Wolferstans | News Feed

ACT NOW to recover wrongly paid nursing care fees

If your loved one was in receipt of nursing care between 1 April 2004 and 31 March 2012, and was never assessed for full NHS funding, ensure an assessment is undertaken before it is too late.

The Government has recently announced that applications for recovery of wrongly paid nursing care fees, relating to periods of care between 1 April 2004 and 31 March 2012, will now be subject to specified cut off dates. Given that these fees often run to tens of thousands of pounds – it’s now or never!

Who is eligible for fully funded NHS care?

If you are in receipt of nursing care and you meet certain criteria, you will be eligible for your fees to be paid in full. The criteria assess whether your need for care is primarily a nursing need. All too often these eligibility assessments are not undertaken correctly, if at all, despite a National Framework providing clear guidance. As a result, thousands have been paying for the care which should have been covered by the NHS. Given that the average cost of care in the South West amounts to approximately £30,000 a year, the fees you have bee paying could be significant, and you may recover some or all of them back.

Why must I act now?

Deadlines have now been implemented by the Government, which means you have a certain date by which to request an assessment for an episode of care, otherwise your request will be automatically rejected and these fees will be lost.

If your loved one was in receipt of care between 1 April 2004 and 21 March 2011 you must request an assessment by 30 September 2012. If they received care between 1 April 2011 and 31 March 2012, you have until 31 March 2013.

What do I do now?

Don’t delay! Contact Wolferstans on 01752 292396 or awilliams@wolferstans.com for a free no obligation discussion so you can establish the merits of your claim. Our dedicated Healthcare team are here to help, and will take away the burden of investigating your claim. Wolferstans offer a range of funding options, the most popular of which being a Contingency Fee Agreement, where we only get paid if we are successful in recovering wrongly paid fees.

Retirement at 65

Is it legal these days to retire someone at 65? That is the question employment lawyers have been ducking since the rules changed last year and senior citizens were given full protection from age discrimination on retirement. In theory compulsory retirement was still allowed where it could be justified by the employer, but when would that be?

This month the House of Lords have gone some way to making this clear. In a nutshell it will be easier to justify compulsory retirement for more senior managers - who take a long time to replace - and easier too when the culture of the firm is more easy going. Those firms who are squeamish about tackling under-performance and would rather wait till the problem person reaches 65 will find it easier to justify a retirement rule than those with a more cut-throat approach.

The case in question concerned a partner at a law firm, Mr Sheldon. His contract said he would have to retire at 65, but when it came to it he felt he needed to soldier on for a bit longer. His firm disagreed and he was dismissed. They relied on a number of reasons to justify themselves. Firstly, they said, the rule meant that more junior lawyers had an opportunity of partnership within a reasonable period of time which gave them an incentive to stay with the firm. Secondly, it was easier to plan for the future by knowing when vacancies were going to arise. Finally, it limited the need to expel under-performing partners, thus contributing to a congenial and supportive culture.

The last point may sound rather woolly, but this is the most frequent concern raised by employers. If there is no end-date, and the individual does not want to go, what can the company do when their performance drops off to an unacceptable level? It is difficult to tackle someone about this and it is no way to finish someone’s career.

So, retirement can be justified, but how many of these reasons are going to apply to the majority of workers? Arguments based on dead men’s’ shoes only apply to those with some management responsibility. A firm which tackles under-performance without flinching will be less able to justify retirement. And business planning arguments are only going to apply in shortage categories.

The result is that, rather like restrictive covenants, a retirement rule has to be carefully tailored to the seniority and role of the person concerned. In Mr Sheldon’s law firm, the retirement policy may work for partners but would not be justifiable for other lawyers. Employers should now be giving some thought to a retirement policy. It will be much easier to justify a rule if it has been thought through beforehand, and better still if the policy emerges from consultation with staff. In a similar way, larger organisations have a policy about which roles may be suitable for a job-share, and companies with restrictive covenants have to tailor them to the role of the individual concerned.

There may be other arguments for justifying retirement which have not yet been tested. Those in manual jobs, for example, may be less capable as they get on. This is a far larger category than partners in law firms and calls for some clear guidance. An age-based rule would probably be considered too crude a tool for justifying a particular retirement age, but on the other hand is it reasonable to expect firms to put their staff through regular medical or other assessments? In practice, outside the armed or emergency services annual medicals are very rare, and failing a medical test is not a pleasant way to end a career. For the time being, it is best to stick to arguments that have been tried and tested in the courts.

How to go about it? The sensible approach is first to decide whether a retirement rule is appropriate at all for a particular group, and if so why. Identify the reasons and be sure that they are good business reasons. Consult about it, particularly before introducing any change to the current rules. Then decide on what age is reasonably necessary in the circumstances. There is no magic about the age of 65, and the greater the age, the easier it will be to justify. And if you had been planning to work on till you dropped, you may have to think again.

For advice on how to formulate a policy for your firm, contact Eoin Fowell on 01752 292353 or email efowell@wolferstans.com

Mediation - 12 months on

It is now a year since the Courts introduced a procedure which means that anyone who wants to go to Court in any Family Proceedings, i.e. children matters or financial matters on the breakdown of a marriage or relationship, have to consider whether mediation may be an appropriate way to resolve the issues.

The reason for this is simple; there are many advantages to resolving issues on the breakdown of a relationship through mediation than through the Courts. Mediation is a voluntary process so the Courts expect parties to consider mediation (by meeting with a Family Mediator and finding out about the process) but if mediation is not appropriate for any reason an application can still be made to Court.

Mediation allows the parties to make their own agenda and decide for themselves what they want to discuss. The mediator is an impartial third party who assists the parties to reach an agreement which they are both able to accept but the decisions are their own and not imposed on them by anyone else as would be the case if left to a Judge to decide in Court. Mediators are unable to give legal advice as that would compromise their impartiality.

Generally mediation is a quicker and cheaper option than Court proceedings. It is also much more likely to leave the parties in a situation where they are able to have a better relationship as separate parties. This is particularly important where the parties have children. Children usually want their parents to get along even if they can’t live together and children whose parents are able to agree the arrangements for the children will usually adapt to their parents’ separation better. Parties can discuss in the Mediation sessions how they would like to communicate with each other in the future.

Wolferstans offers a full range of options for parties to consider on the breakdown of a relationship. As well as having Collaborative Lawyers and Lawyers who can advise about the Court process, Kate Westmacott is the Head of the Family Mediation Team. If you would like any more information about mediation please contact our Mediation Co-ordinator Morwenna Luxford-Leach on 01752 292315 or mluxford-leach@wolferstans.com.

Wolferstans Commercial Department Newsletter - April 12

Welcome to our Newsletter; if we can help on any of the issues raised please do not hesitate to contact us.

To view the newsletter, please click here.

Unquenchable

A great adjective when applied to, for instance, the spirit of the Cornish Pirates Rugby Team, but of less attraction when one discovers that the word asbestos is derived from the Greek for ‘unquenchable’, a word that certainly describes the pernicious and lasting material which is known as asbestos.

The black shadow of death and that asbestos may eventually bring to up to half a million Europeans is out of all proportion to the use of asbestos 6,000 years ago when the ancient Egyptians used its heat proof qualities to create wicks for lamps and candles. Even the embalmed bodies of Pharaohs between 200-300 BC were wrapped with asbestos cloth. However, for many tears it has been known that asbestos is extremely toxic to the human body. The material has had an overwhelming impact on the health and lives of millions of people worldwide and in particular, on families in Cornwall and England as a whole.

Take for instance the experience of a family who following a family tragedy had moved from the London area into Cornwall. For 2 years they lived in Cornwall very happily but then Bill developed a cough. At first it was thought that he might be suffering from bronchitis but all too soon, following further investigations, he was diagnosed in his mid 50s as suffering from the asbestos cancer, mesothelioma. Sadly, Bill and his family did not have an opportunity of enjoying their lives in Cornwall for very long at all because Bill succumbed to the mesothelioma and died 6 months after diagnosis. This type of experience is all too familiar to families in Cornwall. There are several different diseases caused by asbestos, some of which like mesothelioma are invariably fatal, others which lead to considerable difficulty with breathing.

The use of asbestos and asbestos products infiltrated into many trades and processes. The first cases to appear involved miners and millers of the asbestos rock from which asbestos is derived. However, since then cases have arisen from those involved as asbestos workers in factories, cement production transport, building industry workers and engineers including plumbers, gas fitters and carpenters and electricians, workers in the shipping industry particularly ship building and ship repair, railway workers, power station workers, motor mechanics, hospital employees and on occasions other general factory workers. Asbestos is so pernicious that it can cause people who have only been exposed to it on a secondary basis to develop asbestos related conditions.

People working nearby to workers using asbestos products can develop asbestos conditions. Relatives and neighbours are also at risk from, for instance washing a family member’s overalls when that family member has been exposed to asbestos at work.

The last thing a family will be considering once these shocking events unfold is whether or not a claim may be made at law. However, it is important that sufferers and the family know that they are being advised by a dedicated team of lawyers who have been dealing with asbestos related cases throughout Cornwall and the West Country for many years, and who strive to deal with cases in a holistic and compassionate manner and most importantly who look after your best interests.

For further details or advice please contact John Messham, Specialist Respiratory Disease Lawyer, Wolferstans
on 01752 292209 or jmessham@wolferstans.com

Services - Should the Landlord Charge VAT?

In general, rents on property are exempt supplies for VAT purposes. However, a landlord often supplies other services to tenants, such as cleaning and maintenance. These services are usually subject to VAT.

When supplies of a VATable and a non-VATable nature are made as a single supply, the general rule is that the VAT treatment of the larger supply (usually the rent in these cases) dictates the VAT treatment of the whole.

The question of the appropriate treatment for VAT purposes turns, therefore, on whether there is one supply or more than one. Until recently, this issue was straightforward, because supplies ancillary to letting (an exempt supply) that are ‘closely linked’ to it were also treated as exempt.

However, a 2009 decision by the Court of Justice of the European Union (CJEU) has thrown the whole area into doubt. The CJEU approached the issue by considering whether or not the ancillary services (in this case cleaning) could have been supplied by a person other than the landlord. It reasoned that if the provision by a third party would be a taxable supply, so would provision of the service by the landlord.

More recently still, two cases have come before the First-Tier Tribunal on this topic. One of these has been referred to the CJEU for certain issues to be resolved. In the other, the separate supply of water to tenants was ruled to be a taxable supply despite the fact that the tenancy agreement required the tenants to obtain their water from the landlord.

For advice on service charges and other landlord and tenant law issues, contact Sam Woods , Associate on 01752 292277 or swoods@wolferstans.com

Breach of Planning Permission Negates Commencement of Development

When a developer sought to make use of a 37-year-old planning permission because it had ‘commenced building work’ within five years of the permission being granted, the Court of Appeal was unimpressed.

In 1974, the developer had obtained permission to construct 19 flats in Torquay. The permission required building work to be commenced within five years of the grant of permission and the developer had commenced access works within the required time.

The developer argued that because the access works had been completed within the stipulated time period, no new planning permission need be sought.

The works carried out at that time would normally have been sufficient to keep the planning permission ‘live’. However, the local authority argued that the access works had been carried out in breach of the planning permission, which required that the ground floor levels of the building be agreed with the local planning authority before work was commenced on the site. This had not been done.

The Court of Appeal accepted the local authority’s argument and ruled that the planning permission had lapsed. An application by the developer to have the case heard by the Supreme Court was refused.

If you have a property development which you are planning to ‘mothball’ after doing sufficient work to satisfy a ‘commencement’ provision in a planning permission, it is important to check that you do not breach any other term in the permission.

Unpaid Invoice Does Not Prevent Break Notice

The exercise of a break clause in a lease is an action that can have many pitfalls and should always be undertaken with timely professional advice.

When a tenant wishes to exercise its right to break a lease, it is important to ensure that there is no breach of the lease terms that can allow the landlord the right to refuse the tenant’s application.

Normally, one of the conditions that has to be satisfied is that the rent and other charges are up to date. Recently, the court heard a dispute that arose when a landlord sought to refuse an application to break a lease on the ground that an invoice for insurance of the premises sent a month prior to the break date had not been paid.

The invoice covered a period after the date on which the tenant would have vacated the premises, and thus would have been refundable had the tenant paid it. The wording of the lease required the tenant to pay the landlord such sums as the landlord ‘may from time to time expend’ with regard to insurance.

The matter reached court. The judge agreed with the tenant that it could not be in breach of the lease in respect of an invoice raised for a future expense of the landlord. The landlord had not, as a matter of fact, incurred the insurance expense.

In this case, the specific wording of the lease made the legal position clear. Had the lease been otherwise worded, the tenant might have fared differently. If you have a lease nearing a break point and you wish to terminate it, we can advise you on how to comply with the necessary procedures.

Contact Sam Woods, Associate, Wolferstans on 01752 292277 or email swoods@wolferstans.com for advice on any property matter.

Breaches of Rights of Access

When a landowner has land with an easement over it (i.e. others have the right to pass over the land) and the easement is abused by one of the people with that right, what can the landowner do?

This question was addressed by the Court of Appeal in a recent case. It involved a landowner who sold a field with the benefit of a right of way to the main road over an unmade access road. The access was permitted for agricultural purposes only.

The field was later sold off in parts, so that there were a number of owners. Several of the parcels of land were used as a gypsy caravan site. The access road was subsequently used by cars, lorries and vans and was also used to transport the material necessary to create hard standing for the caravans.

This use was a breach of the terms of the right of way under the easement. The owner of the unmade road obtained several injunctions against the misuse of the access road but these were all ignored. So, he decided to take matters into his own hands and had four large concrete blocks put on the road to obstruct the right of way. This was contested by the owners of the various parts of the field, but the High Court agreed that the only effective way to prevent breaches of the terms of the easement was to block the road.

One of the owners, Mr Cash, appealed the decision. Although he had temporarily breached the terms of the easement in order to bring hard standing material onto the site, he had subsequently complied with the terms of the easement and was willing to accept the use of the road for agricultural purposes only.

The Court of Appeal considered that Mr Cash did have the right of easement and the action of the owner of the road had prevented him from exercising that right. The fact that other people had persistently breached the terms of the easement could not justify denying a legitimate exercise of his rights to Mr Cash.

However, the Court did not overturn the decision altogether, but substituted instead an order allowing the obstruction of the road for vehicular access until Mr Cash (or a subsequent purchaser of or tenant on his land) could demonstrate that it was to be used for agricultural purposes only.

The decision of the Court in this case was a practical solution to a practical problem. To keep on granting injunctions only to have them ignored would be pointless. To open the road would inevitably mean the breaches of the terms of the easement would continue. However, the rights of Mr Cash had to be respected. The requirement that agricultural (as opposed to residential) use be demonstrated before access was reinstated was a practical solution to the problem.

If you are experiencing problems with people using your land improperly, contact Jennifer Tear on 01752 292308 or jtear@wolferstans.com

Evidence Neglected Not Good Reason for New Hearing

When Bristol City Council wished to redevelop parts of the city centre, it was necessary to compulsorily purchase many properties, one of which was an 18-storey office block. This was taken into possession by the Council and demolished.

The Council and the previous owners of the office block were unable to agree the appropriate level of compensation to be paid for the compulsory purchase. The issue was complex because there were no equivalent ‘open market’ sales that could be used as a guideline.

The Council valued the property at £2.4 million. The valuers appointed by the former owners considered the appropriate value was at least £15 million and possibly a great deal more. The negotiations between the two sides dragged on and proved fractious.

When the matter was put to the Upper Tribunal (Lands Chamber), it issued a draft decision placing a value of £4.5 million on the building.

The former owners objected and sought to introduce evidence of the value of the building (in the form of letters containing offers to purchase it). These supported a value in the region of £20 million, subject to planning permissions being granted. Surprisingly, the offers had not been disclosed to the Tribunal, even though the Council was also aware of them. The owner’s expert witness had forgotten about them and this error was not rectified by the directors of the company or their professional advisors.

The Council objected to the introduction of new evidence at this late stage.

The Tribunal considered that although the sums were substantial and there were other factors which supported the admission of new evidence, it could not allow the former owners to have a ‘second bite at the cherry’.

The previous owners of the building appealed to the Court of Appeal, which only had to consider whether the Tribunal was right to refuse to accept the offer letters as evidence.

