Sustainable Shetland v The Scottish Ministers and Viking Energy Partnership, 9 July 2014 – Whether Ministers entitled to grant consent for wind farm where developer does not have licence to generate electricity

Inner House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When the relevant statutory provisions[1] were being considered in the Outer House, it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

Arguments
The Scottish Ministers’ appealed on two grounds:

  1. Whether, on a proper interpretation of the Electricity Act, an application for section 36 consent could competently be made only by a person who held a licence under section 6 or an exemption under section 5 (the competency issue).
  2. Whether, having regard to the information before them, the Scottish Ministers had failed to engage with their obligations under the Wild Birds Directive (the whimbrel issue).

Decision
The Inner House allowed the appeal on both grounds.

The Competency issue
Sustainable Shetland decided not to insist on the competency issue and did not present any arguments based on it. However, at the suggestion of Lady Clark, an amicus curiae[4] was appointed to present the argument. Nevertheless, after presenting a written argument on the point, the amicus curiae indicated that he no longer considered that he could support the Lady Clark’s decision on the point. The Inner House considered that Sustainable Shetland and the amicus curiae had been correct in their decision not to support the decision of the Lady Clark on the competency issue.

The Inner House found that the holding of a licence is not a condition precedent to the granting of consent of section 36 and agreed with the reasoning of Lord Doherty in Trump International Gold Club Scotland Ltd v The Scottish Ministers in which the same argument (adopted by Trump following Lady Clark’s decision) was rejected.

The whimbrel issue
With regard to the whimbrel issue, the Inner House found that, instead of deciding whether the Ministers’ decision had been lawful once account had been taken of the Wild Birds Directive, Lady Clark had considered whether the Ministers had demonstrated that they had fully understood and complied with their obligations under the directive irrespective of the likely effect of the consent on the bird population. The Inner House noted that, whilst the Minister’s decision letter did not make specific reference to the Wild Birds Directive, it was clear from the letter that the decision had been made having regard to an assessment of the impact on the whimbrel population which had been put forward by Scottish Natural Heritage under reference to the Directive.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


[1] In particular s36 (which deals with the consent required for construction of generating stations) and Schedule 9, Para 3 (which deals with the preservation of amenity and fisheries in Scotland) of the Electricity Act 1989.

[2] Persons exempt from the requirement (under s4 of 1989 Act) to obtain a licence before generating, transmitting, distributing or supplying electricity.

[3] Directive 2009/147/EC.

[4] Literally translated as a “friend of the court”, an amicus curiae is a person who is not a party to the action but provides information to assist the court.

Comments Off

“Change of process for 2 day urgent Stamp Duty Land Tax certificates in Scotland”

“Filing outside of ARTL – urgent requests for the SDLT certificate.”

More on this from HMRC can be found here.

Comments Off

The Community Empowerment (Scotland) Bill

The Community Empowerment (Scotland) Bill was introduced to the Scottish Parliament on 11 June 2014. It makes provision (amongst other things) for:

  • the amendment of Part 2 (community right to buy) of the Land Reform (Scotland) Act 2003;
  • extending the community right to buy to enable bodies to buy abandoned or neglected land;
  • establishing registers of common good property and about disposal and use of such property; and
  • the restatement and amendment of the law on allotments.

Community right to buy
Currently, it is not possible to exercise the community right to buy over areas which have been designated as “excluded land”. Excluded land comprises land with settlements of over 10,000 people meaning that in effect the community right to buy is confined to rural areas. The new Bill makes amendments allowing community bodies to register an interest in respect of land across Scotland, irrespective of the size of settlement effectively extending the right to urban areas. In addition the Bill makes various technical and procedural amendments aimed at making the procedure for exercising the right to buy easier and more flexible.

Abandoned and neglected land
The Bill also amends the 2003 Act to extend the community right to buy to allow community bodies to purchase neglected and abandoned land where the owner is not willing to sell.

