Law Management Blog

Couples currently going through a divorce have been warned over the use of the smartphone, after research in the US found that texts are increasingly being used as evidence in divorce proceedings.

According to the American Academy of Matrimonial Lawyers (AAML), over 90% of America’s top divorce attorneys said they have seen a spike in the number of cases using evidence from iPhones and other smartphones in the past three years.

The rise in texting evidence follows a similar trend two years ago when the AAML noticed a surge in evidence from Facebook pages.

“With emails you can think about and rewrite them. There is a window of opportunity to rethink what you are saying but text messaging is immediate,” said Ken Altshuler, President of the AAML. “We get a lot of text messages that people send out without thinking.”

Texts can often be a form of “spontaneous venting”, added Mr Altshuler, but they can come back to haunt people because they are written records of someone’s thoughts, actions and intentions.

“I have used text messaging for cross examination,” said Altshuler, who has also submitted texts as evidence. “I would say in the last six months there have been a lot of text messages involved in litigation. For whatever reason, people are texting more and not thinking about what they are texting.”

Text messaging was the most common form of divorce evidence taken from smartphones, according to the AAML poll, followed by emails, phone numbers, call histories, GPS and Internet search histories.

In turn, Mr Altshuler has advised his clients not to use Facebook, but added that only about half follow his advice.

“Anything that is in writing, you have to assume that someday a judge is going to see it,” he added. “So, if it is not something that you don’t want a judge to see, don’t write it down.”

Hari Sharma, who died in December 2010 aged 77, befriended the secretary of his solicitor, Jane Duke, following a stroke in 2005. She later became his carer and between 2006 and 2007 received gifts from him totalling over £549,000. One such gift was worth £301,941 alone. When Mr Sharma’s daughter, Ragny Sharma, found out about the transactions she commenced legal proceedings to recover the money. Having now settled the case with Mrs Duke agreeing to pay the money back, Miss Sharma has discovered that Mrs Duke claims to have already spent around £300,000 of it.

Lawyers for Miss Sharma claim the gifts left Mr Sharma in a poor financial state, with only his pension and the house he owned still in his name. Paul Judkins, acting for Miss Sharma, said “he was living in squalor, it was a pitiful state. His finances were just methodically cleaned out but despite everything he was happy to give her the money and leave himself impoverished. It’s satisfying that Miss Sharma won her case but a pity all the money wasn’t recovered.”

After being put in charge of her father’s affairs by the Court of Protection, who ruled in late 2007 that Mr Sharma was incapable, Miss Sharma accused Mrs Duke of ‘undue influence’ over her father. Mr Sharma himself apparently “consistently repeated, deeply felt and clearly expressed” his view that the action should be dropped and Mrs Duke should keep the money.

Details of the settlement were revealed this week after a court made a ruling on the costs of the action.

A recent case in the High Court has highlighted the difficulties that can arise in applying employment law to partners in a partnership.

The case of Clyde & Co v Van Winkelhof involved a partner in a professional partnership who issued proceedings in the employment tribunal for unfair discrimination on grounds of pregnancy and whistle blowing. The partnership applied for an injunction to prevent her from continuing with the proceedings as the partnership agreement provided for mandatory mediation and then arbitration in the event of a dispute.

Whilst partners who are not salaried partners, and therefore not employees, are not able to bring a claim for unfair dismissal under the Employment Rights Act, they do have rights not to be discriminated against under the Equality Act 2010. Such rights cannot be excluded by the terms of the Partnership Agreement as the Employment Rights Act and Equality Act render an agreement void if it prevents a claim being brought in the tribunal for breach of their provisions.

Therefore the court refused to grant the injunction.

It is always advisable to have a Partnership Agreement professionally drafted by a commercial solicitor so that its terms are legal and enforceable.

Almost one third of the British public fear that they could be made redundant over the next 12 months, according to alarming new research from HSBC.

Out of thousands of working UK residents surveyed by the bank in recent weeks, a staggering 29% felt their job is not secure for the next 12 months. That figure rose to 37% among public sector workers over the age of 55.

