Boundary Disputes arise between owners of neighbouring properties. Ordinarily such disputes arise when two parties disagree as to where the true extent of the boundary lies.

Disputes can often be triggered when one party proceeds with erecting a fence or wall believing it is on the legal normal erection boundary and the other party disagrees.

How do I know where my boundary line is?

Often parties will rely on the Land Registry plan as the document that determines a boundary line. The Land Registry plan does not determine the boundary line and the parties should divert their attention to examining their pre-registration deeds of their respective properties.

Such deeds should contain a document which outlines a transfer of the piece of land or in the alternative a clear and detailed plan with description.

It is suggested that to avoid matters escalating unnecessarily full transparency is provided between the parties so each party can inspect the neighbours’ deeds also. This can be difficult particularly if relations between the parties have deteriorated because of the dispute.

What if on inspection my neighbour and I do not agree?

If the boundary line cannot be agreed then it is suggested that both parties, with a view of controlling fees, jointly instruct a chartered land surveyor. The instructed surveyor will inspect the relevant deeds and if necessary visit the said properties to determine the boundary.

The last thing anyone wants when they are at home is a dispute on their doorstep. Disputes of this nature can strain the relationships between the neighbouring parties whilst they still line side by side. It can also transform a relaxing home into a stressful place with no rest. Therefore, careful thought and planning must be put into finding a resolution to avoid such a strain and more importantly prevent costs spiralling out of control. Legal costs have been noted by many Judges to have often outweighed the value of the land.

Here at Franklins we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. Contact the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Why would a co-owner want to sell?

There are a number of reasons why this happen and these are just a few examples:

  1. To have your named removed from the mortgage and legal title;
  2. An application made by a family member such as a parent, sibling or grandparent who wish to receive their financial interest in the property;
  3. To force the sale of a property which you and the co-owner inherited from a deceased’s estate;
  4. When an ex-partner refuses to leave and you wish to occupy your former family home alone.

How do I go about forcing a co-owner to sell?

The Trusts of Land and Appointment of Trustees Act 1996 is an Act of Parliament which is otherwise known as TOLATA. This Act gives the Court powers to resolve disputes regarding the ownership of property and land and is there to help a joint owner sell a property when their co-owner does not want to.

If an individual wishes to force a sale of a property, there are three main types of application under TOLATA which can be presented to Court:

  1. An application to the Court requesting an order of the sale of the property to enable one co-owner to receive their financial interest in the form of net sale proceeds;
  2. A request that the Court decides which co-owner is entitled to occupy the property;
  3. A request that the Court decides the extent and nature of ownership if the property is owned by two or more individuals.

Is issuing a claim at Court the first step?

No. As with any disputes, there is a process and the Court expect the parties to resolve matters, if possible, without utilising the Court’s resources.

Before any claim is issued a Pre-Action Protocol Letter of Claim will need to be sent to the co-owner outlining the claim and what is sought. 

Each party is under a duty to ensure that they negotiate and it is always beneficial and advisable for parties to settle disputes by means of Alternative Dispute Resolution to ensure matters are dealt with swiftly and cost effectively.

I know the co-owner won’t agree, so what happens when they don’t respond?

If, after sending the Pre-Action Protocol letter no response or agreement is reached, then the applicant will usually issue a claim at Court under Part 8 of the Civil Procedure Rules 1998. In some circumstances, it may be appropriate to use a different process and legal advice can help guide you to the most appropriate choice.

In determining whether to make an order under TOLATA the Court will consider a number of factors.  This includes the intentions of the parties and, in particular, the reason why they purchased the property and for what purpose.  The Court will also consider if there are any occupants under the age of 18 in the property and any interests in the property such as whether there is a mortgage lender. 

If you require legal advice or assistance in enforcing the sale of a property or on TOLATA then please do not hesitate to contact a member of the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Divorce

It is not a simple matter of beginning your no-fault divorce online by yourself, it is pivotal that you receive the right advice to prevent your ex-partner from coming back for more money. It is crucial that you put a financial consent order in place showing what each party are receiving and can prevent any disputes in the future!

