BG had filed a living will/advance directive in 2004 with her local hospital, essentially confirming she did not wish to receive medical treatment nor sustenance if she suffered a significant stroke, having watched her mother suffer for many years having suffered exactly that.

BG then suffered such a stroke and could no longer meaningfully communicate.

Very sadly the hospital had not filed the advance directive in an obvious place. The family were unaware of its existence.

BG spent the next 22 months attempting to refuse food and routinely pulled a feeding tube out. She ultimately underwent surgery so that she was PEG fed.  In the absence of the advance directive this, and all other treatment/intervention, was believed to be in her best interests. The expert evidence confirmed that she understood what was happening to her and around her, and that with hindsight she was indicating she did not wish to be kept alive.

The advance directive was eventually discovered by chance within the records. A discussion with the family took place and BG died in comparative peace within a few days.

The hospital trust accepted liability in their Letter of Response, provided a comprehensive apology and explained that procedures are now in place to prevent further occurrences.

Quantum remained in dispute given the total absence of any similar reported cases. An uplift was sought for aggravated damages given the duration of the unwanted treatment, which constituted repeated assaults.

Settlement was agreed between the parties at £45,000, which will be distributed under the terms of BG’s Will.

About the solicitor

Richard Stanford has experience of a very wide range of Clinical Negligence cases including Orthopaedic, Oncological, Urological, Infection, injury during surgery and the management of long term conditions such as diabetes and Crohn’s Disease.  He handles cases from inception to completion, including trial where necessary.

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In addition to written terms about the settlement of claims and monies payable, the Settlement Agreement may also include other terms eg about the confidentiality of the Agreement.

Quite often, a reference will be included within the terms of the Settlement Agreement which your employer will agree to provide if a reference request is made by a future employer.

You will be required to take independent legal advice about the terms of the Settlement Agreement and it is usual for your employer to pay a contribution towards your legal costs for taking this advice.

You should be aware that you do not necessarily need to agree to the terms which are initially offered to you and sometimes your employer will be prepared to negotiate on the terms. You may prefer that we carry out such negotiations.

Once a valid Settlement Agreement has been signed, you will not be able to sue your employer for any claims referred to as settled in the Settlement Agreement.

Either you or your employer can start a discussion about the possibility of entering into a Settlement Agreement. If you think that “the writing is on the wall” in terms of your continued employment and consider that you have potential employment claims, you may wish to consider broaching the subject of a Settlement Agreement with your employer. This can result in a more satisfactory result than pursuing your claims in an Employment Tribunal as concluding a Settlement Agreement will give you a quicker and certain outcome. It is advisable to seek legal advice about your position and you can then decide whether to broach the subject with your employer. If you wish to raise the subject, you can do this personally or you can ask us to write a letter on your behalf, setting out your potential claims which can be more effective.

If you and your employer are unable to agree the terms of a Settlement Agreement, the Settlement offer and discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim but can be referred to in other claims. However, if there is already an existing dispute between you and your employer, any such discussions are likely to be covered by the “without prejudice” rule which means that they could not be revealed in any claims, whether unfair dismissal or otherwise.

If you are offered a Settlement Agreement or you would like to initiate discussions about an exit from your employment linked to a Settlement Agreement, please contact our Employment Solicitor, Kerry Hudson on 024 7653 1532 or email at Kerry.Hudson@bttj.com. Kerry specialises in Employment Law and is a trusted advisor to both employers and employees.

The above is not intended to provide advice.

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Unfortunately most people cannot afford to just move out of their home and rent elsewhere, so a separation in a literal sense could be out of the question. If you are on the mortgage of your family home you will still have to pay towards the mortgage and money will often be tight as it is. Living with someone through a relationship breakdown can be difficult though, and so knowing that you are doing something to move separation along can be reassuring.

I always advise clients to attend marriage counselling where possible. That said, in my experience, when clients attend my offices, their mind is already made up, there is no going back and a separation is inevitable.
I am always open with clients. You do not want a divorce hanging over your head. If you have children, they will usually sense there is something different and so it is better to tackle it head on and not let it fester. The children are always the most important thing and so minimal disruption is key, along with amicable communication with your partner where possible.

If you decide to separate, you can either live separate lives whilst living in the family home, or one person can move out. You should then discuss contact arrangements for the non-resident parent to see the children and discuss how and when you will divide the matrimonial assets. Whatever you do agree on can be incorporated into a Deed of Separation.

The advantages of a Deed are that it is cheaper than a divorce, you can decide on the settlement of most matrimonial assets and it can be used to show the parties intentions for settlement if and when you divorce later on.

Unfortunately though they are dependent on you both agreeing to terms of settlement. Immediately after a breakup this is not always possible as emotions are still raw. You cannot enforce some maintenance provisions as you need a court order, and therefore division of joint assets such as property and savings will only be completed.

If you simply cannot agree terms and emotions are running high, I recommend applying for divorce and financial relief. Each of you should obtain independent financial advice and at least matters can start progressing. There is nothing worse than not doing anything, as it only delays the inevitable.

