Frequently Asked Questions
Here are selection of issues presented to Phil in our free clinics or during our free initial interview in litigation matters and upon which we frequently give advice albeit that the facts and circumstances are sometimes very different.
Leaving The Scene of an accident?
Q. I was knocked down by a delivery van reversing outside a shop two years ago. The driver drove off, but was followed by a motorist who told him what he had seen, and the van driver returned – only to try to convince me that it was my fault. Shouldn’t the police have prosecuted him for leaving the scene of an accident knowing that someone had been injured?
A.It is a matter for the police if they wish to prosecute the van driver for leaving the scene of the accident.The fact that the driver returned would tend to undermine any prosecution, since people who leave the scene of an accident usually do so in order to avoid the consequences.As I specialise in personal injury claims I took this ladies case on and settled it 5 days before Trial.This lady was lucky she came and seen me when she did as you only have three years from the date of the accident in which to bring a claim.
Can I have a second Opinion on my Medical Negligence Claim?
Q,I had a hip replacement three years ago, but after the operation my left leg was longer than my right. As a result I damaged my back, and had to have an operation to put it right. I started a claim for clinical negligence but the surgeon concluded that there was no negligence and no case. Is this really the end of the line?
A. There’s nothing to stop you asking for a second opinion, although, you are up against a three-year time limit for pursuing such claims. This is three years from the time you realised something was wrong, however – not three years from the date of the original operation. Your solicitors should have shown you a copy of the medical report they obtained, and explained why their surgeon reached his decision. However if no negligence was involved you will have no case for compensation.This is a set of facts that were presented to Phil in one of PJW Law's free clinics.IPhil got the file from the previous solicitors only to discover that the same surgeon who had indicated that there was no negligence with the first operation did hint in his report that there was possible negligence with regard to the second operation.Phil got a spinal surgeons report and successfully negotiated a settlement.
Would I have to share?
Q. My husband has £50,000 in the bank. He has three children from a previous marriage and one child from our marriage.If he was to die without leaving a will, would I receive the money, or would it have to be shared with his four children?
A. If that’s the sum total of what he owns you will receive it, since a spouse receives the first £250,000 of their partner’s estate under the intestacy rules. But if he also owns a house (for example) things could get slightly more complicated. If you own your home together, as beneficial joint tenants, then it will belong outright to the survivor, without going into the estate. Anyone with £50,000 in the bank is likely to have other assets and could do with some tax planning advice. You should both make Wills. Although your husband may want to leave everything to you in the short term, he may want to make sure his 3 children from his first marriage have something after your death.
Joyrider's insurance cover
Q. I was injured in a crash with a stolen car. I contacted the Motor Insurers’ Bureau, which advised me that the insurers of the stolen vehicle are obliged by law to deal with such a claim. But the insurers say they can’t comment on liability until they have a copy of the police report, which won’t be available until after the driver of the stolen vehicle appears in court.
A. The insurers of the stolen vehicle have an obligation under the Road Traffic Act. The insurers are correct in saying that the police report will not be available until the case against the driver has been concluded. But this is no reason to delay getting claim for your injuries under way. Again as Personal Injury is Phil's specialism he took this case on and settled against the insurers within 3 months and before the criminal proceedings concluded.Whether the driver is insured or not a claim can still be brought if the driver was negligent, either against the Motor Insurers Bureau (who deal with the victims of uninsured or untraceable drivers) or the road traffic insurer of the vehicle.
Extra cash promise
Q. A couple of years ago my then boss promised me a one-off payment – a few thousand pounds – because I was working on a particularly difficult project. He has now moved to a different part of the company, and although I’m still in the same department I too have a different job. My present bosses have agreed that I was offered extra money but refuse to honour the promise.
A. If you can prove what you say it’s possible you could sue your employers for breach of an oral contract. Only you can decide how difficult it might then be to continue your employment with the firm, having taken them to court; although the law gives you some protection at work it might make things difficult on a day-to-day basis.damage. If you are contemplating court proceedings you should realise that there are strict time limits. However one letter from PJW Law to the employers did the trick without causing too much damage.For a fixed fee of £100 this client of PJW Law recovered his promised bonus of £2000.This was money due to him which before seeing PJW Law he was about to give up on.
Q. When my father died, he left his house to me and my two brothers. I then made a will leaving my share of the legacy in trust for my daughter, who had just learned she was suffering from a serious illness. My daughter has since made a complete recovery, and I now want to change my will. However I'm told that once a trust is set up it's not possible to change it. Is this true?
