Category Archive: Latest News

1. Choosing and Changing Your Child’s Name

   July 30, 2021 9:41 am Leave a Comment

   The Duke & Duchess of Sussex has recently announced the birth of their Daughter Lillibet Diana. Diana was to be expected, Lillibet, Queen’s childhood nickname prompted some mixed comments. It is said that “a rose by any other name smells as sweet” but we’ve all passed comment on a celebrity’s bizarre choice and wondered what on earth the parents were thinking.

   With very limited exception, the choice of a child’s name at birth is an act of Parental Responsibility. Parental Responsibility is the legal term for parental rights and responsibilities.

   If the child’s parents are married, they will both have Parental Responsibility and will be equally responsible for registering the child’s birth and will give the child’s chosen name to the Registrar. If parents are not married, only the Mother will have Parental Responsibility so the child’s name will be registered by the Mother. If the Father disagrees with the Mother’s choice of names his only remedy would be to make an Application to Court for a Specific Issue Order, but unless the Mother’s choice is as bad as the names in the Re C case the Court won’t interfere.

   In Re C a Local Authority intervened. The children were the subject of Care Proceedings. The Mother proposed that the children should be named Cyanide and Preacher. The Court took the view that naming the little girl Cyanide would go beyond the unusual, bizarre, extreme and foolish and gave the Court reasonable cause to believe that the child would suffer significant emotional harm because of the name.

   Changes of first name after registration are not common but they are increasingly arising in the case of transgender children. If both parents have Parental Responsibility, they would both need to agree to the change of name. In the case of disagreement, the parent wishing to change the child’s name would need to apply to Court for a Specific Issue Order. The Court’s decision will depend on the circumstances of the case and will attach considerable weight to the emotional welfare of the child.

   Courts do not routinely interfere with the parent’s exercise of their Parental Responsibility. If both parents have Parental Responsibility and agree to the change of a child’s surname, they may change it, and whoever has sole Parental Responsibility for a child may change it, but a child’s surname cannot be changed without the authority of all who have Parental Responsibility. If they do not agree then the person wishing to change the child’s name would need to apply to Court for a Specific Issue Order, and it will be for the parent who wants to change the child’s surname to convince the Court that to do so will further the child’s welfare.

   The welfare of the child will always be paramount. The Court will take account of the reasons for the proposed change of name, but considerable weight will be given to the link that the child’s surname recognises to the child’s Father. The fact that the child’s surname might be different to that of the parent wanting to change the name is unlikely to carry much weight unless it can be demonstrated that the name is causing the child so much embarrassment or anxiety as to be causing emotional harm.

   Courts will almost always be reluctant to allow parents to “ditch” the surname given to a child at birth without compelling reasons.

   Anyone can change their own name when they reach their 18^th Birthday. Young people between 16 and 18 can change their own name unless a Residence or “Living With” Order is in place, in which case they will need the consent of everyone who has Parental Responsibility for them.

   Should you wish to discuss any topics mentioned in this article, please contact us via telephone on 01782 956123 or through our online contact form.

2. E-Scooters: Trusty Travel or Motoring Menace?

   July 21, 2021 11:27 am Leave a Comment

   We are sure you will have seen a number of e-scooters pop up in the local area.
   
   In May 2020, the Department for Transport authorised the use of rental e-scooters on public roads so they could explore their impact before making a final decision on their permanent use.
   
   Since September 2020, a number of e-scooters have been available to rent within the Newcastle-under-Lyme and Stafford areas. These areas chose different e-scooter providers and as a result they have slightly different rules of use, so it is recommended to check each providers specific rules before deciding to hire.
   
   During the trial period, it is compulsory for all e-scooters to have motor insurance which is currently arranged by the rental operator, however it is not clear what the position will be after the trial.
   
   Did you know that if you own an e-scooter, it is illegal to use it on public roads and pavements and can only be used on private land? Hence there being no requirement to have insurance for your private e-scooter whilst using it on private land. However, it will be interesting to see what the Government decide following these trials.
   