You may believe you are both amicable now, but a lot can change during the 26 weeks whilst you wait for your Final Order, whether it’s the start of a new relationship, child arrangements or pensions being disputed, it is best to resolve all loose ends to allow you both to more on.

There are a few things to think about whilst you are waiting 20 weeks for the courts to issue your Conditional Order and an additional 6 weeks for the Final Order. We highly recommend that you obtain legal advice on the finances before you finalise the divorce.

Alternative Dispute Resolution

Both amicable and contested consent orders need to go through solicitors to be agreed. However, there are a number of alternative solutions that can be discussed with your instructed solicitor, such as Mediation, Collaborative Law, Arbitration and finally Financial Court Proceedings.

Finances

If you did not put in place a pre-nuptial agreement before tying the knot, now is the time to think about the matrimonial home and your assets. You need to consider whether to have a Separation Agreement drafted or make the agreement legally binding with a Consent Order, which is sealed by the courts. Parties can choose to amicably agree the contents of the consent order and have one solicitor to draft it with parties obtaining Independent Legal Advice before signing. The main topics to be discussed with the instructed solicitor are the Matrimonial Home, Pensions, Life policies, Spousal Maintenance and Child Maintenance.

Children

Your Divorce does not only impact you but your children as well, it is crucial to arrange child arrangements with your ex-partner. The courts will not get involved unless one party disputes the arrangement. It is highly recommended that parties attend mediation to obtain legal advice on the matter before proceeding with any arrangement.

Every situation is different and at Franklins we can guide you through the process which begins with an initial fixed fee meeting costing £195 during which we can tailor the advice to you depending on the situation with the intention of guiding you to a fresh start without the fear that your ex-partner will come back for more.

If you feel Franklins might be the right firm to advise you on your legal position, and you would like to enquire about when an initial appointment could be scheduled, contact our Family Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk 

A sanction is an adverse consequence imposed on a party for failing to comply with a rule, practice direction, or a court order.

Sanctions can arise following a court order as a result of an unless order or imposed by the rules or practice directions due to a failure to take a particular step as directed. An automatic sanction can be imposed following a breach of the Civil Procedure Rules. This would encompass breaches in relation to court documents which have not been served within the specific timeframe. Alternatively, other sanctions can be imposed on a party and the court can either specify a sanction or make an unless order.

If a sanction is imposed on a party, then it should not be ignored and either an agreement is reached between the parties or an application for relief can be filed to the court.

a. Reaching an agreement

One of the options a party has would be to try and reach an agreement with the other side. This would be done by way of proposing a consent order for relief and usually offer to pay the other side’s costs for considering the order. A consent order does not necessarily have to deal with liability for costs. However, when a party is trying to agree an order for relief, it would be wise to consider conceding paying costs.

Once the consent order has been approved by both parties, then the court will then consider it. However, it is important to note that the court is not obliged to approve the order, although it is unusual for the court to refuse.

b. Application for relief

Following the Jackson/civil litigation reforms in April 2013, there has been a change in the court’s case management culture in that the court became less tolerant when it comes to delays and breaches of rules.

Sanctions are dealt with in Part 3 of the Civil Procedure Rules. According to rule 3.9, the court will consider various elements when deciding on an application for relief from sanction. This includes the need for litigation to be concluded efficiently and at proportionate cost; and the need to enforce compliance with rules, practice directions and orders.

When making an application for relief from sanctions, a party applies for a court order and follows the procedure under Civil Procedure Rules 23 and Practice Directions 23A.

When it comes to relief from sanctions, parties must be conscious not to either unreasonably withhold consent nor to concede unnecessarily.  

Hopefully, you will never find yourself in a position where you need to make this application. If however you do, it is best to act promptly and quickly in order to minimise the damage.

