Civil Litigation
Crime
Debt Recovery
Employment
Family
Personal Injury
Probate
Property

Civil Litigation

Q.Our gas supplier has informed me and 29 other house owners on our estate that, as a result of wrongly-marked gas meters, we have been under-charged for our gas for the last three years. Do we have to pay back the amount we have been under-charged?

A.I’m afraid you do. You agreed to buy gas from your supplier at a given price. The fact that they’ve sent you incorrect bills, or that their meters were incorrectly calibrated, doesn’t alter the fact that you have paid less for the amount you’ve used than you initially agreed. You can ask to pay the deficit in instalments, however. I would ask for more detail about the meters and how they’ve reached the new figure: make sure you don’t pay today’s prices for gas you used three years ago.

Q.I took out a loan many years ago, and when I couldn’t pay it back the bank registered a caution against my property. I tried to pay off the loan three years ago, but the bank couldn’t find any details of the debt. I’m now trying to sell the house, but I’ve already lost a sale because it still hasn’t been sorted out.

A.The amount of the debt may be noted at the Land Registry, since the registry will have a copy of the original application to register a caution, even if the bank can’t find all the paperwork. If you have lost money because of the bank’s incompetence they will probably be liable to compensate you. Your solicitor should suggest to the bank that they write off your loan, failing which you will sue them, or (better still) ask the Financial Ombudsman Service to intervene. You can “warn off” the caution by sending a letter to the Land Registry. This puts the onus on the bank to show why the caution should remain on the register.

Q.BT is now saying we have to pay an extra £4.50 a month because we pay by cheque rather than direct debit. I find this excessive and unacceptable. Is it legal for them to do this? I don’t want to provide them with an open cheque on my business account.

A.There’s been a public outcry about this as you may be aware, and we have had a number of letters and calls about it. The fact is that BT and many other utility providers have offered a discount to customers who pay by automated methods for many years. The issue is one of presentation only. From May 1st BT included the discount in the standard rental tariff and instead showed a charge on the bills of people not using direct debit. Whether they were missing out on a discount or paying a charge, the effect is the same (although the discount/ charge has been increased). Ofcom has launched an industry-wide review to determine whether the level of the charge can be justified. But it’s legal because it’s included in customers’ contracts.

Q.I have rented a house for the last three years. Six months ago the owner died. I had no tenancy agreement, and although I have now been issued with a rent book no agreement has been forthcoming. I believe the new owners want to sell the property. What are my rights if they want me out?

A.The death of the owner doesn’t affect your legal position. As this is almost certainly an assured shorthold tenancy, the executors will have to give you two months’ clear notice in writing expiring on a rent payment date, which could give you nearly three months depending on the date you moved in. If you refuse to go the executors would have to obtain a court order to evict you, which may give you a further stay of execution, although they may claim the cost of the court action from you. If you are an assured shorthold tenant then I’m afraid your days are numbered though if they want you to leave.

Crime

Q.My son was involved in a car accident and was taken to hospital. Were the police allowed to take a blood sample from him without his permission and use it against him in court? Should the hospital staff have handed this blood sample over to the police?

A.Yes. The Police Reform Act 2002 added provisions to the Road Traffic Act 1988 giving the police new powers to ask a medical practitioner to take a blood sample whether or not the person consents in a number of situations. One such situation is where it appears to the police officer that the person has been involved in an accident that is under investigation. The sample cannot be tested in a laboratory without the donor’s permission, but failure to give permission can lead to prosecution and a prison term of up to six months on conviction.

Q.I used to work in the same shop as my sister. Shortly after I left she was accused of theft, and was eventually taken to court. I have had a visit from the police and I now understand that her solicitor wants to discuss my sister’s case with me. I know nothing at all about the allegations; am I entitled to refuse to become involved?

A.Yes, unless the police arrest you on suspicion of an offence. You certainly don’t have to attend a meeting with your sister’s solicitor, and if the police invite you to the police station “to help with inquiries” you are also entitled to refuse. If they suspect you of involvement however this would probably result in you being arrested. If the police wish to speak to you again it might be a good idea to telephone your solicitor who will discuss the issues with the investigating officers and arrange for an appointment for you to meet them if you are advised to do so. Legal advice in the police station is free.

