Capacity and Marriage | Blog Series

Here at Anthony Gold Solicitors, we are sadly seeing an increase in clients approaching us for advice because they have concerns that a relative or friend may be subject to a predatory marriage.

The test for capacity to enter a marriage contract does not require a high or complex level of understanding. It is also one that would, strictly speaking, be regarded as a health and welfare decision. However, the financial implications of marriage can be wide-reaching and complicated to overturn.

Where it is suspected that a vulnerable individual is being financially exploited by way of marriage it is important to act quickly to ensure adequate protection is implemented as soon as possible.

We have put together a series of blogs looking at the legal consequences of a predatory marriage and the preventative measures that can be implemented to protect a vulnerable individual from such a marriage. The blogs will be shared over the coming week:

Predatory marriages and Probate Claims

David Wedgwood looks at the impact of a voidable marriage on an individual’s estate and their testamentary wishes.

Does my Relative have Capacity to Marry and What can I do to Protect them?

Nicola Gunn sets out the legal test for marriage and looks at the Court of Protection’s approach to applying the test.

Capacity to Marry – the Legal Test

Alexandra Knipe looks at the recent case of  WU v BU (by her litigation friend, the Official Solicitor) [2021] EWCOP 54 where the High Court exercised its inherent jurisdiction to protect P and implemented a forced marriage Order.  

Marriage Caveats

Alice Collier looks at marriage caveats to prevent/stop a suspected predatory marriage.

Forced Marriage Protection Orders

Ffion Jones sets out how to apply to the Court for a Forced Marriage Protection Order.

Nazia Rashid wins Resolution EDI Award

Resolution is a name well known in the legal communities throughout the country. Since 1982 they have been committed to supporting families through constructive ways of resolving issues. Their awards recognise solicitors who work in this area and have upheld Resolution’s Code of Practice and played a part in creating a better family justice system. Particularly, their EDI Champion Award is bestowed upon those who have shown a commitment to Equality, Diversity and Inclusion within their role.

Nazia is a member of the Resolution EDI Committee and a former Vice-President of The Association of Muslim Lawyers. She is regarded as an expert on non-legally recognised marriages which affect many minority-faith communities, such as the Muslim and Jewish communities, and lectures nationally on diversity and inclusion in family law.

The tragic events surrounding the death of George Floyd in May 2020 sparked an increase in societal debate and made many of us question whether we were doing enough when it came to EDI. The legal profession was no exception and at Anthony Gold, thanks to the efforts of two inspiring women, the culture at the firm is changing significantly as a result.

In July 2020, Nazia and Ruth Oyelakin took on the responsibility of setting up and running an EDI Committee at the firm, with ambitious objectives and goals. The firm could not have elected two more suitable candidates for the role. Ruth has recently been engaged in complex child abduction cases as well as FGM cases involving cultural issues. Both Nazia and Ruth are passionate about EDI.

In November 2021, Nazia hosted a live webinar where expert panellists debated the impact of proposed wedding law reforms on belief-based communities. In February 2022, Ruth attended The Divorce Fair where the firm gave a talk about saving legal costs, assisting those who feel the law is not for them.

Our Family Law practice has adapted to meet the needs of everchanging diverse communities,  supported and encouraged by Kim Beatson and Dave Emmerson, and undoubtedly spearheaded by Nazia.

In May 2022, a group of our Family solicitors attended the Resolution EDI Awards where it was announced that Nazia’s hard work has earned her the title of their EDI Champion 2022.

We would like to congratulate Nazia on behalf of us all here at Anthony Gold.

Three New Partners Announced at Anthony Gold

Anthony Gold is delighted to announce that three of its Senior Associates have accepted offers to become new Partners in the firm. Sam David, Eleanor Solomon and Emma Tante all become Partners with immediate effect.

New partners may 2022

 

Sam David is a new partner in Injury & Medical Claims

Sam works in the Injury & Medical Claims team, supporting individuals whose lives have been turned upside down as a result of suffering catastrophic personal injuries through accidents or clinical negligence. He joined Anthony Gold in August 2014 as a paralegal, qualifying in 2016. He has since dedicated his career mainly to personal injury work, becoming a Senior Associate in November 2020.

