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Where there is an LPA in place for finance and property, the donor still has mental capacity and the LPA provides authority for the attorney to make decisions before the donor loses capacity, can the attorney bring legal proceedings on behalf of the donor in relation to cases such as public services or personal injury? Would such cases be within the scope of the attorney's authority under the LPA? If not, would the donor have to bring any such proceedings themselves with the attorney only able to apply to become litigation friend once the donor has lost capacity?
Q&As
When granting a lasting power of attorney (LPA) for finances and property, the donor can choose to allow the attorney to act following registration even if the donor retains capacity. The general rule is that, if a donor does not restrict the decisions the attorney can make, the attorney will be able to make decisions regarding any or all of the person's property and financial affairs. The Mental Capacity Act 2005 (MCA 2005) Code of Practice states
Where there is an easement over a private road and the owner is not keeping the road in a satisfactory condition, does the dominant tenement have the right to enter the land and carry out the necessary works?
Q&As
Subject to any agreement to the contrary, the dominant owner of a right of way has the right (but no obligation) to enter and repair the way at their own cost: Carter v Cole. The right to enter is only to do necessary work in a reasonable manner. If the right was granted expressly and for a particular purpose, the dominant owner may also have the right to improve the way to the standard necessary to use it for that purpose (eg to make it suitable for vehicles): Newcomen v Coulson. For further information, see: • Practice Note: Easements—obligations to repair and maintain • Q&As: • A
Where there is an existing agreement between party A and party B, what options are there to make the holding company of party A (party C) jointly liable with party A? Would novation into the joint names of party A and party C be appropriate?
Q&As
For information relating to joint, several, and joint and several liability, see: • Practice Note: Joint, several, and joint and several liability • Q&A: What is joint, several, and joint and several liability? • Precedent: Joint and several liability clause Drafting options include, without limitation: • joining party C as third party to the original contract by way of a contract variation It may be the
Where there is an implied tenancy at will, is the landlord free to charge any daily rate it wishes or are there any limitations on the amount? For example must the daily rate be market rate or correspond to the rent under a proposed new tenancy?
Q&As
It is assumed that the tenant has no rights of security of tenure. A tenancy at will is an express or implied agreement between a landlord and a tenant that the tenant may occupy the property indefinitely, but terminable on immediate notice by either party. Such tenancies are often used when the tenant is in occupation of premises but the terms of that occupation are still being negotiated; for example, following the expiration of a tenancy. However, care must be taken in respect of tenancies at will, particularly implied tenancies at will as there is a risk that the court may instead construe the relationship as a periodic tenancy, potentially providing significantly greater protection to the tenant, particularly if the occupation is for the purpose of a business. In
Where there is an obligation in a lease on the tenant to provide details of any subtenants to the landlord, but the tenant is refusing to give such information on the grounds of the General Data Protection Regulation, can the landlord insist on such information being provided?
Q&As
In the General Data Protection Regulation (the GDPR), Regulation (EU) 2016/679, personal data is widely defined and means any information relating to an identified or identifiable natural person, known as the ‘data subject’ (Article 4(1) of Regulation (EU) 2016/679, the GDPR). Processing is even more widely defined, extending to ‘any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction’ (Article 4(2) of Regulation (EU) 2016/679, the GDPR). For more information, see Practice Note: Key definitions under EU data protection law. If the information requested by the landlord is
Where there is an outline permission for a large development of 300 houses, but for one parcel of the outline site the developer submits a full application, rather than a reserved matters application, for ten houses, how should the local planning authority (LPA) deal with that full application? How can the LPA ensure, first, that all relevant planning obligations and infrastructure relating to the outline permission are secured, and not undermined by the smaller full application which does not meet the thresholds for triggering the planning obligations required under the outline permission? Secondly, how does the LPA ensure that the outline site is not overdeveloped by gaining permissions for 310 houses?
Q&As
This Q&A describes circumstances in which rather than submit a reserved matters application for a relatively small part of a large site covered by an outline planning permission for 300 dwellings, the developer has instead submitted a full planning application for a further ten dwellings. In this situation the development proposed by the full application on part of the outline site appears to be
Where there is an urgent need for the estate to issue, say to avoid limitation or to protect the estates assets, what can a potential administrator do while waiting for letters of administration or indeed a limited grant in terms of establishing a position where they can issue proceedings in time?
