Civil Litigation

Litigation, or ‘dispute resolution’ as it is increasingly known, in its purest form is the pursuit of claims through the High Court, County Court, or the First-Tier Property Tribunal or other forums. However, the courts also place emphasis upon resolving disputes through mediation or other forms of dispute resolution.

The courts direct the parties to consider all options to resolve their dispute, leaving the issue of court proceedings as the last option, to save on the costs and delays that litigation inevitably involves.

At Appleby Shaw Solicitors we are committed to resolving your claim quickly and in a cost-effective manner, providing full information on all your options.

We can offer you legal advice on the following areas of law: 

• Debt Collection
• Restraint of Trade Disputes
• Construction and Building Disputes
• Professional Negligence Claims
• Trusts of Land
• Licensing
• Property Disputes
• Disputed Will and Probate Claims
• All other litigation matters

Mediation can be used in almost all cases that may otherwise proceed to court. Examples of such disputes include commercial contracts, consumer contracts, corporate services, employment, property disputes, personal injury and clinical negligence; all of which are within the sphere of civil litigation.

The purpose of mediation is to enable the parties to resolve their differences quickly and without incurring large legal bills. Mediation may typically last a day, rather than perhaps a three- or five-day trial before the court. Mediation can be arranged at any time during a dispute, whereas to establish the date of a trial before a court may take several months, if not years.

Whilst some costs are incurred in paying for a professional mediator to adjudicate upon the dispute, and to pay for legal advice and assistance either prior to or at the mediation itself, nonetheless those costs are likely to be small compared with the legal costs of a barrister, solicitor, and/or experts appearing over a three- or five-day trial.

Mediation services are now widely available through local and regional companies that provide tailored services. However, mediation is not for everyone, or applicable to every case.

What can mediation do for you? 

Mediation 

• results in successfully resolving commercial, industrial, domestic and legal disputes without the need to resort to the courts.
• involves understanding the emotions that are built up in conflict situations, and learning how to manage them.
• involves identifying those conflicts and hidden agendas that drive disputes; it helps to avoid further conflicts and prevents disputes from running out of control.
• can help to overcome the frequent impasse in negotiations, which can so easily develop when parties are in a conflict environment.

There are many companies offering mediation services, including the ADR Group, Talk Mediation, InterResolve, and CALM (Confidential & Local Mediation; a voluntary organisation specialising in London Local Authority mediations).

The loss of a dearly loved family member and the division of their estate and effects can result in feelings of great loss and anger, if their estate is not dealt with as you were led to believe it would be.

As a member of the immediate family, perhaps you were anticipating or expecting a gift to be made to you, or perhaps you were told you would be remembered in the deceased’s Will. Emotions can run high, and there may be several reasons for challenging a Will; some of them are listed below.

• A Will excluded an intended beneficiary from an inheritance.
• A Will did not make provision for the wife or husband of the deceased, or omitted provision for a dependant.
• A Will was made by the deceased in recent months, or possibly in recent years prior to their passing, when in a vulnerable condition. This might include suffering from the onset of age-related conditions such as dementia, Parkinson’s or Alzheimer’s disease. Therefore, did he or she have the capacity to make a valid Will?
• Did the deceased suffer from memory loss or confusion at the time the Will was made? There may be several reasons for such a suspicion, some real and some imagined.
• Was this the last Will? Were there any later Wills? Is there suspicion that the Will was revoked? Are there known codicils?
• Does the Will accurately reflect the deceased’s intentions? Has the Will writer not properly reflected the instructions given by the deceased? Was the Will prepared by diligently following the instructions given?
• Has the Will been properly signed and witnessed?
• Were you promised a particular gift or to be included as a beneficiary in the estate of the deceased, having made a financial arrangement or contribution towards the deceased’s estate or property?

If you think any of these situations may be relevant to you, then you may have a claim to make upon the estate.

There are professional obligations upon executors and administrators to diligently attend to the administration of the estate in accordance with the terms of the Will or the Administration of Wills Act 1925. They can incur personal liability for losses incurred to the estate or to beneficiaries, if losses occur as a result of negligence or poor administration.

Is the executor or administrator properly attending to all matters concerning the estate? Is there unreasonable delay? If so, a claim may be made for the maladministration by non-professional and professional executors and administrators.

We spend so much of our time at work that it is important to have a safe, healthy and pleasant environment to work in. Whether you are an employer or an employee, all too frequently this can be upset by a myriad of factors, many of which are outside your control. There is much employment legislation in force today, which assists employers and employees alike to better define the rights, powers and obligations that bind us, in our places of employment.