Common Good land
The Bill places a statutory duty on local authorities to establish and maintain a register of all property held by them for the common good. It also requires local authorities to publish their proposals and consult community bodies before disposing of or changing the use of common good assets.

Allotments
The Bill repeals and replaces the Allotment Acts with the aim of updating and simplifying the legislation. It requires local authorities to take reasonable steps to provide more allotments if waiting lists exceed certain trigger points and provides protection for both local authorities and plotholders.

The Bill is available from the Scottish Parliament here.

The explanatory notes are available here.

Comments Off

Update – Judgment of Sheriff Valerie Johnston A29/13 – widow wins legal battle to bury her husband, a Scottish soldier

It has now been confirmed that the mother of Private Mark Connolly is to appeal the recent decision in this matter by Sheriff Valerie Johnston.

My previous blog on this matter can be found here.

Comments Off

Matthew Purdon Henderson v. Foxworth Investments Limited and 3052775 Nova Scotia Limited, 2 July 2014 – reduction of security following gratuitous alienation

Supreme Court case of some complexity in which the Liquidator of the Letham Grange Development Company sought reduction of a security over the Letham Grange resort near Arbroath. The case involves a number of companies all controlled by a Mr Liu and his family.

The Liquidator argued that the holder of the security, Foxworth (a company controlled by Mr Liu), had not acquired the rights under the security in good faith and for value. The Liquidator had previously successfully challenged a disposition by Letham Grange in favour of Nova Scotia Limited (also a company controlled by Mr Liu) on the basis that it was a gratuitous alienation. (The property which had been purchased by Letham Grange for £2,105,000 was sold to Nova Scotia for only £248,100.)

In the Outer House Lord Glennie found that there had not been a gratuitous alienation accepting Mr Lui’s evidence that the price had been reduced as there had been loans made by Mr Liu’s family in favour of Letham to finance the original purchase and that Foxworth (having assumed liability) was obliged to repay those loans to the family.

The Inner House have allowed an appeal finding that, to avoid a gratuitous alienation, the consideration given in exchange for the granting of the disposition of the resort to Nova Scotia required to be enforceable at the time when the disposition was granted. However, at that date, there was no enforceable obligation binding Nova Scotia to repay the loans to the family. Even if that had not been the case, taking account of all of the circumstances, the Inner House found that the various transactions surrounding Letham Grange had been intended to defeat the claims of lawful creditors.  For those reasons a decree granting reduction of the standard security was given. The Inner House also found that Lord Glennie had failed to give satisfactory reasons for the factual conclusions he had reached on the evidence.

The Supreme Court unanimously allowed an appeal of the Inner House decision.  Whilst the Inner House had been correct to identify that an appellate court can interfere where it is satisfied that the trial judge has gone “plainly wrong”, it had erred in concluding that Lord Glennie had been “plainly wrong” in this case.

Lord Glennie had clearly understood that the critical issue was whether “the alienation was made for adequate consideration”. He was aware that an obligation on the part of Nova Scotia could only constitute part of the consideration for the sale if it was undertaken as the counterpart of the obligations undertaken by Letham Grange. His opinion had focused whether, and not when, any obligation was taken to assume the Letham Grange debts and he had been entitled to accept Mr Liu’s evidence on that point. The Supreme Court noted that Lord Glennie had taken into account the various criticisms of Mr Liu’s evidence before concluding that his evidence was credible and reliable and also noted that the weight given to the material evidence was pre-eminently a matter for the trial judge (subject only to the requirement that his findings be reasonable).

The full judgement is available from the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Comments Off

Judgment of Sheriff Valerie Johnston A29/13 – widow wins legal battle to bury her husband, a Scottish soldier

The background to this case is a family dispute.  The dispute is over where the body of Private Mark Connolly will be buried.

Sheriff Valerie Johnston has now ruled that Mark Connolly who died three years ago is to be buried in a place chosen by his widow and not his mother.

