Disagreements between neighbours can usually be resolved with a little legal advice and goodwill on both sides. However, in one case where that sadly did not happen, a homeowner was left facing a six-figure legal costs bill after an abortive attempt to make an elderly couple move their garden shed and raised flower bed.

The man claimed that the structures encroached on a right of way giving access to the rear of his property. A land conveyance dating back to 1923 stated that the right of way should be 16 feet in width and he launched proceedings on the basis that the shed and flower bed had reduced that to 10.5 feet, creating a bottleneck that could not be passed by larger vehicles.

In rejecting his claim, however, a judge noted that the shed had been in place for more than 30 years, and the flower bed for over 40 years, and that their presence pre-dated construction of his home. When he purchased the plot on which his property was built it could not have been envisaged that he would enjoy a right to drive vehicles over structures that were already in situ.

In dismissing his challenge to that ruling, the Court of Appeal noted that there was no reference to a width of 16 feet in the conveyance by which he acquired the building plot in 2007. By that date the shed and flower bed had already been in place for decades. The man was ordered to pay the legal costs of the case, estimated at about £140,000.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Death and taxes are famously inevitable but the collection of revenue can sometimes be tinged with mercy. In one case, a carer who was coping with the loss of both her parents when her self-assessment tax return was due was excused from having to pay £1,300 in late submission penalties.

The self-employed therapist and counsellor had for several years looked after her mother, who had suffered a series of strokes, and her father, who had bowel cancer. The couple died within months of each other and, when she received a notice requiring her to file her tax return, she was in the midst of her bereavement and struggling to sort out their affairs whilst at the same time making a living.

In the circumstances, she missed the final date for filing her tax return by almost eight months and was issued with the penalties. HM Revenue and Customs refused to waive them on the basis that she had managed to run her business during her time of trial and it was her responsibility to deal with her tax affairs efficiently.

In upholding her appeal, however, the First-tier Tribunal found that she had a reasonable excuse for the delay in filing her return. Caring for her suffering and dying parents had taken up every minute of her time that was not devoted to her clients. Once she had managed to get her parents’ affairs in order, she had swiftly taken control of her own paperwork. The penalties were overturned.

For help and guidance on this or other private client matters contact Ravi Sandhu 0121 698 2200 or email, r.sandhu@sydneymitchell.co.uk.

Many people might think those who sleep on the job would not be entitled to be paid the National Minimum Wage (NMW) whilst their eyes are closed, but that is by no means always the case.  The Employment Appeal Tribunal (EAT) has given guidance on the issue in an important test case, particularly for the care sector.

The EAT was dealing with three appeals from Employment Tribunals concerning employees – two of them care workers – whose presence was required at night in order to respond to emergencies or otherwise perform their duties. The cases raised a common issue as to whether they were entitled to receive the NMW for the entirety of their shifts or only for those periods when they were awake.

In ruling on the matters, the EAT noted that a failure to pay the NMW when required can lead to penalties, and potentially criminal sanctions, against employers. The issue was of particular significance to the care sector, in which so-called ‘sleep-in’ shifts are common, and there was a pressing need for certainty in the law.

Recognising the difficulty of the issue, the EAT noted there is a clear dichotomy between those cases where an employee is working merely by being present at an employer’s premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on-call.

There was no single key with which to unlock the issue as to whether the NMW was payable during hours spent asleep. The test was a multi-factorial one that required an assessment of relevant factors, including an employer’s purpose in engaging a particular worker, restrictions on a worker’s personal activities during hours spent on-call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

The EAT acknowledged that such an approach meant that no one factor could be treated as determinative and did not provide as much clarity as might be desired. However, there was no bright line test and each case was likely to turn on its own facts. One of the appeals, brought by a couple who worked as wardens of a caravan park, was allowed and that matter was remitted to a fresh Employment Tribunal for reconsideration. The other two appeals, each brought by an employer in the care sector, were dismissed.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

Planning laws are complex and, before putting one brick upon another, it is always wise to seek professional advice. In one case that proved the point, a couple who almost doubled the size of their country cottage without planning permission were ordered to demolish the entire building.

