Author Archives: Mike Massen

Case Study for NFCI Military Injury Claim

We recently settled a claim for significant damages for Non-Freezing Cold Injuries for a former Soldier who served in the British Army.  Our client was exposed to freezing temperatures, well below zero degrees Celsius, whilst out on the ranges in basic training and thereafter on exercise in the United Kingdom, Germany, and Canada.  We alleged the Ministry of Defence failed to provide a suitable thermal kit for our client’s hands and feet.  Liability was admitted in part by the MOD. Continue reading

Debt Recovery for Businesses and SME

An alternative way to increase cash flow

Whilst many of us are acutely aware of the threat to health that Covid-19 (Coronavirus) has brought in 2020, many of us are also aware of the threat it has brought to our companies and small businesses.

The business landscape of today amid the Coronavirus havoc shows a picture of uncertainty, due to reduced consumer/client engagement which has resulted in reduced profit margins and cash flow, with many companies simply unable to stay afloat. Continue reading

Property Disputes: Defects

The pandemic has seen struggle and shortages across all sectors, however, one sector in particular which has been notably affected is construction. It is well known that the pandemic has caused problems in respect of the availability of many building materials across the country, which has put into jeopardy the ability to complete on many homes. Continue reading

Dealing with a POCA matter

Dealing with a POCA matter. The POCA team at Cohen Cramer Solicitors offers first-rate expertise representing people facing confiscation proceedings.  Lauren Bowkett, Head of POCA deals with the department’s most complex and high-profile cases in relation to the Proceeds of Crime Act 2002 (POCA).  She is here to tell you everything you need to know about your POCA case. Continue reading

Causation in Professional Negligence Claims.

Causation in Professional Negligence Claims. As a firm of solicitors specialising in professional negligence claims, we deal with many clients who have suffered as a result of solicitors being negligent when dealing with their legal affairs.

The most common solicitor negligence cases we see relate, in the main to either civil litigation or property cases. Most clients understand the concept of negligence and believe that this is all they have to prove to be successful in a claim for professional negligence.

The one crucial aspect that we advise on in every case is what is known as Causation.

Causation is the key element you need to be able to establish if you are to win compensation from a solicitor in a professional negligence case.

In simple terms, this is proving that the negligence which has occurred has caused the loss that is being claimed. As with many areas of the law, this is not always as straightforward as many people initially believe. By using a couple of examples, I can hopefully give some insight into the issues which arise.

Let’s look at a property case.

A client instructed their solicitor in the purchase of a property that consisted of a substantial detached house together with a substantial area of additional land which was suitable for development. The client’s intention following the purchase was to live in the house, but also then to build a substantial detached house on the adjacent land.  The client’s solicitor did the legal work for the purchase and the transaction was completed. The client then obtained planning permission and started the building works on the new house to be built in the grounds. At that point, one of the neighbours threatened legal action as the proposed development was in breach of restrictive covenants which were attached to the land on which the building was taking place.

On taking legal advice it became clear that there were in fact these rights in favour of the neighbour which in reality meant that the site could not be developed as the client intended. It was clear that the solicitor who dealt with the purchase of the property had been negligent in failing to advise on the restrictive covenants in the title which restricted the ability to build on-site.

The client wanted to sue the solicitor for negligence. The client maintained that as a result of the negligence, he could not build a property for which he had planning permission. Had he been able to build the property, it would have been worth £500K, and after build costs, he would have made £250K in profit. At first glance, that seems to be a reasonable and sensible claim.

In this case, the solicitor admitted negligence but argued that they weren’t responsible for the loss of £250K as this was not caused by the negligence.  They maintained that the property was still worth what the client paid for it and regardless of the negligence, the client wouldn’t have been able to build on the land and in reality, the client had suffered no loss.

The easiest way of determining what losses have flowed from the negligence is to look at what should have happened had the solicitor not been negligent.

The question to ask is what would have happened had the solicitor advised about the restrictive covenant?