The Court ruled that the Tribunal did have the right to reject the new evidence. ‘Forgetting’ to produce the evidence in the first instance was not a sufficient reason to allow it to be introduced at a later stage.

“When conducting litigation, it is essential to present all the relevant evidence from the start,” says Jennifer Tear, Solicitor Advocate, Wolferstans “as you will not normally have the right to introduce new evidence at a later stage.”

For further information or advice, please contact Jennifer Tear, Solicitor Advocate, Wolferstans on 01752 292308 or email jtear@wolferstans.com

Late Registration of Title Means Battle

A recent case dealt with the thankfully rare circumstance of someone buying a property without knowing that the vendor is a bankrupt.

When the buyer bought the property, the search of the title at the Land Registry did not show a ‘bankruptcy restriction’. In these circumstances, the buyer has a six-week period to register the title in their name and to have priority over any other claim to the property.

In this case, the buyer did not register her title within six weeks. In the meantime, the bankruptcy restriction was entered against the title. Once a bankruptcy restriction has been entered, a property cannot normally be registered in another name until after the title has been registered in the name of the trustee in bankruptcy (the trustee).

However, the Land Registry then entered the buyer as the registered proprietor of the property and cancelled the bankruptcy restriction.

Was the Land Registry right to do what it did?

Under insolvency law, the assets of the bankrupt pass to the trustee immediately. In slightly simplified terms, under the Land Registration Act 2002 (LRA), where land is purchased from a bankrupt, if the purchase is made in good faith and the purchaser has no knowledge of the bankruptcy, the title of the trustee is void as regards the purchaser.

In this case, however, the bankruptcy restriction had been registered before the purchaser sought to register her title. It was argued that the buyer had not been unfairly prejudiced because she could have obtained good title to the land by registering her title within six weeks of completion.

The High Court did not accept this argument, concluding that the protection offered under the LRA applies at the date of ‘disposition to the buyer’, not the date of registration of the title.

The case will come as a relief to buyers, but will no doubt encourage insolvency practitioners to make sure that the registration of a bankruptcy restriction is done promptly.

For the purchaser of a property, the moral is to get the title registered promptly in order to avoid unexpected court proceedings.

Property Manager Fined for Failing to Manage Asbestos

A property manager from Cardiff has been fined for failing to comply with the duty to manage the risks from asbestos at premises on the Penygraig Industrial Estate, Rhondda.

Richard Hayward, trading as Richard Hayward Properties, managed the property on behalf of another company. Pontypridd Magistrates’ Court heard that he had let out part of the building in 2007 but it was only in 2008, when a request to provide an asbestos survey for insurance purposes was made, that the presence of asbestos insulating board, roof tiles and brown and blue asbestos was identified in the premises.

A subsequent investigation by the Health and Safety Executive (HSE) confirmed that there was a risk of exposure to asbestos due to the poor condition of the asbestos.

The court heard that between 2005 and 2008 three companies had occupied the building. During this time, structural work to install a partition wall was completed and contractors were hired to carry out electrical works at the site. It is when asbestos fibres are disturbed, e.g. by drilling or cutting, that they are most likely to be inhaled as a deadly dust. In addition to those undertaking the work, any persons in the vicinity, including tenants, were at risk of exposure to asbestos.

The HSE investigation found that Mr Hayward had not taken steps to discover whether asbestos was present or likely to be present and had failed effectively to identify and manage the risks arising from asbestos-containing materials at the building.

Mr Hayward was fined £12,000 and ordered to pay costs of £20,000.

HSE inspector Lee Schilling said, “The dangers of asbestos are well known in the property management industry.

“Mr Hayward could have prevented the risk of exposing persons to asbestos if he had simply considered whether or not asbestos was present when he first took over control of the building and, having confirmed its presence, passed on relevant information to those who were liable to disturb it.

“For Mr Hayward not to inform relevant persons that asbestos was present demonstrated a major failing in his management procedures at that time.”

People who control non-domestic premises not only have duties under the Health and Safety at Work etc. Act 1974 but also have a legal duty under the Control of Asbestos Regulations 2006 to manage asbestos. The duty also applies to the common areas of residential rented buildings.

You have a duty to manage asbestos if:

you own twn the building;
you are responsible through a contract or tenancy agreement; or

there is no formal contract or agreement but you have control of the building.

The ‘duty holder’ must take reasonable steps to find out if the premises contain asbestos and, if they do, its amount, where it is and what condition it is in. Unless there is strong evidence that the building does not contain any asbestos material, it must be assumed that it does.

HSE guidance on the management of asbestos can be found at http://www.hse.gov.uk/asbestos/managing/index.htm.

Contact Sam Woods, Associate, Wolferstans on 01752 292277 or email swoods@wolferstans.com for advice on any health and safety law matter.

Partner or Employee?

The concept of ‘partnership’ is, in theory, simple. A partnership is an undertaking carried on with a view to profit in which the partners share profits and losses.

Regrettably, in reality, things are often not so straightforward and the existence of arrangements such as the ‘salaried partnership’ means that disputes about whether someone is a ‘real’ partner or not are legion.

A recent case heard in the Court of Appeal shows the sort of problems that can arise. It involved a solicitor who had entered into a partnership agreement in a law firm. The firm converted to a Limited Liability Partnership (LLP), under which the partners became members of the LLP. He signed the members’ agreement and contributed capital to the firm. He also had some involvement in the decision-making of the firm and part of his remuneration was based on a profit share.

It was clear, it would seem, that he was a partner. In the event, he was unable to build a big enough client base and left the firm. He then argued that his relationship with the firm was not one of partnership and that he was in fact an employee. His argument was based on the grounds that he was not involved in the management of the firm and his profit share was minuscule.

He sued for breach of contract and unfair dismissal and claimed statutory redundancy pay.

The success of his claim turned on whether he was an employee or a partner. The Employment Appeal Tribunal concluded that his arrangement with the firm was not consistent with an employer/employee relationship. In addition, neither the size of his profit share nor the degree of his participation in the firm’s management was relevant.

The Court of Appeal upheld the decision.

“Whether a person is an employee or a partner is ultimately a matter of fact,” says James Twine, Associate and Solicitor, Wolferstans “and having agreements in place that make the position unarguable is a wise precaution for firms that wish to avoid the potential for later disputes.”

For more information, please contact James Twine, Associate and Solicitor, Wolferstans on 01752 292351 or email jtwine@wolferstans.com

MIRROR, SIGNAL, MANOEUVRE!

If only it was that simple! Accidents do not just happen to other people. If you have been involved in a road traffic accident, which was not your fault, you will appreciate the time, inconvenience and annoyance it can cause! If you were a passenger injured in an accident, how do you obtain the best advice regarding your injuries?

BEWARE some insurers have been involved in offering compensation without the need to instruct a Solicitor or attend a medical – this may appear tempting, however, what if you symptoms do not get better? Once you have settled your claim – you cannot go back to the insurers if you do not make a full recovery!

If you have been involved in an accident you have the right to instruct a local Solicitor. You may be offered the services of a panel Solicitor through legal expenses insurance-they will act on your behalf-however, they will almost certainly be out of your area – somewhere ‘up north!’

Both passengers and the driver have a ‘freedom of choice’, this means that you have the right to choose a local Solicitor. In any event, all road traffic accidents are now entered in to a ‘portal’ scheme. This is an online reporting service direct to the other driver’s insurers.

The benefit of choosing a local Solicitor is that local knowledge can play a big part and they are easily accessible to you. The Solicitor is able to act on a Conditional Fee Agreement – commonly known as a no win – no fee agreement.

In all non-fault personal injury claims, once liability has been accepted, the other driver’s insurers will offer you a level of compensation for your injury, repair/replace your vehicle, or pay any excess on your insurance policy. There are other expenses which can be claimed, such as a loss of earnings, your local Solicitor will be happy to discuss these with you. Local knowledge enables the Solicitor to arrange appointments at a local hospital and advise on claiming travelling expenses and any local expenses such as bridge/ferry tolls.

There has been a lot of publicity with regards to referral fees, ambulance chasing Solicitors but, for most people until they find themselves innocently involved in an accident, it has very little meaning. There are pitfalls in dealing with any aspect of life which is not familiar to us – this is why we would recommend that you obtain the best no win – no fee advice and consult a local Solicitor.

If you would like to discuss your options, please contact Kathryn Lewis, Specialist in Personal Injury on 01752 292276.

Coach Chris helps law firm staff get on track

A TOP athletics coach is helping a city law firm, who are celebrating their 200th anniversary, get on track for the Plymouth Half Marathon.

Chris Menlove-Platt is mentoring a team of runners from Wolferstans ahead of the 13.1mile run on June 3.

Employment law specialist and race participant Eoin Fowell said between high kicks and sprints: "He's giving us a beasting. I didn't expect this – and this is just the warm-up."

Some of the Wolferstans team are regular runners and some haven't donned their running shoes since leaving school.

Chris, a UK Athletics-qualified Coach in Running Fitness, said: "They are not beginners – they are in the early stages of preparing for a half-marathon.

"A lot of people in training end up injured, so if you can learn proper techniques at the beginning then that's much better."

Sophie Critchley, 23, a paralegal (assistant solicitor) at the law firm, hasn't run since school, but is pressing on with preparations. "I'm not very sporty," she said.

"I've not run a marathon before. I signed up because it's a big thing for Wolferstans and it's good to get involved."

Wolferstans celebrates its 200th year in 2012 and the firm is part of the way through an extraordinary fund-raising anniversary year, with the aim of donating £2012 every month to a charity associated with Plymouth.

Rebecca Tamblin, Wolferstans marketing executive, said: "Not many firms can say they've been around for 200 years. The reason we're doing this is to give back to the community. Plymouth is our home and that's why we want to give something back."

One of the ways the firm is fund-raising is by participating in the Plymouth Half Marathon.

"The race is a centrepiece of our fund-raising," added Eoin.

"There are 125 staff at Wolferstans and 30 of them are running – it is up to 50 if you count their family and friends and clients. I nearly fell off my chair.

"When you have clients volunteering to do the run for our project, it makes you so glad to do this. Plus it really is a good way of team-building internally. Everybody is motivated to raise money and get fit doing it."

FREE Will Service launched by Wolferstans and Age UK Plymouth

Updating a Will is one of those jobs which many of us put off for another day, but now there is no excuse as Wolferstans and Age UK Plymouth have joined together to offer those over 50 a chance to make or update your Will for FREE.

A Will is an important document to ensure that your wishes are followed after your death. Why work hard to provide for your loved ones, and then leave it to chance to see if they inherit it?

It is very easy for your Will to become outdated, many changes will occur in your life and therefore it is important to regularly review your Will.

With more and more Wills being challenged it is even more important that your Will is drafted professionally.

So why put off to tomorrow, what can be done today .........for FREE.

So how does it work?

1 – Call Emma Oakley at Wolferstans on 01752 292221 to arrange an appointment to create or amend a Will.

2 – Take a Free Will Service leaflet with you to your appointment, which contains a form at the back which must be completed. If you are interested in the service, but do not have the information pack, download one here.

3 – Complete the form at the back of this leaflet with the help of the Solicitor.

4 – Sit back and relax whilst your Will is prepared free of charge

While you create or update your Will with Wolferstans, we would kindly ask you to leave a gift to Charity. Of course, there is no obligation to do so, but we would ask you to consider making a lasting difference by leaving a gift to Age UK Plymouth to support older people in the future. Age UK Plymouth (formerly Plymouth Age Concern) (Registered Charity No. 281820) have been providing vital services to the over 50’s in Plymouth for 70 years and your gift will enable them to continue providing these vital services, supporting older people to remain as independent as possible and enjoy their lives.

If you would like to find out more about Age UK Plymouth and the services they provide head to their website

www.plymouthageconcern.org.uk.

Lump Sum Option for Small Pension Plans

HM Revenue and Customs (HMRC) have announced changes to pensions rules to allow those aged 60 or over to take a lump sum from personal pensions with a value of £2,000 or less.

Although pension plans are designed to provide an income during retirement, it is generally possible to take up to 25 per cent of the value of a pension fund as a tax-free lump sum, with the rest of the fund being used to provide a regular income. Since 2006, however, those whose total pension savings do not exceed one per cent of the Lifetime Allowance have had the option of taking a much larger percentage of the plan as a lump sum (an option known as ‘trivial commutation’). The Lifetime Allowance is currently £1.8 million, so this option is currently available to those with £18,000 or less in pension savings. The limit will remain at £18,000 in future, regardless of changes in the Lifetime Allowance.

HMRC have now announced that, from 6 April 2012, those aged 60 or over will be able to take personal pensions worth £2,000 or less as a lump sum, regardless of the value of their other pension savings. This move is intended to help those who have pension plans containing small amounts but who cannot make use of the trivial commutation rules, either because their total pension funds amount to more than £18,000 or because they have already made use of the rules in respect of another pension.

A maximum of two pension plans may be paid out as lump sums in this way. 25 per cent of each lump sum will be tax-free, with the remainder taxed at the taxpayer’s marginal rate of tax.

For advice on any pension matter, please contact Eoin Fowell on 01752 292350 or efowell@wolferstans.com

Wolferstans support new launch of Age UK Plymouth

Wolferstans solicitors were delighted to attend and support the launch of the new face of Plymouth Age Concern, Age UK Plymouth at the Piazza in Plymouth on Saturday 31 March.

Wolferstans who work with many elderly people who use Age UK Plymouth’s services were one of the sponsors for the event and had staff on hand throughout the day to assist with free legal advice, information packs and cupcakes!

The launch day also saw the launch of the Free Will Service being offered by the charity and Wolferstans for those over 50 in Plymouth and the immediate surrounding area. It provides the elderly with the ability to have a professionally drawn Will entirely free of charge to assist in putting their affairs in order.

For more information contact Emma Oakley at Wolferstans on 01752 292221 to arrange an appointment to create or amend a Will.

Mesothelioma sufferers given boost by supreme court

Mesothelioma sufferers and their families should derive some satisfaction from the judgment given by the Supreme Court in the case of Durham –v- BAI. In the judgment given on the 28^th March 2012, the Supreme Court in effect confirmed the long held view that insurance liability, that is to say liability on insurers to pay damages in mesothelioma cases fell on the insurers insuring the Defendants at the time the Claimant was exposed to Asbestos, not when symptoms first became apparent years later.

There can be an interval in excess of 40 years, sometimes more between exposure to Asbestos and manifestation of the actual disease.

Had the Court taken a different view, one could foresee that there would be cases where although there might have been insurers of Defendants at the time of exposure, there would be none when the disease was diagnosed because for instance the Defendant had long since ceased to trade or gone into liquidation and therefore no insurers would exist.

To their credit, the Association of British Insurers had always been opposed to the 4 Insurers who were arguing the Insurance position.

Finally, after 6 years from the date the claims were brought and as the result of a decision by the highest appeal Court in the land for this type of case, the position as to Insurance Liability in mesothelioma cases has been confirmed.

Unfortunately, victims of Mesothelioma, even with the benefit of this decision will sometimes find it difficult to find their former employers insurance records, leaving them unable to pursue the compensation claim for Mesothelioma for lack of a paying party. Those workers who suffer from the disease, but who are unable to make a claim against an insurance company, may receive a small measure of compensation. Victims in that position have been waiting for nearly 2 years for the government to take action in setting up an insurance fund of last resort to deal with such cases. Although the case of Durham –v- BAI will give welcome confirmation of the insurance position to Mesothelioma sufferers and their families, it would be helpful if the government agreed with the insurers to set up a fund of last resort so that anyone afflicted by this terrible disease can be given reasonable and fair compensation in the event that Insurers cannot be found.

For further information and to begin your claim please e-mail John Messham or telephone him on 01752 292209

Housing Law Changes

The Localism Act 2011 is expected to come fully into force in April 2012 and will usher in some significant changes to social housing law.

The Act will give local authorities greater freedom to manage their waiting lists for social housing by setting local policies regarding the categories of person that qualify for a place on the housing waiting list. It will also allow a local authority to discharge its responsibility to provide accommodation for the homeless by securing an offer of suitable accommodation by a private landlord.

Another important change is that ‘flexible’ (as opposed to permanent) secure tenancies may now be offered. These must be for a fixed period of at least two years. The landlord can recover possession on various grounds and, at the end of the lease, has the option to issue a notice to the tenant that a new tenancy will not be granted. This notice may be appealed by the tenant.

