Frequently Asked Questions

As a first step, it is always sensible to make contact with the debtor and try to negotiate matters amicably with a view to resolving the dispute. Discussions can lead to a swift resolution for both parties.

In the event that the debtor is unwilling to engage with you and or refuses to pay the debt, you can:

• issue court proceedings via the Money Claims Online portal, as long as the debt is below £100,000; or
• make a claim via post to the relevant court (usually County Court Money Claims Centre or County Court Business Centre) if the debt amount is unknown or is over £100,000.

Be aware that you will have to pay a court fee and possibly legal costs if you seek legal advice, both of which may or may not be recoverable.

If you receive a letter before claim, it signifies that an individual or a company may issue court proceedings against you, and it is the first step in trying to negotiate a possible settlement.

You should consider seeking legal advice immediately to ensure you comply with any requirements and/or deadlines within the letter. 

If you do not wish to seek legal advice, the letter before claim should state under which pre-action protocol it is sent. As a rule, you should explore the relevant protocol (which can be found at https://www.justice.gov.uk/courts/procedure-rules/civil/protocol) and ensure that you adhere to the relevant protocol rules.  However, it is always sensible to seek advice, particularly on complex and high value claims.

As a general rule, you will have to pay legal fees if you instruct a lawyer (whether a solicitor or a barrister) to advise and/or represent you with a particular matter. Sometimes these are payable in advance or as they are incurred, and the costs will depend on the nature of the case. Before you instruct a lawyer, it is advisable to ask about hourly rates and/or fixed fees, so you have an idea of the potential costs from the outset. 

If court proceedings are issued, the general rule on recovery of costs is that the “loser pays the winners” costs, but it should be noted that not all of your costs will be recoverable.  By way of examples:

• in some claims, such as claims for possession of a property, you may only recover fixed costs;
• if the matter is allocated to the small claims track, costs, save for Court fees, are generally irrecoverable; and
• if the matter is allocated to the multi-track or the fast track, there will almost inevitably be an element of your costs that cannot be recovered.

More information on costs rules can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs.

Generally, a lawyer’s charges will need to be met as they accrue. However, there are arrangements that are often (incorrectly) referred to as “no-win, no-fee”. Whether a lawyer would be willing to enter into such an arrangement will very much depend on the merits of the case (and the availability of insurance).

You may be able to have your legal costs covered by a policy of insurance.  It is well worth checking if you already hold cover or if ‘after the event’ insurance is available.

A break clause in a lease sets out what rights you have to bring the lease to an early end.

If you do want to break the lease, it is vital to make sure that you comply with any conditions in the lease. The conditions that need to be satisfied will depend on the particular lease, but typically:

• You need to give written notice to the landlord by a specified date — perhaps six months prior to the break date.
• The landlord will have the right to refuse the break under certain circumstances. Commonly this will be the case if you are behind with your rental payments or you don’t give the property back empty.  In some leases, even trivial breaches of the lease can be grounds for refusal.

If you do intend to use a break clause, you should take legal advice and plan ahead. A small error such as giving notice in the wrong form or missing a deadline could be very costly.

Commercial properties are generally exempt from VAT, but the owner has an option to elect to charge VAT on any supplies made (including renting or selling).

Whether you are charged VAT on rental payments depends on the particular property. If the landlord has ‘opted to tax’ for VAT purposes, then the rental payments will be subject to VAT; otherwise, rental payments are exempt from VAT.

Your right to automatically renew your existing lease depends on the existing lease.

If the lease is inside the Landlord and Tenant Act 1954, you have security of tenure, which gives you the right to renew the lease under similar terms at the end of the term.

However, the landlord may refuse to renew the lease for a number of reasons, some include:

• You agreed to give up your right of renewal when you originally took on the lease.
• The landlord wants to use the premises themselves or to redevelop them.
• You are in substantial breach of the terms of the lease — for example, by failing to pay the rent or fulfil your maintenance obligations.

If your landlord is refusing to renew your lease, you should seek legal advice. You may be able to negotiate an agreement or take legal action if necessary.