Q.My partner has recently been imprisoned for more than eight years and would like some advice on appeals. Could he get more years added if he were to lose his appeal? Does he have only 28 days to appeal? When might he be eligible for parole?

A.If your partner wants to appeal a jury conviction in the Crown Court he will first need the permission of the Court of Appeal. You should discuss your concerns with his solicitor. The court has the power to increase sentences if it considers them to be over-lenient. Remission and parole have been replaced by a unified “early release” system. Prisoners serving four years or more may be released by the Home Secretary on parole board recommendation at any time between halfway and two-thirds of the way through their sentences. They are on licence and supervised by probation officers until three-quarters of the sentence has expired.

Debt Recovery

Q.After we sold our business my husband and I attempted to bring in the money we were still owed. It took five years to bring one particular debtor to court, where the judge found in our favour and ordered him to pay our costs. He has a farm and several racehorses, although I understand these assets are in his wife’s name. But our solicitor says it will cost at least £500 to pursue the money and we may still not get it.

A.People who don’t intend to pay what they owe often transfer their assets into the names of their wives so that, on paper at least, they own nothing that a bailiff could seize. In some circumstances the court can set aside such transfers, but of course these proceedings all cost money. Winning your case in court is often only the start of a process that can lead to your debt being repaid. You don’t say how much you are owed, but if it’s a substantial amount it may be worth £500 (which you could eventually recover) to pursue it. Bankruptcy proceedings (or the threat of them) are often a useful procedure where the debtor is hiding assets and where the debt is over £750.

Employment

Q.I was promised an extra £1,000 if I switched to a different job in the firm. I asked for the salary increase in writing, but the manager just said I’d have to take her word for it. However they’ve now gone back on this, and they won’t let me return to my old job where I was earning bonuses of up to £150 a month. It’s costing me money to do a stressful job which nobody wants! What can I do?

A.If you have any evidence that you were offered the £1,000 you could claim unpaid wages at an employment tribunal. However if you don’t I suggest you use the firm’s dispute resolution procedure. Make sure everything’s in writing, and put it to your manager that, since the increase didn’t materialise, there was no change to your employment contract and you intend to resume your old job. If you insist on this and it looks like you could be sacked you should see a solicitor with a view to claiming compensation for constructive dismissal. You should take advice about your chances of success and what amount of compensation may be involved before doing anything drastic.

Q.We have an employee who has worked for the firm for 28 years, but he has been off sick 12 months and the firm’s doctor says he is no longer capable of doing his job. We want to end his employment on medical grounds. Will we have to offer him different work under the Disability Discrimination Act?

A.If the employee’s illness is reckoned to be a “disability” within the meaning of the Disability Discrimination Act (it constitutes a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities) you should probably look at alternative employment for him, or make adjustments to his job if possible. If he isn’t suffering from a disability you can initiate normal disciplinary procedures, including inviting the employee for an interview to discuss his plans. You may need more detailed advice.

Q.I have just left a firm where I worked for ten years in order to join a competitor. Five years ago I was bullied into signing a contract which barred me from contacting any of their customers within six months of leaving their employment, and I have already received a letter from their solicitors reminding me of this. In this industry all customers or potential customers advertise widely, and are not solely the customers of the company I have just left. Can my previous firm hold me to this?

A.The courts don’t much like these restrictions, known as “covenants in restraint of trade” because they limit the individual’s freedom to find employment as they choose. However the clause in your contract is quite narrow; it doesn’t bar you from working for a competitor for six months, but only from attempting to poach your previous firm’s customers. It’s not stopping you approaching their potential customers. I think the courts might well uphold this, so you should tread carefully.

Family

Q.Some years ago I lived with a man for eight years. All I received when we split up was £1,000. I have been told I could have asked for more: does a “live in” partner, as opposed to a married woman, have any rights at all? I realise it’s probably too late now to do anything about it.