Local authorities have recently been given the right to grant an ‘introductory tenancy’, which becomes a secure tenancy after a year unless the landlord seeks possession of the premises or the tenancy becomes a ‘demoted tenancy’. Such changes are designed to combat anti-social behaviour by tenants.

One change that will affect the families of many tenants, and which is designed to improve the availability of social housing to those in need of it, is the removal of the statutory right for anyone other than a spouse or civil partner to ‘inherit’ the tenancy. In the case of the death of a tenant, the landlord will be able to apply to recover possession of the property within 12 months of becoming aware of the death of the tenant.

There are a number of other changes to the law in this area and the legislation broadly applies in a similar fashion to other social landlords.

For advice on any housing or landlord and tenant law issue, contact us.

Gas Bill Victory a Warning for Property Managers

A mix-up over the gas bill relating to the swimming pool of a residential estate led to a case reaching the Upper Tribunal.

The swimming pool was heated by gas. The property management company paid the gas bills, which were raised by the gas supplier EDF. Six years later, however, the management company was shocked to discover that the gas was actually supplied by Total Gas and Power. Furthermore, the meter had been misread and so EDF had substantially undercharged for the gas used.

The result was a bill for more than £135,000. After the payments to EDF had been refunded and a discount negotiated with Total Gas and Power, an amount exceeding £100,000 was still outstanding. The management company paid the sum owing and raised a bill on each tenant for their share.

One of the tenants paid part of the sum due but objected to paying the balance. He claimed that the management company had been negligent in the way it dealt with the gas readings and that the time limit between the cost having been incurred and demanding reimbursement from the tenants was too long as a management company is required to notify its tenants within 18 months of incurring a cost, otherwise it loses the right to recover the sum paid.

The case turned on the question of when the cost was incurred. Was it when the gas was actually used or when the invoice for it was received?

The Upper Tribunal took the view that the management company ‘incurred’ the cost when the gas was supplied to it, because this was the point at which it became liable to pay for it. Accordingly, the tenants were not liable to pay for gas supplied to the management company more than 18 months before they were given notice that the cost had been incurred.

Property managers should take note of the implications of this case. We can advise you on all aspects of landlord and tenant law.

Covenant Not Overridden by Planning Permission

When homeowners wished to build a first-floor extension over their garage, they obtained planning permission to do so. They were not best pleased, therefore, when the estate management trust for their estate refused to allow the alteration and they challenged its right to deny them permission.

The issue arose because each property on the estate was subject to a restrictive covenant to the effect that any development of a property on the estate could only take place with the permission of the estate management trust. The property owners argued that the estate management trust’s decision should follow that of the local planning authority or, if this were not the case, they should be allowed to build the extension subject to agreeing a compensation payment to those people affected by the development.

The Upper Tribunal rejected this argument and an appeal was made to the Court of Appeal.

The Court considered that if Parliament had intended that a management trust or company could not gainsay a development that had been approved by the local planning authority, it would have been a simple matter for planning law to state this. It does not, save in the situation in which a compulsory purchase takes place, in which case the planning authority’s decision does hold sway. The trust was therefore entitled to take its own view.

The Court also accepted that the role of the trust was to act in the public interest. The homeowner did not have the right to demand that a payment in compensation be accepted in exchange for the grant of the trust’s permission. The trust had every right to conclude that a payment of money would not be sufficient compensation for the loss of local amenity. The appeal was therefore dismissed.

Although this case involved residential property, it may well have ramifications for commercial premises.

Planning law is a difficult area: seek our advice at an early stage of any proposed development.

Pensions Deadline for Small Businesses Delayed

The Government has announced that businesses are to be given more time to comply with the requirement to enrol employees into a pension scheme.

Amid concerns about whether people are making adequate provision for their retirement, new rules have been introduced which will eventually require all businesses to make pension contributions on behalf of their employees. The employer will be required to contribute an amount equal to at least four per cent of the employee’s salary, with the employee adding a minimum of three per cent.

The rules will be introduced in stages. For employers with 250 or more employees, they will now take effect in February 2014, not October 2012 as originally planned. For businesses with between 50 and 249 employees, the new rules will be introduced on 1 April 2015, a year later than originally planned. For businesses with 30 to 49 employees, the rules will take effect on 1 October 2015 as opposed to 1 August 2015, and for businesses with fewer than 30 employees the enrolment date is now 1 April 2017, changed from 1 January 2016.

Steve Webb, Minister of State for Pensions, said, “We recognise that small businesses are operating in tough economic times, so we are softening the timetable for implementation to give them some additional breathing space. We are committed to ensuring the employees of these small businesses get the chance to save, and that is why no one will miss out.”

James Twine, Associate, Wolferstans says: “Whilst this decision will be welcomed by many businesses, it is important to ensure that you are ready when the new rules come into operation. We can help your business to prepare for the changes.”

Fraud and the Director

With the economy still struggling, dubious business practices can be expected to be more common than normal, as is evidenced by the expulsion from the Institute of Chartered Accountants in England and Wales of two members who have each recently been convicted of a fraud involving more than £1 million.

Directors who suspect that the activities of fellow directors or managers may have crossed the line of illegality may be facing a dilemma as to what their course of action should be.

In such circumstances, it is important to understand one’s obligations. Fraudulent trading is an offence under the Companies Act 2006, carrying a maximum sentence of ten years’ imprisonment. It occurs when a person is knowingly party to the carrying on of a company’s business with intent to defraud creditors or for any other fraudulent purpose.

It is important to note that the offence does not just occur when the intent is to defraud creditors: it is the intent to defraud anyone that is in point. ‘Shutting your eyes’ to the fraudulent activity of others or failing to make enquiries if the reason for not investigating is that you are fearful that the outcome will be the discovery of fraudulent activity is unlikely to be an adequate defence.

In principle, a single fraudulent act may be sufficient to justify a charge of fraudulent trading.

If you are a director and are concerned about the possibility of fraudulent trading in your company, it is important to take advice as soon as your suspicions are aroused. We can advise you as to your rights and responsibilities and the appropriate action to take.

EU Proposals for Data Protection Reform

The European Commission has published its framework for modernising data protection legislation across the EU.

The General Data Protection Regulation will replace the EC Data Protection Directive, which is implemented in the UK by the Data Protection Act 1998. It will apply directly across all 27 EU Member States, thus bringing greater harmony to the way in which personal data protection legislation operates, compared with the rather fragmented rules that apply at present.

Under the proposals, organisations will only have to deal with a single national data protection authority in the EU country in which they have their main establishment.

Some areas of the draft Regulation still need to be fleshed out, but the following measures are proposed:

The introduction of increased penalties for non-compliance. This would involve a tiered system of fines, with a maximum fine of up to two per cent of an enterprise’s global turnover, or €1 million for other data controllers. Currently, the maximum fine in the UK is £500,000;
An obligation for organisations employing 250 or more people to appoint an independent data protection officer. Failure to do so would attract the highest level of fine;
The abolition of the blanket requirement to notify the national regulator that the processing of personal information is taking place. Instead, an impact assessment regime is proposed, with the data controller or processor obliged to notify the regulator where the assessment indicates that processing is likely to present a particular risk to data subjects;
Increased accountability (including strict record-keeping requirements) and security measures, in line with current best practice;
The mandatory notification of a data breach within 24 hours where feasible;
A strengthening of the rules relating to processing personal data so that an individual’s consent is genuine and specific to the processing, not a general consent on a range of matters;
Introducing the right to data portability so that individuals can obtain a copy of their personal data in a reusable, electronic format; and
Data controllers must erase personal information where the data subject has withdrawn consent for it to be held or where the agreed storage period has expired.

It is also intended that companies based outside the EU that process data on EU citizens will be subject to the Regulation where the information relates to the offering of goods or services (or if they monitor the behaviour of EU citizens).

The proposals will no doubt undergo changes before they are submitted to and approved by the European Parliament, a process which is likely to take two years. Member States will then be allowed a further two years to implement the measures.

For advice on complying with data protection legislation, please contact Tom Phipps on 01752 292261 or tphipps@wolferstans.com

Companies Take Note - Dividends Can Be Proceeds of Crime

Problems with doing ‘clean’ business in some jurisdictions are almost insurmountable, yet the Bribery Act 2010 is clear that offering inducements can easily amount to unlawful activity.

It may be thought that where such activities are carried on by a subsidiary, the risk of penalty stays within the subsidiary, so if a contract is undertaken using a subsidiary company, the profits can be made there and passed up to the holding company by way of dividends.

However, the approach of the Serious Fraud Office (SFO) in a recent case should leave no one in any doubt that, where it is worthwhile, the SFO is likely to seek a confiscation order over the dividends as being the ‘proceeds of crime’. In the case in point, the SFO has claimed more than £130,000 in dividends received by the holding company of an engineering firm.

SFO spokesman Richard Alderman has issued a stern warning to shareholders who have the ability to influence the behaviour of the companies in which they invest that, even if they are unaware of any inappropriate behaviour, the SFO is prepared to take civil action against them to recover income received that is the proceeds of crime and has warned investors – particularly institutional investors – that they must ‘satisfy themselves with the business practices of the companies they invest in’.

If you are concerned about the business practices followed in any company, joint venture or other business in which you have money invested, contact us for advice.

Accident Reporting Changes

From 6 April 2012, the requirements under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) will change, which should reduce substantially the number of reportable incidents.

From that date, a reportable incident will be one which causes incapacity of seven days or more, instead of three days as at present. In the context of RIDDOR, incapacity means absence or the inability to do work that a person would be reasonably expected to do as part of their normal work. For injuries that involve shorter absences, a record in the accident book will be sufficient.

In addition, the current requirement that a reportable incident is reported within seven days is being eased: after 6 April, the reporting deadline will be 15 days after the incident.

The new guidelines can be found at http://www.hse.gov.uk/pubns/priced/l73.pdf.

For advice or assistance concerning your legal requirement to provide a safe working environment and the implications for contracts of employment and the like, please dont hesitate to contact us.

Law Firm raises £4k for children's ward

Wolferstans 2012 Project has had a fantastic start. Our charity for January and February was the Children’s Happy Hospital Fund at Derriford which needs a new play area for the children. Our events included an entertaining and successful ‘Come Dine With Me’ in January and a sponsored Plymouth Raiders Match in February.

We are pleased to announce that we have raised our two month target and more resulting in £4,252.50!

The cheque was accepted by Christina Franks (Chair of the Children’s Happy Hospital Fund) with a couple of nurses including Amber Blair, a patient from the children’s ward. The cheque was presented in the newly furbished playroom which money raised in January and February will help to support.

Christina Franks, Chair of the Children’s Happy Hospital Fund says: “A big thank you to Wolferstans and the Team. I know it has been hard work, but it will help tremendously the sick children on Level 12 at Derriford Hospital.”

Lawyers Guilty of Astonishing Undercharging

This month the High Court has, at vast expense to those involved, come to a decision about what an employee is and is not allowed to do when leaving one company to join a competitor, where his contract of employment stops him from soliciting his old clients. It held, unsurprisingly, that the key feature of solicitation is an element of persuasion.

These clauses are the first line of defence for companies trying to hang on to their customers, and they have to prove to the court that the defence is justified. The next barrier is a non-dealing clause – a rule preventing them from doing business with their old clients, even if it is the client who comes knocking. These might be justified where a non-solicitation clause would be too hard to enforce. It is often difficult to prove who approached whom. The customer might prefer to deal with their old contact at the company, might even be very happy to say that they were the one doing the chasing, so that a non-solicitation clause is not worth the paper it is written on.

This was clearly the suspicion of the employer in Towry EJ Ltd v Bennett, which has made a considerable splash in the financial pages this month. Wolferstans had a small part to play in this great legal drama, and so the outcome was of more than usual interest. Towry alleged a conspiracy by seven financial advisers and their former clients to get around their non-solicitation clauses. The advisers and clients all trooped to the High Court to be cross-examined about their actions and intentions. The company lost, amid much criticism of their hostile approach to the case, which had lacked any real basis in fact. They were ordered to pay legal costs of £1.2m, in addition to their own costs, rumoured to be about £2m.

Our small part was simply to advise one of the financial advisers at the outset about their duty of non-solicitation, setting out what was and was not permissible and the careful record-keeping needed when dealing with former contacts. We wished them the best of luck for the future and sent off our bill for £250 plus VAT. So, it is gratifying that the High Court should have found that the approach taken was justified. The fact that the trial cost more than 10,000 times this amount goes to show that common sense often goes out of the window when parties go to court, and perhaps it is high time that courts took more active steps to control the scope of trials and the legal costs to the parties. And of course it shows what astonishingly good value for money we are.

Article written by Eoin Fowell, Partner, Woferstans. Eoin can be contacted on 01752 292350 or efowell@wolferstans.com

Giving with one hand and taking back with the other break clauses.

The law can be very harsh if applied without reference to the commercial sense which lies behind the words used to document an agreement. The operation and interpretation of ‘get out’ or break clauses are a good example. Back in the 19^th century the golden rule of interpretation was set out in Grey v Pearson that courts should strive to ‘adhere as rigidly as possible to the express words that are found and to give those words their natural and ordinary meaning’. Since then judges have moved towards a more commercial approach and where words could have two meanings they will follow the meaning consistent with good business sense. But how can this approach apply where the parties have different commercial intentions, as is often the case with a break clause?

During negotiations for a new commercial lease the tenant worries whether he will need the premises for the whole term, he is only too well aware that in these current turbulent times predicting long term needs for space in any sector is a challenge. On the other side of the bargaining fence the landlord will be seeking to secure his new tenant for a s long as possible, but will be advised that ‘get out’ or break clauses are commonly acceded to and are hard to resist. Of course, the landlord does not want the tenant to break the lease early, but feels forced to accept the concession to let his premises. It is because the deal struck is not actually what one party wants at all, i.e. the lease will be ended early, that landlords and tenants find themselves in court fighting over the interpretation and operation of the break clause later on.

The agents negotiating the heads of terms will often record the bare bones of the agreement reached for a break clause operable by the tenant for example at the fifth anniversary of the ten year term - a one off opportunity to end the contractual arrangement. The heads are duly circulated and the tenant receives a draft lease form the landlord’s solicitors. The wording of the break clause sows the seeds for all sorts of traps into which the hapless tenant might fall later on in the term. What was negotiated as a concession to give the tenant comfort before he signs up can easily turn into a nightmare when he seeks to rely on that earlier agreement. The tenant can be forgiven for thinking that he can break the lease and that is the end of it for him, but hopefully he will have taken legal advice and be put on notice that things may not be as simple as they seem.

Most break clauses (prepared for the landlord) will contain conditions that the break will be ineffective if the tenant is in breach of the tenant covenants, has not paid all payments due to the landlord under the lease or fails to deliver vacant possession. On top of that, the way in which the tenant serves his notice of the break clause is prescribed often elsewhere in the small print of the lease. Get that part wrong and the tenant will not even make first base towards exiting his rental obligations in the lease. While the courts have adopted a helpful approach to badly prepared notices in the past (finding that if the landlord was not actually misled by the error and that the meaning could be construed clearly irrespective of the error) then the notice will be valid. However, things have recently taken a turn for the worse for the tenant.

The courts have supported landlords preventing the break clause being used by the tenant to end the lease, by saying that the tenant has missed a minor obligation – perhaps the tenant did not request consent to put up a sign, or missed a decorating obligation, or he might say that the tenant failed to make all payments due e.g. the tenant has not paid his last full quarter’s rent because the break is mid quarter. Or perhaps a payment to the landlord for insurance is late. The list goes on. the break fails and the tenant remains locked into his lease., In a recent case decided on 19 December 2011, Avocet Industrial Estates LLP –v- Merol Ltd [2011] EWHC 3422 (Ch) a tenant lost the right to end his lease because the lease had a standard clause in it that provided for interest on late rent payments to be paid. The tenant had been in arrears in the past, but the landlord had not charged interest (as many do not) but the judge said that because the interest did not have to be demanded it was payable and due, hence the break was lost. The amount was £130 on a total rental liability of £300,000 per annum. The judge’s explanation -

“I consider that the result in this case is a harsh one but, applying legal principle, it is one which I am obliged to reach.”

Tenant’s solicitors will no doubt be adapting their advice to clients who seek advice before they exercise a break clause to trawl through rent payment records for any late payment and to offer up the interest before exercising the break.

Objecting firmly to conditions on the break clause in the first place would go a long way to preventing these disputes and agents negotiating the terms of a new lease could helpfully spell out the deal actually on offer, either an unconditional break, or subject to conditions.

