JOHN SZEPIETOWSKI https://www.szepietowski.com Wed, 21 Sep 2022 16:30:06 +0000 en-US hourly 1 https://wordpress.org/?v=5.7.6 John Szepietowski gives an update on Building Safety. https://www.szepietowski.com/john-szepietowski-gives-an-update-on-building-safety/ Wed, 21 Sep 2022 16:30:06 +0000 https://www.szepietowski.com/?p=1701 After the Grenfell Tower fire in June 2017, building safety has been of significant public importance. As such, the Government introduced the Building Safety Scheme. This scheme had the aim of removing and replacing all unsafe cladding from high-rise residential buildings. The government pledged £1 billion in March 2020 and £3.5 billion in February 2021 to support the remediation of unsafe non-ACM (Aluminium Composite Material) from residential buildings of 18 metres and over. Now, the government has pledged further funds in the form of an agreement with developers. On 13 April 2022, the government announced it would raise up to £3 billion through a Building Safety Levy over the next ten years and developers will contribute a minimum of £2 billion. These funds will aid in the remediation of unsafe non-ACM cladding in buildings of 11 to 18 metres. This should ensure the development of high-rise residential buildings, even when those buildings developers cannot be found.

These remediation works were given legislative significance on 05 July 2021, when the Building Safety Bill was published. This Bill creates much wider liability for building owners, developers and manufacturers. It has recently been amended with the Building Safety Act 2022 coming into force on 28 June 2022. Michael Gove, then-Secretary of State for Levelling Up, Housing and Communities, states that the aim of this Act is to ensure that those who profited, and continue to profit, from the sale of unsafe buildings and construction products must take full responsibility for their actions and pay to put things right. As such, leaseholders are now legally protected from bills which demand they pay to make their homes safe. This legislation, also, now applies to blocks of 11 metres and above.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

 

This information was correct as at July 2022

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John Szepietowski Discusses the Legal aid cuts and threats to the criminal bar https://www.szepietowski.com/john-szepietowski-discusses-the-legal-aid-cuts-and-threats-to-the-criminal-bar/ Tue, 20 Sep 2022 08:35:15 +0000 https://www.szepietowski.com/?p=1698 The Criminal Bar Association (CBA) is carrying out indefinite strike action, escalating its protest to the government’s proposals on criminal legal aid. Since April, hundreds of barristers have adopted ‘no returns’ as part of a push for the government to uplift rates by 25%. In June this was extended to include days of:

  • court walkouts
  • refusing to accept new instructions

The action is expected to grind the system to a halt, with a backlog of over 60,000 cases not seen to and 6,000 court hearings disrupted. This includes many cases which are of a deeply urgent nature, including many held on remand awaiting trial who cannot afford to remain incarcerated indefinitely awaiting the opportunity to offer a defence to the allegations against them.

 

The strikes come in response to an ongoing crunch to the criminal bar which disproportionately affects junior members and those who take on low-fee legal aid work often for the most vulnerable defendants. The CBA has said that in the first three years of practice, a full time criminal barrister earns an average of £12,200 per year and given that the bar is primarily a self-employed profession they don’t have the additional protections of National Minimum Wage, maternity pay, holiday pay, sick pay etc.

 

It is not uncommon for junior members of the criminal bar, particularly those who have finished the period of pupillage (a year long training contract in which pay is protected by a pupillage award) to find themselves trying to scrape a living well below minimum wage despite an often overwhelming work load of serious and important cases. As a result recent reports suggests that as many as one in six young barristers are considering leaving the profession.

 

Whilst cuts to legal aid have had a hugely detrimental effect in the legal professionals the damage done to those who depend on legal aid representation is even more egregious. 46% of the British public say that they do not understand the legal aid system and do not know how to receive support. Without access to free, clear, early, legal advice, particularly in complex cases dealing with immigration, family, or litigation issues claimants and defendants often take disputes into the courtroom without the right preparation which only drives up costs, creates delays, and fails to provide just or fair results. It hardly feels necessary to point out that the majority of those dependant on legal aid are by definition the most vulnerable, those on low income backgrounds. Current government plans suggest that any person with over £1,000 in savings will be required to contribute to their legal costs. 72% of legal aid clients coming from black and other minority ethnic backgrounds, many are mothers, suffering from disability, or have other significant vulnerabilities which have contributed to their not being able to afford independent legal representation in the first place. These people will be the worst affected if legal aid cuts continue.