A.It’s possible, after eight years, that you would have been able to claim an interest in your partner’s home, assuming it was in his name alone. But in order to establish an interest you would have had to have spent some of your own money on it, either by paying towards the mortgage or on improvements. Either that, or you would have to have been able to show that there was an agreement or an intention to share ownership of the property. I take it there were no children. Children would have enhanced your claim considerably. If the relationship ended more than six years ago you are too late to pursue a claim now.

Q.My son was in a relationship three years ago and the girl he was with gave birth to a daughter. He has only seen her once or twice, but then the girl moved away. He doesn’t know where she lives and never gets a reply to messages he sends. My son is now settled and has another child and would like to see his daughter. Is there anything he can do?

A.It would appear that the mother doesn’t want any further contact with him, which is all well and good except that the daughter has the right to have a father. If (as it would appear) the girl hasn’t disappeared without trace it may be possible to persuade her informally to allow your son to see his daughter on a regular basis if she believes he is prepared to make a long term commitment. If this isn’t possible your son should (via a solicitor) contact a tracing agency to find the mother and take steps to acquire parental responsibility for his daughter and a contact order. He will probably end up paying maintenance via the CSA.

Q.I have been married for three years, and my wife’s children from a previous marriage live with us. Their father is still very much on the scene, and they stay with him at weekends. I would like to adopt them; what rights do I have, and how would I go about it?

A.While the father is around it’s most unlikely that you will be able to adopt your stepchildren. You would need their father’s consent, and while he’s involved with the children I very much doubt this would be forthcoming: it would mean he had no further say in their future. A court wouldn’t look at an application to adopt in these circumstances, and I doubt the children would welcome such a move, however well you get on with them. It’s important to remember that they also have a relationship with their father.

Personal Injury

Q.Five months ago I had a serious road accident involving a lorry. My insurance was fully comprehensive, but I have since been told by the police that I wasn’t legally permitted to ride a motorbike of that engine size. Will this prevent me claiming compensation for the accident?

A.If the other driver caused the accident the fact that you weren’t licensed to ride a bike of that engine capacity won’t stop you claiming damages. However your handling of the machine will come under close scrutiny, and it’s likely that there would be a finding of contributory negligence on your part. The other driver could argue, for example, that you would have been travelling more slowly on a less powerful bike. So any compensation you were awarded could be reduced accordingly. However you should see a solicitor specialising in personal injury cases without delay if you haven’t already done so.

Q.I suffered minor injuries in a fall and needed hospital treatment. I saw a solicitor who, on a “no win, no fee” basis, put in a claim to the other party’s insurers. I then received the solicitor’s agreement to sign, and read that I could be liable for the other party’s legal fees if I lost the case, or might have to make up any shortfall in costs awarded if I won. So I told the solicitor I couldn’t proceed with the claim owing to the financial risks involved. Can I be charged for the work done so far?

A.The solicitor should have explained the ins and outs of the conditional fee system to you before taking on your case. You should have been offered insurance (costing around £800) which would cover you in the event that you lost the case, and these days you are entitled to claim your solicitor’s “success fee” from the other party. Discuss the issue with your solicitor again. The solicitor is unlikely to attempt to charge you for the work involved in initiating the claim if he or she failed to explain the system to you. If you do receive a bill you should object in writing.

Q.I have been having problems with my right knee for the past four years. Five different consultants diagnosed arthritis and said nothing could be done. Now they say it’s a cartilage problem and I’m due to have an operation. They say I’ll be back at work shortly. Surely this should have been discovered before? Do I have a claim for negligence?

A.The more doctors who miss a problem then the easier it is for them to say they acted reasonably, since they will rely on each other’s actions. Nevertheless if the cartilage problem was present four years ago it’s understandable that you want to know why it was missed. It will be worth making a complaint to the hospital and then, if you’re still not happy, discuss your case in detail with a solicitor specialising in clinical negligence claims. Don’t delay.

Probate

Q.My wife and I have a joint bank account. We have made wills leaving everything to each other. What will happen when one of us dies? Will the account still operate, paying standing orders etc before probate is granted?

