Understand Your Rights. Solve Your Legal Problems
EU migrants are leaving the UK at levels not seen since the financial crisis a decade ago and net migration from the bloc has fallen by more than 60% since the referendum, new data shows.
Data recently released by the Office for National Statistics show total EU net migration at 74,000, a fall of around 115,000 since the referendum, and lower levels than at any period since 2012.
A8 net migration to the UK for the year ending June 2018 was estimated at -14,000 per year, though margins of error mean that this number is not statistically different from zero.
Net migration of A2 citizens (from Romania and Bulgaria) has almost halved from 62,000 in the year ending June 2016, reaching an estimated 34,000 in the same period two years later. This is the lowest level since 2014, when these countries got full access to the UK labour market. Net migration of EU15 migrants – from the older EU member states such as Germany, Italy and Spain – fell from 84,000 in the year to June 2016 to 47,000 in the same period this year.
Madeleine Sumption, Director of the Migration Observatory at the University of Oxford said: “EU migrants have been leaving in larger numbers since the referendum, and net inflows have greatly decreased. The lower value of the pound is likely to have made the UK a less attractive place to live and work and economic conditions in several of the top countries of origin for EU migrants have improved.”
Nevertheless the ONS stats suggest that, despite the fall, there are still more people arriving from the EU than leaving.
The data suggest that non-EU net migration, at 248,000, is more than three times the level of EU net migration, although these data come at a time of uncertainty for UK migration statistics. The ONS has started a programme of work to improve the quality of the statistics, but these developments are mostly not yet reflected in today’s figures. Significant issues have been identified with the measurement of non-EU emigration.
Sumption added: “We have doubts about the accuracy of the non-EU net migration figures. Other data sources do not support the idea that non-EU citizens are currently contributing so much to net migration.”
(Source: the Migration Observatory)
Resolution, a campaign organisation that represents 6,500 family justice professionals, has long championed the need to remove blame from the divorce process. They state that the current fault-based system leads to conflict and confrontation, which is particularly harmful for children.
Over recent years Resolution, along with other organisations, has built a cross-party group of supportive Parliamentarians that have applied pressure on the Government to ensure divorce law in England and Wales reflects other areas of the family justice system which aim to minimise conflict.
Currently, in order to obtain a divorce in England and Wales, couples are required to live apart for at least two years; otherwise one partner must blame the other by alleging adultery or what is commonly referred to as ‘unreasonable behaviour.’
However, the Government recently, and unexpectedly, announced a consultation on reform divorce law, with the Justice Secretary David Gauke MP saying “we think the ‘blame game’ that currently exists helps no one. It creates unnecessary antagonism and anxiety at an already trying time for couples and in particular where there are children.”
Resolution have highlighted findings of a YouGov poll they commissioned, in the same week they submitted response to the Government consultation, hand-delivered at the Ministry of Justice to Lucy Frazer MP, Family Justice Minister.
The YouGov poll found that 79% of the population agree that conflict from divorce or separation can affect negatively children’s mental health, a figure rising to 87% among those whose own parents divorced during childhood. 77% of those surveyed also said that conflict could affect a child’s academic performance and a further two-thirds felt social interactions and the ability to form healthy romantic relationships were also jeopardised by an acrimonious separation.
We are delighted that the Government is listening to family justice professionals and taking proactive steps towards ending the blame game and modernising divorce law.
Margaret Heathcote, National Chair of Resolution, and family lawyer, said: “We are delighted that the Government is listening to family justice professionals and taking proactive steps towards ending the blame game and modernising divorce law.
“Whilst reform will bring many benefits to separating couples, ultimately it’s the positive difference these changes will have on children that must be at the centre of everyone’s intentions.
“We hope other responses to the consultation will reflect our own view, that it is time to end the blame game as soon as possible.”
Opponents of a move towards a no-fault divorce system claim that this will undermine the value of marriage, and lead to an increase in divorce. However, figures from Scotland, where no-fault divorce was made possible in 2006, suggests no long-term increase in divorce rates since reforms were introduced.
Justice Minister Lucy Frazer MP said: “The current system of forcing spouses to attribute blame for a divorce leads only to increased conflict and unnecessary confrontation.
“We have committed to scrapping this archaic rule as soon as possible, making the process less acrimonious and helping families look to the future.
“I am pleased so many important stakeholders support our reforms, including Resolution, and we welcome all feedback on our proposals.”
The current system of forcing spouses to attribute blame for a divorce leads only to increased conflict and unnecessary confrontation.
Nigel Shepherd, a former National Chair of Resolution and long-standing campaigner for no-fault divorce said: “For more than 25 years we’ve been making the case that we need to remove blame from the divorce process. I’m incredibly grateful to the Justice Secretary and Family Justice Minister for looking at our case with an open-mind and agreeing on the need to modernise our divorce law.
“Family lawyers across the country back reform, the public support it and, we know from our correspondence with MPs and Peers of all parties, that there is little – if any – opposition in Parliament.
“We know the Government and Parliament have many demands on its focus and time, but we urge that these much-needed reforms are brought forward as soon as possible”.
Both Labour and the Liberal Democrats came out in public support for no fault divorce in 2017.