Working closely with Jenny Kennedy, one of the UK’s most highly regarded personal injury lawyers, his cases range from catastrophic personal injury to road traffic collision cases and brain and spinal cord injury. He has specialist knowledge of foreign national claims, helping people who have been injured whilst working or holidaying in the UK, as well as British Nationals injured abroad.

 

Eleanor Solomon is a new partner in Housing

Eleanor becomes a Partner in the Housing team, specialising in housing and property disputes.  She advises tenants and leaseholders on forcing landlords to comply with their legal obligations, acting for clients in claims brought against their housing associations and local authorities, with particular strength in claims relating to building safety and disrepair, unlawful eviction and nuisance matters.

She also trained at Anthony Gold and qualified in 2016, became a Senior Associate in 2020 and is mentioned as an ‘Associate to Watch’ in the current Chambers & Partners 2022.

 

Emma Tante is a new partner in Court of Protection

Emma becomes a Partner in the Court of Protection team, supporting individuals with the management of their Property and Affairs where they have been deemed to lack capacity as a result of life changing injuries. She works closely with leading Personal Injury teams to support individuals, both in the UK and internationally, throughout the litigation process and subsequently post settlement with the management of multi-million pound compensation awards.

Emma joined Anthony Gold in 2013, also trained at the firm and qualified in 2015. She was a named Lawyer in the Legal 500 just 1-year PQE and has continued to receive recognition in the legal directories since. She became a Senior Associate at the firm in 2018, just 3 years PQE.

The move sees the firm building on its current strengths in Personal Injury, Housing and Court of Protection. The firm has top tier rankings in Chambers and Legal 500 for Personal Injury and Social Housing, and strong rankings in both for Court of Protection.

 

Managing Partner, David Marshall, said: “I am delighted that all three individuals have accepted offers to become Partners. This is part of a concerted effort to continue to build our Personal Injury, Housing and Court of Protection offerings and to ensure the firm has a succession plan in place for its future growth.”

Sam David is now a Partner in the Injury & Medical Claims team

Anthony Gold is delighted to announce that Sam David has accepted an offer to become a Partner at the firm with immediate effect.

Sam David New Partner

Sam becomes a Partner in the Injury & Medical Claims team at our London Bridge offices, supporting individuals whose lives have been turned upside down as a result of suffering catastrophic personal injuries through accidents or clinical negligence.

Sam joined Anthony Gold in August 2014 as a paralegal, qualifying in 2016. He has since dedicated his career mainly to personal injury work, becoming a Senior Associate in November 2020.

He works closely with Jenny Kennedy, one of the UK’s most highly regarded personal injury lawyers, on a wide variety of cases.  These range from catastrophic personal injury to road traffic collision cases and brain and spinal cord injury. He has specialist knowledge of foreign national claims, helping people who have been injured whilst working or holidaying in the UK, as well as British Nationals injured abroad.

Sam provides compassionate, pragmatic, and realistic legal advice to his clients and their families.  He aggressively pursues the best financial settlements possible with the aim of securing comprehensive rehabilitation for his clients.

This move sees Anthony Gold building on its strengths in high-value Personal Injury and Medical Claims, with its strong rankings in Chambers and Partners (Personal Injury: Band 1; Clinical Negligence: Band 2) and The Legal 500 (Personal Injury: Tier 1; Clinical Negligence: Tier 2).

Jon Nicholson, Head of Injury & Medical Claims said: “Sam manages a complex caseload effortlessly and partnership is the next step in his career.”

Managing Partner, David Marshall, said: “I am delighted Sam has made Partner at the firm. This is part of a concerted effort to consolidate and secure our leading positions in Injury and Medical claims and ensure the firm has talented practitioners in place for its future growth.”

Emma Tante is Now a Partner in the Court of Protection team

Anthony Gold is delighted to announce that Emma Tante has accepted an offer to become a Partner at the firm with immediate effect.

Emma Tante New Partner

Emma becomes a Partner in the Court of Protection team at our London Bridge offices and predominately supports individuals with the management of their Property and Affairs where they have been deemed to lack capacity as a result of life-changing injuries.

Emma works closely with leading Personal Injury teams to support individuals throughout the litigation process and subsequently post-settlement with the management of multi-million pound compensation awards. She has a complex caseload and a wealth of experience providing support in High Court Proceedings, particularly where there are contested capacity and funding issues and interlinking health and welfare considerations. She supports individuals based both in the UK and internationally.

