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We aim to provide practical guidance on useful areas of busness law.  

By brocs1, Apr 14 2021 09:40AM

Are you having issues with the Student Loan Company? Has Student Finance England rejected your application for student finance? Do you know you have the right to appeal their decision?


If you have found yourself in such a situation, then it is important to know that you have the right to appeal if you do not agree with the decision.


‘The Student Finance England, Assessing Eligibility Guidance’ for caseworker’s clearly stipulate that caseworkers should not apply a general rule of thumb to all applications, and that each application should be considered on its individual merits. However, as with most organisations, rules are not interpreted correctly, and a general blanket decision is applied which can lead to a rejection of an application.


Often, we see applications for student finance being refused on the basis that the applicant has “not satisfied the relevant three-year residence period in the European Economic Area (EEA) and Switzerland prior to the first day of the first academic year of the course”.


Such a situation recently occurred to a student after the course had already started. The student instructed Summerfield Browne Solicitors in his appeal against the SFE.


Background


The applicant had emigrated to the UK at a very young age and had attended primary school and secondary school in the city that was now his hometown. The applicant’s father had obtained employment outside of the UK when the applicant was 15 years old, and because of this new role, the applicant, being a minor, had no choice but to move abroad to live as a family unit.


Although the father had accepted employment outside of the UK, the role was temporary with no intention of becoming permanent. Furthermore, the Country that the family moved too had legislation in place that differed to the UK – in that, a temporary employment meant just that – temporary and no amount of ‘time worked’ would qualify as a permanent role.


As the intention to undertake that role away from the UK was always temporary, the father ensured the running of their UK family home continued. Mortgage payments were kept up to date, as was council tax payments, utility bills and TV licences. The family home was one which was frequently being used by the family each time they returned to the UK when the father’s work leave permitted. The applicant himself would undertake work experience in the UK each time his school leave abroad would allow as his intention was always to live and study in the UK – this was his home.


The moment the applicant turned 18 and was able to independently live away from his family, he moved back home to the United Kingdom and completed his final year of college before moving onto university studies.


Application to the SFE


An application in the usual way was made to the SFE which was rejected on the basis that the applicant had not resided in the UK for three years prior to making the application.


The Appeal


Based on our client’s living arrangements both here and abroad, and with documents provided to us by the client, we were able to successfully demonstrate along with supporting case law, that the applicant was not only ordinarily resident in the UK at the relevant time but also that the client was settled and had ordinary residence in two countries at the same time.


Having considered all the facts, evidence, and case law, SFE accepted the applicant’s appeal on the basis that the applicant was ordinarily a resident in the UK three years prior to making the application at all relevant times despite not living in the UK during the first two years of the relevant period.


This recent successful appeal demonstrates that the SFE do take into consideration factors that would ordinarily reject an application and that the ‘general rule of thumb’ cannot be applied in each application as each application must be considered on its own individual merits.


If you have recently been rejected for student finance and are unsure of how to proceed or you would like to appeal the SFE’s decision, then do contact our specialist team at Summerfield Browne Solicitors.


By sfb solicitors, Sep 18 2019 09:54AM

Nobody wants to get embroiled in a contract dispute. It is essential that when entering into any contract the correct advice is obtained to minimise any damage to you or your business. The contract itself should be clear an unambiguous as this will make it easier for the injured party to seek redress if the need arises.


A contract dispute arises when one party believes that the other has not adhered to some or all of the obligations set out and agreed between the parties. This can involve a failure or refusal to pay on the grounds that one party has failed to perform its obligations by supplying defective or incomplete goods or services.


If the terms of a contract are broken this is known as a breach of contract. Various remedies are available but the most common are:


1 - Damages – an award of damages is the usual remedy. The purpose of damages is to put the injured party into the same financial position they would have been in had the contract been performed correctly.


2 - An order will be made by the court requiring a party to perform a positive contract obligation, that is to do something that should have been done under the contract itself).


3 - Injunctions – this is a court order requiring a party to take specific steps or restraining them from certain activities. An example would be to prevent them from contacting a customer or supplier or from publishing a false or defamatory comment.


4 - Recission – this is setting aside a contract where the parties are put back into the position they were before the contract was made. This may be available where the contract was agreed as a result of misrepresentation, mistake, duress or undue influence.


5 - Rectification – this only applies to written contracts and its main purpose is to put right a genuine mistake made between orally agreeing terms and recording those terms into a written contract.


We can offer expert advice in both drafting contracts in an effort to protect you from pitfalls at a later stage and dealing with any disputes that arise as a result of a breach that has occurred.


Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough and assist with cases all over the UK.



By sfb solicitors, Apr 30 2019 12:22PM

If your Creditor has taken you to Court they may have obtained a county court judgement against you. This is where the Court have ordered you to pay a sum of money to the Creditor. This entails you making arrangements to repay the debt as a lump sum or by way of instalments.


A Creditor can obtain a further Court order called a Charging Order. This order secures the debt against your home or any other property that you own. Once the Charging Order has been obtained, a Creditor can apply to the Court for permission to sell your home/property to determine the money owed to them.


To apply for a Charging Order there are two stages. These are an interim order and a final order. An interim order is granted by the court without you knowing an application has been made. This allows your Creditor the opportunity to register the Charging Order with the Land Registry to prevent you from selling the property in question without your Creditor being notified. The interim order must be served not only on you but any joint owners of the property along with any Creditors who have registered a mortgage and/or any other security with the Land Registry.


Before making an interim order final, the Court must be satisfied that all relevant parties have been served with the interim order correctly. If the Court receives no written objections to the interim order within the time allowed, it will make a final order and once again your Creditor will register this with the Land Registry to secure their position.