Q&As
As you have set out, an administrator of a person who has died intestate has no authority to take any action in relation to the estate until they obtain a grant of representation, in contrast to the position of executors of a Will, who have authority to act from the date of death. See Practice Note: Personal representatives—authority prior to grant of representation. An action brought on behalf of an estate by an administrator who does not have a grant is a nullity: Ingall v Moran but the position is different where a Will appointing an Executor is concerned as title is derived from the Will and not from the grant of probate: Chetty v Chetty. The grant of probate is simply necessary
Where there is dispute between former cohabitants as to whether a concluded agreement was reached in without prejudice negotiations prior to proceedings for financial provision for a child under Schedule 1 to the Children Act 1989, does the show cause procedure by way of an application in Form D11 (Dean summons) apply to Schedule 1 claims as it would to an application in Form A? If not, what rules do apply?
Q&As
An application for financial relief under Schedule 1 to the Children Act 1989 (ChA 1989) is defined as a ‘financial remedy’ by rule 2.3 of the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955 and is therefore governed by FPR 2010, SI 2010/2955, Pt 9 and follows the standard procedure using Form A—Notice of [intention to proceed with] a financial application to which the standard procedure applies (PDF Format), unless the application is only for a periodical payments
Where there is good reason to believe that the extent of the searches undertaken are insufficient and inadequately wide enough for the purposes of disclosure and the parties involved, can the claimant ask specific questions of the defendant as to the searches they have undertaken even where that is referenced in their completed List of Documents? To what extent can the disclosure of emails and documents for the purposes of standard disclosure pursuant to CPR 31 be reasonably requested? Are there any other compelling reasons and/or circumstances that the court will have due regard to when considering an application for specific disclosure?
Q&As
Duties of the parties Disclosure is the process by which parties offer up documents in their control that are material to the issues in dispute. For a general introduction to disclosure under CPR 31, see Practice Note: Disclosure under CPR 31—introduction. As part of the procedure for standard disclosure, each party must make and serve on every other party a list of documents in the relevant practice form. The applicable rules for preparing the list of documents are
Where there is more than one residuary beneficiary of an estate, if a claim is made against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, can one of the beneficiaries settle the claim made against their share of the estate and another beneficiary defend the claim against their share?
Q&As
The Inheritance (Provision for Family and Dependants) Act 1975 Section 1(1), (1A) of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) list the persons who can make an application against the estate of the deceased. These are the spouse or civil partner of the deceased, a former spouse or civil partner, a cohabitee, a child or person treated as a child of the family by the deceased and a person maintained wholly or partly by the deceased. The application is made on the basis that the disposition of the deceased’s estate effected by their Will and/or the intestacy rules have failed to make reasonable financial provision for the applicant as defined in I(PFD)A 1975, s 1(2). In exercising its discretion the court
Where there is no assignment clause within a contract, can one party assign a contract to a third party without the consent of the other contracting party?
Q&As
An assignment is an immediate transfer of an existing proprietary right, vested or contingent from one party to another. It is not technically possible to assign a contract as, generally, the burden or obligations under a contract cannot be assigned. Contracts often include an assignment clause which sets out if, and to what extent a party's rights under an agreement can be assigned or otherwise dealt with (see, eg Precedent: Assignment clause). Unless assignment
Where there is no express or implied contractual payment in lieu of notice (PILON) clause in an employee’s contract, if, as part of a settlement agreement, the employee receives a one-off PILON in the amount of that employee’s basic pay for the notice period and also continues to benefit from health insurance cover paid for by the employer for the duration of the notice period, should the value of the health insurance cover be included in the post-employment notice pay (PENP) calculation?
Q&As
Where an employment is terminated on or after 6 April 2018 and there is no express or implied contractual PILON clause in the employee’s contract, despite the PILON being non-contractual, it is still fully subject to tax and employer’s National Insurance contributions (NICs). For this purpose, the post-employment notice pay (PENP) formula is what determines what is treated as the non-contractual PILON. If the termination award is less than the amount of the PENP as determined by the PENP formula, the entire award is the non-contractual PILON that is fully taxable as earnings. If the termination award exceeds