A compromise agreement is a legally binding agreement which usually brings an employment relationship to an end. 

It is one of the only means recognised in the law, by which an employee can legally “contract out” of their employment law rights.  As an enticement, the employer usually agrees to financially compensate the employee.  In return, the employee agrees not to pursue any legal claims against the employer.   Very often the compensation payment reflects what the employee would receive if they were to make a successful claim for unfair dismissal. 

What are the benefits of using a compromise agreement?

The compromise agreement route often results in benefits for both the employer and the employee.  The employer may have concerns about the risks to the business of a legal claim by the employee.  These risks include, costs, time expended and reputational damage. This may be the case even where the employer has followed, for example, a redundancy, capability or misconduct procedure, leading up to the dismissal.  

From the employee’s point of view, a lump sum payment is often welcome where there may be perceived irreconcilable differences in the employment relationship or where simply the parties no longer hold the same values.  The employee will not want to leave under a cloud and will be keen to preserve their reputation in the market place. 

It may be in both parties’ interests to have a clean break. 

Do I really need legal advice?

Employer’s should seek legal advice on the terms of the compromise agreement and the settlement figure. All too often employers use standard agreements, adapted in-house, which are not fit for the particular circumstances and further expose the employer to the risks set out a above.  Each situation needs to be handled carefully and is fact sensitive.  

A compromise agreement is not valid unless the employee obtains independent legal advice on the meaning of the agreement and in particular its effect on their ability to pursue their employment law rights.  The quality of legal advice received is important from the employee’s perspective. 

The employee needs to understand the implications of signing the agreement, including but not limited to, the claims that they cannot now bring against the employer, what they may disclose to any prospective future employer, whether there are any regulatory implications, the relevance of any ongoing medical issues, whether they should take advice on a personal injury or stress at work claim,  the meaning and implications of any restrictive covenants and the adequacy of the compensation payment itself and the notice pay. 

Our solution driven employment team at Benest & Syvret are experienced in and engaged with, the issues relevant to compromise agreements.  We are pleased to advise both employers and employees in this area of the law. 

It is true in Jersey as in other jurisdictions that unmarried, cohabiting couples are the fastest growing type of family. More often than not couples will live together before they get married or they may choose never to marry due to cost, ease or because they don’t value the institution of marriage in the same way their parents or grandparents did.  However, the law is a little bit behind in catching up with society’s current mores.

Taking that step to “move in together” can be an exciting time.  However, the reality of the legal consequences that flow from a subsequent break-up is often a source of surprise.  There is no such thing as a common law spouse and no statutory regime protecting people when their cohabiting relationship ends whether through separation or death. 

When the relationship subsisted you and your partner may have had an understanding that you would receive back any contribution you had made to the house that they owned but you lived in as a couple, but those understandings and promises may be forgotten if the relationship sours or if you are left dealing with your deceased partner’s estate. So, what can you do?

It is possible to enter a cohabitation agreement before or once you are living together. This will ensure that:

• Everyone has a clear understanding of what their financial commitments are;
• There is no misunderstanding over who owns what;
• There are no difficulties and disagreements if the relationship ends;
• There is clear evidence of everyone’s intentions should any dispute be referred to court. 

This is a sensible approach and one that can be helpful to guard against misunderstandings. However, the binding and contractual force of the document may come under attack if its terms are ignored during the course of the relationship.  If there are children from the relationship and a Schedule One application arises, the weight attributed to any cohabitation agreement will likely be considered by the Court using an approach similar to that used when approaching pre-nuptial agreements 

In the event the family home is jointly owned but the parties cannot agree whether or not to sell and how the proceeds of sale should be divided, then the blunt instrument that is licitation proceedings can be engaged. This is generally an unsatisfactory and costly solution as it involves making an application to court to force the sale of the property. The property is then put up for auction and may sell at an undervalue. 

Before moving in together and while still in the throes of romance and excitement, it is worthwhile taking a moment to think about the future and the issues that may arise in the event of the relationship ending. It will save time and pain in the long run. The solutions are limited for cohabitees and so protection is essential.  If you are considering moving in together it is worth getting some legal advice beforehand and considering a co-habitation agreement so that both of you are clear on your respective expectations. 

Nina would be happy to help talk you through the issues. 

Please call 875 875 and book yourselves in for a chat or contact us here.