(Source: www.resolution.org.uk)
Within twenty-four hours of the announcement of the withdrawal agreement, numerous Conservative MPs and Cabinet Ministers had resigned in protest. Amongst them were Brexit Secretary Dominic Raab and Shailesh Vara as the minister of state for Northern Ireland, who stated the withdrawal agreement “leaves the UK in a halfway house with no time limit on when we will finally be a sovereign nation".
Many will agree with Dominic Raab that the transition period set out and the further ‘backstop’ arrangements aimed at preventing the return of the hard border in Northern Ireland could potentially allow the EU to “hold a veto over our ability to exit”.
Some believe the ‘backstop’ is needed to ensure the Good Friday Agreement is maintained if a trade/ customs deal is not agreed in the transition period. Numerous businesses that have UK/EU interests, contracts or supply chains wanted to see a transition period in the withdrawal agreement to allow them to continue trading and operating without the introduction of tariffs and complex customs arrangements whilst a UK/ EU trade deal was finalised.
Crucially, the ‘backstop’ arrangement includes no unilateral termination rights for the UK, which could significantly harm the negotiating power of the UK in relation to the trade deal going forward. It’s always much more difficult to reach an agreement when the other party is already in place and holding many of the cards.
Further, whilst the withdrawal agreement covers various issues, such as a commitment to protect the rights of UK nationals already living and studying in the EU and vice-versa, protection of various geographical goods (such as Welsh lamb), the transition period and the divorce bill – it is silent on many other very important matters.
For example, fishing is excluded from the agreement because it appears it is simply too controversial. The EU and UK will have to use their best endeavours to come to a separate agreement in relation to fishing and waters, and there are still major questions about the rights of UK nationals to work cross-border.
With very little time to return to the negotiating table and many politicians feeling the withdrawal agreement is unacceptable, British industries, business and citizens look to be left in a halfway house along the path to exiting the EU.
The withdrawal agreement and political declaration does cover financial services, stating that financial stability, market integrity, investor protection and fair competition will be preserved respecting both the UK and EU’s ability to take equivalence and regulatory decisions. This approach would not, however, cover the insurance industry, as equivalence under Solvency II does not grant market access for insurance business (though re-insurance is treated differently), and so does not, therefore, appear to preserve passporting rights for UK insurers.
With very little time to return to the negotiating table and many politicians feeling the withdrawal agreement is unacceptable, British industries, business and citizens look to be left in a halfway house along the path to exiting the EU. Businesses across all sectors that have contracts, supply chains or interests that straddle the UK/ EU should now prepare for a hard Brexit to ensure continuity of business, contracts, supply chains and resourcing if they haven’t already done so.
We speak to Criton Tornaritis, who often deals with e-money institutions, on the regulations and boxes such organisations must tick.
When submitting applications to grant authorization for electronic money services, what ‘boxes’ do institutions need to tick?
All applicants should comply with all the provisions in the set of guidelines that applies to them (guidelines on the information requirements from the applicants for authorisation as electronic money institutions). The level of detail should be proportionate to the applicant’s size and internal organisation, and to the nature, scope, complexity and riskiness of the particular service(s) that the applicant intends to provide. In accordance with the (EU) Directive, the directors and others responsible for the management of the electronic money institution, are of good repute and possess appropriate knowledge and experience to perform payment services, regardless of the institution’s size, internal organisation and the nature, scope and complexity of its activities and the duties and responsibilities of the specific position.
What are important regulations under the e-money law, that issuers need to be aware of?
The payment services and e-money Licence are evolving and innovating at a fast pace. In light of the revised Payment Services Directive (PSD2) which was applied on 13 January 2018, the sector has undergone a substantial degree of change recently.
We have seen some payment service providers (PSPs) and e-money issuers challenge more traditional players (credit institutions, such as banks and building societies) in banking related services and often in currency exchange transfer services as well.
If they are unaware about the above regulations, what complications can arise?
Payment services and e-money sectors must improve trust and confidence with their consumers. Consumers are confident that the information they receive from PSPs and e-money issuers is fair, clear and not misleading, and that they are not misled about the rates they can achieve or alternative providers’ services.
Tornaritis Law Firm has specialised in Cyprus Law for the last eighty years and three generations of Lawyers Including the first Attorney General of Cyprus.
Criton G Tornaritis is now the Managing partner of Tornaritis & Co. LLC.
He has also counselled and represented companies and banks in connection with supervisory Cyprus Securities and Exchange Commission, Cyprus Stock Exchange and Central bank of Cyprus.
He is also Legal Adviser to several Institutions, the Cyprus Oil and Gas Association and the Family Foundation and the local contributor of the IFC, International Finance Corporation of The World Bank.
Criton participates in several international conferences and has many international awards.
So, an entrepreneur has approached you with their business idea: what should be their first course of action?
In my experience, the difference between successful entrepreneurs and very unsuccessful ones is simply whether they’re disciplined enough to do what needs to be done on the front end, and delegate it out as soon as they have the income to support a new hire.
The key to a successful partnership is guaranteeing that no single partner can take advantage of another.
After all that’s established, how does their initial business idea become a small business? Can you share the important ‘behind the scenes’ new businesspeople often are unaware about?
