Law in Practice: Giving a Legal Advice - Case Study Example

Law in Practice Hammond Lawry, Lawrence Solicitors, Martins Buildings, Water Street, Liverpool, L2 3SX Ms Femi Matewu, Coral Buildings, Landons Street, Liverpool. Date: 15th April 2008 Ref: ACC: 1905 Dear Ms Femi Matewu, On 3rd March 2008, you met with an accident at Manor Park Junction. While you were driving car, you jumped the red signal thus hitting the oncoming vehicle which Mr Roger Cooke was driving. Not wearing seatbelt, he was thrown out of his car and was injured. Having been convicted on 8th April 2008 for careless driving, you sought my advice for defending a possible personal injury claim from Roger Cooke. I have set out below the advice I gave you at our meeting on 10th April 2008. Advice Given Section 3 of Road Traffic Act 1998 states that it is an offence for a person to drive a motor vehicle without due care and attention on a road and without due care to the other persons using the road. As you have been convicted of an offence under this section, your driving license will be endorsed with minimum 3 points as per code CD 30. Once the points reach 12, you will be banned from driving for a specified period of time.1 However disqualification is discretionary. The trend now is looking at it as a poor driving as held in R v.Simmons.2 The circumstances under which you ran into traffic lights are quite understandable in that you had been under great mental stress trying to digest the prospect of losing your long held job for no fault of yours. This you confided with your friend Maggie and the fact that you are a quite a responsible person is proved by your conduct of informing your husband on phone that you would late. The breathalyzer test also revealed that there was no abnormal drinking on your part. You stopped by the accident spot without speeding up and that mitigates your offence. More over Roger Cooke who was hit by your car was reported to have not worn his seat belt and been carrying an expired insurance policy. Had he been careful, accident could have been averted and the damage to the body and the vehicle could have been minimized With these things weighing in your favour, you can appeal against your conviction and have your points further reduced. As for, the personal injury claim from the Cooke, you have to inform your insurers about the accident and face the claim suitably considering the fact the Cooke also contributed to the damage by not wearing seat belt and by not renewing his insurance policy in time. Maggie, who was in the car with you at the time of accident, could testify as to the mental condition you were in because of the impending redundancy threat in your job. All these defences would mitigate the severity of the punishment and also the quantum of the personal injury claim you might expect from Cooke. As he has suffered whiplash injury after effects of which can arise even after many years, the claim is likely to be substantial. As he was not in his seat belt, he was thrown out of the car and hence his personal injury claim can be resisted. Much depends on the degree of fault on your side and also on his side as contributory factor. But as you have been convicted under section 3, you can not altogether avoid payment of personal injury claim from Cooke which any way your insurers are going to handle provided your insurance against third party risks was in force at the time of accident. The fact Cooke did not have insurance at the time of accident would be called into question only if he were to meet a personal injury claim from you which is however not the case. You should not ignore the claim when received. You should respond quickly within 14 days of receiving it. Otherwise judgment will be entered against you. In reply, you can pay the amount claimed, admit in full or part and ask for time to pay or dispute the claim. If the claim is for 5000 or less, it will be dealt with by small claims track court. ACTION TO BE TAKEN BY THIS FIRM 1) We will prepare an appeal against your conviction for careless driving so that, we can make use of any relief you get from the court to defend against personal injury claim to be ordered at the minimum possible amount. 2) As soon as pre-action protocol is received from Roger Cook's solicitor, we will reply it suitably in your defence and represent with his insurers n your behalf. ACTION TO BE TAKEN BY YOU You should contact us immediately on receiving the pre-action protocol from Roger Cooke's solicitors and submit it at our office for our follow up action. You should keep us adviced from time to time as when you receive any communication from the insurers or from the court and others in this connection for our prompt action to keep safeguard your interests. Sincerely for Lawrence Solicitors, -sd- Hammond Lawry Qn: 2 To Mr Cooke Mr Cooke has three years time to make a personal injury claim on Ms. Femi for the whiplash injury on him and for the damage to his vehicle. He is eligible for an interim payment so that he can repair his damaged car or buy a new one as may be advised by his insurers. He can also claim for loss of earnings and also compensation to alter his house to accommodate to new disability arising out of the accident. If party at fault is established, the insurance company will not go to court as it would add to the costs. As he did not have an insurance policy in force or a security for third party risks at the time of accident as required under section 143 of Road Traffic Act, it is highly unlikely his claim can fully succeed. Though he had no insurance, he was not at fault for the accident. As he was driving the car illegally without insurance, even if the other person, here Femi, drove illegally Cooke can not fully succeed in his claim. 3 He can claim for the whiplash, injury to his right leg and nose. First his lawyers will have to send Femi what is called pre-action protocol as required by the Civil Procedure. The claimant Mr Cooke is required to send to the proposed defendant Femi two copies of his letter of claim setting out in detail. One copy for Femi and another for her insurers. The letter of claim shall give summary of facts based on which claim is being made and should point out the nature of injuries suffered along with details of financial loss incurred. As it was a road traffic accident, the claimant should also give details of the hospital where he underwent treatment along with his reference number for treatment. The claim letter will seek the details of defendant's insurer. Claimant's national insurance number and date of birth should also be furnished to the defendant's insurer on receipt of defendant's furnishing the details of his insurer and the same should not be mentioned in the claim letter. The details should be adequate to facilitate investigation at the defendant's end. She should reply within 21 days of the date of posting identifying the insurer. If the claimant does not receive