The Brief

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					                                      The Brief
Spring 2006



Leading the field
Scotland’s different property              will be drawn. Some
culture has long ago seen the              commentators have
                                           even called the new
Edinburgh Solicitors Property
                                           system ‘the death knell
Centre     (ESPC)       become             of the provincial
dominant in the local housing              English law firm’.
market, with solicitors in
Glasgow and elsewhere quickly              It is likely that whoever

following suit. Overall solicitors         supplies the new pack
                                           will control the entire
now hold around half of the
                                           transaction,        with
estate agency market north of
                                           estate agents referring work to large-        Our own attempt to start an SPS outlet
the     border.    From        the
                                           scale ‘conveyancing factories’ owned          in Surrey met with a very disappointing
consumers’ point of view the
                                           and    controlled      by    the     agents   local response back in 1995, as a result
advantages are obvious – a
                                           themselves. This referral system is           of which we decided to go it alone.
professional, independent,
                                           already employed by Countrywide plc,          Since then we have been one of only
tightly     regulated         and
                                           owners of Carsons, John D Wood,               a small handful of law firms in the south
trustworthy profession dealing
                                           Bairstow Eves, Gascoigne Pees, Mann           of England to offer a one-stop property
with a transaction in a simple                                                           service. It seems that we were well
                                           & Co. and others. Customers are
one-stop          environment.                                                           ahead of the field.
                                           referred    to   one    of   their    three
However attempts to move                   conveyancing centres in Cardiff,
this business model south of
the border have met with
                                           Northampton and Manchester, with all
                                           contact carried out by telephone (when
                                                                                          Contents
limited success.                           you can get through!) or email. It is
Mark Smulian, a freelance journalist       likely that other non-solicitor suppliers      Leading the field                       page 1

                                           like the Co-op will also want to get in        •   why more solicitors are following
writing for the Law Society’s Gazette in
                                                                                              us into the estate agency business,
February 2006, attributes this to a        on the act.                                        10 years down the line
number of factors, including the
property recession of the early 1990’s     Perhaps because of this threat, the            End of an era                           page 2
but mainly a simple lack of                number of offices run by the English           •   we say goodbye to Norman Kidd
entrepreneurship by English solicitors.    equivalent of the ESPC, the Solicitors         Legal Q & A                             page 2
According to Mr Smulian all that could     Property Shop, has recently increased.         •   in this edition we turn our attention
be about to change with the introduction   At present the member firms are mainly             to the English civil court system
of Sellers’ Home Information Packs         located in the north of England, but with
(HIPs - see our summer 2005 edition)                                                      A day in the life                       page 3
                                           the trend moving south. Six are soon
which are now scheduled for launch on                                                     •   a look inside our busy litigation
                                           to be set up in the midlands. There are            department
1st June 2007. With the introduction of
this new and largely unwelcome system      now 58 such firms, who sold properties
                                           in 2005 worth a total of £164.3 million,       Where there’s a Will                    page 4
for house selling the battle lines
                                                                                          •   timely reminders for the intestate
between solicitors and estate agents       a rise of 20% in a single year.
End of an era So you think you know
Norman and Val Kidd retired from about …. Litigation
the firm on 31st December 2005.            Continuing our popular series of quizzes, in this edition we turn our attention to
Norman joined Bells from London            litigation and the civil court system.
firm Slaughter & May, having
                                           1. The correct mode of address for a           6. The document that instigates civil
served         his      articles   with       circuit Judge, sitting in the County           Court proceedings is called:-
Beachcrofts. He headed the                    Court is:-                                     (a) A Writ;
firm’s Private Client department              (a) Your Highness;                             (b) A summons;
                                                                                             (c) A claim form;
until his retirement from the equity          (b) Your Eminence;
                                                                                             (d) A Petition.
partnership in December 1999.                 (c) Guv’nor;
                                              (d) Your Honour.
He was senior partner from 1997                                                           7. Interest is usually payable on a
                                                                                             judgment, at the judgment rate as
to 1999. Thereafter he continued           2. Since the Woolf reforms of 1999,
                                                                                             prescribed from time to time under
with us as a consultant for six               the civil court system is divided into         the Judgment Debts (Rate of
years, looking after his many loyal           3 tracks. What are they called?                Interest) Order 1985. What is the
clients and gradually transferring            (a) Small claims, fast, multi-track;           current rate of interest?