There are two potential answers to that question:

  • The first which is probably unlikely is that the client would have proceeded to buy the property regardless. If that is the option the client would have chosen, then there would be no loss.
  • The other alternative is that the client would have simply decided not to proceed as the property did not allow him to develop it. This is the more likely scenario.

In this case, the loss that had been caused by the negligence is the fact the client bought a property he would not otherwise have bought. The losses were the cost involved in buying and selling it, but not the loss of profit as he would never have been able to build on the land. The reason he could not make the profit was due to the fact there was a restriction and not due to the negligent act of the solicitor.

Another example in the field of litigation relates to building disputes.

A solicitor was instructed by a client to sue a builder who had constructed an extension for the client. The builder was a limited company and the client was suing for breach of contract as a result of significant defects in the extension. The claim was based on the costs to remedy the defects in the extension which were estimated at £20,000.00.  The solicitor wrote the necessary pre-action letter threatening a formal Court claim in the event the building company did not accept liability and agree to pay the remedial costs.

In response, the building company denied that the defects were substantial and maintained that they had offered to return and fix them, but the client had refused. Following receipt of that response, the solicitor simply sat on the case. About 6 months after the solicitor was instructed the building company went into liquidation which meant the client could not recover anything from the building company. The client claimed that the solicitor was negligent in not issuing proceedings before this happened.  The complicating fact, in this case, was the fact the building company had gone into liquidation. The solicitor accepted that he had been negligent in not issuing the proceedings, but claimed they were not responsible for any losses. They maintained that the reason the client had suffered a loss was due to the fact that the company had gone into liquidation and not as a result of their negligence.

As with the above example, we need to look at what should have happened had the solicitor not been negligent. In this case, had the proceedings been issued, they would not have been concluded prior to the company going into liquidation, and as such the client would have had no prospect of making a recovery. Oddly, in this case, the client was actually better off as a result of the negligence as he had not incurred the additional legal costs he would have incurred had the solicitor not been negligent.

Summary

In summary with regard to solicitors’ negligence in litigation cases, we need to look at the loss caused by the negligence.

If, in this kind of action, it is plain that the legal action could have been brought, and that if it had been brought that it must have succeeded, of course, the answer is easy. The damaged client would recover the full amount of the damages lost by the failure to bring the action originally.

On the other hand, if it can be made clear that the client would never recover, then it is equally plain that the answer is that he can get nothing but nominal damages for the solicitor’s negligence. As can be seen from the previous examples, most solicitor negligence cases involve complex issues with regard to Causation and in my view is the one thing that anyone contemplating bringing a claim should consider at an early stage.

We at Cohen Cramer have an experienced team of lawyers who are able to advise and guide you through this complex area.

We can help

To find the help you need get in touch with us today:

Causation in Professional Negligence Claims.

 

 

 

 

Michael McDonnell

Director and Head of Dispute Resolution

Brain Injuries in the Military

Brain Injuries in the Military. Cohen Cramer’s personal injury team has specialist knowledge in relation to claims for head and brain injuries.  Our service will help you develop a rehabilitation plan at the outset to identify your immediate needs with a view to getting you the most appropriate package of care and support.

Brain injuries often have a huge impact on the person involved and their loved ones.  We have many years experience of supporting people through often very traumatic and life-changing times to secure maximum damages for the future.

We have access to the best medical experts, neuro-rehabilitation experts including care, occupational therapists, vocational therapists, architects etc.  We also instruct specialist brain injury barristers nationally who will seek to achieve the best outcome for you in terms of rehabilitation and securing financial damages to recompense you for your injuries and financial losses.

If you have suffered a head or brain injury during your military service as a result of failures in the system of work, equipment, colleague’s negligence, or in any other way then you should contact us on 0113 2247837 and we will fight for your right to rehabilitation and financial support.

How are brain injuries caused?