We can act for both employers and employees, and will assist you with the following areas of employment law.

Employers 
We can advise and assist you in understanding the terms of Contracts of Employment, which typically include:

• Mobility Clauses
• Payment in Lieu of Notice Clauses
• Notice Provisions
• Post-Termination Restrictive Covenants
• Policies in respect of Sickness and Absence
• Changing the Terms and Conditions of your contracts with your employees.
• Disciplinary and Grievance Procedures
• Dismissals and Unfair Dismissal
• Redundancy
• Creating Compromise Agreements to settle disputes

Employees 
We can advise and assist you in:

• Taking up a Contract of Employment, and the meaning and effects of the terms and conditions
• Attempts by your employer to unilaterally change the terms of your contract, and whether your employer has those rights
• Claims for harassment and bullying at work
• Establishing whether you have been unfairly dismissed from your position of employment
• Establishing whether you have been subject to unfair treatment or have been subject to discrimination, whether on the grounds of sex, race, religious belief, disability or sexual orientation.
• Redundancy and redundancy procedures

Settlement of Claims and Advice on Compromise Agreements

Commercial Landlord and Tenant

The law which regulates the relationships between commercial landlords and tenants is written in statute, statutory instruments and case law, and it is constantly changing.

For landlords, rent arrears may be recovered through the Commercial Rent Arrears Recovery (CRAR) regulations which replaced the Law of Distress, or recovered through County Court proceedings

For landlords, if the tenant has become impecunious and there are no prospects of rent recovery, then forfeiture proceedings, effecting re-entry and recovery of the property either through bailiff recovery or through court proceedings, may be required.

Care needs to be taken in your dealings with the tenant if you are to avoid claims of wrongful forfeiture. Whether forfeiture is for non-payment of rent or other breaches of covenant, the service of a Section 146 Notice pursuant to the Law of Property Act 1925 may be provided for in the lease.

Proceedings may be relevant for various breaches of covenants, including failure to repair, illegal alterations or illegal sub-letting of the property, undertaken without the consent of the landlord; and other breaches of the lease.

Failure to repair the property in accordance with the covenants of the lease will require the instruction of a surveyor to prepare an Interim Schedule of Dilapidations and service of a Section 146 Notice; or, depending how far into the lease the tenant is, the service of a Final Schedule or Terminal Schedule of Dilapidations and recovery of the repair costs involved.

In the event of failure to reach agreement with the lease renewal negotiations, court proceedings may be issued to pursue a court determination of the terms in dispute.

This may include opposing renewal of the lease, if required, and the recovery of possession based on the various grounds set out in the Landlord and Tenant Act 1925. This includes claims for persistent delay in paying the rent, or breaches of the lease, such as where the landlord intends to demolish or reconstruct the premises, or where the landlord wishes to recover possession in order to run his or her own business from the premises, or requires them as a residence.

Residential Landlord and Tenant Disputes

These include:

• The preparation and service of Notices to Quit, Section 21 Notices and Notices Seeking Possession (Section 8 Notices) is regularly encountered in proceedings between landlords and tenants of residential properties, with landlords seeking to recover possession based upon rent arrears or other breaches of the covenants in the Tenancy Agreement.
• Accelerated Possession of Assured Shorthold Tenancies, or possession based upon rent arrears or other breaches of Tenancy Agreements.
• Tenancy Deposit Scheme Regulations, and the potential for loss in the event of failure to comply with the provisions.

Claims against Managing Agents 
This includes claims against managing agents for failing to manage properties left in their care: for example, claims for failing to obtain and check references, and for non-payment of sums due.

If you have been injured as a result of a clinical procedure during the course of the past three years (although depending on when the knowledge of your injury came to your attention, the time scale may be longer), then you may have a claim to compensation for damages, losses and expense.

Surgeons, doctors and other health professionals are all expected to exercise a reasonable standard of care in your treatment. Each owes you a duty of care to ensure that the treatment they provide is in accordance with the treatment that may be expected by a reasonable body of health care providers. Failure to maintain that standard results in a breach of duty of care.

If you are able to establish a breach of duty of care by the health professional involved, and if that breach has resulted in a loss to you in terms of pain and suffering, disability, or loss of amenity (such that you are no longer able to return to your normal lifestyle), then you will be able to claim compensation for the loss which you have suffered.