responsibilities to his colleagues            (b) Slow, very slow, glacial;                  (a) 2%;
                                              (c) Slow, medium, quick;                       (b) 4%;
in the firm.
                                              (d) Inside, middle, outside.                   (c) 6%;
                                                                                             (d) 8%.
Val Kidd (nee Cairns) joined Potter &
                                           3. A small claim is a claim
Kempson in 1981. She married Norman                                                       8. Match the following offices
                                              up to a value of:-
in 1995 and the two of them continued                                                        to the current holders:-
                                              (a) £10,000;
to work as a husband-and-wife team                                                           Master of the Rolls;
                                              (b) £5,000;
throughout their time here.                                                                  President of the Queen’s Bench Division;
                                              (c) £5,000, but £1,000 in relation             Attorney General;
                                                 to personal injury cases;                   Lord Chief Justice.
All the staff attended a buffet in their
                                              (d) £500.
honour, held at the Bush Hotel in                                                            (a) Lord Phillips;
Farnham, on January 19th. We wish          4. The general rule for recovery                  (b) Lord Justice Clarke;
them a long and very happy retirement.        of a party’s costs is:-                        (c) Lord Justice Judge;
                                              (a) The winner pays the loser;                 (d) The Right Honourable the Lord

                                              (b) The loser pays the winner;                     Goldsmith QC.

                                              (c) Each side pays their own costs;
                                                                                          9. The Royal Courts of Justice
                                              (d) Each side pays the other’s costs.          are situated where in London?
                                                                                             (a) Pall Mall;
                                           5. Which of the following statements
                                                                                             (b) The Strand;
                                              are true in relation to a conditional
                                                                                             (c) Piccadilly Circus;
                                              fee agreement?                                 (d) Buckingham Gate.
                                              (a) A solicitor doesn’t get paid
                                                 if he doesn’t win the case;              10. The Statue of Justice atop the Old

                                              (b) A solicitor can charge an extra            Bailey in London carries a sword in
                                                                                             one hand, and a set of scales in the
                                                 ‘success fee’ if he does win the case;
                                                                                             other. Does she wear a blindfold?
                                              (c) A success fee is not recoverable
                                                                                             (a) Yes
                                                 from the opponent;
                                                                                             (b) No
                                              (d) A success fee is recoverable
                 Norman Kidd                     from the opponent.                          Answers on next page....
A day in the life
Our litigation department continues to go from strength to strength, and in particular
is developing a reputation for professional negligence work of all types. To give
you a glimpse of the sort of work this entails, here are some brief details of claims
that were concluded in January 2006 alone:-
The case of the negligent surveyor

