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I was in a car accident last year and broke my arm. I have been offered £7000.00. Should I accept it?
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Road Traffic Offences: speeding ticket
Question: My car was recently caught speeding by a roadside camera. I have received a Notice of Intended Prosecution through the post. The car is registered to me, but my wife drives it as well. We both use the car regularly on the route where the car was caught and we genuinely cannot remember which one of us was driving. Can either of us be prosecuted if we cannot say who was driving?
P.L. - Leeds - 06/04/2008
Answer: This ties in with the so-called “Hamilton Defence”. Christine Hamilton was provided with Notice of Intended Prosecution in relation to a driving offence. She was unable to say whether the vehicle was being driven by her or her husband Neil Hamilton, the former conservative MP at the time of the offence.
Section 172 of the Road Traffic Act 1988 provides an obligation on the owner of a vehicle to provide information about the driver of the vehicle.
Subsection 2 of the Act provides that:
(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and?(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
An offence under section 172 of the Road Traffic Act 1988 carries up to six penalty points and a level three fine of up to £1000.00.
Accordingly, if you fail to provide information regarding the driver, you could end up with six penalty points and a fine.
However, the act also provides a potential defence as follows:
(c) a person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.
Therefore if you genuinely cannot remember who was driving at the time, you may defend an offence under section 172 of the Road Traffic Act by showing that you used reasonable diligence to find out who the driver was and failed to ascertain the driver.
The courts are becoming used to hearing “reasonable diligence” defence submissions, and in general they are much more likely to be impressed if you can present evidence to show that you have used reasonable diligence to determine who was driving and cannot do so.
Of course, if you remember who was driving the car, you should notify the prosecution immediately and consider pleading guilty and taking the points and fine.
If you still cannot remember who was driving, here are the steps that we suggest you follow if you intend to pursue a “reasonable diligence” defence:
Step 1: Upon receipt of the Notice of Intended Prosecution, write to the Central Ticket Office and say that you do not know who was driving the vehicle at the time of incident. You should provide details of all of the people who could legitimately have been driving the vehicle and explain why you cannot remember who was driving. For example, the car is a shared car and the alleged offence was on a route that more than one of the drivers regularly uses; or you were on a long journey where the driving was shared by the drivers and you cannot remember who was driving. Ask for any evidence that may assist in identifying the driver to be provided to you, such as the photographs.
Step 2: If the photographs are sent and clearly identify who was driving, then you should reply giving details of the driver. More often than not, the photographs will not assist you in determining who the driver was. If this is the case, you should write back notifying that unfortunately you still cannot identify the driver. Sometimes, the police will refuse to provide the photographs. Technically, they do not have to before proceedings are commenced. If you are notified that the photographs will not be provided, we strongly advise that you keep your original letter requesting the photographs and the reply you have received to show to the court. This will be especially useful if you receive a summons and the photographs are subsequently disclosed enabling you to identify the driver.
Step 3: Discuss the matter with all the other possible drivers. They may be required to give evidence in court at a later stage. Consider bank statements to see if these show any purchases made by any particular driver in the vicinity at the time. Look at a map of the route and see if this triggers a memory as to who was driving. Be prepared to tell the court about these measures you have taken to remember who was driving and include details of the measures in your letters to the Central Ticket Office. If you do not tell them, they will not know that you have done this.
Step 4: If you are still unable to identify the driver, it is likely that the matter will be passed to the CPS for them to decide whether to issue a summons. In some areas, they will consider the evidence and decide not to take any action. In other areas, the CPS will take the view that it is a matter for the magistrates to decide whether you have used reasonable diligence and they will send a summons.
Step 5: If you receive a summons, you will have to go to court to tell the court about the steps that you have taken to remember and to explain that you genuinely cannot remember. The courts these days tend to set a fairly high bar, but if you provide the right evidence (and the general rule is the more evidence the better) then you should be able to persuade the court that you have used reasonable diligence. If the matter is proceedings to court, we would recommend you consider instructing a solicitor to help you to prepare the evidence and to arrange professional representation for you at court.
Please note also that special rules apply to company vehicles. Section 172 of the Road Traffic Act provides that a log should be kept to show who is driving at all times.
If you are not the registered keeper of the vehicle and the registered keeper of the vehicle has named you as a driver, a lower burden applies. You must provide the police with information in your power to assist in identifying the driver at the time. You may simply say you cannot remember who was driving. In practice though it is wise to present as much evidence as possible, as in the case where reasonable diligence must be shown.
Given that the court are becoming accustomed to hearing from "amnesiac" car owners who cannot remember who is driving, it is advised that you instruct a solicitor to deal with the matter.
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Road Traffic Offences: parking ticket
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Road Traffic Offences: drink driving
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Road Traffic Offences: other
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Personal Injury: road traffic accidents
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Personal Injury: accidents at work
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Personal Injury: industrial disease
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Personal Injury: trips and slips
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Divorce and family law: divorce petitions
Question: I have been married for three months. I have found out that my wife has been seeing someone since before we were married. How quickly can I get divorced?
P.W. - Doncaster - 07/04/2008
Answer: You cannot present a divorce petition at court until you have been married for 12 months. Once the petition has been presented at court and served, so long as your wife does not intend to defend the petition, the process up to decree absolute (when your divorce is finalised) can be completed within three to six months depending on how long it takes the court to process the petition. The divorce is typically dealt with on paper with no need for you to attend court in relation to obtaining the divorce certificate itself.
If you have children or there are financial issues to resolve things may take longer and you may need to attend court.
Seek advice about filing a divorce petition when you have been married for nearly a year. If there are other issues to sort out in the meantime, particularly if you have children or a jointly owned home or substantial shared assets we recommend that you seek advice immediately.