   As best practice, it is always a good idea to have insurance whilst on the public road whether or not the Government make it compulsory. Otherwise, if you are involved in an accident or cause injury to another person, you may find that you are involved in an expensive litigation process that you must meet out of your own funds rather than being insured for this risk.

3. Local firm support propels Paralympian to Tokyo

   July 16, 2021 4:21 pm Leave a Comment

   Deeply rooted in the local community for almost 350 years, full-service law firm Tinsdills Solicitors are adding power to the paddle of North Staffordshire Paralympic canoeist, Ian Marsden.

   Propelling him all the way to the Tokyo Paralympic Games 2020, this sponsorship deal sees Tinsdills Solicitors become Ian’s primary local sponsor, and both parties are looking forward to building a close, long-standing connection. Having had his eyes set on the Tokyo Paralympic Games for a year longer and a pandemic more than he had bargained for, he was stretched physically as a four-year run in to this major event, extended to five years. It was Tinsdills’ history of supporting local sports clubs and encouraging local people to easily access sports, that drew Ian’s attention.

   “There’s no denying that it’s been a challenging run up to the Games this summer and with the support of Tinsdills, I’m aiming to push the boundaries of what I can achieve. I want to promote that having a disability isn’t life limiting, in fact it’s just the opposite. It shows that whatever challenges life throws at you, you can go on to achieve great things, empowered by the positive spirit that belonging to a great community brings,” comments Ian. “It’s going to be a tough event with humidity to adjust to and changes to the rules now meaning only the winners of the heats go through to the next round, but it’s great to be able to face these challenges, inspire others and make local people proud.”

   Ian is well-known locally and was recognised as Sports Personality of the Year in 2016, by both Stoke-on-Trent and Stafford Borough Councils. Having achieved a Silver and Bronze medals for Shooting in the London 2012 Paralympics, he went on to win Silver in both the Europeans and World Championships for Paracanoe in 2013, won Gold in 2014 and 2015 at the Europeans, Silver in the World Championships in 2014 and Bronze at Rio’s 2016 Paralympics with the Paracanoe Sprint Team.

   Tinsdills’ Managing Director Tim Cogan commented, “Ian is an inspiration, and a fantastic role model for our community. That’s why we’ll be encouraging everyone to cheer him on as he prepares for Tokyo. We hope that knowing he has such strong local support will spur him on and help Ian to inspire other aspiring sportspeople in our community. We’re all about people at Tinsdills, it’s incredibly important to us to be able to commit time and resource to support our local community through events, donations and volunteering”.

   Giving back to the local community is a key pillar of the company’s ethos. Tinsdills have been strong supporters of the Alice Charity, the Donna Louise and the Douglas Macmillan Hospice for serval years. Staff engage in regular fundraisers for national charities such as Children in Need and Headway, as well as arranging initiatives to raise contributions for local food banks.

   Tinsdills see Ian’s sponsorship as a continuation of sporting support which includes being a main sponsor of Newcastle Town FC and its 32-team youth section, Trentham RUFC, Leek RUFC, Leek Cricket Club, Sandbach FC, Blythe Bridge Marvels and the Red Street Eagles. They also sponsor a Tee at Wolstanton Golf Club and get involved by taking part in many of their charity golf days, raising funds for a variety of city-wide initiatives.

   Tim adds, “We are in awe of Ian’s achievements and the strength, grit and determination he has shown on his way to Tokyo and wish him good speed across the all-important 200m canoe sprint, from his Staffordshire homeland 5,900 miles away.”

4. Taking disciplinary action against an employee for comments made on a personal social media account

   July 15, 2021 11:59 am Leave a Comment

   So, football didn’t quite make it home on Sunday night after stalling on the home straight, much to the disappointment of any England fan. As is often said of England, it is the hope that gets you in the end, but it was a commendable, history-making effort by a young, talented and thoroughly likeable group of footballers, and a group that may very well go one better in tournaments to come.

   Sadly though, it was soon reported that following the penalty shoot-out defeat at the hands (or more precisely, feet) of Italy, some so called ‘fans’ took to social media to racially abuse the England players who had missed their penalties in the shoot-out.

