Davies and Partners Solicitors has launched a Family Mediation Service at its Bristol office in Aztec West Business Park.
The demand for mediation as a means of resolving disputes between separating couples has greatly increased following the Government’s introduction of rules in April of last year which mean that anyone setting out to contest the terms of their separation in court is first required to consider mediation.   The Government’s approach to mediation is supported by the independent Family Justice Review Panel, which recently published a package of recommendations aimed at improving the Family Justice System in England and Wales. These included the increased use of family mediation.   Research shows that couples find mediation extremely useful in the early stages of separation in providing impartial information on the law and legal procedures.  Some of the other benefits of mediation are that it: enables couples to examine and explore the options open to them in a confidential setting; assists couples in making informed decisions; facilitates communication and cooperation; and is a cost-effective alternative to the court process.   Davies and Partners' mediator is trained by Resolution, a member organization of the Family Mediation Council, and is a Senior Solicitor in our Matrimonial and Family Department.    For detailed information about our Family Mediation Service click here. For details of our Family Mediation Service fees click here.  

Davies and Partners is delighted to announce that the firm has been awarded accreditation by the Law Society to the Conveyancing Quality Scheme.   The Law Society launched the CQS in December 2010 to be an immediately recognisable mark of excellence in the provision of residential conveyancing services.  The big clue is in the title.  It is all about quality.   Stephen McColgan, a partner based at our Bristol office has led this initiative and has been responsible for piecing together in painstaking detail the information required by the Law Society to prove the accreditation of our practice is merited.  He comments:-   “This is a very important step forward for Davies and Partners.  It underlines very strongly our commitment to delivering conveyancing services by highly experienced well qualified lawyers, supported by suburb staff and state of the art technology.  CQS covers all of our people involved in residential property for private clients and also our large team that acts for well known names in the house-building industry conveying new homes and part exchanged properties.  Our residential property teams are based in Gloucester, Bristol and Birmingham and receive instructions from every part of England and Wales.  This is why, for us, CQS reaches so far into areas of practice where we offer great expertise to our clients.   Essentially CQS means that all of our colleagues undertaking this work have had their identities and professional qualifications verified.  They have undergone Criminal Records Bureau checks.  Their commitment to and attendance at many hours of continuing professional development courses and private study has had to be recorded and reviewed.  These requirements of CQS are not one-offs but will be continuing commitments as accreditation once granted by the Law Society is subject to annual review and there are no guarantees that it will be renewed.  The firm’s management procedures are subjected to detailed scrutiny as part of the process”.   Stephen further comments: “This reminds us to review constantly our standards and continuously raise the bar.  The client must always come first.  We are in a service industry.  The client is entitled to be assured that our services will be delivered to the highest standards.  CQS accreditation will enable us to demonstrate this against the backdrop of independent assessment using objective criteria. For a firm of our size and complexity to have been awarded this accreditation demonstrates our commitment to providing quality services in an increasingly competitive market place”.  

As was evidenced on the BBC’s 'The One Show' broadcast on 11th January 2012 there are problems with making a Will with a person who is not legally qualified.   Elizabeth Stilwell, private client associate with Davies and Partners Solicitors, advises people who want to make a Will to contact a solicitor.   Elizabeth said “people who are employed by Will Writers may have completed a short course but this is nothing in comparison with the years of rigorous legal training which solicitors have to complete before they are permitted to qualify as a lawyer.   “I have come across similar cases to that highlighted in The One Show item and I have dealt with distressed relatives who have found themselves in similar situations.  For example having a poorly drafted Will which renders the deceased’s wishes ineffective.   “I urge people to consider very carefully before putting themselves and the assets they have worked so hard to earn in the hands of Will Writers.  By going to a solicitor to make your Will you know you are speaking to someone with years of legal experience and who has proven professional legal qualifications and is required by law to be fully insured.  Solicitors also do not generally charge for the storage of Wills nor do they charge for the release of a Will to the client.  It is not uncommon for Will Writers to charge for the storage of a Will and to make a further charge for the release of the Will to the client.”   Davies and Partners has a specialist Wills, Trusts and Estates team who are all fully qualified lawyers and experienced in producing wills which meet the individual needs of their clients.  If you would like to discuss a will or any problems you may have in respect of dealing with rogue will writers or estate administrators please contact Elizabeth Stilwell at Davies and Partners solicitors, 01454 619619.

The interim report of the expert group set up by the Government to look into the issue of PIP (Poly Implant Prostheses) implants was published on 6 January 2012.    The report was commissioned following the discovery that the French manufacturer of PIP implants had been using industrial rather than medical grade silicone.  This information came to light due to concerns about the rate of rupture in these implants.  Initial advice was that there was no medical reason to remove them in the absence of clinical symptoms of rupture.  However, in December 2011, the French regulator raised concerns about the number of ruptures and a possible increased cancer risk.  The interim expert report, commissioned to consider whether advice on removal should be revised, has found no evidence to support this.  The report therefore concludes that there is no need to revise current guidance.   In response to widespread public concern, the UK Government have confirmed it will take the following action in relation to PIP implants: The NHS will contact women who have had a PIP implant to notify them of this and will provide information and advice; NHS patients seeking information about the make of their implants will be provided this free of charge; ŸPeople will be able to consult their GP or the surgical team who fitted the implant for clinical advice and assessment; ŸIf following such an assessment, the patient and doctor consider removal is appropriate, the NHS will support this.  Where the original surgery was performed by the NHS, the NHS will replace the implants.
In its report, the expert group commented that it expects private healthcare providers to take the same steps.   The interim report highlights the problem of accurate data in this area which is contributed to by the fact that healthcare providers are not compelled to report incidents of breast implant failure to the healthcare regulator.  At Davies and Partners, we have encountered cases where our contact with the regulator is the first notification they have received of a problem with that particular implant.    In order to address this problem, the expert group (together with other government agencies such as the National Patient Safety Agency) is to prepare a report on lessons to be learned from the current arrangements for monitoring the safety of implantable devices, and of the regulation and governance of the cosmetic surgery industry.  The need for regulation of this industry has already been identified in a report by the National Confidential Enquiry into Patient Outcomes and Death in September 2010 - see our article “Cosmetic Surgery Providers Could Do Better” click here and at Davies and Partners we hope this recommendation is now acted upon.   If you have any concerns about PIP or other implants, please contact the clinical negligence team at Davies and Partners.  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Davies and Partners Solicitors, in Association with UK Trade & Investment are holding a free breakfast seminar on Thursday 15 December at 8.45 am to 10.45 am, which looks at the legal implications of the new Bribery Act on international business. 
Speakers include James Vine Barrister who is a specialist in the new Act and Davies and Partner’s Head of Employment, Nigel Tillott.  The event is being held at the Holiday Inn Hotel, Crest Way, Barnwood, Gloucester, GL4 3RX.  For further information please download Seminar flyer click here

The Managing Partner of Davies and Partners Solicitors in Birmingham David Stokes, has returned home triumphant from the Hockey World Masters (over 40s) Cup in Singapore sporting a well earned Gold Medal.
David, 43, and his England Squad team mates won the prestigious tournament after beating favourites Australia 4-3 in a tight game in the group stages and then defeating New Zealand 4-0 in the final. In all of the six matches the England team played they scored 33 goals and only conceded three against Australia, which is believed to be a record for England Masters.
David, who is a partner in the Land Acquisition and Development Department at Davies and Partners Solicitors in Birmingham, lives in Bromsgrove and has been playing Hockey for over 30 years.  He currently plays for Stourport Hockey Club in the Midlands Premier League and previously played for Gloucester City in the National League.   
David was selected for the England Masters team last spring following his performances for the West of England over 40s in a regional tournament and in the subsequent England trials.  
David said, “It was a fantastic experience playing for my country in this prestigious tournament and there were some excellent matches. We played better than we could have imagined and did not let the high temperatures and humidity in Singapore put us off.  Winning the Gold medal was a huge achievement as the Australian and New Zealand teams were the firm favourites.  We are all extremely proud.”

Davies and Partners' Gloucester Office opened its doors to the local community last week to welcome clients old and new to meet their team. 
The Open Evening was the idea of Nigel Tillott who, since taking over the role as Managing Partner for the Gloucester office earlier this year, has been keen to highlight that Davies and Partners is very much a part of the Gloucester business community.  Nigel wanted to invite clients and contacts to their Barnwood Business Park offices so they could meet the firm’s team of 137 staff.   As well as having a chance to chat with the team of solicitors from the firm’s various specialist legal departments, guests were also able to listen to a number of seminars on specific areas of the law such as employment, regulatory and planning law.   On welcoming guests to the Open Evening, Nigel said, “One of the most enjoyable tasks of being a solicitor involves visiting our clients’ premises and getting a real feel for how their businesses operate.  So we wanted to reciprocate and invite all our clients and contacts to come and visit us in our offices and get to know how we all work.”   The open evening was very well attended and Nigel and the team hope that as a result clients and contacts have learned a little more about the firm and to understand a little more about the wide variety of legal services they provide.  To view a selection of photos from the Open Evening please click here

The Most Radical Reform to the Employment Law System For Decades: After months of speculation and leaks to the press the most radical reform to the employment law system for decades was outlined yesterday. Business Secretary, Vince Cable, announced the proposals as part of the Government’s plan for growth, cutting unnecessary demands on business while safeguarding workers’ rights.   In response to the suggestion by employers that dismissal laws are too onerous, particularly for small business, the Government announced yesterday a consultation on changes to employment legislation.   Mr Cable said that he wanted to help firms expand without making existing staff feel insecure, stating that the aim was to cut unnecessary bureaucracy and not to erode employee rights.   The key proposals include: A call for evidence on whether firms with 10 or fewer employees should be able to sack staff without their agreement and without risk of a tribunal if they pay compensation. A consultation on protected conversations which would allow employers to have frank discussions about poor performance with workers without fear that they could be used as evidence in a tribunal. A call for evidence on the length of time required for a consultation period on planned redundancies. Currently the length of time is 90 days, but the government is considering reducing that to 30 days. A requirement for all claims to go to the conciliation service ACAS before reaching employment tribunal. An examination as to ways to ‘slim down’ and simplify dismissal processes. Options for a “rapid resolution scheme” for more simple cases to be settled within three months. Creating a universally portable CRB check that can be viewed online from early 2013. Close a whistleblowing case law loophole which allows employees to blow the whistle about their own personal work contract. Publish a call for evidence on proposals to simplify the Transfer of Undertakings (Protection of Employment) – TUPE- rules which many businesses say are too complex and bureaucratic.   The changes have provoked a strong reaction from the Unions, with some commenting that the agenda is being driven by big business which wants the balance of power in the workplace tilted even more against the ordinary worker.