 

Cuts to legal aid came into effect on 1 April 2013 as part of the government’s plan to save £350 million a year. The changes meant that some types of cases, such as divorce, welfare benefits, child contact, housing law and employment were no longer eligible for public funds. At their introduction some 80% of the population were eligible for legal aid protection but in 2007, only 27% of the population was eligible and this has only continued to dwindle.

 

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski September 2022

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John Szepietowski considers the Debt Respite Scheme (Breathing Space) https://www.szepietowski.com/john-szepietowski-considers-the-debt-respite-scheme-breathing-space/ Fri, 16 Sep 2022 14:44:29 +0000 https://www.szepietowski.com/?p=1695 The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, commonly known as Breathing Space, commenced on 04 May 2021. It is created with the aim of giving people in debt the time and space to stabilise their financial position, obtain advice and develop a solution. There are two types of breathing space available:

  1. Standard breathing space

This scheme is available to anyone with qualifying debt. They will be given legal protection from creditor action and certain interest and charges on their debt will be frozen. Standard breathing space lasts for 60 days.

  1. Mental health crisis breathing space

This scheme is only available to someone who is receiving mental health crisis treatment. This scheme gives stronger protections and lasts as long as the person’s mental health crisis treatment, plus 30 days. There is no limit to how many times a debtor enters into this scheme.

Debt that will not qualify include secured debts (like mortgages, however, mortgage arrears will apply), debts incurred from fraud, liabilities to pay fines imposed by a court, obligations for from a confiscation order, child maintenance or obligations under an order made in family court proceedings, a crisis or budgeting loan from the social fund, student loans, damages they need to pay for death or personal injury caused to someone else, advance payments of Universal Credit, council tax liabilities have not yet fallen due.

Creditors will be informed by electronic service that their debt is in breathing space. Upon receiving this, the creditor must stop:

  • the debtor having to pay certain interest, fees, penalties or charges for that debt during the breathing space
  • any enforcement or recovery action to recover that debt, by you or any agent you’ve appointed
  • contacting the debtor to request repayment of that debt, unless you’ve got permission from the court

Please note that interest can still be charged on the principal in secured debt, but not on the arrears.

 

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

Kieran Pezzack

 

This information was correct as at July 2022

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John Szepietowski explains defamation https://www.szepietowski.com/john-szepietowski-explains-defamation/ Fri, 09 Sep 2022 08:38:53 +0000 https://www.szepietowski.com/?p=1691 Defamation is the act of making a statement that injures a third party’s reputation. A defamatory statement can be made in two ways. A defamatory statement is called libel if it is communicated to a third party in writing, print or some other permanent form. A defamatory statement is called slander if it is communicated to a third person orally or some other transient form.

Whilst a public body cannot bring a claim for defamation, an individual or a company can bring a claim if they satisfy the test from section 1(1) of the Defamation Act 2013 (the “Act”). Namely, a statement has to be made that has caused or is likely to cause serious harm to their reputation. Section 1(2) provides greater explanation of serious harm to bodies that trade, as having caused or is likely to cause the body serious financial loss.

Section 2 – 7 of the Act provide various defences to an action for defamation. These defences are:

  1. Truth
    • It has to be shown that the imputation conveyed by the statement is substantially true. It is not necessary to prove that every point is true, only the allegations that cause serious harm to the claimant’s reputation.
  2. Honest opinion
    • The defendant has to prove that their statement clearly shows the allegation is an opinion rather than a statement of fact.
  3. Publication on matter of public interest
    • Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, [1999] 10 WLUK 903 established the test for this defence. The statement must be made in the public interest. The defendant must be able to show he met the standard of responsible journalism (to prove he reasonably believed the statement was in the public interest). The statement should be assessed in reference to the non-exhaustive list of factors set out in the case. This test has been clarified further in subsequent cases.
  4. Operators of websites
  5. Peer-reviewed statement in scientific or academic journal etc
  6. Reports etc protected by privilege
    • If a report is protected by privilege, then it will be protected from a claim for defamation.
    • You can get absolute privilege which provides a complete defence (ignoring whether the statement is untrue and malicious). For example, absolute privilege would apply to parliamentary or judicial proceedings.
    • You can get qualified privilege. This protects the defendant from a defamation claim unless malice can be proved. For example, qualified privilege will apply to a fair and accurate report on court proceedings.

