The Government has now published its consultation paper on pleural plaques and Simpson Sissons & Brooke Partner, Jeremy Brooke, is currently preparing comments for inclusion in the Association of Personal Injury Lawyers' response. This is an extremely important time for sufferers of pleural plaques and Jeremy would welcome comments from any one who has a view on the subject. The Ministry of Justice web site carries a statement regarding the consultation and a copy of the documentation may be downloaded from the site. http://www.justice.gov.uk/news/announcement090708a.htm

Jeremy says, "Now is the time for everyone to have their say on the issue of pleural plaques. It is vital that House of Lords' decision denying compensation to victims of asbestos illness is redressed at the earliest opportunity. If any one reading this has been affected by this issue they can contact me and I will be happy to discuss it with them." Jeremy can be contacted on 0114 2413973 or email at jeremy.brooke@simpsonsissonsandbrooke.co.uk Information about pleural plaques and other asbestos related issues can be found at www.asbestos.gb.com

Will specialist and Partner at Simpsons Sissons & Brooke, Martin Sissons, is urging people not to end up in the same position as the unfortunate widow of a millionaire who has been widely reported in the press this weekend and in the Mail Online this morning. http://www.dailymail.co.uk/news/article-1030788/Millionaires-widow-sues-children--aged--husband-dies-leaving-will.html

Making a will is such a simple process. "People are often put off approaching solicitors to write a will because of the perceived cost. Our research shows that our charges are often much less than people anticipate and usually less than some "will writers" charges"; says Martin. "In any event the cost of writing a will in the case reported this weekend would have been far less than the legal wrangle that is about to follow."

For advice about wills please contact Martin Sissons on 0114 2413972 or email him at martin.sissons@simpsonsissonsandbrooke.co.uk.

Provisional figures of work-related fatal injuries in Great Britain issued by the Health and Safety Executive (HSE) today reveal that 228 workers lost their lives as a result of accidents/incidents at work in 2007/08 compared to 247 workers in 2006/07. The report also shows a slight increase in the number of workers killed in the agriculture (from 36 in 2006/07 to 39 in 2007/08) and a slight decrease in the construction sector (from 79 in 2006/07 to 72 in 2007/08).

Responding to the released figures HSE Chair Judith Hackitt said,

"Whilst we welcome the headline decrease in overall numbers of fatalities, there is absolutely no room for complacency as the report suggests a plateau in the overall five year trend. Great Britain’s position amongst major European Union countries is in relative terms a creditable one, but none can find it acceptable that 228 people died directly as a cause of their work. After many years of improvement, it is disappointing that we are on a performance plateau. This stresses the need for everyone, employers and employees alike to make a further effort to reduce this total of human misery.

"Evidence shows that where employers and employees work closely together to agree the agenda and set targets to tackle real issues, they have made significant improvements. We want this to continue and we also want to see employers taking more ownership and leadership to embed health and safety in their organisational culture and boardrooms.

"The high levels of fatalities in the agriculture and construction sectors continue to be of particular concern to us and will be a major focus of HSE’s work priorities over the coming year."

Simpson Sissons & Brooke represent a number of families where loved ones have died because of their work. If you would like advice on accidents at work then please telephone Jeremy Brooke on 0114 2413973 or visit our website www.workplace.gb.com

The Health and Safety Executive have released a report rebutting claims that unknown chemical changes occurring in the process of asbestos containing cement renders harmless the chrysotile asbestos. Asbestos cement products were used widely in the 60's and 70's when asbestos was added to cement to strengthen the products. Many asbestos cement products can still be found in homes around the country. Asbestos roofs on garages, asbestos soffit boards, roof tiles, gutters and down pipes can still be seen on older housing stock. Simpson Sissons & Brooke Partner, Jeremy Brooke welcomes the report by the Health and Safety Laboratory. "Since the 1980's, when legislation was being implemented to prevent the use of asbestos cement containing materials, there has been a desire by some to undermine the known health effects of asbestos cement. Only recently I have taken on a case for the family of a gentleman who worked extensively with such products. I see the evidence of the harm that it causes and I welcome the HSL endorsing the current regulation on the use of such products." said Jeremy. The full text of the report can be found on the HSE website at http://www.hse.gov.uk/research/hsl_pdf/2007/hsl0711.pdf.