This is from the judgment: “On the facts in this case I consider that the pursuer as widow has priority over the defender and other close family members when it comes to making the funeral arrangements. The deceased left his family at a young age to join the Army. He never returned. He married and was living in family with his wife. He rarely visited Methil and maintained no close friendships there. He had witnessed at extremely close quarters the obliteration of a fellow serviceman in an explosion and suffered physical injuries in that explosion. He was also left with the sort of mental scars that a person who has not been in a combat situation cannot properly understand. His wife had been at his side throughout his recovery. She had also during that time endured the loss of her brother in tragic circumstances and had the comfort of her husband to assist her in coming to terms with that. In the intimacy of that marital relationship conversation took place about the couple’s respective wishes should the unthinkable occur. There is no evidence that her desire to comply with those wishes is motivated by any grudge against the defender or her family. I accepted her evidence that she was seeking to ensure that his last wishes were honoured. She gave her evidence in a quiet, dignified manner and with due regard to the delicacy of the subject matter involved.

The full case report can be found here.

We do not yet know if this decision will be appealed.

Links to my previous blogs on this can be found here.

Comments Off

‘Cremation Act 1902′ used to prevent the opening of a second Borders crematoria

“Plans to open a £2m crematorium in the Borders have been put on hold after a nearby objector threatened to invoke a 112-year-old law.

Dr Fraser Quin’s house lies within 200 yards of the chimney stack of the Houndwood Church site.

The 1902 Cremation Act states that a crematorium must have written approval of property owners within that range.”

The full Act can be found here.

The report from the BBC news website can be found here.

Comments Off

Bollacke v K + K Klaas & Kock B.V. & Co. KG [2014] EUECJ C-118/13 – estate of a deceased employee is entitled to a payment in lieu of untaken statutory annual leave

The European Court of Justice has ruled that the estate of a deceased employee is entitled to a payment in lieu of untaken statutory annual leave under the Working Time Directive.

The Working Time Directive (2003/88/EC) (the Directive) states that workers in the EU must be entitled to at least four weeks’ holiday each year.  The case concerned a worker in Germany who had accrued but untaken annual leave entitlement at the time of his death. His widow brought a claim in the German courts seeking his unpaid holiday pay under the Directive.

The ECJ held that the Directive precludes national legislation from providing that workers’ entitlement to paid annual leave is lost when they die.

The full case report can be found here.

Comments Off

“What happens to the pets?

This is the text of the talk I gave to the Law Society of Scotland private client Update seminar in Glasgow on 24 June 2014.  If you would like a copy of the slides please email me.  

What happens to the pets

Good morning everyone.

My talk this morning covers an area I have often had to deal with in practice but until today had never delivered a talk on.

I only have a 30 minute slot so I propose to speak for about 25 minutes.  That will hopefully leave a few minutes for questions.

Also, and just so you are aware, the text of my talk will be emailed to all of you in the next day or so.

SLIDE 2 – WHAT I INTEND TO COVER

So what do I intend to cover this morning.  The focus of this talk is of course on pets, our client’s pets.  In this context, I will look at some of the issues that arise when a client dies or loses capacity.  I will also look at some of the options for your client if they want to try and ensure that their pet continues to be cared for.  Lastly I will spend a few minutes looking at the relatively new world of digital pets.

SLIDE 3 – picture Mac

That is Mac by the way and the reason for today’s talk.  As a matter of interest how many of you have a pet?

A pet can be as much a part of a family as a person.  Indeed, pets are often the only companion many people have. It can be incredibly upsetting for people living on their own to think that there is no one to care for their pet when they are gone.

If you have ever lost a pet you are likely to know how devastating that can be.

This is the same for a pet if their owner was suddenly not there for them. They rely on their owner for food, shelter, warmth, medical care and so much more.

To put this into context.  It is estimated that in Scotland each year over 5,000 owners die without making arrangements for their pets.

So where to begin.  Let’s start with awareness.  Pets could come up in almost any discussion you have with a client.  When preparing a Will or a Power of Attorney or even at the start, hopefully, of an executry.

As a matter of interest how many of you have discussed pets with a client?