Davies and Partners welcome the Government’s announcement to support the creation of the office of Chief Coroner.  The power to do this was set out by the last Government (with cross-party support) in the Coroners and Justice Act 2009.  The Act envisaged a wider reform of the coronial system.  The current Government had intended to repeal the legislation allowing creation of this post but after extensive campaigning by, among others, INQUEST, AvMA and the Royal British Legion, has announced that it will now support creation of this office.   The Justice Minister, Ken Clarke, has announced that the Chief Coroner will be responsible for setting standards and training.  However, the Government intend to repeal those parts of the 2009 Act which provided for a revised coronial appeals system.  Under those provisions, families who wished to appeal a Coroner’s decision could have made the appeal to the Chief Coroner.  In addition to the benefits for bereaved families, this process would assist the Chief Coroner with ensuring consistency throughout the inquest service.    INQUEST have voiced their disappointment with the decision and rightly point out that the framework for the appeals process should, rather than being repealed, be evaluated by the Chief Coroner once in place so that an informed decision can be taken.   

BBC Radio 4’s File on 4 programme broadcast on 15 November 2011 shows how some Coroners are failing to carry out full investigations into hospital deaths.

http://www.bbc.co.uk/news/health-15635021

The Clinical negligence team at Davies and Partners are members of Action against Medical Accidents (AvMA) and INQUEST.  Both charities were involved in making the programme and we support their campaign for improvements in the Coroner Service. 
Partner and AvMA panel solicitor Frances Wright said “The Coroner’s and Justice Act 2009 was intended to deal with some of these problems by creating the post of Chief Coroner, responsible for upholding standards and ensuring that Coroners adopt a consistent approach throughout England and Wales.  The government has not implemented this and bereaved families are suffering as a result.”
The campaign is also supported by the Royal British Legion whose supporters have raised the issue in Parliament today (15 November 2011)
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The radio programme is repeated on Sunday 20th November at 8 pm and is available on BBC iplayer  

Parents angry with doctor’s attitude following tragic death of their baby Parents from Poole in Dorset have received an undisclosed amount in an out of court settlement from Poole Hospital Trust and a GP, following the tragic death of their baby daughter from Staphylococcus Aureus sepsis.  However, the couple still feel angry and upset that no lessons seem to have been learnt by the hospital or the GP following their daughter’s death.
13 month old Tia Ansell died on the 5th November 2007 and her parents Duane and Samantha Ansell believe the attitude of the Triage Nurse at Poole Hospital and the advice of the GP Mr S Watkins at the out of hours Red Clinic surgery, meant that Tia did not receive urgent treatment which could have saved her life. 
Mrs Ansell had taken her daughter to the A&E department at Poole Hospital after Tia had been unwell for over 24 hours with a fever, diarrhoea and also breathing difficulties - to the point that Mrs Ansell had to intermittently blow into her mouth to help her breath.  Mrs Ansell had initially called NHS Direct to discuss the symptoms and they had advised that the condition was serious and suggested that Tia should be taken to A&E to be seen by a doctor.    Following that advice, Mrs Ansell took her daughter to Poole Hospital A&E department.  In A&E Mrs Ansell was initially seen by a Triage Nurse who did not examine Tia and instead seemed angry that they had come to A&E at all.  He suggested that Mrs Ansell should take Tia to the Red Clinic - the out of hours GP Clinic next to the Hospital.  Mrs Ansell did so and was eventually seen by Doctor Watkins.  The Doctor did not appear to listen to Mrs Ansell’s concerns about her temperature, breathing difficulties or the fact she had hardly had any fluids that day.  The Doctor told Mrs Ansell that Tia was probably suffering from the same virus her other two daughters had had previously and that she should take her home.  He did not suggest any treatment or advise that Tia should be returned if Mrs Ansell had further concerns or her condition deteriorated.  Mrs Ansell was very upset as she felt both the Triage Nurse and Doctor had made her feel that she was completely wasting their time.
Tia did not improve over the next day and Mrs Ansell stayed up with Tia in her arms to try and comfort her.  She did not know where to turn as she felt she could not go back to hospital.  In the early hours of the 5th November 2007, Mrs Ansell awoke to find Tia had stopped breathing.  Mr Ansell tried to resuscitate, as did the ambulance crew.  Tia was rushed to hospital but sadly there was nothing that could be done to save her.  Had Tia received intravenous antibiotics when she initially went to hospital on the 3rd November 2007, then it is very likely she could have recovered.

Specialist Clinical Negligence Lawyers at Davies and Partners Solicitors are the Ansell’s Solicitors.  Partner Suzanne Williams said, “Our clients are naturally distraught at the loss of their daughter. Despite the hospital settling the claim against them they have never admitted fault and they have never apologised.  Mr and Mrs Ansell really want to know that those involved have learnt from this tragic case and that procedures have been put in place to ensure that in future a child is checked out thoroughly and that parents receive supportive advice rather than being made to feel like time wasters” Since Tia’s death in 2007 Mrs Ansell has had to have Psychiatric support and her two daughters could not go to school for some time.  Mr Ansell was unable to go back to work full-time.  For almost two years Mrs Ansell constantly carried Tia’s teddy bear in her arms.
  Mrs Ansell said, ”Tia’s death has had a huge impact on the whole family.  We were unable to cope with day-today-life for a very long time.  I have had counselling to try to help me come to terms with the fact that I awoke to find my daughter dead in my arms but I know I will never get over it.  We really just want to know that Tia’s death was not in vain and that the GP and Poole Hospital will now have systems in place which will ensure that any child showing similar  symptoms is properly checked by a doctor and that parents are made to feel they can come back to the hospital as many times as they need to if they are concerned.  If Tia had been diagnosed from the outset or I had been told to return if I was worried, she could be here today.”

Personal Injury specialist Martin Loughridge considers the latest HSE accident statistics in the Agriculture sector.

Agriculture continues to have one of the worst fatal and major accident records of any major employment sector according to figures recently published by the HSE. Fewer than 1.5% of the working population are employed in agriculture yet the sector is responsible for between 15% and 20% of fatalities to workers each year. The industry also has a rate of major injury which is typically higher than the all industries average.
Fatal accidents in agriculture The fatal injury rate is the highest of the main industrial sectors, including construction and quarrying. The HSE figures for 2010/11 indicate that of a total of 171 workplace fatalities 42 were in the agriculture sector ie approximately 10 deaths per 100,000 workers. In the ten-year period to April 2009 a total of 436 people died as a result of agricultural work activities ie almost one death per week. Of those 436 fatalities: 140 were employees (32%) 245 were self-employed (56%) 51 were members of the public, (12%) of which 19 of these were children under the age of 16 years old   The main causes of death to agricultural workers are: transport (being run over or vehicle overturns) - accounting for 26% of fatalities falling from a height (through fragile roofs, trees etc) - 16% struck by moving or falling objects (bales, trees etc) - 16% asphyxiation/drowning - 10% livestock-related fatalities - 10% contact with machinery - 8% trapped by something collapsing or overturning - 6% contact with electricity - 3%
Major injury in agriculture Non-fatal injury data is subject to gross under-reporting – it is estimated that only 25% of injuries to employees in the sector are reported and only 5% for the self-employed.  This makes analysis of data and comparisons difficult. However, despite the limitations the rate of reported major injury in agriculture is one of the highest rates of the industry sectors. In 20010/11 there were 222 major injuries per 100,000 workers in agriculture, a rate which is about twice the all industries average.
Reasons Why has agriculture failed to achieve the health and safety improvements – and reductions in fatal accidents and major injuries - seen in other heavy industries such as construction and quarrying? The Chair of the HSE Judith Hackitt believes it is because of the difficulty in getting those who work in the agriculture sector to recognise how big the problem is. She is hopeful, however, that following her recent discussion with the NFU the issue is now firmly on their agenda. Whether progress is actually made will only become clear through the HSE figures over the next few years. 
         Davies and Partners Solicitors has extensive expertise in claiming compensation for those injured in workplace accidents, including the agriculture sector. Foroffice on 01454 619619 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it               

Much has been written about the case of Purely Creative Limited & the Office of Fair Trading, or “Purely” as it has been tagged.  There appears to have been little analysis of the potential consequences for businesses of the forthcoming decision of the European Court of Justice.   As solicitors for “Purely” and the other group companies Partner Nigel Tillott has set out some detailed thoughts in the Regulatory Section of our website.    To give a flavour, some of the issues which the European Court will be battling with are set out below:-   Is the effect of new Regulations to prevent organisations from running “everyone’s a winner” type promotions where there is some cost involved to the consumer. For example could this impact on the competitions and “lucky dips”  that charities might run at fund raising events? If an individual has won a prize in a competition are the Regulations breached if any cost whatsoever is incurred in claiming it?  For example, would sending a letter of claim or making a standard rate telephone call mean that the promotion was in breach of the Regulations? If  there is any cost involved in enjoying a prize would this mean a breach of the Regulations?  For example if the prize is tickets for a major pop concert or sporting event and the cost of travel to and from the event and food and refreshments are not included would that breach the Regulations? If it is decided that minimum costs can be incurred in connection with claiming a prize, what minimum costs are envisaged?  For example would use of standard rate post or telephone be a breach of the Regulations?   These are just a few of the issues involved and discussed in the Regulatory Section of the website.   Purely and the other companies involved maintain that the key issue is “transparency”. If consumers are clear about what they are entering, what the exact nature of the prize is – what it includes and doesn’t include – at the time of entry then there shouldn’t be a breach of the Regulations.   The OFT is seeking to interpret the Regulations in a far stricter way.  The potential consequences of the decision could be very significant indeed for all businesses, charities and fundraising institutions that run competitions or promotions.  Should these other businesses be making their voices heard?   For further information please contact : This e-mail address is being protected from spambots. You need JavaScript enabled to view it    

Davies and Partners Solicitors has expanded its specialist Trusts and Estates team in its Birmingham office with the appointment of Paul Southall.