Partner Jeremy Brooke has been delighted with the recent coverage in the Derbyshire Times regarding asbestos illnesses. "In the last couple of weeks I have been working very hard to bring together cases on behalf of people who have been told that they can not claim compensation." The cases to which Mr Brooke refers were fast approaching the three year time limit allowed for personal injury claims to be brought. "Not only had people been told that compensation claims were not possible, they had not been advised about the availablity of benefits for sufferers of asbestos related illnesses. One lady has lost the opportunity of tens of thousands of pounds because she was not advised of these benefits." Next week sees a national campaign to raise awareness of mesothelioma. The British Lung Foundations "Action Mesothelioma Day" takes place on 27th February. "The more that can be done to raise awareness of people's rights the better" said Mr Brooke.

The recent changes in Inheritance Tax legislation caused a huge sigh of relief amongst many of those whose estates were previously caught in the Inheritance Tax trap. However it is worth taking a moment to make sure that the new legislation actually applies to and helps your own personal situation.

The new law provides that, where a surviving spouse or civil partner dies after 9th October 2007, the unused nil rate band of the first spouse or civil partner can be transferred over to the estate of the survivor.

So, for example, where someone has died before 9th October 2007 leaving everything to his or her surviving spouse or civil partner, none of his or her nil rate band has been used (because a gift to a spouse or civil partner is exempt from Inheritance tax). This means that when the survivor dies two lots of nil rate band can be used before any Inheritance tax is payable. In some cases this can mean that up to £600,000.00 can be passed to beneficiaries free of tax.

So does this help you?

Well the first thing you should be aware of is that the changes only help married couples, civil partners, widows, widowers and surviving civil partners. If you are co-habiting, or if you co-habited with a now deceased partner then the changes do not help you at all and you still need to plan very carefully through your Wills and lifetime gifts to mitigate your estate’s exposure to Inheritance tax.

Furthermore, even if you are married or have entered into a civil partnership there may be good reasons why you may still want to use some or all of one nil rate band when the first dies, for example because your estate is still well over the Inheritance tax threshold or because you want to protect some of the estate from the threat of future nursing home fees.

At Simpson Sissons & Brooke we always advise our clients to review their Wills whenever there is a change in either their own personal circumstances or legislation. So with the recent changes announced by the Chancellor it seems a very appropriate time to get out that copy Will and make sure it still accurately reflects your wishes and, more importantly, can it be revised in the light of new legislation to make things simpler for you and your beneficiaries?

Personal Injury Partner, Jeremy Brooke, is delighted to announce that Emma Pryor joined the department today. Emma joins from another Sheffield firm and brings with her extensive experience of working with personal injury cases. Emma has worked for Jeremy before on two occasions. "I am delighted that Emma has agreed to join the team. Her experience and attitude are exactly what we need." said Jeremy. An expanding client base means that the department has needed to recruit new people so that it can contuinue to deliver a high quality service. Emma said, "This is the third time I have worked for Jeremy in the last eight years. I know what is expected in terms of client service and am looking forward to developing my skills at Simpson Sissons & Brooke."

The NHS is facing £4.5bn in compensation claims over alleged blunders by midwives and doctors that have left babies suffering severe brain damage, The Observer can reveal. The huge sum is detailed in confidential data from the NHS Litigation Authority, which handles most of the legal claims for medical negligence against the health service in England.
Three-quarters of that, £3.3bn, relates to incidents in which a child has developed cerebral palsy, brain damage which is often caused by being starved of oxygen during birth, and been left disabled. A further £739m involves claims over what the NHSLA calls 'other brain damage'

Simpson Sissons & Brooke partner, Jeremy Brooke, says, "Whilst the sums involved appear huge you really need to consider how many children sit behind this statistic. To have a child brain damaged at birth because of negligent procedure not only devastates the family but leaves them with a life time care bill. It is right  that those children are compensated so that they are able to receive the appropriate care."

The article goes on to question the levels of staff and training given to those involved in maternity wards. It seems that the health care professionals involved in the debate have a different view of matters to the Department of Health.