   If you are an employer and one of the offending individuals was one of your employees you would no doubt be appalled and, if you are identifiable as that individual’s employer, the potential damage to your reputation as a result of that connection is considerable. This raises the question – can an employer take disciplinary action against an employee for comments made outside of working hours and on a personal social media account?

   In one particular case the offending individual’s employer was identifiable from social media accounts linked to the social media account that had posted the racist comments, and that employer has suspended the employee pending a disciplinary investigation. The same happened when the abhorrent harassment of the government’s chief medical adviser, Chris Whitty, was shared on social media a couple of weeks ago, with that employee ultimately being dismissed by his employer.

   Whether disciplinary action is appropriate will always depend on the particular facts and circumstances of each incident but, in short, yes – it may be appropriate to take disciplinary action against an employee who has made offensive comments on social media, even if it was done outside of work hours and from a personal account.

   Factors to take into consideration when deciding if disciplinary action is appropriate in such circumstances, and ultimately whether a dismissal might be a fair outcome under employment law, are:

   • whether the employer has a social-media policy, and what that says about an employee’s use of social media
   • the nature and seriousness of the alleged misuse
   • actual or potential damage done to customer relationships or the reputation of the employer, and the impact of the employee’s conduct on the employer’s business
   • any previous warnings for similar misconduct in the past
   • the reasonableness of the employer’s disapproval of the employee’s behaviour
   • the employee’s position and role
   • whether the name of the employer or names of customers or colleagues are mentioned in the post, the public account details, or linked identifiable accounts

   If an employer becomes aware of social media posts by an employee that it considers could warrant disciplinary action, then it is just as important that a full, fair and proper disciplinary investigation and procedure is undertaken as it would be for any other incident of misconduct that may occur in the workplace, in order to protect the employer as far as possible from claims for unfair dismissal in the event that an employee is dismissed at the conclusion of those proceedings.

   If you would like to speak to one of our expert employment law solicitors in relation to the matters raised in this article, please get in touch on 01782 262031

5. Changes to the Domestic Abuse Act 2021

   July 9, 2021 7:32 am Leave a Comment

   The Domestic Abuse Act 2021 received Royal Assent on 29^th April. Some of its provisions come into effect immediately, but most are expected to come into effect with detailed Regulations later this year.

   So what changes can we expect to see?
   

   In brief, the legislation aims to promote awareness of domestic abuse to better protect and support victims, not only from further abuse, but to enable them to participate safely and without intimidation in Criminal and Family Proceedings.

   The Act recognises that domestic abuse includes not only physical or sexual assault, but threatening behaviour, controlling or coercive behaviour, financial and emotional abuse. It also recognises that child witnesses are also victims of that abuse.

   A new criminal offence of Non-Fatal Strangulation or Suffocation is created and the existing offence of disclosing private intimate photographs (known as “revenge porn”) is extended to cover the threat of disclosing the photographs as well.

   Homeless victims of domestic abuse will automatically have priority need for housing and GP’s must provide victims of domestic abuse with the letter to support their Application for Legal Aid funding without charge.

   The Police are given additional powers to be able to issue a Domestic Abuse Protection Notice (DAPN) where a Senior Officer has reasonable grounds to believe abuse has taken place. Victims will be able to apply to Court for a Domestic Abuse Protection Order (DAPO), which will last longer than traditional Injunctions.

   A DAPO will be broader in scope than a conventional Injunction. In addition to protecting the victim from further incidents of abuse or harassment, provisions can be made for electronic monitoring and specific obligations put on the perpetrator to address behavioural or addiction issues.

   In Court Proceedings the perpetrator will not be allowed to cross-examine their victim and Local Authorities publish their plans to provide additional support to victims of domestic abuse.

   We welcome the government’s commitment to tackling domestic abuse. As a specialist Family Law team, we can assist in dealing with abuse and bringing your relationship to an end, offering support through emergency court proceedings, seeking a non-molestation order and / or an occupation order. We can also assist you through divorce proceedings and resolution of finances following the end of your relationship, together with sorting arrangements for your children. 

   Should you wish to discuss any topics mentioned in this article, please contact us via telephone on 01782 956123 or through our online contact form so that an appointment can be set up with one of specialist family solicitors.