The exciting thing about being an entrepreneur is that in the beginning you are starting fresh with positions for a receptionist-type person, a sales person, an HR person, an accountant, a manager, a board of directors, a compliance person, someone managing marketing and operations, and it goes on. The bad part is that in the initial stage the business typically can’t afford to hire anyone yet. So, the business owner ends up wearing all of those “hats”. It’s manageable at first, but it can become difficult to hold yourself accountable to doing all of the things that must get done for each “job” in order to meet your goals. In addition, it can be difficult at the least, to hire and then delegate these jobs to new people that, normally, will not be as good at those jobs as you were.
In my experience, the difference between successful entrepreneurs and very unsuccessful ones is simply whether they’re disciplined enough to do what needs to be done on the front end, and delegate it out as soon as they have the income to support a new hire.
Like I said, the new ideas are not the issue for entrepreneurial business owners; it’s whether or not they actually implement.
Business owners are faced with a choice: hire a big law firm that is less likely to work efficiently, or make use of one of the online robotic “fill-in-the-blank” services that often misses crucial details about your unique company.
Going from a small business to medium: can you share the key steps towards a strong partnership or merge?
Partnerships are always hard. I’ve known many successful partnerships, but it’s usually a relationship between very different individuals — and entrepreneurs can add in a layer of “eccentricity”. Growth through mergers and acquisitions, where the prior leadership team stays on are just as challenging, because you are merging cultures and qualities of multiple people.
The key to a successful partnership is guaranteeing that no single partner can take advantage of another. This is best done contractually, and as early as possible; because in the “honeymoon stage”, when there’s no money coming in the door, partners are very reasonable. If they’re unreasonable in this stage, well, then you know not to enter into the partnership, and you’ve prevented a nightmare.
A good partnership agreement handles a great amount of contingencies, gets everyone on the same page, removes perverse incentives, and fairly captures the intention of the business owners before they actually do business together. It pre-determines the path forward in cases where a partner’s family situation changes drastically, such as the need to leave to take care of family in another state, or a marriage or divorce.
A bad partnership agreement could allow one partner with zero investment capital or expertise to stop working entirely, but still take a huge member draw from the company just like the other workers that are actually breaking their backs. Or it might neglect to implement the intellectual property protection or restrictive covenants that are necessary to prevent jettisoned partners from becoming the business’s worst competitor. Partnerships live and die by their partnership agreement.
Mergers, separately, have just as many options as a partnership agreement, with the added disadvantage that business owners have not been together from the start. You have to deal with many of the same contingencies that have to be taken care of, but often the “sellers” in a merger plan to gradually step out of the company. This relationship must be outlined specifically—ideally in a contract, so that everyone is on the same page ahead of the merger.
One of the saddest calls I’ve received was from a person who purchased a company, only to find that the seller, after taking all of her money, was “stealing” her clients and becoming her biggest competitor.
You have to deal with many of the same contingencies that have to be taken care of, but often the “sellers” in a merger plan to gradually step out of the company. This relationship must be outlined specifically—ideally in a contract, so that everyone is on the same page ahead of the merger.
Finally, in order for businesses to grow and progress successfully, a lot of protection against external factors is needed, such as strong relations, to sound contracts. What do you think is an ever-present issue with today’s economic landscape, and how can new businesses protect themselves from falling under?
The biggest issue by far is a general lack of quality legal advice. Business owners are faced with a choice: hire a big law firm that is less likely to work efficiently, or make use of one of the online robotic “fill-in-the-blank” services that often misses crucial details about your unique company. In order to be successful, a business must have quality legal support from attorneys that understand the many stages of business. It’s even better if the firm knows what it’s like in real life—sometimes, you have to roll up your sleeves and troubleshoot a printer, or call on some accounts receivable! A good business attorney can spot the land mines along the way for you, so your business’s growth is not hindered by unnecessary liabilities.
Jonathan Sparks is the Founder of Sparks Law. He works as an in-house counsel for small to medium sized businesses. His bi-monthly blog deals specifically with legal issues that Georgia businesses face. Before forming Sparks Law, Jonathan worked at the United States Department of Justice, the United States Senate Office, the Attorney General’s office for the District of Columbia, and as an attorney at King & Spalding here in Atlanta, Georgia. He is a graduate of the George Washington University Law School, where he excelled at Corporate and Business law, Torts, Litigation, and Securities law.
He states: “Private clients can pay very large sums of money to contractors in advance of building work; in one case, a very naïve employer paid over £50,000 to a contractor for building materials in advance of any work being carried out. It was therefore less than surprising that the contractor swiftly departed the UK by Business Class without doing any work…”.
He reveals more to why disputes arise during construction projects, and what to do if your contractor is taking a little too long to complete your desired project.
The contractor, employer and designer/contract administrator can all be the subject of neglect in the context of their duties and responsibilities.
Can you share reasons to why disputes may arise during construction projects?
Construction disputes are frequently encountered and account for about 30% of expert witness instructions and are caused by failures on the part of either employer/client and the contractor. Contractor sourced disputes usually stem from cost trimming to achieve an unrealistic competitive bid. Once a contract is under-priced, the contractor is always struggling to make ends meet. This often triggers shortcomings in workmanship and delay or alternatively, disputes caused by over-zealous contractors’ claim for loss and expense or additional works. The client employer, however, can also be the source of construction disputes: shortcomings in technical information; deficient technical detail; imprecise specifications flawed construction design data and/or late instructions; client design changes; etc., can generate disputes. Many employers do not seek appropriate professional advice before commencing a building project and may misconceive the extent of building work and the associated complexities applicable to their objectives. A relatively modest expenditure on professional input at key stages could resolve so many disputes that often end in tears. Frequently there are no contract documents at all. The contract was verbal and here, the contractual terms need to be filtered from witness statements or other documents; this is seldom easy as the reliability of witness evidence can be called into question and ultimately has to be accepted by a court.
