November 26th, 2013
We rely on our professional advisers to add value and protect our businesses from risk. Sometimes, however, we are let down, and suffer financial loss or reputational damage and think our adviser is to blame. Individuals or businesses in this situation might be reluctant to look into the issues. There may be a feeling of embarrassment at having let the situation develop, or uncertainty as to whether the advice really was inadequate. You shouldn’t be afraid to challenge.
View the full article here.
Sue O’Brien has extensive experience in resolving professional liability issues by negotiation, mediation, and proceedings where necessary.
October 21st, 2013
Mr. Justice Popplewell recently dismissed the lawsuit filed by liquidators of Madoff Securities International Ltd after a lengthy trial in the High Court through which they were seeking to recover around $50 million. The ruling exonerated the UK defendants including former Bank Medici AG Chairwoman Sonja Kohn and the Directors of Bernard Madoff’s European organisation, including his children Mark and Andrew.
Andrew Madoff’s lawyer, David Archer, Partner at Pitmans LLP said of the ruling that “The High Court has completely vindicated the role of the Directors of Bernie Madoff’s English trading company and has confirmed that Mark and Andrew Madoff were honest Directors who knew nothing of their father’s fraud. The Judge has expressed profound sympathy for what the Defendants, including Andrew and his brother’s family have been put through. He commended them for their personal integrity and has criticised the way in which this unfounded Claim has been relentlessly pursued. Andrew Madoff and his family are pleased that, after a thorough review of all the facts, justice has been served.”
Full reports and further information can be found on the following links:
September 13th, 2013
Pitmans’ Social Media expert, Will Richmond-Coggan was invited to submit an article on dealing with antisocial media by Business Review Berkshire. Here it is kindly republished:
Within the last decade, the way that people and businesses use the internet has changed dramatically. Websites were at first seen as a platform for the delivery of static content, with very few differences to other print or broadcast media. What has emerged, from the growth of social media sites, blogs and wikis, is an internet in which publication of content is simply the first stage of a dialogue with users. These new types of site expect and require active engagement from participants on all sides.
Such changes have arguably done a great deal to make internet use a richer and more fulfilling experience for many, but they have been dogged by many of the problems associated with speech or publication in any medium: original content is copied or misused; untruths can be instantly disseminated in a global way; and bullying has moved from the playground or the street, to the privacy of a home computer, or the functional portability of a smart-phone.
Each of the above examples, and of course there are many more, has a solution in law. Equally though, the laws applicable to copyright infringement, defamation and harassment have failed to keep pace with the rapid evolution in technology and have often had to be strained and stretched in order to address the problems being encountered in an online world.
Concern is increasingly being expressed about what may be done to make the internet a more well-regulated environment for businesses, private individuals and (perhaps most particularly) children. There is no simple solution. It is true that lawyers experienced in these fields, such as Pitmans, have been able to make the best of the current legislation, adapting existing remedies to create novel solutions. Often, though, considerations ranging from costs to a desire not to escalate an already bad situation make it desirable to consider other remedies first.
The key though, whether you are a child or an adult, a private individual or a multi-national business, remains the same. Act promptly. Don’t ignore the problem and hope that it will go away. There is no substitute for talking the issue through with someone who understands the range of options at your disposal and can steer you through what can often be an oppressive and distressing experience.
June 26th, 2013
What is the current law covering user trends and how businesses interact with customers and partners through social media?
Will Richmond-Coggan, a newly-appointed partner in Pitmans LLP’s dispute resolution team and a specialist in online defamation and reputation disputes, says: “The law applicable to social media is still very much in a period of evolution. There is currently a tension between the manner in which the law treats publications made informally in the social media environment, and the way in which most users (corporate or individual) view their responsibilities.”
“Consequently, it is still important to urge caution in social media interactions. In many respects, the desire from a marketing perspective to create natural and organic conversations with customers has to be tempered with the recognition that any statements made are treated formally as publications by the company, with all of the formal legal consequences that flow from that.”