However, this trend reverses among the younger employees, with 77% of public sector workers aged 16-24 feeling their job is secure over the next 12 months compared with 71% of private sector workers in this age group.

“Obviously we are in a difficult financial period with many people feeling insecure about their job prospects and experiencing a squeeze in their standard of living. While this feeling of a lack of job security is particularly acute among older people in the public sector, everyone seems to be feeling the squeeze on their finances,” commented HSBC’s Richard Brown.

“While spending may be curbed, it is important for people to put aside sums of money on a regular basis to build a rainy day fund. In times of uncertainty, it is all the more important that people have contingency plans to deal with any unexpected future occurrences.”

According to HSBC figures, based on the median weekly gross salary of £499, the average person would need £1,667.25 in savings for every month they spent in unemployment to maintain their current standard of living. To compound the issue, similar research found in the latest ONS Labour Market Survey shows that 1.2 million people were out of work at some point in the last 6 months, meaning that they would need a significant savings pot to cover the unexpected redundancy.

Victims of redundancies in the future have been advised to seek legal advice and ensure that their employer’s redundancy procedure followed current guidelines. Illegally enforced redundancies can result in substantial compensation payouts for victims and anyone who feels they fall into that category should approach our solicitors today.

The Society of Estate and Trust Practitioners (STEP) has given a warning about a rise in the number of probate fraud cases resulting from badly drafted Wills and the appointment of lay executors.

The Society has estimated that probate fraud is currently costing beneficiaries and estates up to £200 million per year. It is calling for will writers and those who charge for the administration of estates to be properly regulated to try to prevent losses caused by incorrect tax and legal advice and invalidly drafted and executed Wills.

A recent case involving a Welsh property tycoon illustrates some of the Society’s concerns. The man’s lover was convicted of forging a Will stating that she was to benefit from his £5 million fortune, rather than his former wife. Initially the man was thought to have died without leaving a Will and upon hearing this and the fact that his divorce settlement had not yet been finalised, the woman created a fake document. Her fraud was discovered and the Will was declared invalid so that the majority of the fortune would go to the former wife and her daughter.

The potential for probate fraud makes it highly recommended to have a Will professionally drafted and for executors to obtain proper professional advice if they encounter difficulties in relation to their duties. A qualified Wills and Probate Solicitor will be best placed to give such advice.

This week, the government unveiled new flexible working regulations it claims will benefit all sectors of society.

Under plans introduced by 2015, the government will create a “modern workforce for the modern economy” particularly on the subject of parental leave, Business Secretary Vince Cable explained.

The present legislation is “too rigid” and restrictive to both workers and their managers when it comes to them taking time off around the birth of their child, said Mr Cable. And changes announced will also include a provision to allow parents to share an overall leave allowance between them to afford greater flexibility.

Under the changes, a total of seven months’ flexible parental leave could be granted to new parents, with four months paid, meaning new fathers could qualify for almost six months’ paid paternity leave if their partner returns to work.

“These measures are fairer for fathers and maintain the existing entitlements for mothers – but crucially give parents much greater choice over how to balance their work and family commitments,” said Mr Cable.

If you’re unsure about what the government’s changes could mean for you or your business, contact our employment law team today and make sure you benefit from upcoming reforms.

The Supreme Court is currently considering a case involving a previously cohabiting couple who split up nearly twenty years ago.

The dispute involves ownership of the former couple’s shared home, which they purchased as joint owners with a joint mortgage, in 1993. After the man moved out, the woman took responsibility for the entire mortgage payments and lived in the house with the couple’s two children.

However, the couple have been in disagreement ever since about their entitlement to the property. Earlier court decisions held that the majority of the property’s value should go to the woman who had maintained and funded it following the separation. However, the Court of Appeal ruled last year that the man should be entitled to half of its value as he had been a joint owner at the time of the separation. This is the normal position where married couples are concerned.