Important update: Deputy Tom Binet has agreed a “prescription amnesty” with Government of Jersey insurers until 2027. Prescription is a substantive rule of law which extinguishes certain rights and obligations after the applicable time period. This means that after that period, the right or obligation ceases to exist, and is not simply unenforceable.

The applicable time period for clinical negligence claims in Jersey is 3 years and it is important that your claim is issued before prescription passes.

Benest & Syvret has “no win no fee” arrangements with its clients and is seeing more clients moving to us to join our group action against the Government of Jersey. 

We do not seek any upfront payments from our clients who are eligible to join the group action.

Please call 875875 to speak with our team.

The Health and Community Services, Government of Jersey issued a report prepared by the Royal College of Physicians (RCP) on 22nd January,  2024 including findings relating to the review of patients who received rheumatology care between January 2019 and December 2021. 

The RCP found the standard of care to be well below what the review team considers acceptable for a contemporary rheumatological service. Several areas of concern and potential areas for improvement were identified by the RCP review including:

• Little evidence to support a relevant history having been taken, and in particular a lack of reference to disease activity scoring. Without documentation of disease activity, it was difficult to understand the extent of patient’s disease and therefore justifications for treatment.
• No evidence of clinical examination and little evidence of standard immunological investigations giving rise to the potential for inconclusive diagnosis having been given to patients.
• A lack of relevant imaging to support diagnoses. For example, the review team found in several cases patients were diagnosed and started on medications without a magnetic resonance imaging (MRI) scan having been conducted to confirm the diagnosis.
• Limited, and often absent, handwritten evidence of the clinical interaction with the patients. The professional opinion for each case was documented in a typed letter. These letters were brief and generally uninformative. They often failed to mention the diagnosis, rarely mentioned any relevant clinical findings and lacked therapeutic information, past or current. Due to this, the review team found it difficult to understand the clinical decision making.
• Despite a lack of clear diagnosis, biologic agents were prescribed, with frequent and multiple changes. For example, a case was reviewed where a patient had been diagnosed with Inflammatory arthritis (IA) although an ultrasound scan had shown no evidence of active synovitis. Despite this, the patient was started on treatment with biologics.
• In the majority of cases reviewed, patients were often initiated on biologics and switched therapies frequently without having an adequate time to determine efficacy. In some of the cases patients were treated with five or more biologics within a short period of time and in many cases prescribing was outside both UK and European guidance.

The RCP felt obliged to write an interim letter to Dr Patrick Armstrong, medical director (dated 24 March 2023) expressing a view that the two consultants should not work independently in providing rheumatology care until such time that the review and other local processes were complete. In addition, a recommendation was made for an audit to be commenced of those patients currently on biologics to assure that their diagnoses were secure.

The RCP review will no doubt result in consideration of legal proceedings by persons who received rheumatology care during the relevant period.

Benest & Syvret are committed to assisting any person injured as a result of medical negligence. If you have been effected by any of these matters, contact Darry Robinson on 875875 or via email  info@benestsyvret.com to discuss a potential compensation claim.

Read more about the rheumatology scandal.

GOVERNMENT OPENS A NEW FRONT IN THE WAR ON LANDLORDS

“It has become axiomatic that all landlords are bastards – selfish, greedy bastards who should be content with owning one property but, determined to spite the sainted poor, gobble up loads of properties to make themselves even more money.”

So said the columnist Rod Liddle  the other week when considering the clobbering that landlords are facing from the UK Government.  Sadly, it seems that our own Government here in Jersey is intent on following Angela Rayner’s policies without proper consideration of the consequences, nor indeed the very different micro economic climate that Jersey represents.

In the last year or so, we have seen stamp duty rates for buy to let purchases sky rocket.  In addition, Landlords are now required to be bestowed a licence by Government to let their property out.  The justification for the licencing process was so that the Government could enforce standards in respect of rental properties, even though those standards have not yet been set or published.  

Yet more clobbering is coming.  Shortly, the requirement for energy performance certificates (EPCs) for rental properties will come into force.  From 1 January 2026 all properties sold or starting new lease agreements will require an EPC and from January 2028, minimum energy performance standards will be applied.  Many homes presently let and occupied by tenants who are entirely content with the present condition of their homes, will simply be unable to fulfil those requirements, particularly older properties which are subject to heritage planning restrictions.

Also coming down the line is the restriction on no fault evictions.  That will make it impossible for landlords to sling out a tenant who does not pay their rent on time, treats the property or their neighbours with contempt, or even runs a cannabis farm in the attic.  