A.Yes. The money in the joint account automatically becomes the property of the survivor. The account can be transferred into the survivor’s sole name in due course, but will continue to function without a break. An account in the sole name of the deceased would be frozen and standing orders and direct debits would cease.

Q.I’m divorced, and as part of the financial settlement my husband was allocated 26% of the house and a charge has been registered against the property to reflect this. This is due to come into effect on my death; but what would happen if my ex-husband died before me?

A.I think it’s more likely that the charge will take effect and your ex-husband will receive his share when you either die, remarry or if the house comes to be sold. Check the wording of the order. If your husband is no longer alive at that point his share in the property will go to his nearest and dearest, like any other possession. It’s something he could leave to someone in his will.

Q.My elderly parents have recently made a will, but I’ve been told by friends that I am unlikely to see any of their money because of debts hanging over me, such as a mortgage repossession, loan arrears and credit card debts. They say these organisations would grab their chunk first, and there’d be nothing left for me. Is this correct?

A.They would only be able to take your inheritance first if you are a declared bankrupt. If you came into money - or it looked as if you were about to come into money - during the period of your bankruptcy, the trustee would be able to intercept it to pay off your debts. Your parents may want to redraft their will accordingly! If you are not bankrupt you will benefit from your parents’ will in the normal way. But if your creditors got wind of your inheritance they could take steps to intercept the money before it reached you.

Property

Q.When we bought our house on an estate our solicitor pointed out a covenant in the deeds barring householders from parking vans, caravans, boats etc beyond the building line. What he didn’t say was that the council don’t have to take any action to enforce this. All people see when they look out of their windows these days is the sides of huge vans. We bought our house on the assurance that this wasn’t supposed to happen.

A.It’s unlikely to be the council’s responsibility to enforce a covenant in your title deeds. It was probably put there by the original builder in an effort to keep up the estate’s appearance. I have to say such covenants are notoriously difficult to enforce. You could go to court to get injunctions against the culprits, but this would be expensive and may not make you popular with the van drivers in your neighbourhood. You could consider forming a residents’ committee to address the issue. A good first step would be to contact the developer to see if they’re prepared to take action.

Q.We were buying a house and agreed a price last May. The couple we were buying from have been stalling, saying they were unable to find another property. Now they have announced that they’re putting the price up by £30,000. Can they do that?

A.I’m afraid they can unless both you and they signed and exchanged contracts. Verbal agreements don’t count for anything when it comes to buying and selling land and property. Of course the house may have increased in value over the last six months in the current climate so some increase in the price may be justified. But you don’t have to pay it. It sounds to me as though the owners aren’t very interested in selling the property and you should look elsewhere.

Q.I took out a loan many years ago, and when I couldn’t pay it back the bank registered a caution against my property. I tried to pay off the loan three years ago, but the bank couldn’t find any details of the debt. I’m now trying to sell the house, but I’ve already lost a sale because it still hasn’t been sorted out.

A.The amount of the debt may be noted at the Land Registry, since the registry will have a copy of the original application to register a caution, even if the bank can’t find all the paperwork. If you have lost money because of the bank’s incompetence they will probably be liable to compensate you. Your solicitor should suggest to the bank that they write off your loan, failing which you will sue them, or (better still) ask the Financial Ombudsman Service to intervene. You can “warn off” the caution by sending a letter to the Land Registry. This puts the onus on the bank to show why the caution should remain on the register.

Q.I live in a block of flats where, as shareholders, we all own the freehold. This year the board of directors proposed a 16.5% increase to our maintenance charges, which was approved by three-quarters of the flat owners. Those against are retired people on a low income who cannot afford the increase, and object to funds being spent on things such as a satellite dish. Is there anything we can do before we are priced out of our homes?

A.You will no doubt have signed an agreement when you bought the flat, or bought the freehold, which sets out rules for appointing the board of directors and which establishes voting procedures. It’s unlikely that you will be able to opt out of maintenance charges that have been approved by the majority, so your best option is probably to get yourself appointed to the board so that you can have a direct influence on future decisions.