Emma joined Anthony Gold in 2013. She subsequently took up a paralegal role and trained at the firm alongside leading Lawyers, including Jenny Kennedy, one of the UK’s most highly regarded Personal Injury Lawyers. Qualifying in 2015, she has since dedicated her career to Court of Protection practice. She was a named Lawyer in the Legal 500 just 1-year PQE and has continued to receive recognition in the legal directories since. Emma became a Senior Associate at the firm in 2018, just 3 years PQE.

The move sees Anthony Gold building on its current strengths in Court of Protection, with strong rankings in Chambers (Band 3) and Legal 500 (Tier 2).

Joint Head of Court of Protection, Alexandra Knipe, said: “Emma’s acceptance of Partnership at the firm, is a fantastic development for our team, and a natural progression for Emma. I am delighted to be working alongside Emma who will continue to elevate the team, with her technical excellence and bright ideas for the future”.

Managing Partner, David Marshall, said: “I am delighted Emma has made Partner at the firm. This is part of a concerted effort to continue to build our Court of Protection presence and ensure the firm has talented practitioners in place for its future growth.”

5 clauses that you did not realise you NEED in your employment contract

Employment contracts are necessary. We are big advocates of them for a whole host of reasons (and you can read about it here —link to the previous post if we post it —).

However, we have no compiled a list of five clauses that you may not think about having in your contracts of employment but that are absolutely necessary, and why.

1. Garden leave and / or pay in lieu of notice clause

It is not nice to think that sometimes, a business will take on employees and they may not work out for one reason or another. You will have the right to terminate the contract for one of the fair reasons for terminating employment, and your contracts will include the required notice period. We are talking about a step further – an added clauses or two that gives you the right to terminate the person’s employment, giving the right notice, but being able to pay it in lieu of them working in one way or another. There are so many reasons why an employer should want to reserve those rights, for example if they are concerned about having a disgruntled employee working their notice when they know they are leaving.

    • Pay in lieu of notice means that their employment is terminated almost immediately when you give notice, but you then pay them what they would have received during their notice period (e.g. 4 weeks’ salary); and
    • Garden leave means that the employee is simply not working but is still employed for the duration of their notice period.

2. Restrictive Covenants

We are still these come up a lot – whether they are in the contract or not. Restrictive covenants are restrictions on a former employee for when they leave the employment and for a period of up to about 6 to 12 months, depending on their position and role within the business. These restrictions can prevent who the employee goes on to work for or how that employment or engagement may be. Why would you want it? Literally to protect the business interests and stopping an employee leaving your employment and potentially jumping straight into a competitors’ arms, enticing your top 5 clients or customers to jump ship with them;

3. Deductions from salary

No, this clause does not confer on you the power that you might think it does. Having it in the contract does not mean that you can shave off part of the employees’ wages each month as and when you might want to. However, it does mean that if there is a reason to deduct money from their wages then you can do just that. A great example is where payroll may have accidentally overpaid an employee, so instead of having to have a lot of back and forth with an employee, having the contractual right to make deductions from their salary means that you can, within reason, deduct the sums from the following pay-check and confirm that to them in writing;

4. Right to work in the United Kingdom

Of course, you would not want to risk the wrath of the Home Office by employing individuals that do not have the legal right to work in the UK. Really, no business wants or should risk the fine of up to £20,000 per person that is employed illegally. While you should have an onboarding process for employees that includes checking that they have the legal documents in place that confirm that they can legally work in the UK, having a contractual requirement stating as much in your contract means that if an employee does later have their right to work in the UK withdrawn for whatever reason or it transpires that something was missed and they do not have the right to work in the UK in the first place, you can rely on that clause to terminate their contract of employment;

5. Lay-off Clause

This one is an underrated clause unless or until the business needs to rely on it. A lay-off clause allows a business to temporarily suspend employees from working, lay them off, without paying their wages. This is not dissimilar to the furlough that we have come to know during the Covid-19 Pandemic except that the payment that the Government gives the employees in this instance is quite minimal and lay-offs are encouraged to be kept to an absolute minimal period where absolutely needed.

