Author Archives: Steven Mather

About Steven Mather

I'm Steven Mather, Litigation Solicitor and Partner at Josiah Hincks Solicitors in Leicester. We've been established since 1927, have 5 offices across Leicestershire with over 50 staff. That makes us as one of the leading law firms in Leicestershire. Call Us Now on: 01858 462 462

Pension Ombudsman confirms view on SIPP Administrators duties

Pension Mis-Selling Claims SolicitorThe Pension Ombudsman has confirmed its position in relation to the duties of SIPP providers when faced with complex, or risker investments within the SIPP.

Ombudsman Anthony Arter ruled against a complaint lodged by ‘Mr N’, deciding it was not Stadia’s role to undertake the level of due diligence Mr N had suggested.

This follows Mr Arter’s decision in the Berkeley Burke case, where he also ruled it was not the SIPP Provider’s responsibility to conduct extensive investigations into the suitability of the proposed investments.

The Berkeley Burke case was initally looked at by the Financial Ombudsman Service (FOS) who ruled against the SIPP provider for failing to carry out enough due dilligence. It said that the SIPP provider should have revieweed the risky or unsuitable investments and questioned whether to permit the client to place deals for these within the SIPP.

In this case, Mr Artur stated: “The limit of Stadia’s responsibility as administrator is to consider whether or not an investment falls within the list permitted by HMRC. Whilst they can choose not to allow an investment even if it is permitted by HMRC, there is no requirement on them to do so.”

The investment in this particular matter was a non-regulated investment of £144,000 in Australian Carbon Credits and £3,900 in African Land.

From a SIPP Trustee/Administrator’s point of view, it demonstrates the need to carry out basic checks  and where approrpiate give warnings sufficient to meet the requirements imposed on them by the regulator and HMRC for such investments at that time.

From an investors point of view, this decision indicates how difficult it is to blame a failed investment on a SIPP Trustee. Given that SIPP is a Self Invested Pension Plan, in effect the investor is making the calls on what to invest in, then the responsibility to get things right is important.

There would, in my view, be a very different outcome if there was any advice on the investments. For example, if an IFA had advised the customer to enter into the investments, then we would look at pursuing a claim against the IFA.

If you are a SIPP provider and want me to review your compliance paperwork, or are an investor/retail customer who needs advice on bring a claim for mis-selling involving SIPPs, Pensions or other investments, then please get in touch.

Source: FT Advisor

Business is Great!

I am currently Chapter Director for BNI Business Connect. Each week, at the end of the meeting, I bring a little motivational quote, which of course I source from Google!

This week I ended with this fantastic story about the effect that positivity can have on your business and others. Simply being happy and treating people well will necessarily attract more business for you.

Here’s the story:

A landscape gardener ran a business that had been in the family for two or three generations. The staff were happy, and customers loved to visit the store, or to have the staff work on their gardens or make deliveries – anything from bedding plants to ride-on mowers.

For as long as anyone could remember, the current owner and previous generations of owners were extremely positive happy people.

Most folk assumed it was because they ran a successful business.

In fact it was the other way around…

A tradition in the business was that the owner always wore a big lapel badge, saying Business Is Great!

The business was indeed generally great, although it went through tough times like any other. What never changed however was the owner’s attitude, and the badge saying Business Is Great!

Everyone who saw the badge for the first time invariably asked, “What’s so great about business?” Sometimes people would also comment that their own business was miserable, or even that they personally were miserable or stressed.

Anyhow, the Business Is Great! badge always tended to start a conversation, which typically involved the owner talking about lots of positive aspects of business and work, for example:

  • the pleasure of meeting and talking with different people every day
  • the reward that comes from helping staff take on new challenges and experiences
  • the fun and laughter in a relaxed and healthy work environment
  • the fascination in the work itself, and in the other people’s work and businesses
  • the great feeling when you finish a job and do it to the best of your capabilities
  • the new things you learn every day – even without looking to do so and the thought that everyone in business is blessed – because there are many millions of people who would swap their own situation to have the same opportunities of doing a productive meaningful job, in a civilized well-fed country, where we have no real worries.
  • And so the list went on. And no matter how miserable a person was, they’d usually end up feeling a lot happier after just a couple of minutes listening to all this infectious enthusiasm and positivity.

It is impossible to quantify or measure attitude like this, but to one extent or another it’s probably a self-fulfilling prophecy, on which point, if asked about the badge in a quiet moment, the business owner would confide:

“The badge came first. The great business followed.”