This may also include loss of earnings claims and other expenses incurred by you. You may have been treated by one of the following health professionals:

• Hospital doctors
• Plastic surgeons
• General practitioners
• Dentists
• Nursing homes
• Nurses
• Chiropractors
• Physiotherapists
• Osteopaths
• Radiologists

This is not an exhaustive list, as there any many disciplines providing medical services. Each owes you a duty of care to ensure that the treatment they give you is that which could be expected of a reasonable body of surgeons, hospital doctors, plastic surgeons, etc.

It is not possible to cite all the circumstances which may give rise to a claim, but the following are indicative of potential causes of action following a breach of duty of care:

• Misdiagnosis or delay in diagnosis, which leads to additional complications or deterioration in your condition, or to minimising the effects of surgery that is carried out at a later time
• Undiagnosed illness
• Medication errors, such as over- or under-prescription or mis-prescription, resulting in additional injury or loss
• Wrong surgical procedures being carried out
• Poorly performed surgery or substandard medical care
• Neglect and/or lack of treatment which leads to a deterioration in your condition
• Pressure sores
• Cancer misdiagnosis
• Failed sterilisation
• Anaesthetic awareness – being awake during an operation
• Abuse or neglect of the elderly
• Failure of a GP to refer on

Informed Consent 
It is incumbent on each health provider to provide you with all the information that you need to make an informed decision upon the treatment that you may be being advised to have carried out. Failure to provide you with information about all the risks that may be involved in your treatment, including surgery, will also amount to a breach of duty of care that is owed to you.

Contract disputes take many forms, from defective products purchased from a high-street shop, through to disputes with builders and other tradesmen about the quality of their workmanship, and claims for unpaid fees for services provided.

Professional Negligence Claims
You may have been poorly represented or advised by a professional such as an accountant, surveyor or a solicitor in their provision of services to you, resulting in loss. The Pre-Action Protocol for Professional Negligence Claims is a set of procedures created to assist parties to resolve such claims, with a view to avoiding the need to issue proceedings. Any claim will follow the Protocol, which is designed to promote early settlement, and thus to avoid unnecessary legal costs and delay being incurred.

We can assist you to prepare a letter of claim under the Pre-Action Protocol, setting out in some detail the nature of your claim, how the loss arose, and detailing all the losses, costs and expenses you wish to recover.

Your opponent is given a period of time to prepare a Letter of Response either admitting or denying your claim. In the event that your claim is admitted, this may be followed by mediation, in order to resolve all aspects of your claim with a view to avoiding costly court proceedings. You may also require expert evidence to confirm and explain how your losses have arisen.

In the event that mediation is not taken up by the parties, or is not agreed to, or the claim is unreasonably rejected, only then will court proceedings begin.

Debt Recovery
Involves the recovery of monies for unpaid goods or services and unpaid loans.

Misrepresentation
If you believe that you have been misled when entering into a contract, then there may be a claim in negligent or fraudulent misrepresentation. Has the seller of the goods or services made false statements to you to induce you to enter into a contract with them? You may be entitled to put forward a claim, seek a settlement, and initiate court proceedings if required.

Construction and Engineering Disputes 
The Pre-Action Protocol for Construction and Engineering Disputes is designed to assist parties in a dispute over the quality of services and materials supplied. Has your builder provided construction and building services which failed to reach the standard expected of a reasonable builder? Were the materials substandard? You may require additional expertise in the form of an expert report, to obtain the evidence to substantiate your claim.

Small Claims Proceedings. 
Claims of less than £10,000, if pursued by way of court proceedings, are likely to be referred to the Small Claims Court, and legal costs incurred in pursuing them are on the whole unlikely to be recovered. Although it may not be economical to employ a solicitor to pursue such claims on your behalf, expert advice as to the procedures involved can be provided, as to how you can best pursue your claim.

This includes Commercial Contracts for Service Suppliers in situations for Professionals and Person to Person Loans supported by Legal Charges, Standard Terms and Conditions, Delivery Contracts , Director Employment Contracts to name a few.

Once you have obtained a judgment or order in your favour, you may need to take enforcement action to secure recovery of your debt, or to recover possession of your property.

There are many forms of enforcement action, such as:

• Instructing High Court certificated bailiffs or County Court bailiffs to enforce your judgment against a debtor.
• Initiating Charging Order proceedings, resulting in Interim and Final Charging Orders over property.
• Making applications for Orders for Sale of property once a Charging Order has been obtained.
• Initiating proceedings for an Attachment of Earnings Order, so that payments of debts are made from the debtor’s wages.
• Proceedings for an Instalment Order following a judgment against you.
• Service of Statutory Demands and the issue of Bankruptcy Proceedings in enforcement of a judgment debt already obtained. Applications to set aside a Statutory Demand.