It is possible that your existing lease is outside the Landlord and Tenant Act 1954, in which case you will have no right to a new lease – your existing lease will come to an end at the end of term. We can advise on whether your lease is inside or outside the Landlord and Tenant Act 1954.

Your responsibilities depend on the lease.

For a short-term rental such as serviced offices or a lease of part of a building, you might only be responsible for internal repair and decoration, with external decoration and maintenance and repairs of the external, structural elements being the landlord’s responsibility.

With a lease of the entire building, your obligations can be much more extensive. With a ‘full repairing and insuring’ lease, you are generally responsible for internal, external and structural repairs and maintenance, although this may also mean that you are responsible for internal repairs and maintenance while the landlord maintains the structure and recovers the cost from you by way of a service charge.

We will be happy to review the terms of your lease to advise on the extent of your repairing obligations.

In addition to legal fees, you should also budget for Stamp Duty Land Tax (SDLT) and Land Registry fees, together with the fees of any surveyors that you appoint.

The Care Quality Commission regulates tens of thousands of health and social care services across England. It is a risk-based regulator with statutory responsibilities to (1) protect and promote the welfare of service users and (2) provide assurance to the public as to the standard of the services it regulates.

The primary legislation that deals with the CQC legal framework is the Health and Social Care Act 2008. Then there is secondary legislation, principally the Health and Social Care Act 2008 (Regulated Activities), Regulations 2014, and the Care Quality Commission (Registration) Regulations 2009, supporting that there is guidance. This can be statutory guidance such as ‘Guidance for Providers on meeting the regulations’ (March 2015) or non-statutory guidance such as the ‘How to get the most out of inspection’ guidance.

Comprehensive

Comprehensive inspections look at the five key questions and lead to an award of ratings for each of the five domains. These are Safe, Effective, Caring, Responsive and Well-led.

Focused

A focused inspection won’t necessarily look at each of the domains. Typically, it will focus upon a couple. It is common for a focused inspection to look at the Safe and Well-led key questions. Ratings can only be changed for the domains that have been reviewed.

Targeted

Targeted inspections do not lead to changes in ratings. They focus on looking at a specific area. For example, they are often used when following up on a Warning Notice.

Do you have any advice about handling the CQC inspection process?

Prior to the Inspection

• Carry out audits of quality and safety and make sure that you have audit documentation to demonstrate that care plans, risk assessments and daily records are joined up, accurate and up to date.
• Brief employees on what to expect from a CQC inspection.

On the day of the Inspection

• Have key data easily to hand and present an evidence file to the Inspector(s).
• Without being intrusive, the provider or manager should ask questions, offer assistance and ensure that there is absolute clarity about what information CQC wants during the Inspection and keep a record of it.
• Address any immediate compliance issues and confirm to CQC when these have been completed.
• Be clear about the source of any comments. Make sure that these are not just personal views of the Inspector. You can ask to see the evidence base.
• Be careful with language – providers and managers should not agree with the Inspector just to sound cooperative. Inspectors do get it wrong.
• Make the most of the feedback session. Providers and managers should make their own notes.

After the Inspection

• Hold a debrief session.
• Supply any additional information to CQC as a matter of priority.
• When you receive the draft report, you can respond to factual issues and judgements (opinions).
• Do you need to request a Rating Review?
• Do you need to consider a legal challenge?

Civil enforcement powers

• Requirement Notice – this can be issued where the provider is in breach of the regulations or where there has been a history of poor performance, but service users are not at immediate risk of harm.

• Warning Notice – this can be served if it appears the provider has failed to comply with a condition of registration, a regulation or other legal requirement. Representations can be made as to why the Warning Notice has been wrongly served or as to why it should not be published.

• Conditions of Registration – at any time, CQC can impose conditions on a registration, and it has discretion to vary or remove them. They can be positive conditions requiring a provider to do something, e.g., supply monthly audit reports to CQC or negative conditions limiting the registration in some way, e.g., not to admit new service users with the permission of the regulator. CQC can impose conditions immediately by serving a section 31 Notice of Decision, or, if it is a non-urgent situation, it can serve a Notice of Proposal (NoP), which allows for written representations to be made within 28 days from the date of service (not counting the day you receive the NoP).