The Night Before Christmas v2 – The Legal Proceedings

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to a mouse.

A variety of foot apparel, e.g. stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive at sometime thereafter.

The minor residents, i.e. the children, of the aforementioned House were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the parts of the second part (hereinafter “Mamma”), and said Mamma had retired for a sustained period of sleep. (At such time, the parties were clad in various forms of headgear, e.g. kerchief and cap.)

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e. the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was the aforementioned Claus.

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co-conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts.

(Said items did not, however, constitute “gifts” to said minor pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim “Merry Christmas to all and to all a good night”, or words to that effect.

 

Source: Not me.

A Lawyer’s Christmas (amercianised legal humour)

From me (hereinafter called the "Wishor") to you (hereinafter called the"Wishee"),  please accept without obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, non addictive, gender neutral, celebration of summer solstice holiday, practiced with the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious or secular persuasions or traditions of others,or their choice not to practice religious or secular traditions at all, and a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calender year 2013, but with due respect for the calenders of choice of other cultures or sects, and having regard to the race, creed, colour, age, physical ability, religious faith, choice of computer platform or dietary preference of the Wishee.

By accepting this greeting you are bound by these terms that this Greeting:

  1. Is subject to further clarification or withdrawal;
  2. Is freely transferable provided that no alteration shall be made to the original greeting and that the proprietary rights of the Wishor are acknowledged;
  3. Implies no promise by the Wishor to actually implement any of the wishes;
  4. May not be enforcable in certain jurisdictions or the restrictions herein may not be binding upon certain wishees in certain jurisdictions and is revocable at the sole discretion of the Wishor;
  5. Is warranted to perform as reasonably may be expected within the usual application of good tidings, for a period of one year or until the issuance of a subsequent holiday greeting whichever comes first.
  6. The Wishor warrants this greeting only for the limited replacement of this wish or issuance of a new wish at the sole discretion of the Wishor;
  7. Any reference in this greeting to a or the Lord, a Father Christmas, Our or My or Your Saviour of the Saviiour of others, or any other festive figures, whether actual or ficticious, dead or alive, or everlasting or omnipresent, shall not imply any endorsement by or from them in respect of this greeting, and all proprietary rights in any referred third party names and images except that of God and his Son, are hereby acknowledged.

Suspension of Employees – Still possible or a breach of trust and confidence

 

Many employers will be familiar with the situation. Something untoward happens at work, the finger gets pointed, the employer needs to take action; in order to appear fair, ACAS say that an investigation needs to take place before a disciplinary. So you suspend the employee on full pay to ensure that a fair investigation can take place. The disciplinary is held days later, perhaps the week after. The employee is told that no decision has been made yet and will not be made until after the hearing.

Seems normal, right?

Well, in the case of Crawford v Suffolk Mental Health Partnership NHS Trust ([2012] EWCA Civ 138) Elias LJ said this:

“This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him”

This case involved nurses tying a patient to a chair and a table – “the chair was secured to a dining room table by a sheet or two and that there was another sheet across his stomach”. I can’t imagine something more serious.

Elias’ comments are effectively that suspending employees in a knee jerk way would amount to breach of the implied term of trust and confidence, thus resulting in a potential constructive dismissal case.

I understand where Elias is coming from; any employees I’ve acted for who have been suspended have always said they have been made to feel like they are in the wrong already. People gossip and the taint of a disciplinary stays despite a cleared name.

But still, if I was acting for the employer (particularly in the example above) I would have suggested suspension, because if the allegations were found to be true, such misconduct could see the business closed down by the relevant authorities.

The point Elias was making was not to be knee jerked into suspension. So from now on, I think lawyers and employers need to think carefully (and perhaps even document reasons) about suspending an employee pending investigations. If tying a patient to a chair and table is not serious enough to justify it, what is? Would an allegation of theft be serious or does suspension imply guilt. What about, as Sean Jones QC said at recent Employment Law seminar, a teacher accused of paedophilia?

Difficult stuff, and I would welcome everyone’s views on suspension in the comments box below.

Great Quote re Mediation

Just reading a recent case Oliver & Anor v Symons & Anor (link below) which relates to rights of way for agricultural vehicles, swing space and verge space.

The final paragraph of the transcript ends with a great obiter quote regarding mediation.