How is the law changing and can you see where changes are leading the industry?
“One welcome recent development is the Director of Public Prosecutions’ clarification earlier this year (following consultation) on the circumstances in which prosecution for statements made online generally, and on social media platforms in particular, will be considered appropriate and proportionate. Another, from the point of view of the operators of social media platforms or other online forums, is the new Defamation Act, which will in due course provide a helpful mechanism for such operators to pass liability on to the true culprit in such cases, the author of the defamatory postings.”
It is too early to say where these changes might lead, but it is likely that publishers and hosts will be able to engage in social media conversations with increased confidence, subject to ensuring that their own personnel adopt appropriate policies and practices.
How is this impacting on the actions of people and businesses on social media (in the UK and around the world if different)?
Philip James, Partner and Joint Head of Technology at Pitmans LLP, advises clients on digital media and data privacy and comments: “Businesses are becoming increasingly sophisticated in the way in which they use social media to engage with customers. Brands are often on a rapid learning curve in relation to the ways in which such engagement differs from more traditional marketing. Social media cannot be used as a broadcast medium, it is subtler than that and requires greater interactivity. As businesses develop greater confidence that they understand the legal and social parameters of that process, so they become more adventurous and imaginative in the way that they use the medium.”
“Rather than always reaching for the last resort remedy of litigation, when comments are made in such forums that are disparaging or even harmful to the brand, we have seen clients recognising that constructive engagement, or even dignified silence, can be more effective approaches in certain cases. There is nothing more valuable to a business than to have engaged customers actively leaping to their defence, without having to be prompted or co-ordinated. Ultimately legal remedies remain available for the most serious problems, but for the rest a sophisticated business will have a range of nuanced responses available depending on the situation.”
While no legislation specifically targets social media, laws in relation to intellectual property, data protection, discrimination, defamation, advertising and marketing regulation, privacy and harassment apply equally in the existing virtual world as they do in the non-virtual. For instance, Daybrook House Promotions has recently been ordered to pay damages of over £5,000 in settlement of what would have been a commercial licence fee for unlawfully using a commercial photographer’s photo downloaded from a social networking site to promote a venue Rock City in connection with its ‘Floor Fillers’ dance events (this excludes the significant costs and resources required to defend claim by Jason Sheldon, the photographer). That said, there are clearly added challenges of enforcement and identification in the virtual world.
Why should businesses be aware of this legislation and what impact does it have on their social media if they don’t abide by it?
Businesses should be aware of laws that apply to their activity in social media so that they can maximise the benefits (and limit the risks) of social media. These include presenting a positive image of their business in the public domain, sharing information, knowledge and best practice with others, networking opportunities and gaining information about candidates for recruitment (and even attracting and recruiting candidate solely via social media).
Internally, virtual communities can contribute to increased cohesion between groups of employees; information, knowledge and best practice can then be quickly shared among them.
An organisation should consider carefully whether or not (as well as how) to engage and interact with social media. Brands using social media should decide upon an effective social media strategy. For instance, whether they wish to monitor a social media channel proactively or reactively, since each approach has a different risk level attached to it and varying degrees of liability in law. In addition, brands and their PR agencies need to decide how they wish to respond to negative comment; censorship can be counter-productive.”
Philip James warns that, “Social media is not always the most appropriate means of communication, since by nature it is more difficult to control. In addition, although it is often thought of as a ‘free’ means of marketing, it can require significant cost and expense to implement and run and needs to form part of an integrated long term strategy. There are also inherent risks in following a transparent and open campaign. Further, once a campaign ‘goes viral’ it can be difficult to remove.”
“However, there are significant and exciting opportunities for social media; recruiting consumers and advocates of your brand and building brand loyalty can result in a very powerful army of brand ambassadors. By deploying a ‘word-of-mouth’ marketing campaign strategy, brands can develop and build substantial trust through such ambassadors.”