• Suspension of Registration – if a regulated activity is being carried out otherwise than in accordance with all requirements, CQC has discretion to suspend registration for a specified period of time. It can be extended. CQC can suspend a service immediately by serving a section 31 Notice of Decision, or, if it is a non-urgent situation, it can serve a Notice of Proposal (NoP), which allows for written representations to be made within 28 days from the date of service (not counting the day you receive the NoP).

• Cancellation of Registration – The CQC has discretion to cancel registration of a service in certain circumstances. If it is non-urgent, CQC must serve a Notice of Proposal, and there must be an opportunity to submit written representations. If the situation is urgent, CQC’s response depends on whether the service is a location falling under a registration with other locations or is a standalone registration. If it is a registration with multiple locations, CQC can serve a Section 31 Notice to remove the location as a condition of registration. However, if it is a standalone registration, CQC will need to apply to a Justice of the Peace for a court order cancelling the overall registration on the grounds there will be a serious risk to the life, health, or well-being of a person unless the order is made.

• Appeals to the First-tier Tribunal (Care Standards) – in relation to urgent and non-urgent cancellation, suspension and imposition or variation of conditions of registration, there are rights of appeal to a specialist tribunal.

Criminal enforcement powers

• Criminal Prosecution– Some of the regulations have offences attached. The CQC produces a helpful guide which can be found here. Additionally, it is a criminal offence not to comply with conditions of registration or to provide a regulated activity without registering or after a suspension. In lieu of prosecution, CQC can offer a provider the opportunity to pay a fine, having served a Fixed Penalty Notice.

 What are the benefits of having a lawyer on board?

• Lawyers ensures that the correct procedures are followed.
• Lawyers can provide a full evidential review of the case.
• Lawyers can ensure that there is clarity both in terms of the issues in question and the response.
• Lawyers can defend providers and managers who are the subject of civil or criminal enforcement action.

Neil Grant outlines what you need from a lawyer in his video here.

At Gordons Partnership, our lawyers represent health and social care providers across England and Wales, not regulators or service users meaning we are able to avoid any conflicts of interest when advising our clients. If you require legal representation in this field, do not hesitate to contact our experienced and knowledgeable team today on 020 7421 9424 (Guildford) or 01483 451 900 (London). Alternatively, click here to find out more.

Medical negligence arises when a healthcare professional, such as a GP, has breached their duty of care by falling below the standard of care expected of them, and as a result, a patient has been harmed.

The following people are able to bring a claim for medical negligence:

• A patient who has suffered an injury or loss as a result of a medical professional or organisation breaching their duty of care.
• An executor, or Personal Representative on behalf of an individual who has died.
• An appointed individual such as a parent on behalf of a minor, i.e., a child under 18.
• An individual who has been appointed as a deputy by the court of protection on behalf of someone with a disability which has caused them to lack capacity and is, therefore, unable to manage their own affairs

We instruct leading independent medical experts to report on the care provided. The experts assess the standard of medical care provided, if this has fallen below a reasonable standard, (according to a responsible body of opinion by similar professionals) and whether this has led to an avoidable injury.

A Claimant usually has three years from the date of the alleged negligence or alternatively from the Claimant’s date of knowledge (i.e., when the Claimant became aware that the injury in question was significant) to issue Court proceedings.

Exceptions are when the Claimant is under the age of 18, in which case limitation will not expire until the Claimant’s 21^st birthday, and when a Claimant dies within the three-year limitation period, in which case the three-year period will be extended a further three years from the date of death.

In the case of a person who lacks mental capacity, the three-year time limit will not begin until the Claimant regains capacity, unless they never regain capacity, in which case the claim can be brought by a litigation friend without any time limit.

If, after investigating the claim and gathering evidence, the Claimant believes they have a strong claim, the Claimant’s solicitor will send a Letter of Claim to the potential Defendant(s). This letter will detail the allegations of negligence and outline the harm caused. The Claimant’s solicitors may also make a request for full disclosure of the patient’s medical records and include the patient’s consent to the disclosure.