[quote]Lord Justice Ward:

  1. I also agree. I wish particularly to associate myself with Elias L.J.’s pointing out that this is a case crying out for mediation.  All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.  It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.[/quote]

http://www.bailii.org/ew/cases/EWCA/Civ/2012/267.html#para53

Online Marketing for Law Firms

I am pleased to launch a new website for my firm, Josiah Hincks Solicitors, called Rate Swap Advice.

If you do not know, all of the big banks, including Barclays, HSBC, RBS/Natwest, Lloyds and Yorkshire Bank have over the last 5 years been selling products known as “rate swaps” or Derivative Rate Swaps/Interest Rate Swaps/Interest Hedging etc. They are a complicated financial product not appropriate for many small business to which they were sold.

I don’t want to blow my firm’s trumpet, but we are one of the only Solicitors in Leicester with experience and know-how to deal with financial services litigation. So I created a new website to gain exposure to rate swap claims being brought against the banks.

My firm were one of the first to act on PPI claims before they went mainstream. We’re now leading the way on rate swap mis-selling.

This post is more than simply SEO for that site though. Its an insight to my idea and concept of how law firms need to market in this New Era.

Its simply not good enough to have a yellow pages advert. Or even a website showcasing the firm. I believe that our prospective clients are looking for relevant, contexual, information – the internet is about accessing information. Provide a client with information and yes sure they may choose to use another solicitor, but its likely that they will then validate the information they’ve absorbed with other sources. They will look at the firm’s main website. They will ask around. They will research the firm online, eg on Good Solicitors Guide etc tha. Heck, they will likely ask friends and colleagues on Social Media like Twitter and Facebook.

So a mini marketing plan is to get a website out their providing information. But then to listen for buying signals on social media. Help the client. Be transparent, but helpful.

My background in being what I described somewhat tongue-in-cheek as a “Webentreprenuer” means that I (hopefully) have a good grasp of how the web works. I’ve ran websites since 1997, at time when many people didnt have internet connections at home, never mind so ingrained into our daily existence as it is now.

The market-driving forces in the legal world is not ABS or Tesco Law (although they do bring about new challenges), but its Amazon, Compare The Market and eBay. Those sites are leading the way in how consumers interact with suppliers online.

Law firms need to adapt to the changing landscape. Creating off shoot sites is just one idea of many that I believe is required to lead the way.

Here’s hoping! But in the meantime, if you know of anyone that has potentially been mis-sold a rate swap product, get in touch with our Rate Swap Solicitors

Crisp v Apple Retail – Importance of a Social Media Policy

The importance of having a well written Social Media Policy has come to light in an Employment Tribunal case reported by People Management.

In the case, Crisp v Apple, Crisp worked in an Apple Store. He posted derogatory statements on Facebook about Apple and its products. The posts were made on a “private” Facebook page and outside of working hours. One of his colleagues, who happened to be a Facebook “friend”, saw the comments, printed the posts and passed them to the store manager. Crisp was subsequently dismissed for gross misconduct.

The employment tribunal rejected Crisp’s claim for unfair dismissal. Key to the tribunal’s decision was the fact that Apple had a clear social media policy in place and had made it absolutely plain throughout the induction process that commentary on Apple products, or critical remarks about the brand, were strictly prohibited. Interestingly the tribunal took into account that such comments would be particularly damaging for Apple as image is so central to its success.

If you compare this case to the Club 24 case, involving an employee working for Skoda, the key difference was a clear social media policy. In that case, the employee successfully argued unfair dismissal and yet in the Apple tribunal case it was not unfair.

I could not find what the actual comments that Crisp said and so presumably it was more than just “lol too true” like in the Whitham case and so my guess is that the seriousness of the comments were also taken into account.

That said, I believe it is crucial for firms to have a social media policy for employees, whether that’s to prohibit Facebook and twitter at work, allow it, control it’s use professionally or privately.

If you need help drafting a social media policy for your business, please do not hesitate to get in touch.

Facebook, work, unfair dismissal and choosing friends carefully

I’ve got a difficult, self imposed rule. I’d rather not be Facebook friends with work colleagues or clients. It’s not because I put anything on Facebook thats dodgy, immoral or edgy. It’s mostly food and my daughter. But I just don’t want everyone to know everything.

So it was with interest that I read about the employment tribunal case of Whitham v Club 24 Ltd t/a Ventura (with thanks to Wedlake Bell via Lexology)

Mrs Whitham was employed by Club 24 Ltd as a Team Leader for their client Skoda which is part of the Volkswagen group. After a particularly trying day at the office Whitham commented on her Facebook page “I think I work in a nursery and I do not mean working with plants”. A colleague responded to this post which prompted Whitham to reply “Don’t worry, takes a lot for the bastards to grind me down. LOL” An ex-employee then commented “Ya, work with a lot of planks though!!! LOL”, to which Whitham replied “2 true xx”.