If you object to the interim order being made final, the Court will list the matter for a hearing allowing all parties to attend before a District Judge in order that evidence can be heard from all parties where the Court will decide whether a final order should be made.


When considering if the interim order should be made final, the court must consider all of the circumstances of the case and your personal situation before making a decision. You should make the Court aware of how much equity there is in your property. This is the amount of profit you would make if the property was sold and any debts registered against it were paid off. If there is little or no equity, your Creditor would not benefit from a final charging order and the court may decide to refuse the application.


It may also be the case that other creditors are allowing you to repay the debt by way of instalments over a period of time rather than asking the court to make a charging order. You may be able to argue that it is not necessary to grant such an order if other Creditors do not think it is necessary, especially if others are owed more money.


You may also be able to argue that there are other ways in which the debt can be repaid, such as an instalment order, attachment of earnings order to name a few.


If a final order is made your Creditor can either wait until you sell the property or apply to the Court for an Order for Sale to determine the money owed to them.


There is a possibility that you can ask the Court to put conditions on the final charging order such as that the Creditor can not apply for an Order for Sale within a certain time frame or subsequently you may be able to ask the court to amend the conditions if appropriate.


If the debt in question is repaid to the Creditor in satisfaction of the final charging order, any restrictions or unilateral notices registered at the Land Registry should be removed immediately by your Creditor making the appropriate application to them. They should then provide you with evidence that all notices have been removed from the Land Registry records.


In the event that you receive an interim charging order from the court, you should take this very seriously and obtain legal advice as to the consequences of the order. If you ignore the order, the Court will make a final charging order and you are then at risk of loosing your home/property.


We can assist in considering what steps you can take to resist such an application and/or assist in trying to resolve matters with your Creditor.



Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough.



By sfb solicitors, Jan 21 2019 11:22AM

We act for a Consultant Cosmetic Surgeon who specializes in breast augmentation and abdominoplasty defending claims made against him for clinical negligence.


With cosmetic surgery becoming extremely popular and more affordable claims arising out of these procedures are increasing dramatically. Many claims are made due to unrealistic expectations of the achievable results of the procedures and are successfully defended.


There is a Protocol for the Resolution of Clinical Negligence cases that parties are encouraged to follow prior to any proceedings being issued. If a party refuses to follow the protocol, penalties can be imposed by the court usually by way of a costs order or a reduction in costs.


The protocol is intended to cover claims made against hospitals, GP’s, dentists and other healthcare providers and the ethos of the protocol is for parties to have sufficient information and understanding of the others perspective and claim and to encourage an early resolution or the parties to narrow the issues.


The letter of claim should include a summary of the facts giving rise of the claim, give details of the injuries and any prognosis, give details of the losses being claimed, confirm how the claims is being funded and whether expert evidence has been obtained and who from. The letter of claim should be acknowledged within 14 days. You then have 4 months in which to respond.


The letter of response should include any admissions or denials, comment on the allegations of negligence that have been made, give details of any expert evidence obtained and who from, confirm how the claims is being funded and request copies of the GP records. These records should be produced within 40 days of the date of request.


Parties will be entitled to obtain their own expert evidence dealing with the issues that have been raised.


Parties are encouraged to try and resolve matters or at the very least narrow the issues between them before proceedings are issued.


We have access to specialist experts who can assist with clinical negligence cases along with leading Counsel


Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough.

By sfb solicitors, Jan 23 2018 02:07PM

It may seem obvious but if you are to embark on the risky business of litigation, you must get the basics right. One basic requirement when going to trial is to have the evidence to prove your claim. There have been several recent cases that highlight the obvious point that if you are seeking damages, then you must have evidence to prove your loss! The Judge in the recent case of Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) was particularly unimpressed by the lack of any evidence to prove the damages claim. The applicant made a claim for loss of rental income on a property that had been derelict for some time. The Judge stated:


“There is no evidence that, after a long period of the property lying empty, the claimant had decided to refurbish it and would have done so had it not been for the scheme. Secondly, the details of the claim were entirely speculative. There was no evidence in support of the rental income level (whichever it was), or choice of deduction for management costs and voids. I make no award of loss of rent in this claim.”


This problem is an issue that a litigator faces when a client, for example, gets very excited by the other party’s breach of contract and starts to see pounds signs. This will often cloud the fundamental requirement to produce sufficient evidence to prove the loss. Some litigants think that if they assert a claim that is very is enormous, that will make their opponent cave in. It may be thought that this a problem confined to unrepresented litigants, but even some lawyers get caught in the trap of starting proceedings without having any evidence of the loss being claimed.


Before stepping onto the litigation train, which only goes in one direction towards increasing costs, always ask yourself some basics questions:


1. Do you have a cause of action? (Do you have some ground in law, eg. breach of a contract, for holding the other party responsible?)

2. Do you have evidence to prove your cause of action, for example, if you are claiming damages from a builder for not completing the work to a satisfactory standard, do you have evidence that it was shoddy work?

3. Can you prove that you have suffered the losses being claim? So if you had to spend £X amount to rectify the defects in the building work, ensure you have the documentation of what the new contractors did and what you paid them.


There are many forms of evidence; it can be physical objects, documentation or the oral testimony of witnesses. Oral evidence from witness can on its own be sufficient to prove your case. However, there is a much better chance of convincing the judge to find in your favour if that oral evidence is backed by contemporaneous documents, or at least documents that were created shortly after the event. A case that rests entirely on the oral evidence will always be difficult to predict because it will be a case of who the judge prefers.


It is never wise to you play a game of hoping something will emerge during the court of the proceedings. So before litigating, always be objective and consider what actual evidence you have and what you are able to prove.



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