The Defendant must then provide a Letter of Response within four months, replying to the allegations made. The Defendant may fully or partially admit the allegations or deny them. It is on the basis of this Letter of Response that the Claimant will then decide if they wish to commence formal Court Proceedings.

An Inquest is for the Coroner to investigate four key questions: who died, where they died, when they died and how they died. The most crucial question will be how the individual died and the question that requires the most scrutiny. An Inquest is held only in circumstances where death was sudden, and the cause of death is unknown, an individual has died an unnatural or violent death, died in a place or circumstances where there is a legal requirement to hold an Inquest such as an individual who has died in prison or whilst being detained under the Mental Health Act 1983.

It is important to note that the Coroner cannot assign criminal or civil liability, but they have the power to criticise and make findings of neglect, which can be detrimental to a medical professional. Therefore, you must ensure you contact your indemnity provider and seek legal advice if you are invited to attend an Inquest.

At Gordons Partnership, we have extensive experience and expertise in Coronial Law and can represent and assist you with preparation and attendance at an Inquest. If you would like to seek further information and advice, then please contact Richard Creamer at richard@gordonsols.co.uk or 01483 451900.

Section 47 of the Coroners and Justice Act 2009 sets out who an Interested Person is. Under the Act, an interested person can be a family member such as; spouse, civil partner, parent, child, sibling, grandparent, grandchild, child of a sibling, step-parents, half-siblings, or a personal representative of the deceased or any other person who the Coroner thinks has a sufficient interest.

If you have been named an Interested Person, you will have an active role to play in the Inquest. Being an Interested Person, has certain rights attached to that, such as a right to disclosure of evidence and legal representation at the Inquest, which can include cross-examining witnesses.

At Gordons Partnership, we have extensive experience and expertise in Coronial Law and can represent and assist you with preparation and attendance at an Inquest. If you would like to seek further information and advice, then please contact Richard Creamer at richard@gordonsols.co.uk or 01483 451900.

A Pre-Inquest Review Hearing or PIR Hearing is a short hearing held at any time during the Coroner’s investigation and before an Inquest hearing (Rule 6 of The Coroners (Inquests) Rules 2003). PIR Hearings are usually held in more complex proceedings and are there to discuss certain issues and legal arguments that need to be resolved prior to the Inquest hearing. A PIR Hearing will also set out the scope of the Inquest, who is to be named as an Interested Person, what witnesses are required and any further evidence that the Coroner feels is necessary to their investigation.

At Gordons Partnership, we have extensive experience and expertise in Coronial Law and are able to represent and assist you with preparation and attendance at an Inquest. If you would like to seek further information and advice, then please contact Richard Creamer at richard@gordonsols.co.uk or 01483 451900.

GMC Good Medical Practice Guidance paragraph 75 states that “you must tell us without delay, if anywhere in the world […] been criticised by an official Inquiry.” Therefore, you are under a professional obligation to notify the GMC if you have been criticised by the Coroner following your attendance at an Inquest.

At Gordons Partnership, our Healthcare Regulatory department has experience  providing specialist advice and representing medical professionals in all areas of GMC matters. Do not hesitate to contact us today, email richard@gordonsols.co.uk or call 01483 451900.

A Prevention of Future Deaths report is also known as a Regulation 28 report. Regulation 28 of The Coroners (Investigations) Regulations 2013 applies where the Coroner is under a duty to make a report to prevent future deaths. This often takes place in circumstances where the Coroner has found that there are matters which need to be addressed or implemented. If the Coroner has stated that a Prevention of Future Deaths report is required, then any individual who is under a duty to provide a response will have 56 days.

At Gordons Partnership, we have extensive experience and expertise in Coronial Law and are able to represent and assist you with preparing a Prevention of Future Deaths report response. If you would like to seek further information and advice, then please contact Richard Creamer at richard@gordonsols.co.uk or 01483 451900.

Although both are statutorily defined, an individual’s employment status remains difficult to clearly determine due to changes in types of employment and ways of working.

An employee is an individual who works under a contract of employment which is most commonly expressed in the form of a written contract for services but can also be implied by conduct and the working relationship.

Courts will use a number of tests such as the: – (i) control test, (ii) integration test, (iii) the economic reality test, and (iv) multiple-factor test to help determine an individual’s employment status.