Club 24 commenced disciplinary proceedings and Whitham was dismissed, mainly because they felt the comments could have damaged the relationship between Club 24 and Volkswagen. The justification for this was that the Facebook profile from which Whitham wrote her comments stated that she was an employee of Skoda UK, which, while not strictly true, could suggest that the employees of Skoda UK are at best, young, and at worst, infantile.

The Tribunal decided that she had been unfairly dismissed since sacking her for what they felt was a relatively mild comment on Facebook fell outside the band of reasonable responses. They noted that the comments on Facebook did not specifically refer to a client nor was there any evidence of any actual or likely harm to the relationship.

Now, the thing is she will still have lost her job albeit she now has some compensation.

Choosing your Facebook friends is important and so is having the right privacy settings. If a friend comments on your status, and your boss is friends with that friend, then on default settings your boss will see your post.

Equally on Twitter on must be careful to realize that all tweets are public and any replies get shown on your public timeline. So visit twitter.com/smather21and you’ll see everything I’ve don on Twitter. So when you think you’re replying to someone, know it’s public.

Having a social media policy as an Employer is an absolute must have for your employee handbook. Having one means that employers can set down in writing their expectations and employees know what they should and shouldn’t do.

Rapport in the Courtroom

This whole blog is becoming devoted to the more personal issues in my life. As you may know, I’m a lawyer (solicitor) a mediator and now an NLP Practictioner. I hope to develop my NLP training into something greater.

This blog post is about one small aspect of NLP – rapport – and how and why it is an essential skill for lawyers (barristers, solicitors, legal executives and, gosh, even secretaries) to have.

Rapport is defined in a multitude of ways, but effectively it’s when two people are connected when communicating, they are on the same wavelength. Rapport takes a while to get used and probably a life time to master but here are some useful steps:

1. Make eye contact first, smile, introduce yourself. Receive the others introduction, repeat their name, ask them something about themselves that’s linked to the environment you’re in.
2. Listen. Actively listen to what the person has to say, as if they are the wisest person you’ve met (they won’t be, but still be interested in them).
3. Pace them/tune in to what they are saying, reflect it back, rephrase it, support them, be empathic. Here’s where you start to build the relationship and let them know you’re listening.
4. Once you have the person on side, you can then lead/tune out, probe, question, reality check, reframe the important stuff or get them to think about their perceptions or beliefs differently.

Every two way conversation needs rapport at its core or else it will be difficult. A one way battle. Like banging your head against the wall. Falling on deaf ears.

How does rapport apply to lawyers and particularly as the title of this blog, in the Courtroom.

I was in Court for an Case Management Conference last week, up against a barrister from London (own account, no chambers). Even before going him, just a polite question from me as to whether his instructing solicitors had provided him with draft directions. The response: pft, we won’t need them after this morning snort snort. Hmm, I said, I wholeheartedly disagree your application is going nowhere fast, so we’ll need to agree directions for Trial. Response: ha, another waste of costs if you ask me, your client is bound to lose, so no point in going to Trial.

In walks Her Honour. I make eye contact and smile. Counsel begins. I’m almost ready to make the unusual step of asking the Court to disregard any submissions on summary judgement because no application has been made just included in submissions filed last yesterday, when the Judge does it for me.

But but but… Counsel continued to argue, not in the legal sense either and indeed at one point the Judge told him to stop squabbling. Counsel was a man without any rapport, any awareness. It was a losing battle but he persisted, which is normally admirable but only when respectful or done intelligently. Counsel had none of the above.

That’s the last I want to hear of that today, let’s look at the other issues, said the Judge.

And so the “spat” between Counsel and Judge continued, me a mere byestander watching, smiling, smirking. A lesson in how not to do advocacy. I’m not an advocacy expert, I do it when required, I don’t profess to be any good. Just honest, to the point and hopefully intelligently. But watching Counsel made me realise that having rapport is incredibly powerful.

Unrapportfulness is yawning and saying sorry that’s boring, when someone is telling you a story. Rapport is truly genuinely being awed by the story.

Counsel had zero rapport. He was literally arguing with the Judge at one point – a battle never to be won.

Last week was a lesson how not to do things. It was also a good demonstration on how my knowledge of NLP can be powerfully used, even as a lawyer.