The couple had knocked down a large part of the cottage and replaced it with a new house that had a floor area almost 70 per cent larger than the original and an internal volume nearly 100 per cent bigger. The property was in the Green Belt and the local authority’s response was to issue an enforcement notice requiring them to level the building to the ground.

The notice was later upheld by a government planning inspector on the basis that the works had gone beyond merely extending or enlarging the cottage and that the end result was a ‘new’ building that was fundamentally different from its predecessor. Although it did not have a harmful visual impact or interfere with any important views, it was, by definition, harmful to the openness of the Green Belt. The inspector’s ruling was subsequently upheld by the High Court.

In dismissing the couple’s challenge to the latter ruling, the Court of Appeal rejected arguments that the inspector had failed to adequately consider alternatives to the building's complete demolition. The inspector was entitled to find that it was an integrated whole and could not be split into acceptable and unacceptable parts. The house was an inappropriate development in the Green Belt and there were no very special circumstances that justified its retention.

Arnold & Anr v Secretary of State for Communities and Local Government & Anr. Case Number: C1/2015/1647

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

One of the unfortunate consequences of the prevalence of so called ‘crash for cash’ insurance frauds is that innocent motorists can come under suspicion. In one such case, a taxi driver was cleared of fraud by a judge and awarded more than £28,000 in compensation for his injuries and damage to his vehicle.

The man was at the wheel of his car when another car emerged from a side road and collided with him. He launched a claim against the other driver’s motor insurers but was met by an accusation of fraud. The insurers claimed that the accident had been staged and that both drivers had conspired together in a money-making scheme.

In rejecting those accusations, the judge found that a 999 phone call that the man had made from the scene of the accident had the ring of truth about it. His palpably honest evidence was consistent and convincing and the accident was genuine. The driver of the other car was also an honest witness and the judge was satisfied that neither man had any knowledge of the other before the accident.

The other driver had failed to see 'give way' lines at a junction in snowy conditions and was wholly responsible for the accident. In those circumstances, the man was entitled to full compensation and was awarded £28,070. The facts of the case emerged as the Court of Appeal dismissed the insurers’ challenge to the judge’s decision.

For further information on this article, please contact Mike Sutton on 0121 698 2200, email m.sutton@sydneymitchell.co.uk or fill in our online enquiry form.

The dividing line between ‘workers’ and ‘employees’ can be very difficult to discern, but is of the greatest significance. That was certainly so in the case of one man who worked for a charity for years without any form of written contract.

The man, who started out as a paid intern on a trial basis, received about £1,000 a month for performing a wide range of tasks, many of them concerned with assisting the charity’s founder in dealing with personal matters. Neither he nor the charity made any account for Income Tax or National Insurance Contributions.

Following his acrimonious departure, he lodged complaints with an Employment Tribunal (ET), which accepted that he was a worker but found that he was not an employee within the meaning of the Employment Rights Act 1996.

The ET found that the absence of a written contract or provision for holiday pay, and the fact that he was generally only remunerated when he worked, were inconsistent with employment status. As a result of that ruling, his whistleblowing and unfair dismissal claims were struck out.

In upholding his challenge to those aspects of the decision that were adverse to him, the Employment Appeal Tribunal found that the ET had erred in law. Those factors that were said to be inconsistent with employment status were in truth no more than pointers in that direction. The ET had also made an apparent factual mistake in respect of his receipt of holiday pay. The case was sent back to the same ET for fresh consideration.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

You have to be in possession of your faculties to make a valid will and that is one reason why you should not delay in asking a solicitor to help you put your affairs in order. In one case, a man’s execution of his will less than two months before his death from cancer gave rise to a High Court dispute between his relatives.

By his will, the man gave his widow the right to live in the matrimonial home free of rent for so long as she wished or until she began to cohabit. However, he appointed a daughter from a previous marriage as executor of his will and bequeathed to her the remainder of his estate save for a few keepsakes.

In challenging the will, the widow pointed out that, due to his illness, he was taking a number of powerful pain-relieving and other drugs when he signed the will. He was said to have exhibited confused and irrational behaviour and to have made unwarranted accusations of domestic abuse against her.

