The figures in relation to Whiplash claims do seem incredible but although the press are happy to sensationalise our “Compensation Culture” there are two sides to every story. David Cameron is meeting today (14th February 2012) with insurance, consumer and business groups to discuss what can be done.
BBC News - David Cameron pledges action to cut car whiplash claims
The vast majority of people who claim for whiplash have genuine injuries. They have, in many cases, been innocent passengers or drivers whose vehicle has been hit from behind by a careless driver. Should that driver (who is often clearly at fault) be allowed to get away with his negligent action? The Insurance industry states that if a vehicle is travelling at less than 6.25mph then the claim will fail. The problem with this argument is we are all built differently and some of us can withstand greater impacts than others.
If the 6.25mph limit is implemented who will be who is responsible for proving the speed at impact? Will it be open for a Defendant to simply say that they were travelling at less than 6.25mph and leave the claimant to obtain expensive expert evidence to prove otherwise?
There are clearly a number of fraudulent whiplash claims and they need to be weeded out but the vast majority of Claimants have legitimate injuries and the government is in danger of unfairly punishing them.
What is the answer?
The suggestion of a panel of approved court experts is a good one providing Defendants and Claimants can agree who should be on the list. A number of years ago APIL (The Association of Personal Injury Lawyers) and FOIL (The Federation of Insurance Lawyers) managed to produce a list of agreed Orthopaedic Experts and surely they could meet again and produce a similar list for Whiplash Injuries.
For more detail on Whiplash Claims see Jennie Jones’ article of 12th January 2012 Whiplash claims...scandal or a right to claim
Ivan Moody is a solicitor at Nockolds LLP with over 20 years’ experience of Road Traffic and other Personal Injury Claims
For help and advice contact the team on accidents@nockolds.co.uk
Ivan Moody (profile) 
Jennie Jones (profile) 
Rachel Davis (profile) 
Tuesday 14th February 2012
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If there are doubts about a tenant’s ability to pay rent, its landlord will often require a third party to guarantee the tenant’s liabilities. Before the introduction of Landlord and Tenant (Covenants) Act 1995 (the “1995 Act”), a tenant was liable to its landlord throughout the term of a lease for the defaults of any future tenants, who took an assignment of the lease. The on-going nature of this liability could be very burdensome when commercial leases typically ran for 25 years. There have been examples of hard cases in which a former tenant has had to discharge the arrears of an unknown tenant after many years and numerous assignments of the lease.
The 1995 Act greatly restricted the continuing liability of tenants and imposes a new rule that a tenant and any guarantor will be released from all future liabilities following the assignment of a lease entered into after 1 January 1996. The 1995 Act did however provide for a tenant to enter into an Authorised Guarantee Agreement (“AGA”) to guarantee the performance of an incoming tenant (but not any subsequent tenants). The 1995 Act contains anti-avoidance rules to ensure that tenants and guarantors are released from liability following the assignment of a lease.
If an outgoing tenant’s covenant is weak, a landlord will often call upon the current tenant’s guarantor to guarantee the liabilities of the incoming tenant. This practice was commonplace until 2010, when the High Court decided in the case of Good Harvest Partnership LLP v Centaur Services Ltd that this arrangement breached the anti-avoidance provisions of the 1995 Act. The Good Harvest case also called into question the practice of giving sub-guarantees, in which a guarantor guarantees the tenant’s obligations under an AGA and therefore assumes responsibility for the incoming tenant’s liabilities.
Fortunately, in April 2011, the Court of Appeal confirmed in the case of K/S Victoria Street v House of Fraser (Stores Management) Ltd that a guarantor can guarantee the liabilities of an outgoing tenant under an AGA but cannot guarantee the liabilities of an incoming tenant following the assignment of a lease. This decision is undoubtedly a pragmatic one which facilitates the assignment of unwanted leases but it does raise a new question.
In K/S Victoria Street, the Court of Appeal doubted whether a tenant could assign an unwanted lease to its guarantor. No particular reason was given but such an assignment would appear to be contrary to the workings of the 1995 Act because it preserves the guarantor’s liability to the landlord after an assignment. As landlords find new ways to secure income from their properties in difficult times, it seems certain that new cases will come before the courts as novel arrangements and schemes of assignment are tested. For the time being, the AGA saga rumbles on.
For more information on protecting rental incomes from commercial properties please contact Alex Haddad at Nockolds on ahaddad@nockolds.co.uk
Alex Haddad (profile) 
Wednesday 8th February 2012
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Week 5 - Commencing 30 January
This week made me question the whole concept of spring marathons and their popularity. Spring marathons mean winter training... The start of the week was cold but no change there, however the snow at the end of the week makes training pretty tough. Fortunately I have gym membership and can choose to train on a treadmill, although this is particularly tedious.
Once again this week my long run was scheduled for the Friday. I came down with a stinking cold in the middle of the week and felt very sorry for myself. There is a general rule of thumb for when a cold should stop you running which basically provides if your symptoms are above your neck (i.e. no aches and pains in the body) you should be safe to run. Having prayed to wake up with aches and pains Thursday night, I awoke Friday morning feeling pretty rough but no aches and pains! No excuse I had to do my long run. I had a lemsip, pulled on my new trainers and plenty of layers and set out for my scheduled 10 mile tempo run. Until now my long runs have been 'steady' runs. However this week my schedule dictated that it should be done at a tempo pace. Well I wasn't exactly feeling in a tempo mood but I thought I would see how I got on. After a steady mile 1 I actually felt OK and so picked up the pace a little. I did not have a set route in mind but instead was relying on my fancy running watch, which tells me the distance covered, my pace and the calories burned. I actually ended up covering 11 miles and took off nearly a minute per mile from my recent long run pace. It felt good, especially when I saw that mile 10 was in fact my quickest mile and how many calories I had burned... These were quickly replaced with a couple of toasted tea cakes when I got home! Maybe it was the thought of the tosted tea cakes that made me speed up at the end...
If you would like to sponsor me you can do so by visiting my justgiving page at:
http://www.justgiving.com/Sarah-Miles1
You can also donate using JustTextGiving. To do so send the following text code 'STES51' followed by the amount you wish to donate to 70070. For example, 'STES02 £10' to 70070.
Alternatively please feel free to contact me to sponsor me by any other means at smiles@nockolds.co.uk or on 01279 712584.
Sarah Miles (profile) 
Tuesday 7th February 2012
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