Tag Archives: legal advice

Harassment and the Law

 

Following a recent case we dealt with it is a useful exercise to review some of the law relating to harassment.

What is harassment?

Harassment claims are governed by the Protection from Harassment Act 1997.

To be regarded as harassment the conduct complained of must:

  • occur on at least two occasions for one person; or
  • one occasion where the conduct is against two or more people.

The conduct, which can include speech, must be objectively assessed “as conduct targeted at an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable.”

The ‘ordinary banter and badinage of everyday life’ is not conduct which can be considered ‘oppressive and unreasonable’ under the Act.

The Truth Hurts

Harassing behaviour is not limited to false degrading comments.

Comments that are true but repeated in such a way over-and-over could fall within the meaning of ‘oppressive and unreasonable’. The Courts have said:

“The fact that the statements are true, and could and would be justified  at trial, would not necessarily prevent the conduct from being harassment.The real question is whether the conduct complained of has extra elements of oppression, persistence and unpleasantness.”

 Following someone down the street whilst shouting ‘adulterer’ through a megaphone can still amount to harassment within the Act regardless of the truth of the statement.

Online harassment

Due to the nature of online publication the target of the comments is likely to have their attention drawn to it on more occasions than on other media. As a result the publication of material online can amount to harassment even when it only published on one site.

In one case online publication meant the harassment could be inferred to be ‘continuous’ due to it being likely to come to the claimants attention on more than one occasion thereby causing them distress on each occasion. A warning for people who operate on a number of social media websites.

A Right to Privacy and Freedom of Expression

Claims often involve arguments the right to your family life being private and the freedom to publish anything.

The test the Court uses involves scrutiny of the comparative importance of each right, with a proportionate balancing of each right being central to deciding where the relative importance of each lies. The Court will weigh arguments for and against interference and restriction of each right whilst considering this.

Harassment claims are by their nature circumstantial however there is clear guidance on the scope of what does and does not amount to harassment and individuals can seek the protection of the Act when they are being subjected to oppressive and degrading treatment, even if such conduct is under the guise of free expression.

Harassment or defamation

In some cases it may well be easier to pursue a harassment claim as opposed to a claim in defamation due to the thresholds of each. Defamation requires a claimant to have suffered/likely to suffer serious harm as a result of statement, whereas harassment only requires there to be a statement, albeit one which is oppressive and unreasonable.

If you are the subject of harassment and need legal advice as to what we can do to help get in touch with us today:

Avoiding litigation at all costs – top tips..

 

Disputes in business are, unfortunately, inevitable for the vast majority of businesses at some point. Litigation is inherently risky, stressful and time consuming and more often than not, expensive. With the recent (further) increase in Court fees, litigation should be the last resort and whilst the majority of disputes can be resolved before you ever have to appear before a Judge, there are a number of practical and simple tips that all businesses, small and large alike, would be advised to follow to try and minimise the risk of disputes arising in the first place. If it is necessary to litigate, it may also increase your chances of getting an early and favourable result.

  1. Keep it in writing

Whilst all forms of communication are necessary to be successful in business, it really is crucial that any agreements or discussions that take place in meetings or over the telephone are subsequently confirmed in writing.  Documentary evidence of this nature can often be the key to unlocking a dispute in your favour. As good as your memory may be, a Court will always find contemporaneous written documentation to be more compelling evidence during a trial than a witness’ recollection of events that took place during a telephone call several years prior.

  1. Carry out due diligence with customers/suppliers

In this day and age, there is no excuse for not carrying out checks in respect of other businesses that you choose to deal with. Information in respect of all limited companies (which includes the latest filed accounts) is currently available free of charge via the Companies House website. Similarly, you can also check out company and director insolvency statuses free of charge online.

  1. Review your terms of business

Make a point of reviewing your terms and conditions at least every 6 months to ensure that you are compliant with all of the necessary rules and regulations relevant to your business sector in addition to ensuring that you are protected in the event of disputes in the future. For example, inserting a clause within your terms of business which provides that the parties to a dispute agree to explore ADR (Alternative Dispute Resolution), such as mediation, can dramatically reduce the amount of time you spend in the Courts.

  1. Read the small print

All businesses in every sector enter into commercial agreements on a regular basis whether it be for a simple contract employing cleaners or more complex property leasehold arrangements. Whilst it may appear to be time consuming, there is no excuse for signing a document without reading it first. It is not uncommon for parties to believe that they understand the nature of the agreement they have entered into before a dispute arises at which point it may be too late to obtain a favourable resolution.

  1. Review your internal processes

All successful businesses run based on a number of underlying processes. In addition to implementing these processes, it is crucial to ensure that they are reviewed regularly. For example, having a clear credit control process in place for collecting outstanding debts is crucial to the cash flow of a business and further, being able to identify risks such as complaints and dealing with them early and effectively will minimise the possibility of disputes arising.

  1. Don’t delay / take advice

If it looks like a dispute may be on the cards and you are unsure as to your position, it is sensible to obtain professional advice at the earliest possible opportunity. As clichéd as it may sound, prevention is often better than cure. If a potentially litigious situation appears likely, there may be simple steps that can be taken at an early stage which result in valuable costs and time being saved in addition to the stress of litigation being avoided altogether.