A. No – a will can be altered at any time before you die, whether or not it sets up a trust fund. Trusts are only difficult to alter once they've come into effect ie after your death.PJW Law prepared a brand new Will for a fixed fee of £110 and had it signed and executed the same day.
Q. My brother hadn’t seen his real parents or family for over 50 years – since he was “adopted” by my own parents when he came to us in his early teens. He never married, and now he’s died apparently without making a will it seems his money will go to relatives he never even knew.
A. That’s unfortunately true. As the parents didn’t go through the legal process of formally adopting him (in which case of course he wasnt officially a "brother"), but just took him under their wing. In which case, if there’s no Will, his blood relatives stand to inherit. Having said that, if there was anyone, including members of your family, who relied on your brother for financial support, they may be able to apply for reasonable financial provision from his estate under the Inheritance Act 1975.Sadly in this case nothing could be done as no-one was financially dependent upon the deceased.
Falling on deaf ears
Q. My wife complains that I have the television volume turned too loud, and I find that when I am out with friends I miss a lot of the conversation. I worked for many years in noisy factories which I think may have caused my deafness, and I wonder whether I can claim compensation?
A. You may be suffering from noise-induced deafness, or alternatively from the effects of old age – or a combination of the two. The cause needs to be determined by a hearing test and a medical examination. If you are suffering from noise-induced deafness, you will have to show that you were exposed to excessive noise levels and that your employers did not take reasonable steps to limit your exposure to it.PJW Law took this case on a No Win No Fee agreement and settled after obtaining the necessary evidence to prove the claim for £5500.
Q. I was riding a motorbike and overtook a line of cars held up by a bus. Five hundred yards further down the road I struck a car which pulled out in front of me. I was thrown across the road breaking an arm, damaging my shoulder and ankle and suffering two black eyes. Now the driver’s insurers are saying the accident was my fault because I overtook the bus.
A. You have to prove that it was the car driver’s fault. We at PJW Law specialise in motor cycle injury claims and took the case on no win no fee for the motorcyclist. We got the police report,the driver was prosecuted for careless driving and liabilty was eventually admitted.The case settled for £42500.Ultimately it was relatively easy to prove that the the overtaking of the traffic had nothing to do with the accident some 500 yeards further down the road.
Departing in debt
Q. I am 68 years of age, and have run up a debt of £4,000. I have no family, and my next of kin is my ex-partner. Who if anyone would be liable for my debt if I die?
A. Your ex-partner is not legally your next of kin and so would have no entitlement or responsibility to deal with your affairs, nor would she be liable for your debt. In practice, if you don’t own a house and have very little of value then it’s likely that the debt would remain unpaid. Social services would probably arrange your funeral and anything you owned would go towards paying for this first. After that, if there was more than £500 left the Treasury Solicitor (in the absence of a family member) would take over and pass the money on to your creditors.
Winning on a flat
Q. Over five years ago I bought a small flat which I intended to move into when my father died. But I changed my mind and have now sold it. Will I be liable for capital gains tax on the profit, and what’s the procedure for paying this?
A. If you have been living in your father’s house it will be regarded as your principal residence and any profit you have made on the flat will potentially be subject to capital gains tax. This will be sorted out in your annual tax return, where the profit will be added to your annual income. However you have an annual CGT allowance of £11,000 for 2014-15 and you can deduct allowable losses. So even if the remaining profit takes you over the tax threshold, the tax you will be expected to pay may be minimal.
Shaking all over
Q. I live in a Victorian terrace and have received notification that they intend to build flats nearby. I have no objection, but I’m concerned that the vibration from modern construction methods will damage my property. How near can they come to my house?
A. If the builders damage your house you will be entitled to compensation. There will have been an application for outline planning permission and it may be that the details of the scheme have yet to be finalised. You should inspect any plans as they become available. The developer could in theory build right up to the boundary line, but in practice is unlikely to get planning permission to do this. You should receive notification under the Party Wall (etc) Act if works are within certain distances of your property, and the Act will give you reasonable protection.Phil from PJW Law was actually involved in a very similar case were the developers didnt serve Party Wall Act notices and negligently carried out works causing serious damage to our clients property.Phil ended up suing the developer,the architect,the structural surveyor and the owner of the adjoining premises resulting in re-inforcement and putting right of all damage caused by the works previously carried out.He also secured damages of £215000.This case was resolved ,not in court, but at a formal mediation.
Buying a problem
Q. I am buying a 100-year-old cottage which sits on the property line with the neighbour. The neighbour is refusing to sign an easement to allow me to go on to his land to carry out maintenance work. Do I have any legal right in this matter?