If your client has a pet simply ask him if he has thought about what might happen to the pet if something were to happen to him.  Has he asked someone to take care of his pet even if just for a short time?  That of course could be the end of the matter if he has already made the necessary arrangements.

Ensuring you at least mention this issue may be even more important if your client lives on their own.  I am sure we have all read about people who were not found for a long time after they die.  Think of what would happen to their pet in this situation.

With this in mind, if you are acting in an executry make sure one of the first things you do is find out if the deceased had any pets even if that means going to check the home yourself.

I have already mentioned how important pets can be to their owners. How many of you are aware that there are pet bereavement support services?

Simply google the term: “pet bereavement services” and you will come across a wide range of services offered to people whose pets have died, gone missing or had to be given up.

The reverse is also true.  How many of you are aware that pets who are bereaved mourn and can become depressed?  If their owner dies they are also very likely to suffer a lot of changes all of which will cause them additional distress.

SLIDE 4 – info below  

Some examples on this slide:

  • Loss of their home and private territory
  • Separation anxiety
  • Moving home
  • Getting to know new people
  • Finding new places to hide, sleep and relax
  • Disrupted routine
  • Change of diet

How like us they are.

Another reason for making sure your client is at least considering this issue is the on-going costs of care.  This includes:

SLIDE 5 – info below

  1. Vets bills
  2. Flea and worming treatments
  3. Food, bedding and toys
  4. Extra cleaning
  5. Secure fencing or outdoor space
  6. Walking, exercising or pet sitting

With this in mind, when researching this talk I came across a number of references to studies that claim that a friend or family member is far more likely to take care of a pet if they are provided for financially.

So what information should you advise your client to keep?  Let’s call this a “pet checklist”.

SLIDE 6 – info below

  1. Vet details – these are especially important if emergency treatment is needed and ideally the contact details of the vet who is familiar with the pet and has their most recent records
  2. Pet insurance details
  3. Important dietary restrictions
  4. Immunisation records (just in case they need to go, for example into a kennel – even temporarily)
  5. What they eat, their favoured toys and bedding and where they are kept

Now to what a client might want to do to ensure that their pet is looked after; after their death or if they lose capacity.

Slide 7 – options

I have outlined the main options on this slide.

As I have already mentioned, simply mentioning this issue to your client is an important first step.  It may mean that your client at least discusses this issue with their family and friends.

However if nothing is done and a family member or friend is not willing to take care of the pet in question you will have to contact the nearest animal shelter or other pet charity.

The most important factor in ensuring a pet is looked after is almost certainly finding the right person to do this.

Your client needs to assess who might be the best person to look after their pet both from the point of view of their willingness to do this and ensuring their wishes will be fulfilled.

I am sure that in many cases some form of an informal arrangement will adequately deal with this issue.

Another option is for your client to make provision for this in his Will.

SLIDE 8 – info below  

Two general principles:

  • Animals may not be the object of a bequest.
  • Animals can though be the subject of a bequest.

This clause is from “Drafting Wills in Scotland” second edition.

“I direct my executors to make over my dog “Spotty” or any other dog owned by me together with the sum of £1,000 to O (design), provided he accepts responsibility for its welfare for the remainder of its natural life”.

The legacy is of the testator’s existing dog at the time of the Will or any replacement dog or additional dog.  As the odds are that the pet will die before the client does, it is best to refer to “or any other dog owned by me”.

The pet is accompanied by a legacy of £1,000.  As the executor needs to obtain the legatee’s agreement the legacy is conditional.

Whilst this clause is not water-tight it may provide a degree of comfort to your client.

As indicated there are some fairly obvious issues.  What is to stop the legatee verbally accepting the legacy and then collecting the cheque and having the dog put down? As mentioned, the importance of finding the right person is of course crucial.

I am sure that in most cases this will suffice, but can – should – more be done?

You could ask the legatee to sign an agreement obliging him to return the legacy in the event of the pet not being properly cared for.  But in whose judgement?  The executors?  Are you trying to impose a continuing obligation on the executors?