How can businesses adapt to these restrictions to deliver strong media campaigns?
There are potentially three heads of preliminary action a business should take to prepare for and mitigate any liability that may arise from an organisation’s use of social media in the context of employment and security. These are:
- Policy: Develop a social media policy, which clearly sets out the employer’s expectations of its employees when using social media. It will detail what is and what is not acceptable along with the consequences of failing to comply.
- Employment contracts: Include clauses in employment contracts, obliging employees to keep employer information and secrets confidential. There should also be clauses covering the employer’s trade property rights, making it clear they belong to the employer and that use of these rights is prohibited unless the employer gives its consent.
- Security: Employers should have security in place, using appropriate policies and encryption of sensitive data (e.g. confidential information, intellectual property and personal data) on mobile devices. Material should be removed when it is no longer required. Guidance and training should be provided on the use of such devices and security checks carried out to ensure they are protected.
- Contingency Response Plan: have and rehearse a response plan to respond to incidents which evolve from use of social media (either by the organisation or in reaction to social media trends and comment on social networks). This requires a governance structure, clear lines of communication, a step-by-step approach (coupled by agility and flexibility in responding in an innovative manner) and a good relationship with our internal and external PR and communication(s) teams.
- Insurance: consider reviewing your current policies to check whether they cover incidents which relate to social media loss and exposure.
For the most part, social media is an exciting and effective means of engaging with your audience; however, you need to ensure its use is justifiable and matches your organisation’s objectives, brand and risk profile. It also rarely succeeds when used alone in the absence of links to other forms of media.
What advice can you offer to any business that is building a social media strategy on how to work within legislation effectively?
It is important to devise a policy that is not only in line with current legislation but also reflects current social trends. Following this will ensure certainty among staff that they are acting within the law and the sanctions they will face should they breach the policy.
However, employers must also remain realistic if an employee makes unwelcome comments. They should ask for comments to be taken down and, if this is not possible, take steps to respond in a measured and considered manner so as to minimise any potential damage.
Employers may wish to monitor their employees’ Linked In and other social network profiles: when doing so, this must be proportionate and justifiable as there is a fine line between an employer protecting its interest and undermining an employee’s expectation of privacy and freedom of speech.
An organisation should monitor, listen and keep up to date with their digital reputation, regularly searching words relating to their business, keeping track of what is being said about them and, if necessary, either seek removal of certain content or respond objectively with constructive comment. Identifying risks early can be an invaluable means of preparing for attack or countering negative comment. ”A variety of tools are available in the market to help clients in this regard” adds Philip James.
What do you feel are the most important factors to consider in this regard?
“One key risk is the use of a company’s name or logo inappropriately or where an employee or a third party suggests an association which is false. An employer needs to be able to control their brand”.
Moreover, where the employer provides their employees with devices such as mobile phones or tablet computers, the risk that these will be lost or stolen poses a significant security threat to businesses.
“Often many devices are used without a pass code, which would otherwise prevent unauthorised access, and so there is a real risk that confidential information about the employer or its clients can be accessed and leaked into the public domain,” Philip James comments.
“Employers should also keep in mind that these devices have inbuilt cameras, video recorders and voice recorders, and should consider the risks in this regard.”
How can a business in a highly regulated industry make the most of social media in spite of their limitations?
James suggests the following tips for businesses on how to make the most of social media:
- Be engaging and interactive: the employee should write in the first person, identifying their connection with the company and adding highlights of personal character. They should stimulate interest in their work and invite a dialogue in order to learn from others doing similar or related things.
- Develop and follow a structured social media strategy.
- Measure the effectiveness of that strategy using appropriate metrics. Consider the value of your contribution before you post.
- Respond to mistakes quickly. If you post something in error, act quickly to correct it.
- Your credibility is judged by your accuracy and your willingness to recognise and fix your mistakes. If you modify an earlier post in a blog, be upfront about doing so.
- Be respectful. It should go without saying that an employee should never post anything that might be offensive to others, such as sexual comments or racial slurs.