Paul joins the firm as a Legal Executive having specialised in Wills, Trusts and Probate work for over 10 years. 

Paul, who lives in Birmingham, has worked closely with local community support groups and agencies in the area, in particular those supporting the elderly.

Commenting on his appointment Paul said, “I am delighted to have joined Davies and Partners which has a very strong reputation in the region.  I am looking forward to helping to develop the firm’s Wills,Trust and Probate work within the Birmingham area and providing clients with access to an expert and professional service.  I have strong local community links in the area and I am looking forward to continuing to support local groups and agencies in and around the city.”

Head of the Trusts and Estates team Elizabeth Stilwell said, “We are very pleased to be expanding our specialist Trusts and Estates team with Paul’s appointment in our Birmingham office and his experience complements the skills of our existing teams in Bristol and Gloucester.”
 

Doctors, consultants, nurses and other NHS workers who blow the whistle will be protected in the future, under changes to the NHS Constitution announced by Andrew Lansley, Health Secretary.   Changes to the NHS Constitution announced this week will mean that NHS staff that raise concerns about poor patient care will be protected in the future.   The changes will take effect in early 2012 will add the following:   -  An expectation that all NHS staff should raise concerns at the earliest opportunity.   -  A pledge that NHS organisations should support staff when raising concerns by ensuring their concerns are fully investigated and that there is someone independent, outside of their team, to speak to.   -  Clarity around the existing legal right for staff to raise concerns about safety, malpractice or other wrong doing without suffering any negative consequences.   The changes, which were a Conservative manifesto commitment at the 2010 General Election, follow a public consultation  earlier this year in which there was an overwhelming positive response to amend the NHS Constitution in this way.   For further information please contact our team of employment specialists, Nigel Tillott, Gareth Price and Rebecca Byczok, who have a national reputation for claims involving senior employees and consultants in the NHS, on telephone number 01452 612345.  

The Managing Partner of Davies and Partners Solicitors in Birmingham David Stokes, is leaving the falling UK temperatures behind next week when he sets off with the England Over 40s Men’s Squad to take part in the Hockey World Masters (Over 40s) Cup in Singapore.
David, who is a partner in the Land Acquisition and Development Department at Davies and Partners, has been playing Hockey for over 30 years.  He currently plays for Stourport Hockey Club in the Midlands Premier League and previously played for Gloucester City who played in the National League.    David was selected for the England Masters team last spring following his performances for the West of England over 40s in a regional tournament and in the subsequent England trials.  The team has already won the Home Internationals and come second in the European Masters this year, so they are setting their sights high for the international tournament.
David, who lives in Bromsgrove, will be joining the 18 man England Squad on Tuesday 25 October as they set off for Singapore where they will play six games in just seven days, in expected temperatures of 30 degrees.  The group games will see the England Squad take on Australia, Singapore, Austria, Hong Kong and Indonesia.
Last time the England over 40s played in the Hockey World Masters Cup two years ago the team won a bronze medal but David and his team mates are hoping to do better this time.  He said, “It is a real honour to be to be part of this excellent England Squad.  It’s going to be a tough tournament and the high heat and humidity will obviously play a big part in each game as it’s not what we are used to.  But we are hoping that we will be able to overcome the favourites Australia in the group stages, and then head for the finals.”
“Everyone at Davies and Partners has been really supportive and I know the staff will be cheering us on back home.”

Photo credit: Adrian Hoskins

Saini Appeal successful - Directors Liable in Discrimination case
Employment specialist Jaspal Singh has represented his client Mr Saini in a successfull and highly complex Caste Discrimination Case. Jaspal provides an overview of the case following recent EAT decision.
Saini –v- All Saints Haque Centre (1) Bungay (2) & Paul (3)
Employment Appeal Tribunal – 24 October 2008
Issues (1) Regulation 5(1) of the Employment Equality (Religion & Belief) Regulations 2003 (“the Regulations”)
(2) Discrimination by association
(3) Harassment
Facts Mr Saini worked at an immigration advice centre in Wolverhampton as a senior advice worker. He was of the Hindu faith as was his manager, Mr Chandel. The second and third respondents, Mr Bungay and Mr Paul, were Ravidassis and former employees of the Haque Center.

Mr Bungay and Mr Paul were made redundant but remained on the Board. The composition of the Board changed over time, to the point when it was controlled by Ravidassis. They blamed Mr Chandel for their redundancies as they had thought he had been looking after fellow Hindu employees at the expense of Ravidassian employees.

Mr Bungay and Mr Paul commenced disciplinary proceedings against Mr Chandel. They told Mr Saini that they were only interested in ousting Mr Chandel. He alleged that he was harassed by Mr Bungay and Mr Paul and placed under pressure to provide them with grounds with which to justify their decision to dismiss Mr Chandel. Mr Chandel was dismissed and Mr Saini resigned and claimed constructive unfair dismissal, wrongful dismissal and discriminatory harassment in breach of Regulation 5(1) of the Regulations.

At the Employment Tribunal his dismissal claim was successful. However, he was unsuccessful with his harassment claim. Whilst the Tribunal found that the conduct did satisfy the definition of harassment, it went on to find that there was no evidence to suggest that the Respondents’ conduct had been adversely motivated by the fact that Mr Saini was a Hindu. It found that a non-Hindu in a similar position would have been similarly treated. He was treated in that manner, not because of his religious belief, but because he refused to provide evidence against Mr Chandel. In other words he was the ‘victim’ and not the ‘target’. Mr Saini appealed to the Employment Appeal Tribunal (EAT). He argued that the Tribunal had only considered whether the Respondents’ conduct was on the grounds of his own religion or relief. He pointed out that it had not examined whether the conduct he was subjected to was because of Mr Chandel’s religion or belief. He argued that he was being harassed by association, referring to the case of Coleman –v- Attridge Law. In this case, the Claimant had been successful bringing a claim of unlawful harassment where she had been harassed on the grounds of her son’s disability.
Decision Mr Saini’s appeal was successful. The EAT felt that the Regulations had been breached, both on the grounds of harassment and on basis of another’s (Mr. Chandel’s) religous beliefs, i.e.) by association. The EAT felt this interpretation was consistent with the original European directive and the Advocate General’s opinion in Coleman –v- Attridge Law.  

Davies and Partners Solicitors in Gloucester has appointed Rebecca Byczok as a Solicitor in their Commercial Services Team.   Rebecca, who is originally from Gloucester, previously worked for Darlingtons Solicitors in London and Rodgers & Co Solicitors (Asia) in Singapore, before returning to Gloucester to complete her legal training with Davies and Partners.   In her new role Rebecca will be working on a wide portfolio which will cover employment, dispute resolution, regulatory issues and commercial contracts.   Commenting Rebecca said, “I am delighted to be given this opportunity with Davies and Partners which has an outstanding reputation in the region, which I am keen to consolidate and grow over my future career.”

Personal Injury Damages not ‘ring fenced’ on Divorce The recent decision of the Court of Appeal in Mansfield -v- Mansfield provides guidance on how monies received by one party from a personal injury claim are treated upon divorce.   In this case the husband had received damages of around £0.5million in1998 before he and his wife met. These monies was invested by the husband in the purchase of two properties; a bungalow in which he lived (The Orchards) and which was specially adapted for his needs and a two bed investment flat which he rented out to provide him with an income.   The couple married in 2003 and had twins who were 4 years old at the time this case was dealt with. After the parties separated in 2008 the wife and children moved into rented accommodation whilst the husband continued to live at The Orchards. It was accepted that during the marriage the wife had contributed around £30,000 to the renovation of The Orchards from the sale of her previous property.   The matter initially went before a District Judge who ordered that the husband should pay the wife a lump sum of £285,000, which was roughly 50% of the matrimonial assets to enable her to buy a property and to provide the children with their primary home. The Judge acknowledged that it was likely that the husband would have to sell The Orchards to comply with this order.   The husband appealed to the Circuit Judge and thereafter the Court of Appeal seeking a reduction in the lump sum payable to the wife or alternatively a charge over any property she purchased using the lump sum, realisable when the children finished school.   The Court of Appeal held that whilst it was correct that damages received from a personal injury case could not be ring fenced, weight should be given to the origin and nature of the monies and the needs of both parties including any ongoing needs arising from one party’s disability.   In this case the Court found that the husband’s needs were likely to increase over time due to his disabilities whereas the wife’s needs as the primary carer of the children would reduce once the children had finished full time tertiary education.   Although the Court of Appeal did not consider it appropriate to reduce the quantum of the payment to the wife they ordered that the husband was to have a charge over the wife’s future property in the sum of one third of the capital awarded to her realisable upon the children finishing tertiary education.   This case underlines that although monies received as a result of a personal injury claim are not ring fenced  neither are they are they simply added into the ‘matrimonial pot’ with other assets accrued during the marriage. The court will look at each case on its own facts and especially where the monies were received prior to the marriage, weight will be given to the origin of the monies and both the current and future needs of both spouses. This case is also a reminder that the welfare of any dependent children is the courts first consideration.
If you wish to see a solicitor for advice on this issue or any other Family matter please contact our Specialist Family Team: Tel: Bristol: 01454 619619 Gloucester: 01452 612345 Birmingham: 0121 616 4450 Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
     

Davies and Partners Solicitors has submitted an application to the Law Society for accreditation under the prestigious Conveyancing Quality Scheme (“CQS”) – UPDATE TO FOLLOW

Changes to unfair dismissal rules which could save nearly £6 million a year for British business have been announced today by the Government. The Government has announced that the qualifying period for the right to claim unfair dismissal will be extended from one to two years on 7 April 2012.
Changes to the unfair dismissal rules follow the ‘Resolving Workplace Disputes’ consultation published in January this year which also proposed measures to encourage early resolution of disputes, the speeding up of the tribunal process and measures to tackle weak and vexatious claims. These combined proposals should see the number of unfair dismissal claims drop by around 2000 a year. Other proposals set out in consultation include introducing a fee for lodging tribunal claims from April 2013.
Business Secretary Vince Cable said: “Businesses tell us that unfair dismissal rules are a major barrier to taking on more people. So today we have announced that only after working for the same employer for two years can an employee bring an unfair dismissal claim.”
For further information please contact either Nigel Tillott, Gareth Price or Rebecca Byczok at Davies and Partners Solicitors on telephone number 01452 612345.  

