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FAQ's
MacElhatton & Co Solicitors aim to offer you the best advice in the most straight forward, plain english to ensure that you are completely aware of your legal position and rights. Below is some introductory information to the key services offered by our legal team. If you cannot find the information you require here - please do not hesitate to contact us directly.
Please note all the advice offered above applies to the jurisdiction of Northern Ireland only.
Road Traffic Accidents
1. I have been injured in a road traffic accident. Can I be compensated?
If the accident was caused by someone else and you have been injured or had your vehicle or property damaged, then you are entitled to compensation.
2. What should I do if I am involved in a road traffic accident?
You should take a note of as much information as you can about the circumstances of the accident. If possible you should write down the names of the driver or drivers, their vehicle registration numbers and the circumstances of the accident. Include as much information as you can about what you saw, where you were going and who you were with. Take a note of who said what. Record the direction of travel of any vehicle or pedestrian. In short, write down as much information as you can about the circumstances of the accident including any relevant factors like speed, weather and the force of the impact. If you have a camera, take photographs of the scene and any damage.
3. Should I report the accident?
There is a legal obligation on drivers to report accidents where there have been injuries. Quite often injuries are not immediately apparent after a road traffic collision. Often people involved in these accidents do not develop pain until some time later.
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Personal Injury & Medical Negligence
1. I had an accident at work but it was nobody’s fault. Can I claim compensation?
You can only claim compensation from your employer if it was their fault. You can however claim in situations where your employer did not do something which they should have done which would have prevented the accident happening. We recommend you make an appointment to discuss the exact circumstances with our accident at work specialist.
2.What can I claim for?
You can claim compensation for your personal injury and any reasonable financial losses that you have incurred as a result of the accident or injury.
3.How much will it cost me?
We offer a free initial interview and will advise you on the strength of your case before commencing any litigation. On a successful outcome of your case your costs and outlay will be recovered from the losing party.
4.How do I make a claim?
Contact our accident at work specialist solicitor on 028 9060 2828. We will immediately make an appointment for you at a mutually convenient time and location to provide full details of your case. We will then assess who was at fault and advise you whether you can claim against them.
5.What is the time limit within which I can claim?
You have three years from the date of your accident to pursue your claim. If you were over 18 years old at the time of the accident you have until your 21st birthday to commence proceedings.
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Small Claims Court
1.What is the Small Claims Court?
This is a Court intended to deal quickly with claims for amounts of money of £2,000.00 or less. There are some types of cases which are excluded, however, most debt actions are included.
2.Do I require legal representation at the Small Claims Court?
No the matter will be dealt with more informally than other hearings and legal representation is not required.
3.Can I initiate a claim without seeing a Solicitor?
Yes, you may go to your local Court Office and ask for an “Application for Arbitration Form” for completion. This will need to be completed with all details regarding your claim and debtor and submitted with the requisite fee to the Court Office. These fees are quite low and can be recovered from the debtor following a successful outcome of your case.
4.What happens if I win my case but the debtor will not pay?
You will have to take steps to enforce your judgement. This can be done in a number of ways, depending on who the debtor is and their financial circumstances. You should contact our office on 028 9060 2828 for an appointment to receive specific advice once a judgement has been granted by the Small Claims Court in your favour.
5.What do I do if my case involves a sum of money greater than £2,000.00?
If the debtor does not respond to the initial solicitors letter forwarded to him on your behalf proceedings will have to be issued in the appropriate Court for the amount of money that is owed. For all Courts other than the Small Claims Court you will require legal representation. Kindly contact our office on 028 9060 2828 to make an appointment with a debt recovery specialist at our firm.
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Wills and Estates
1.Do I need to make a will?
Short answer Yes. For the following reasons:
Making a will may save tax for those you leave behind and make the administration of your affairs more efficient and less expensive.
You choose who will become your executor and exactly who will benefit from your estate. You can also choose a testamentary guardian. This is especially important if you are a separated or unmarried parent.
You can ensure charities or friends are included in your estate.
2.What if I don’t make a will?
Your estate will be distributed in accordance with the prevailing intestacy rules. These rules are very inflexible and specify who can claim under your estate. They don’t make any provision for friends or charity or allow specific gifts to individuals.
In certain cases intestacy may not be a problem for those you leave behind. But all too often leaving no will could create yet another worry for your family at a time of bereavement and disruption at home. Making a will is a way of making life easier for them.
3.Can I change my Will?
Yes, and sometimes you should. Circumstances can change. Families grow, people pass away, and divorce. Finances can fluctuate. As your situation changes so may your intentions. It is always worth reviewing your decisions and your tax planning every few years.
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Divorce and separation
1.I want a separation, what does this entail?
The order that we now get from the Magistrates' Court is a Financial Provision Order only, but some people feel more secure with this being in place. Separation - this can be done by way of settling the finances and having all of the issues incorporated into an agreement.