One thing is certain, any tenant wishing to rely on his break clause needs to be very careful indeed to ensure that he avoids all the traps waiting to defeat him, when exercising his break to exit the lease.

Dying to be a Teacher?

Currently the best estimates of the government are that more than 75% of schools still have asbestos present within them. With incredibly minor exposure to asbestos leading to the onset of the fatal condition known as Mesothelioma and with continued exposure leading to other conditions such as Asbestosis and even lung cancer the time has come to consider removing any remaining asbestos within schools to prevent the current risk to teachers and children of developing these potentially fatal diseases later in life.

In the past 10 years more than 140 teachers have died from the fatal asbestos related condition of Mesothelioma. There are currently no figures to suggest how many children have died as a result of their exposure to asbestos in schools due to the long latency period which is around 40 years from initially inhaling the asbestos to developing the condition of mesothelioma. The best guess in America suggests that for every teacher that dies from exposure to asbestos, 9 children will also die.

The Governments position regarding asbestos in schools remains laissez-faire, an approach of sitting back and hoping for the best despite the use of asbestos now being illegal. If asbestos is present within a building it only has to be managed in an attempt to ensure that there is no airborne exposure however if the insulated boards that contain asbestos become damaged or dilapidated, as they do over time, there is a strong chance that the fibres could be escaping and causing irreparable harm to the teachers and students that breathe it in. Schools have a duty to ensure that their asbestos is managed however there is no such duty to ensure that it is removed. The Asbestos Training and Consultancy Association have recently confirmed that a lot of schools lack the resources to manage asbestos properly. This coupled with the All-Party Parliamentary Group on Occupational Safety and Health’s report into asbestos calling for urgent action in schools provides hope that this matter will now be dealt with appropriately.

Asbestos was once one of the most popular building materials around with the majority of builders using it due to its strength, insulation and fire resistance. It was previously used everywhere from the building of schools and hospitals to the lagging of pipes and boiler rooms in the dockyards and was hailed as a ‘wonder mineral’ as it could be used in so many various capacities.

Whilst we await a change of heart from the government and a move away from merely managing asbestos towards removing it safely, the teachers, students and other employees that work in the presence of asbestos could be unknowingly exposed to the hazardous fibres and unaware of the damage caused until the symptoms become apparent over the course of the next 40 years. The only action that can be taken is to identify if we were potentially once exposed to asbestos and to keep an eye on any symptoms that may develop such as breathlessness, chest pain, violent coughing and fatigue. Once any symptoms are spotted an appointment with your GP should be made immediately.

Wolferstans Solicitors have vast experience in assisting clients through this troubling period and conducting a claim on their behalf to assist with the cost of treatment and other necessities which arise from having been exposed to asbestos. If you would like further information on how you could claim if you are suffering from an asbestos related condition or if you have yourself been previously exposed to asbestos then please contact Mr. James Walsh of Wolferstans Solicitors on 01752 292260 for a chat on how we can help you.

Are you out of touch with what is happening with Employment Law?

Join Wolferstans on Tuesday 13^th March from 4:15pm to 6:30pm at Francis Drake Café (University of Plymouth) for a seminar on the forthcoming changes and topics of interest concerning Employment Law finishing with wine and canapés!

Topics include:

Two Years Service for Unfair Dismissal Claims
Compulsory Pensions from 2012!
Changes to Tribunal Rules Including Fees
How to Handle the Olympics and Euro 2012
The Jubilee Bank Holiday

Limited spaces are available, to book yours contact Sharon Roberts by 8th March:

sroberts@wolferstans.com
Telephone 01752 292353

Kate Westmacott, Practitioner member of the Law Society Panel

Kate Westmacott, Practitioner member of the Law Society Panel.

Kate Westmacott has been a member of Wolferstans’ Family Department since 1993. In 2008 Kate undertook the Family Mediation Training and has been facilitating family mediations ever since.

Kate has been a general member of the Law Society’s Family Mediation Panel since 2009 but is very pleased to have now been granted Practitioner Membership. This is recognition of Kates hard work as a Family Mediator.

Kate continues to practise as a Solicitor and, at the same time, is increasing her mediation practice which allows her to undertake privately paying and legally aided mediations which can cover all issues including property, finance and children.

This is an addition to Kate’s skills, knowledge and expertise as she is also a member of the Family Mediators’ Association and is accredited through the Family Mediation Council to undertake family mediations in Publicly funded (Legal Aid) cases.

Kate says, “I have always been a firm believer in alternative dispute resolution and was keen to train as a Family Mediator. With the Court’s now actively encouraging potential litigants to resolve their disputes through mediation and Collaborative Law I believe more people will have access to, and gain the benefit of, mediation. I am very pleased to have been recognised by the Law Society as an experienced Family Mediator through Practitioner Membership of their Panel.”

Talented Chefs at Wolferstans cook to raise money for charity!

From baking cakes, to a three course meal. Wolferstans Come Dine with Me weekend was a huge success. Staff hosted a variety of events from a Coffee Morning, Afternoon Tea, a Moroccan evening, a Murder Mystery, Sunday Brunch and a Poker evening to name just a few, with the invited guests donating a fee to attend. A quiz was given to each host to pass on to their guests, to fight for the winning prize. The winner is still to be announced, so watch this space.

Finally a huge thank you to all the staff, friends and family who have helped to make our first charitable event for the 2012 Project a success

Choosing the right Family Law solicitor

If you are currently going through a relationship breakdown, or want to know what your legal rights are and more importantly where you would stand if you were to proceed with a divorce, then a very important decision you have to make is choosing the right family law solicitor for you.

A divorce or financial settlement, or even children issues could take anything from six months to a year, or maybe longer to sort out, so your decision as to who you choose to act for you is vitally important and will affect you both financially and emotionally.

So here are some important points to help you to make the right choice:

1.   Is the person a specialist in family law with many years of experience? Some solicitors offer general services and whilst offering family law advice may not be specialists. Family law specialists are trained and experienced in giving you their valuable advice and opinion.

2.   Is the person a member of any accreditated schemes such as Resolution (previously known as the Solicitors Family Law Association). Solicitors who are members of Resolution operate under a code of conduct to provide quality services.

3.   Does the person offer mediation and/or collaborative law services? These are useful alternatives to the court process that help to lower the cost and stress of your divorce.

4.   Is the person being frank with you? It is best to have the person tell you the straight truth about possible outcomes then tell you what you want to hear. You are after all not paying a lawyer to agree with you. You are paying them for their professional opinion and advice.

5.   Are you comfortable talking to this person? After all, you will be informing them about private matters about you and your relationship and what you want. Do you feel they are compassionate and caring? Although, remember lawyers are not trained therapists.

6.   How much will it cost? Is the first appointment free, or a fixed fee? What are the costs likely to be and how often will you be billed? Do you qualify for public funding, if so do they offer these services?

Cost is an important factor, especially now with more online facilities on the internet offering you a cheap divorce. However, you lose out on the comfort and understanding offered by a face to face relationship with a local family law solicitor that is right for you.

Remember, just because the lawyer came highly recommended from your best friend, or family member, when they go divorced does not mean that person is right for you.

Instead of clicking blindly on an advert hoping for the best choose wisely.

At Wolferstans, we pride ourselves on having a team of family law specialists, offering both in-house mediation services as well as collaborative law services. We aim to offer you an honest appraisal of your circumstances on a value for money basis and with peace of mind.

Ring us now and speak to our new client co-ordinator Sarah Webb on telephone number 01752 292239 for further details of how we can help you choose the right family law specialist for you.

2012 Christmas Card Appeal

To celebrate the 200th anniversary of Wolferstans in 2012 the partners are committed to raising £2,012 each month to benefit six local charities.

Our chosen charity for January and February is the Children’s Happy Hospital Fund at Derriford.

For many years there has been a Wolferstans tradition for some members of staff to donate money to charity instead of sending each other Christmas cards.   For this reason we are not sending Christmas cards but do wish you the compliments of the season.

If instead of sending a card to us you are able to make a small donation to the Children’s Happy Hospital Fund we and they would be delighted.

For further information on events throughout the year please log onto our website regularly at www.wolferstans.com

Seasons Greetings

Vince Cable's Speech to the Engineerng Employers Federation

Vince Cable's speech to the Engineering Employers Federation on 23 November, announcing the government's proposals for reform of employment law, should be remembered as a landmark in UK industrial relations. Although the proposals themselves were downplayed, with the emphasis on the far more sweeping reforms that were avoided, the effect of the remaining changes will be immense.

Three seemingly modest proposals deserve particular attention; a two-year qualifying period for claims of unfair dismissal, consultation on removing unfair dismissal rights from firms with less than 10 staff, and the introduction of "protected conversations" with staff about their performance.

The two-year qualifying period will mean that over two million employees will lose any real job security, with younger, more mobile workers being particularly badly affected. Although they will still have legal protection if dismissed for some discriminatory reason, this is little consolation in practice. The right to claim unfair dismissal is simply the right not to lose your job without a good reason and a chance to have your say. This is the mainstay of tribunal cases, with over 5 successful unfair dismissal claims for every one of discrimination.

The Beecroft report, leaked in the Daily Telegraph on 26 October, proposed what amounted to the wholesale abolition of unfair dismissal in favour of a system of "No Fault Compulsory Dismissal" with the employee being called to a meeting and then let go with their notice pay and statutory redundancy payment. Vince Cable went public with his objection to such a sweeping scheme, leading to the announcement of this less extensive measure of allowing this for businesses with less than 10 staff.

But that is still a major change in itself. Unlike the two year rule, this plan is not yet definite, but if introduced it will take a further 3 million employees outside the right to claim unfair dismissal. In many industry sectors, such small employers will be the norm. Since we have already had a period of consultation the government is going to seek "evidence" on this issue - although it is difficult to see what evidence can be submitted for a scheme that is presently unlawful. If this simply means more consultation, presumably few employers are going to say that they prefer the present arrangements.

For larger firms the government still intends to make it easier to dismiss for poor performance, which is an area of genuine concern to many employers. An employee can be dismissed for misconduct in a relatively straightforward fashion. They can be made redundant fairly easily too, with both processes lasting less than a fortnight in most cases. Dismissals for performance take months, and involve an escalating series of formal meetings and warnings, which few employers have the skills and patience to achieve. Even in the private sector, dismissals purely on performance grounds are rare indeed, except in cases of long-term illness.

How these protected conversations will work remains a mystery, but the intention is clear – to give employers a manageable and relatively informal way of addressing under-performers, and presumably dismissing them without a long, drawn-out process.

The range of other measures outlined will keep employment lawyers in articles and seminars for months to come - changes to employment tribunal procedures, including introducing fees, amended TUPE regulations and the 90-day redundancy consultation period, preventing claims by whistleblowers who only complain about breaches of their own contract, simplified national minimum wage rules, extending flexible working (yes, extending) and much else. But it will be the widespread erosion of job security that is likely to be the real legacy, a change will may well be felt and resented by millions of the voting public, and which opens up a clear political divide between the government and Labour. Little wonder then that Mr Cable seemed so reluctant to champion these changes.

Vast increase in inheritance disputes

Vast increase in inheritance disputes

Did you know it is possible to challenge a persons will? Many didn’t until recently, as up until only a few years ago disputes following a persons death (known as contentious probate disputes) were relatively rare. However, the Courts have seen a significant increase in this over the past few years. There seem to be a number of possible reasons for this, including:-

Complex family relationships - gone are the days where the ‘normal’ family is husband, wife and children – with cohabiting couples, step-families and civil partnerships becoming more common there is simply more people who are eligible to bring a claim.

People mistakenly thinking they can save a pound or two in making their own Will is also adding to the problem. Due to the formalities required in making a valid will, and the complexities in getting it right, there are many traps related to home-made Wills, which don’t come to light until the person who made the Will passes away. With the average Will costing somewhere in the region of £150 and the average cost of litigation relating to a Will costing tens of thousands of pounds, what you think might be a money saver so often is not!

Due to the fact that people are living much longer, there has been a significant increase in claims relating to the validity of a Will which usually hinges on whether the person making the Will had the mental capacity at the time. With dementia diagnosis on the rise, this seems to be an area which will continue to grow.

The above reasons, coupled with the steady rise in asset values and the fact that people are generally more willing to enter into litigation will no doubt see the increase in this field of law continue for years to come.

Wolferstans have a dedicated contentious probate team, who can act on either side of a dispute.

Contentious probate disputes are extremely complex, as they are dealt with in many ways completely differently to any other type of dispute. For this reason, it is extremely important that the lawyer dealing with the dispute has a good knowledge of not only general litigation matters but also specific probate issues. Wolferstans have therefore ensured that their team have just such experience.

Whether you have not been sufficiently provided for when someone died, you are concerned about the validity of a will, or find yourself in a dispute with a Personal Representative or beneficiary, we can assist.

If you would like advice in respect of a potential contentious probate claim, please contact Samantha Buckthought on 01752 292216 or sbuckthought@wolferstans.com or Amy Kernohan on 01752 292384 or akernohan@wolferstans.com, for an initial no obligation discussion.

The Dangers of Homemade Wills

The Dangers of Homemade Wills

There are many compelling reasons to make a will especially with 17% of people having had problems with inheriting. Despite this a staggering 60% of people still die without leaving one.

There is a temptation to make a home-made will, mainly because it is perceived to be cheaper, but this can be very risky. If a will is not prepared correctly it may be invalid, which in the long run makes it much more expensive and complicated.

Firstly, wills have strict rules about the way they are made and executed, and errors are very easily made. If a will does not comply with these strict provisions, it will be invalid. This includes ensuring that the will is signed and witnessed correctly.

Other problems arise in relation to the actual wording of the will. Many words and terms have specific meaning in law which are different from their everyday use. For example, “I give my car to my grandson, my gold ring to my daughter, my boat to my brother and anything left over to my sister”. The gift of “anything leftover” is likely to be limited to a gift of the rest of your personal belongings, and would not include your property, cash or other investments. These would all pass by the rules of intestacy, probably to people you would not wish to inherit.

Many people are tempted to alter their home-made wills after they have been signed, by simply crossing out sections and amending them. It is unlikely that any of these alterations will be valid.

Important information is often omitted from home-made wills, including naming substitute beneficiaries if someone should die before you. If this happened in respect of a residuary beneficiary, a partial intestacy would be created.

It is very easy for ambiguous or imprecise wording to be used, important details to be omitted, or sections to be written in a way that they can be misinterpreted. If there is any uncertainty as to the construction of a will, any or all off it could be invalid.

If a will is invalid, your estate would be distributed in accordance with an earlier valid will or if there is not one, by the law of intestacy. This could lead to your estate passing to people you would not wish to inherit.

If a will is potentially invalid for any reason a court application will be required. This would lead to the administration of the estate being much more complicated, lengthy, and costly. Costs could easily run into four figures. This is all in addition to the great deal of extra unnecessary distress brought to your loved ones.

Home-made wills may appear to be good value, however in reality they often do not carry out your wishes and cost more in the long run. In the region of 90% of all litigation in relation to wills relates to home-made wills.

Will drafting is a highly specialised. There are often hidden complexities not appreciated by an individual or catered for in a home-made will. A professionally drafted will can save a significant amount of money in the long run, and can save your loved ones a substantial amount of stress and heartache.

Please contact a member of our Wills and Trusts team for further information.

Radical Reforms!

Radical Reforms!

On 23 November 2011, the Business secretary Vince Cable delivered a speech announcing radical reforms and proposals with regard to the world of Employment Law! The theory behind the proposals is to remove the red tape and constraints within which businesses are forced to operate in an attempt to stimulate the economy. However, Mr Cable was also quick to highlight that the Government is not seeking to introduce a "hire and fire" culture.

The majority of readers will be aware of the proposal to increase the qualifying period to bring a claim for unfair dismissal from one to two years - this has now been confirmed. This measure will allow businesses to dismiss employees within two years of their start date, without the fear of the employee bringing a claim for unfair dismissal. However, employees with less than two year’s service are bound to attempt to circumvent this proposal by pursing claims which do not require two year’s service such as discrimination. These claims are more expensive and time consuming which will lead to increased costs and delay to businesses. Furthermore, the two year rule is likely to be challenged on the basis that it is discriminatory on the grounds of both age and sex ie that more women and younger workers are likely to be affected by the proposal than men and older workers.