In addition to the rights you are expressly granted in your employment contract, as an employee, you are awarded the right not to be unfairly dismissed (known as wrongful termination) and the right to receive a statutory redundancy payment.

You will also be covered by Acas’ Code of Practice relating to disciplinary and grievance procedures (see more below) and, if another business buys your employers business, your employment will be automatically transferred to the purchaser under the Transfer of Undertakings (Protection of Employment Regulations 2006 (SI 2006/246).

Sick pay, maternity/paternity pay, holiday pay and the right not to be discriminated against also apply to employees and can in certain circumstances apply to workers.  

Conveyancing is the transferring of legal ownership of property. It covers sales, purchase, re-mortgages, transfers of equity and more. If you are buying or selling a home, you will need a property Lawyer or Conveyancer to undertake this process. As part of it, they will make and answer property enquiries, prepare documents, make applications to the Land Registry, and liaise with your mortgage provider, among other things.

Essentially, the difference between a Freehold and a Leasehold property relates to the land the property is built on. This is because owners of Freehold properties will own the property itself, as well as the land it is built on.

In comparison, when you purchase a Leasehold property, you do not own the land. Most commonly, but not always, this will be flat and apartment purchases. Instead, you own the property for a determined number of years, outlined in the lease. A lease is a legal agreement with the freeholder, typically known as the landlord.

Find out more about Leasehold properties on the Gov.UK website.

Yes.  It is usually advisable to do so as it will save time during the process (one less party to liaise with), and funds can be transferred between the two transactions without delay.

The facts of the case will need to be considered, but the standard position will be “no”.  It is important that both parties in a transaction are properly advised, and it can be difficult to do so if the same conveyancer or firm are acting for both parties.  If the buyer’s interests and the seller’s interests no longer align, the firm would have to stop acting for both parties, and the transaction would have to begin again with different firms representing.  It is best not to take this risk from the outset.

Before the buying or selling process can begin, identity checks will need to be carried out. These checks will require you to provide photographic ID such as a passport or driving licence along with proof of address. If you are buying a property or gifting money to another who is buying a property, you will also be required to undertake a source of funds questionnaire and provide bank statements.   If you are receiving a gift from someone to assist you with your purchase, checks may also need to be carried out on that person too.

Your transaction will be part of a “chain” if there is more than one buyer and seller involved. In essence, it is a sequence of linked house purchases/sales. The longer the chain is, the more complicated the transaction becomes as there are more parties involved, and you are all reliant on one another to move things forward. This means that the transaction will only proceed at a rate dictated by the “slowest” party. As in any transaction, delays can be caused by a number of reasons, but there is always the risk that one party may pull out of their sale/purchase, thereby causing the whole “chain” to collapse.

Whether you are buying, selling or re-mortgaging your property, there will be various payments/taxes that we have to make to third parties on your behalf as part of the Conveyancing process. These are known as disbursements, which are separate from our Legal Fees (for more information on our Legal Fees, please see: https://www.gordonsols.co.uk/how-we-charge/). Although the disbursements incurred will depend on the type of transaction, typical disbursements that you can expect include:

• SDLT (sale only)
• ID checks
• Property searches (e.g., environmental reports, drainage and water reports, local authority reports etc)
• HM Land Registry fees
• Bank charges.

Stamp Duty is a tax paid to HMRC that is charged when you purchase a property in England and Northern Ireland. The current threshold for SDLT payments is £125,000. This means if you purchase a property for less than this, there’s no SDLT to pay. It is important to note, however, that for purchases between £40,000 and £124,999, you must still submit an SDLT return. It is also important to note that tax reliefs can apply, such as ‘First Time Buyer Relief’. You should always consider taking advice as to whether any tax reliefs may apply to your purchase.

HMRC has an online calculator, which you can use to estimate how much tax you’ll need to pay; it can be accessed here.

You do not become legally bound in a house purchase until contracts have been exchanged. This means that having an offer accepted on a house is not legally binding, and either side may still pull out.

Conveyancing Solicitors will not exchange contracts until both the buyer and the seller have approved and signed the contract. At this point, property searches will have been completed, and a completion date agreed, amongst other steps.

