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  • George Ide LLP
  • October 05, 2016 05:15:21 PM
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The George Ide LLP Blog specialises in providing a host of information regarding personal injury claims, what to do in the event of medical negligence, personal grievances and a wide range of other legal matters. From wills and probate to why you should consider an insurance policy, the George Ide blog is designed to provide helpful advice and insight into a number of legal situations.

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    Landowners have strategic choices when it comes to agreeing property development deals

    Option agreements and promotion agreements have become increasingly popular both with landowners and property developers – so what are they, when can they be used, and what differentiates one type of agreement from the other?... The post Landowners have strategic choices when it comes to agreeing property development deals appeared first on George...

    Option agreements and promotion agreements have become increasingly popular both with landowners and property developers – so what are they, when can they be used, and what differentiates one type of agreement from the other?

    Option and promotion agreements are ways of extracting capital from land with development potential. Both types of agreement give entitlement to an interest in the land – either to the developer by way of an option, or to a third party engaged to promote the sale of the land. However, the two types of agreement differ significantly.

    Under an option agreement, a landowner grants a developer the right to purchase the property for a set price within a defined period. This type of agreement is often dependent on the developer meeting certain criteria such as successfully obtaining planning permission. If the developer has a change of heart or is unable to fulfil the imposed conditions the option may expire and, as a consequence, the land remains unsold. Under an option agreement, the interests of landowner and developer are sometimes perceived to be at odds with each other – while the landowner wants to achieve the highest possible price for the land, a successful developer will want to buy the land at the lowest possible price.

    Under a promotion agreement, a land promoter agrees to work as the land owner’s agent. For example, the promoter may apply for planning permission, create a marketing pack, promote the land for development on the open market, negotiate prices, terms and conditions, and deal with offers. In return, the promoter receives a fee, sometimes expressed as a proportion of the net sale proceeds – under a promotion agreement it is beneficial for the landowner and developer to work together in order to realise the best possible price for the land.

    So, when should you use one or other of these two significantly different options? Your decision is likely to hinge on the specifics of each case, alongside factors such as the developer or promoter’s ability to develop the land. Issues around the landowner relinquishing control of the land also come into play, and it is important at the outset the agreement you choose is drafted with care to ensure it accurately reflects all parties’ intentions and is appropriate for your situation.

    For more information and expert advice on property and business law, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk

    Danni Jhurry-Wright. Partner. Head of Commercial Property & Business Services

     

    The post Landowners have strategic choices when it comes to agreeing property development deals appeared first on George Ide.


    Look before you lop – ignoring a tree preservation order could land you in court under the 2002 Proceeds of Crime Act

    If, like me, you would have thought the 2002 Proceeds of Crime Act was all about recovering funds from the proceeds of fraud or drug deals, think again. As an example, a businessman has been... The post Look before you lop – ignoring a tree preservation order could land you in court under the 2002 Proceeds of Crime Act appeared first on George...

    If, like me, you would have thought the 2002 Proceeds of Crime Act was all about recovering funds from the proceeds of fraud or drug deals, think again.

    As an example, a businessman has been ordered to pay almost £40,000 after illegally lopping back a mature oak tree in his back garden. Mr Wilson added a Juliet balcony to the master bedroom of his luxury Dorset home; unfortunately, his balcony was shaded by a 42ft oak tree that was the subject of a tree preservation order.

    Ignoring the order, Mr Wilson cut several branches from the tree without first obtaining the necessary consent from his local authority – the oak was left looking butchered, with tree experts saying it may never recover.

    After a neighbour reported the offence to Poole Borough Council, proceedings were brought against Mr Wilson for causing wilful damage to a protected tree. On pleading guilty, he was fined £1,200.

    Poole Council then prosecuted him under the Proceeds of Crime Act in an attempt to seize the amount of money by which he had benefitted from his crime by increasing the value of his home.

    Two independent valuations suggested the property had risen in value by between £21,750 and £30,000; the judge ordered him to pay £21,750 to the taxpayer in respect of the proceeds of his crime, as well as a further £15,000 in legal costs.

    According to the Poole Council enforcement team, this is perhaps the first time in the UK that a Proceeds of Crime case has been based on the benefit of improved light to a property as a consequence of the destruction of a tree.

    The case hinged on how much sunlight reached the back of Mr Wilson’s property and an analysis of why he was prepared to climb a 40ft oak tree in order to chop off some of its large branches. The court seems to have agreed with the council that the only logical conclusion was that his motivation was purely to allow the sun’s rays to reach across his back garden and throw sunlight on his Juliet balcony.

