Headway’s ‘Action for Brain Injury Week’ runs from 14 to 20 May 2012. This initiative aims to raise awareness of the vital work they do in supporting brain injury survivors and their families, including rehabilitation, social re-integration, community outreach and respite care.

As members of the Association of Personal Injury Lawyers, we’re only too aware of how devastating the effects of a brain injury can be; not just for the survivor, but also for their loved ones. It can cause both physical and psychological changes, including thinking and learning difficulties, memory loss and behavioural and personality changes, all of which can have a profound impact on the quality of the sufferer’s live.

Fortunately head and brain injuries are relatively rare; however as the case study below demonstrates, we have the expertise to support those who have been affected.

Case study

In 2006, our client was thrown from his motorcycle following a collision with a vehicle that cut in front of him. On admittance to hospital, he was found to have suffered a closed head injury, in addition to injuries to his cervical spine and soft tissue on his shoulders and hip.

Assessment of our client’s head injury found him to be having difficulties with flexibility, attention span, visual fluency and finding words. He suffered considerably with fatigue. He had lost the intellectual ‘edge’ he had prior to his accident and could no longer visualise solutions to problems.

Whilst full liability was not admitted on behalf of the defendant’s insurers for some time, primary liability was accepted early, and interim funding was agreed. This funding was to put in place a comprehensive rehabilitation and support package to maximise our client’s prospects of recovery. Following an accident, our primary concern is always to get the funding our client needs for the best possible treatment and support to aid their recovery and secure their financial position.

Our client’s recovery plateaued and it became clear that he could never return to his pre-accident employment as a partner in a commercial law firm.

Prior to his accident, our client, in addition to his work commitments, enjoyed a busy social life, travelled extensively and was an active participant in sports. However the injuries he sustained left him irrevocably changed; his ability to manage his day-to-day affairs, interact socially and partake in sports were all impaired. His personality and behaviour changed, and he suffered bouts of depression.

The calculations of our client’s losses for our client were particularly complex, in particular with regard to the future income he was likely to have received as a Partner in his law firm.

This case ultimately settled following a meeting of both parties and their legal representatives for a seven figure lump sum together with annual tax free periodical payments of a 6 figure sum over 10 years.  At our client’s request these annual payments were linked to RPI and remain payable to our client’s estate should he die within that 10 year period.

This sum was considered sufficient to secure his financial future and enables him to deal with the effect of his brain injury, the consequences of which will be with him for the rest of his life.

Further information

If you’d like to speak to a member of the personal injury team about a head or brain injury you, or a member of your family, has sustained, call us on 0117 925 8080.

Alternatively, you can find out more about Headway and the work they do at www.headway.org.uk.

Mark joins us from Mogers Solicitors LLP where he was Associate and Head of Expat Legal Services. He had been with the Bath-based solicitors firm since 2004.

Mark has over 15 years experience in advising clients involved in family breakdowns, divorce and separation. More recently, he has provided specialist services to the UK expat community, particularly to those based in Hong Kong.

As well as being a Resolution accredited specialist in advanced financial provision and pensions following divorce or family separation, Mark is also a trained Collaborative lawyer.

Chris Miller, head of the family law team, said of the appointment, “We are delighted to welcome Mark. His appointment reflects our commitment to providing quality advice to divorcing and separating couples, whether through more traditional routes or via a collaborative law process. As Mark will be based in our King Street office, it will also allow us to expand our family services to the city centre.”

Mark will be based in our King Street office and can be contacted on 0117 925 8080.

Reforms in the LASPO (Legal Aid, Sentencing and Punishment of Offenders) bill will mean that all cases concerning divorce  finance, disputes within families about children (subject to exceptions), and most medical negligence cases will be removed from the scope of legal aid funding. It will also restrict legal aid in other areas such as housing, immigration and welfare benefits.

Mr Williams voted with the government on all of the amendments to the LASPO bill proposed by the House of Lords, including those that apply to victims of clinical negligence and industrial disease, including asbestos related disease.