Clinical negligence specialist Rachel Bowen from Davies and Partners Solicitors has successfully settled a case for a client who tragically suffered a still birth at 32 weeks of pregnancy as a result of the negligence of staff at Birmingham Women’s Hospital.
The Client was 31 weeks pregnant when she was diagnosed as suffering with gestational diabetes and was referred to a Diabetic Antenatal Clinic at the hospital.
When she attended the clinic, an administrative error led to a different patient’s gestation/BMI and observations being written into the Client’s notes.
As a result the client was not seen by an Obstetrician and was incorrectly sent home.  And the correct diagnosis of severe pre-eclampsia was missed.  The Client was admitted to hospital six days later where it is was diagnosed that she had suffered an intra-uterine death.
Rachel Bowen wrote to Birmingham Women’s NHS Foundation Trust on behalf of her client, inviting them to make early admissions of negligence. The Trust admitted full responsibility for what had occurred and accepted that had it not been for their negligence the Client’s baby would have been born successfully.  Following the admissions a settlement of the case was amicably reached in the sum of £19,000.00. Rachel Bowen said “This is a very sad case where the death of my Client’s unborn baby could have been avoided.  Whilst no amount of compensation can help ease the pain suffered by my Client she has gained some comfort through the Trust ‘s early admissions of negligence”.

The new Agency Work Regulations come into force on the 1st October 2011 and apply to Temporary Workers a Company has hired through an Agency.  Davies and Partners' employment team provides an overview.

From Day 1:
- Workers have the right to the same facilities as the Company’s permanent employees, this includes childcare and transport arrangements.
- Workers must have all the information about any job vacancies so that they can apply in the same way as all other employees. After 12 Weeks:

Workers who have clocked up 12 continuous weeks on assignment in the same role, whether that be on a full or part time basis, must be given the same basic employment terms and conditions as staff who are hired directly by the Company.
A break between assignments of at least 6 calendar weeks or if the worker takes up a totally different role will allow the Company to start the clock again. However there are some exceptions to this rule which will effectively ‘pause the clock’ until the Worker returns to work such as Christmas shut down periods and sickness absence of up to 28 weeks.
This includes:
- Pay including overtime and shift allowances
- Bonuses based on an individual’s work performance
- Holidays and holiday pay
- Working hours including breaks
- All the same protection for pregnant workers including paid time off for ante natal appointments and a risk assessment being carried out by the Employer. Please note however that a pregnant worker would not have the right to return to the job after maternity leave.
This does not include:
- Bonuses that are based on Company performance
- Expenses
- Company pension schemes
- Health or Life Insurance
- Share Options schemes
- Company enhanced Maternity, Paternity and Adoption pay
- Both statutory and contractual redundancy pay
- Notice Pay.
For further information please contact either Nigel Tillott, Gareth Price or Rebecca Byczok at Davies and Partners Solicitors on telephone number 01452 612345.

To build on the strength of its successful construction team, Davies and Partners Solicitors in Bristol has appointed Jan Grimshaw as Senior Solicitor.

Jan, who is a member of the Technology and Construction Solicitors Association, has over 20 years experience of specialising in construction law.  She previously worked in senior positions for Veale Wasborough and Cartwrights Solicitors before running her own specialist construction practice for 10 years.

In her new role with Davies and Partners Jan will be working with the construction team to expand its client base across the South West and along the M4 Corridor, as well as supporting the firm’s national and European construction clients.  Jan will be using her expertise to advise construction industry contractors and professionals and private individuals on projects and dispute resolution. 

Commenting on her appointment Jan said, “I am delighted to be joining the experienced and pragmatic construction team at Davies and Partners.  These are difficult times for the industry; we understand the pressures faced by developers, contractors and professionals and are committed to responding effectively and commercially to their needs through representing their interests and keeping them abreast of the law through bespoke risk management training.”

To talk to Davies & Partners about a project, dispute or training, please call Jan Grimshaw or Simon Pressdee on 01454 619619. Or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 

Four intrepid runners from Gloucester based Davies and Partners took part in the Bristol Half Marathon last weekend.  The team came 7th out of 31 corporate teams. 

The Team Captain and Gloucester Managing Partner Nigel Tillott commented “It was hard work in breezy conditions.  We didn’t expect to come so far up the field.  We are already planning to go for it again next year to see if we can climb the rankings a little further”.   The team (see below from left to right) consisted of Jude Rodrigues, Nigel Tillott, special guest Paul James, leader of Gloucester City Council and Ewan Kilgour.    Nigel hardly has time to take off his running shoes as he is off to the Berlin marathon later in September!

New Paradigm or Old Model?
On Monday 12 September 2011 Sir John Vickers delivered the Independent Banking Commission’s report on the future of the banking sector in the UK.  Partner Steve McColgan reviews the report: The key points of the far reaching recommended reforms are: Retail banking is to be ring fenced from investment banking. At its simplest this means “High Street” (or these days telephone and on-line) personal banking for most people and small to medium sized businesses is to be separated from the riskier investment banking. The latter has been referred to recently as “Casino” banking in some media and blamed as a significant factor in the banking crisis of 2008, the effects of which we continue to live with. The retail banking operations must have their own significant capital reserves, which are likely to be set at higher levels than the international recommendations being made in the negotiations for the so called Basel III Convention. The retail banks are to have their own Boards of Directors in order that they are run entirely separately from the investment businesses. Competition is to be encouraged in the retail banking sector with initiatives and policies to encourage new entrants into the market. The legislation constructing the new framework is to be in place by 2015, within the anticipated lifetime of the current Parliament, with the aim that the reforms are operational by 2019. The Government is generally backing the reforms and wants these changes to happen. There have been various comments and sabre rattling actions, most notably by Barclays Bank, that the proposed changes may prompt it to up sticks and move its headquarters from London to overseas. HSBC, a truly global operator, has also trailed similar suggestions from time to time. The effect on the UK economy and the credibility of the City of London as a world financial centre can only, at the moment, be a matter of conjecture. However with Barclays’ indicating the USA as a possible destination, similar reforms being considered by the regulators at the Federal Reserve may mean that there are no guarantees of a soft landing elsewhere if a UK based bank were to move abroad.

I am put in mind of an urban myth told to me over 30 years ago when I began studying Economics. A sweet elderly lady had been putting £1 from her wages and latterly from her pension away into her bank savings account week in, week out for over 50 years. One day she made an appointment with the manager at the branch of the bank where she had paid the money in each week over the highly polished counter. “I want to see my money you’ve been putting in that big safe of yours please. That stack of £1s must be quite high by now”.
The lady’s misunderstanding of how the banking system works is endearing from the perspective of an era where we hear of leveraging deposits on unsustainable multiples and derivative financial products that are so complex that even those who invented and traded them appear to have had little knowledge or control over how they were intended to work.
The point of relating this apocryphal story is that it may be a timely reminder to the banks that for a large number of their individual and small business customers it may well be time to return to more directly accountable banking services closer to the customers’ actual needs and perception of how their accounts should be managed. Stephen McColgan, September 2011 
 

Response from Davies and Partners Clinical Negligence Team Viewers Of ITV Tonight’s programme “What Price Justice” (Thursday 8 September) saw moving interviews with people who had been left disabled as a result of medical errors.  14 year old Andrew Green described the difference that had been made to his life as a result of legal aid funding a successful compensation claim.  TV journalist Andrew Brown explained how his compensation has enabled him to have the high quality care that means he can walk again.

The programme looked at the controversy over the government’s proposals to reform funding of such claims.  The government is seeking to cut back access to legal aid while at the same time changing the “no win, no fee” scheme. There is only so much that can be covered in a 24 minute programme, and viewers may well have more questions than answers following the programme.  The specialist clinical negligence team at Davies and Partners have put together some more detailed responses to some of the key issues and questions raised by the programme:

There are a huge number of claims against the NHS 8,500 claims against the NHS in the last 12 months does sound like a very large number.  It is important to put the number of claims in context.  The NHS in England is a huge organisation employing over 1.5 million people with millions of patient contacts annually.  Inevitably errors will occur. In 2010 there were 1,139,784 reported incidents where patient safety was compromised.  Of those, only a small proportion of people will consider taking legal action.  As Claimant lawyers we advise around 50% of those who contact us that they cannot take their case further, either because the case is not strong enough or because they will not get funding. The number of people who bring clinical negligence claims against the NHS is only a tiny proportion of reported patient safety incidents.
The Legal Aid Budget is “out of control” Minister Jonathan Djanogly quoted a legal aid budget of £2.2 billion annually.  That figure is for the whole legal aid budget and most of it relates to criminal legal aid.  Most of the civil legal aid budget is taken up on family cases.  Clinical negligence accounts for less than 1% of the annual budget. The NHS Litigation Authority, the body which defends cases against the NHS, regards legal aid as the most efficient way of funding clinical negligence claims and is in favour of its retention.  Its chief executive Steve Walker says that legal aid is “the cheapest and simplest way to fund cases.”  Lord Jackson, the law lord who has proposed reform of the “No win, no fee” system made his recommendations on the basis that legal aid for clinical negligence would remain.  In a speech at Cambridge University in September 2011 he described its proposed removal as “the most unfortunate” of the government’s proposed reforms.
Legal Aid will remain for exceptional cases The Ministry of Justice says that legal aid will remain for exceptional cases.  Justice Minister Mr Djanogly does not define exceptional, except to give as an example cases involving human rights issues.  Many clinical negligence cases involve matters of life, death and disability.  Each is exceptional to those affected. At Davies and Partners we share the concerns of the charities Action against Medical Accidents (AvMA) and Inquest.  There is already legal aid funding for exceptional cases in claims for personal injury and inquest representation.  It is very limited and difficult to obtain. Claimants will still be able to pursue claims under “No win, no fee” schemes Some people may still be able to pursue claims, but many will find that lawyers do not want to take on their claims because they are not straightforward.  While lawyers will not charge their fees, there are still expenses that will have to be paid as the case continues.  There is also the risk that thousands of pounds of much-needed compensation will go in legal fees.  Under the present scheme these fees are paid by the Defendant and do not come out of compensation.
More money is paid to Claimant lawyers in total than NHS lawyers. In English law the burden of proof is upon the Claimant.  This means that we have to investigate the claim, identify the issues and prove every point in our case.  The legal costs involved in defending the case will always be lower. Claimant lawyers are paid more hourly than NHS lawyers Claimant lawyers are only paid for some of the work they actually do on cases, whether they succeed or not.  NHS lawyers are paid on a different basis and so simple comparisons of hourly rates on particular cases are not meaningful.
Legal costs are high in relation to compensation There are always examples of cases where costs are higher than compensation.  These figures are meaningless in isolation.  One of the most important factors in driving up cost is where a case is defended when it should have been settled early.  The longer a case goes on, the more expensive it becomes.  Then there is need for the Claimant to prove her case, as described above.  In clinical negligence cases we have expensive medical expert reports which are the foundation of the case. It is important to understand that there is a mechanism to control legal costs and that is scrutiny of the Claimant’s bill by a costs judge at the end of a case.
Cutting legal costs will mean more money can be put into the NHS budget The NHS Litigation Authority has raised concerns that the present proposals are actually likely to cost the NHS more as they will have to meet the costs associated with alternative funding such as insurance premiums.  They are also concerned that removing clinical negligence from legal aid will result in non-specialist solicitors acting in such claims and increasing costs. The costs of funding legal aid are met from the Ministry of Justice’s budget whereas costs associated with litigation against the NHS come from the NHS’ budget.  Savings to the Ministry of Justice budget will not necessarily translate into increases in budgets for patient care. Is it just about personal financial gain? Minister Jonathan Djanogly says that obtaining compensation is about personal financial gain.  He ignores the fact that society benefits from successful clinical negligence claims.  These benefits may be hidden, but they need to be taken into account:

1) Lessons are learned from individual cases, and that learning is disseminated throughout the NHS.  This should result in savings on patient care, complaints and legal costs. 2) The individual Claimant can use his compensation to pay for private care, treatment, housing and equipment rather than relying upon the NHS or social services. 3) At the end of a successful case the state is repaid benefits through the Compensation Recovery Scheme.  In 2010/11 £11,355,690.97 was recovered from clinical negligence claims through this scheme. 4) The Claimant may be able to contribute to society and return to paid employment. 5) A disabled Claimant will be able to afford to employ carers, paying tax and NI in the process.  6) Family members who have taken on the burden of caring for the injured person will be relieved of many of their responsibilities.  This means they will have a respite from the stress and physical hardship that caring involves and will be able to return to other socially useful activity, including perhaps paid employment 7) Last, but most important of all is the immeasurable difference that proper compensation can make to the lives of some of the most vulnerable people in our society

Specialist agricultural property lawyer John Fisher has joined Davies and Partners Solicitors to help the firm expand its agricultural and equestrian business across Bristol and Gloucestershire.

John, who is a member of the Agricultural Law Association, joins Davies and Partners’Gloucester office, following almost 20 years experience in handling complex legal matters relating to rural property and agricultural law.  He has previously worked for MFG Solicitors and Thomas Horton LLP in Worcestershire. Described by the Legal 500 as ‘professional and conscientious’, John is a valuable addition to Davies and Partners’ highly respected property team.  In his new role as Senior Consultant, John will be developing the firm’s rural expertise and acting on behalf of landowners, tenants, farmers and landed estates.  John, who lives on the Gloucestershire/Owrcestershire border, will be advising clients across the region on all aspects of property transactions, agricultural tenancy issues, and equestrian law. 
Commenting on his new role John said, “I am delighted to have joined Davies and Partners which has an outstanding reputation in the property sector.  My aim is to help develop the firm’s specialist agricultural department to provide landowners and the rural community with a dedicated legal service which is tailored to their very specific requirements.  In the past business was done on the strength of a handshake but today business is very different and it’s vital that clients receive advice from someone who understands the complexities of the agricultural sector. Landowners need to ensure that their land and assets are fully protected legally, whether that’s through a written partnership agreement, a new will or a pre nuptial agreement.  I believe long term planning and working as a team with other professionals advisors such as the accountants is the key. I’m very much looking forward to working with the many farmers and landowners and their professional advisors in the region and helping them get their land holdings in good legal order.”

The clinical negligence department in Birmingham is disappointed by the Government's stance so far with regard to the withdrawal of Legal Aid for Medical negligence cases. As demonstrated by the latest statistics http://soundoffforjustice.org/legal-aid-cuts-will-hit-thousands-in-birmingham hundreds of people from the West Midlands will be denied access to justice. As a firm supporter of Legal Aid, Davies and Partners has always supported victims of clinical negligence to ensure that their cases are properly investigated. However, if the reforms to Legal Aid are implemented hundreds of injured victims will not be able to pursue a claim unless they can fund the case themselves. After suffering from an injury it is unfair to expect victims to fund investigations into a case, especially when the majority of cases are in respect of NHS Treatment. Davies and Partners is part of the campaign to try and ensure that Legal Aid is retained for Clinical negligence cases.

Specialist agricultural lawyers from Davies and Partners Solicitors in Gloucester will be riding high at Frampton Country Fair on Sunday 11 September, as the firm is sponsoring the exciting ‘Jive Pony’ event in the main show arena - they will also have a team of lawyers manning a stand at the event, so they can meet and chat to new and existing clients.   Frampton Country Fair is held on the Frampton Country Estate in Frampton Upon Severn in Gloucestershire and it will attract thousands of visitors who are keen to see and learn more about the best in the countryside, while at the same time raising money for local and countryside-related charities and good causes.   Agricultural lawyer John Fisher said, “We are really looking forward to being a part of this Fair which is a key event in the Gloucestershire countryside calendar.  Our team provide specialist legal advice for everyone involved in the agricultural sector including farmers, landowners and also horse owners and riding stables - so we felt it was great that we could sponsor the extremely exciting and original ‘Jive Pony’ event which is sure to be one of the highlights of the show.  We very much look forward to meeting some of our existing and prospective clients at the show so hope people will drop into see us on our stand.”

Employment lawyers at Davies and Partners Solicitors in Gloucester, who were instrumental in helping to bring about the fraud case against Dennis Grant, are continuing to assist their client Cotswold Water Park Society in trying to recover thousands of pounds worth of assets from the UK and abroad,   Employment specialist Gareth Price (right) was originally brought in by Cotswold Water Park Society in April 2010 to investigate possible financial irregularities and breaches of employment contracts by Dennis Grant and Finance Officer Nicholas Hanson.    Following his initial investigations Gareth Price had advised that both Mr Grant and Mr Hanson were suspended and disciplinary processes started.  The Society had then made urgent applications to the High Court in London to freeze the bank accounts and assets of both officers of the society.   Both officials were subsequently dismissed by the Society and were then subject to High court proceedings to recover monies amounting to £998,000 including interest, which had been diverted from the Society by Mr Grant.     Mr Grant appeared before the Gloucester Crown Court this week and was sentenced to 4 years 6 months imprisonment after pleading guilty to 6 counts of fraud against his employer. Mr Hanson died during the proceedings.   Despite the conviction, the case continues for Davies and Partners Solicitors as Gareth Price is now involved with extensive asset tracing procedures to try to recover further monies from Mr Grant both in the UK and abroad.  

At the end of May 2011, the Care Quality Commission (CQC) published a detailed report into the standard of care given to elderly people in hospital. The CQC identified three hospitals as failing to meet the essential standards required by law. One of the hospitals identified by the CQC report was the Redditch Alexandra Hospital.   The CQC report highlighted a number of recurring concerns relating to nutrition and to dignity and respect:   “ People not being given the assistance the assistance they need to eat – meaning they struggled to eat and in some case were physically unable to eat meals. Their nutritional needs not being assessed and monitored – for example, not being weighed throughout their stay, making it impossible to determine if they were losing weight; or identified as malnourished without an action plan being put in place to address this. People not being given enough to drink – water left out of reach or no fluids given for long periods of time. In once case, a member of clinical staff described having to prescribe water on medicine charts to ensure patients got enough to drink. People not involved in their own care – their treatment not explained to them; being told what would happen to them without consent being sought or concerns addressed; staff addressing patients relatives rather than the patient themselves. Staff not treating people in a respectful way – spooning food into people’s mouths from above without engaging with them; discussing personal patient information in open areas. Staff speaking to people in a condescending or dismissive way. One man told us that staff “talked to me as if I am daft.” “ In response to the report by the CQC Worcestershire Acute Hospitals NHS Trust, who are responsible for Redditch Alexandra Hospital, commissioned an Independent Review of their services for elderly patients. Worcestershire Acute Hospitals NHS Trust have said that the aim of their review was to “ensure that the immediate actions put in place were sustainable and to provide a lining which could be used throughout Worcestershire Acute Hospitals NHS Trust.” http://www.cqc.org.uk//newsandevents/pressreleases.cfm?cit_id=37384&FAArea1=customWidgets.content_view_1&usecache=false   A series of public meetings have now been arranged for patients and members of the public in the Worcestershire area to hear the findings of the Independent Review. The meetings are due to take place between Thursday 14 and Wednesday 27 July at various locations throughout Worcestershire. Full details of the meetings can be found at. http://www.worcsacute.nhs.uk/news-and-publications/media-releases.aspx     Jhodi Ward Davies and Partners