  1. Remain objective and professional

Maintaining relationships is a crucial part of running a successful business. It is not uncommon for relatively small issues to escalate to full blown litigation which becomes disproportionate. Before picking a fight, take a step back and consider the consequences of threatening the use of lawyers or Court proceedings. Often, disputes can be resolved without the need for lawyers and Courts to be involved at all. It is often difficult to repair relationships once parties have entered into the litigation process, even if the result is amicable.

  1. Never pursue litigation out of principle

It is very unlikely to end well. If in doubt, take advice as to the best and worst case scenarios of taking a course of action. If neither seem particularly appealing, your decision should be made up for you.

If you are involved in a commercial dispute, or having regard to the above, are interested in knowing more about how to avoid getting in to one, please do not hesitate to contact David Hall, Partner in Cohen Cramer’s Dispute Resolution department on 0113  224 7808.

 

The Perils of the Litigant in Person

 

Michael McDonnell of Cohen Cramer Solicitors looks at the perils that await those who chose to represent themselves in court.

Recent cuts in the level of funding for legal aid and assistance has, not surprisingly, resulted in many people being unable to access affordable legal advice and the representation they need.

This has led to an increase in Litigants in Person (LIPs) basically, those who represent themselves in court. While a seemingly sensible response to the problem this can often result in problems and delays due to the individuals, understandable, lack of knowledge of procedure and law. As a result, and the need for the courts to function, Judges have tended to be much more lenient when it comes to enforcing procedural compliance against LIPs.

However, such benevolence comes with provisos, as seen in the recent case of

Akcine Bendore Bankas Snoras v Yampolskaya [2015] EWHC 2136 (QB) (02 July 2015),

This involved the freezing of assets stated to be 482 million euros, and the applicant’s (Mrs Y) failure to file documents with the court leading to her case being struck out.

Mrs Y made an application for the matter to be reinstated. Her application was, in essence, that she really didn’t know what she was doing and hadn’t really understood the need to file the documents, nor had she sought independent legal advice.

The court was not overly impressed by such an argument and rejected her application for the matter to be reinstated.

In reaching their conclusion the court applied the Denton test for determining what, if any, sanctions should be imposed in relation to the breach:

  • Was the breach serious or significant?
  • Why did it occur?
  • When considering the above the court are to deal with the matter in a just manner.

In applying stage two of the Denton test, the court provided useful guidance on the correct approach to assessing defaults by LIP’s, emphasising that not all litigants in person should be treated the same.

The court may take into account the needs of a party who is impecunious or unable to speak the language. However, Mrs Y was a sophisticated person with sufficient access to resources to protect her interests, therefore there was no good reason for her breach. The fact that she was able to hire solicitors and barristers for her application for leave indicates that she had the money for legal advice and representation in the first place.

In short, if you can afford a lawyer then get one and don’t expect the court to be merciful and understanding if you don’t and get it wrong.

To make sure that you have well priced, experienced and qualified legal advice get in touch with Cohen Cramer solicitors.

For the Quality Legal Service You Deserve

 

 

 

Transferring property as a gift – are you sure????

 

Nicola White of Cohen Cramer Solicitors looks at the pitfalls of being generous without being clever.

As a legal practice with recognised expertise in such matters we are regularly contacted by people considering transferring property to their children.  Their reasons for wishing to do so include a desire to avoid having to sell the property to pay care home fees, as a means of reducing an inheritance tax liability, a token of love and affection or a wish to see their family benefit from their generosity whilst still alive.

If you are considering transferring property, for whatever reason, great care is needed to ensure that you fully understand the implications of the transaction and to make sure that the transfer is the best way to achieve your goals.  For example you may still face an Inheritance tax liability if you transfer your home but continue to live in it.

You also need to be aware that a transfer is just that – you are giving up your rights to your property.  Once transferred the property belongs to the recipient and they can do with it as they wish.

This was the issue faced by Sheena Godden recently who failed in her bid to have a transfer to her son and daughter-in-law over turned.  In 2012 she transferred her estate worth about £1.2 million, to them, after they agreed to move into the property and, at their own expense, renovate it back to its former glory.

Mrs Seddon later claimed that she did not understand the full implications of the transfer and believed she was simply giving the couple a right to live in the property.  The judge did not believe her and accepted that she had known exactly what she was doing but had changed her mind about the gift following a family fall out.  Mrs Godden is now facing legal bills reported to be in the region of £200,000 this is in addition to no longer owning her £1.2 million estate.

Even though ultimately successful her son and daughter-in-law had to endure defending court proceedings issued against them by Mrs Godden; not a pleasant experience for any family.

Whether you are planning to transfer your property, or whether you are the recipient of the property this salutary tale shows the importance of taking independent legal advice and the importance of both parties fully understanding the nature and implications of the transfer.

So if you are either the person transferring or the recipient in such an arrangement speak to us first. It is a lot easier to get sound legal advice before anything is signed than to try and argue against it at a later date.

To get the advice you need contact Nicola White at Cohen Cramer Solicitors on 01132247813 or email at nicola.white@cohencramer.co.uk  for a free initial consultation.