2.I just want to deal with the property, what are my options here?
To deal with the property both parties must be consenting and must be consenting to either the sale of the property or the transfer into the other spouse's name for consideration. This is called a buy out of the share of the equity. If this cannot be achieved that equity proceedings can be issued in the County Court, this has two effects,
1. that the judge will order the sale of the property or
2. that the other side will issue divorce proceedings
3.I do not want to divorce, but I need him out, but I am in receipt of benefits?
Again, we go back to the principle of joint ownership. Provided there is no violence it is difficult to have the other spouse removed on a whim. However if the petitioner is not ready for a divorce a judicial separation may be appropriate.
4.I cannot raise enough money to buy him out
Sit tight if he is already out of the house and you are there with the children. Let him make the first move.
5.I paid the mortgage, so he is entitled to nothing.
The court would take the view that even if the spouse has not paid the mortgage he has obviously contributed otherwise to the running of the house. If however the parties have been separated for some time and the wife has continues to pay the mortgage, then it be viewed in a different light and the equity would e adjusted accordingly. It is rare that the other party will receive no money at all.
6.It's not fair that she can stay in the house just because she has the children
If the wife has no visible means of raising money to buy the husband out then she should sit still until he issues proceedings. The children need a roof over their head so that is what gives the wife the right to stay in the house.
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Family & Children Law
1.She will not let me see my child(ren) what can I do?
Either the mother or father have the right to make an application to the court for contact under the Children Northern Ireland Order l995. This settles issues in relation to the child(ren) and defines where they are going to live and where contact takes place.
2.I need him out of the house - he has not been violent, what can I do?
If a spouse has not been violent, it is often difficult to have him removed - if the property is in joint names each/either party is entitled to occup it. If the marriage is over, issue either divorce or judicial separation or in the alternative issue equity proceedings under the Married Woman's Property Act.
3.I need protection from him/her when him/her has been drinking?
Seek an ex parte (without notice to the other side) non-molestation order and where the property is in joint names an occupation order to allow the victim to have the peaceful occupation of the property.
4.What are my rights regarding seeing my children?
Explain what we can do for the client under the Children Order legislation. Take him through his rights and more importantly the rights of the child. It is unlikely that he/she will be refused contact in some way by the courts. This is often supervised contact by other members of the family, or supported contact in a contact centre.
5.I don't want him to see the children, has he any rights?
It is not up to a mother to unilaterly refuse contact. The father can make an application to the Court. The children have rights to see their father. The father has a right to family life and this includes contact with his children. However if the children have witnessed domestic violence, this will be taken into account and could result in supervised contact for quite a long time or indeed this is one of the area where a magistrate may refuse the father contact until he has undertaken Anger Management Courses.
Buying or Selling Property
1. How long will the transaction take?
If you are involved in a chain then the chain can only move as fast as the slowest link, but generally speaking a normal conveyancing transaction takes approximately eight weeks from start to finish.
2. At what stage do I need to pay any money?
If you are purchasing a property, the local authority search fee is usually requested up front as the solicitor will apply for this as soon as possible. Search fees vary according to the local authority but should be approximately £150.
The purchase balance and legal costs etc are paid just prior to completion, unless you are borrowing more than 90% of the purchase price, in which case payment may be required prior to Exchange of Contracts
If you are just selling you will not need to pay out any money in advance. Legal costs and estate agents fees will be deducted and paid on your behalf from the balance that you receive on completion.
3. Do I have to pay a deposit?
Deposits are normally paid on Exchange of Contracts as this is when the transaction becomes legally binding.
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If you are buying and selling we can usually use your buyers deposit.
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If you are just buying the amount of the deposit usually depends on the size of your mortgage (if any).
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If it is less than 90% you are usually required to deposit 10% but if you are borrowing more than this the sellers solicitor will often accept whatever amount you are putting in.
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If you are not putting anything in at all, (100% mortgage) the seller can be persuaded to accept just the amount of the legal costs and disbursements.
4. What type of survey do I need?
If you are obtaining a mortgage the lender will require a survey to be carried out to ensure that the value of the property is worth the amount you have asked to borrow from them.
A valuer will carry out this basic inspection on behalf of the lender. It will only show up any obvious problems that you will probably have noticed yourself.
For an extra fee the valuer can carry out a more detailed inspection known as a homebuyer's report..
If you are particularly concerned about the condition of the property or if it is very old, then you may choose to go for a buildings survey (also known as the full structural survey) which gives even more detail.
5. What "searches" do you carry out and why?
EJO, Bankruptcy, Stat Charges and ROD or LRNI, these are searches against both you and the property to ensure your lender that the property and you are suitable for a mortgage.