    In such a case, the most Mr Wilson could have been fined was £2,500 – examining his case in court under the Proceeds of Crime Act took the matter to another level by considering the benefit of his criminal activity.

    For support and advice on a wide range of legal matters, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk.

    Mike Berry. Residential Property department.

    The post Look before you lop – ignoring a tree preservation order could land you in court under the 2002 Proceeds of Crime Act appeared first on George Ide.


    Mental capacity – the devil is in the detail

    I suspect I am not alone in acknowledging that the issue of mental capacity can be devilishly challenging. However, I am strongly of the opinion that all professionals working in the field of capacity carry... The post Mental capacity – the devil is in the detail appeared first on George...

    I suspect I am not alone in acknowledging that the issue of mental capacity can be devilishly challenging. However, I am strongly of the opinion that all professionals working in the field of capacity carry a grave responsibility, in the interests of justice and of human rights, when seeking to protect some of the most vulnerable in our society.

    In this article, I will seek to consider fundamental points, share case studies and recollections from my 25-year career specialising in ‘walking wounded’ frontal lobe brain injury claims, and pick up on some points of importance from a couple of recent COP cases.

    I see myself as something of an old war horse; my vintage can be judged by reference to the fact that during my articles of clerkship, as it then was, my supervising partner was involved in the renowned Masterman-Lister (Masterman-Lister v Brutton and co [2002] EWCA) litigation, which involved a Hampshire law firm. The case featured an attempt to reopen a ten-year old personal injury claim, citing incapacity on the part of the claimant – the Court of Appeal decided that the key question was whether a person has capacity to make a relevant decision at the relevant time. Over the years cases such as this have demonstrated that failing to get to grips with capacity can have perilous consequences. This case is still cited in the Civil Procedure Rules as important in the context of interpretation of the Mental Capacity Act 2005. More recently, I conducted a personal injury claim that was later reported as the Court of Protection case of Watt v ABC [2016] EWCOP in which Mr Justice Charles provided guidance as to the approach that should be taken when considering whether a fund of compensation should be managed within the Court of Protection or through a protective trust fund.

    The Mental Capacity Act of 2005 sets out five principles designed not only to protect people who lack capacity to make particular decisions but also to maximise their ability to make decisions:

    1. A person must be assumed to have capacity unless it is established that he or she lacks capacity
    2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success
    3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision
    4. An action taken or decision made under this Act for, or on behalf of, a person who lacks capacity must be in his or her best interests
    5. Before an action is taken or a decision made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

     

    Mental capacity assessments made under the Mental Capacity Act of 2005 will ascertain whether a person can: understand the information they are given; retain that information for long enough to make a decision; weigh up the information; communicate their decision – and mental capacity is decision-specific.

    The mental capacity test has two stages: firstly, there must be proof of an illness or injury that affects the way the person’s brain or mind works. Secondly, it must be demonstrated that the proven disorder of the mind renders the person unable to make a specific decision at a specific time, although this second stage applies only if the person has been given enough support to try to make the decision themselves.

    Clearly this is not a straightforward area – necessarily our work largely involves dealing with the shades of grey in which lawyers thrive.

    My very first catastrophic brain injury case, which involved Robin de Wilde QC of Masterman-Lister fame, was partly concerned with capacity. Of course, in many brain injury claims, lifetime COP costs amount to very substantial sums, and as a consequence tend to be highly contentious and this case was no exception. My client’s first barrister – who, interestingly, was later successfully sued for negligent under-settlement under similar circumstances – advised my client, who was in his 20’s, to accept an offer of £50,000 damages. At that time, the claim was based upon the opinion of a then pre-eminent consultant in neurorehabilitation whose view was that my client should be encouraged to think more positively about his situation: “His prognosis is good, and I do not believe that he needs any professional support.” In advising my client to sack the barrister and the expert I was acting on gut feeling, really. Having appointed Robin de Wilde QC, and continuing as a litigation friend, we succeeded in a claim for COP costs and achieved an approved settlement of £1.1 million. I regularly cite this case as I still find it extremely instructive.

    Fundamentally, assessing mental capacity comes down to gaining an understanding of a person’s thought processes. While capacity is decision-specific, it is very important to test out how a client’s mind is working, how they think things through, how they seek support, and how they act on that support to enable the making of a sound decision at whatever level, upon whatever subject. In this case, despite offers of help my client insisted on organising his own move to a rented flat. It transpired that he spent his first night in his new place, in the dark, with no services, no furniture, laying on the floor in his sleeping bag, surrounded by lit candles. It was unsurprising, therefore, that we were subsequently able to establish incapacity. This client, who was not in the habit of asking for help anyway, did not understand his vulnerability nor realise he was in need of assistance. He struggled to rationalise, to weigh and balance information. He lacked insight. He gave the outward appearance of being fine, which is not uncommon. However, he clearly did have the capacity to decide where to live – in Southsea, Hampshire – and to choose wisely with whom to spend his time, as evidenced by the his support ‘buddy’ who worked with him for around 20 hours each week and who ended up providing enabling support for many years. This capacity, that of deciding where and with whom to live, is very important in the context of health and welfare decisions, of which more later in this article.