Can you expand on what accounts towards negligence (neglect) in construction disputes?
The contractor, employer and designer/contract administrator can all be the subject of neglect in the context of their duties and responsibilities. The contractor is required to complete the works in accordance with the contract and the documents integral to the same. If the contract is silent on workmanship standards and detail, reasonably implied terms may apply. These include normal good building practice, compliance with statute, compliance with manufacturer’s instructions, achieving wind and weathertightness, fit for purpose achievement, Consumers Act 2015, compliance, etc. An employer can also neglect to deal with various issues and can be guilty of late payment caused impecuniosity/funding problems. A building contractor cannot run a building project on thin air and when payment does not arrive on time or is inadequate in quantum, this can often impede the contractor’s progress. The employer is also required to provide instructions and selections on materials and if this is neglected, the contractor will be delayed. Many employers do not appreciate that a delay to a contract may cause the contractor to sustain a direct and/or indirect financial loss. Neglect on the part of a contract administrator or designer is regarded as (plainly) negligence. The normal test applied is whether the service provided meets with that of a reasonably competent professional of the same discipline undertaking the same instruction. Mistakes and a dilatory service on the part of the contract administrator or construction designer can generate disputes. Negligence of consultants employed can include designs that just don’t work, don’t fit or don’t comply with the Building Regulations can often cause a construction dispute.
A contractual default is in theory actionable if the aggrieved party sustains a loss.
What actions can parties take when projects are taking longer than estimated?
Many employers are intolerant of a project running late. In many instances, a project may be completed late without the employer suffering financial loss or significant detriment. Employers who are intolerant of a small degree of lateness in the completion of building works may be the authors of their own misfortune. Premature termination of a contractor’s employment can often cause a greater delay to the completion of a project. But many projects run excessively late because of the contractor’s failure to properly organise the works and deploy sufficient resources to the same. The employer often may have no other option that to terminate the contractor’s employment and seek redress for losses sustained consequential to the contractual breach. The above presupposes that the contract contains time of the essence conditions for completion. In many instances, I examine simple exchange of letter contracts that contain no contractual completion date. In these circumstances, I am instructed as an expert witness to define what may be reasonable in specific circumstances. Formal JCT contracts, for example, contain liquidated damages terms which may be enforced by the employer if there is no entitlement for an extension of time, but only if the employer genuinely sustains a loss.
Building surveyors are often at the sharp end of disputes, providing the initial reports and evidence on the extent of any contractual default applicable.
From the above, when is it actionable in Court, when projects go unfinished post the estimated complete date?
A contractual default is in theory actionable if the aggrieved party sustains a loss. Provided the loss is sufficient to necessitate a claim, the matter may be litigated, provided it is economic to do so and where the evidence needed to commence litigation is sufficiently robust. Small domestic work claims for less than £10,000 can be processed through the Small Claims Court and may involve the use of a single joint expert witness on account of cost limitations. More substantial claims may follow the County Court Fast Track system or the Technology and Construction branch of the High Court for the largest and most complex disputes; experienced legal representation and skilled expert witnesses will be required in these cases.
Moreover, when should companies be concerned; i.e., when do you recommend they seek legal advice?
Building surveyors are often at the sharp end of disputes, providing the initial reports and evidence on the extent of any contractual default applicable. A standard form of building contract defines arbitration or adjudication as dispute resolution mechanisms. Adjudication in particular is swift. Arbitration in my experience can be just as long winded and as costly as litigation. An experienced construction lawyer will be able to advise on the best methods of dispute resolution, often involving mediation which is surprisingly successful in resolving a high proportion of construction disputes, thereby avoiding a costly trial. A skilled solicitor with good experience in construction is, of course, invaluable and will provide the appropriate guidance to their client. Expert witness evidence is also crucial. This should be accurate, well researched and balanced.
Regarding damage in construction: does insurance pose any benefits?
Insurance can provide a safeguard in the event of damage arising from building works. This may cover damage to the building fabric being the subject of building works or alternatively, neighbouring property. Relying solely on contractor’s insurance is ill-advised as the skill/abilities and financial status of the contractor are paramount. An insurance claim can only be made if the policy holder elects to lodge a claim. If the contractor has breached insurance conditions, insurance cover can be completely vitiated. Insurance therefore is helpful but no substitute for good contractor selection and competent contract administration.
Simon's Story
“My parents suggested that I should be a surveyor. As a troublesome adolescent, I normally ignored all their advice, but on this occasion, I listened. After exams and a partially completed degree course in structural engineering, and a strenuous education, I became a Chartered Surveyor employed by an architectural firm, in London’s West End. I enjoyed this post and quickly worked my way up to an associate. But there were broader horizons available and I decided to start my own surveying practice, working from my spare bedroom at home. Work progressively increased to an extent that enabled me to open offices in Borehamwood, Hertfordshire which has been my principal office since 1988.