When the act is implemented, anticipated to be in 2013, far fewer people will be eligible for legal aid. This means that many people who currently receive legal assistance to see their children, resolve finances on relationship breakdown or to obtain a divorce or civil partnership dissolution, will need to pay privately.

Victims of medical negligence have suffered a double whammy, in that the government have also changed the traditional ‘no win, no fee’ agreement, thereby restricting access to justice.  The clinical negligence team here at Barcan Woodward is determined to make the new system work in favour of their clients, however this will not be an easy task.

In addition, the family team are looking at ways to provide a low cost advice service for those family clients who will no longer be eligible for public funding.

Following an interesting exchange of views, Mr Williams agreed that he would try to assist those constituents who were no longer able to access legal advice as a result of these changes. He also stressed that he’d be keen to understand the impact of the restrictions being placed on legal aid funding, particularly where it means people cannot obtain alternate advice to assist them in addressing their problems.

If these changes affect you and you are a Bristol West resident, we would encourage you to contact Mr Williams. You can write to him, or he holds regular advice surgeries for constituents, details of which are available through his website.

You can also read more about the passing of this controversial bill in our previous blog post, here.

If you would like to speak to Katie about the issues raised with Mr Williams, you can call our King Street office on 0117 925 8080.

Alternatively, click here to complete our quick contact form and we will be in touch.

Whether civil partners should be treated the same as heterosexual couples when divorcing has been the subject of much debate. Separate laws exist for civil partners, yet the principals for dividing their matrimonial assets upon dissolution are virtually the same as those for marriage.

Irrespective of whether it’s a marriage or civil partnership in question, the starting point when a partnership breaks down is usually an equal 50/50 split. But what if some of the assets are classed as ‘non-matrimonial’? Or put simply, where one spouse pre-owned an asset or acquired an asset through inheritance. This begs the question – how do you divide assets that were brought into the partnership by one of the party solely?

In March 2012, the Court of Appeal passed its first judgement on a civil partnership case in the UK. This was a landmark case, but easily overlooked.

Mr Lawrence, a financial analyst at JP Morgan, and Mr Gallagher, an actor, lived together for 11 years before entering into a civil partnership in 2007. Their assets totalled £4 million and included a London flat, worth £2 million and purchased by Mr Lawrence in 1995. Both parties also co-owned a cottage in West Sussex, worth just under £1 million.

Their civil partnership lasted 7 months and, in 2009, Mr Lawrence applied to the Court to dissolve their partnership.

In many cases, both parties are able to agree how to divide their assets with the help of legal advice. Mr Lawrence and Mr Gallagher failed to reach such an agreement however, and Mr Gallagher applied to the Court for ancillary relief order regarding the matrimonial assets.

The Court awarded Mr Lawrence the central London flat, as this was purchased prior to the start of the relationship. Mr Gallagher was awarded the Sussex cottage and a lump sum of £577,778, intended to address the discrepancy in value between the two properties.

Mr Lawrence appealed against this decision.

At the Court of Appeal, it was confirmed from the outset that there were no differences between the principles applied to divorce and those applied to the dissolution of a civil partnership. However the challenge remained about whether there should be a balancing payment to reflect the difference in value between the two properties. As a consequence of this challenge, Mr Gallagher’s sum was reduced to £350,000, taking his award from 42% to just over 31% of the couple’s assets.

Whilst this is a substantial departure from equality, the decision still seems to endorse that the family property can be treated as ‘matrimonial’, even if it was pre-owned by one party. In this case specifically, the London flat was included in the ‘matrimonial pot’ of assets to be shared as it has been used by both parties as their home.

So, given that the evidence suggests no difference in the approach between gay and heterosexual couples, what factors actually determine the division of matrimonial or ‘non-matrimonial’ assets?

Until the Law Commission’s report, due in 2013, addresses how ‘non-matrimonial’ property should be treated, Judges will continue to apply the current principals of ‘fairness’. This will include the income and earning capability, as well as financial needs and responsibilities, of each party; the standard of living enjoyed; the duration of the marriage and the age of each party.