    I have always thought it fundamental to capacity to consider whether a client understands the concept of friend versus foe. For instance, if a claimant is considering whether to accept a compensation offer of £50,000 yet are more interested in what their mates have to say about it than in listening to their lawyer’s opinion, then something might be amiss. A few years ago, an injured client of mine was absolutely furious with me for advising him, as a litigation friend, not to accept a £75,000 settlement. He said: “My mates tell me that I’m fine and my case needs sorting out … Take the money!” He regularly phoned the defence solicitor to make threats against me and called me in person most weeks, ranting down the phone at me – he saw me as a block, or barrier, between him and his money. However, it became clear in the final body of evidence that he was by reason of his brain injury (neuro cognitive, organic behavioural and personality disorder) fixated on me as ‘the enemy’. It was therefore impossible to reason with him, stuck as he was in his mind that all he wanted was his money. His litigation friend, a family member, was in an unenviable position and quite understandably did not feel comfortable challenging him. He simply would not listen. Applying the 2005 Mental Capacity Act, he could not weigh information in order to arrive at the decision and he could not be supported in the decision making process. We eventually succeeded in a securing a substantial seven-figure settlement that included long-term COP provision.

    Taking very detailed, focussed and analytical witness statements is, I have found, of vital importance as they can provide a window into the injured person’s mind. For instance, close friends might explain that a client will unquestioningly do anything he is asked by one of his trusted friends; a case manager might report that the client has said that his problem is not his brain injury but his solicitor.

    If I attempt to advise and seek instruction from a client who is thought to lack litigation capacity, I know in advance that I will need to keep a very careful note. If I am taking a client through a funding agreement, for example, I will give them a short succinct summary of the key points, including the fact that if they lose their case, they will pay nothing. If I am met by a look of utter confusion or a blank stare, which is not uncommon, this can be an early clue to all not being well. If I am unsure, I tend to enter into the funding agreement with the injured person in their own right and also through their litigation friend, depending upon the eventual determination of capacity. The case of Blankley (Blankley v Central Manchester…NHS Trust [2015] EWCA) provides important protection to a lawyer in that first meeting situation: a funding agreement entered into with someone who is later determined to lack capacity remains valid – although, in law, a contract can be declared void upon clear evidence of incapacity at the time it was entered into.

    As for considering protected beneficiary status – determining whether a Court of Protection deputy should be appointed – in these cases I seek to test out whether the injured client understands the fundamentals of ensuring a fund to meet lifetime needs. For instance, if I were advising my client about a fund to provide paid enabling support to ensure a good quality of life and my client were to say: “When I get my money, I won’t t spend it straight away, I’ll save it for when I am older,” that probably raises at least as many alarm bells as the client who says: “I’ll buy a Porsche and then jet off with my mates to blow some money in Las Vegas!”

    I recently had a lively debate with an eminent consultant neuropsychiatrist about the Mental Capacity Act 2005 fundamental of ensuring sufficient support is in place to enable a decision to be made. If, with support, the person can understand and weigh and balance the relevant information, then make and communicate a decision, that is fine. However, in practice I have found it wise to ask who whose decision it is: is this my client’s decision or are they merely articulating the opinion of someone they trust? In my experience, if a client engages rationally in a conversation and asks good questions, that is a positive sign.

    I am mindful that in the domain of health and welfare matters, such as where a person will live and with whom or whether they will be deprived of their liberty, healthcare and legal professionals should be particularly cautious, especially when considering a client’s human rights. For instance, a brain-injured young man may be inclined to display impulsive or irrational behaviour, struggle to deal with day-to-day situations, or be unable to think their way through a financial or legal conundrum, yet at the same time they could be perfectly capable of knowing their own mind and making rational choices when it comes to the fundamentals of life. Psychiatrists and rehabilitation case managers ignore at their peril a client who says: “I am not going into a unit, I don’t want to be shut away, I want to be working, doing stuff, feeling good about myself, with my girlfriend and my family, and with my support worker who is a top man.”