“I am thus now the sole principal of Simon Levy Associates but am assisted by my excellent associate Raphael Saltman MRICS and other hard-working staff.
“My principal areas of professional work include full building surveys, schedules of dilapidation, party wall administration, boundary demarcation, construction specification/design, contract administration, building defect diagnosis, project management and other similar professional activities; these provide an excellent founding to expert witness services. One cannot be an expert in a professional discipline without practising that discipline at grass roots level. Now I extensively provide expert witness evidence in construction disputes, landlord and tenant disrepair disputes, party wall and boundary disputes.”
.We speak with Petr Holy, who expands on the process of patenting your invention, the challenges which may come your way and how patenting is the most important process for a business, often referring to the process as the ‘family silver’.
Can you expand on the procedure of applying for a patent?
Intellectual property is always the most valuable asset for each technology-based company. Other assets are replaceable, resp. renewable, but intellectual property is usually the unique “family silver” of any market changing entrepreneur. The investment in the IP protection is usually not directly measurable in black numbers, but from a long term perspective, it’s the best spent money, even better than appropriate marketing.
The very first thing you shall do is to obtain patent protection if possible and as soon as possible, even before you would tell anyone else.
Have you discovered something new and potentially interesting in the field of technics? The very first thing you shall do is to obtain patent protection if possible and as soon as possible, even before you would tell anyone else. Failure to do so usually means that you will get no reward for your eventual unique discovery.
It is utmost important to get qualified assistance of a professional in the patent field, because no mistakes are tolerated by the procedure and in 99% of the cases, they cannot be corrected later at all.
A mistake in the formulation of the patent claims always means narrower scope of protection, therefore part of the invention is wasted.
What common challenges can arise during the procedure?
Seeing in a brand new invention is always a big challenge. It does not matter whether it is a groundbreaking remedy for cancer or a tiny part of small toy, it could be a potential game changer. To exploit the opportunity, the most important thing is the formulation of patent claims, because it predetermines the future scope of protection for those onwards, forever.
A mistake in the formulation of the patent claims always means narrower scope of protection, therefore part of the invention is wasted; in the worst case scenario, it could result in failure of whole the registration procedure and such invention is given up to all competitors for free. You lose your competitive advantage and all the money invested in the research is completely wasted.
The well-designed patent claims structure should also be giving the owner best possible defensive position against expected invalidation attacks of the competitors, because, especially in the high tech field, you can be sure that your patent application will be promptly attacked by your competitors, in order to get rid of the registration and gain free access to the invention.
Do any issues arise if the patent you have filed at home [local jurisdiction], has been applied elsewhere internationally?
Choosing where the patent shall be applied for wisely, is the second most important decision, because later, after expiration of the so-called union priority, it cannot be territorially expanded at all. Each new territory means an additional procedure and namely additional registration and maintenance costs, therefore sometimes it is a question of finding the right kind of balance.
How different is the procedure if you are applying for the patent internationally?
International applicationa are not a big difference thank to Patent Cooperation Treaty (PCT) resp. Paris convention. Subsequently, entering into national phases always require international cooperation and a having network of reliable and experienced attorneys all over the world is crucial to be able to render complete service the clients usually expects.
What should be the first things to consider once a client’s wishes to sell their patent?
Every asset has its price, but sometimes finding a fair price for a unique patent can prove difficult.
About Petr and the Law Firm
Petr Holy is an Associate in Rott, Ruzicka & Guttmann, a leading legal boutique focused on the registration and enforcement of the intellectual property rights of domestic and foreign clients in the Czech Republic and Slovak Republic. Besides registration of all kinds of IP rights, the main focus is on court proceedings in IP, unfair competition and copyright matters, with special focus also on full service in anticounterfeiting to the top brands.
Petr Holy is the leading attorney of the court prosecution and anticounterfeiting department, supervising all the court, customs, criminal and administrative and investigative services on the field of IP infringement and anticounterfeiting.
What should legal professionals look out for when trying to find an impartial expert?
I would certainly consider that the main issue is to know your expert and do not use agencies, who will send anyone to you. Direct communication is far better than communication via any third party and is much more efficient. As fees become a disbursement on admission of liability, they should not really be an issue, even though this is often being used as a reason to use agencies. Experts are on registers such as the National Register of University Certificated Expert Witnesses (Bond Solon) or the UK Register of Expert Witnesses amongst others.
Experts soon get a reputation for delivering an efficient service or not.
How have you seen lack of impartiality affect legal cases?
I have seen numerous cases where the expert is not impartial. They usually end up at trial and fortunately, so far, they have always lost. Unfortunately, courts are not good at ensuring that Part 35 is adhered to by experts and unfounded views that support one side still occur without criticism.
You have previously mentioned how errors creep in due to rushed appointments. What should be done to reduce such time restrained errors?
In the RTA3/ MedCo system errors are rife. It is an almost entirely unaudited market with GP Experts giving as little as 5 minutes per report, with anything above 15 minutes being rare. I have never seen one of these reports that are of adequate quality, having audited many. The biggest problem is cost, and the biggest problem with cost, is agencies taking a massive cut. This reduces appointment times and quality. This necessarily impacts on justice. Guidance from Liverpool Victoria Company Ltd v Khan and Ors [2018]EXHC 2581(QB) shows that Judicial opinion is that appointments of 15 minutes were inadequate, which is a useful pointer. I would consider 30 minutes is needed as a minimum.