6. What happens if the transaction falls through and what am I liable for?
If you decide not to proceed before exchange of contracts (once exchange takes place you are legally bound to proceed), on a purchase you would only lose your survey fee and any arrangement fee you may have paid to the Lender, and the local search fee. On a sale you would not lose anything. On our no completion/no legal fee basis you are not charged for our legal work.
7. When will I get my money?
If you are just selling or there is surplus money from a sale and purchase, it is paid to you as soon as practicalble after completion usually one to two working days.
If you prefer the monies to be transferred directly into your bank account rather than a cheque, then just let us know this and provide us with the correct bank details. You may have to pay an additional bank transfer fee for this.
8. How, where and when do I pick up the keys of the property I am buying?
The keys will be available on the completion date, usually from about midday or lunchtime. They are usually left with the Estate agent (if any) who can release them to the buyer once the Sellers solicitors confirm that they have received the completion monies. If there is no estate agent (or if it is more convenient) then the seller will hand them directly to the buyer.
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Criminal Courts
1. When can I be arrested by the PSNI?
It is important to be aware that you can be arrested by the police without an arrest warrant if the police have a reasonable suspicion that you are committing a crime that carries a power of arrest.
2. What will happen me after my arrest?
After you are arrested you will be brought to a designated Police Station.
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You must be cautioned in the following terms in accordance with legislation called the Police and Criminal Evidence Order (NI) 1989:
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'You do not have to say anything, but must caution you that if you do not mention when questioned something which you later rely on in court, it may harm your defence. If you do say anything it may be given in evidence.
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At the police station you will meet a Custody Sergeant. This is the officer designated to ensure that your rights are protected when in the custody of the police. He is not connected or associated to the investigation of the offence for which you have been arrested.
3. Will I have access to people outside the police station?
After your arrest you must be allowed access to a solicitor and can request that the custody officer contact your solicitor. To this end we will attend at any hour to assist you during you period of detention.
Depending on the nature of the offence, contact with a solicitor can be delayed by the police and courts for up to 36 hours depending on the nature of the offence.
Is should also be noted that you can also require a friend or relative to be informed of your arrest, however this too can be delayed for up to 36 hours.
4. If I am interviewed by the PSNI what will happen to me?
If you are interviewed we will provide representation and advise throughout your time in police detention. We ensure that there will always be a solicitor available 24 hours a day to attend with you at a police station. Our role throughout your interview is to ensure that the client does his/her best, that that t he PSNI act fairly at all times and ensure that clients are protected from unnecessary pressure or distress.
If after interview the police believe that there is sufficient evidence to prosecute you, then, with the approval of the custody sergeant, they should charge you immediately. If charged you must be cautioned again.
5. After being charged will I get out of the police station?
If the PSNI consider that there is sufficient evidence to charge you with an offence they must convey this to the Custody Sergeant who is the officer tasked to ensure that your rights are adhered to in custody. If the Custody Officer is satisfied that there is enough evidence to charge you will either be bailed from the station on Police Bail to appear at court within 28 days. In some cases however the custody officer does not have the power to grant police bail (scheduled offences) and you will be detained in the station and brought to the very next court. At that appearance a bail application can be made on your behalf by our solicitors. If, however the offence is a scheduled offence bail can only be granted by the high court unless there is a certificate of suitability for summary trial or a de-scheduling certificate is available.
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Motoring Offences
1. When could I be disqualified from driving?
Today, if convicted, many road traffic offences attract penalty points, which will be endorsed on your licence for a period of three years. These can be endorsed for offences such as driving without insurance, excess speed or for a defective vehicle. When 12 or more points are endorsed on a driving licence within a 3 year period then a disqualification period from driving will be ordered by the court unless a request is made for a period of discretionary disqualification which is then imposed as an alternative to a penalty point accumulation disqualification.
2. If disqualified will I have to re-sit my test?
You will only have to re-sit a driving practical and theory test if you are disqualified for more than one year. However it is important to remember that this does not apply to those who are disqualified following a conviction for a drink driving offence or dangerous driving, as the re-sitting of the test is mandatory in this instance.
3. How long will I be disqualified for if I am convicted of Drink Driving?
If convicted of either driving with excess alcohol or if you refuse to provide a specimen when requested by the PSNI the court MUST disqualify you for at least 12 months. However clients should be aware that if convicted of a second offence of excess alcohol within 10 years then the minimum disqualification period is three years.
4. What will happen if I receive points for an offence committed during my restricted period?
It is commonly considered that as a new driver that if you receive 6 penalty points during your 'R' period that you will have to reapply for your test, however it is essential to note that even though as a driver you have completed your restricted period without incident, a new driver is subject to a maximum of six penalty points on his or her licence for two years after passing the practical test. . In short if you receive 6 penalty points arising out of an offence committed during your first two years of driving you must resit your driving test. Furthermore once you have completed your practical test again the original points received will be endorsed onto your new licence
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