6. Recent court case demonstrates why incorporation of terms and conditions matters

   June 29, 2021 12:07 pm Leave a Comment

   A recent High Court case, concerning, amongst other things, whether or not the supplier’s standard terms and conditions were properly incorporated into the contract between the parties, has demonstrated the need for careful drafting of standard terms and conditions.

   Phoenix Interior Design Ltd v Henley Homes plc [2021] EWHC 1573 (QB) was a lengthy court case involving a number of complex legal issues, including in respect of the reasonableness of an exclusion from the warranty for goods and services supplied.

   The claimant – an interior designer – sought to bring a claim against unpaid invoices from the defendant for monies owed in connection with goods supplied and services rendered in relation to the refurbishment of (what the defendant claimed was) a five-star hotel in the Scottish Highlands.

   The claimant asserted that the balance outstanding from the defendant comprised one half of the agreed price under the contract between them. However, the defendant counterclaimed that the goods supplied were defective. The defendant further argued that, as the last half of the price was payable on completion and (in their opinion) performance was defective, completion had never occurred and the remaining half of the price had never fallen due for payment.

   In relation to the standard terms and conditions, the initial question arising was whether the claimant’s standard terms and conditions had been incorporated into the contract between the parties. Here the court referred to an earlier (2006) case for the test for incorporation with the question as to whether terms and conditions had been properly incorporated into the contract between the parties depending “on whether that which each party says and does is such as to lead a reasonable person in their position to believe that those terms were to govern their legal relations’. The court also considered whether the claimant, in issuing its standard terms and conditions, had done all that was reasonably sufficient to give the customer (the defendant) notice of those conditions.

   Having been handed to, and later emailed to, the defendant, the court concluded that the claimant’s terms and conditions had been incorporated into the contract. The High Court further held that the claimant was able to recover almost all of the remaining amount of the contract price due to it, due to the successful arguments in respect of the reasonableness of its terms and conditions and the factual circumstances around the claim itself. However, this case serves as a cautionary tale to suppliers of goods and services to ensure that they provide a copy of their terms and conditions before the contract is formed and not merely after the fact – for example, on the back of the invoice.

   If you require advice on your business’ standard terms and conditions and the proper incorporation of the same, or you wish to have your terms and conditions reviewed by one of our specialist corporate and commercial law solicitors, contact us by telephone on 01782 652392 or fill out our contact form here https://tinsdills.co.uk/business/company-commercial/

7. Can I force my employees to get a COVID-19 vaccine?

   June 18, 2021 12:15 pm Leave a Comment

   Following a consultation conducted by the Department of Health and Social Care, the government has announced that vaccinations to protect against coronavirus (COVID-19) are to be made compulsory for anyone working in a CQC-registered care home in England providing nursing or personal care. Further consultation is taking place with regards to making vaccination mandatory for NHS workers too.

   This announcement has sparked a debate as to the autonomy and personal freedom of workers and the duty of employers to ensure the safety of their staff.  The British Medical Association, which represents doctors and medical students in the UK, has warned that making vaccination for care workers mandatory would be “a blunt instrument that carries its own risks” but this does not detract from the responsibility employers have to ensure their staff’s health and safety.

   This is not the first time that mandatory vaccination has been introduced in the healthcare sector though. Certain medical professionals are required to be vaccinated against Hepatitis B in order to carry out their roles.

   It may be that similar procedures are put in place in respect of the coronavirus vaccination programme and workers who refuse to be vaccinated may need to be prepared to be redeployed or they could be dismissed from their employment.

   While it is to become compulsory for healthcare workers to be vaccinated, mandatory vaccination is not expected to be introduced under law in other sectors. However, many employers are considering introducing a mandatory vaccination policy of their own.  Employers have a duty to ensure the health, safety and welfare (in so far as is reasonably practicable) of the people working for them, and this duty of care extends to those who physically interact with the business too.

   Introducing any such policy should be done with great care, as employers need to be mindful that a blanket approach could indirectly discriminate against certain groups with one or more ‘protected characteristics’ (which include disability, religion or belief and age). Assessments will need to be carried out to determine whether a mandatory vaccination programme is a proportionate method of addressing the risk posed to staff and those who physically interact with them, or whether other less intrusive options are available. Reasons why mandatory vaccination may be considered a reasonable management instruction might include a difficulty to employ other safety measures (such as social distancing) or a particularly high level of risk to individuals interacting with the business (as is the case with healthcare).