What if the legacy only vests on the death of the pet?  Might this hasten the pet’s death?  Again someone would need to decide as to how well the pet has been cared for.  This again might mean a continuing obligation on the executors.

Also what happens to the legacy if the legatee is deemed not to have looked after the pet in question?

A letter of wishes might help to resolve some of these issues.

A letter of wishes in this case is simply a letter prepared by the testator outlining how he wishes his pet to be cared for.  Ideally it will also include the information outlined in the “pet checklist” we looked at a few minutes ago.

A letter such as this can be easily changed without the need to see a solicitor.  The letter also does not necessarily need to be kept with the Will.

It could of course be the case that there is no Will but simply a letter of wishes.

What about owners who may not have anyone who they feel able to ask to look after their pet?

Many animal charities will provide a new home for pets after their owner’s death.

Your client may also want to make a charitable legacy to an animal charity. Your client may want to make it conditional on the charity looking after their pet or finding it a new home.

The Scottish Society for the Prevention of Cruelty to Animals provide a free service where they will look after a pet in the event of the owner’s death and then do all it can to find them a new home.  This service is not legacy dependent.  More information can be found on its website.

If your client does use a service like this, especially one that is not legacy dependant, hopefully they will ensure that knowledge of it will be easily found on their death as it may not be mentioned in a Will.  There may of course not be a Will.

It should be remembered that any bequest to a charity is free from inheritance tax.  If your client feels generous enough to leave at least 10% of their net estate to charity, their whole estate could benefit from a reduced inheritance tax rate.

Another option is to simply state in the Will who is to decide what is to happen to the testator’s pets.  This could be someone other than an executor, for example if the executor is not someone well known to the testator.  Again there are some fairly obvious issues with this but at least something has been done.

Much as people love their pets, they can’t force them on anyone else. All they can say is they would like a certain person to take them.  That person may not outlive them or their circumstances may have changed.  That is why it is a good idea to have a substitute “beneficiary”.

What if the beneficiary lives abroad?

If under a Will the pet has been left to a beneficiary who lives abroad a number of issues arise. You will need to consult the appropriate embassy or consulate about the rules on vaccinations or quarantine.

The Will will hopefully also make clear who meets the cost of doing this.

What if you come across specific instructions in a Will to have a pet put down on the death of the testator?  I am sure other options would be explored by the executors but is this in any case against public policy?

There are mixed views on this, and even it is not against public policy, I would suggest that it is not something we would want to be encouraged.

I also read an article in which a funeral director in England said that he had been asked around a dozen times in the last few years to arrange for a healthy pet to be put down when its owner died.  The owner on each occasion had asked that the pet be put down and placed in the coffin with them.  I was also glad to read that on each occasion he had persuaded the owner that this was not the best course of action.

Another option is making provision for a trust in the Will.

Slide 9 – trusts

For example a liferent of a property plus a sum of money for the life of the pet or until a suitable home for the pet is found.  The property and money are to be used to provide a home and care for the pet.  The liferenter gets to stay in the property and is effectively a “pet sitter” for want of a better term.

Too much?  I have been asked to put an arrangement like this into place a couple of times.  On both occasions the client had at least 4 dogs and no close living relatives.

The trustees would have discretion as to the welfare of the pet in case its life was being prolonged unnecessarily. This hopefully encourages the liferenter to keep the pet in good health.

Another option might be a full discretionary trust provision.  Possibly accompanied by an annuity.  Although that might not be easy to arrange.  This would though provide a clear incentive as payments would be made throughout the life of the pet. Again a letter of wishes might prove useful.

A number of public policy arguments have been made against using trusts in Scotland in this way.

One argument is that such a provision is “wasteful and extravagant” and therefore contrary to public policy.  I do not propose to go into these arguments in any great detail in this talk besides saying for this argument that as long the provision is reasonable in the circumstances it is unlikely to be challenged on public policy grounds.