Will the court allow a separated parent to relocate abroad with children if this leaves the other parent with little or no contact?   Davies and Partners Solicitors’ specialist Family Team consider the outcome following a recent Court of Appeal case – Re K (Children) [2011] EWCA Civ 793.   Are you wishing to take your children to live abroad? Or is your ex partner?   Last week’s judgment in the case of Re K (Children) [2001] EWCA Civ 793, in the Court of Appeal, has thrown new light on how these cases may be decided in future.   The case concerned an appeal by a father against an Order permitting his former wife to relocate to Canada with their two children.    The mother was Canadian, the father Polish.  They met in Canada in 1992 and later moved to England.  They married in 2004 and had two daughters, now aged 4 and 2.  They separated in July 2010.   Both worked in the banking industry and both worked less than full time to enable them to be more involved with the children.  They shared the care of the children under a shared residence order made in August 2010.   The children spent five nights with their father and nine nights with their mother in every fourteen-day period.  The mother had the assistance of a nanny whilst at work.  The father cared for the children unaided.  As a result the girls spent more daylight hours in the company of the father than their mother.   The mother applied for permission to relocate to Canada with the children.  She wanted to go home to enjoy the emotional and material support of her parents following the breakdown of her relationship with the father.  The father objected on the basis of his commitment to the girls and the significance of the shared care arrangement. CAFCASS had provided a report on the issue recommending that the mother’s application be refused, although it did observe that should the mother still wish to return to Canada in three or four years time, the father’s acceptance of this, would probably be in the best interests of the children.   However, Her Honour Judge Bevington granted the mother’s application and the father appealed.   The leading case on this subject is Payne v Payne [2001] EWCA Civ 166, in which the Court of Appeal agreed with the County Court’s decision to grant permission to a divorced mother to move back to New Zealand with her daughter, against the wishes of the young girl’s father.   In Payne v Payne the following guidance is set out and has been applied in a succession of subsequent cases:   First, pose the question:
Is the application of the relocating parent genuine and not motivated by a desire to exclude the other parent from the child’s life? Is the application realistic: Is it supported by practical proposals that are well-researched and investigated? If the application fails either of these tests it will be refused. If the application passes these tests there must be a careful appraisal of the resisting parent’s opposition.  Is it motivated by a genuine concern for the welfare of the child or is it driven by some other ulterior motive? What would be the extent of the detriment to the opposing parent’s relationship with the child?  To what extent would that be off-set by the benefit to the child of progressing a relationship with the relocating parent’s family and homeland? What would be the impact on the parent seeking to relocate either as a single parent or as a new spouse, of a refusal of an application based upon realistic proposals? The answers to these questions must be brought into a review of the child’s welfare as the paramount consideration.   However, Payne v Payne has come in for serious criticism over the last few years for placing too much emphasis on the wishes and feelings of a relocating parent when assessing a child’s best interests and giving insufficient consideration to the harm done to the relationship between the children and the parent left behind.   Dame Elizabeth Butler-Sloss’s controversial conclusion in Payne v Payne was that:   “The mother’s reasons for her desire to return to New Zealand were appropriate and entirely understandable.  Her situation in England was not a happy one.  The judge found that the effect of her being forced to stay in England would be devastating.  He found that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child.  The father who has a close relationship with his daughter would be able to afford to visit her or have her visit him two or three times a year which mitigated the loss to the child and to him”.   Not surprisingly, critics take the view that this is incorrect and that children’s interests are better served if they have two parents to raise them.   Last week’s Court of Appeal judgment in the case of Re K(Children) [2011] EWCA Civ 793 will be seen by them as a step in the right direction.  The Court of Appeal allowed the father’s appeal.  Their Lordships agreed that the only principle to come from Payne v Payne was that the welfare of the child is paramount.  The rest is guidance only, to be applied or distinguished depending on the circumstances.    Lord Justice Thorpe’s opinion was that the above guidance in Payne v Payne is only applicable where the applicant is the primary carer.  Where parents share the burden of caring for children in “more or less equal proportions”, whether as a result of a “shared residence” order or not, this guidance should not be used.   Lady Justice Black took the view that the Payne guidance should not be ignored even in a shared care case but that the weight attached to the relevant factors should alter depending upon the facts of the case.       Either way, this judgement shows us that in cases where the parent opposing a move abroad has significant contact with their children, the parent proposing to relocate will have an uphill struggle in persuading the court that the relocation is in the best interests of the children. If you wish to see a solicitor for advice on this issue or any other Family matter please contact our Specialist Family Team: Tel:      Bristol:             01454 619619 Gloucester:     01452 612345             Birmingham:   0121 616 4450 Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it  

On 01 July 2011 the new Bribery Act finally came into force. Originally due to come into force in April 2010, the government delayed its implementation by 12 months to enable additional consultation to take place, it was then delayed a further three months due to pressure from businesses seeking to clarify the position concerning corporate hospitality. Now it is with us, and, carrying penalties of up to 10 years in prison and unlimited fines, the Act appears to have teeth.   There were considerable difficulties prosecuting the old offence of bribery as it was necessary to prove the involvement of a “controlling mind” of the company. This meant that prosecutions of companies were almost unheard of, which lead to the UK coming under increasing pressure to introduce a workable deterrent.   This new Act has far wider scope. Sections 1 and 2 create two general offences of offering promising or making a bribe, and requesting, agreeing to receive or receiving a bribe. Section 6 creates a specific offence of bribing a foreign public official, and section 7 creates a new offence for commercial organisations of failure to prevent a bribe being paid for or on its behalf.   The territorial extent of the offences have also increased considerably, covering offences taking place in the UK, as well as those taking place anywhere in the world but involving a close connection to the UK.   In relation to “facilitation payments”, a zero tolerance policy is going to be adopted. Some have warned that adopting this approach when such payments are an accepted and sometimes expected part of business in some international jurisdictions might place the UK at a distinct disadvantage in the international market. However, the SFO has reiterated its commitment to stamp out the practice.   And those client trips to Wimbledon? The government has sought to reassure businesses that genuine hospitality may continue provided that it is transparent, reasonable and proportionate.     So how can I protect my business? The section 7 offence (failing to prevent bribery) carries an absolute defence of having “adequate procedures” in place to prevent bribery. All organisations should carry out a risk assessment to ascertain what procedures need to be put in place. Partner and Head of the Compliance Department, Greg Tay-Lodge said “The Ministry of Justice and the Serious Fraud Office have both published guidelines that talk of vigorous enforcement and the robust approach that is to be taken, but they have also sought to temper this with talk of engagement with the corporate sector in tackling all questions of corruption. Quite how this will manifest itself, only time will tell.”

Specialist medical negligence lawyers at Davies and Partners Solicitors have learned that surgeon Ian Paterson has been excluded from working at Solihull Hospital and is facing an enquiry with the General Medical Council (GMC) over mastectomy operations he carried out.   Solihull Hospital carried out a review of breast surgery services in 2007 which identified that a surgical technique used by Mr Paterson needed to be investigated to establish whether it represented best practice.   Mr Paterson used a “cleavage sparing” technique in the mastectomies he carried out. This technique involved some breast tissue being left behind for the purpose of re-construction at a later date rather than full mastectomies being carried out. However, other surgeons have not adopted this technique as there are concerns that this practice may leave women with a higher risk of their cancer returning than if full mastectomies are carried out.   Davies and Partners understand that Mr Paterson has been excluded from practising at Solihull Hospital and his practice at the Spire Little Aston and Parkway has been restricted to seeing outpatients only while the GMC investigation is being carried out.   Solihull Hospital has been able to identify and recall several patients, some of whom had to undergo a second procedure to remove the retained breast tissue, but they are urging anyone who was treated by Mr Paterson and has concerns to contact the Hospital directly for their treatment to be reviewed independently.   

On average, a legal claim is made against an employer every five minutes in the UK.  For this reason the specialist employment team at Davies and Partners has launched a new insurance service which will protect businesses against the threat of legal action from its employees.   The new complete insurance service, Total Legal Care (TLC Touch™), has been designed by Davies and Partners in association with Straight Solutions Ltd, an FSA regulated insurance provider.     As many businesses have tight budgets, TLC Touch™ is being offered to businesses at a fixed and affordable monthly cost. The service also includes the cost of defence and disbursements and unlike many legal services, the integrated insurance cover will help ensure that any award of compensation, as well as legal advice and legal representation in court, are all included within the service.   Davies and Partner believe another key benefit of the service is that, unlike many insurance services, TLC Touch™ it is not supported via a faceless call centre.  Instead each customer is assigned one of Davies and Partners specialist and highly experienced employment solicitors, who will look after the business personally, starting with an initial employment health check. The designated business solicitor is then available to call directly on a dedicated TLC Legal Helpline whenever the employer needs advice and support.   Associate Simon Pressdee said, “Employee disputes are expensive in both time and money for any business and we know the threat of legal action is a constant worry for many businesses in the region.  We believe our new service provides businesses with peace of mind and that TLC Touch™ offers a business all the benefits of an in-house legal team, but without the cost.”

Response to Government Announcement 21 June to Removal of Legal Aid   Ewan Lockhart, Head of the specialist clinical negligence department at Davies and Partners Solicitors  spoke out today about the government’s decision to stop legal aid for people who want to bring compensation claims for medical negligence.   “Removing legal aid from those who have been injured or killed as a result of negligent medical treatment is grossly unjust.  Many of the weakest and poorest members of society will be affected.  How can a family coping with a severely disabled child be expected to find the money to pay for the medical experts required to investigate a claim?  Expert reports in birth injury cases cost thousands of pounds.  The government has cynically calculated that many people will be put off making claims.  Those who do make claims will have to enter into Conditional Fee Agreements, so-called “No win, no fee” agreements.  The price of these under new government proposals will be that some compensation will be used to pay legal costs. It cannot be right to take money from those injured through no fault of their own.”   The Ministry of Justice announced Legal Aid cutbacks on 21 June 2011.  These include removing Legal Aid in clinical negligence cases.  Legal Aid will continue for those who have already been granted a certificate, but new applications will not be accepted from when the act comes into force, which is likely to be in the early part of 2012.   Ewan Lockhart urged people who think they may have a case not to delay.  “If you think you may have a claim you should contact a specialist solicitor quickly.  Legal Aid is still available for those who qualify financially – including most children and those on benefits – as long as they can also show that they have a potentially worthwhile claim.”   The clinical negligence team at Davies and Partners has a national reputation.  Cases are run by 13 specialist solicitors based at its offices in Bristol, Gloucester and Birmingham.  7 of the team are on the specialist panels for the Law Society and Action against Medical Accidents.