As a consequence, new landlords have disappeared from the market in the last two years.  The eyewatering stamp duty on acquisition of a new rental unit means that the figures simply do not stack up.

Those landlords already in the market are now faced with a decision to run for the door or face the crippling cost of compliance with the regulations, the risk of rental gaps and non-payment of rental, or, in due course, the inability to get rid of dodgy tenants.

One would have thought then that our Government had deployed all of the weapons that it had in its war on landlords.  Not so.  Last week Deputy Andrews lodged a proposition proposing that from 1 January 2028, Capital Gains Tax of 20% should be applied on the sale of residential property purchased after that date where it was purchased as a buy to let property.

Deputy Andrews expressly says in his proposition that he intends to disincentivise rental investors from entering the housing market.  He thinks this will create ‘more opportunities for first time buyers to buy a home on the open market’.  He is right on the first point.  He is completely wrong on the second.

The increase in stamp duty has significantly reduced new investment in rental properties – there is no evidence whatsoever however to support a conclusion that this has benefited first time buyers.

Landlords have seen the direction of travel.  Increases in regulation started a flow of Landlords to the exit door.  The prospect of licencing requirements increased that flow and when the regulations are, finally, delivered and EPCs become a requirement that flow will only increase.  Add the prospect of the closure of the path to exit a property investment by way of punitive tax on sales or the requirement to retain a generally unacceptable tenant because of a ban on unforced evictions, then the problem for the rental market is at large.

As the supply of the private rented sector shrinks, then inevitably rents will rise.  Inevitably, that will hit the lowest earners in our community as well as contributing to inflation.  

Deputy Andrews’ proposition in the midst of this might politely be said to be unhelpful.  Those less polite than me might suggest that it is daft.  Jersey’s reputation as a stable low tax environment is important.  A challenge to the imposition of the buy to let stamp duty remains before the Courts because of the Government’s failure to implement that properly.  The proposed new tax will be fraught with all the usual difficulties that attach to calculation of a Capital Gains Levy.

The proposed tax is wholly inconsistent with Jersey’s longstanding tax regime which has always eschewed a tax on Capital Gains.  That approach has nurtured long term investments by local entrepreneurs and the arrival of wealthy individuals who rely on the consistent and stable approach to tax which Jersey has provided.  In addition, selecting one type of investment for a Capital Gains attack is grossly unfair.

Our housing crisis is one of affordability, not one of supply.  If our Ministers are intent on solving that, they should be nurturing private landlords not waging war on them.  A moderate programme of regulation of standards is acceptable but the repeated brick bats being thrown at landlords will mean a reduction in private rental supply, with the consequence of greater reliance on Government funded housing units and rental subsidy.  

Whilst bashing those who appear to be greedy capitalist bastards might seem like a good idea for the immediate popular vote, the current assaults on landlords need to be substantially rethought.  

Philip Syvret is a Solicitor at Benest & Syvret.  He heads up the property team and has advised in the acquisition, construction and disposal of some of the Island’s largest residential developments.  

Contact philip.syvret@benestsyvret.com or via 706670.

What is Jersey Probate?

Probate is the permission of the Royal Court of Jersey to administer the movable assets and liabilities (estate) of a deceased person, where they left a will.  Where the deceased died without leaving a will an application for letters of administration may be made by the person entitled to administer the deceased person’s estate, in accordance with the law of the deceased person’s place of domicile. 

In Jersey, probate applies to movable assets only.  Movable assets include, bank accounts, investments, shareholdings etc. Movable assets do not include freehold property.

What is domicile?

Broadly speaking domicile is an individual’s permanent home, where they intend to live for the remainder of their lives.  The law of a person’s place of domicile may determine who is entitled to administer and/or inherit their worldwide movable estate.  The first step when considering applying for Jersey probate (or letters of administration) is to establish where the person was domiciled at the date of their death. 

Exemption from the requirement for a Grant of Probate (Letters of Administration) in Jersey (foreign domiciled)

Where a deceased held movable assets in Jersey with a value of £30,000 or under at the date of their death, an exemption from the requirement for a Jersey grant of probate (or letters of administration) may apply, at the discretion of the asset holder (e.g. bank/registrar/investment house).  

In this scenario, an application should be made to the asset holder to enquire as to whether they require a Jersey grant of probate (or letters of administration) before releasing the asset. 

Jersey Probate/Letters of Administration – Fast Track Procedure

When does the Fast Track Procedure apply?

