Legal Update
Spring 2012

Article 1 - A Family Day Out At The Court Of Protection - Carol Davies

We have an ageing population. More of us will have elderly relatives who are unable to care for themselves in their own homes. Younger generations may help but they may have their own commitments or they may find the caring role difficult emotionally and physically. The ultimate question may arise about moving the relative to a residential or nursing home. Many of the elderly can make the decision themselves due to them retaining capacity to make such a decision. There are those who cannot make the decision due to lack of mental capacity as defined by the Mental Capacity Act 2005. What should happen in this situation? Multi-agency and familial discussions should occur to ensure that those who are relatives, carers and medical and social care professionals involved with the vulnerable adult can discuss and consider what is in the best interests of the person in accordance with section 4 of the Act. And they should agree the most appropriate plan. Yet, in some cases, the family may have differing views to the adult social services as to what should happen to their vulnerable relative; family members may have contrasting ideas between them as to what is in the best interests of the relative. If there is disagreement, the family or the adult social services department needs to consider an application to the Court of Protection to enable the Court to determine where the person should reside and the care that he needs. It is a route that is on the increase. An application to the Court of Protection may require the court to make a best interests decision as to appropriate care and residence. If it is argued that the relative's liberty is being or will be deprived, then the Court may have to deal with this issue along with Article 5 of the European Convention of Human Rights. As with any court process, the day trip to the Court of Protection can be costly and stressful; but at least decisions can be made to enable the best possible care to be given to the vulnerable family member.

Article 2 - Sales And Leaseback Schemes A Cautionary Tale - Derek Marshall

If a deal looks too good to be true it probably is. This is the lesson learned by a group of householders in Hampshire and in the Newcastle area who signed up for a scheme whereby they sold their homes to an investment company which promised them an income and a life interest in their own home if in return they were to invest the sale proceeds with that company. Of course, the scheme only works on a rising market, especially when the investment company promptly mortgages the property to a lending institution and (in the case of the Hampshire scheme) fraudulently pretended to the lender that this was a normal domestic sale to one of the members of the company. When the instalments of mortgage went unpaid and possession proceedings followed, the lenders and the householders found out about each other for the first time. Since both are innocent victims of the scheme, who should lose out?

In the Hampshire cases we pleaded a series of defences, including fraud and overriding equitable interest but the cases were all stayed by consent whilst the High Court in Newcastle struggled with similar issues in the North East Property Buyers Litigation. There had been conflicting decisions of County Courts in similar situations, including Redstone Mortgages v Welch [2009] EGLR 71 which favoured the interest of the householders over the innocent mortgagees and Abbey National v Cann [1991] 1 AC 56 in which the interest of the mortgagees prevailed.

Now the Court of Appeal North East Property Buyers [2012] EWCA 17 has given us the definitive answer, in upholding the decision at first instance against the householders. The Court held that there was no moment in time between the leaseback contract and the mortgages in which an equitable interest could arise, and in any event the rights granted to the householders by the investment company were personal at best and could not over-ride the interests of the mortgagees. Moreover, the effect of s63 of the Law of Property Act 1925 was that occupiers could not rely on pre-completion equitable interests. Registration by the mortgagees completed the legal interest in their favour which prevailed over the householders. Prior to the registration of the transfer the grant of any lease took effect only in equity and did not fall within the Land Registration Act 2002 s.29.

As the Court said, the problems that had arisen for the householders could have been avoided if the contracts for sale had given details of the precise contractual arrangements that were to operate in relation to their occupation after completion. In the Hampshire cases, this did not happen due to the fraud of the investment company but it was always going to be difficult to visit this upon the mortgagees, who were innocent of any wrongdoing. It must have come as small comfort to the Hampshire householders that the businessmen behind the investment company in their cases received long sentences of imprisonment for fraud.

Article 3 - Stop Press: Chambers Awarded Barmark -

College Chambers are delighted to announce that we have been accredited to BARMARK. BARMARK is the Bar Council's "kite mark" scheme and is managed by the British Standards Institute. Accreditation is based upon the Practice Management for the Bar Guidelines and Standards and the associated Quality Assurance Checklist.