For further advice and assistance please contact our Litigation and Dispute Resolution Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

When bringing a claim, claimants are subject to limitation periods depending on the type of claim brought to the court. Any claim action must be issued within the relevant timeframe and failing to do so would give the defendant a way to raise the defence of limitation. For example, the following limitation periods apply:

A claimant must also take into consideration how to calculate the date on which a claim is brought and the Court of Appeal clearly established in the case St Helens v Barnes [2006] EWCA Civ 1372 that a claim is brought to the court when the court received the claim form and not when the claim form is sent.

Once a claim is brought to the court and the defendant uses the limitation period defence, it is up to the claimant to prove that the time has not expired. This is one of the argument raised in the case involving the Duke of Sussex, Sir Elton John and five other claimants against the publisher Associated Newspapers Ltd.

On 29 March 2023, the BBC reported on the above mentioned claim where the claimants sued the publisher for illegally obtaining their personal information and using it for Daily Mail and Mail on Sunday stories. David Sherborne who represented the claimants argued that they have all been victim of “numerous unlawful acts” which include intercepting telephone conversation; illegally bugging cars and homes and obtaining private information such as bills or medical records. Mr Sherborne pointed out that these unlawful acts happened through a vast period from 1993 to 2011 and beyond until 2018.

On the other side of this case, Associated Newspapers Ltd is seeking for the case to be thrown out as groundless. Among other arguments, the publisher relies on the fact that the claims were based on non-credible evidence as these were depending on a private investigator’s statement who has served a prison sentence. Furthermore, the barristers representing the publisher argued to the High Court that the claimants have now run out of time to bring their claim as it has been now over six years and the claimants should have complained when the articles were published.

It is now up to the claimants to prove that the time has not expired for them to bring their claim. They are arguing that the Mail’s editor swore an oath at the Levenson Inquiry in 2011 according to which no illegal methods of gathering information were used and that this prevented legal actions. Moreover, they are arguing that further evidence came to light which reset the clock for bringing the claim.

The BBC also reported that two other private investigators have made statements to the court supporting the claimant’s case in that they admitted their role in obtaining information illegally and reporting to journalists at the Daily Mail and Mail on Sunday.

The parties were present in court throughout the end of March and beginning of April to present their case in front of Judge J Nicklin and when decided, this case should give further clarity over the issue of limitation periods.

For further advice and assistance please contact our Litigation and Dispute Resolution Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

What is a Personal Representative?

Personal Representatives are individuals who have legal authority and responsibility to administer a deceased’s estate. There are two types of Personal Representatives; an Executor and an Administrator.

An Executor is appointed under the last Will and Testament of a deceased. In absence of such a document, then an Administrator is appointed dictated by the Rules of Intestacy.

Personal Representatives have an overriding duty when administering an estate and their duty falls within the scope of Section 25 of the Administration of the Estate Act 1925 (“The Act”).

What does a Personal Representative have to do?

In essence, a Personal Representative has a duty to collect in the real and personal estate of the deceased and administer it according to the law.

What if a Personal Representative is not acting in accordance with their duties?

If a Personal Representative fails to act in accordance with their duties then a beneficiary, co-executor or co-administrator can force that individual to act in accordance with their duties as prescribed by law.

What steps should I take if a Personal Representative is not acting in accordance with their duties?

There are many ways in which a Personal Representative can be found to not fulfil their duties. If this is the case, the first step is to write to the individual directly requesting that an account of the administration of the estate be provided as soon as possible.

If the response is not satisfactory, a beneficiary or co-executor/co-administrator has the right to apply to Court to remove and substitute them.

How can I remove a personal representative?

An application can be made requesting the Court to exercise its discretion in either appointing, removing or substituting a Personal Representative.

Such an application will require detailed reasoning on why the Court should exercise its discretion in such a way and that there is a threat to the proper administration of the estate if the Court does not exercise its discretion in the way requested.

These types of applications are not straightforward as there is a requirement to show that the Personal Representative is not acting in accordance with their duties and requesting the Court to remove them.

The Court will need to be satisfied that the Personal Representative is unsuitable for such a position as a result of serious misconduct.  Section 50 of the Administration of Justice Act 1985 provides the High Court with the discretionary power to appoint a substitute or terminate the appointment of a Personal Representative.