The Fast Track procedure applies in Jersey where the deceased died domiciled in any of the following jurisdictions, leaving assets in Jersey and a grant of probate (or the equivalent) was obtained in the jurisdiction of domicile: -

• England and Wales 
• Scotland
• Northern Ireland
• Guernsey

What information and documentation do you need to provide us with in the Fast Track procedure?

• The original death certificate.
• Copies of the will and the probate issued in the place of domicile, bearing the stamp of the court on each page and certified as true copies of the originals by the issuing Probate Registrar (or the equivalent where the deceased died without leaving a will).
• Provision for stamp duty, which is calculated on the net value of the Jersey estate of the deceased at the date of death and is calculated as £500 on the first £100,000 and £75 on each £10,000 or part thereof thereafter, plus £80 court fee. There is a maximum cap of £100,000 on stamp duty. 
• The name, residential address, email address and telephone number of each executor (or administrator where the deceased died without leaving a will). We need this information from the outset, so that we can prepare our client take on form to be completed by each the executor. 
• Identification documentation in respect of each executor (or administrator) in the form of a passport or driving licence and two verifications of residential address, dated within the past three months. These document must be certified as true copies of the originals in accordance with our verification of identity requirements. A local Post Office may provide this service. 
• Information on the source of wealth of the deceased. 

Process 

Once we receive the requested documentation and information, we prepare an oath for the executor(s) to swear.  Once we receive the sworn oath, together with the requested documentation and information, we lodged the Fast Track application at the Jersey Probate Registry.  

The probate document is usually available within 5 to 7 days of the date on which the application is made.  We then send the probate to the executor(s) so that it may be sent to the Jersey institution(s) holding the asset(s). 

For further advice or an informal chat in relation to obtaining probate in Jersey contact Claire Kingham or any member of our probate team at info@benestsyvret.com or on 01534 875875.

I recently secured the acquittal of a client in what I understand to be the first case of its kind in Jersey – the prosecution of a person for providing ‘Jersey lifts’. 

This is a controversial topic, which over the years has been the subject of much debate. On the one hand, it is seen by users as community assistance, where a lift can be requested at seemingly any time in return for a contribution towards the cost of the journey (the word payment is deliberately avoided here).

On the other, the practice raises serious questions regarding passenger safety and insurance, and causes frustration for those who work within the regulated taxi industry.

Whilst many describe the giving of lifts as operating within a grey area, sitting somewhere between lift sharing and a cab service, I do not agree. The law is clear on what is required in order to make out the offence. Those offering lifts should be aware that they are at risk of prosecution, with a maximum £10,000 fine.

In addition, offering lifts may trigger connected offences such as driving without insurance. 

One of the reasons for the rise of ‘Jersey lifts’ is that demand for taxis frequently outweighs supply. On busy nights in town, the wait for a taxi can be a long one; perhaps less of an issue in the summer, but a grim experience when the weather is poor. For many, ‘Jersey lifts’ seem to be the solution. 

At the time of writing, there are over 40,000 members in the two principle ‘Jersey lifts’ groups on Facebook (obviously there will be some membership crossover). It is an active community, with a network of drivers offering lifts or passengers requesting them. One of those groups states on its frontpage that ‘it’s not illegal to do free lifts’. Whilst that disclaimer may be accurate, the reality is rather more complicated. 

Legitimate, not-for-profit lift sharing – for example where friends might contribute towards the cost of a journey – is lawful and specifically permitted in certain circumstances under the law. What amounts to ‘profit’ however is up for debate. 

Critics of the practice say that the taxi-industry is for valid reasons heavily regulated in terms of both entry to the profession and what drivers are able to charge passengers. PSV badges are only issued by the Inspector for Motor Traffic provided certain conditions are satisfied, with matters such as the fitness (physical and character) and capability of the driver being considered. Their conduct can be regulated and sanctions issued or a badge withdrawn. 

A person with a poor driving record would likely struggle to obtain a badge to transport members of the public. By contrast, with ‘Jersey lifts’, passengers (who may have been drinking or otherwise potentially vulnerable) have very little information about their driver. They cannot have the same confidence that the standards which regulation provides are met. 

In addition, there are serious potential insurance implications. Much will turn on the wording of the policy but underwriters may decline claims where they reach the view that otherwise insured drivers were driving for hire or reward, an aspect excluded under most standard motor policies. That creates a significant risk for those providing legitimate ride sharing in the event of an accident and also should have a cautionary effect on those seeking lifts. Should the worst happen, they might not be able to claim against the driver’s insurance for compensation or medical costs.