You may not have thought about these clauses being needed and you may still be on the fence about whether you should or should not have them, so why not have a no obligations conversation with one of our employment experts to explore your business needs and see what assistance we can offer you.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Brief highlights of changes affecting Personal Injury claims in 2021

As another challenging year in these unprecedented times draws to a close, 2021’s highlights include the recognition that “even judges” are owed a duty of care by their employer. This was the position in a landmark stress at work claim brought by a judge against the MOJ, the Lord Chancellor and the Lord Chief Justice for alleged overworking, bullying and mistreatment by senior members of the judiciary. The hearing in July saw the government issue a statement admitting: –

 

“If negligence is found on the part of those judges against whom allegations of negligence are pleaded in the particulars of claim, or on the part of the other defendants, then the Crown will be liable to the claimant in damages.”

 

Other significant developments include new guideline hourly rates. For the first time in over a decade, these were reviewed, and the new and long awaited guideline hourly rates were effective from 1 October. In some cases, prior to 1 October, firms will have been justified in setting their rates over and above the then 2010 guideline hourly rates, according to the complexity of the matter, their area of specialism and location of office which have been allowed by the SCCO. While there is no doubt that costs arguments, including about the hourly rates. will continue, it is worth bearing in mind that the judge in the case of Axnoller Events Ltd v Brake & Anor [2021] EWHC 2362 (Ch) (23 August 2021) allowed the new rates for work done prior to that date. HHJ Paul Matthews held: –

“… I accept that the 2010 summary assessment guidelines are now well out of date. In a case like this, I would simply put them on one side as of little assistance. Although they are strictly speaking not yet in force, the new 2021 guidelines (which have been approved by the Master of the Rolls) have already been used in summary assessment in the High Court: see eg ECU Group plc v Deutsche Bank [2021] EWHC 2083 (Ch), [25]. I consider that I should take these guidelines into account.”

 

Also in October, in what seems to be a victory for claimants for the time being at least, the Supreme Court held in the case of Ho v Adelekun [2021] UKSC 43 that in cases where there was no court order for “damages and interest” as per CPR part 44, the court does not have a discretion to order a costs/costs set off in QOCS cases. Each case is, of course, fact sensitive and one needs to be mindful of this in cases where such a situation may arise as defendants will no doubt be seeking ways to ensure they do not lose out.

2021 also saw a major change with the “Whiplash reforms” coming into force under The Civil Liability Act 2018 on 31 May. This increased the small claims limit for whiplash injuries sustained in road traffic accidents from £1,000 to £5,000 for cases with an overall value of no more than £10,000. As solicitors’ legal fees are not recoverable in such cases, it means claimants injured after 31 May 2021 who do not fall within any of the exceptions under CPR rule 26.6A, are essentially left on their own to bring claims against the large insurance industry. While some savvy claimants may be able to bring these claims themselves, many will be forced to accept a low offer, and some may altogether forego bringing a claim when faced with complex issues related to causation, for instance. Others may find it difficult to start a claim in the first place. Many firms dealing with low value claims already working on low profit margins with portal costs and fixed fees, have now been squeezed out of the market. It remains to be seen whether the promised savings to motorists in reduced premiums will materialise or if once again, the only winner be the insurance industry. Access to justice seems to be limited to a privileged few.

 

Although virtual legal practice with meetings, conferences and hearings via Zoom and Teams has become the norm, 2022 will no doubt bring its own fresh challenges. However, I remain optimistic that it will also be a year when other significant and positive developments occur.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Former Soldier Receives Six-Figure Award

I recently concluded a case for a former member of HM Armed Forces. My client, from Malawi and with a rich family history of military service, enlisted with the British Army in 2013. He served as an infantryman based in Inverness.

Unfortunately, in November 2015 during a training exercise in Brecon, my client suffered injury while “playing enemy” for the commandos. The weather at the time was terrible. The bitterly harsh conditions exposed my client to a risk of non-freezing cold injury. This is a neurological condition affecting, most commonly, the hands and feet, following exposure to the cold.

By day 7 of the 11-day exercise my client was reporting that his hands and feet had become numb, and he felt pins and needles type stabbing pains. These are obvious symptoms of non-freezing cold injury. If the injured person is not protected from ongoing cold exposure the condition can and often does get worse. Depending on the stage of the condition it can be permanent.