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Divorce and family law: children
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Divorce and family law: financial issues
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Financial misselling: payment protection insurance
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Financial misselling: bank charge reclaiming
Question: Is it too late to claim back bank charges?
E.M. - Harrow-on-the-Hill - 08/04/2008
Answer: No. Bank charge reclaim cases have been put on hold by the courts pending the decision in a test case being brought against a number of the major banks by the OFT. However, for many people it makes sense to start your claim now while waiting for the decision in the test case.
Following your question, we have provided detailed guidelines regarding reclaiming bank charges. Click here for more details.
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Financial misselling: credit card charges
Are credit card charges postponed like bank charge claims?
M.B. - Brighton - 14/04/2008
No. The case that is currently being considered between the OFT and several high street banks does not affect credit card charge reclaiming.
The OFT reported on credit card charges in April 2006. They determined that credit card charges that did not reflect the actual cost to the credit card company were unfair.
Many credit card companies dropped their standard charge fees to £12.00 virtually overnight. £12.00 is still unfair. Contrary to popular belief the OFT have not ruled that £12.00 is fair. They introduced an interim provision that they would not investigate companies whose charges were less than £12.00 but made it clear that the courts would not consider £12.00 to be a fair charge if it actually cost the credit card companies less. How much can it cost to print an automatically generated standard letter from a computer and post it?
For more details on how to reclaim click here
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Wills and probate: will drafting
I am married and apart from my house, which is worth about £210,000 and some savings I do not have any other assets. As I understand it, if I die all of my property will go to my wife anyway. Is there any point in me making a will?
M.S. - Leyland - 06/04/2008
You do not mention whether you have any children or not.
If you have children, then under the intestacy rules, your wife would receive the first £125,000. The balance would be split into two parts. Your wife would receive a “life interest” in half of the balance (meaning that she would be entitled to interest on it but not the capital). Your children would be entitled to receive the other half of the balance, and would receive the half over which your wife had a life interest when your wife dies.
If you have no children, then your spouse will get £200,000.00 plus half of the balance. The other half would go to your parents; brothers/sisters; grandparents; aunts/unless; spouses of aunts/uncles in that order.
Therefore, if you want all of your estate to go to your wife you should make a will.
Other reasons that you may have wished to consider making a will are:
- You can determine what happens to your property if your wife dies before you.
- Your wishes regarding whether you wish to be buried or cremated can be included in the will.
- The will makes your wishes certain avoiding any potential disputes and making things easier for your loved ones after you have died.
Emmetts Solicitors provide information and documents to enable you to Make Your Will for as little as £8.95. Click here for details.
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Wills and probate: inheritance tax
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Wills and probate: probate
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Wills and probate: what to do when someone dies
Other: conveyancing
Question: The solicitor who is selling my house has told me I need to get insurance for a chancel repair. What is this? I have spoken with the person buying my house and he is not bothered about it. When I told my solicitor he said I still needed it and it was to do with the mortgage. I am paying off the mortgage anyway. Do I need this or not?
Answer: Chancel repair liability is a liability on some property owners in England and Wales to fund repairs to the chancel of their local church. This responsibility remains in perpetuity. Your land does not need to be next to a church and the liability may not have been recorded.
If the buyer of the property is getting a mortgage to buy the property from you then the mortgage company in their standard instructions to solicitors may require that insurance is obtained to cover the risk. Therefore, it is not necessarily the case that because the buyer is prepared to take the risk the insurance is not required. Remember that in the event there is a mortgage the buyer's solicitor will normally have a duty to both the buyer and to the mortgage company.
If insurance is required it is typically inexpensive and involves a one-off premium in the region of £50.00.
Normally, it is for the seller to prove that they have good title to a property and to make good any defect in title at their expense. Chancel repair liability is not technically a defect in title and therefore where insurance is required it is a matter for negotiation who meets the cost of obtaining the policy.
You need to ask yourself whether you wish to delay the sale or potentially lose your buyer for the sake of obtaining the inexpensive policy.
Other: Lasting Power of Attorney
How do I go about making an enduring power of attorney and what does it cost?
L.E. - 09/04/2008 - Bristol
Answer: The Mental Capacity Act 2005 replaced enduring powers of attorney with Lasting Powers of Attorney on 1st October 2007.
Enduring powers of attorney made before 1st October 2007 can still be registered if the donee becomes unable to manage their own affairs.
Since 1st October 2007, no new enduring powers of attorney that are made will have any effect. Instead you need to make a Lasting Power of Attorney.
The new system of Lasting Powers of Attorney allows you to nominate someone to manage your property and affairs. Indeed, you may nominate a number of different people if you wish. It also allows you to nominate someone to look after your health and welfare, making decisions about, for example, treatment that you receive if you do not have the capacity to make your own decisions. There are different forms for providing a power to someone to manage your property and affairs and for providing a power to someone to look after your welfare.
Both the Property and Affairs Lasting Power of Attorney and the Personal Welfare Lasting Power of Attorney must be registered with the Office of the Public Guardian before they can be used.
They can be registered at any time after they have been prepared but it is recommended that in most cases they are registered with the Office of the Public Guardian as soon as the forms are completed so that the Lasting Power of Attorney is active when it is needed.
There is a fee for registering the Lasting Power of Attorney with the Office of the Public Guardian. The fee is typically £150. There are certain exemptions and remissions and details of the exemptions and remissions can be found by clicking here.
The power of attorney forms contain a certificate that must be signed by an independent person to confirm that the person giving the power of attorney is doing so of their own free will and has the capacity to understand what they are doing.
A Lasting Power of Attorney can be revoked at any time, both before and after it has been registered, with a Deed of Revocation.
For more information and to download a Lasting Power of Attorney creation and registration pack visit our page dedicated to this subject by clicking here.
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