   Employers having a ‘one size fits all’ approach to coronavirus vaccination for their workers, which results in any worker being treated less favourably as a result of not being vaccinated, potentially puts the employer at risk of discrimination claims unless the organisation can justify the approach taken as being a proportionate means of achieving a legitimate aim.

   Whether mandatory vaccination is proportionate will depend on factors such as:

   • how the policy operates in practice;
   • the impact on individual workers; and
   • whether the risk to health and safety can be reduced in less intrusive ways.
     

   If implementation of a mandatory coronavirus vaccination policy is not handled with care by an employer there is a real risk that employees could ‘vote with their feet’ when an employer seeks to enforce that policy, and when employees leave due to the actions of their employers, the employer could face claims for constructive dismissal and/or discrimination.

   If you would like to know more about implementing a mandatory vaccination policy while protecting your business (as far as possible) from claims of discrimination or constructive dismissal, speak to one of our specialist employment solicitors today on 01782 262031 or fill out an online enquiry form here.

8. Road Traffic Accident Reforms – What You Need to Know!

   May 27, 2021 1:56 pm Leave a Comment

   Insurance companies say that the cost of car insurance policies increase year on year due mainly to the amount of personal injury claims made following road accidents. 

   The insurance industry have asked the Government for quite some time for changes to be made to tackle this. In 2013, substantial changes were made, which, amongst other things, limited the costs that could be claimed in personal injury claims, resulting in huge savings to insurance companies and their shareholders. However, despite these savings, most did not see a deduction to their insurance premiums. 

   Insurers understandably remained unhappy following the 2013 changes and pushed for even further reform. Now we are about to see arguably the biggest changes come into force, and you may not even be aware. These changes will fundamentally affect how and what you can claim for following a road traffic accident.

   If you sustain a whiplash injury following an accident that takes place on or after 31^st May 2021, the introduction of the Whiplash Injuries Regulations 2021 will mean that the level of compensation you receive will be capped in line with the tariffs contained within the Regulations. So what does this mean for you? By way of example, a whiplash injury lasting 3-6 months will likely attract a figure of £495 which is approximately a quarter of the sum that would probably have been awarded if the accident had occurred before the end of May 2021. 

   Furthermore, those bringing a claim for whiplash following a road traffic accident with a value of under £5,000 for their injuries will not be entitled to payment of their legal fees from the other parties’ insurers. This means that you will have to pay your solicitor to represent you in these claims or take on the well-funded insurer alone.

   However, there are some exceptions to the new compensation amounts. Cases made by “vulnerable road users” will not fall within the reforms. This includes those who were injured whilst: – 

   • using a motorcycle; 
   • a pillion passenger on, or a passenger in a sidecar attached to, a motorcycle; 
   • using a wheelchair, a powered wheelchair or a mobility scooter; 
   • using a bicycle or other pedal cycle; 
   • riding a horse; or 
   • a pedestrian;

   Chances are, you probably will not have heard about these reforms nor will come across them unless you have a road traffic accident after 31 May 2021, and whatever the fairness or merits of these reforms, they fundamentally affect all road traffic accidents and are here to stay. 

   If you would like more information regarding these reforms, or wish to speak to our expert Personal Injury Solicitors regarding a potential road traffic accident compensation claim, speak to one of our advisors on 01782 956363.

9. National Walking Month – Staying Safe while Walking

   May 4, 2021 8:20 am Leave a Comment

   May is National Walking Month and hopefully as the evenings are lighter for longer we can continue the good habit we all tried to incorporate into our new routines during the third lockdown.
   
   Walking is free and has a whole host of health benefits especially for your heart. It has been shown to reduce the risk of heart disease and strokes and can also lower the risk of dementia. Not only that, walking will also help improve your mood by releasing “happy” chemicals into your body, so why not give it a go this May.
   