There are, however, numerous other factors that provide the court with wide discretion to reach an outcome that is fair to both parties. And, as a result, it can be difficult to accurately predict the Court’s outcome.

Further information

If you would like advice on dissolving your civil partnership, contact Chris Miller in our Bedminster office on 0117 963 5237, or Alison Whiles in our Gloucester Road office on 0117 923 2141. Both Chris and Alison are accredited by Resolution and are specialists in the field of financial relief and trained collaborative lawyers.

Alternatively, click here to complete our quick contact form and we will be in touch.

As a result of the reforms, all divorce, finance, and private law children cases, subject to exceptions, will be removed from the scope of legal aid funding, as will many domestic violence cases, and most medical negligence cases.

During its parliamentary passage, peers had inflicted 14 defeats on the government’s proposed amendments to the Legal Aid, Sentencing and Punishment of Offenders (LASPO) bill.

The final vote, to amend those parts of the bill that apply to victims of domestic violence, ended in a draw. Members voted 238 for and 238 against the change, which by convention meant a victory for the government.

This means that many people who currently get free legal help to protect them from domestic violence, or to apply to see their children, will not be able to do so without paying. The same applies to those who have suffered from medical negligence and wish to seek redress.

Further information

If you need advice on any aspect of family law or on how these changes may affect you, contact Chris Miller in our Bedminster office on 0117 963 5237, or Alison Whiles in our Gloucester Road office on 0117 923 2141.

We also offer a system of fixed fees for most family law services, meaning you’ll know exactly what you’ll have to pay for our work at the start. You can find details of our fixed fees scheme here.

Alternatively, click here to complete our quick contact form and we will be in touch.

Katy Milton of the Wills & Probate Team at Barcan Woodward looks at a number of factors that might play a part in why so many people put off writing a will.

Difficult subject matter

Sit down to plan your will and the inevitable happens, you come face to face with your own mortality.  Many people faced with this prospect prefer simply to put if off for another day and not dwell on the impact of their death on their loved ones.

By contrast, for many, arranging Life Cover to protect a spouse or children is part and parcel of their financial planning.  When it comes to writing a will however, they see it entirely differently.

If asked do you have life cover to protect your family, the answer would generally be yes, but ask the same question about a will and more often than not the answer is a resounding no.  The irony is that without a will any financial protection you put in place may not reach those you intended it to.

Another factor that shouldn’t be discounted is the overall British reserve about discussing money, particularly in relation to inheritance.  The saying “It’s just not British” seems particularly apt when it comes to arranging a will.

Family Pressures

Another of the main barriers seems to be the emotional upset that writing a will can potentially cause within a family.  Whilst logically you could argue it brings piece of mind to all those involved, in many instances the formalisation of the details can lead to substantial family divides and feelings of inequality, whether actual or perceived, which people don’t want to bring to the forefront.

Modern family life with a greater occurrence of second families can really make it difficult, for example where a couple has children together as well as from previous relationships.  How the children are included within the arrangements, particularly following the death of the surviving spouse can often be an issue of contention for those involved.

It is perhaps only natural therefore that people don’t want to undertake the difficult task of writing a will and communicating the arrangements to family members thus creating upset within the family.  The downside of this is that without a will in place the family could be facing significantly more upset and uncertainty.

Complexity of the subject

For many the first two points aside, another barrier is knowing where to start when it comes to sorting out a will.  What is the best way to protect your loved ones?  How do you decide who should benefit?  How will you ensure your wishes are fulfilled?   The list of questions that need answering can be daunting.

The following brief points will hopefully help you make a start:

• Think about what assets you have & make a list.
  • Remember to base the list on what you have now and not what you might have in your old age.
  • Try to value each asset in today’s terms to give an idea of potential tax liabilities

•  Think about the people or organizations you would want to leave something to. Again focus on the now as you can always change your will at a later stage if you want.

•  If you have children decide who you would want to be their guardian and at what age you would want them to inherit.