- When using social media to market, be careful not to engage talent ambassadors to endorse certain brands without making the commercial relationship clear.
- Conduct due diligence on third party apps which collect user data to ensure they respect privacy and data protection laws.
- If in doubt, seek legal advice before presenting unknown third party apps as part of pitches to clients.
What will the environment look like for businesses in five years’ time?
Will Richmond-Coggan: “The new Defamation Act is going to come into force at the end of this year. For businesses who are publishers or authors of content this, and other parallel reforms, will probably give rise over the next five years to an online environment in which they will run fewer risks of inadvertently incurring liability for publications made or hosted by them. Conversely of course, for companies who are on the receiving end of defamatory or other brand-harming statements, additional hurdles will have to be overcome before formal remedies can be secured.”
April 4th, 2013
Courtesy of Thames Valley Business Magazine March 2013
Legislative changes to the way the costs of litigation can be recovered from unsuccessful opponents are expected to come into effect in April 2013. Any claims which your business currently has in prospect should be reviewed without delay, to ensure that there is the opportunity to resolve those claims before the benefits of the existing arrangements are lost.
What is changing?
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduces a wide range of reforms to the justice system. One of those reforms will be to bring an end to the recovery of certain types of litigation costs, presently referred to as ‘additional liabilities’, from the unsuccessful party to a claim.
When advising clients on their options for funding a prospective claim, we will explore with them whether the matter is suitable for a Conditional Fee Agreement (CFA), sometimes referred to as a ‘no win no fee’ agreement. An integral part of a CFA is known as the ‘success fee’, triggered if our client succeeds in the claim. Subject to some Court assessment, this success fee is (presently) recoverable from the opponent along with the client’s other costs.
In cases where we act under a CFA, and in some other cases, it is also appropriate to consider whether an After The Event insurance policy should be taken out, to cover the risk of having to pay the opponent’s costs (and sometimes own disbursements) in the event that the litigation is not successful. A premium is payable for that ATE insurance – usually deferred until the end of the case and only payable on success – when again, at present, it can be recovered from the unsuccessful opponent.
CFA success fee and ATE insurance premiums will not be recoverable from the unsuccessful party for any arrangements entered into after 01 April 2013.
Why do these changes affect you and your business?
The reforms are a significant departure from the present rule – which is that the loser can expect to pay some or all of the winner’s costs, including additional liabilities – and will mean that even successful litigants will need to dip in to their own pockets to meet these additional liabilities in future.
The changes will mean that many claims become significantly less commercially attractive to pursue, are only pursuable at significant additional adverse cost risk, or even become altogether uneconomic.
Consider these issues now
By taking advice in good time before the reforms come in to effect, you can ensure that all possible funding options are open to you, including those that will be lost altogether or become significantly less attractive on 01 April 2013.
Whilst not all cases are suitable for a CFA or for ATE insurance, it is certainly worthwhile investigating all of the funding options that might be available before some of them are lost. The reforms also introduce a new kind of funding arrangement called a Damages Based Agreement (DBA), which will become available from 01 April 2013. We can discuss with you how DBAs will work and whether your case might be suitable for a DBA once they become available.
It is anticipated that as the deadline approaches there will be a significant surge in applications for ATE insurance that risks overwhelming brokers and underwriters. It is therefore important not to wait until the last minute and to take advice on any current issues sooner rather than later.
How Pitmans can help
As an existing client of Pitmans, you may well already be aware of our top-ranked Dispute Resolution team. We are able to assist with a wide range of commercial and personal claims including contract, trade and finance, IT disputes company and shareholder issues, fraud, professional liability, land and property disputes, inheritance and trusts.
We are always happy have an initial telephone discussion on any contentious matters without charge and without obligation. If there are any issues with which we can assist you and your business, particularly in light of the above matter, then please do not hesitate to contact:
December 1st, 2012
Forty six percent of adults of UK adults online who use cloud storage are concerned about the security of their information, according to a recent YouGov survey.