 

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

This information was correct as at July 2022

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Audley Chaucer to take part in Will Aid 2022 https://www.szepietowski.com/audley-chaucer-to-take-part-in-will-aid-2022/ Tue, 06 Sep 2022 08:50:05 +0000 https://www.szepietowski.com/?p=1688 We are delighted to announce that Audley Chaucer will be taking part in the Will Aid 2022 campaign, which is set to commence in November.

 

In the 2021 Will Aid campaign, Audley Chaucer raised a total of £10,330 for nine charities associated with Will Aid, including Save the Children, NSPCC and British Red Cross. We were subsequently recognised as the third highest donating firm in the United Kingdom for that year. This, also, brings Audley Chaucer’s total sum raised for Will Aid to £23,650. Our thanks to Larissa Bourgi and Joseph Beams of Audley Chaucer for their hard work in making this possible.

 

Our thanks go to Will Aid for providing us with this opportunity and we look forward to working with Will Aid once again.

 

If you have any questions about drafting a Will or would like to know more about the Will Aid scheme, or for further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page

 

John Szepietowski

 

September 2022

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John Szepietowski provides an update on driving rules and offences https://www.szepietowski.com/john-szepietowski-provides-an-update-on-driving-rules-and-offences/ Tue, 06 Sep 2022 08:31:50 +0000 https://www.szepietowski.com/?p=1685 In January 2022, new rules, offences and penalties were introduced in the UK that drivers must be aware of. These are as such:

  1. Stricter laws have been implemented on the use of mobile phones

If you are caught handling your phone (hands-free access is allowed) you will receive a £200 fixed penalty fine and six points on your licence. The one notable exception is that you are allowed to use your phone at make contactless payments at tolls and drive-throughs.

  1. Councils have been given greater power to prevent minor traffic offences

Councils can issue £70 fines for “moving traffic” offences. This includes stopping in yellow box junctions, performing illegal turns and driving in cycle lanes.

  1. All new homes will have electric vehicle charging points and new cars will have Intelligent Speed Assistant systems.

The Intelligent Speed Assistant systems will inform the driver when they are breaking the speed limit. In some cases, the system might even reduce the cars speed.

  1. A speed limit of 20 mph is being implemented on busy pedestrian and residential areas

These areas will also see 20 mph speed cameras being installed.

  1. Clean air zones are expanding and being implemented by multiple cities

If your car is non-compliant, there is a charge to enter these areas. It is worth noting, the government will fund eligible individuals and organisations to assist them in moving to a compliant vehicle.

  1. The Highway Code has made some minor changes that give more protection to those that are more vulnerable.
  • Rule H1: hierarchy of road users – The greater risk you pose to another road user, the greater your responsibility is on the road.
  • Rule H2: clearer and stronger priorities for pedestrians – At a junction, drivers must give way to pedestrians crossing or waiting to cross a road from which you are turning in to or out of.
  • Rule H3: new priority for cyclists – Drivers must give way to cyclists, horse riders or horse-drawn vehicles going ahead when turning in to or out of a junction or changing direction or lane. This applies whether they are using a cycle lane, a cycle track, or riding ahead on the road.

 

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

 

This information was correct as at July 2022

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John Szepietowski discusses whether long COVID amounts to a disability https://www.szepietowski.com/john-szepietowski-discusses-whether-long-covid-amounts-to-a-disability/ Fri, 02 Sep 2022 08:17:18 +0000 https://www.szepietowski.com/?p=1683 The recent case of Mr T Burke v Turning Point Scotland rules that, yes, long COVID does amount to a disability.

This case involved Mr Burke suffering from various symptoms, including fatigue and severe headaches, as a result of post viral fatigue syndrome (long COVID). This led to him being off work from November 2020 until he was dismissed in August 2021. Upon his dismissal, Mr Burke brought a claim for disability discrimination.

Following the Equality Act 2010, a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (section 6(1)). Substantial is defined to mean more than minor or trivial (section 212). Long-term is defined to mean that it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected (schedule 1, section 2(1)).

At a preliminary hearing, the tribunal applied Mr Burke’s symptoms to the above statutory definition. The tribunal found that Mr Burke’s condition had a long-term substantial adverse effect. As such, Mr Burke was disabled on the basis of his long COVID. Therefore, he was entitled to pursue a claim for disability discrimination and unfair dismissal.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

This information was correct as at July 2022

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John Szepietowski considers ‘one lawyer divorce’ https://www.szepietowski.com/john-szepietowski-considers-one-lawyer-divorce/ Thu, 01 Sep 2022 11:58:38 +0000 https://www.szepietowski.com/?p=1681 The Divorce, Dissolution and Separation Act 2020, that recently came into force on 06 April 2022, reformed the area of divorce. It removed the concept of fault and allows couples to make joint applications to end the marriage. This newly created ‘no-fault divorce’ has created a new approach to divorce proceedings and potentially litigation as a whole. The ‘one lawyer divorce’.