    Finally, I would like to consider a few points from recent cases. In Re A (Capacity: Social Media and Internet Use: Best Interests [2019] EWCOP2 and Re B (Capacity: Social Media: Care and Contact [2019] EWCOP3 (Cobb J), the court considered the need to focus on ‘salient’ factors when looking at the ‘relevant information’ that must be understood, used and weighed by the claimant in order to arrive at a decision about internet and social media use. These were held by Cobb J to include: “If you place rude or offensive material or images on social media, or share those images, other people might be upset or offended.”  Although the capacity point was quite niche, this case provided an example of clear judicial thinking about the thought processes and level of understanding that underpin a sound decision.

    In Re B (above), Cobb J offered the following general observation: “I have reminded myself of the importance of establishing the causative nexus between the impairment of mind and the inability to make decisions.” This is a founding principle of the 2005 Mental Capacity Act.

    The case of Southend-on-Sea BC v Meyers [2019] EWHC (Hayden J) considered the decision-making capacity of a vulnerable father in an ‘unhealthily’ close relationship with his son. The judge held: “The admirable features of Mr Meyers’ personality have become confused and distorted in a relationship in which the two men have become so enmeshed that the autonomy of each has been compromised. In reality, KF exerts an influence over his father which is malign in its effect if not its intention. The consequence is to disable Mr Meyers from making a truly informed decision, which imparts directly on his health and survival.” It is worth focussing on the words “truly informed” – we often ask ourselves whether, even if someone does not follow advice, they ‘get it’. Of course, individuals are entitled to make what may turn out to be a foolhardy decision but they must be able to understand, rationalise, and at least be capable of seeing another’s point of view, even in a simplistic way.

    As an eminent QC once said to me, it is all about understanding the thought processes.

    Paul Fretwell. Partner & Head of Personal Injury

    Paul Fretwell is a solicitor and Head of Personal Injury at George Ide LLP, Chichester. He is an APIL-accredited senior litigator and brain injury specialist and has been a member of the Law Society’s personal injury panel since 1994.

    The post Mental capacity – the devil is in the detail appeared first on George Ide.


    Celebrating one hundred years of women in the law

    Last year marked the centenary of votes for women – this year marks a different centenary: it is 100 years since women were admitted to the law profession. Although Eliza Orme became the first woman... The post Celebrating one hundred years of women in the law appeared first on George...

    Last year marked the centenary of votes for women – this year marks a different centenary: it is 100 years since women were admitted to the law profession. Although Eliza Orme became the first woman to gain a law degree in 1888 it was not until 1919, an astounding 31 years later, that women were permitted to take any part in the legal profession as solicitors, barristers or jurors, when the 1919 Sex Disqualification (Removal) Act made a dent in the legal glass ceiling and finally allowed women to call themselves lawyers.

    Sadly, the 1919 Act did not completely liberate women as they remained barred from the foreign and diplomatic services, but the new law paved the way for many of the achievements of women that are celebrated today – the professional success of Baroness Hale, the first female president of the Supreme Court, stands testament to the progress of women during the last 100 years.

    According to Law Society statistics, of all the new professionals who were admitted to the roll of solicitors in the year ending July 2018, 61.6 per cent were female and, looking at the total number of qualified solicitors across the UK, for the first time the proportion of women ever so slightly tips the scales at 50.8 per cent.

    Whilst we can celebrate the progress of women during the last century, the path is not completely clear: the disparity in the number of female law firm partners compared with their male counterparts cannot be ignored. But it is clear is that, as the imbalance itself is met by more ambitious and determined people, the path becomes more easily trod and the legal profession itself adapts and grows.

    I am proud to say that here at George Ide LLP nearly three quarters of our qualified solicitors are women; the firm appointed its first female partner, Ursula Watt, in 1988 and since then more women have followed Ursula into senior roles. Our Real Estate and Business Services Department is currently an all-female corporate law department, reflecting the positive and fruitful contribution that women have made to the profession during the last 100 years. For myself, with women lawyers flourishing, I look forward to being part of the profession over the coming years as it continues to evolve.

    For quality advice on a wide range of personal and commercial legal matters, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk.

    Aimee Ellery. Solicitor, Commercial property and Business Services.

     

    The post Celebrating one hundred years of women in the law appeared first on George Ide.


    Neurorehabilitation – an essential way forward for brain injury patients

    Neurological rehabilitation therapy – neurorehabilitation – teaches or re-trains patients how to recover or improve their communication skills and mobility, as well as other aspects of their daily lives. The main aim of such therapy... The post Neurorehabilitation – an essential way forward for brain injury patients appeared first on George...