Moreover, what should legal professionals look out for, in order to avoid hiring a ‘pushed for time’ expert?
It is best to enquire about turnover, or better still ask around. Experts soon get a reputation for delivering an efficient service or not. Ask about turnaround times for reports and for supplementary. Agencies slow communication and often cause unnecessary delay
Do you think all experts should be trained [e.g., via mock trials] to communicate their expertise to juries? Would this help in medico-legal cases?
I think all experts should be qualified experts. The gold standard is the Bond Solon/ Cardiff University course and that has been around a long time, so there really is no excuse. Anyone using MedCo must have undertaken the training but, as above, despite this, the reports are generally poor. Many experts are considered as such, purely because they are NHS Consultants. In fact, what they are called to give opinion on is frequently either conditions that they never see in practice (whiplash, sprains) or areas of the condition (such as disability) that they never have to consider and are not qualified to opine upon.
Can you breakdown the different reasons to why financial disputes may arise?
During separation, if the parties do not have the benefit of either a pre-nuptial agreement or a post-nuptial agreement (which is effectively like a pre-nup but entered into after marriage), it may or may not be clear to each party how best to share assets that they have accumulated together now that they are going their separate ways. Irrespective of the parties’ incomes, whether only one of the parties is working, or what they may have accumulated in their time together, they now need to try and forge two households and livelihoods out of the original marital pot. This can lead to competing demands by each party as to what their respective needs may be and the needs of any minor children who may be living with one party or the other. So there may be some competing views as to how best utilise what resources are available to them.
Quite often, particularly if the parties have not previously sought proper legal advice, their discussions together can be hamstrung by concepts which may seem perfectly sensible to them, but which are alien to what a solicitor would advise or what a court may do. A good example of this is the approach at law which says that the bread-winning function of one party is absolutely equal to the homemaking function of the other. So when you have one party suggesting that they earned the money so they should keep the majority of it - that can cause needless tension.
You could also have a situation where one party might have bought substantial assets into the marriage and will want to have that contribution reflected in any form of final settlement between them. It may be that one of the parties has had an inheritance during the course of the marriage and wants an adjustment for that contribution. Both of these points are subject to specific tests and criteria of law, and it can be difficult for lay-parties to approach direct settlement in a way that they deem is fair to them both.
Sometimes court cannot be avoided.
Another aspect which often causes a dispute between parties is whether or not certain assets are in one party’s name rather than joint names. If the parties are married, then this sort of problem does not present overt difficulties (save in specific circumstances) but where the parties are not married, this can cause real difficulties – particularly if both parties contribute to an asset, say a house, but that house is only in one party’s name or the weaker economic party has real needs to be met.
If such disputes are inevitable, what different routes are available for both parties?
If the parties are unable to come to an agreement in mediation then solicitor negotiation, working co-operatively with the other party’s solicitor, is an excellent way to broker an agreement.
If parties are unable to come to an accord either in mediation or solicitor negotiation, then they will have the option of arbitration. Arbitration is effectively private law where the arbitrator will, in a more informal setting than court, help the parties by listening to their respective positions and make a determination, in much the same way that a High Court Judge would, as to an appropriate outcome in their case. Arbitration has the benefit of insuring that the parties retain control of the process as they jointly select the arbitrator between them (or if they cannot, they can ask the Institute of Family Law Arbitrators to make a selection). The arbitration will also take place in a timeframe suitable to both parties and is a speedier option for those that would like a resolution to their case relatively quickly.
Another option is to hold a private FDR - a senior member of the profession, generally an experienced Barrister, is hired by the parties to act as a Judge who will hear both sides and then try and help the parties broker a settlement between them. This is a relatively new process but one that has, in many cases, been highly effective.
The final option available to parties is the court process. Sometimes court cannot be avoided. If one party is being intransigent, difficult, or is obscuring evidence and refusing to share financial information, then the court process is needed so that a Judge can take control of the situation and make the orders needed to ensure that the other party is in a position to consider their case fully and put forward offers. In the alternative, if direct negotiation fails within the court process, the end result is a Final Hearing in which a Judge, hearing all the evidence, will make a determination as to what is to occur.
How can different business structures have different impacts on financial negotiations?
The difficulty with parties whose marital assets are tied up within business structures can, necessarily, mean the involvement of third parties (be it on behalf of the business as a separate legal entity) or as shareholders with a defined interest in the business.
This means that third party rights need to be considered carefully by the matrimonial court. Quite often complex structures are put into place in order to assist in tax minimisation or risk-liability minimisation. Unfortunately, those tax and liability minimising structures can have the effect of defeating claims of one party over the other in the marital courts. If particularly hostile, one party can try to use the business structure in place as an obstacle to achieving a fair settlement.
It also may be the case that marital assets are tied up in shares in a company and that company’s Memorandum and Articles mean that the shares cannot be transferred from one party to the other. It may also mean that the party owning the shares may not wish to transfer them to their former spouse or dilute or weaken their voting power within the business.
Family businesses do provide a degree of difficulty in which specialist matrimonial legal advice is advised.