Whether or not the public’s perception of cloud computing solutions is correct it highlights a concern that has led the Information Commissioner’s Office to publish a new guidance note entitled “Guidance on the use of Cloud Computing” (see guide here).
In addition to the well known risks of cloud computing, such as ineffective or even non-existent disaster recovery provision, the Guidance reminds businesses of their responsibilities under the Data Protection Act 1988 (“DPA”) and confirms that the DPA applies to any processing of personal data which takes place in the cloud.
Data breaches can lead to expensive fines and a recent example of the Information Commissioner’s appetite to penalise breaches of the DPA is provided by the £250,000 fine handed out to the Scottish Borders Council in September 2012 for a data breach after the council’s former employees’ pension records were found in an overfilled paper recycling bank in a supermarket car park.
The council had employed an outside company to digitise the pension records of its former employees but failed to put a written contract in place with the third party processor and failed to seek appropriate guarantees as to how the personal data would be kept secure whilst being processed and destroyed shortly thereafter.
To avoid similar fines the basic obligation for businesses to bear in mind is that as a business you are responsible for keeping your data safe. The processing of that data can be outsourced but how the data is used and protected remains your responsibility.
The main points detailed in the Guidance to consider are:
- If processing is outsourced a written contract must be in place to comply with the provisions of the DPA.
- The customer must take steps to ensure that the cloud provider adequately addresses the risks discussed in the Guidance. It cannot assume that the cloud provider’s standard terms and conditions will allow the customer to retain sufficient control over the data in order to fulfil their data protection obligations.
- Consider whether all the data that you are putting into the cloud really needs to be there. A customer should actively review its data and determine whether there is any data that should not be put into the cloud, and keep a clear record about the types of data that intends to move to the cloud.
- If the cloud provider is to act as a data processor (which it will in most circumstances) the provider must give sufficient guarantees about the technical and organisational security measures governing the processing to be carried out and the customer must take reasonable steps to ensure compliance with those measures.
- Data which is deleted is rarely entirely removed from the underlying storage media unless additional steps are taken. The customer should therefore ensure that the provider is able to delete all copies of personal data within the timescale that is in line with the customer’s own data retention schedule.
- If data is to be transferred to any country outside the European Economic Area it may only be transferred to a country or territory that ensures an adequate level of protection for the rights and freedom of data subjects in relation to the processing of their personal data. The customer must ensure that the cloud provider’s solution guarantees compliance.
- Once a cloud provider has been chosen the customer should continually monitor, review and assess whether the cloud service is being run as expected.
The Guidance provides a valuable checklist of matters for businesses to consider before signing up for cloud computing and you would be well advised familiarise yourself with them urgently or risk facing a potentially costly conflict with the Information Commissioner.
November 1st, 2012
How can businesses learn from the mistakes of others when commissioning custom software systems? asks Pitmans LLP Director and Technology Litigator Phil Smith
HM Courts and Tribunal Service announced earlier this month that its attempt to upgrade the IT system in the High Court had resulted in failure and was being decommissioned, costing the public purse almost £10 million. Even if not of the same scale, commissioning a bespoke software system can present businesses with a number of challenges. While the potential benefits of such projects can be substantial, there is also ample scope for misunderstanding, cost overrun and outright failure where a system does not deliver as hoped (or hyped) and does meet the
functional requirements of the user. The history of bespoke software projects is littered with failures, from which some common themes emerge and lessons can be learned. Here are our top tips for a successful project:
Choose your software developer carefully
This sounds obvious, but too often businesses allow the decision to be driven too heavily by bottom-line price. A system that does not work is worthless to the business, regardless of how much it might have cost if successful. Ask potential partners for references, and get to the bottom of whether they have they done any similar projects for similar businesses involving the software in question. Take time to follow up on references – frank feedback from the developer’s other clients is infinitely more useful than a glossy brochure and a slick pitch.
