreply@blogger.com (michael) — Thu, 19 May 2011 08:00:00 +0000

Fundamental changes to the Patents County Court ('PCC') aimed at providing an affordable forum for Intellectual Property ('IP') litigation for small and medium sized businesses were introduced in October 2010. The revised procedural scheme aims to enable businesses to take effective action to protect their IP rights at reduced cost and complexity compared to the High Court which continues to deal with larger, more complicated cases.

To read more about the reformed PCC recently issued click here

Please contact David direct on 07739 321 069 or click here to email him for advice on protecting your business' brands or in relation to any other aspect of IP.

David Varney Intellectual Property Solicitor and Trade Mark Attorney

m: 07739 321 069

Freezing Injunctions

noreply@blogger.com (michael) — Mon, 16 May 2011 11:21:00 +0000

A freezing injunction is a court order that prevents the defendant from disposing of his or her property before the trial or sometimes even after a claimant obtains a judgment against a defendant. The effect of such an order on a defendant is very harsh. The court will grant a freezing injunction if there is clear evidence that the defendant will disperse his or her assets to prevent the claimant enforcing any later judgment.

A freezing injunction is usually obtained urgently and secretly and it is normal to apply to the court without notifying the other party. A freezing injunction also affects and binds third parties who have possession and control of the defendant’s property, such as banks, mortgage companies and potential buyers. The claimant can give notice to potential buyers and mortgage companies that the land is subject to a freezing injunction by applying to register a restriction on the property under s 42(1) of the Land Registration Act 2002.

Alireza Nurbakhsh Ph.D (Solicitor)

t: : 0845 270 2511

Foreign Property Anti-Avoidance Rules

noreply@blogger.com (michael) — Tue, 10 May 2011 08:00:00 +0000

If you own property abroad you should be aware that after your death, your estate may be subject to both taxation under English IHT rules as well as the taxation of rules of the country where the property is situated.

The treatment of the property for taxation purposes depends on whether you are domiciled outside the UK.

Domicile in relation to IHT may be established differently to domicile for other purposes. There are two anti-avoidance rules that are relevant:

1. If you have been resident in the UK for 17 of the last 20 years you are deemed to be domiciled in the UK for IHT purposes

2. If you were previously domiciled in the UK but die within three years of obtaining domicile in another country, you will still be considered to be domiciled in the UK for IHT purposes.

You should therefore seek the advice of an experienced Will Writer/Solicitor when drawing up your Will and considering Inheritance Tax provisions.