I can immediately start progressing matters, so for more advice please call me on 02476 531532.

Melanie Davis (née Timms)

Family solicitor

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There are three commonly used methods;

• Negotiation
• Mediation
• Arbitration

Why use ADR;

The Court generally encourages the use of ADR, and where a party unreasonably refuses to attend ADR, this may have costs consequences at any subsequent trial.

ADR is more informal and collaborative than Court proceedings. It provides the opportunity for both sides in a dispute to achieve something, rather than for there to be simply a winner and a loser. As such, it is a more amicable way of resolving disputes. Further, it is almost always cheaper and quicker than resolving a dispute through the Court and is therefore especially useful in relatively low value claims which may be dealt with on the small claims track and subject to its restrictive rules in relation to the recovery of legal costs.

Negotiation

In a lot of cases, a disagreement may well be resolved to the satisfaction of both sides. Negotiation is the process in which a party, or its legal representative, speaks directly with the other side and seeks to reach a settlement. The terms of this settlement will be confidential and binding; if one side agrees to pay a sum of money, for example, and subsequently fails to do so, the other side may bring a claim against them for breaching the agreement.

Negotiation may be successful even after a claim has been commenced, right up until the day of the final hearing.

Mediation

Mediation is a form of structured negotiation. It is a confidential process and without prejudice to the participants’ rights to resolve their issue through the Courts if they wish. The ideal outcome, where all parties are satisfied, is very much the same as with negotiation. However, mediation utilises a mediator, an unbiased and impartial person who can assist in the negotiations. Often the solutions found through the assistance of the mediator can be more creative and bespoke than a court could provide. If a settlement is reached, it is binding on the parties.

The Court will often refer parties to mediation when a claim is commenced. A party that refuses to mediate unreasonably may subsequently be penalised in costs. However, the mediator cannot force the parties to settle the dispute or to accept a particular solution and, should mediation fail, the matter will most likely proceed to a trial.

Arbitration

Parties may agree to refer a dispute they are unable to settle to arbitration. Arbitrators are quite often people who are experts in a specific area of the law or a particular industry. Both parties will agree to be bound by the decision of the arbitrator.

At the hearing, you may have a representative speak for you may represent yourself. The arbitrator will make his decision, and like a Judge at a trial, will give his reasons for his decision.

When should ADR be used?

In short, as soon as possible. ADR should always be considered, unless it is plain that the parties can not or will not be able to agree. As the matter progresses, parties are less likely to want to agree to an amicable solution and the benefits of ADR, saving costs and time, will reduce.

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First, what are they? Well, they’re the successor to the compromise agreement, and they will be one of the ways in which a contract of employment may be terminated but where an employee agrees to waive their employment rights and not pursue a claim against their employer. Largely the same rules apply as with compromise agreements, so that they will still: be in writing, set out specific complaints or proceedings which are being settled or waived, require the employee receive independent legal advice, and the advisor must be named and have in place an appropriate policy of professional indemnity insurance covering any loss sustained as a result of the advice provided, and the agreement must confirm that it complies with the Settlement Agreement rules. Like Compromise Agreements, Settlement Agreements are voluntary and one party cannot force the other to sign the agreement.

So, where’s the difference with the present regime? Well other than the name, the main difference arises from the manner in which they are presented. A Compromise Agreement requires a pre-existing dispute which it must settle, a Settlement Agreement does not, and it may be used to terminate employment where no prior dispute has arisen.

Further, the new Settlement Agreements shall be subject to different rules when they are discussed; they go beyond the without prejudice rule in that the discussion about them cannot be brought up in evidence in unfair dismissal claims, unless there is a degree of “Improper Behaviour” this includes any form of harassment, bullying or discriminatory behaviour, the use of offensive words or aggressive behaviour, any victimisation, any physical assault or threat thereof, or placing undue pressure on the other party by refusing a reasonable time frame, indicating that failure to accept the agreement will lead to dismissal, or to attempts made to damage an employer’s reputation or standing. It follows that the rules relating to the inadmissibility of these discussions are slightly wider than their “without prejudice” cousins, and potentially useful to employers.

However, the wide definition of Improper Behaviour must be noted as this could lead to the discussion becoming admissible before an employment tribunal. Further, these meetings cannot be used to hide discriminatory comments, and may still be revealed to a tribunal as amounting to discrimination where appropriate. Therefore before proceeding an employer is strongly advised to take legal advice, both on the situation in which it finds itself and also in the proposed content of the protected conversation.

Finally, before any Settlement Agreement can be accepted the employee has to be given at least 10 days to consider the agreement, and take legal advice, before it can be accepted.

Essentially Settlement Agreements are likely to operate in much the same way as their predecessors, the compromise agreement, albeit with a few tweaks in the rules and a change of name. No doubt time, and a series of satellite litigation, will tell what will actually be protected under a protected discussion. Watch this space and join us on twitter to see updates as to when the use of Settlement Agreements is due to be implemented, and other key dates and changes of which you must be aware.

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