•  If you have other dependents consider what would need to be done to take care of them in your absence and who would take over your role.

• Who would you like to be the administrator for your estate – someone you trust to deal with everything in accordance with your wishes.

Writing your will

Once you have the answers to your question, you can proceed with writing your will, ensuring that it is valid, unambiguous and achieves the results you want.

But before you select a firm, you should ensure that they are regulated. This follows a recent Legal Services Board (LSB) investigation that found that one in five wills drawn up by unregulated firms had problems.

Whilst the Legal Services Board (LSB) are currently consulting on whether will writing should be regulated to protect clients, a decision could be years away. However a Wills & Probate solicitor can provide you with important help and guidance and make the whole process as stress free as possible.

Find out more

If you would like more information about arranging a will, you can call our Wills & Probate team on 0117 923 2141.

Alternatively, click here to complete our quick contact form and we will be in touch.

It was revealed last week that new applications to take children into care have reached a year-on-year high. Cafcass* reported 886 care applications during March 2012, taking the total number of application received between April 2011 and March 2012 to 10,199.

January 2012 saw 912 individual applications, the highest ever number of care applications recorded in a single month.

Applications have been increasing since 2008, when details of the ‘Baby P’ case – or Peter Connolly, a toddler on Haringey Council’s at-risk register – were made public. And predictably, applications aren’t expected to fall any time soon.

So what is the reason for the increase in applications?

Certainly all child services departments fear another Baby P case and this will only have made social workers increasingly cautious and more risk adverse in their assessments.

Closer media attention, coupled with an ongoing debate over whether child protection workers are adequately supported to act quickly and protect vunerable children, has generated a greater degree of public awareness. This, in turn, has lead to an increased number of child protection referrals.

So what can these figures tell us?

Clearly council budgets are being squeezed by the resultant rising costs for both care and court proceedings. However they primarily highlight the pressure being placed on child protection workers and child care systems, many of which are already creaking under the pressure.

The government has stated that early intervention is crucial. Certainly it will be instrumental in ensuring that demand for care does not spiral out of control.

Further information

If you are affected by any of these issues, you can contact our Family Law Team for support on 0117 963 5237 (Bedminster office) or 0117 923 2141 (Gloucester Road office). Our team of Kim Joseph, Clare Cox and Tom Powles have been appointed to the Law Society Children Panel and can guide you through the process to help you find a solution.

Alternatively, click here to complete our quick contact form and we will be in touch.

Notes

*Cafcass stands for Children and Family Court Advisory Support Service. They are independent of the courts, social services, education, health authorities and all other agencies.

Many of our clients tell us that their primary motivation in instructing Barcan Woodward to act on their behalf, whether that be in connection with an inquest or a clinical negligence claim for compensation, is for the doctor or hospital involved in their care or the care of their loved one, to realise that a mistake has been made and for steps to be taken to prevent this from happening again to another person or family.

Both clinical negligence litigation and the inquest process can play an important role in improving clinical standards.

The NHS Litigation Authority which handles clinical negligence claims against NHS organisations states that its key function is to “contribute to the incentives for reducing the number of negligent or preventable incidents” and that this is achieved through “an extensive risk management programme”.

From 1 April 2010 it became compulsory for NHS trusts in England to report all serious patient safety incidents to the Care Quality Commission as part of the Care Quality Commission registration process. Serious patient safety incident reports are made to the NHS National Reporting & Learning System (NRLS) which was established in 2003. The system enables patient safety incident reports to be submitted to a national database. The data collated is then analysed to identify hazards, risks and opportunities to improve the safety of patient care. It is understood that since the NRLS was established, over four million incident reports have been submitted by healthcare staff. The NRLS is intended to provide a national perspective on risks and hazards so that this information can be used to improve patient safety at a local level.

It is not uncommon for us to discover during the course of our clinical negligence and inquest work to find that NHS bodies have changed their procedures to improve patient care and to reduce the risks to patients in the future. However, we find, not infrequently, that until we get involved on a client’s behalf whether that be in connection with an inquest or a clinical negligence claim serious issues of patient safety have gone unrecognised. This often arises in cases where treatment has been provided to a patient at more than 1 hospital or clinic.