Be clear on the methodology
You should expect potential partners to set out clearly and fully the methodologies that will be adopted to take the project right though to completion. Although they may seem rigid and overly-formal, the recognised methodologies exist for one simple reason: to increase the probability of the project’s succeeding. Make it your business to understand the difference between waterfall and agile models, and the specifics of what any particular methodology like PRINCE2 will involve in practice and how much resource and time investment it will require from your own project management perspective.
Get the right people on the job
One of the most common areas for disputes arising between software developers and their clients following a project’s running into trouble is that the developer is not receiving sufficient resource, instruction or feedback from the client’s key personnel. Address this issue from the outset by nominating project managers with sufficient time, expertise and authority to dedicate to the project internally. If the methodology requires a project committee to be appointed, make sure that it meets regularly and, more importantly, that minutes and appropriate actions are agreed shortly after each meeting – a series of short meetings noting everything is on track will be far less-time consuming in the long run than only meeting when a problem needs to be addressed or the project is failing. Likewise, make sure the user-acceptance testing phase involves the ultimate users of the system, adopting a clear testing and reporting process.
Don’t be held hostage on costs
Inevitably, the developer will want staged payments to be front-loaded, while the client business will want to as much of the price as possible to be paid once it is confident that the project will ultimately succeed. Paying the whole of the price before user acceptance testing will leave the client with little leverage in the event of persistent snagging items, and should be avoided if possible. Just as with any construction project, seek to backweight a significant portion of payment (as far as is reasonable) to provide a fair allocation of risk.
Don’t ignore the dispute resolution mechanism
Problems and issues are almost inevitable; get over it. Prepare for them in advance and ensure that there is an effective and clear procedure and mechanism for seeking to resolve challenges and unforeseen issues, as well as an appropriate escalation procedure for ensuring senior representatives have an opportunity to agree any thorny issues should they arise. Make sure, however, that you are not contractually bound to conduct endless rounds of dispute resolution meetings before having the opportunity to get tough. Always retain the right to issue proceedings or invoke arbitration (where appropriate), depending on the scale of risk involved and the potential harm that may be done.
November 1st, 2012
Courtesy of Thames Valley Business Magazine October 2012
The level of service is ‘exceptional’ at Pitmans, where the lawyers have ‘a very good understanding of the market and the specific needs of the client’. Work highlights included advising Maple Leaf Bakery UK on the partial sale of its bakery business, and assisting with various matters relating to Tesco’s acquisition of shares in Blinkbox Entertainment. Andrew Peddie is an ‘excellent corporate specialist with great expertise and experience’. Philip Weaver recently advised the shareholders of Thames Travel on its sale to Go-Ahead.
With a team including a number of former City litigators, Pitmans has seen an increase in shareholder matters, guarantee claims and misrepresentation disputes. Practice chair Sue O’Brien handles complex commercial litigation, often with an international element, and is also and ADR-accredited mediator. Tim Clark is recommended for his experience in IT-related matters and company and shareholder disputes.
Pitmans is highlighted for its ‘excellent success rate’ in sectors including technology, construction and retail. Team head Suzanne Brooker is ‘readily available, sharp and commercial’.
The ‘excellent’ Pitmans has a ‘longstanding, loyal team of trusted advisers’. Highly rated practice head Patrick Long concentrates on corporate banking transactions and advises banks and corporate borrowers on refinancing and restructuring issues. The team is on the panels of 10 major banks.
‘Fast-moving and forward-thinking’ firm Pitmans houses an ‘excellent’ team which is ‘quick to grasp important issues’. Department head Suzanne Brooker has an ‘outstanding level of knowledge, and is one of the best in the business’. The team experienced a rise in both personal and corporate insolvency instructions in 2011.
Recognised for its strong technology-sector expertise, Pitmans recently assisted Toshiba TEC Europe Retail Information Systems in relation to an application for union recognition by Unite. Mark Symons leads the team, which includes the recommended Richard Devall. The firm also stands out for its niche practice in business immigration.