A further measure is that all claims must be submitted to ACAS for an attempted mediation exercise prior to claims being progressed to an Employment Tribunal. Unfortunately, however, unless some form of penalty or sanction is introduced for failing to mediate, this measure is likely to be a rather blunt instrument.

Mr Cable has also confirmed the introduction a system of "protected conversations". The theory being, businesses will be entitled to raise issues, including poor performance without fear that the conversation will be referred to at a later Employment Tribunal. I struggle to understand the difference between a "protected conversation" and the current "without prejudice" rule and will follow any developments or clarification of this point with interest.

By far the most radical announcement is that the Government is considering the introduction of a "no-fault dismissal" system for businesses with 10 or fewer employees. I assume this means an employer with 10 or fewer employees, will be free to dismiss their employees without those employees having the right to pursue a claim for unfair dismissal!! To me, this very much sounds like the introduction of a "hire and fire" culture.

Will these employees be prevented from bringing claims for unlawfully deducted wages too? This radical overhaul appears to be a giant step backwards in terms of employment rights and it will be interesting to monitor the developments and commentary. If the system is introduced, I can envisage a situation whereby businesses employing 10 - 20 employees, will cull their workforce to a maximum of 10 in an effort to avoid employment legislation! Any individual employed in a workforce totalling 11 would have particular cause for concern!

What is most surprising is that these radical reforms have not seen further press coverage! The proposed erosion of employment rights is big news, but these proposals appear to have been whispered from Westminster and slipped under the radar!

If you require advice or assistance with regard to the issues outlined above or any other employment matter, please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

Employees on long-term sick to miss out on holiday pay!

The law relating to the holiday rights of employees on long-term sick leave has been an area of uncertainty for a number of years. However, on 3 November 2011 the Employment Appeal Tribunal (EAT) ruled that if employees on long-term sick fail to request their holiday leave (i.e. be paid for their entitlement) they will lose their right to be paid for it.

The cat was put among the pigeons by the "Stringer" decision in 2009 which confirmed that an employee on long-term sick would continue to accrue annual leave under the Working Time Directive despite not working. The decision went on to confirm that at the end of a leave year, any employee on sick leave who had been prevented from taking their annual leave, must be allowed to carry it over to the next holiday year and to take it at a later date. This decision clarified the position where an employee had been prevented from taking annual leave, but the case failed to address the issue surrounding an employee who failed to request their payment.

The latest decision will be seen as a welcome relief for employers who now have clarification that an employee will lose their right to holiday pay if they fail to request a payment within the relevant holiday year.

This is the latest example of a pro-employer decision and the more sceptical among you will not be surprised that the majority of employers will remain tight-lipped with regard to informing employees of their right to request holiday leave. I expect we will see a campaign from pro-employee lobbyists for a duty to be imposed on employers to notify their employees of their right to request a payment while on long-term sick leave.

The message for employers is to take active steps to manage long-term absence as opposed to ignoring the situation and allowing employees to accrue holiday leave. Surely it is preferable to assist an employee to return to work, or to dismiss if appropriate when compared to writing a cheque for a year’s worth of holiday pay.

If you require advice on managing long-term absence or any other any employment related matter, please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

Compulsory No Fault Dismissal

The announcement in the Daily Telegraph on 26 October that the government is considering a fundamental change to the law on unfair dismissal has been greeted with an appalled and sustained silence by most legal commentators. For those used to the decades-long flow of new rights and regulations for workers, the suggestion is a social gaffe of the first order. Eyes are lowered, feet are shuffled, and nothing is said.

The leaked report by venture capitalist, Adrian Beecroft, warns of the cost to business of underperforming workers and points out the cost and complexity of sacking them. His proposal is a “Compulsory, No Fault Dismissal” system, whereby employees are simply called to a meeting, given the chance to argue their case, and the right to suggest (but not demand) that they be given time to improve or transferred to a less demanding job at a lower wage. If this self-abasement does not appease the management, the employee can simply be given notice and the same payment as if made redundant.

For most employees, this is a fairly measly amount. The formula is based on age, but for those between 22 and 41, it is one week per year’s service, capped at £400, so a typical employee with 3 years’ service would walk away with £1,200 - not the sort of figure to put a spring in your step.

Until now, the government’s proposals in the field of employment law reform have been relatively modest, but desperate times call for desperate measures. Growth is now the priority at all costs, and the law of unfair dismissal presents one of the only methods available for drastic action, for the simple reason that it is not of EU origin. These rules, laid down in the early 1970s, are the bedrock on which 40 years of mainly euro-led regulation has been erected; the whole field of discrimination law, maternity and paternity benefits, TUPE, the recent agency workers regulations and much else – all from Brussels and all inviolable.

It is true to say that dismissals for poor performance are time-consuming, complex and difficult to justify at a Tribunal. The typical process will involve a series of monthly meetings, setting out as objectively as possible where the employee is going wrong. It will involve offers of further training, or lightening the load for a while, accompanied by a series of escalating warnings; verbal, written, final written warnings and eventually dismissal, but only when efforts to improve had been shown to be unavailing. All this takes 3 to 6 months, longer still with longer-serving staff, and is a highly personal and unpleasant business for all concerned. The under-performing employee is being paid in full during this period, no one else can be recruited, and faced with this long drawn-out process many employers simply avoid it and put up with things. They worry, with some justice, that a word out of place will lead to grievances, stress-related absence and a claim of constructive dismissal. Redundancies or dismissals for misconduct, by comparison, are much simpler and are generally over in a few weeks.

If some rebalancing is called for, the present proposals seem to go from one extreme to the other, and to herald a cultural transformation from a European to a US style system, with little or no job security. Why bother with a redundancy selection exercise, for example? If there is one member of the team who looks like the weakest link, just call them in to a meeting and let them go. No point bothering the rest of the team. And if someone’s attitude this week is a bit stroppy, why keep them on at all?

Is this to be the new face of employment law? The practical implications are certainly hard to fathom. If a new system it is to be aimed at poor performers, it is unclear why it is called a “no fault” system. Presumably the employee would be able to challenge the dismissal on the grounds that they were doing fine, thank you very much. At present, poor performance generally has to be fairly transparent to justify dismissal, but if the bar is to be lowered, how low will it go? And how will the employer prove that the dismissal was justified if they have shot from the hip, as the system seems to allow?

It may be that in the corridors of power they too are shuffling their feet and saying little, given the implications of this plan. But if not, nothing comparable will have occurred in employment law in a generation.

Contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351 for all employment law advice.

No Lottery Win for Husband!

When deciding the status of a national lottery win, the High Court has refused to award a man a half-share of his ex-wife’s lottery prize. The case was brought by a hotel porter whose wife had, during the marriage in 1999 . won £500,000 on a National Lottery ticket . The money was used to buy a new matrimonial home in London, where they lived until the marriage broke down three years later.

When they got divorced, the husband, who now has a low income and lives in a housing association flat, applied to the High Court to have the lottery winnings counted as part of the matrimonial assets for the purposes of a financial settlement.

Mr. Justice Mostyn ruled, however, that the prize should not be included as matrimonial property. The wife had been part of a syndicate, had played the lottery without the husband’s knowledge and had brought the ticket from her own income. As such the husband was not entitled to a share of this prize.

However, the money invested in the matrimonial home was designated as matrimonial property and could thus be included in the joint assets for division. After taking into account the couple’s needs and the fact that the husband had only lived at this property for a relatively short amount of time, the Court decided he was only entitled to 20% of the net equity. He was awarded a capital sum of £85,000.Who said litigation was a gamble.

For matrimonial advice contact Phil Thorneycroft on 01752 292310

Vacant Possession Means What it Says

When does a commercial property become vacant under a lease agreement? This was the question considered in a recent hearing in the Court of Appeal.

The appeal was brought by haulage and storage firm NYK Logistics (UK) Ltd., a former tenant of Netherlands property owner Ibrend Estates BV. On 3 April 2008, NYK had signed a two-year continuation of an existing lease with Ibrend, on a warehouse property with offices and secure yard space, at a yearly rent of £278,000 for some 80,000 square feet in total. The schedule to the lease included a tenant break clause, allowing NYK to terminate the lease on 3 April 2009, provided six months’ notice was given, all rent was paid up to that date and NYK delivered vacant possession on that date. The dispute arose as to whether or not vacant possession had been given on the date specified under the lease agreement.

It was agreed that on 26 September 2008 NYK had given valid notice to end the term of the lease on 3 April 2009. In January 2009, surveyors for Ibrend were instructed to prepare a schedule of dilapidations on the premises. The resulting schedule was not passed to NYK until 11 March. NYK proceeded with repairs and requested a site meeting to review the progress of the works. The meeting did not take place until 1 April 2009, two days before the lease was due to end.

At the meeting, it was agreed that most of the repairs had been completed, but there were still outstanding defects. The County Court found that it was clear that the outstanding matters could not have been completed by 3 April but could have been completed shortly thereafter.

Following the meeting, NYK proposed that it should extend security at the premises for a further week and continue with the repairs but without further payment of rent. Despite various attempts to obtain a response from Ibrend’s representatives, no agreement was reached regarding NYK’s briefly extended presence on the site. On 9 April, the work having been completed and attempts made to return the keys to the premises, a solicitor’s letter from Ibrend notified NYK that it had breached the vacant possession clause in the lease agreement.

NYK expressed outrage at the letter and won some sympathy from Sheffield County Court. The Court ruled in favour of Ibrend, however, on the grounds that although NYK had remained on site purely to effect the agreed repairs, they should have handed over the keys on 3 April. Had they done so, the fact that some repairs would have been left undone would not have breached any term of the lease.

At appeal, it was argued that NYK’s continued presence on the site for a few days after the 3 April deadline was minimal and did not hinder Ibrend’s access to the site. It was held, however, that in order to satisfy the vacant possession condition in the break option, NYK had to give such possession to Ibrend by midnight on 3 April and not a minute later. At the moment that vacant possession is required to be given, the property must be empty of people and the rightful occupier must be able to assume and enjoy immediate and exclusive possession, occupation and control of it. In so stating, the Court of Appeal dismissed the appeal. NYK must therefore pay rent for the period of rental from 3 April until the next available termination date of 25 December 2009.

Although this decision may, under the circumstances, seem unfair to NYK, the Court of Appeal made it clear that it should not have relied on anything other than a written agreement to waive the vacant possession date. Contact Samuel Woods on 01752 292277

Amenity Value of Land Stops Development

A recent case serves as a warning to developers who regard covenants as inconveniences rather than serious impediments.

Builder Wimpey had secured land in Gloucestershire and proposed to build 17 houses on it. The land had a covenant attached to it which prevented any building on it, so Wimpey applied to have the covenant removed.

Wimpey argued that the covenant impeded the 'reasonable use of the land' – a ground which can justify a covenant being modified or removed. However, a group of local people opposed the removal of the covenant on the ground that if the development took place, the character of the land would change from being semi-rural to being suburban. This, they argued, would cause them a substantial loss of amenity value.

The Tribunal backed the action group.

The case shows that determined opposition can make it difficult or impossible for a developer to proceed with the development of land which is subject to a 'no build' covenant.

We can advise you on all aspects of planning law, please contact Cindy Rai on 01752 292358

Court Decides Limits of Expert's Responsibilities in Claim

The defendants claimed that they occupied the land under an agricultural tenancy. Initially, they rejected an offer to settle the dispute by the payment of damages to be assessed by a chartered surveyor, but then decided to accept the offer without admitting liability. They subsequently offered the woman £50 per acre as damages for occupation in order to avoid the cost of instructing a chartered surveyor.

There was one further complexity. The woman claimed that a sale of adjoining land had fallen through because of the trespass and that this loss was to be assessed in the claim. The defendants claimed that 'damages for trespass' only meant a fair value for the occupation of the land.

The County Court ruled that damages for trespass were limited to the damages for occupying the land. The woman appealed, arguing that the judge was wrong in law and also that acceptance of the offer she had made meant that the damages payable were to be decided upon by the chartered surveyor. Even if the Court had the jurisdiction to rule on the matter, she argued, it could not rule until the surveyor had reported his findings.

On appeal, the Court of Appeal concluded that it would not be interfering with the surveyor's expert opinion for the Court to set the parameters of that decision. Given the large difference in likely damages payable depending on which approach was taken, it was likely that the expert's opinion would be challenged in any event. Therefore, it was appropriate for the Court to set the limits of the claim. Since there had been no intimation of damages relating to the failure to sell the adjoining land in the original claim – which was stated to be in respect of 'use and occupation' only – the Court concluded that the alleged damages due to the abortive property sale were not part of the claim.

This is a common-sense judgment aimed at reducing costs for the litigants. It also shows the importance of framing any claim correctly so that it includes everything for which losses are alleged to have occurred.

Contact Clare Magill on 01752 292354.

Human Rights Claim for Compensation Succeeds for House Owners

It is unusual indeed to see a claim under the European Convention on Human Rights (ECHR) brought as a result of a development, but recently a group of homeowners was successful in a claim based on the provision in Article 1 that guarantees the right to peaceful enjoyment of one's possessions.

In this instance, the peaceful enjoyment was prevented by the construction of an access road that led to increased noise levels. The noise led to a diminution in value of the houses in the area, which the court agreed constituted an interference preventing peaceful enjoyment of them by their owners. The diminution in value, rather then the noise itself, was the key element in the claim, although it is arguable that a claim might have been possible under Article 8 of the ECHR, which guarantees the right to respect for private and family life and one's home.

There is statutory provision under the Land Compensation Act 1973 for compensation in such cases. However, compensation is only payable when the road is adopted within three years of its being constructed. Delay in adoption beyond three years, therefore, can lead to a loss of the statutory right to compensation.

This case could have a significant impact on some developments. For advice on the relevant law and how it may apply to your particular circumstances, contact Clare Magill on 01752 292354

Unclear Lease Terms Cost Subtenant

When rental values fall, a variety of approaches can be adopted if a tenant, locked into a lease at a rental which is above the current market rental, wishes to sublet all or part of the let premises.

One method is to pay a 'reverse premium' to the subtenant to make good the 'excess rent' the subtenant will pay. A simpler method is just to accept a lower rent coming in. In a recent case, the latter approach was adopted, with the tenant inserting a clause that the subtenant's rent would be periodically uplifted if rental rates rose over time. This arrangement was set to last until December 2010, after which the contract was worded in such a way that the subtenant was required to pay the greater of either the rent payable by the tenant at the inception of its lease (which was £1.2 million) or the then market rent.

In the intervening period, the market rents had risen substantially, then dipped. By December 2010, the rent payable by the tenant under its lease with its landlord, which contained a standard 'upward only' rent review clause, was in excess of £1.4 million.

The issue arose because it was uncertain exactly what should happen after December 2010. The market rent by this time was a little in excess of £1 million. The subtenant argued that it was liable to pay the greater of the market rent or £1.2 million. The tenant claimed that a rent of £1.4 million was due.

The court considered the various possible scenarios that could have existed as regards market rents during the period of the subtenancy and construed the contract to mean that the rent of £1.4 million applied, being the highest rent that would apply at any of the rent review dates. There was no reason to believe that the subtenant should be protected from an 'upward only' rent review and no commercial reason for applying a subsidy to the subtenant after December 2010, from which time it would be liable to pay the full amount of the rent payable by the tenant to its landlord.

It is always important in such cases for thought to be given to the likely range of possible events that could occur during the period of the lease, so that the documentation takes account of all eventualities.

Contact Clare Magill on 01752 292354 for assistance with all base negotiations and documentation.

Are your Website Images Legal?

The Forum of Private Business (FPB) has reported a noticeable increase in calls to its helpline from businesses that inadvertently included on their websites images that are protected by copyright and subsequently received demands for payment from the copyright owners.

FPB Chief Executive Phil Orford said, "I think the digital age has blurred the boundaries of image copyright in many people's minds and some business owners mistakenly think that because an image is freely available on the Internet, it can be reused without permission.

"Additionally, many smaller businesses entrust web design companies with the whole process of registering and creating their website, and presume that their web design company will only use images they are entitled to use. However, this isn't always the case, so I would urge business owners to check they are legally entitled to use each and every image on their websites."

Software exists which enables copyright holders to scan the Internet to identify any use of their pictures, so anyone who uses images without a valid licence to do so runs the risk of claims from companies such as Getty Images, which has a policy of actively pursuing infringements of its copyright.