Difficulties can readily arise for, say, an executive within an international company.
How can negotiations differ when companies are internationally complex?
The degree of difficulty that I was discussing above can be magnified when you are talking about a company which is truly international.
Difficulties can readily arise for, say, an executive within an international company. Quite often the pay structures are complex and are designed to take advantage of the tax affairs in differing jurisdictions. For example, a senior executive in an international company may be based in Poland and their complete salary package may mean that they are remunerated in a tax efficient way in Poland, but also paid through the USA and/or other offshore jurisdictions designed to ensure that the executive receives their income in the most tax effective manner. This can be difficult to trace and much less dealt with in the context of a matrimonial settlement.
It may also be the case that a senior or board level executive receives as part of their remuneration, shares or L-TIPS to which there is a future benefit (as yet potentially undefined) over an indeterminate or determinate period of time. The opaque nature of some parties’ salary position can lead to problems when trying to work out a fair and appropriate settlement.
The reality is very few matters go to court or arbitration for a determination by a Judge or an Arbitrator.
How common is it obtaining a financial agreement that suits both parties?
Parties who are level headed and engage in either clear mediation, or properly conducted solicitor negotiation, will find an agreement that they are happy to sign up to, in a relatively short period of time.
It is a trite expression used continually by matrimonial lawyers, that the best settlement is one with which neither party is completely happy. This means both parties have given a little, in order to obtain an overall settlement which is objectively fair.
The reality is very few matters go to court or arbitration for a determination by a Judge or an Arbitrator. The vast majority of people manage to settle their matter without ever setting foot inside the court door, be it by mediation or sensible solicitor negotiation. A percentage do need to start financial proceedings through the courts but a significantly higher percentage (anecdotally well into the nineties) settle their matter either at First Appointment or at the Financial Dispute Resolution Hearing (where a Judge hearing all sides does their best to try to help the parties settle) without ever going to Final Hearing.
Pleading ignorance is may not be sufficient, and it essentially ratifies a harasser’s discriminatory conduct.Silvia Stanciu at Phillips & Associates outlines everything you need to know on the matter: why racism manifests in the workplace; common telltale signs; options available to employees; and, how employers should handle racial discrimination.
What is race discrimination, and how can it manifest in the workplace?
In the workplace context, race discrimination constitutes any unfavorable treatment against a job applicant or employee, specifically because of his or her race or race-related characteristics, such as skin tone, hair texture, or facial features. Race discrimination is often coupled with “colorism”, i.e. treating an individual worse because of the color, tone or shade of their skin. This can even occur between individuals of the same race or ethnicity. Title VII of the Civil Rights Act of 1964, 42 US Code §1981, the New York State Human Rights Law, and the New York City Human Rights Law, all address employees’ rights to be free from racial discrimination in the workplace. Some examples of race discrimination at work include racial slurs, racist “jokes” or cartoons, racial stereotypes, paraphernalia like swastikas or nooses, and singing along to racist song lyrics. Also, employers who make any employment decisions on the basis of race and/or color in the workplace may be liable for race discrimination.
Because anti-discrimination laws are ever-changing, employers have an ongoing obligation to train their staff to recognize, and remedy discrimination.
What is “implicit” bias, and how can employers work toward an inclusive work environment?
“Implicit bias” or “subconscious bias” are two terms used to describe individuals’ subtle racist and/or discriminatory tendencies, before they develop into explicit examples of racial discrimination. Employers may find “implicit bias” and “subconscious bias” difficult to spot—and even more difficult to remedy—so they should take the initiative to address “implicit bias.” Implicit bias is difficult to identify “in a vacuum”, so employees should provide HR specific examples to contextualize certain “neutral” comments, and alert employers as to what the employee believes is racist. Because anti-discrimination laws are ever-changing, employers have an ongoing obligation to train their staff to recognize, and remedy discrimination. Employers must also ensure that employees are comfortable discussing implicit bias, and that they do not wait for an overt act of racism to occur. At that point, they may no longer trust management to remedy the harassment.
Pleading ignorance is may not be sufficient, and it essentially ratifies a harasser’s discriminatory conduct.
What are common “telltale signs” that a company may be liable for racial discrimination?
A company may be liable for racial discrimination if it is aware, or should have been aware, of one or more incidents of racial discrimination in the workplace, and it does not address those incidents with the harasser and the victim to ensure that they do not happen again. Pleading ignorance is may not be sufficient, and it essentially ratifies a harasser’s discriminatory conduct.
From a practical standpoint, implementing a policy handbook is not enough to shield employers from potential liability. Employers who do not regularly update their anti-discrimination policies to reflect changes in the law, or review their policies with their staff, will be unprepared to tackle a complaint of discrimination. Plaintiffs in discrimination cases often allege that they complained to Human Resources, followed the employee handbook’s chain of command, and the company still failed to protect them from the harassment.
A company may also be liable for race discrimination if members of management are actively participating in the racially offensive conduct, and consequently, creating a hostile work environment for employees. When management engages in discriminatory conduct, it sets a negative example for lower level employees to also engage in the same behavior, and ratifies the unlawful conduct. Moreover, it indicates the company’s general disregard for anti-discrimination laws. Most importantly, it discourages employees from making complaints because it makes them feel like it would be futile to complain and/or the complaints would not be addressed.