The ‘responsive and helpful’ Pitmans advises defined benefit schemes on issues such as scheme appointments and the switch from RPI to CPI. Recent work includes advising the trustees of CitiFinancial Europe on the merger of its occupational schemes into a larger parent scheme. ‘Clear, analytical’ department head David Hosford leads a team that includes two solicitors dedicated solely to pensions-related litigation.
Ferhat Choudri’s team at Pitmans gained several new clients in 2011, and acted in a multimillion-pound indemnity case.
Pitmans is highly regarded for its work advising housebuilders on acquiring development land, and recently handled two multi-million-pound site purchases for Bewley Homes in Reading and east Challow. Other clients include Banner Homes, Coutts & Co, Urban Outfitters, and Porsche. Team head Andrew Davies and Paul Murray are recommended.
Pitmans recently acted in three cases relating to property contamination.
Pitmans’ client base is largely made up of housebuilders, but the firm also acts for international banks and retail clients. It advised Banner Homes on over 20 sites in the South East.
Pitmans’ lawyers have a ‘very good understanding of the market’, and provide an ‘exceptional’ service. The IT team is now four partners strong following Philip James’ recent arrival from Lewis Silkin LLP. The lawyers divide their time between London and Reading.
Pitmans is noted for its ‘rapid response times and creative commercial solutions’, and recently acted for Live Nation in a European Court of Justice trademark appeal. Practice head Jeremy Summers is recommended, as is Sally Britton; both divide their time between London and Reading.
June 29th, 2012
Re-published from the Pitmans Times 2012
The more difficult trading conditions of the last few years have resulted in an upsurge of shareholder disputes. Although Pitmans would always advise shareholders to enter into a shareholders’ agreement to reduce the potentially significant costs that can result from dealing with these disputes, sometimes it is too late and disputed claims arise.
Claims often involve one or more of the following: unfair prejudice is usually alleged, directors’ conduct needs to be investigated, employment rights considered and shareholders’ and directors’ meetings held. Operation of the bank account requires immediate attention to stop potential financial abuse. One recent case saw a director whose conduct was being questioned present a cheque for an £80,000 ‘bonus’ just three hours after being informed he was being suspended.
The Pitmans team try as hard as they can to avoid litigation unless they believe it will be in the client’s best interests. A combination of careful tactical planning, knowledge of all the legal aspects and creative, practical solutions can work to ensure litigation is avoided and the company can carry on and leave the disputes behind.
T: 0118 957 0264
June 15th, 2012
Re-published from the Pitmans Times 2012
Pitmans’ Head of Dispute resolution, Sue O’Brien, outlines what grounds exist for challenging a will.
The idea of challenging a Will can be an agonising decision for family members at a very difficult time. But if a Will turns out not to be as expected, then it may be possible to challenge it.
Does the will reflect the true intentions of the deceased? If family members believe it doesn’t, then the following grounds could be considered as cause to challenge it.
1. Technical Validity
Does the Will stand up as technically (ie, legally) correct? Has it been revoked or superseded by another version, for example? Do other Wills exist?
2. Mental capacity
Was the testator capable of making the will at the time he or she did so? He or she must be of sound mind, memory and understanding when the will is made and have known of and approved of the contents of the will.
The court has the power to rectify a mistake in a Will in order to make the Will read as intended.
4. Undue influence
A Will can be set aside if undue influence can be proved.
Fraud or forgery would affect the validity of a Will but the standard of proof required is high.
Beneficiaries need to recognise the consequences of revocation of a Will. If a Will is revoked, the previous valid Will takes effect, or if there is none then the rules of intestacy will come into play.
In cases where there is suspicion or doubt about the circumstances in which a Will was made then evidence needs to be gathered quickly. Medical records may be sought, for example.
Working with a dedicated expert team like the one at Pitmans will help assess whether a will is open to challenge.