Once contracts have been exchanged, the transaction becomes legally binding. This means if either party pulls now, the deposit will be retained by the side that did not withdraw from the transaction, along with the risk of penalties/compensation depending on the terms of the contract.

• Your property goes to those you want to provide for after you have passed away;
• You specify who deals with your estate after your death;
• Your wishes on who you want to look after your dependent children are noted;
• Any funeral wishes are noted; and
• You don’t pay more Inheritance Tax than is necessary.

Yes, you can.  In fact, the recent uncertain times have made people realise the importance of ensuring they have a Will in place in case the worst were to happen.  Here at Gordons Partnership, we have adjusted our practices to keep our clients and staff safe.  We can see you face to face if that is what you prefer, but we can also offer other means of communication that we use effectively to provide our services to you. These include video conferencing via Zoom, FaceTime and WhatsApp, conference and telephone calls, and of course, emails and letters.

Tempting as this may be, the Law Society Gazette has reported that experts from organisations such as Solicitors for the Elderly, Farewill and Funeral Solution Expert have warned against using such services as they offer very little liability if something goes wrong.

You can read more about the pitfalls of online Will making services here.

Here at Gordons Partnership, we have professional Wills solicitors with a wealth of experience who will take the time to discuss your circumstances in detail and prepare your Will tailored to your individual requirements.  In addition, we have professional indemnity insurance of up to £3 million, so you can rest assured that you are fully covered in the unlikely event that something goes wrong.

The role of an executor carries significant responsibilities. Therefore, you may be wondering what options are available to you if you find yourself appointed as an executor in a Will.  There are three options available to you.  You can:

• Accept your appointment and administer the estate yourself or let us help you in the administration;
• Renounce if you are not willing or able to act; or
• Reserve power to you so that other named executor(s) can obtain the Grant of Probate but you retain the right to apply if required at a later date.

Click here to read more.

If you choose to act as an executor, you have the legal responsibility for dealing with the estate. There are a number of duties that you need to fulfil, including: 

• Valuing the estate;
• Calculating any Inheritance Tax due and working out how much and when to pay it;
• Applying for the Grant of Probate (if necessary);
• Paying any liabilities owed by the estate, including utility bills and loans;
• Paying any other taxes, including income tax and capital gains tax; and
• Distributing the estate according to the Will.

You need to act with transparency throughout the administration of the estate, produce accurate estate accounts and be prepared to explain your actions and decisions As the executor in England and Wales, you can be personally and financially liable for any mistakes made.

An executor is the person responsible for carrying out the terms of the Will and administering the estate accordingly.  A trustee is only needed if a trust arises under the Will – they are responsible for looking after the assets in the trust for the benefit of the beneficiaries.

Although the role of an executor and that of a trustee appointed in a Will vary considerably, more often than not, the same people are appointed as both the executor(s) and the trustee(s).  What is important is that those appointed are clear about the specific duties and responsibilities of each role.

By far the most important decision you need to make when leaving your estate in a trust is who to appoint as the trustees. You have to have complete trust in your trustees to fulfil your wishes after your death. The trustees need to deal effectively with your beneficiaries (who can often be very demanding!).  They may have to make difficult decisions –balancing the interests of the beneficiaries against your wishes.  This is where a letter of wishes plays an important role in guiding your trustees when faced with conflicting demands from beneficiaries.  As the trust comes into existence after your death, it is vital to have a detailed letter of wishes in place that gives guidance to your trustees on how you wish for them to run the trust and provide for the beneficiaries.  

Your trustees do not need to be professionals or financial experts, but they need to understand your wishes and be willing to take on the obligations that come with being a trustee.  When the estate is likely to be complicated or where there may be conflicting family interests, it is common for independent professional trustees to be appointed. 

Probate refers to the legal and financial procedures involved in managing the deceased person’s estate, which could include their properties, money and belongings.

A Grant of Probate is the official document that verifies the executor(s) named win a will have the legal authority to manage the deceased person’s assets in accordance with the will’s instructions. You can obtain a Grant of Probate via a Solicitor or by applying yourelf in person at a court office or online.