Accreditation to BAR MARK is an assurance to solicitors and clients that Chambers is run effectively and efficiently. Accreditation is only awarded to chambers with the highest standards of practice and administration. We are one of only a few sets of chambers who hold this prestigious award.

Wayne Effeny, senior clerk, said "We strive to deliver an exceptional level of service living up to our motto ‘reputation through commitment’. Being awarded BARMARK following an independent assessment confirms that we are achieving the highest possible standards. Every aspect of our structure has come under intense scrutiny as part of this assessment and we are particularly proud of this achievement"

Article 4 - Care Proceedings Broken Baby Or Broken Science? - Anthony Hand

A few months ago I received a brief on a High Court finding of fact hearing in care proceedings. The very small baby had received approximately twenty fractures. The police in interview suggested that someone must have stamped on the baby. In this unhappy case, I acted for the mother. The usual medical evidence came in from the experts, all pointing to non-accidental injury. Then came a chink of light - one of the very early fractures was said to be due to "osteopenia".

Osteopenia is separate and distinct from osteogenesis imperfecta ("brittle bone"). Osteopenia is very rare, but can affect premature babies. A chemical reaction takes place within their bodies that means that for a time calcium is drawn out from their bones leaving their bones demineralised or "hollow". Over time their bones re-mineralise or "fill in".

After much research, many articles read, and hearing the evidence of several experts the following interesting facts were apparent:

  • If a baby suffers from osteopenia, then in the right circumstances normal day to day handling can cause fractures.
  • Following the onset of osteopenia the baby is at an increased risk of fracture for up to six months, or up to a year, or up to two years depending on which study you read.
  • X-rays are not very useful in telling you the strength of babies’ bones. If the child’s bones have re-mineralised or filled in to 60% of normal, they will still appear as normal bones on the x-ray. Therefore bones that have filled in to the extent of 60%, 80% or even 100% capacity all look the same on x-rays.
  • However, if the bones have filled in partially but not fully, there is no scientific evidence about the forces required to cause fractures in these circumstances.
  • Lastly, osteopenia can also affect the timing given by experts for when an injury occurred. Radiologists normally depend on the reactions observed at fracture sites for estimating how recent the fracture was. However, studies of animals with osteopenia indicate that new bone growth is slower in animals that have the condition.

I am left with the abiding feeling that science still has a long way to go in this area. If you are acting for parents you can rejoice in the fact that the burden of proof is on the Local Authority. If you are acting for the Local Authority, and it is established that the baby was suffering from osteopenia and within a reasonable timescale the baby suffers seemingly non-accidental fractures, then you may have your work cut out. Either way, there is a need for very careful consideration of the type of expert evidence required at the outset of the case.

Article 5 - A Massive Thank You - Louise Harvey

As many of you have worked with us for many years you will be aware that College Chambers is committed to raising funds for those less fortunate than ourselves. This began on a semi-formal basis with the Charity Ball in 2005. Since then we have held 5 charity balls, 4 quiz nights, and 3 cricket matches. Our grand total is running at over £80,000, raised for 18 different charities.

We owe special thanks to the IOW Law Society who send out their XI each year for the cricket, and also to all of you who have attended, bought raffle tickets, and bid on our many auction prizes - a highlight of which was Gary Self auctioning a night at a film premiere where the two main bidders were his wife and his senior clerk!

We confess having been a little concerned about holding a charity ball in the middle of a recession in 2011 but are proud to say over £17,000 was raised that night for the Ellen MacArthur Trust and the Prostate Cancer Charity.

So - please keep helping us - the ball remains as a permanent fixture, biannually and plans for 2013 will soon be underway. As for the quiz - well who wants to knock Hayward Baker off their perch in 2012? Details for that are coming soon. We are also launching a charity cycle ride this year, so if this is more your thing we hope you will get involved. Remember, we are always keen to have your family and friends attend these events also. When it comes to the sporting events if you are more like me, then being a spectator is just as important, it’s always nice to catch up over a drink and support those doing the exercise.

So once again a massive thanks to you all for your support, and we hope with your help to continue this work. Once we hit £100,000 we promise a legendary College Chambers party to celebrate!

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