Our clients, Mr and Mrs X, bought a property in Fleet for £320,000, having had a Homebuyers
Valuation and Survey undertaken by Colleys, surveyors (a subsidiary of their mortgage lender,
the Halifax, although Mr and Mrs X did not appreciate the connection between Colleys
and the Halifax at the time). The geology of Fleet is well known for causing structural problems
and this property had such severe subsidence that some of the walls were hanging from
ceilings rather than supporting them! Astonishingly the Halifax’s surveyor missed the problem.
Of course the property was unsaleable and there was no insurance cover as it was a pre-
existing condition. When our clients complained to the Halifax they admitted negligence
but denied liability and causation. An offer of £14,000 was put forward on a ‘without prejudice’
basis. The Halifax suggested a method of repair that was totally inadequate.
                                                                                                     Answers
We issued court proceedings and obtained expert valuation and engineering advice showing
the true extent of loss and the best method of repair. The case settled two days before              Question 1: (d)
trial, when we successfully negotiated a settlement of £105,000, together with our costs.            It is also quite permissible for witnesses
                                                                                                     to address the Judge as “Sir”. “Guv’nor”
Solicitors for the Halifax – Wragge & Co,. Birmingham.                                               is frowned upon.
The case of the negligent solicitor
                                                                                                     Question 2:     (a)
Our clients, Mr and Mrs Y, were looking to sell their starter home and buy something a bit
bigger. Their home had a small parcel of land attached to it and they agreed to sell both            Question 3:     (c)
plots to a developer. They instructed Guillaumes, solicitors, of Weybridge to act on their
behalf. Unfortunately their solicitor got into a bit of a muddle with the paperwork and prepared     Question 4: (b)
two separate contracts, but without linking them. He also agreed a split between the value           This is perhaps the main reason why the
of the house and the land that meant that the house was under-valued. The developer decided          ‘litigation culture’ so prevalent in the USA
to complete the purchase of just the house, leaving our clients with insufficient funds to           has never really taken off here in England.
complete their related purchase and a loss on the sale. Mr and Mrs Y were forced to re-
negotiate the sale, and the developer used its advantage to reduce the price considerably.           Question 5:     (a) (b) and (d)
To add insult to injury the solicitor failed to advise Mr and Mrs Y that completion had been
                                                                                                     Question 6: (c) or (d)
arranged leaving them just a couple of hours to arrange removals on the day of completion!
                                                                                                     A Petition is used mainly in family cases
This was initially a referral from the Law Society’s Consumer Complaints Service to our              and insolvency.
resident Negligence Panellist Dermot Burke. We took the case on a no-win/no-fee basis
and after intensive negotiation we were able to retrieve our clients’ losses, and their costs.       Question 7: (d)
                                                                                                     …making it an extremely good investment
Solicitors for Guillaumes – Beachcroft Wansboroughs                                                  at the present time!
The case of the negligent doctor
                                                                                                     Question 8:
Our client, Mrs Z, had breasts of differing sizes following the removal of a cyst from one of them   • Lord Phillips is Lord Chief Justice;
some years ago. She had had breast implants inserted to correct the problem but these developed      • Lord Justice Clarke is Master
problems and needed to be replaced. When she came into a bit of money from an inheritance              of the Rolls;
she decided to have plastic surgery to replace them and she went to Dr Walker at the BUPA            • Lord Justice Judge is President
hospital in Tunbridge Wells to have the operation carried out privately. Dr Walker negligently         of the Queen’s Bench Division;
used implants of the same size, meaning that Mrs Z again had unequal breast sizes after the          • The Right Honourable
operation. As a result she had to undergo further corrective surgery to remedy the problem.            the Lord Goldsmith
The doctor’s initial settlement offer was to carry out the second operation free of charge!            QC is Attorney
                                                                                                       General
We issued proceedings and eventually recovered damages of £9,500 together with our costs.

Solicitors for Dr Walker – Medical Defence Union Claims Unit                                         Question 9:     (b)

Professional Negligence claims are difficult and expensive to bring. Defendants are invariably       Question 10: (b)
insured and have deep pockets. In addition it is not always easy to find other professionals         Unlike our American
who are prepared to give evidence against a ‘colleague’. We know how to deal with these              cousins, the English
problems, hence the growing number of people coming to us for advice. If you would like some         prefer justice to be
help with a claim against a surveyor, architect, doctor, lawyer, accountant or other professional,   administered with
please contact Dermot Burke, Richard Baldock or Jane Branagan in our Litigation team.                eyes open.                 Statue of Justice
Where there’s a Will...
The ‘home-made Will’ has been described as the ‘toast                       Once the Will has been drawn up it is not effective until it has been
of the legal profession’, because of the amount of legal                    signed. There are several rules affecting the signature process which,
fees a disputed Will can generate! Yet a professional Will                  if not followed correctly, will make your Will invalid. This is where
costs very little – most solicitors regard this work as a                   the home-made Will often goes spectacularly wrong. For example,
loss leader. Why, then, does only one in two of us have                     witnesses and their husbands and wives cannot benefit under the
                                                                            Will. Many people use staff at their solicitor’s office to act as their
one? Perhaps it’s more to do with facing up to mortality;
                                                                            witnesses for this reason.
whatever the reason, now is as good a time as any to put
a tick next to this particular ‘To Do’ box. Let’s just remind               Having a solicitor help with the Will is a good way of avoiding potential
ourselves why it is so important.                                           challenges to it, e.g. because of alleged lack of mental capacity or coercion.