Contact Clare Magill for advice on 01752 292354

Failing to Prevent Bribery - Are you at Risk?

The Bribery Act 2010 came into force on 1 July 2011. It created a new offence which can be committed by a commercial organisation if it fails to prevent persons associated with it from committing bribery on its behalf. A business can provide a defence by showing that it had 'adequate procedures' to prevent bribery by such persons from taking place, however. Organisations that have not already done so should ensure they have the necessary prevention procedures in place.

What is deemed to be adequate will depend on the nature, size and complexity of your business. The key point is that to rely on the defence, the measures you adopt must be proportionate in view of the likelihood of bribery occurring – for example, a large firm which operates in overseas markets is likely to be more at risk than a small organisation undertaking business primarily in the UK. You should therefore carry out a risk assessment of the potential that exists for bribery offences to be committed, especially when entering into new business arrangements and new overseas markets.

Where appropriate, due diligence should be carried out so that you know exactly whom you are dealing with, especially when engaging others to represent you in business dealings.

Whatever anti-bribery procedures you do decide are necessary should be seen to have the backing of those at the top of the organisation and the policy should be communicated to staff and others who will perform services for you, with training provided where appropriate, so that it is clear that the business culture is one in which bribery is not tolerated. If the risks you face change, your procedures may cease to be effective, so it is important to make sure these are kept up to date.

Concern has been expressed that spending on hospitality could cause a business to fall foul of the Bribery Act. The position is that you can continue to provide bona fide hospitality and spend money on promotional or other business initiatives provided the expenditure is reasonable and proportionate given the sort of business you are engaged in. The expenditure should be made in order to promote your products or services, improve the image of your business or establish good relations with clients, with no intention of corrupting the independence of the recipient.
The Serious Fraud Office has advised that when considering whether expenditure on corporate hospitality can be considered to be a bribe, it will look at five factors:

1. Whether or not the organisation has issued a clear policy regarding gifts and hospitality;
2. Whether the expenditure in question was compliant with the policy and, if not, whether or not it had been sanctioned at the appropriate level within the organisation;
3. Whether or not the expenditure was proportionate with regard to the status of the recipient;
4. Whether or not the expenditure had been entered in the organisation's books of account; and
5. The lawfulness of the receipt by the recipient under the laws of his or her own country.
Where an offence under the Act is committed with the consent or connivance of a senior officer of an organisation, that person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly. The maximum penalty for individuals is 10 years' imprisonment or an unlimited fine, or both. The maximum penalty for commercial organisations is an unlimited fine.

For guidance on the Act, including case studies illustrating what approach businesses might take in certain situations, http://www.justice.gov.uk/guidance/docs/bribery-act-2010-guidance.pdf

We can advise you to ensure that your business has taken all the steps necessary to comply with the Bribery Act. Contact Bill Duncan on 01752 292362.

Late Legal Representation Proves Expensive

The director of a company who decided to defend his company himself against a copyright infringement claim has found that failing to take legal advice early on in the proceedings has cost his company dear.

The company had reproduced more than 100 articles from a commercial vendor of such material on its own website, representing the content as having been written by people connected with the company.

When the material was spotted by the company that owns the copyright, the director claimed that his company had no liability to it because he had permission from others (not the copyright owner) to republish the material. However, the businesses named had no legal right to permit republication.

Under copyright law, if permission had been given incorrectly, the position would be that the other businesses could be 'joined in the action' for facilitating the breach of copyright or the infringing company could have the right to claim its damages payable from them. That would enable the infringing company not to lose out from an honest mistake. The argument advanced is not a defence, however: no one can assign a right they do not have.

The director of the company continued to deny liability and offered £500 in settlement of the claim. After declining the claimant's request for mediation, the dispute dragged on for nearly a year and he only obtained professional legal advice after the case was about to be listed for a court hearing. Once solicitors had been engaged, it was only a matter of weeks before an offer was made to settle the dispute out of court by payment of damages of £5,000.

However, when it came to the assessment of legal costs, it was a different matter altogether. The claimant's agreed legal costs, which it had been agreed would be paid by the infringing company, were more than double the amount of the damages. In addition, the man's company had to pay its own legal costs.

This case shows how important it is to obtain legal representation early when a dispute arises. Failing to understand the applicable law can mean the wrong principles are applied and attempts to resolve the dispute will founder. In this case, the total payable by the company is approximately three times the sum that it would have cost to settle the matter out of court at an early stage. Contact Clare Magill on 01752 292354.

Investment Partners Entitled to View Documents

Is an investor in a co-investment venture that is owned and managed by connected companies entitled to find out what has happened to its money beyond what is reported to it? This question was raised in a recent case in the High Court.

The case concerned an investment partnership, Colyzeo Investors II LP, a limited partnership in English law which was set up to co-invest with Colony Capital LLC and its affiliates. A complicated arrangement of partnerships and companies was established in order to manage the investments – real estate and related assets, and ventures in Europe.

Such a structure is not unusual for this type of investment and the status of the individual investors was that of limited partner, with the overall management being assumed by a general partner, whose liabilities were unlimited. In this case, the general partner was Colyzeo Capital II LLP, a limited liability partnership in English law.

Spanish company Inversiones Frieira SL was the largest investor in the partnership and, with its smaller sister company, handed over some €100 million out of a total of €854 million committed by investors. Unfortunately, as a consequence of major investments in two projects proving unsuccessful, including one involving French supermarket giant Carrefour, the venture lost about half of its investment funds.

Following these losses, in July 2009 Inversiones requested access to documents relating to the failed investments. This request was granted over the following months, with more and more detailed information being sought until, in March 2010, the company was told that it only had access rights to the financial records and books of the partnership.

The High Court held that this view was wrong. The investors were legal partners in the venture who had put capital at risk in the business. As such, any partners, limited or not, had a right to disclosure by the co-partner of all matters relating to the partnership dealings and transactions.

It was also argued that Inversiones only wanted access to detailed investment documents in order to mount litigation against Colyzeo Investors. The judge held, however, that because Inversiones had a statutory right to inspect the documents, its motive for so doing was irrelevant.

A limited partner in an investment partnership or any other partnership venture is entitled to full access to information regarding the partnership's investments.Anyone who is unsure about such rights should seek qualified professional advice. Contact Samuel Woods on 01752 292277.

Compulsory Purchase - Appropriate Compensation

When a compulsory purchase order is made, the acquirer must make a fair valuation of the property being acquired so that appropriate compensation can be paid.

In making the valuation, all relevant circumstances have to be taken into account.

When a house in Newham was acquired by the Borough by compulsory purchase, the Council's valuer referred to three comparable properties in setting his valuation at £300,000. However, the valuer also took account of the poor condition of the property and reduced the valuation appropriately.

The owner of the house estimated its value at £420,000, which the Lands Chamber found was unsupportable. The Chamber held that the correct valuation was the amount the property would be expected to sell for on the open market. The house was not in good condition. Any purchaser would have to spend money on it and the valuation should therefore be adjusted to reflect this.

For advice please contact Bill Duncan on 01752 292362

The Truth, The Whole Truth

The importance of making full disclosure of relevant facts when negotiating is hard to over-emphasise, as a recent case shows.

The case arose when a company made an agreement to sell a subsidiary to another company. As is normally the case when a business is offered for sale, a pre-sale memorandum was prepared, outlining key information about the company being sold, and this was circulated to potential buyers.

Those companies interested in the preliminary information were shown more detailed information, including sales forecasts and the like. As a result of this exercise, a deal was put in place and the company was sold to another firm. The day after the sale was concluded, the company's second largest customer – which accounted for more than a third of the company's sales – informed the new owner that they would be terminating their business relationship with the company. They had told the managing director of the company of the decision six weeks before the sale was concluded, but he had not passed the information on to the buyer.

The buyer claimed that it had been persuaded to buy the company on the basis of fraudulent misrepresentation and the contract for the purchase of the company should therefore be rescinded.

To succeed in its claim, the buyer had to show that a misrepresentation (a false statement) was made on which it relied and which induced it to undertake the contract to purchase the company. The High Court was satisfied that the information given, especially the sales projections, was not supplied in good faith when the vendor became aware that the forecasts provided were no longer correct.

It was particularly in point that the vendor had refused the buyer's request that it be allowed to meet with the company's major customers and there was evidence that the relationship with the customer had 'cooled' in recent years. The vendor had also not permitted (until the day before the sale) the purchaser to inform customers that it was buying the business.

The Court concluded that the buyer was entitled to rescind the contract and to damages for any consequential loss it had suffered.

Contact Roger Sands on 01752 292316 for advice.

Jockey's Attempt to Breach Covenant Falls at Second Fence

A covenant can either represent a commitment to do something or a commitment not to do something. In either case, the party faced with a breach of the covenant has a range of options available to them for obtaining a legal remedy, one of which is to obtain a court injunction to prevent the breach.

In a recent case, a jockey who had an agreement with a racehorse owner that he would not agree to ride another owner's horse in a race in which he had already been booked to ride one of the owner's horses was faced with an injunction to prevent a breach of contract.

The jockey was booked to ride one of the owner's horses in the Derby. Five days before the race, however, he sent a text message to the owner indicating that he would not after all be riding the horse in that race. He had in fact agreed to ride another horse. The owner sought an injunction to prevent him breaking the restrictive covenant.

The lower court refused to prevent the jockey from riding the horse of his choice, despite the fact that it left the owner seeking a replacement jockey at the last minute. The decision was made largely on public interest grounds, the judge believing that damages would be sufficient compensation for the racehorse owner. The owner appealed and the Court of Appeal overturned the decision and granted the injunction. Because of the clear breach of the covenant, it was necessary in law for the jockey to prove that special circumstances existed to justify not enforcing the covenant. The Court concluded that in this case there were no special circumstances that would justify the withholding of the requested injunction.

The circumstances in this case were clearly unusual. It involved a well-known sportsman and one of the classic Flat races. However, it clearly demonstrates the principle that the use of a well-worded restraint of trade clause and its timely application can be an effective protection.

As it happens, neither horse won!

For advice on all contractual matters, contact Roger Sands on 01752 292316.

Court Reversal for Vendor who did not know what he had sold.

It seems impossible that such a circumstance could arise, but the vendor was the executor of an estate and had never visited the property, and the purchaser had bought it as an investment without inspecting it beforehand.

According to the auction particulars, the property comprised a freehold shop with a flat on the first floor that was subject to a 125-year leaseback. However, there was an additional flat on the ground floor to the rear of the shop.

The vendor argued that the second flat was not included in the sale and the purchaser contended that it was.

The High Court took the rather odd view that the ground-floor flat had been conveyed, but was subject to the same 125-year leaseback as the first-floor flat. The buyer appealed to the Court of Appeal.

The Court considered that a sale of a flying freehold, which would have resulted had the ground-floor flat not been conveyed, would be highly unusual and would have been highlighted in the auction particulars.

However, the Court could not agree that a term creating a lease should be inserted into the agreement. In its view, the most reasonable approach was to conclude that the vacant flat formed part of the freehold property sold at auction.

The result left the buyer with a windfall – an unexpected vacant flat – and the executor with a red face because the property was sold for a sum below its true market value.

Although the circumstances in this case were highly unusual, it does highlight the need for care when entering into any property transaction.

Please contact Clare Magill on 01752 292354 for advice.

Collective Redundancy - The Election of Employee Representatives

If an employer is 'proposing to dismiss as redundant' 20 or more employees at one establishment, within a period of 90 days, the collective consultation provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), whereby the employer must consult with 'appropriate representatives' of the affected employees, come into play. Where there is no recognised independent trade union representation, nor existing employee representatives authorised to act on the employees' behalf, representatives must be elected by the affected employees. Where the employer fails to comply with these provisions, the Employment Tribunal (ET) can require the payment of a protective award.

In Phillips v Xtera Communications Ltd., the Employment Appeal Tribunal (EAT) held that in situations where the number of employee nominees or candidates matches the number of representatives to be elected, it is not necessary for the employer to conduct a formal ballot in order to satisfy the statutory requirements regarding the election of employee representatives.

Mr Phillips worked for Xtera Communications Ltd. at its Harold Wood site. In May 2008, the company was considering closing the site as part of a programme of substantial cuts. Members of staff were notified by email that more than 20 jobs could be lost and that a formal process of consultation would be undertaken. It was suggested that two employee representatives would be sufficient to negotiate with the company and staff were invited to indicate whether they wished to hold an election. If candidates were proposed and an election desired, this would be arranged.

The employees held a meeting and agreed on two nominees to act as their representatives. Mr Phillips did not attend the meeting but signified to colleagues that he was in agreement with the decision taken. The company contacted all staff asking if there were any objections to the two people whose names had been put forward being elected and no objections were forthcoming. When one of the original nominees stepped down, a replacement came forward. A third person then volunteered to act as an additional employee representative. The company agreed to this and no objection was made by any employee regarding the revised arrangements.

In the event, the Harold Wood site was kept open with a reduced workforce. Following a redundancy selection process, Mr Phillips and one other staff member were made redundant.

Mr Phillips made various claims to the ET, including a claim for a protective award. He contended that the employee representatives were not elected in accordance with TULRCA because Xtera Communications had failed to comply with its obligation to arrange an election process. The ET rejected this claim.

On appeal, the EAT held that Section 188A of TULRCA does not expressly require that a ballot be conducted or a vote be undertaken in every circumstance. Where the number of nominees is the same as the number of representatives sought, an election would merely involve the employer expending valuable time and resources on a wholly unnecessary exercise.

Although the employees in this case were not given the opportunity anonymously to object to the candidates, it was open to anyone who dissented to put their own name forward or to nominate another candidate. Also, any staff member could have requested that a formal election be held. No such responses were made.

Furthermore, the ultimate safeguard against manipulation of the democratic process is the duty on the employer, under TULRCA 188A(1)(a), to ensure that the election of employee representatives is fair.

The appeal was therefore dismissed.

If you are contemplating making staff redundant, we can advise you to ensure that the appropriate arrangements are put in place. Contact Eoin Fowell on 01752 292350.

Asbestos and all that......

On 27 September 2011, Bournemouth Crown Court sentenced Marks and Spencer plc (MS) and three of its contractors for health and safety offences relating to asbestos removal in the refurbishment of its Reading and Bournemouth stores, following successful prosecutions by the Health and Safety Executive (HSE). The Court fined:

MS, £1 million and ordered to pay costs of £600,000 for breaches of section 2(1) (duty of employers to protect health and safety of staff) and section 3(1) (duty to members of the public and other workers) of the Health and Safety at Work etc. Act 1974 (HSWA 1974) in relation to offences at its Reading store in 2006.

Its contractors at the Reading store:

Styles & Wood Limited, £100,000 and ordered it to pay costs of £40,000 costs for breaches of sections 2(1) and 3(1) of the HSWA 1974.

PA Realisations Ltd, £200 for breaches of regulation 15 of the Control of Asbestos at Work Regulations 2002 (SI 2002/2675) (CAWR 2002), by failing to minimise the spread of asbestos. (The Control of Asbestos Regulations 2006 (SI 2002/2739) have since replaced the CAWR 2002.

Its contractor at its Bournemouth store, Willmott Dixon Construction Ltd, £50,000 and ordered to pay costs of £75,000 for breaches of sections 2(1) and 3(1) of the HSWA 1974. Willmott Dixon is applying for permission to appeal against conviction.

Styles & Wood Limited pleaded guilty in January 2010. There was a three month trial of other defendants at Winchester Crown Court, which ended in July 2011.

All offences related to removal of asbestos-containing materials in MS stores were in breach of the standards under the legislation and codes of practice. In particular, HSE alleged that MS did not allocate sufficient time and space for the removal of asbestos-containing materials at its Reading store.

Please contact Clare Magill on 01752 292354 for advice.

Tom Phipps Joins Wolferstans

Leading intellectual property, commercial law and commercial dispute resolution specialist, Tom Phipps, has joined Wolferstans commercial team from Bond Pearce, where he was head of the intellectual property team. Tom specialises in trade mark, copyright, patent and designs work including franchising, licensing, distribution and manufacturing deals, IT and media contracts and related disputes. He enjoys working with companies both to identify opportunities, take action to protect their IP assets and prevent problems arising in the first place. Described in the Legal 500 as being ‘outstanding’, Tom is a significant addition to Wolferstans commercial offering. Clare Magill, head of the commercial department, commented ‘we have been looking for the right person to work with our employment and corporate experts, Eoin Fowell and Roger Sands, to offer companies a robust, all-round service. Tom’s reputation speaks for itself and we are delighted that he has agreed to join us.’