I recently acted on behalf of a family in connection with an inquest into the death of a young woman who died a number of years after having undergone bariatric (weight-loss) surgery. Following the inquest the coroner made a number of recommendations to the NHS National Patient Safety Agency. It is understood that in light of the information provided by the coroner the NPSA has issued a ‘signal’ document making the following recommendations:

• All post bariatric (weight-loss) surgery patients are followed up for life.
• Any patient who has had gastric bypass surgery and who is not under the regular review of the hospital bariatric team should continue to take multivitamin and nutritional supplements
• Patients who go on to suffer health problems should be referred back to the bariatric (weight-loss) surgery centre at which they were originally treated.

‘Signals’ are notifications of key risks emerging from review of serious incidents reported to the NHS National Reporting & Learning System. These recommendations would not have been made but for the legal process and it is clear that as a result of the lessons learned steps are being taken to improve patient safety and clinical standards.

For more information about this subject, or to obtain advice about your clinical negligence case, contact the Clinical Negligence Team on 0117 925 8080.

There is a longstanding and pervasive myth regarding the status of cohabitees, the idea of the ‘common law wife or husband’.  Such a thing does not exist.  A cohabitee does not have financial protection when things go wrong in the way a spouse does.  Nor do they have any automatic right to inherit under the intestacy rules.

When a marriage breaks down, the court can look at all of the circumstances surrounding the marriage in determining what is a fair settlement for the parties.  In contrast the court is very constrained when the parties were cohabiting.

Despite recommedations from the Law Commission in 2007 to provide cohabitee rights (such as exist in other jurisdictions) there has been little government appetite for the required legislative change, seeing such a move as undermining the institution of marriage.

There is however an increasing body of case law covering this area, recently clarified towards the end of 2011 in the case of Jones v Kernott.

This is a fast developing and far from straight-forward area of law.  It is important to get the right specialist advice.

Jones v Kernott

In 1985 Ms Jones and Mr Kernott bought a house together and in equal shares.  Eight years later they separated and Mr Kernott left the home.  He stopped paying any bills and contributed little by way maintenance for the two children.  Two years after the separation the house was put on the market but not sold.  Around the same time a joint insurance policy was cashed and the proceeds divided.  Mr Kernott’s share enabled him to buy his own property in his sole name.  His lack of contribution towards the jointly owned home and his children was a factor in enabling him to afford the mortgage payments on his new home.

When the matter initially came to court in 2008 Mr Kernott claimed half of the jointly owned property, on the basis of the legal ownership.  Ms Jones claimed that at the time the insurance policy was cashed and Mr Kernott’s new property was bought, their intentions had changed.  The judge agreed, awarding her 90% of the property, 10% to Mr Kernott.  This award was ultimately upheld by the Supreme Court.

The Basis for the Decision

It is important to note that this case was brought under the Trust of Land and Appointment of Trustees Act 1996.  As such it applies only to land.  The court cannot transfer savings, income, pensions or other assets (there are some limited exceptions for child maintenance).

The starting point is the legal ownership of the property, that is, the ownership in the deeds, as listed at the Land Registry or drawn up in a trust deed.  If both partners intended their shares in the property to be held differently (either when the property was bought or at a later date) then that can be enforceable by the court.  The safest course of action is to have a written agreement setting out any intentions as and when they change.  The question addressed in Jones v Kernott is, if there is no written agreement, how does the court decide that the intentions of the partners differed and how does it determine what shares they intended?

Jones v Kernott says there are four questions that must be asked:

What is the legal ownership of the property as set out in the deeds, at the Land Registry or in any relevant trust?

1. Did the partners collectively decide that the property should be owned in different proportions?  If not, the property will remain as owned as in the deeds, at the Land Registry or in the trust.
2. If they did agree to share it differently, can the shares agreed by the partners be identified?
3. If there was an agreement to share it differently but the shares cannot be identified, what is a fair outcome given the whole of the dealings between the partners?