‘No-fault divorce’ illustrates the developed understanding that many divorces are not approached by bitter parties with malintent for the other and, as such, do not have to develop into conflict. For happy clients whose only intention is getting a fair settlement the ‘one lawyer divorce’ is a cheaper and, as it removes the risks of going to court, a more certain option.

It is, also, a benefit to law firms who gain greater profit by doubling their client base. Before the firm can reap the rewards of representing both clients, they must ensure the model they set up is compliant with current regulations. Especially, the SRA rules that prevents solicitors from acting if there is an own-interest conflict or a significant risk of one and to always act in the best interest of your client.

The ‘one lawyer divorce’ raises questions for the development of dispute resolution as a whole. If an emotional procedure like divorce can be amicably worked through, to find a fair resolution; why could other civil justice matters not?

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski

This information was correct as at July 2022

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John Szepietowski discusses pensions being used to pay judgement debts. https://www.szepietowski.com/john-szepietowski-discusses-pensions-being-used-to-pay-judgement-debts/ Tue, 30 Aug 2022 08:28:54 +0000 https://www.szepietowski.com/?p=1678 This issue was first raised in Blight v Brewster [2012] EWHC 165 (Ch). In this case, a claimant was trying to enforce a judgement debt against the defendant. The defendant’s pension was set up so that he was entitled to draw down 25% as a tax-free lump sum. The court held that claimant could claim this lump sum by the following method:

  1. The court used a mandatory injunction to make the defendant delegate his power of election for drawdown to the claimant’s solicitor.
  2. The court made a direction authorising the claimant’s solicitor to make the election for drawdown of the lump sum.
  3. The court made a third-party debt order. This took effect when the election was made and caused the lump sum to be due from the pension fund to the defendant.

This case created a new precedent for cases where the creditor is seeking enforcement for lumps sums, for example judgement debts or maintenance arrears. We have seen the above method being applied in multiple recent cases, including Lindsay v O’Loughnane [2022] EWHC 1829 (QB). In this case, the defendant had a judgement debt of £565,000 plus interest and costs. At first, the claimant tried to get a third-party debt order against the defendant’s personal pension. However, the pension was not currently owed to the defendant and so, no order could be made. Therefore, the claimant sought an order requiring the defendant to:

  • Make a written request to all of his pension providers that when they draw down his pension fund (on his retirement or when he reaches 55, whichever is earliest) it must be directed to the claimant.
  • If the defendant does not make the request, a person is to be appointed as agent to make the request.
  • Make a provision for the payment of any tax that will fall due. This is required because the defendant’s entire pension was being claimed, unlike in Blight v Brewster where only the tax-free lump sum was being claimed.

The court held that it had the jurisdiction to make this order under section 37(1) of the Senior Courts Act 1981. This was based on the fact that it was just, equitable and convenient to make the order.

Please, also, note the following cases that address this matter:

  • Bacci v Green [2022] EWHC 486 (Ch)
  • Brake and another v Guy and others [2022] EWHC 1746 (Ch)

 

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

John Szepietowski

This information was correct as at July 2022

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John Szepietowski explains wrongful dismissal https://www.szepietowski.com/john-szepietowski-explains-wrongful-dismissal/ Wed, 24 Aug 2022 09:12:35 +0000 https://www.szepietowski.com/?p=1675 Wrongful dismissal is where an employer dismisses an employee in breach of the employee’s employment contract. The most common wrongful dismissal claims arise out of failure to provide the employee’s required notice period or notice pay.

If successful in claiming wrongful dismissal, the employee will be awarded damages to the value of their pay and other benefits that they should have been intitled, had they not been wrongfully dismissed.

If an employee is expecting to gain up to £25,000, they can claim for wrongful dismissal with the Employment Tribunal within 3 months (less 1 day) from the date the contract was terminated. This can be done by lodging the claim with ACAS.  If the employee expects to gain more than £25,000, they will have to bring the claim to the courts. Employees have 6 years from the date the contract was terminated to bring their claim to the court.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.

 

John Szepietowski

This information was correct as at July 2022

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