Tom’s clients are both national and south west based regional businesses. He will be based in Wolferstans main North Hill office and can be contacted on 01752 292261, email tphipps@wolferstans.com.

The Stroud Stitson Partnership

We are pleased to announce that The Stroud Stitson Partnership has joined Wolferstans Solicitors from the close of business on the 30 September 2011. Brian Stitson will continue to work for his existing clients where possible and will continue to specialise in wills and probate work. Well known and respected in the local community, he adds to our strong team of experienced lawyers in our ever expanding department led by Samantha Buckthought. From Monday 10th October 2011 you will be able to contact him on his new direct dial number of 01752 495999. His email address will change to bstitson@wolferstans.com.

Those clients who were buying or selling their home through The Stroud Stitson Partnership will be referred to one of our experienced residential conveyancers at our Plymouth North Hill office.

Brian and his support staff will be at Wolferstans offices from Monday 10 October 2011. The office at the City Business Park will close at 5pm on Thursday 6 October.

Government Proposals - Fees for ET's and a Two Year Qualification Period

The Government has issued its latest Statement of New Regulation under the one-in, one-out legislation policy.

The Government's stated aim is to reduce the annual regulatory costs to businesses and the latest proposals are reflective of the coalition's pro-employer stance. The majority of UK legislation stems from European Law and is therefore difficult to deregulate or amend. For that reason, the Government appears to have focussed on the following elements of employment law:

A proposal to increase the qualifying period for employees to bring claims for unfair dismissal from 1 to 2 years;
The introduction of fees for issuing Employment Tribunal claims; and
A consultation on removing the requirement for employers to take reasonable steps to prevent harassment of their staff by third parties.

Presently, reverting to a two year qualification period is merely a proposal. The period was originally decreased from two years because the practice would indirectly discriminate against women. I imagine that similar arguments will be proposed concerning age discrimination and the two year qualification's impact on younger workers.

Assuming this proposal is introduced, I can envisage a situation where a significant proportion of employees under a certain age, are dismissed time and time again prior to accruing two years continuous service. These employees are likely to be the first to go in a redundancy exercise or any reduction of a workforce. For now, it is a matter of "watching this space", but I predict some interesting challenges to this element.

The theory behind introducing fees to issue claims at an Employment Tribunal, is to reduce the number of unmeritorious claims. However, the majority of individuals that issue a claim at an Employment Tribunal, are unlikely to be receiving regular wages and may qualify for some form of waiver. The fees are more likely to discourage those who cannot afford to bring a claim as opposed to those weak claims. The introduction of fees has been confirmed by the Government, and appears to be a reaction to the current groundswell of public opinion against "compensation culture". The ban comes hot on the heels of the Government's proposal to ban referral fees for personal injury claims.

The third element is limited to a consultation, but seems contrary to the overriding objective of the Equality Act. Presently, the only duty on an employer is to take "such steps as are reasonably practicable" to prevent third party harassment, and this appears to be a low bar when compared to the potential consequences.

The three proposals are a clear indication of the Coalition's intention to lessen the burden on employers. However, whether these stated aims will be achieved via the current proposals is another matter!

Please contact Eoin Fowell 01752 292350 and James Twine 01752 292351 for advice on Employment issues.

Facebook Bash at Boss - OK!

An Employment Tribunal has held that the dismissal of Ms Whitham, for making derogatory comments about her employer on Facebook was unfair! When making its decision, the Tribunal took into account the fact that the employer’s relationship with a major client had not been harmed and criticised the employer for failing to take into account the employee’s unblemished disciplinary record.

Ms Whitham was employed by Club 24 Limited as a Team Leader for part of the Volkswagen Group who were a client of Club 24. Ms Whitham was a member of Facebook and a number of her Facebook friends were also her colleagues. Ms Whitham was having a difficult day at work and posted the following comments on her Facebook account;

“ I think I work in a nursery and I do not mean working with plants.”

She then responded to a colleague’s post with;

“Don’t worry, takes a lot for the ba*tard* to grind me down”.

A former employee then posted;

“Ya, work with a lot of planks though!”

Ms Whitham replied;

“2 true”

The comments were only visible to Ms Whitham’s Facebook friends and not to members of the public. Unfortunately for Ms Whitham, two of her “so called” Facebook friends reported the comments to Club 24.

Ms Whitham sent a letter of apology and requested that Club 24 take into account her unblemished disciplinary record. Club 24 elected to dismiss Ms Whitham relying on a policy which warned employees against posting information about their job on the internet, and contended that the comments could have damaged the relationship between Club 24 and Volkswagen.

Ms Whitham appealed against the decision and the Manager handling the appeal agreed that the comments were “not too horrendous” and suggested that a warning might have been more appropriate. However, the Manager dismissed the appeal and the decision stood.

Ms Whitham brought a claim for unfair dismissal and the Tribunal agreed that the sanction fell outside of the band of reasonable responses.

The Tribunal concluded that Club 24 had failed to complete a reasonable investigation in that they had not sought the views of Volkswagen regarding the comments. Furthermore, Club 24 were also criticised for relying on a policy designed to protect confidentiality, when there was no breach of confidentiality in the incident in question.

This case highlights the need for employers to conduct a full and fair investigation and avoid knee jerk reactions to comments or postings on social media that have a derogatory element.

We all like to have a good moan at work, and if Ms Whitham had made the same comments in a face to face exchange with her colleagues, I very much doubt they would have led to disciplinary action. The difference in Ms Whitham’s case was her comments were posted on the internet and had the potential to lead to a loss of reputation. It appears that an employer may have to prove an actual loss of reputation as opposed to a potential loss of reputation.

If you require further information in regard to dealing with social media in the workplace, drafting a social media policy or any other matter please contact James Twine on 01752 292351.

Developer Cannot Avoid Liability by Failing to Market Development

When development contracts are entered into, there is often an element of 'profit sharing' between the different parties involved in the development. Commonly, a vendor of land will negotiate an 'overage' agreement with a developer, which gives the vendor an additional payment if the development produces sales exceeding a certain figure.

In a recent case, a property company undertaking a residential property development had a contract with the vendor of the land being developed which contained an overage clause. The developer obtained planning permission for and built 84 residential properties and succeeded in selling 80 of them, including the show home. The last four houses remained unsold.

Under the agreement, the vendor of the land was entitled to half of the excess of revenue over a figure of just under £7.5 million. This was to be calculated when the final property was sold. By the time the developer stopped work, the sales revenue from the 80 houses sold was more than £9.5 million.

Worried that the developer was no longer seeking to market the last four houses, the vendor offered the asking price for them, but the offer was rejected.

The vendor of the land went to court to force the issue with the developer. The court had no hesitation in deciding that the contract between them should contain the implied term that the developer would use reasonable endeavours to complete and sell the houses at the best price that was reasonably practicable and within a reasonable period of time.

It would have been more sensible to include a 'good faith' clause in the original contract, specifically setting out the obligations of the developer. By doing so, the delay and expense of litigation could have been avoided.

We can advise you on all property law matters, please contact Clare Magill or Cindy Rai.

Demolition Requires Planning Permission

New developments require planning permission, as is well known: so do projects that affect the environment. But can demolition of an existing building be considered to be a project affecting the environment, thus meaning planning permission is required?

The Court of Appeal has ruled that the answer to this question is 'yes'.

The issue arose when the demolition of a brewery in Lancaster was proposed. Lancaster City Council contended that the law did not require approval to be given because the demolition did not amount to a 'development' under the applicable English law. At issue was whether English law had correctly incorporated the terms of the EU Council Directive it sought to implement.

Opponents of the project argued that the brewery buildings made 'a positive and significant contribution to the character and appearance of these conservation areas'. They claimed that the demolition proposal was subject to EU law that governs 'projects' that are likely to have significant effects on the environment. The Council argued that the Directive did not apply.

The Court ruled that English law did not fully implement the Directive. It cited an earlier case in Ireland, which concluded that 'by excluding demolition works from the scope of its legislation transposing that Directive, Ireland has failed to fulfil its obligations under that Directive'.

Demolition of buildings on a site must be considered capable of creating something new and thus are subject to normal planning procedures.

For more advice and help on planning applications please contact Clare Magill on 01752 292354.

Defective Wording does not Remove Liability

When a document contains errors, the court will often act to ensure that commercial common sense dictates its interpretation.

In a recent case, a farmer sought to avoid an estate rentcharge for roads and sewers on the farm estate when the covenants in the land transfer documents contained errors and omissions.

Concluding that the rentcharge was not intended to yield a profit but merely to allocate the costs to the occupier of the land, the court ruled that the documents had to be construed to give effect to the 'missing covenant'.

The decision was also influenced by case law, which provides that a person who takes the benefit of a deed cannot avoid a burden which attaches to it.

Please contact Clare Magill for similar advice on 01752 292354

'Enjoyment' has Limited Meaning for Tenant

A tenancy agreement will grant the tenant the right to 'quiet enjoyment' of the let premises and will normally require the tenant to keep them in a reasonably good state. When the tenant is unable to keep the premises in good decorative order, a social landlord will normally absolve them from this requirement and accept responsibility for doing so themselves.

Recently, a disabled tenant who had such an agreement with his landlord went to court in an attempt to force the landlord to redecorate his home. His argument was that as it was in poor decorative order, he could not 'enjoy' it. Since he was unable to redecorate the property himself, he argued that it was the landlord's responsibility to do so.

Unfortunately for the tenant, the Court of Appeal ruled that 'enjoyment' in this context means only the right to have possession and use of the property as a home. In this case, the condition of the property was not such as to prevent it being occupied as a home.

Wolferstans can assist you with all Landlord and Tenant matters, please contact Clare Magill or Cindy Rai.

Council Possession Orders Vindicated

Where a person commences a social tenancy, it is common for the landlord to use an introductory tenancy agreement. An introductory tenancy is a 12-month probationary tenancy. Provided the tenant meets the conditions of their tenancy agreement, a secure tenancy is then granted.

The idea behind the introductory tenancy is to enable social landlords to obtain possession of the property if the introductory tenant fails to keep to the terms of the tenancy agreement.

Recently, three councils had applications to evict introductory tenants opposed and the cases ended up in the Supreme Court. In two instances, the background was that the tenants had exhibited anti-social behaviour and in the other case the tenant had failed to pay the rent due. All three contested the right of the respective councils to apply for a possession order, alleging that the 'proportionality review' process undertaken by the councils in seeking the orders was flawed and violated the right to respect for a person's private and family life guaranteed under the Human Rights Act 1998.

In each case, the Court ruled that the council did have the right to obtain possession, based on its ownership rights and its obligation to comply with its public duties in relation to the allocation and management of its housing stock.

Considering all matters, the response of the council in each case was found to be a proportionate one.

This judgment will be welcomed by the managers of social housing as it confirms their right to take proportionate action in cases in which they have non-compliant tenants.

Clare Magill and Cindy Rai can advise you on all property law matters.

Council has Right to Adjourn if Information Insufficient

When a licensing application cannot be heard because insufficient information has been supplied relating to the primary use of the premises, the licensing authority must decide whether to grant the licence and deal with any issues through enforcement action or whether to defer granting the licence until the primary use issue can be resolved.

In a case regarding an application for planning permission by a petrol retailer that wished to add the sale of alcohol to its licence, the planning authority adjourned the application to a set date, requesting further information. The retailer declined to comply with the request, claiming that the information already supplied was sufficient for the council to make its decision and demanding that the matter be determined. The council then adjourned the hearing of the application indefinitely.

The petrol retailer demanded a judicial review of the decision, claiming that the council should be forced to decide the matter. The court disagreed, upholding the right of the council to demand the information sought. However, the court did agree that the adjournment should be to a later specified date. If the required information were not produced at that time, the matter could be adjourned again.

Clare Magill at Wolferstans can assist you with planning applications, please contact Clare on 01752 292354.

Competition Law Challenge on Landlord Fails

The law seeks to prevent a dominant position in contractual negotiations from being used abusively. However, just because the negotiating positions of two parties are not equal does not mean that redress will be available to the 'weaker' party.

In a landlord and tenant case, the landlord of an oil terminal gave a notice under the Landlord and Tenant Act 1954 (LTA) that, at the lease renewal, it would seek possession of the premises on the ground that it wished to occupy them itself. The lease had been entered into 40 years previously and contained no rent review provisions.

In negotiations with the tenant, the landlord had proposed that the existing lease, which had a current rent of £4 million per year, could be renewed at £23 million. Under the LTA, the court is entitled to set a rent if the landlord and tenant cannot reach agreement.

The tenant claimed that the landlord's action was abusive and that its notice of intention to occupy the premises itself was an attempt to force the tenant to accept an excessively high rent. It contended that such action was anti-competitive and thus unlawful.

The court ruled that the tenant had failed to present sufficient evidence that the proposed rent was excessive to the point of unfairness. Furthermore, the tenant had not shown, as is required in order to sustain a challenge on the basis of competition law, that the proposed rent would have an adverse effect on consumers.

The court also ruled that this was not a case in which the landlord's action was abusive in terms of the respective bargaining power of the two parties, since the court has the right to set the rent in the event of the landlord and tenant not being able to agree this between themselves.

For more advice please contact Clare Magill on 01752 292354.

Court of Protection Comes to Rescue of Problem Trust

Dealing with tenants who cause serious nuisance to other tenants is a common problem for social landlords. One of the most difficult situations to deal with is when a tenant develops a 'hoarding habit' and becomes obsessed with amassing refuse. This can lead to serious problems due to infestation by vermin and so on.

The problem is that such individuals are often mentally ill, and thus not capable of engaging with the various enforcement procedures available to the local authority responsible. As a result, the tenant cannot participate in defending proceedings against them and this renders impractical the use of many of the measures available. This can lead to the council seeking a possession order as the only practical way to rectify the problem.

In a recent case, an elderly man developed paranoia. He denied the council access to his home to undertake annual gas inspections on the property, with the result that he was considered to pose a danger to his neighbours. He also refused to allow the council to convert his home so that it was all electric, which would have removed the need for the inspections.

The problem was dealt with by an application to the Court of Protection, which came about as a result of cooperation between the Official Solicitor, the council and social services. The Court of Protection deals with the affairs of those who are unable to do so themselves owing to incapacity. The Court is often involved when someone lacks mental capacity and it must act in the best interests of that person.

The Official Solicitor applied for an order from the Court to require the works to be done and for the man to be required to reside in a specified care home for the period during which the works were being carried out. It allowed him daily access to his property, so that he could see what was being done. Although this was stressful for him, it was less stressful than being served by a bailiff with a notice of eviction would have been.

If you have problems with difficult tenants, we can advise you of what steps you may take. Please contact Clare Magill on 01752 292354.

Buyer Loses Flat When Vendor's Error Not Rectified

Mistakes do happen and, when they do, rectifying them can prove more difficult than one might think.

In a recent case, a buyer and seller exchanged contracts on a flat, which was being sold by way of a long lease. This seems straightforward enough, but when the plans were sent to the Land Registry for title to be registered, the wrong plan was sent.

The buyer and seller agreed that the completion date would be 14 days after the vendor's solicitors had provided the buyer's solicitors with proof that the title document had been amended by the Land Registry. The sale agreement also contained a condition that set a date by which either side could give notice to the other to terminate the contract in the event that the necessary documentation was not provided within five working days. In this event, the vendor was required to return the buyer's deposit and the buyer, who was allowed to occupy the flat even though completion had not yet taken place, had to vacate the property.

Despite the best efforts of the vendor's solicitors, the amended documentation was not received. The vendor then served a notice on the buyer to terminate the contract but the buyer responded by issuing a waiver to the vendor and requested a completion statement.

The High Court first had to determine whether the buyer had the unilateral right to waive the condition and demand completion by the vendor. It concluded that since the practical effect of the condition was for the sole benefit of the buyer, he did have the right to do so.

The next question was what the completion date would be were the condition waived. The Court concluded that this would be 14 days after the condition had been waived. This date had already passed by the time the matter came to court.

The last question was whether the buyer could waive the condition after the vendor had given notice to terminate the contract. The buyer argued that he could, because the service of the notice to complete had occurred within five days of the vendor's notice of termination. The vendor argued that he could not, because the termination notice was valid within the terms of the contract. The Court accepted the vendor's point of view.