My client reported that his chain of command ignored his complaints in the field, and he continued on until the end. He was seen in the medical centre afterwards and the doctor made the appropriate referral for further testing. On testing the condition was confirmed and a formal diagnosis given. Both my client’s feet and his right hand were considered to have non-freezing cold injury.

There were restrictions placed on my client for the rest of his time in service. He found his condition particularly onerous given the climate where he was based. There was no improvement on further testing and the Ministry of Defence took the decision to discharge him on medical grounds.

My client had a strong case on liability. Several witnesses confirmed the conditions were cold and the attendees struggled with limited kit and limited protection from the elements. The Ministry of Defence had already acknowledged the injury in paying a minimal award to my client under the Armed Forces Compensation Scheme.

Upon the medical experts finalising their evidence, the parties exchanged reports and the MOD invited us to a settlement meeting. It was several months before trial but the evidence was in effect complete and the parties were able to reach resolution.

My client received a further award for his injuries and was compensated for his lost earnings had he remained in service. He also received damages for the extra cold weather clothing he now must buy, plus an allowance towards additional heating at home and a sum to compensate for his partner needing to undertake many of the household tasks which would otherwise expose my client to further cold and potentially worsen his condition.

Overall, my client was very satisfied with the outcome in the circumstances. He would not have volunteered to leave service, but sadly the circumstances gave him no choice other than to accept medical discharge. He was pleased that this was recognised and to be appropriately compensated for his loss.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Looking Forward to 2022

Written by Mumtaz Hussain

There can be little doubt that 2021 was a challenging year for so many of us, for so many different reasons. We started the previous year with restrictions on our travel and our movements. That has been mirrored in 2022, with people being asked to work from home where possible.

However for some people who had sustained life changing injuries, it could be accurate to say that those temporary restrictions merely served to reflect a new permanent way of life, which they had no choice but to accommodate.

As we move into 2022 under another new Covid-19 variant, Omicron, the injury and medical claims team here at Anthony Gold would like to reassure all our clients, both existing and prospective, that our focus remains and will always remain on providing the best possible legal service for them.

Alongside the legal advice that we offer, there is a wide range of services we also signpost our clients to, so that they can also receive support from other groups. We work with organisations such as Spinal injuries Association, Headway and The Sepsis Trust, to name but a few. Our various collaborations with these organisations ensure that not only can we successfully represent our clients in their legal case, but we can also shore up that representation in areas where the law does not reach. Additionally, our team takes time to continue to learn how best to serve our clients, and to share that knowledge.

Looking forward to 2022 and beyond, our efforts and dedication to our clients will remain of the highest standards. We will continue to ensure that where clients sadly cannot make a full recovery from their injuries, then our skilful knowledge and application of the legal system surrounding complex medical and personal injury claims, will ensure that our clients are put in a position where they are able to experience a quality of life which would otherwise not have been possible, but for the detailed and thorough compensation packages obtained by our expert solicitors.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Housing Update – Issue 10

Welcome to the winter edition of the newsletter from the property team at Anthony Gold Solicitors.

This edition of the newsletter brings you a mix of interesting developments in relation to Houses in Multiple Occupation (“HMOs”), licensing, the Proceeds of Crime Act 2002 and an overview of what happened in 2021 and the likely changes to look forward to in 2022.

On 5 November 2021, my colleagues Robin Stewart and Tamanna Begum held webinar in conjunction with barristers from 5 Pump Court on The Liability for licensing and property standards in HMOs”. The webinar focused on the liability of tenants and landlords in the context of licensing and property standards in HMOs. The speakers discussed the impact of the recent Upper Tribunal decision in Rakusen v Jepson & Ors, Safer Renting Intervenor (2021) EWCA Civ 115 and its impact on superior landlords in the context of rent repayment order applications. The recording to the webinar can be accessed through this link.

Local authorities have several enforcement tools to act against landlords who commit criminal offences either under the Housing Act 2004 or in relation to offences committed in respect of other breaches such as planning control and breaches of enforcement notices. One of those tools is to confiscate rent from the landlords under the Proceeds of Crime Act 2002. This is a tool that is not used that often but it is of course possible for Local Authorities to go down this route. A detailed discussion on “Confiscation of Rent: HMOs and the Proceeds of Crime Act 2002” can be found here 

To read the full newsletter click here.

Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*