Brain injuries usually result from trauma to the head or body. They can also be caused by a penetrating injury to the head, skull or brain. These injuries can lead to very serious long-term consequences or even death. Some examples of circumstances are as follows :

  • Assault
  • Gun-shot wounds
  • Road traffic accidents
  • Sporting injuries
  • Failures in medical treatment
  • Symptoms of brain injury
  • Mild traumatic brain injury can result in the following symptoms :
  • Headaches
  • Nausea/vomiting
  • Fatigue/drowsiness
  • Slurred speech
  • Loss of confidence
  • Cognitive behavioural or mental symptoms
  • Loss of consciousness from seconds to minutes
  • Mood changes
  • Sleep problems
  • Moderate to severe brain injuries can cause the symptoms above and also :
  • Loss of consciousness for several minutes to hours
  • Loss of co-ordination
  • Persistent headaches
  • Seizures/early onset epilepsy
  • Weakness in the numbness in the fingers and toes
  • Confusion
  • Aggression/agitation
  • Unusual behaviour changes

How to claim

Diane Davison, Head of Military Claims, is an expert in the highly specialised field of brain injuries. She also has experience of working in a Court of Protection Department and has a full understanding of the legal claims process to ensure appropriate arrangements are put in place throughout the conduct of a claim and post settlement where capacity is an issue.  Diane will seek to obtain early interim payments to assist with financial losses, care, equipment and any accommodation needs.  If you are unable to work as a result of an accident, either temporarily or permanently, then Diane will ensure appropriate payments are requested from whoever is at fault.

If you lose your military career as a result of a brain injury then Diane will ensure appropriate claims are made which can include future loss of career progression, loss of pension, loss of fringe benefits and allowances, loss of congenial employment and many others.

If you or a family member have experienced a head or brain injury at any time then please……

  • Fill in the contact form on this page
  • Telephone 01322 4787 to talk to our specialist team
  • Email mc@cohencramer.co.uk

 

Cohen Cramer Solicitors

Section 23 Proceeds of Crime Act 2002

Section 23 Proceeds of Crime Act 2002. When an individual has been convicted of a criminal offence that comes within the scope of Schedule 2 of the Proceeds of Crime Act 2002, they may subsequently find themselves subject to confiscation proceedings. Confiscation proceedings involve the Court imposing a Confiscation Order against the Defendant, which requires them to pay an amount of money equivalent to the value of the assets that are available to the defendant when the Order is made.

The available assets are listed within a schedule attached to the Confiscation Order and may include properties, vehicles, or jewellery deemed to be available to the Defendant. The defendant may choose to sell the assets listed in the order or pay the order by some other means.

Commonly, In circumstances where the defendant sells the assets in order to satisfy the order, the value placed upon the assets at the time that the Confiscation Order is made cannot be achieved. For example, where a piece of jewellery is sold at auction and sells for less than the initial valuation proposed or where the Defendant’s property may not be able to reach its full market value, as a result of market buoyancy or unforeseen expenses.

Varying the value of a section 23 Proceeds of Crime Act 2002 order

Where the estimated value cannot be reached often the Confiscation Order is left unpaid. In these circumstances, we may be able to assist by preparing a Section 23 POCA 2002 to vary the value of the Confiscation Order.

Section 23 applications can be made where the value of a listed asset cannot be obtained. The application seeks to reduce the amount payable under the terms of the Confiscation Order. The defendant must be able to provide evidence of the disposal of the asset and demonstrate that they have no further assets available to make further payments.

Often, where the defendant has provided clear and cogent evidence of the disposal and can show that the diminution in the value of the asset cannot be attributed to their conduct, the application may be agreed by consent with the Prosecution.

The court’s response

However, where an application is contested, the Court must determine the application to vary the order in a way that the Court thinks ‘just’ under Section 23(3) POCA 2002, after taking into consideration all of the points and evidence put forward within the application. For example, where a defendant fails to maintain mortgage payments and a property is repossessed, the Court may not consider it just to afford the defendant a significant reduction.