"The debate seems to raise the old, old question" says Jeremy. "Should money be spent on litigation or new staff? My view is that the compensation is essential to the child. The legal costs are brought about because the hospitals inevitably fight these cases, so the lawyers can hardly be blamed there. I welcome the time when a lawyer can not bring a claim against a maternity unit, but only if the reason for that is that everything is being done correctly."

After two years, the Law Commission has published its report about the legal rights of co-habitees and in particular what happens when they separate.

In a nut shell there is at present no law for co-habitee’s They have to rely on the general rules relating to everyone else. This can often produce gross injustices, particularly where couples, both heterosexual and same sex, have been together for many years. Many people believe that if they live with someone for six months or more they somehow acquire some rights. This is completely wrong. A “common law” spouse has no legal meaning whatsoever.

Some people believe that if co-habiting couples were made more aware of their rights, or lack of them, then they could then make a decision as to whether or not they wanted to marry and in effect opt into the law applicable to married couples or enter into civil partnership. Alternatively they could choose to remain as they are and in effect opt out.

The Law Commission is suggesting that the scheme should only apply to couples who have lived together for a certain number of years or who have lived together and have had a child together. The thought is that the duration should be between two and five years and there are alternatives. In theory a couple could live together for a couple of months, but if they have a child together the new law would apply to them.

What may be of concern is the fact that couples do not opt into the scheme. They actually come within its ambit if they satisfy the criteria. There could therefore be a lot of couples who by living together or by having a child and living together for a short period of time find themselves within the ambit of the law

However, to counteract that, the law Commission proposes that couples can opt out by signing some sort of agreement to say that they do not want to come within the ambit of the law. This all pre-supposes that couples know the law in the first place. In reality how many couples who actually marry know what their rights are? How many are actually going to know about the law relating to co-habiting couples? Many may well end up thinking they are outside the law because they have not married only to find that they come within it because they have not signed an agreement to “opt out”.

It is therefore even more important now for couples who are planning to live together to actually seek legal advice. Of course, do not forget that the same applies to couples who intend to marry ie they need to consider whether to enter into a pre-nuptual agreement.

Just three months after the launch of the new business the firm's personal injury department is already seeking its first new recruit.  Partner Jeremy Brooke needs a personal injury fee earner to support him with an increasing work load. Attitude is the top priority for Jeremy who says; "I can teach the right person the law and procedure that they need to know. But that person must be capable of delivering the quality of service that this firm offers and committting to our ethos." The position is open for applications from people with one or two years experience of general personal injury claims. Qualifications are not necessary and a training contract may be available as part of the package. Applications and CV's by email to enquiries@simpsonsissonsandbrooke.co.uk

Discretionary trusts are in the news again, this time in the case of (1) The Estate of Harry Dexter Lyon Deceased (2) The Trustees of the Alloro Trust v Revenue & Customs Commissioners (2007). This is potentially a rather worrying case as it sees the Revenue successfully applying a very strict interpretation of the “gift with reservation of benefit” rules.

In general terms, if a person is a potential beneficiary of a discretionary trust fund, the value of the fund is not included in their estate for inheritance tax purposes when they die. For that reason discretionary trusts are a very common feature of inheritance tax mitigation schemes.

The “gift with reservation of benefit” rules (GROB rules) state that where a person gives an asset away to reduce the value of their estate for inheritance tax purposes, but still continues to derive some sort of benefit from the asset after the date of the gift, then the gift is not effective and on death the person will be treated as still owning the asset for inheritance tax purposes.

An example of the GROB rules in action would be where a parent gifts a holiday home to a child, but continues to take rent free holidays at the property. That gift would be caught by the GROB rules and the value of the property would still be classed as part of the parent’s estate on death.

In Mr Lyons’ case, he transferred a sum of money to a discretionary trust which he had created during his lifetime. He was a potential beneficiary of the trust and over the years, until he died, he received payments from the trust amounting to less than 1% of the value of the trust fund. That benefit was held to amount to a gift with reservation of benefit and the whole value of the trust fund was therefore classed as part of Mr Lyon’s estate on his death and therefore liable to inheritance tax.

So from now on, if you have put money or property into a discretionary trust, and you are a potential beneficiary of that trust, you should be aware that any benefit you derive from the trust fund could trigger the GROB rules meaning that the whole value of the trust fund is classed as part of your estate on your death for inheritance tax purposes.