This application will need to be made in accordance with Part 57 of the Civil Procedure Rules 1998 which sets out the requirements that are needed when making such an application.

What if a Personal Representative agrees to be removed?

If a Grant has been extracted and the Personal Representative no longer wants to act or refuses to do so then either they or someone else can make an application for the revocation of the Grant under Rule 41 of the Non-Contentious Probate Rules 1987.

It is important to note that such an application can only be made by the Personal Representative themselves or by someone else enclosing the consent of the Personal Representative.

For further advice and assistance contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 / 01908 660966 or email maninder.mann@franklins-sols.co.uk.

Mediation MeetingA mediation is a great opportunity to resolve a dispute quickly and cost effectively. It is important to be as prepared as you can to make the most of the time available. Considering that a court case can take not months but years to reach trial, the advantage of a resolution within a day is hugely beneficial.

There are some practical tips for preparing for a mediation:-

  1. Ensure you have all the information you need to make decisions on the day.

This could be taking legal advice, obtaining financial information, securing expert advice from, for example, an accountant, finding witnesses and obtaining evidence to support your case.

  1. Remove as many distractions as possible on the day.

This is your opportunity to find a solution.  So whether it is putting on your out of office, arranging child care, re-arranging meetings and commitments for the entire day and evening, paying for a full day’s parking and checking when the car park closes, ensuring that there are no planned internet interruptions if mediating on-line, reduce anything that may impact on bandwidth performance. The list goes on. All of these have the potential to distract you from the matters in hand and are best prepared for in advance to ensure you can commit your attention to finding a solution.

  1. Know your best and worst alternatives to a settlement at mediation.

During the mediation, you may be asked at some point to consider a settlement and compare it to your best and worst alternatives. This could be how long the case may continue if no settlement is reached, additional costs to take a case to trial, an inability to complete a project or future plans due to cash flow when dealing with the dispute in court and many more – all of these are to provide space for you to reflect upon the value of a settlement to you on the day of the mediation.

  1. Understand the strengths and weaknesses of your case.

Risk assessing your position is vital. However good it seems, it is rare that a barrister will advise a client that they have over a 70% chance of success. Court cases can be unpredictable and for the very reason you have a dispute, someone has a different viewpoint and can present their thoughts on the position which may be so far removed from your own that you find it hard to believe how they reached their conclusions. But, they did and therefore it is helpful balance your position by weighing up the pros and cons of your own case.

  1. Think through what your objectives are in the negotiation.

Mediation is a facilitated negotiation. It may begin with the parties setting out their legal entitlements but it moves to a commercial settlement and what the parties need and are prepared to do in order to get a deal done. Very often the judgement that would be available in the courtroom, is not the most practical for either party in practice. Thinking outside the box, being creative and looking beyond the immediate issues may open up different and new options that could encourage a settlement. Try therefore to take a step back and consider what other options could be available.

  1. Take care of yourself.

Mediation can be a long and intense day. Making sure that you have a good night’s sleep beforehand, if travelling to a venue for the mediation then factor in additional time so you are not rushed. Take with you anything you need by way of refreshments for the day if these are not being provided and there will also be lengthy periods when you are potentially on your own so manage this time well; take a break and move around when you can.

The Mediator is there to provide you with the best possible chance of settling your dispute but ultimately it is your decision. If you are attending the mediation with the desire to settle the issues, being prepared, open minded and having everything you need to hand is key.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Entering into a franchise agreement is an exciting time. The promise of what is ahead with commercial returns for both the franchisor and franchisee leading both parties to enter into the relationship on an understandably enthusiastic basis. 

From such a positive start, the dynamics can change as the business relationship unfolds with disputes surrounding the following areas high on the agenda:-

The Franchise Agreement

As with any business there are always risks. Taking on a franchise is like any other business and whilst it may be of benefit to have a brand that is already established, there can still be challenges. 

Franchising itself is not regulated in the UK and as a result there are no regulations to guide both parties, meaning that any company can set up as a franchisor.