   Of course, when taking part in any outdoor activities, we should try our best to ensure we do so safely. So whether you are hiking in the countryside or walking around your estate or local town here are a number of tips to follow so that we can all stay safe whilst walking.

   Roads

   The Highway Code sets out how as pedestrians we should act on the roads to stay safe. This includes:-
   
   • Always walk on pavements if possible
   • Use designated crossings as far as possible and follow the Green Cross Code
   • Try to avoid crossing between parked cars and make sure the driver has seen you before crossing
   • Help other road users to see you by wearing or carrying something bright or fluorescent
   • Use reflective materials at night such as armbands, sashes or jackets
   • Take particular care of young children, pushchairs and wheelchairs

   Countryside

   A lot of roads in the countryside won’t have pavements.
   
   If you are in a small group, always walk on the right hand side of the road, facing the oncoming traffic so that you can be seen. Consider crossing to the left hand side on sharp bends before returning to the right hand side after the bend.
   
   If you are part of a large, organised group, then you should stay to the left with a look out at the front and back with appropriate lighting/reflective material.
   
   Don’t become distracted by electronic devices – look and listen out for traffic and enjoy the views!

   

   Potholes

   As you are walking, keep an eye out for potholes and uneven pathways or kerbs, many injuries occur whilst walking from pedestrians tripping on uneven ground or deceiving potholes.

   Alcohol

   A well-deserved drink part way through/at the end of a walk is fine, but don’t consume so much that your judgement and abilities are impaired.

   Most importantly, enjoy the fresh air, and try exploring some of your local walking routes this month, you may be surprised by how many beauty spots there are at hand.

   Our Personal Injury Team are very experienced in dealing with accidents involving pedestrians. To find out more information, contact our friendly team on 01782 956123.

10. Colin v Cuthbert: The Great British Cake Off

    April 26, 2021 4:54 pm Leave a Comment

    As most people will know, M&S have brought court proceedings against Aldi in relation to Aldi’s ‘Cuthbert the Caterpillar’ cake. Apparently, it was as long ago as 1990 that the now famous caterpillar cake was first sold by M&S, and it claims to have since manufactured 15 million caterpillar cakes under the names of ‘Colin the Caterpillar’ and his female counterpart ‘Connie the Caterpillar’. Following their huge success, in 2008 and 2016 respectively, M&S protected those brands as UK trademarks, which M&S now claim Aldi have breached with the sale of their own brand “Cuthbert the Caterpillar”, who bears a striking resemblance to the M&S original.

    A trademark can be any sign that identifies you as the owner of your goods or services to make it clear they belong to you and gives the owner of a trademark exclusive use of that sign. Many things can be registered as a trademark, but names and logos are the most common, however a trademark can be anything that allows consumers to distinguish a business’s goods or services from those of another.

    Trademark registration gives the owner the right to sue anyone who uses an identical or similar mark in the course of trade, without the owner’s consent, for infringement as is the case with M&S and Aldi. For M&S to succeed, they will have to prove that Aldi’s Cuthbert the Caterpillar cake has caused or is likely to cause confusion to consumers.

    M&S may also argue that Aldi’s Cuthbert the Caterpillar cake amounts to passing off. Passing off is a common law offence which can protect any goodwill associated with unregistered rights, which can include the appearance of a product. In this case M&S would need to show that Aldi’s Cuthbert the Caterpillar cake has damaged, or has the potential to damage, their goodwill in Colin the Caterpillar.

    The Court’s decision will depend on whether it believes confusion between the products was likely at the time when Cuthbert the Caterpillar cake was sold and whether Aldi is benefitting commercially by bringing a confusingly similar product to the market.

    Interestingly most other supermarkets have also created their own similar product. The UK’s ‘big four’ supermarkets have been selling similar style cakes for some time under the names ‘Curly the Caterpillar’, ‘Wiggles the Caterpillar’, ‘Clyde the Caterpillar’ and ‘Morris the Caterpillar’, all of which are Caterpillar shaped cakes. It remains to be seen if M&S will also issue legal proceedings against these brands.

    Regardless of the outcome some may say that this is a shrewd move from M&S due to the significant publicity and media attention this legal battle has created.