It is assumed that the husband is the father of any child born to his wife while they are married and either or both of them can register the birth and put the husband's name on the birth certificate as the father.

However if the parents are not married then only the mother has the right to register the birth in her name. If the father's name is to go on the birth certificate then both parents have to agree. If the mother does not agree then, as the father cannot register the birth, he cannot put his name on the certificate.

The reason for this is historical, firstly to protect women who were raped and did not know the name of the father and secondly to protect both where it might be embarrassing to name the father. It was also felt that if the parents were not married then it was unlikely the father would want anything to do with the child.

Times have of course changed with almost as many children being born to cohabiting couples as to married ones. 3 years ago the law was changed so that the father would acquire parental responsibility of a child if he had his name put on the birth certificate. However what was not changed was the fact that the mother still has to agree to the father going on the birth certificate and he would have to accompany her to the register office to do so. That means that if the father would like to be registered but the mother registers the child without him, then he does not automatically assume parental responsibility. Likewise if the mother would like the father's name to be on the birth certificate and  he does not agree she cannot put it on.

Not only do these rules impact on the rights of the parents but also on the child. Some take the view that the child has the right to know who both parents are and that it should be mandatory for the father to be named. But what about the cases where this could cause untold damage to the child and possibly extended family members where, for example, the father is another member of the family or a close friend? There are of course still going to be cases where the child is a result of rape and the mother may not then know the father's name or it may be felt totally inappropriate for the name to go on the certificate, particularly when the father acquires rights over the child by being named.

But there is another view which is that a child has the right to know both parents and to have them named on the birth certificate, regardless of the circumstances. Should this happen in every case though? Whose rights should come first?

There are additional factors in that if the fathers name is on the birth certificate and the mother has to claim certain state benefits the Child Support Agency can carry out an assessment. It would be difficult to do so if they do not know the father’s name. There are penalties that the CSA can impose on the mother for not revealing the name. Cynics may say that the real reason why this debate is taking place is to make getting money out of absent fathers easier.

What if a mother refuses to register the father's name? What penalty should there be and who is going to impose it on a mother who has recently given birth.?

Should the mother continue to have the final say where parents are not married? Should the father have the right to have his name on the birth certificate in all circumstances? Should this be tempered to protect a child in certain circumstances? And what should the criteria be?

Janet Simpson

Partner

Discretionary trusts have been used for a variety of reasons including as a vehicle for Inheritance Tax Avoidance. While ever you are a potential beneficiary of a discretionary trust the assets in the trust fund are not counted as part of your estate for IHT purposes. In Charman v Charman the trust was an offshore discretionary trust that also attracted income tax advantages. If a couple divorced during the life time of a discretionary trust the courts have often not taken into account the assets within the trust when distributing the matrimonial assets, despite the fact that one or both of the parties to the marriage was a potential beneficiary.

The Court of Appeal has finally reversed that trend in the Charman case, although this has been emerging through the lower Courts in recent years. Mr Charman set up a discretionary trust in 1987. He argued that the trust was for the long term benefit of his family. Because Mr Charman was a potential beneficiary of the trust the Court of Appeal took into account the assets even though there had not been a history of distribution of assets from the trust to Mr Charman.

It seems now that a discretionary trust that is established during a marriage will be taken into account upon divorce if one or both parties to the marriage are potential beneficiaries. The Court may also vary the terms of the trust to allow the other party to the marriage to benefit from the trust.

Very careful thought therefore needs to go into how such trust are set up when they are created during a marriage if they are not to be taken as a resource. The more control the settler has over the trust then the more likely it is to be taken into account. Couples who have already set up such trusts need to be aware of this decision and take advice on whether a review is necessary.

Janet Simpson, Head of Family Law at Simpson Sissons & Brooke LLP, says “This is a very important decision affecting married couples with assets in discretionary trusts. It is important that couples review their position now.”

Pre-marital Contracts, or Pre-Nuptual Agreements as they are perhaps better known, are not binding under English Law.

The logic behind this is that because marriage is, in theory, for life it would be against public policy to plan or make arrangements for if it failed.