The concept of ‘fairness’ only arises if the matter cannot be resolved at any of the previous stages.  The court cannot replace an unfair agreement with a fair result.

It should be noted that this is an area of law that continues to develop.  It is highly unlikely that Jones v Kernott will provide the definitive answer to these cases.  Even the Judges determining the case in the Supreme Court were in disagreement about how the court would go about identifying the shares attributable to each partner.

Caveats

Jones v Kernott only applies to domestic property.  There are exceptions when cohabitees are also business partners.  Both Jones v Kernott and Stack v Dowden (the previous case on this point, decided in 2007) relate to jointly owned property.  It can only be presumed that the same principles will apply to solely owned property.

Implications

Although Baroness Hale in Stack v Dowden (decided in 2007) and the Supreme Court in Jones v Kernott were at pains to point out that it would be rare for shares in a property to be decided other than in reference to the legal ownership, it seems likely there will be a significant number of cohabitee cases which end up in court.

In essence, for cohabitees, owning a property legally does not mean that the court will confirm that you own it in those shares.  Conversely it is important to remember that the cohabitee in the financially weaker position does not have the protection afforded to spouses.  In cohabitation cases the court can only address property ownership and not that of other assets (with limited exceptions regarding provision for children) and the court can only grant property rights in accordance with what it believes was agreed between you and your partner.

Preventative Steps:

If you and your partner’s intentions as to the ownership of a property differ from what is stated on the deeds, at the Land Registry or in a trust, it can save a lot of money and stress to ensure your joint intentions are properly recorded and that such an agreement is updated if your joint intentions later change.

Whilst unaffected by this recent judgement, it is also worth remembering to review the provisions under your will.  A cohabitee does not inherit under the intestacy provisions and therefore may not receive anything from your estate unless they are named as a beneficiary in a will.

For more advice on your rights as a cohabitee please contact our Family Law Team on 0117 925 8080

To make a will contact our Wills & Probate Team on 0117 925 8080

So many people have been touched in one way or another by cancer and malignant melanoma, one of the most aggressive and treatment-resistant types, seems to be on the increase, especially amongst younger people.

The firm has first-hand experience of the impact of this disease on the lives of everyone affected.

In March 2008 Katie Perry, the daughter and sister respectively of long serving Barcan Woodward staff Sheila James and Emma Tanner died of malignant melanoma aged only 30 yrs, leaving a husband, a beautiful daughter Chloe aged just 17 months and a hole that can not be filled for those who knew and loved her.  Katie showed great courage in her fight. She went through a 10 hour life changing operation in October 2007 and through sheer determination recovered with remarkable speed to get on with her life. Tragically, her aggressive cancer returned and, although Katie tried bravely to fight again, the cancer was too strong for her.

More recently Sam Keen who was Partner Richard Barcan’s nephew, died of the same cancer in November 2011, only 7 weeks after his wedding day, having battled the disease with amazing strength for 7 years.

On announcing the firms support of the Sam Keen Foundation, Richard said of his nephew, “Sam touched the lives of all who knew him. His overriding thought throughout his long illness was to remain positive and protect all those around him. He dealt with his situation with dignity, great courage and a total lack of self pity. Undergoing over twenty operations to remove tumours, Sam endured chemotherapy, radiotherapy, gamma knife brain radiotherapy and several cutting-edge experimental melanoma drugs.”

At the forefront of the fight against malignant melanoma is Sam’s oncologist for the entire 7 years, Professor Martin Gore, Medical Director of the Royal Marsden Hospital, the UK’s centre of excellence for cancer treatment.

Inspired by Sam’s natural tendency to think of others before himself, his wife and family decided to set up The Sam Keen Foundation in his name aiming to raise £100,000 to help Professor Gore in his fight against this cruel disease

The Sam Keen Foundation is already well on its way towards raising its ambitious target and Barcan Woodward will be organising a number of fun fund raising events during the year to help towards its goal.

Keep an eye on this website for full details!