Without a Will, the State directs who inherits your property, so your       It is important to keep your Will in a safe place and tell your executors
friends, favourite charities and relatives may get nothing. It’s the        or a close friend or relative where it is. For a modest fee we will
difference between giving your money away and having it taken               keep your Will in our strong room
away? Why not be remembered for your generosity?                            – please ask for details.
It is particularly important to make a Will if you are not married to       Finally, you should review your Will
your partner. This is because the law does not automatically                at least every five years and after
recognise partners as having the same rights as husbands and                any major life change such as
wives. As a result, even if you’ve lived together for many years, your      getting separated, married or
partner may be left with nothing if you have not made a Will.               divorced, having a child or moving
A Will is also vital if you have children or dependants who may not         house. It is best to deal with any major changes by getting a new
be able to care for themselves. Without a Will there could be               Will drawn up. However it is also possible to make minor changes
uncertainty about who will look after them if you die.                      to your existing Will by way of short documents known as ‘codicils’.
                                                                            In both cases it is best to consult a solicitor.
One thing that is certain is that the tax man will be trying to take
as much as he can. If your assets exceed the Inheritance Tax limit          How much will it cost?
(currently £285,000) the Chancellor will send your executors a bill         Our charges for drawing up a Will are very modest by comparison
for 40% of the balance, some of which may have to be paid before            to the benefits that arise from it. Obviously Wills vary tremendously
the Will can be admitted to Probate. Originally introduced as a tax         in line with the size of the estate and the complexity of any
on the super-rich, this regressive tax now catches a lot of people.
                                                                            dispositions but our current charge for the preparation of a
In 1998 there were 19,000 estates liable to the tax. This rose to
                                                                            straightforward Will is £127.50 plus VAT. We charge £175.00 to
29,500 in 2003 - a 55 per cent rise.. The average house price in
                                                                            prepare two ‘mirror’ Wills for husband and wife. Not a lot for peace
the UK is now over £200,000. The good news is that there are ways
                                                                            of mind.
to avoid or minimise this tax burden – every year we save our clients
hundreds of thousands of pounds by advising them about the simple           For further information please contact Vivien Phillips, David
but effective measures that are available to help reduce tax.               Richardson, Simon Mee or any member of our Probate team.

This newsletter is intended for general guidance only and represents our understanding of the law as at the date of publication. We do not accept
responsibility for any errors or omissions that it may contain.




PROPERTY                                          COMPANY/COMMERCIAL                                   FAMILY
■ Estate Agency                                   ■ Share purchases/sales                              ■ Divorce / Separation
■ Residential conveyancing                        ■ Terms & conditions                                 ■ Children issues
                                                  ■ Asset purchases/sales                              ■ Financial settlements
■ Landlord and tenant
                                                                                                       ■ Cohabitation
■ Business leases                                 ■ Commercial agreements
■ Property development                            ■ Company procedures
                                                                                                       PRIVATE CLIENT
■ Re-mortgages                                                                                         ■ Wills and probate
■ Commercial property                             FINANCIAL PLANNING                                   ■ Trust law
                                                  ■ Savings and investment                             ■ Taxation
LITIGATION                                        ■ Retirement planning                                ■ Trust administration
■ Commercial disputes                             ■ Mortgages and life assurance
■ Partnership disputes                            ■ Tax and estate planning                            EMPLOYMENT
                                                                                                       ■ Compromise Agreements
■ Property disputes
                                                                                                       ■ Redundancy
■ Debt collection                                                                                      ■ Unfair Dismissal
■ Consumer problems
                                                      OUR SERVICES                                     ■ Contract drafting
■ Accident compensation                                                                                ■ Restrictive covenants

				
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