Davies and Partners Solicitors has announced that Nigel Tillott, will be taking over the role of Managing Partner for the firm’s Gloucester office.

Nigel joined Davies and Partners in 1990 and is Partner and Head of the Employment Team and he also undertakes mediation and compliance work.  He is taking over the role of Managing Partner from Adrian Smith who is stepping down after having been heavily involved in management of the Gloucester office since the firm’s inception in 1988. Adrian will now focus on his role as head of Land Development. Davies and Partners was launched in Gloucester in April 1988 and in the following years it expanded to open a further two offices in Bristol and Birmingham. During that time it has seen its turnover grow ten-fold and it is has become one of the leading law firms in the South West and Midlands. Nigel is delighted to be taking on this new position, he said, “It is a real honour to have been asked to take on the role of Managing Partner of the Gloucester office which has a great team of lawyers and staff.  I am proud to have been a part of the firm’s growth in Gloucester over the years and to have seen the business become a strong employer in the region.  I am extremely grateful to Adrian for all his successful and often unnoticed work during his tenure as Managing Partner.  It will be a hard act to follow.  I am passionate about the firm and indeed Gloucester and the surrounding area and I look forward to working in my new role both with the firm’s staff and the Gloucester business community.”

A 29 year old woman from Bristol has raised concerns about the post operative care at the Emerson’s Green NHS Treatment Centre in Bristol, following the catastrophic problems she experienced after a routine diagnostic procedure. The Woman, Miss R, who wishes to remain anonymous, was referred to Emerson’s Green Treatment Centre in July 2010 for a diagnostic laparoscopic procedure. During the laparoscopy her bowel was damaged but the surgeon carrying out the procedure failed to identify the damage and Miss R was later discharged. During the evening of the following day Miss R began to experience excruciating pain and her abdomen became extremely swollen.  During the night her partner contacted the Emerson’s Green Centre on two occasions but he was merely advised to give her pain killers and for them to come in the next day if the pain continued. The pain did continue and Miss R returned to the Treatment Centre early the next morning.  For many hours the staff and surgeons at the Centre advised Miss R that the pain was probably caused by trapped wind following the laparoscopy procedure.  Her family, however, became increasingly concerned and her mother, who is an ex-nurse, suspected a bowel perforation.  They therefore requested a transfer to Frenchay Hospital.  This, however, did not take place until many hours later and Miss R did not arrive at Frenchay until 7pm.  This was 11 hours after her readmission at Emerson’s Green.  Once at Frenchay she underwent emergency surgery to repair the severe damage to her bowel which had caused Peritonitis.  This resulted in her having a Colostomy. Miss R then suffered further complications following the surgery which included a blood clot on one of her lungs requiring her to take Warfarin daily for 6 months.  Fortunately, 7 months on, Miss R has recently undergone a successful reversal of the colostomy. Clinical Negligence Lawyers at Davies and Partners Solicitors are representing Miss R following the incident.  They believe there is a growing concern nationally about the level of care following laparoscopy procedures.  Suzanne Williams said, “The misdiagnosis of post operative complications is not uncommon, and our client is determined to raise awareness of this fact, so that other people do not suffer in this way.” “Following our client’s complaint there was an internal review carried out by the Emerson’s Green Treatment Centre which was very critical of the delay in making the diagnosis.  In September 2010, the National Patients Safety Agency issued a Rapid Response Alert (RRA) regarding the failure of hospitals to recognise post-operative deterioration and referred to cases such as this.  The RRA required immediate action by hospitals to implement new protocols and systems to avoid this happening again.” “Our client is extremely concerned about the care she received at The Emerson’s Green NHS Treatment Centre, which is one of the new centres set up by the Government in 2009 to support larger NHS Hospitals."

Employment specialists at Davies and Partner Solicitors have organised a lunchtime seminar on Wednesday 6 July at their offices in Aztec West, to take a practical look at all the risks and benefits of employing temporary staff in the care sector. For the seminar Davies and Partners has partnered with Bristol based Management and Safety Training Ltd.  Delegates from the care sector will be provided with all the information they need from a legal and health and safety perspective, covering the complex issue of employing temporary staff. The seminar will give delegates the opportunity to share their workplace experiences and ask questions directly of one of the experts, whilst meeting with their peers in the care sector, over a buffet lunch. The two specialist speakers at the seminar will be: Sarah Whittock an employment solicitor with Davies and Partners who will explain the legal implications of the status of temporary workers particularly in light of the introduction of Agency Worker Regulations 2010 and Andy Farrall Director at Management & Safety Training Ltd, who will look at competency issues faced by care home owners when using temporary workers. In particular he will give an overview of some of the training requirements you will need to consider in order to help protect your staff, your residents, and your business. The seminar will take place on Wednesday 6 July from 12-2 pm at Davies and Partners Solicitors office at 135, Aztec West in Bristol.  Tickets cost £10 inc VAT per delegate and includes a buffet lunch.  Anyone wishing to attend should contact Sarah Whittock at Davies and Partners on email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it or telephone 01454 619619.

Following the outcome of a Coroner’s inquest in Bristol, (Friday 18 March) the mother of 31 year old epilepsy sufferer, James Alexander Stephens wants people with epilepsy and their families to learn more about Sudden Unexplained Death in Epilepsy (SUDEP) which kills up to 600 people every year in the UK.   James, who suffered mild learning difficulties and partial deafness as a result of childhood meningitis, was found dead in his bed at around 1.45pm in April 2010.  He had been living in his own flat in Downend, Bristol with 24 hour agency care provided by Cintre Outreach.  On the morning of his death James had been woken by his carer at 8 am.  He had then gone back to sleep and was in bed until 1.45 pm when he was found dead.  The carer, who was in the flat throughout, informed police that he had briefly looked in on James four times during the morning and that he appeared to be sleeping.   The Coroner for the District of Avon, stated James’ had died from natural causes, following the post-mortem which gave the cause of death as Sudden Unexplained Death in Epilepsy or SUDEP.  This is a condition James’ mother Margaret Stephens and family had never heard of prior to his death, but which accounts for 500-600 epilepsy deaths each year in the UK.   Mrs Stephens was pleased that following the inquest the Coroner has agreed to report the case to relevant authorities recommending that steps be taken to raise awareness of SUDEP in line with the NICE guidelines.   The NICE guidelines on diagnosis, treatment and management of adults and children with epilepsy states that information about SUDEP must be given to the patient, family and carers.  A full risk assessment must be carried out and this should specifically include assessment of the risk of SUDEP, and that risk must be kept under constant review.   Speaking on behalf of Mrs Stephen’s, the family lawyer Frances Wright from Davies and Partners Solicitors said, “There is no evidence that the risk of SUDEP was considered in James' case.  His agency carers and social worker knew nothing about SUDEP.  His doctors may have known of it, but crucially they did not communicate this to anyone.”   “Evidence at the inquest was that James had a 10% risk of death from SUDEP up to the age of 50. If James, his family and his carers had been given full information about SUDEP they would have been able to have an informed discussion about minimising the risk.  Bed monitors are available and James' mother would have insisted he had one and she is confident James would have agreed to this had he known the risks.  Carers would also have been alerted to the risks of letting James sleep in without regular checks.”   Frances Wright continued, “There is good medical evidence that monitoring has a protective effect and this is why the NICE guideline states that it must be considered as part of a full risk assessment. The NICE guideline has been in place since 2004 but it is shocking that no-one involved in James' care was aware of it.  Once the family have had time to think about what happened at today's inquest, we will be meeting to discuss what further action is required.  It is clear that not enough is known about SUDEP and Mrs Stephens is anxious that all people with epilepsy, their families and carers should be made aware of the risks.”   Speaking after the Inquest Mrs Stephens said, “We are grateful to the Coroner's office and court for all their support and for fully respecting our wishes and handling this case in a sensitive manner.  The outcome was not a surprise and it has helped us gain some answers.  James cannot ever be replaced but if we can raise awareness of SUDEP then perhaps his death was not in vain”.  ENDS   Notes to editors: SUDEP. It is estimated that 500-600 epilepsy deaths in the UK are due to Sudden Unexplained Death in Epilepsy.  Victims die suddenly and the post mortem fails to establish any other cause of death.  It is considered more common in young adults who suffer epileptic seizures, particularly those who have night-time seizures.  Victims are often found dead in bed.  The exact cause is unknown. www.sudep.org

As part of the expansion plans for its dedicated personal injury department, Davies and Partners Solicitors has appointed a new Associate, Martin Loughridge, to its specialist team in Bristol. Martin is a member of both the Association of Personal Injury Lawyers and of the Law Society Personal Injury Panel.  He joins the firm from BLB Solicitors in Trowbridge where he was a Partner and worked for 7 years. Having qualified in 1992, Martin will be using his many years of experience to help develop Davies and Partners’ PI department which has a dedicated team of fully qualified solicitors and support staff who work exclusively for claimants with claims for compensation arising from a wide range of accidents and injuries. Commenting on his appointment Martin said, “I am delighted to be joining Davies and Partners which is a modern and progressive firm with strong plans for growth.  Its clinical negligence team is acknowledged as one of the leading departments in its field and I am keen to assist the firm in expanding the sister PI department, so that it can mirror the success of the clinical negligence team in the future.”