Section 23 of POCA is an important mechanism, as once the defendant has realised all of their assets if there remains a discrepancy between the value of the Confiscation Order and the actual amount that the assets realised, unless a Section 23 application is made the defendant will continue to be liable for the full amount. In addition to this, the defendant will also be liable for any interest that accrues on the amount outstanding and could face the prospect of serving a default sentence.

Case Study

In a previous Legal Aid funded case, the client approached Cohen Cramer to request assistance with the preparation of a Section 23 application, after the defendant was convicted of engaging in an unfair commercial practice. The Defendant’s available amount listed on the Confiscation Order was £986,815.76. After some investigation into the sale of the assets, we were able to successfully argue that the actual amount realised was £870,506.35 reducing the Defendant’s available amount by £116,309.41 and avoiding the imposition of a default sentence.

If a Defendant is continuing to pay a Confiscation Order despite having no further assets available, it is in their interest to seek expert advice regarding the preparation of a Section 23 application. If the Confiscation Order is not paid in full, the defendant will be ordered to pay interest and a default sentence could be imposed.

How we can help

If you find yourself in this situation, our expert POCA team is happy to advise and assist in the preparation of Section 23 applications.View Post

For expert POCA advice, get in touch with us today:

 

Tilly Twite June 2021

avoiding contractual pitfalls

Avoiding Contractual Pitfalls

Avoiding contractual pitfalls. In light of the fallout from the European Super League and the possible contractual implications for those teams which had signed up to the League and have since pulled out, we set out below five tips to ensure you are protected when it comes to contracting with another party.

An agreement may be required for anything from loaning money – whether commercially or to family/friends to agreeing to carry out a service in return for payment, for example, building an extension or decorating your home. Whatever the agreement, and no matter how formal or informal it may be, you should take steps to protect yourself in the event of fallout.

Verbal or Written – a contract can be formed whether verbally or in writing, however, it is always best to record the terms of the agreement in writing. This will help minimise any fallout should either party default on the agreement as you can refer to the contract terms as to how to deal with the breach. If a contract is made verbally, it will be difficult to prove what terms were agreed to then prove if that term has been breached.

Take professional advice – where possible, it is always best to take professional advice when drawing up a contract or agreement. A professional adviser can help incorporate terms into the contract to protect your position in the event a party doesn’t comply with the agreement.

Plan for the worst – whilst it can feel a bit awkward agreeing on what will happen in the event of fallout, it is easier to agree on what would happen whilst still on good terms. For example, should interest be charged on any unpaid sums?; do you have the right to withhold payment until defects are sorted?; can you terminate the contract without penalty? If these are discussed and agreed at the outset, in the event of a fall out you will be able to take speedier action to resolve the dispute.

Negotiate – a contract is normally for the benefit of all parties, whether that be paying a builder for their services to carry out work to your home, or loaning money in return for a payment in full with interest over a specified period. Having a clear agreement in which your interests are best protected on the best terms possible, means you shouldn’t shy away from negotiation. If it transpires at a later date that the agreement isn’t quite as beneficial as you thought, you are unlikely to be able to address this at a later date.

Due Diligence – we see time and time again people entering into agreements without carefully checking out the company or individual they are reaching an agreement with. Whilst it is not always easy to establish the financial position of the person you want to contract with, you should undertake as much research as possible to satisfy yourself that you are contracting with who they say they are; that they will be able to carry out the work you have paid for; or that any loaned sums can be repaid.

How we can help

We are often brought in to help clients at the point of the fallout of a contract. By taking into account the above steps, whilst we cannot guarantee you will not find yourself in the position of having to seek legal advice because a contract has been breached, it makes it easier to resolve any dispute if the above steps have been taken at the outset.

If you have any concerns over a contract or agreement you have entered into, about to enter into, or you are already at the stage where the contract has been breached and you are no longer benefitting from the contract, please get in touch on 0113 224 7808 or disputes@cohencramer.co.uk to discuss how we can help further.

 

Gemma Bowkett (Associate Solicitor) 5th May 2021

 

Avoiding contractual pitfalls