    Neurological rehabilitation therapy – neurorehabilitation – teaches or re-trains patients how to recover or improve their communication skills and mobility, as well as other aspects of their daily lives. The main aim of such therapy is to get patients’ skills working at the highest possible level as a step towards adopting a positive mood and rebuilding their self-esteem.

    Neurological rehabilitation can offer all patients great help. It is a process that aims to optimise an individual’s participation in society and sense of wellbeing. With a focus on the patient as a person, goals are set in relation to social functioning, health, and wellbeing. As such, neurorehabilitation is not necessarily restricted to patients who are expected to recover, partially or completely – it is appropriate for anyone who has been left with long-term problems, and there is strong evidence supporting its effectiveness.

    For those who have suffered a traumatic brain injury, neurorehabilitation is essential because it can re-educate and help them cope with family, friends, work and leisure as independently as possible. Rather than being bound to a set process, therapy regimes focus on making plans and setting goals that are important and relevant to the patient’s own particular circumstances without imposing vague or subjective targets.

    An interdisciplinary process, neurological rehabilitation involves working closely with a range of relevant health professionals. It can produce real benefits in terms of functional improvement, fewer unnecessary complications and better coordination of services for patients.

    Therapists are able to work with individuals who have suffered a traumatic brain injury, tailoring treatment around their patients’ individual aspirations or according to goals that have been identified by their loved ones as important and meaningful to them. And neurorehabilitation can go beyond the traditional or ‘normal’ rehabilitation model to include as therapy music, art, aromatherapy, yoga and mindfulness.

    For neurological rehabilitation to be successful, timing is important. Compared with the usual pattern of care, intensive rehabilitation at an early stage not only aids recovery but also improves the outcome for patients with moderate to severe traumatic brain injury. Neurorehabilitation can bring hope to individuals who have sustained a traumatic brain injury – expert, experienced therapists work with them to help them rebound, recover and reconnect.

    George Ide’s specialist personal injury team works closely with individual case managers to ensure our clients receive the right treatments to help them achieve maximum benefit. For more information or for confidential advice about your case, contact us on 01243 786668 or email us at info@georgeide.co.uk.

    Emma Dryden. Solicitor, Personal Injury department.

    The post Neurorehabilitation – an essential way forward for brain injury patients appeared first on George Ide.


    Dangerous bad driving ruins lives – now’s the time to kick the habit

    A recent survey revealed tailgating, the practice of driving too close to the vehicle in front, as the UK’s most loathed driving habit. Amongst the 1,000 people surveyed, tailgating finished ahead of not indicating, leaving... The post Dangerous bad driving ruins lives – now’s the time to kick the habit appeared first on George...

    A recent survey revealed tailgating, the practice of driving too close to the vehicle in front, as the UK’s most loathed driving habit. Amongst the 1,000 people surveyed, tailgating finished ahead of not indicating, leaving full-beam headlights on at night, and cutting in. Interestingly, middle-lane hogging and drivers who refuse to let a vehicle pull out were further down the bad-habit list.

    While these practices are undoubtedly frustrating, each also poses a threat to road safety. Tailgating itself brings obvious risks – if a driver leaves insufficient space behind the car in front, they may not be able to stop in time if the vehicle ahead brakes. Most injury claims arising from accidents occur this way, although thankfully many of these injuries are minor.

    Failure to dip full-beam headlights can temporarily blind on-coming drivers and, if that coincides with the blinded driver braking or negotiating a bend, catastrophic consequences can ensue.

    Some drivers’ annoying bad habits such as failing to indicate or hogging a middle motorway lane might not in themselves seem dangerous, but who amongst us has not witnessed a hot-headed driver under-taking a middle-lane hogger? Nipping down the inside lane to pass a slower vehicle in the central lane can endanger all nearby road users.

    Perhaps unsurprisingly, older drivers were considered to be the most responsible group of drivers. Some 85 per cent of drivers aged 18-34 confessed to committing at least one of the top ten indiscretions – this figure dropped to 79 per cent among drivers between the ages of 35 and 54 and was lower still, at 68 per cent, amongst drivers older than 55 years of age.

    More worrying was the statistic relating to road rage, with 70 per cent of UK drivers recording that they experienced road rage at least once a week – an alarming 23 per cent said they were affected by road rage three or more times a week.

    It is difficult to identify the causes of such poor driving behaviour – perhaps busier roads and faster cars alongside the ever-increasing pace and pressures of modern life are to blame. But one thing is clear: it is far better to reach your destination two minutes late than not to reach it all.

    If you have been affected by a road traffic accident and would like help and support with an injury claim, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk.

    Paul Lewis

    Partner & Head of Accident Management

    The post Dangerous bad driving ruins lives – now’s the time to kick the habit appeared first on George Ide.


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