Specialist clinical negligence lawyers at Davies and Partners Solicitors in Birmingham are strongly encouraging Hospital Trusts to take note of the worrying findings of a report carried out by The West Midlands Perinatal Institute (WMPI) into the deaths of babies in Hospitals in region.   The WMPI report indicated there are approximately 70,000 deliveries in the West Midlands each year, which accounts for one tenth of all births in England and Wales. The majority of those births result in a healthy baby.  However, the report noted that there are a number of babies who die due to events surrounding labour and childbirth each year and the West Midlands accounts for one tenth of those. In the majority of these cases the death of the baby could have been avoided.   Davies and Partners has not seen any decrease in the number of such cases in recent years despite the issues involved being known to Hospital Trusts. They want Hospital Trusts in the region to take notice of the WMPI Report findings and ensure that their future policies reflect the recommendations made by the report to ensure these unnecessary deaths are avoided.     To collate the report the WMPI had gathered together a panel consisting of consultant obstetricians, labour ward midwives, community midwives, neonatologists and neonatal nurses from Hospital Trusts within the region. The panel considered 25 cases in the year between April 2008 and March 2009 involving babies who were stillborn or died within 7 days of their birth and concluded that in 16 of the 25 cases (64%) it was likely that the tragic outcome could have been avoided if different management of labour and childbirth had occurred, and in a further 5 cases different management might have led to a different outcome. In 84% of the cases the outcome for the families involved was potentially avoidable with better management of the mothers’ labour and/or childbirth.   Tracy Edwards, specialist medical negligence lawyer and Partner at Davies and Partners in Birmingham, wants to highlight the link the report made between substandard care and this outcome, which she knows can be devastating for a family.  She said, “The link has been known for several years and it is extremely disappointing that the frequency of these tragic events has not decreased significantly in the last 10 years.  We have handled several cases involving the deaths of babies in recent years and the effects are totally devastating for the families involved.”     The WMPI panel made a number of specific criticisms of the care involved at all stages of labour and childbirth, as well as in the Trust’s ability to carefully review these cases. In 76% of the cases reviewed the WMPI panel’s significant concerns were not identified by the Trusts themselves. Criticisms of care provision included: lack of a clear management plan; delays in management or care caused by difficulties for junior staff in contacting the Consultant on call or difficulties locating equipment, for example; failure to identify and escalate problems so that senior staff input could be obtained; poor communication between staff and parents. In all cases reviewed the standard of record keeping, for example documentation being confusing and out of sequence, was criticised. The WMPI has made recommendations for the Trusts involved both in terms of improving care for mother and baby during labour and childbirth and in their systems for reviewing outcomes so that these tragic and avoidable deaths can be avoided in the future.   Davies and Partners Clinical Negligence team support the actions of Gisela Stuart, MP for Edgbaston, and the former parliamentary under-secretary of state for health, who has requested a Government debate on maternity services in the wake of these tragic enquiry findings.    

Mother’s Fears Following the Tragic Death of Her Baby Davies and Partners Solicitors acting for a young mother in Wells Somerset are questioning the reinstatement of a midwife at Yeovil District Hospital, following the death of their client’s son from catastrophic complications during his birth in December 2009. Their client Mrs Elliott, gave birth to her son Kurtis on 2 December.  During the protracted labour, Kurtis was starved of oxygen.  When he was born, he was diagnosed with severe brain hypoxia and respiratory distress.  He died three days later in his mother’s arms.  Following an investigation carried out initially by the Supervisor of Midwifes and the Lead Midwife and Maternity Risk Manager, the report was highly critical of the care provided to Mrs Elliott by the midwife and medical team at Yeovil District Hospital. The main concern regards the failure of the midwife to correctly record, interpret and respond to abnormal cardiotocography (CTG) traces which are used to monitor the baby’s heart beat and the foetal contractions during labour.  This led to an inability to recognise that the baby was comprised prior to delivery, which subsequently led to a delay in delivery and in his resuscitation by a senior paediatrician. A further report was carried out by a Consultant Anesthetist as part of the Health Authorities review which found that the tragic incident had been completely avoidable and reported that “As a team, the midwives and obstetricians failed to provide appropriate care to the patient and were hesitant to involve their senior colleagues for help which would have avoided this incident.” It transpires that the midwife who was caring for Mrs Elliott had recently returned to her role as full-time midwife, following a period out of Midwifery.  Specialist Clinical Negligence Lawyers at Davies and Partners Solicitors are handing the case for Mrs Elliott.  Partner Suzanne Williams said, “Our client is naturally distraught following the avoidable death of her son and she is extremely disappointed that the midwife in question was re-instated by the Trust so soon after the death of her son and despite the findings of the investigation which show clear blame on behalf of the midwife and the team who were meant to be caring for her.”
“Mrs Elliott also believes that throughout the interviews carried out with the midwife during the investigation, the midwife showed no remorse and no acceptance for her failings.  She constantly blamed other people and circumstances.  Mrs Elliott is consequently very concerned that this midwife has been reinstated to her role at the hospital.” Suzanne Williams concludes, “This tragic incident has highlighted some serious failings on the part of the midwife.  Our client has made a complaint to the Nursing and Midwifery Council and we await their response.  This incident is all the more tragic as it could clearly have been avoided.  This case also raises broader concerns about how quickly midwifes are re-employed following a period away from the profession, the quality of training they receive on their return, and the recruitment process generally.  There is a recognised shortage of midwifes in the UK and it is hoped that this case does not illustrate a willingness to employ midwifes into roles for which they are not adequately experienced or trained, in order to fill vacant posts quickly.”
Important Notes to editor: Mrs Elliott does not wish to speak to the press directly but would be happy for any media enquiries to be handled by her Solicitor Suzanne Williams.  If you would like to speak to Suzanne, then please contact Jane Southcott 01275 852026 or 07787 527430 who will handle any interviews enquiries for you.

The Government has announced its intention to impose financial penalties on NHS providers who allow certain preventable medical errors to occur.  The stated aim is to improve patient safety.  At first sight this may seem reasonable but we question whether the measure will achieve its aim.   The Government has prepared a list of “never events” which, if they occur, could result in financial penalties being imposed.  “Never events” are preventable medical errors which should never occur; hence the term “never events”.  The term applies to events where guidance and systems are already in place to prevent such events occurring.  The Government has drawn up a list of 25 never events which includes wrong-site surgery, misplacement of nasogastric tubes and misidentification of patients.  The full list can be found on the Department of Health website.    Approximately 111 “never events” occurred last year costing the NHS an estimated £3.9million.  The Government’s proposal would enable the costs of treating the consequences of never events to be recovered from the NHS provider where the never event occurred.  In unspecified circumstances the charge may be waived.  However, is this the best way of ensuring patient safety?   Never events already have systems in place to prevent their occurrence and so, for a never event to happen, there has been a breakdown in those systems.  To correct that breakdown and improve patient safety it is important that lessons are learned from the event and steps taken to avoid repetition.  Such lessons should be shared between providers to ensure they do not occur elsewhere.  The imposition of financial penalties does not achieve this.  Instead, it may result in NHS providers seeking to conceal such errors, preventing lessons being learned and impacting negatively on patient safety.  Such penalties will put NHS providers already suffering from shortage of funds under increasing budgetary pressure.  This also has a negative affect on patient safety.   Therefore whilst this proposal may be aimed at improving patient safety, it is unlikely to achieve this in practice.    Louise Austin Associate Solicitor Clinical Negligence

To assist employers in their preparation for the abolition of the Default Retirement Age (DRA), which is due to be phased out from April 2011, employment specialists at Davies and Partner Solicitors have organised a lunchtime seminar on Wednesday 30 March at their offices in Aztec West, to offer the regions employers all the information they will need to be ready for the changes. For the seminar, Davies and Partners has joined forces with Bristol based employee reward experts EBRS and HR consultants Customer HR.  Delegates will have the opportunity to share workplace experiences and ask questions directly to the experts and receive a comprehensive and practical briefing combined in one session.
  The three specialist speakers at the seminar will be: Sarah Whittock an employment solicitor with Davies and Partners who will highlight the legal implications of the changes and will advise on the preparations employees need to make; Tony Alcock, Director at Custom HR, who will suggest workable solutions to avoid ageism in the workplace and Karl Ellis, Director at EBRS, who will offer  tips on how employers can use employee benefits successfully to reward skills and performance rather than length of service. The seminar will take place on Wednesday 30 March from 12-2 pm at Davies and Partners Solicitors office at 135, Aztec West in Bristol.  Tickets cost £10 inc VAT and include a buffet lunch.  Anyone wishing to attend should contact Sarah Whittock at Davies and Partners on email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it or telephone 01454 619619.

Further to the Radmacher case (see article on pre-Nuptial agreements in determining divorce settlement in Matrimonial page), the Law Commission published a consultation paper in January 2011 asking the general public for their views on pre-nuptial agreements. The Commission will make its recommendations to Parliament.   This is an important exercise and can raise strongly held views. This is your opportunity to give your views on this important matter and the consultation document is available at http://www.lawcom.gov.uk/docs/cp198.pdf.   The legal standing of pre-nuptial agreements has been strengthened by the Radmacher case. If you need any advice or assistance concerning pre-nuptial agreements please contact one of our specialist family lawyers.

  Telephone:   Birmingham: 0121 616 4450 Bristol: 01454 619619 Gloucester: 01452 612345   Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it  

  Clinical Negligence specialist Rachel Bowen, at Davies and Partners Solicitors in Birmingham, is celebrating achieving accreditation onto the prestigious panel of the Law Society’s Clinical Negligence Accreditation Scheme.    Rachel is the latest member of Davies and Partners’ team to be accepted onto the panel, which provides advice and assistance to clients with claims arising from medical or dental negligence. Rachel who qualified in 1994, joined Davies and Partners in 2000 and was made a Senior Associate in 2007. She is also Team Leader for the firm’s Birmingham Office Clinical Negligence team.  Rachel has extensive experience in all areas of high value claimant clinical negligence actions, including cases involving general surgery, neurological, vascular ,urological, gynaecological, obstetric, orthopaedic and ophthalmic injury. Rachel also deals with cases involving fatality and still birth and with claims arising as a result of poor psychiatric and nursing care. Rachel said, “I am delighted with the accreditation onto this esteemed panel.   Davies and Partners now has a very high number of Clinical Negligence Panellists at the firm which highlights our specialism in this area.  The Law Society Panel Accreditation is an excellent guide for clients to give them the confidence that their solicitor has proven expertise in managing clinical negligence cases and for me it’s recognition that I have achieved the highest professional standards in my specialist field.”