A second argument is that there is no beneficial right in favour of any living person.  There is though an established exception to this rule namely where the testator makes provision for a memorial or tombstone.  A provision for a pet it is argued is an equally justifiable exception.

For a more detailed discussion on this point I would recommend an excellent article by K Norrie “Trusts for Animals” 1987 JLSS 386.

Now to a slightly different situation.  What if instead your client has lost capacity?

Does your client have a Power of Attorney or possibly is considering one.  This could be another reason for putting one in place.

This would enable someone your client trusts to take care of their pets if capacity is lost.  Although the commonly used “general powers clause” will cover this it may be in certain situations that your client wants to give more specific instructions regarding the care of his pet if he loses capacity.

Now to a few other matters I would like to briefly mention.

You may also have to arrange for the burial or cremation of a pet.  This might happen if your client loses capacity and you are acting under a Power of Attorney or possibly even during an executry.

The law surrounding pet burials is complex, but as a general rule animals cannot be buried in a cemetery designated for humans.  A local vet will be able to give you more information on this or make arrangements for the pet to be cremated.

Again knowing your client’s wishes makes this a lot easier. Often a client wants his pet buried in his garden.  If this is the case you may want to mention this to whoever has inherited the deceased’s home.

What if your client has to go into hospital or a residential care home or has a long term illness and there is no-one at short notice able to look after his pets.  One option is a “pet fostering” service.   Simply google that term.

What if your client owns a horse or even horses?

Whilst most pets have a high sentimental value, horses can also have a high financial value.  They might even be part of an agricultural business.

That said, this is from an article I recently read:  “Scotland, and indeed the rest of the UK, is saturated with thousands of horses with little or no value and a shortage of responsible and knowledgeable owners willing to care for them.”

Looking after a horse is also a great deal more expensive than the average pet.  Possibly thousands of pounds a year. This could cause an issue if a potential beneficiary cannot take on the cost of looking after a horse and no financial provision has been made in the Will.  You may end up trying to find a buyer for the horse, or more likely simply trying to find it a home.  Again just as there are ‘cats and dogs’ homes there are horse sanctuaries.

You also might need to be aware that each horse has to have a “passport”.  It is an identification document which records the identity of a horse and certain veterinary medicines administered to it. You have to have the passport with the horse whenever it travels. This could be to the vet, competitions or if you have to sell it.  More information on this can be found on the Scottish Government’s website.

Now briefly to racehorses.  I should add I have not had many clients who have owned a racehorse.  Racehorses can be owned for business or pleasure. Racehorses can also be owned in many different ways such as by way of a partnership or a company.

This legacy style is again from “Drafting Wills in Scotland” second edition.

SLIDE 10 – info below

“I direct my executors to make over to A all of my interests in any horses at the time of my death, including interest held through the medium of a syndicate, partnership, company or otherwise.”

What if the deceased owned a dangerous animal?

You need to check to see that the deceased had a licence to keep an animal that may cause injury or damage, for example, a poisonous snake or alligator. Licenses are granted by a local authority’s environmental health department.  In some cases you might even have to contact a zoo?

Who said being a private client lawyer is not interesting.

Now to digital pets.  Yes digital pets.  As a matter of interest who amongst you is even aware of the existence of digital pets?

I gave a talk on digital assets last year.  I have never had so much feedback from a talk as that one.  There seems to be a whole virtual world out there that few lawyers are aware off.

So what are digital assets?  Digital assets broadly fall into two categories:

SLIDE 11 – info below

  • Personal and sentimental items
  • Financial information and assets

For the first category, in an earlier age we would have kept these items in a more solid form.  Our letters, photographs, diaries and videos have been replaced by their virtual equivalents.  Even those items which were created in a more solid form are now often put into a digital format.

The second category were also once held in another form.  Whether it is banking, savings accounts, online investment portfolios and share trading accounts, online shopping or betting and gaming accounts, most of us have an online financial presence in one form or another.

Digital assets also cover such items as virtual farms, virtual relationships, virtual games and of course virtual pets.

If you have not come across this before take a moment to think about this.