The prosecution in my recent case contended that my client was driving a public service vehicle without authority in breach of the Motor Traffic (Jersey) Law 1935 and that there was an agreement with passengers, from which a profit would be made. The Magistrate, having heard the evidence and submissions on the law, concluded that the prosecution had failed to make out its case to the criminal standard and returned not guilty verdicts. There will however be other examples where the facts will allow a successful prosecution.

I have no doubt that there are drivers out there who are breaching the law and regularly profiting from offering lifts. If caught and successfully prosecuted, they will face sanction. A potential solution might be an amendment to the law to widen the scope for which a driver might be prosecuted. For now, despite the risks faced by both drivers and passengers, the practice shows no sign of abating.

A recent conversation with a client gave rise to the quote “I’m only thirty years old – I’m too young for a Lasting Power of Attorney!”

We were chatting as we prepared to go to Court to sell a flat and buy my client a new house.  I had suggested that as that new asset was acquired, it was a good point at which to review his Wills and make a Lasting Power of Attorney.  

A Will would obviously deal with the disposal of his new property and other assets when he was no longer here.  The suggestion, however, that he should make a Lasting Power of Attorney was met with some surprise.  He had only ever considered a Lasting Power of Attorney to be something associated with managing the affairs of elderly relatives, not something which was needed by a bright, fit and active professional in the prime of his life.

A Lasting Power of Attorney is, however, important at any age.  In my practice here in the Wills and Probate Department at Benest & Syvret, I often see how fragile life can be. A significant change in circumstances and our ability to deal with even the most mundane of daily activities can happen in an instant.  Quite simply, tomorrow cannot be taken for granted.

Having a Will in places ensures that your wishes are honoured after your death and importantly makes matters for your family that little bit easier.  Equally important, however, is making provision in the event that you lose ability to deal with your affairs during your lifetime, should that ever happen.  That is when a Power of Attorney becomes important.

For clarity, there are two types of Power of Attorney.  An Ordinary or General Power of Attorney is often signed to be used in a property transaction, authorising a Solicitor or other professional to do something on your behalf, including going to Court to purchase a house.  Those General Powers of Attorney can only be used when you provide instructions for the Attorney to undertake that task.  If you do not have capacity to give those instructions, then the General Power of Attorney is of no use.

The second type of Power is a Lasting Power of Attorney, commonly referred to as an “LPA”.  That Power of Attorney can be established to kick in if you lose mental capacity to make decisions.  

There at two types of LPA, one for health and welfare decisions and the other for your property and financial affairs.  You can choose more than one Attorney, and you can choose different Attorneys to deal with your heath and welfare decisions and your finances.

Many people believe that if you are married, your spouse automatically has the right to make decisions about medical care if you are no longer able to make those decisions yourself.  That is not the case; whilst doctors might consult your spouse or partner about a medical care plan, ultimately decisions about your care might be made by a stranger.  With an LPA in place, aligned with an advance directive as to medical care in particular circumstances, you can be certain that decisions that you have made about your future care will be binding.

If an LPA is not in place and you lose capacity, an application to the Court to appoint a delegate to administer matters will need to be made, a potentially lengthy and cumbersome process. An LPA will mean that your Attorney can immediately pay or cancel bills in your name and administer your savings, pension or property.

The most important part of the LPA process is choosing an Attorney who you can trust implicitly.  Being an Attorney is a significant responsibility - they could one day have control of all aspects of your life.  Whilst it is an important thing to do, it is not a matter to be rushed.

Equally, whilst the LPA application form is available online, there are certain traps to the unwary if an application for an LPA is made in terms which are unclear or uncertain.  In the same way that it is important to have a Will drafted by a professional so as to ensure the wishes are accurately recorded, an LPA should be made with the assistance of professional advice.

An LPA works best when it is tailored to your particular circumstances.  You can choose powers to include or exclude and tailor the document to your particular circumstances.  

I have seen a very significant take up in the execution of LPAs by clients who are in their autumn years.  Like my young client who was off to buy his new house, however, the perception remains that this is not an item needed by those of younger years.  None of us know what tomorrow will bring, but with both Wills and LPAs in place, at least plans can be made for whatever does come.

To discuss any aspect of a Lasting Power of Attorney, contact Freya on 875875 or via freya.brennand@benestsyvret.com