Of note, a company may also be liable for retaliation if it does not protect employees who make complaints of race discrimination. Often, employees are reluctant to make complaints to management because they do not want to lose their jobs. Therefore, employers should provide assurances and safeguards for employees so that their complaints will not put their salaries, benefits, or jobs in jeopardy.
Employees have a number of informal and formal options if they believe they have been subjected to racial discrimination.
What options are available to employees who believe they have been discriminated against on the basis of their race?
Employees have a number of informal and formal options if they believe they have been subjected to racial discrimination. But first, employees must actually notify their employers of their concerns. Employees cannot simply assume that the employer will take remedial action. Employees should document incidents of discrimination as soon as they occur, and to continue to update management or Human Resources if the harassment continues. Written complaints place the onus on the company to investigate and address the employee’s complaints, and serve as evidence that the company did, or did not, effectively respond to the complaints. If the company does reach a satisfactory resolution, then the employee may not feel the need to escalate her complaints.
However, if the employee is dissatisfied with the company’s response, or lack thereof, he or she can file a complaint with an administrative agency or court. For example, if the company employs at least fifteen (15) or more employees, the employee can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). If the company employs at least four (4) employees, they may file a complaint with the Division of Human Rights or the City Commission on Human Rights, if he or she works in New York City. Otherwise, employees can also pursue a case in court under federal statute 42 U.S. Code §1981.
Companies must acknowledge that incidents of racial discrimination can be fact-specific, deeply offensive, and often emotional for the complaining party.
How should companies respond to complaints of workplace discrimination?
Companies must acknowledge that incidents of racial discrimination can be fact-specific, deeply offensive, and often emotional for the complaining party. As a result, companies must take every complaint seriously, and devote time and resources to ensuring that their employees feel safe and respected at work. Shoddy finances or small-scale operations are not an excuse for failing to investigate and remedy race-based harassment.
From a “best practices” standpoint, companies should promptly document complaints of racial discrimination, meet and interview the parties, and monitor the aftermath of the complaint/investigation. The company should also ensure that the complaining employee feels safe and comfortable with going back to work with the harasser. If the employee does not, then the employer must explore options like transferring the complaining party away from the harasser, or even terminating the harasser. Employers should pay close attention to the nature, severity, and frequency of the complaints. Importantly, the single use of a racial epithet by a supervisor in the workplace may be sufficient to support a claim of a racially hostile work environment.
An employer cannot treat its employees differently on the basis of their race with respect to their compensation, benefits, work assignments, evaluations, training, or discipline.
What constitutes retaliation, and how would a company retaliate against an employee for making a complaint of racial discrimination?
Retaliation constitutes any negative employment decision by an employer in response to a complaint, such as demotion, termination, or sudden written reprimands for performance. Retaliation can be done to harass or discourage an employee from making a complaint of race discrimination. For example, under the legal theory of “temporal proximity”, an employee may be able to demonstrate workplace retaliation if he or she lodges verbal or written complaints of race discrimination, and is then passed up for an expected promotion shortly after. As another example, an employee cannot be retaliated against for supporting, or making a complaint on behalf of another employee who is experiencing race discrimination. In litigation, the company has an opportunity to defend itself from allegations of retaliation by providing a “non-discriminatory” reason for passing the employee up for the promotion.
Litigating cases of race discrimination is a lengthy, difficult, and emotional process for both employees and employers.
How can an employee demonstrate that he did not receive a promotion or a bonus because of his race?
An employer cannot treat its employees differently on the basis of their race with respect to their compensation, benefits, work assignments, evaluations, training, or discipline. Because few cases possess “smoking gun” evidence of race discrimination, litigators routinely draw on circumstantial evidence to show that the company is treating its employees differently on the basis of their race. For example, if an employee believes that he did not get a promotion or bonus because of his race, he would have to show the following: (1) he is a member of a protected class; (2) he was entitled to receive the promotion or bonus as a part of his job; (3) he was denied the promotion or bonus; and (4) coworkers with the same job title, but of a different race, received the promotion or bonus. In turn, the company would have to demonstrate a “legitimate, nondiscriminatory reason” for denying him a promotion or bonus, such as documented performance issues predating the scheduled bonus, or financial strain. Finally, to prevail, the employee would have to show that documented performance issues, or the financial strain, were pretext for racial discrimination, and that withholding the bonus or promotion was motivated by racial animus.
What should employees know about litigating cases of race discrimination?
Litigating cases of race discrimination is a lengthy, difficult, and emotional process for both employees and employers. Although employees generally get to file their pleadings first, they must be prepared to hear, and accept, companies’ defenses, regardless of the veracity of the allegations, or the employer’s level of culpability. Employees must also be prepared to articulate the damages they incurred as a result of the company’s harassment, and/or failure to remedy the harassment. Finally, practitioners and clients alike must recognize that race-based discrimination and retaliation are fact-specific, so context can make (or break) a race discrimination case.
Silvia Stanciu is an employment litigator at Phillips & Associates, a law firm that serves all five boroughs of New York City and New Jersey. Ms. Stanciu grew up in Romania and has had a long-term interest in advocating for employee rights and fighting against workplace discrimination. She can assist people who need a New York City racial discrimination attorney or an employment attorney if their rights have been violated by their employers in other ways.