After hearing lay and expert evidence, however, the Court found that the man had the legal capacity required to make a valid will and had known and approved of its contents. Although he was likely to have suffered from opiate toxicity, that had not poisoned his affections or robbed him of the ability to discern right from wrong. However ill-founded his antagonism to his wife may have been, he was not precluded from arriving at a rational, fair and just testament.

For advice please contact Hayley-Jo Lockley on 0121 698 2200, email h.lockley@sydneymitchell.co.uk.

Legal and beneficial ownership of company shares are two very different concepts and, as one case strikingly showed, family judges have the power to look behind the corporate veil in ensuring a fair division of assets between divorcing couples.

The case concerned a group of companies that had been established by a highly successful businessman. A restructuring of his business affairs had resulted in shares in the group being placed in the legal ownership of members of his family. Following the end of his seven-year marriage, his ex-wife sought financial provision from him and argued that he was the beneficial owner of the shares.

In ruling on that issue, the High Court noted that the businessman was part of a close family whose members looked after each other. The restructuring was not a sham and was not motivated by a desire to reduce his wife’s entitlements. However, the businessman’s statement that he was running the group solely for the benefit of other members of his family was a blatant lie.

He had never intended to part with control of the business and, in the circumstances, the Court found that the other family members held their shares solely as nominees, or bare trustees, for his benefit. He was the 100 per cent beneficial owner of the group, its underlying companies and its assets.

If you need family law or child-care advice, contact Teresa Mannion on 0121 746 3300 or a member of the family law department  or complete our online enquiry.

Road accident victims can sometimes face a hard struggle to win just compensation from negligent motorists. However, specialist law firms do not easily give up the fight. In one case, lawyers representing a gravely injured cyclist won her the right to seven-figure damages after her life was ruined by a left-turning lorry.

The woman suffered three cardiac arrests and was unconscious for a month, in intensive care for 12 weeks and in hospital for 15 months following the accident. Catastrophic head injuries have left her intellectually impaired, wheelchair dependent and in need of 24-hour care.

Following a trial of her claim, a judge found the lorry driver 70 per cent to blame for the collision. He had been stationary, intending to turn left at a junction, but his vehicle had straddled two lanes. His indicator light had been masked from the cyclist’s view and he had not taken enough care in checking his mirrors.

In rejecting a challenge to those findings, the Court of Appeal noted that the lorry, due to its size and bulk, represented a grave danger to other road users, particularly cyclists. The judge had been entitled to conclude that, by the time the lorry began to turn left, it was too late for the woman to avoid the collision. The amount of her compensation has yet to be assessed but, given the extent of her disabilities, it is bound to be a seven-figure sum.

For further information on this article, please contact Mike Sutton on 0121 698 2200, email m.sutton@sydneymitchell.co.uk or fill in our online enquiry form.

Last year, the Court of Appeal upheld the view of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) that the Working Time Regulations 1998 can be interpreted so as to conform with EU law in respect of holiday pay (British Gas Trading Limited v Lock and Another).

Mr Lock's normal pay included a commission based on sales in the previous month, and this represented on average more than 60 per cent of his remuneration. As he could not achieve sales whilst on annual holiday, this meant that his pay for the month following was lower than usual. His claim for unlawful deduction from wages was upheld by the ET and the EAT.

In dismissing British Gas's appeal, the Court affirmed the position that holiday pay of just basic salary on its own is not sufficient if this is not the worker's normal remuneration, which was defined in British Airways plc v Williams and Others as remuneration that is 'linked intrinsically to the performance of the tasks which the worker is contractually required to carry out under his contract of employment and in respect of which a monetary amount is provided'.

The Court was, however, at pains to stress that its function was to do no more than deal with the current appeal and its ruling was confined to the particular facts of Mr Lock's case. Different facts might result in different outcomes. In addition, the Court was silent on the appropriate reference period for the calculation of the holiday pay.

The Court acknowledged that its decision leaves unanswered questions, but said that 'nothing in this judgment is intended to answer them'.

British Gas had sought leave to appeal against the Court of Appeal's ruling but permission has been refused by the Supreme Court.

The case will therefore be remitted to the ET to calculate the level of compensation payable.

If your business is affected by recent decisions regarding holiday pay and you would like advice on your individual circumstances, contact us.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.


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