The most common type of franchise dispute is misrepresentation. This arises when the franchisee alleges that the franchisor was misleading with information or documentation provided to encourage them to enter into the franchise agreement. 

The franchisee has to show that in entering into the franchise agreement they relied upon statements of fact presented to them by the franchisor which later proved to be untrue or could not have been reasonably held.  Perhaps understandably in this category, those claims tend to focus on financial projections relating to the financial returns of operating the business and its running costs and expenses.

The franchise agreement itself can be drafted in a way to favour the franchisor with many obligations falling on the franchisee including a personal liability if the franchisee does not deliver on certain performance or financial requirements. Ensuring that the franchise agreement has been properly drafted and that the parties were aware of their own rights and obligations is critical, as it will enable both parties to operate their part of the agreement effectively and efficiently.

Preparing well in advance for managing the franchisee will assist the franchisor to support this new extension of its existing business.  The program of engaging with the start-up franchise from the outset through to being up and running is important and can head off any potential areas of conflict. This means ensuring that the right levels of support and training are in place.

Handling disputes

The majority of franchise agreements will include a clause as to how disputes between the parties should be handled. This is the first point of call if communication between the parties has broken down.

Mediation can be part of that process, or other facilitated face-to-face meetings, if both parties are represented by solicitors and their direct communications have been unsuccessful. Arbitration or litigation can lead to an assessed outcome for the parties however this can be lengthy and expensive.  Many court cases can take up to 2 years if they exceed small claims limit of £10,000 which makes mediation and its ability to resolve a dispute within a day at much less cost an attractive alternative.

Franklins Solicitors LLP have assisted many franchises in the following areas and just some examples are set out below:-

Following an assessment of the legal position, we discuss with you the options and then best strategic approach in your dispute.

If you have the franchise dispute or have issues with a franchise oral franchisee relationship, please our Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

So you have been left nothing or not as much as you thought you would get – what rights do you have?

There are two ways an individual can dispose of their estate: by executing a Will or in absence of this document then in accordance with the Intestacy Rules.

What can I do?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependent on a deceased prior to their death.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, cohabitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories to be satisfied in order to be eligible to present a claim to Court and these are as follows:

  1. The deceased must have been living in England and Wales at the time of death;
  2. As an applicant, you must fall within one of the categories as outlined in Section 1 (1) of the Act (listed above); and
  3. If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance.

The factors the Court will consider are set out in Section 3 (1) of the Act and they will take into account the following: the financial needs and resources of the applicant, any other applicant, any other beneficiary and the size and nature of the estate.

The Court will also consider if the deceased had any obligations and responsibilities towards the applicant or any other beneficiary of the estate as well any physical or mental disability of the applicant.

Will the Court apply the factors under Section 3 (1) of the Act to each applicant the same?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

  1. The age of the applicant and the duration of the marriage;
  2. The contribution the applicant made to the welfare of the family;
  3. What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

You may not have a choice.

What is Arbitration?

Arbitration is a strand of Alternative Dispute Resolution which has a contractual and judicial element attached to it.

The decision to refer a dispute to Arbitration will ordinarily stem from an agreement between the disputing parties, otherwise known as the “Arbitration Agreement”, where it states that in the event of a dispute, the matter is referred to Arbitration.

Arbitration itself means that when a dispute is initiated through this process, it will be referred to a Tribunal who will have the requisite power to hand down a decision that binds the parties.

What will the Arbitration Agreement state?

Subject to the agreement itself, the Arbitration Agreement will set out details of the process out further and in particular:

Why should I Arbitrate when I can go straight to Court?

The Court process is lengthy, costly and uncertain whereas the Arbitration process is far more attractive.

Once Arbitration proceedings have been initiated, the process from initiation to a hearing is rather swift.

This will have a significant impact for both parties in that there is certainly with time and legal costs. This is because once the matter proceeds to a final hearing and an award produced, such an award is binding on the parties unless challenged.

At Franklins, we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. For advice, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.