the said reply within 21 days, he can issue proceedings. The defendant's insurers will take a maximum of three months from the date of their acknowledgement to investigate. Within 3 months insurer must reply accepting or denying liability giving reasons for denial. If the accident has occurred outside England and Wales, or if the defendant is residing outside the jurisdiction, the time limit of 21 days and three months may be extended to 42 days and six months respectively. In case of admitting liability, defendant will be deemed to have admitted for a maximum of 15,000. In case of denial, defendant shall furnish to the claimant documents relied upon which may be ordered to be disclosed by the court either in a pre-action disclosure or disclosure during the proceedings. The following are the likely documents. SECTION A In all cases where liability is at issue (I) Documents identifying nature, extent and location of damage to Defendant's vehicle where there is any dispute about point of impact (ii) MOT certificate where relevant (iii) Maintenance records where vehicle defect is alleged or it is alleged by Defendant that there was an unforeseen defect which caused or contributed to the accident SECTION B Accident involving commercial vehicle as potential Defendant (I) Tachograph charts or entry from individual control book (ii) Maintenance and repair records required for operators' licence where vehicle defect is alleged or it is alleged by Defendants that there was an unforeseen defect which caused or contributed to the accident SECTION C Cases against local authorities where highway design defect is alleged Documents produced to comply with Section 39 of the Road Traffic Act 1988 in respect of the duty designed to promote road safety to include studies into road accidents in the relevant area and documents relating to measures recommended to prevent accidents in the relevant area 4 Even though the defendant may admit liability, if she alleges contributory negligence from the claimant, defendants should give reasons supported by the documents furnished as above. The claimant should also give his reply regarding the allegations of contributory negligence before issuance of proceedings. The claimant shall also send to the defendant a schedule of special damages wherever she has admitted her liability. Parties can give list of names of experts to the opposite side considered by them to support their respective views. If the defendants engage a medical expert, claimant's solicitor shall organize access to the medical records which claimant relies on. If mutually acceptable expert is not found, the aggrieved party shall object within 14 days. If the aggrieved party rejects all the experts, then he can give names of experts of his choice. And the court will decide if the party has acted reasonably or not in this respect. If the party however does not object, he can not rely on his own expert unless other party agrees or the court so directs. The proceedings for personal injury claim has to be preceded by the above said pre-action protocol as per the civil procedure which is mandatory in England and Wales. Qn 3 Femi has been advised by her employer about her impending redundancy. She has been working for more than ten years and those who have less than 10 years of service are not being made redundant. Femi can therefore claim that her redundancy is not fair and take up the matter in appeal against the decision in writing to her employer, and demand that she be retained. An employee can claim unfair dismissal if her redundancy is not fair. An employer may have his own reason for redundancy but ignoring seniority alone can not be the basis for declaring it as an unfair dismissal. Though first in first out is the rule of thumb, it should apply to the same categories of employees. Even if they are in the same category, due to changing nature of business and requirement of new skills, the employer can justify declaring redundancy. Whatever be the reason Femi must be informed of the basis on which she is being made redundant. If employer cites any of the following reasons, then redundancy can be termed as unfair dismissal. Having asserted a statutory employment right at one time or other. Having cited maternity related grounds. Working for only part-time. Being a fixed term worker on employment contract. For demanding to be accompanied at disciplinary or grievance hearing. Having requested for flexible working hours or arrangements. For any matter under Working Time Regulations 1998. For any matter under National Minimum Wages Act 1998. For any matter under Tax Credits Act 2002. For any instance of whistle blowing. For having participated in trade union activities, having membership or non-membership in a trade union and also in respect of trade union recognition or de-recognition. For being an employee representative or a candidate for election to the committee for redundancies or business transfers. For participating in an election of an employee representative for collective redundancy purposes. For taking an action on safety and health purposes. For having taken action or proposing to take action on particular safety and health matters or participating in elections for representative of employee safety. For lawful participation in any organized industrial action lasting eight week or more or less. For refusing to work or proposing to refuse to work on Sundays in shop or also betting work on Sundays. For carrying out or proposing to carry out duties as a trustee of an occupational pension scheme. For working or proposing to work as a work force representative under Transnational Information and Consultation of Employees Regulations 1999. As the above actions prejudicial to the employer, one can presume prejudice on the part of the employer and hence can claim that her/his redundancy is not fair. The employer is obligated to cite reasons for redundancies. He should also furnish the number and descriptions of employees to be affected. Besides he should also inform the proposed method of selecting the employees for redundancy, the period over which such dismissals will last and how calculation of the redundancy payments apart from statutory minimum will be made. 5 In case of unfair dismissal under the pretext of redundancy, employee shall have the right to file a complaint with the Employment Tribunal after exhausting any appeal procedure set up by the employer. The employee may wait for maximum of 28 days for reddressal of her grievance and then give complaint to the employment tribunal. The tribunal may award more than 10% and up to 50% if the employee's case is justified. The aggrieved party can appeal to the Employment Appeal Tribunal on question of law. Bibliography Cane Peter, Atiyah Patrick. 2006 Atiyah's Accidents, Compensation and the Law, Cambridge University Press, Lockton J Deborah 2006 Employment Law, Palgrave Macmilan Law Masters, Hampshire. Read More