Also if you google the term “virtual pets” and you will see how popular a pastime this has become.

This is from one provider:   “This lets you adopt a dog and lists certain qualities you may want in your pet. You name it and then start your pet parenthood by petting it, feeding it, letting it out to play. By doing so you collect bones and coins that allow you to buy cool dog toys, sweaters, fancy toys and even let you decorate your house better. You can even adopt other dogs which makes things more fun. While it’s a pretty demanding game, it’s fun and it will show you how demanding their real dog counterparts are!”

Access to these virtual pets is by way of an online account that is password protected.  There are numerous providers of this type of service.

Is this something we as lawyers need to be aware off?  In short, yes.

These assets have value, and if something is valued – whether financially or sentimentally – people may want to pass them on to their family and friends.

Not surprisingly there are a number of legal issues associated with this type of asset.

For example, what if anything can be done with these particular type of virtual assets on death?  The law as yet does not have a complete answer to that question.

The terms and conditions of use are obviously very important.  Some providers simply close the account which means the content is not retrievable and cannot therefore be passed on.  Many accounts are also closed after a certain period of non-use.  Therefore even if this type of asset forms part of a legacy it may not be possible to pass it to the beneficiary.

Other providers give their users a chance to nominate a “digital beneficiary”.  This is something we will begin to hear more about.

As there is no uniform approach each provider needs to be contacted.

One positive recent development is that most providers now at least have a procedure for dealing with these type of assets on death.

Then there is access to these types of assets on the death of the user.  I have used the word “user” intentionally.

As we know executors do not automatically have access to and control of the deceased’s assets on death.  There is a process that needs to be followed.

Is there a temptation to access these type of accounts if you have the password?  Of course there is.  There may be a concern that content could be lost.  However, the terms of use should not be ignored and in almost all cases the provider should be contacted before accessing the account.

To be clear, an executor accessing an online account using the deceased’s username and password could be committing a criminal offence of “unauthorised access” under the Computer Misuse Act 1990.

A copy of the full text of my talk on digital assets can be found on my firm’s website.

Thank you

Slide 12 – another picture of Mac

Any questions.

Disclaimer

Comments Off

ZYN, R v Walsall Metropolitan Borough Council [2014] EWHC 1918 (Admin) – personal injury compensation fund must be disregarded in means-testing

The England and Wales High Court has ruled that a local authority was acting unlawfully in deciding that an individual’s access to a large personal injury compensation fund required her to pay the full cost of her care services.

This is from the case report:

“The claimant, whom I will refer to as “ZYN”, is severely disabled. She has a need for community care services, part of which is provided by the defendant local authority (“the Council”).”

“The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives.”

“It is common ground that all the capital derived from ZYN’s personal injury settlement falls within paragraph 44(2)(a) of Schedule 10 to the Income Support Regulations, being “an award of damages for a personal injury” to ZYN. It is her case that this capital is to be disregarded because it also falls within paragraph 44(1)(a) and/or (b), being capital (a) which is administered on behalf of ZYN by the Court of Protection and/or (b) which can only be disposed of by order or direction of the Court of Protection.”

“In my view, the only interpretation of paragraph 44(1)(b) which makes rational sense is an interpretation which treats the whole of the capital of ZYN as falling within its scope even after an order has been made which permits a deputy to withdraw a sum of money either for a particular purpose or for the general use and benefit of ZYN. There is no difficulty as a matter of language in saying that, until the money is actually spent, it remains part of a fund which can only be disposed of by an order or direction of the court: it does not cease to be part of such a fund simply because the court has made the requisite order. Moreover, for the reasons indicated, an interpretation which treats a sum as falling outside the scope of the provision when an order permitting disposal is made just because no further order of the court is now needed leads to absurd consequences and is not in my view a result which any rational legislator could have intended.”

“I therefore conclude that the whole of the capital of ZYN falls within paragraph 44(1)(b) of Schedule 10 to the Income Support Regulations.”

The full case report can be found here.

Comments Off