Legaleye Legal news and views ISSUE 1 SPRING 2018
from Coleman Solicitors
2 Fake holiday sickness firms
3 Digital privacy at work
Recent ruling may set precedent
DthNeAfatmesitliynCgoautrt 4 oFamily court judges in England are now Spring Sales
your consumer rights
able to order DNA tests to determine a
Court departs from
child’s parentage the ‘sharing principle’
in a divorce settlement
mThis follows two pilot schemes which were
A recent court ruling followed an
set up on the basis of anecdotal evidence increasing trend for financial
that courtroom arguments led to delays in settlements of divorcing couples
divorce cases, particularly where parentage to reflect more accurately the
was in question. contributions that each partner
made to the marriage.
eFindings from the pilots suggest that the
In this case, the marriage had been short,
tests mean judges can be more confident there were no children and the couple, in
when making decisions about children and, their early forties, had worked and
maintained separate finances. Although the
Dmost importantly, parents would be more couple’s basic salaries had been similar, the
likely to follow the court’s orders. wife had been paid work bonuses of £10m.
She contended that the husband had not
contributed, even indirectly, to the
generation of that income.
The funding for DNA testing in private family l Compulsory family mediation information The court ruled that an automatic or blind
law cases follows the introduction last year meetings. Separating couples must application of a 50/50 split in every case
of a series of reforms designed to place consider alternatives to harmful and would not be true to the intentions of the
children at the heart of every case and stressful court battles when they are Matrimonial Causes Act 1973, which expressly
government agencies have reported that resolving financial matters and required the court to consider all the
this has resulted in a cut to 29 weeks the arrangements for child contact circumstances of the case.
time which care cases are taking.
l a free mediation session for all couples The wife’s bonuses were not deemed to be
The wider reforms have included: where one of them is eligible for legal aid “family assets” as they had not been
generated by the joint efforts of the parties
l the introduction of the new Family Court The aim behind these initiatives is that all and the husband had made no domestic or
in England and Wales with a simpler cases involving children should be resolved business contribution to the source of them.
system and a network of single quickly and wherever possible outside court. It was not a case where the husband could be
pplication points said to have contributed more to the home
life or welfare of the family than the wife.
l New child arrangements orders which are Accordingly, the bonuses were, in
designed to encourage parents to focus essence, removed from the financial
on the child’s needs rather than what settlement calculation.
they see as their own ‘rights’
Legaleye Legal news and views
from Company Name Solicitors
hCoralicdkadyoswicnknoenssfafkirems baWroheoykimidnepgfoinartihatinootlnidwsahyenThe Government is finally stepping in to tackle the sickness claims
culture which is not only damaging Britain’s reputation overseas
and could also be driving up holiday costs.
The move follows concerns from the travel It really does matter if you book a
industry that more and more suspected false A major barrier to tackling the issue is that “package holiday”; especially if you
insurance claims for gastric illnesses like foodthese spurious claims are arising abroad. want to make any sort of claim
Legal costs are therefore not controlled by afterwards.
opoisoning are being brought by British UK rules, so costs for tour operators who
fight claims can be out of all proportion to In a recent case a man and his girlfriend
holidaymakers, partly fuelled by touts the damages claimed. were seeking a ‘last minute’ holiday, and after
operating in European resorts. seeing one advertised online, he telephoned
The aim of the planned clampdown will be the travel agent and the couple booked
Advice from the travel industry shows the to reduce cash incentives to bring spurious their holiday.
upsurge of claims in this country – reported claims against package holiday tour
by the industry to be as high as 500% since operators. Under the proposals tour After suffering an injury whilst on the holiday,
2013 – is not seen in other European operators would pay a prescribed sum the man sought compensation from the firm
depending on the value of the claim, making with which he had made the booking.
mcountries, raising suspicions over the scale the cost of defending a claim predictable. However, the firm claimed that their sales
agent would have read a telephone script
of bogus claims and damaging our to him, making it clear that it was only
acting as the agent for the holiday provider.
Firms providing package holidays are liable
for injuries arising from negligence in the
provision of services or accommodation that
are part of the package. However, where a
travel agent just organises travel and
accommodation which are not a “package”,
liability will rest with the individual firm
In case you were not aware, the legal whose negligence caused the injury.
services provided in the UK are Great. After initially failing in his action, the man
But don’t just take our word for it; its took his case to the Court of Appeal, which
official! decided that as the man was not specifically
A global drive to promote the UK’s £25 told that he could book the flights without
billion legal services sector at home and the accommodation or vice versa, and also
abroad has just been launched by the that the original invoice included ‘service
Lords justice spokesman Lord Keen at charges’, which were not explained, these
a reception in Singapore. represented the cost of creating a package
out of the flights and accommodation.
The ‘Legal Services are GREAT’ campaign The campaign - the latest under the In light of this important difference, the man
will target stronger links with emerging and government’s ‘GREAT’ series – will highlight was able to bring his action against the travel
established markets across the world with the strengths of English law to ensure the UK agent for compensation. Travellers need to
the aim of cementing the UK’s reputation as remains, post Brexit, the premier place to be aware of this crucial distinction.
the world’s pre-eminent legal centre. litigate, resolve disputes and do business.