A. This is a fairly common problem with older properties. I presume the difficulty has been brought to your attention by the solicitor carrying out your conveyancing work. He has probably told you that you may be able to get a court order giving you permission to go on to the neighbouring property for this purpose. But this will cost you money and it’s a built-in problem which will keep resurfacing. You should consider very carefully whether you really want to buy a cottage that will be difficult to maintain and where there’s an unhelpful neighbour.
As you were
Q. My mother and father made similar wills, whereby if one died their share of the estate passed to the other, but if both died then the estate was divided equally between their children. My father died and therefore the estate has passed to my mother. Is her will still valid, ie will the estate be divided equally between the children when she dies?
A. To be absolutely sure PJW Law had to look at the terms of the will to ensure that they were not both made as “mutual wills” which bind both parents even after the first has died. “Mirror” wills are a much more common way of drawing up such wills and if your mother doesn’t make another will her estate is likely to be divided as you suggest. Although these types of “mirror” wills are common they’re only tax efficient where a couple’s joint assets total less than the inheritance tax nil rate band(currently £650000)
Q. A firm of solicitors has written to me to tell me that a friend – one of my old teachers that I kept in touch with for 64 years – died 12 months ago. They didn’t say if she left a will, or if I am named in it, but I wondered whether I would have any say in her estate since she lived alone and had no
A. If solicitors have written to you it suggests your friend left a will. Normally the solicitors would have mentioned it if you were one of the beneficiaries, although it would be slightly unusual for them to have written for no other purpose than to inform you of your friend’s death. You should ask the solicitors if you were left something. If your friend didn’t leave a will and had no relatives her money will go to the Crown.
Q. Can you explain what the law is concerning an “easement” in connection with property maintenance? We have recently had the gable end of our bungalow re-pointed, but the neighbour told the builder to get his ladder off his path. We don’t have a good relationship with our neighbour, but does this mean our property must fall into disrepair?
A. An “easement” in your title deeds gives you the right to go on to someone else’s property for a specific purpose, in your case (I take it) to carry out repairs to your property. It’s in your title deeds for the very situation you mention. Unfortunately the law can’t make your neighbour more helpful, but it does mean that you could go to court if necessary for access in order to have your property repaired. This could be an expensive business but your neighbour could be ordered to pay costs.A quick check of the title deeds and 2 letters saw PJW Law sort this matter out as the neighbour agreed to allow our clients and their workmen on his property on reasonable notice.
Q. Eight years ago I replaced a boundary fence which had been up for at least 20 years, putting the new fence in its place. Then, just over two years ago, I bought my house from the housing association, which still owns the property next door. They now say the fence encroaches on to their property by some 30 cms, and are asking me to move it. Since the fence is 25m long this would cost about £1,000.
A. Boundary measurements are rarely so precise. You should ask the housing association why it thinks the fence is in the wrong place, since it’s been in the same place for 28 years. On that basis you can ask the Land Registry to rectify the Register. If a mistake has been made in preparing the plan then the housing association should agree to this.Phil wrote a letter to the housing association to get clarification as to why they were so sure the boundary encroached.After meeting them on site they agreed not only to leave matters as they were but also agreed to contribute to the cost of maintenace of the fence.
Seeking drain blame
Q. I caught my foot in a drain whose cover was missing .I fell and hit my head and lost consciousness for a time as well as breaking two fingers. I still can’t bend them. The council say it’s nothing to do with them. Who owns the drains?
A.PJW Law provided this lady a free interview. We then made enquiries to find out who owned the land or was responsible for the drains(Welsh Water in this case). If the land belongs to the council or it is a public highway and they have a regular system of inspection it’s possible they will escape liability. But in this case Welsh Water were responsible and the case settled for £25000.
In the firing line
Q. I am secretary of the tenants’ association in our block of flats. We manage the building and the surrounding land. Now someone says they have tripped over a loose carpet and injured themselves and I wonder if I could be sued. What is my position?
A. Obviously the person would have to prove his or her claim. The state of the carpet would be important, and you should take photographs for evidence purposes. Hopefully you have public liability insurance and the association has a set of rules which provide indemnity for members acting on its behalf. The fact that you are secretary should be irrelevant, to the extent that all committee members would potentially be liable under the Occupiers Liability Act 1957. You should contact your insurers.PJW Law checked the association’s rules to establish the extent of the secretary's personal liability.He was protected and in any event the insurers dealt with the claim under the insurance.
If you have a question,a problem or a potential claim just call PJW Law on 01492 875643 or Contact Us.Alternatively drop in to one of our free clinics or ask for an appointment.