The final decision now lies with the Supreme Court, which has yet to give its judgment. This is awaited with interest by many people as the issues raised are ones which are the subject of current uncertainty. Firstly, cohabitees are currently unable to ask the court to regulate their finances following a separation, unlike married couples. Secondly, it is currently unclear whether a court will intervene to re-adjust the parties’ shares in jointly owned property, where the conduct of the parties has shown that they should not be equal. As these are complicated issues it is thought that the final judgment may take some time.

In the recent High Court decision of D Morgan Plc v Mace & Jones (A Firm) (No. 3) [2011], the judge gave further guidance on when indemnity costs will be awarded in a civil litigation claim.

Indemnity costs can be awarded against either party in a court case. They differ to a standard costs award in that whilst standard costs only cover a proportion of the other side’s expenses in bringing or defending the claim, indemnity costs are intended to cover all of the other side’s expenses.

The judge stated that indemnity costs should first of all, only be awarded ‘when there has been some conduct or some circumstance which takes the case out of the norm’. The unreasonable conduct in question must be ‘to a high degree’. Such conduct can include where it was clear that the defence or case brought was fundamentally flawed from the outset but the claimant or defendant continued to pursue it in any case.

Although the refusal to accept a ‘Part 36’ offer to settle a claim and then failing to beat the offer in the judgment would not normally, in itself, justify indemnity costs, the judge held that this factor in combination with others such as the speculative nature of the claim and the unreliable and untrue evidence given by the claimant, would suffice.

The case emphasises the importance of acting reasonably throughout litigation proceedings, with a view to settling the case wherever reasonable to do so, instead of blindly pursuing a case at any cost.

Freedom of movement and employment throughout the European Union has inevitably resulted in a large number of inter-European marriages.

In recognition of this, the European Union Legal Affairs Committee has approved rules to allow divorcing couples to choose the law of one of their countries of origin or of residence to govern their divorce proceedings. If they fail to agree, the rules will include a mechanism for resolving the issue.

The rules are due to be ratified by Parliament in December 2010 and are likely to be implemented by the member states in around eighteen months’ time. They reflect the aim of enhanced cooperation between the member states of the European Union. They are also designed to improve clarity in the international divorce process and to stop one party from rushing to divorce the other so that a particular law prevails.

However, the regulation is limited to proceedings relating to the grounds of divorce and not those involving property, children or the legality of the marriage.

The European Commission has been requested to make any necessary amendments to existing legislation to deal with a situation where the law of a Member State does not provide for divorce or does not deem the marriage in question valid.

Internet colossus Google has shut down a number of highly popular music blogs without warning after it was deemed their content breached copyright laws and the company’s terms and conditions.

In what’s been labelled “musicblogoside 2010”, Google has terminated the accounts of six bloggers operating within its much-used Blogspot services, wiping away years of content in the process.

Under the American Digital Millennium Copyright Act (DMCA), hosting companies like Google are required to terminate content that receives copyright complaints from creative industries. If, after investigation, the sites are cleared of abuse then all content is restored.

But some of those accused of abuse have pleaded their innocence and claim Google has followed the letter of the law too religiously.

In an open letter to Google, Bill Lipold, owner of the now closed I Rock Cleveland blog, said: “I assure you that everything I’ve posted for, let’s say, the past two years, has either been provided by a promotional company, came directly from the record label, or came directly from the artist.”

And it is this involvement from technology-embracing record companies that has shocked the affected bloggers.

With the internet now an invaluable tool in product marketing, many writers who host copyrighted material do so under instruction from industry bosses and feel Google’s actions have failed to acknowledge this fact.

Rick Klau, Product Manager for Google’s Blogger, admitted that they “occasionally receive DMCA complaints even though the blogger does have the legal right to link to the music in question”.

As a result, Mr Klau has encouraged those who believe their content was deleted without cause to “file a DMCA counter-claim so we know you have the right to the music in question. Otherwise, if we receive multiple DMCA complaints for your blog, this could very well constitute repeat offences, compelling us to take action.”

But founder of popular underground music blog Masala, Guillaume Decouflet, told the Guardian that “Google is treating bloggers like Big Brother. Shoot first, ask questions later”.