Exam Scripts are
In an interesting Irish case which may
have significant implications for the UK,
the European Court of Justice recently
recommended that handwritten exam
scripts should be considered personal
data under EU legislation.
A trainee accountant failed an accountancy
exam overseen by the Institute of Chartered
Accountants in Ireland (CAI) four times.
After his fourth failure, the examinee
requested access to all personal data held
HmoamrreiasgeecroeftacroynvmeunsietnecsetablishIn an interesting twist on an old movie script (“Green Card” anyone?), on him by the CAI. The institute released
17 different records but claimed the exam
a recent court ruling found that for an EU individual to be removed from paper did not constitute personal data
the UK on the ground that she attempted to enter into a marriage of under Irish law.
convenience with a non-EU national, it was for the home secretary to
establish that it would have been a marriage of convenience rather than for the The Irish Office of the Data Protection
individual to establish that the relationship was a genuine and lasting one. Commissioner rejected a subsequent
The case concerned a Pakistani citizen who complaint against this decision and indeed
However, one of the most basic rules of characterised the complaint as “frivolous and
litigation was that “he who asserts it has toohad an expired UK visa and a Lithuanian who vexatious”; not least because the document
prove it”. So, it was not for the accused to sought was an “open book” exam paper
establish that the relationship was a genuinewas lawfully in the UK. They maintained that containing answers to questions.
and lasting one. It was for the home secretarythey had been in a relationship for several
to establish that it was indeed a marriage ofyears but when they attended a register office The ECJ opinion however found that
convenience.to marry they were detained by immigration “an examination script incorporates
officers. They were both subsequently issued information about the examination
The position of the non-EU citizen waswith removal notices; which they appealed. candidate and is, in that sense, a collection
different. He would be required under the of personal data”. Personal data in an
rules to show that he had a “durablemThe law governing the two removal notices exam script was deemed not to be
relationship” with his fiancé. confined to the exam result or marks in
differed significantly. The Lithuanian’s right of that handwritten papers contain even
Ultimately, the EU citizen was allowed to stay,permanent residence in the UK as an EU more personal data because of their ability
but the Non-EU citizen was not.citizen could only be removed on grounds of to provide evidence of the user’s identity,
even where they contained an ID number
epublic policy, public security or public health, or barcode instead of a person’s name.
none of which applied, or if it was established
that she had attempted to enter into a
Dmarriage of convenience.
Notification of email checks required
A recent ruling by the European Court of Human Rights says that not only must a 3
company policy inform employees that they reserve the right to monitor employee
emails, but they must also let employees know when they are actually doing so.
The case in question related to a man who was fired for using a company messaging account
to text his family. The company had presented Mr Bărbulescu with printouts of his private
messages to family on Yahoo Messenger as evidence of his breach of a company ban on such
personal use. He had previously told his employer in writing that he had only used the service
for professional purposes.
Although local courts found nothing wrong with the company's decision to terminate the
employee, the European court found that Mr Bărbulescu's private correspondence could not
be intercepted because his company had not given prior notice that it was monitoring his
Although the ruling has no direct effect in British law, experts say that it will establish a
significant precedent in the evolution of digital privacy rules at work.
Legaleye Legal news and views
from Company Name Solicitors
text as a Will
In a firm pointer of things to come,
an Australian judge recent ruled
that an unsent phone text with
the words “my will” and signed
off with a smiley face was, in fact,
a valid will.
The will writer had created, but not sent theAs we descend on the shops to take 1 But if the item was on special offer or the
text, just prior to taking his own life, in which.advantage of the sales, it is worthwhile price was reduced in a “sale”, you are
he outlined the intended disposal of hisgoing armed with a little knowledge of entitled to get back the money you paid if
estate – significantly excluding his wife andour consumer rights. To ensure that it turns out to have a fault, to have been
child. His wife argued that as the text wasforewarned is forearmed, we offer inaccurately described or not fit for the
unsent in meant that he had not made up hisguidance on the top three misconceptions purpose for which it was sold.
mind. The court took into account a range ofwhen shopping at sales:
factors in ruling the text message was a valid 2. “We don’t offer refunds – you must accept
will, including that it was "created on or“There are no refunds on Sale items” This is a a credit note”. If you buy goods that turn
about the time that the deceased was common misconception which is often out to be faulty, you are entitled (so long
contemplating death, such that he evenreinforced by signs in the shops. The answer is as you have acted within reasonable time)
indicated where he wanted his ashes tothat if the goods have been reduced in price to receive a full cash refund.
be placed". because of a fault that was pointed out to you
3. “If you shop online you have fewer
P– ryeopuarricnognsfourmtehrersipghroing salesThatsaid,thejudgeaddedthattheruling
tsthat the text-will was valid would not stop
the man's wife and son making an application
under family provision laws for a share of
DemToday Australia; tomorrow the UK?
or you could “reasonably” have been expected consumer rights”. Actually, the opposite
to notice, or which you pointed out to the is true. If you shop online you have greater
store, then you are not entitled to a refund. consumer rights as you have the right to ‘
change your mind’ and receive a full cash
refund; so long as you tell the retailer this
within seven days of receiving the goods.
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This newsletter has been prepared for general interest and it is important to obtain professional advice on specific issues. We believe the information contained in it to be correct at time of print. While all possible care is taken
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