In view of the fact that more than one in three marriages end in divorce, that theory is based on ideologies which do not hold sway in today’s modern society.  It is also at odds with many other nations.  Indeed in many countries it is a matter of routine to draw up a pre-marital contract.  Such a document should not be seen as being adversarial but as a useful tool to declare the manner in which a couple wish to hold the property which they have or which they may acquire and may also delineate the scope of claims if the marriage breaks down.

Gradually there has been more talk amongst the judiciary of the need for some form of binding pre-marital contract, particularly when many divorces now involve parties of different nationalities.

Therefore, whilst such contracts technically lack the force of law, it is possible that a well drafted contract would have a significant effect in any divorce settlement.  What is absolutely clear is that if you do not have a pre-nuptual agreement there would be nothing that the Court could consider even if it was prepared to do so.

It is perhaps therefore better to consider drawing up such a document when you and your spouse are on good terms and there is no acrimony.  When couples divorce, the over-riding aim is to achieve “fairness” and if a couple have that in mind when drawing up a pre-nuptual agreement, then it is more likely to be acknowledged by the Court.  Of course there are always going to be situations where it would be wrong to enforce such a contract, say if children had been born and no consideration had been given to them.  Again this is something that a couple should take into account when drawing up such an agreement.

The benefits are numerous not only in terms of providing certainty, but also saving costs and considerable possible acrimony.

The recent decision of Stack and Dowden in the House of Lords raises the presumption that where a couple buy a property in their joint names they will share the proceeds equally unless they specify in precisely what shares they want to hold the property.

As in the case itself one party could put more money down initially by way of deposit and then contribute more when the parties lived together but if they did not state in writing what they intended then the presumption would be on equality. It is on the party trying to assert a greater share that the burden of proof lies.

No mean feat when a sale might be taking place many years after the purchase. Couples who intend to buy a property in joint names are urged to consider seriously how they want any future proceeds dividing and ensure that it is recorded at the time of purchase.

Enduring powers of attorney have been with us for over 20 years and by now most people will have had some experience of what they are, either through personally making one themselves or through a close friend or family member making one. For the uninitiated, the EPA is a legal document under which a person can appoint someone else to deal with their financial affairs for them. However from 30th September 2007 they will be no more.

The new Mental Capacity Act originally planned to do away with Enduring Powers of Attorney in April 2007 and replace them with Lasting Powers of Attorney. However due to delays in agreeing the final format of the new LPA’s the change over date is now to be 30th September 2007.

One thing we do know for certain is that the new document will be much longer than the existing EPA document. An EPA is 4 pages in length whereas it is rumoured that the new LPA will be over 20 pages.

The new LPA's will allow people to appoint attorneys to take decisions relating to welfare issues as well as financial issues. Whilst this is an improvement on the current system (which only allows attorneys to make financial decisions) many people may not want to appoint the same people to make both welfare and financial decisions for them, in which case it will be necessary to make two LPA’s.

Those who have experience of EPA’s will know that it is possible to use them without the document having been registered at Court while ever the person who made the EPA remains of sound mind. Under the new system LPA’s will only be effective once they have been registered with the Court.

Most lawyers working in this area of the law agree that the new LPA’s will theoretically be an improvement on the current system but acknowledge at the same time that, from the client’s point of view, the cost of making an LPA under the new system could easily be 4 or 5 times more than the cost of making an EPA under the current system because of the additional legal work that will be required.

The good news is that EPA’s made before 30th September 2007 will remain valid after that date so act now before it’s too late!

The Lord Chancellor has released a consultation paper aimed at streamlining the compensation claims process. Whilst leaving the small claims limit at £1000 for personal injury cases he has proposed an extension to the fast track to include cases up to £25000.

This means no change for the most minor of personal injury cases where costs are not recoverable and leaves access to justice for those whose claims fall just over the £1000 limit by allowing the recovery of legal costs as applies now. Insurance companies had been asking for the level to be raised to £2500.

However, there is also a proposal for a more streamlined claims process in the bracket affecting claims valued at between £1000 and £25000. This, it is proposed, will involve a system expected to include early disclosure of the claimant’s case on forms to be submitted to insurance companies and a system of fixed costs in the most straightforward of cases.

The consultation period remains open until July this year with the Lord Chancellor intending to bring in the changes by the end of 2007.