In this case, the buyer's contract did not give him the right to accept a (temporarily) defective title once the vendor had decided to terminate the contract.

What seems unfair in this case is that the error was on the part of the vendor and the buyer wished to remain in the flat. Nevertheless, the agreement signed gave the vendor the right to act as he did.

For advice on contracts, please contact Roger Sands on 01752 292316.

Competition Act Extended to Land

From 6 April 2011, the Competition Act 1998 has been extended to cover agreements made with regard to land. Such agreements were previously excluded from the scope of the Act.

The Act seeks to prohibit agreements etc. that prevent, restrict or distort competition.

The change is important for owners and occupiers of land because it has hitherto been common for agreements (especially tenancy agreements) to contain exclusivity clauses – for example, where a tenant retailer agrees with its landlord that no competitor of the tenant will be allowed retail space in the same development. In such cases, the agreement may now be unlawful.

Where such agreements are in place, it is sensible to have them reviewed to ensure they do not conflict with the principles contained in Chapter 1 of the Act.

http://www.legislation.gov.uk/ukpga/1998/41/part/I/chapter/I.

The Office of Fair Trading has issued guidance on the changes, which can be found at:-

http://www.oft.gov.uk/OFTwork/policy/land-agreements/.

For more advice please contact Clare Magill on 01752 292354.

New Associates

Wolferstans are delighted to announce five associate promotions.

Paul Woods, Senior Partner, comments: 'Congratulations to all. Once again we have deservedly rewarded members of our hard working and dedicated staff and continue to support the long-term vision for our employee development. We believe the respective Departments will greatly benefit from the well deserved promotions within the firm. These appointments demonstrate our continued commitment to provide our clients with excellent levels of client service in both the business community and private sector.'

The new Associates are:-

Jill Burrows, Head & Spinal Injury Department
Mel Cotterill, Wills & Trusts Department
James Twine, Employment Department
Elizabeth Williams, Clinical Negligence Department
Samuel Woods, Commercial Department

Collaborative Law - An Alternative Approach to Divorce

After bereavement and house purchase/selling, divorce has been described as one of the most traumatising events a person can go through. It affects every part of your life and has an impact both emotionally and financially.

An increasing number of lawyers from the Devon and Cornwall area have undertaken Collaborative Law training so they can offer an alternative to the normal court process.

What is Collaborative Law?
In the Collaborative Law process both parties have a lawyer at their side throughout the entire process and therefore benefit from immediate legal advice as the matter progresses. The majority of the case is conducted by the lawyers and the parties together around a table in what is referred to as a 'four-way meeting'. Within Collaborative Law there is a complete change of emphasis with everyone involved to problem solve rather than fight to win. The lawyers themselves have an interest in the process as if the matter is not settled within the Collaborative Law process then those lawyers can have no further involvement in the case.

There are still rules within the Collaborative Law which the parties sign up to. The parties agree to be open and honest and disclose all documents. Each party agrees to act respectfully towards each other and look to the future rather than apportioning blame in the past.

Benefits of Collaborative Law
One of the biggest differences in the Collaborative Law process is that it recognises that emotional issues exist that cannot be addressed by the legal system. How many times have we heard stories of divorcing parties spending several hundred pounds to argue about pets or furniture? Generally speaking, the parties in such cases are not arguing about dogs, cats or furniture but instead are re-acting to the psychological pains that they are experiencing. Emotional issues are ignored in the court process. By contrast, the Collaborative Law process specifically addresses these issues by bringing them to the forefront and if necessary involving counsellors or professionals as part of a team approach to find solutions.

So often, children become the unintended victims in divorce proceedings. They internalise the conflict and often blame themselves for the break-up of the family. Within the Collaborative Law process it is possible for specialist to help to be sought not only to reduce the impact of divorce on children but also assist the children in understanding that the parental dispute is not their fault.

In traditional cases, which proceed through the court, 90% are resolved without a final hearing by way of negotiation. However, a solution often comes after possibly years have elapsed and after significant emotional distress and many hurtful statements have been made. The Collaborative Law process tries to avoid that emotional harm so that both the parties and the children are able to continue to move on with their lives without deep emotional scars.

Collaborative Law will not work in every case. However, in cases where Collaborative Law has been used, settlements have been reached often after three to six sessions. A number of Collaborative Law cases have ended with hugs between the parties, , something which is rarely see at the end of a court case.

Wolferstans offer a specific Collaborative Law service which includes two Collaborative Law specialists, Philip Thorneycroft and Mala Mandalia. If you think that Collaborative Law may well be the way forward for you, please contact our New Client Coordinator Sarah Webb on telephone number 01752 292239.

Estranged Daughter Succeeds in Claim Against Mother's Estate

In a recent case, the Court of Appeal ruled that the estranged daughter of a woman who left most of her estate to charity could make a claim against her late mothers estate, under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975).

Malita Jackson died in 2004 aged 70, having left a Will in April 2002 giving her £486,000 estate completely to charity. Mrs Jackson had one daughter, who she specifically excluded. Her daughter, Heather Ilott had left home at 17 years of age, asking her mother to refrain from contacting her, and had spoken with her mother only twice since then. Mrs Jackson went so far as to leave a letter to her executors explaining her reason for excluding her daughter from her Will, and in fact had made a previous Will back in March 1984, which also excluded her daughter and stated reasons for this exclusion.

Despite all that Mrs Jackson had done to attempt to pass her estate to whom she desired, the Court decided that her daughter would now receive some provision. It is hard to envisage how Mrs Jackson could have made her wishes any clearer prior to her death.

The aim of the IPFDA 1975 is to allow people within certain categories who feel that insufficient provision has been made for them under a Will or intestacy, to make a claim for provision from the estate. This can include people who would not otherwise inherit automatically, such as unmarried partners, same sex couples etc. As such it is a useful tool to unravel what may have been done in a will if it is felt that the result of the inheritance is not fair or just.

In this case, Mrs Ilott, a mother of five who lives on state benefits, applied for provision from the County Court and was awarded £50,000 from the estate. She appealed to the High Court for greater provision, however, her claim was dismissed completely. With the aid of a pro-bono barrister Mrs Ilott challenged the ruling to the Court of Appeal and was successful. The actual sum she will receive from the estate will be decided at a later date.

The Court specifically stated that Parliament had brought legislation up to date from time to time and felt that the removal of previous more stringent restrictions on who could bring a claim made it clear that Parliament intended for an adult child to be able to bring a claim even if they could live without financial provision from the estate, and even where there had been no such financial provision during the deceased's lifetime.

The decision seems to indicate a general trend towards restricting more and more a person's freedom to do as they desire with their estate. This case seems to focus on fairness towards the person left behind rather than the person who made the Will.

The decision is likely to lead to a significant increase in the number of claims brought by adult children under the IPFDA 1975.

Wolferstans have a specialist Contentious Probate Department, therefore, if you require advice in regard to bringing or defending such a claim, please contact Samantha Buckthought on 01752 663295.

Buying a Property - What do I need to do?

Buying a property is probably the most important purchase you will ever make. However, it differs from other types of purchase, not only in terms of it being the most expensive purchase we may ever make, but, also because your home does not come with a guarantee under which you can claim if problems later arise.

It is true that newly built properties usually come with a ten year NHBC (National House Building Council) or equivalent guarantee, but, this only relates to structural defects and not, for example, any problems which may arise in relation to a boundary or right of access to the property.

Therefore, what you must first do once you have had your offer accepted is to choose a reputable Solicitor who will ensure that all matters are investigated fully. Once instructed, your Solicitor will write to the seller's Solicitor confirming they act for you as the buyer and requesting the relevant paperwork. On receipt of the papers they will apply for any searches which may be required and raise any necessary enquiries that are not answered by the paperwork received. On receipt of satisfactory replies and search results your Solicitor will report to you, either in person or in writing, and advise you on any matters of which you should be made aware prior to exchange. Your Solicitor will also go through your mortgage offer with you (if applicable) and ask you to sign the relevant paperwork. It is likely that your Solicitor will also discuss what date you require as the moving date at this stage. You, as the buyer, need only be concerned with arranging your buildings insurance for the property and arranging for your cleared deposit to be sent to your Solicitor.

Once matters are agreed 'exchange' can take place which means the seller's and buyer's Solicitors telephoning each other to agree that the Sale Contract can now be dated, from which time the terms of the agreement to purchase become binding. Your Solicitor will apply for your mortgage money from your lender (if applicable) and on the agreed moving date will electronically transfer the purchase money to the seller's Solicitor who will telephone the buyer's Solicitor once received. Your Solicitor will then telephone you to advise that you can collect the keys either from the estate agents or if there are no agents then usually the seller's Solicitor. Your Solicitor will also deal with payment of any stamp duty which may apply and will then register the change of ownership at the Land Registry and forward the Land Registry's confirmation and any relevant title deeds or documents either to your lender (if applicable) or you, dependent on the individual lender's requirements.

Please contact Pauline Anning at Wolferstans for a free quote 01752 401515

Wolferstans are pleased to welcome Mala Mandalia to their growing specialist family law team.

Mala was head of the family law department at Brains solicitors and has experience working in prominent Legal 500 practices.

Mala has extensive experience dealing with all areas of family law including divorce, children, financial settlements, maintenance and civil partnerships with particular strengths in financial cases. She is an accredited member of Resolution and an Advanced Member of the Law Society Family Law Panel with specialisms in domestic abuse and financial matters.

Mala offers alternative dispute resolution services as a family law Mediator and a Collaborative lawyer.

Head of Department Phil Thorneycroft says "We are delighted Mala has joined our strong family law team and we know that Mala's expertise will complement our team admirably and help it go from strength to strength."

Mala Mandalia can be contacted on 01752 292204

Wolferstans are one of the first law firms in the area to be accredited under the recently introduced Law Society's Conveyancing Quality Scheme.

Wolferstans Residential Department are delighted to be one of the first practices in Plymouth to have achieved membership to The Conveyancing Quality Scheme. This Scheme provides a recognised quality standard for residential conveyancing practices which ensures clients and lenders can be satisfied that the conveyancing team are of a consistently high standard based on the aims of the Law Society. The Scheme confirms the department has established a level of credibility based upon integrity, good practice management standards and adherence to prudent and efficient conveyancing procedures.

Head of Department, Sue Williams, said "We are delighted to have been accredited with the Conveyancing Quality Scheme. The application process is extremely rigorous and it is a credit to the conveyancing team that the accreditation went through so smoothly, helped no doubt by the firm already being awarded the Lexcel accreditation."

The Law Society said "Congratulations on becoming one of the first firms to gain accreditation of The Law Society's Conveyancing Quality Scheme. We're delighted to champion your Practice as an ambassador for a new standard in the home buying process. These first practices are the flag bearers of the CQS and this recognition of the quality of their service begins a new chapter in the home buying process. In what is already a crowded conveyancing market, CQS accredited legal practices will be clearly visible to any one looking to buy a home. For what is the most expensive purchase of anyone's lifetime, it is vital that they can rely on the quality service provision of CQS."

The Land Registry have welcomed the Scheme as a step in the right direction to recognising high standards in conveyancing. The Chief Land Registrar and Chief Executive of Land Registry said: "The Land Registry is committed to combating registration fraud and in September 2010 as part of our counter-measures we collaborated with the Law Society in producing a joint practice note to assist in identifying and preventing registration fraud. We continue to work with a wide variety of organisations in this area and welcome the introduction of the Conveyancing Quality Scheme as a further step in improving the conveyancing process."

Senior Partner of Wolferstans Paul Woods said "We know that we deliver a quality service across the whole firm and so it is gratifying when external assessment confirms what other experts agree."

You can contact Sue Williams on 01752 292343

Is Your Septic Tank Registered?

Some homes are not connected to a public sewer because they are located in the countryside or in locations that are too far away from mains sewers to connect to them. They may use small, private sewage treatment systems, septic tanks or even cesspools to deal with their domestic sewage. If correctly installed, these systems can protect the environment from sewage pollution but it is vital that they are properly maintained.

If your house is not connected to mains drains and instead drains to a septic tank or a sewerage treatment plant, you will need to register with the Environment Agency for exemption or apply for an Environmental Permit by 1 January 2012. After this date, if the septic tank is not registered, all discharges will be classed as illegal. The maximum fine for pollution is set at £20,000.

If you already hold a Consent to Discharge or an Environmental Permit, you do not need to register. For those householders who do not hold either, most should be able to register an exemption with the Environment Agency and registration is currently free. The Agency's application system can be completed online.

Following are the key dates:

• If the discharge from your septic tank or plant discharges into the ground, it must be registered by 31 December 2011. You will usually be able to obtain an exemption if the discharge is from a domestic property only and produces less than 2 cubic metres' discharge a day.

• If the discharge from your septic tank or plant runs into a river or a stream, then you must register with the Agency immediately. You will usually be able to obtain an exemption as long as the discharge is less than 5 cubic metres per day and is via a sewage treatment plant.

• Cesspools do not have to be registered if they do not have any discharge.

Once you have registered an exemption, you must comply with various conditions, including proper inspection, maintenance, record keeping and regular removal of excess sludge. Normal maintenance for a septic tank is the removal of sludge once a year.

As stated, you are able to make your application to the Environment Agency on-line. However, the guidance notes are 7 pages long, whilst the application page is 5 pages long and requires certain plans; if this seems daunting, we can assist for a fee of just £150 + VAT.

Please contact Tammi Hingston at on 01752 292328

Stop family fall outs when Schools out for summer

The summer holidays are not far off, where does that leave you if you are a separated or divorced parent.

You may be a parent with an agreed schedule, or even a court order, providing for summer holiday contact with your children leaving dates to be agreed between the parents. Or maybe, you have no agreement in place for spending time with your children for an extended period over the summer break.

What steps do you need to take now to enjoy the summer holidays for you and your children?

1. Decide upon what arrangements you feel would be suitable for you and the children

There is nothing in law that specifies exact terms of contact to suit all children and their parents. Arrangements that are suitable are determined by your own personal circumstances, for example, the distance between you and the other parent's home, the suitability of your accommodation for the children to stay over, any financial constraints and working patterns. Also, what the children want, their age and maturity will need to be considered.

2. Plan and communicate the arrangements you would like to the other parent

Plan the arrangements as early as you can and set aside time to speak to the other parent directly. Provide the other parent with details of where the children will be going, how exchanges will take place and sort out how the children passports are to be handed over, if appropriate. Where there are different opinions try and stay focused on what is best for your children rather than hold a fixed view without any compromise.

If you agree to the dates and times, commit to these. Last minute changes or confrontations cause difficulties and distress to you and the children.

What if you cannot agree or decide what's best for you and the children?

Seek help now from a family law specialist who can advise you on the law and how to reach a negotiated agreement through correspondence with the other parent.

You may find that your family law specialist can refer you to alternative dispute resolution processes like Family Mediation and Collaborative law. These methods focus on the interests of the whole family and have the opportunity to shape contact schedules that address not only the quantity but also the quality of the contact you can enjoy this summer with your children.

If there are still difficulties, the solicitor can assist you in making an application to the court for a defined contact order.

For further information on sorting out contact arrangements for you and your children please contact Mala Mandalia on 01752 292204.

At Wolferstans solicitors we offer clear, practical and affordable advice to allay your concerns and offer a full spectrum of services from traditional legal advice, to alternative methods of mediation, collaborative law and divorce coaching. Public funding is available to those who may qualify.

Do not let you or the children suffer when schools out for summer. Take action today!

Leasehold Headaches

Are you in a flat with spiralling service charges? Here's what you can do about it.

Leasehold ownership in the United Kingdom has always been popular. Many people have or will purchase a long lease in a flat where the freehold is owned by a landlord (or a Freeholder).

Once they have a purchased a long lease, the leaseholder will continue to pay the Freeholder ground rent (usually a relatively small amount each year) as well as service charges. The service charges are then used to pay for items used by everyone (such as building insurance, repairs and maintenance).

This arrangement is common for people who purchase flats and many people never experience problems.

There are, however, a number of issues that can arise from this relationship. Leaseholders can find themselves on the receiving end of large service charge demands or having to deal with freeholders who fail to manage the property correctly.

Many leaseholders are not aware of the range of options at their disposal to assist them with such problems.

1. Leasehold Valuation Tribunal
The tribunal has extensive powers to make determinations relating to leases. It deals with a number of different issues that arise out of leases and it has the ability, for example, to consider whether the amount of service charges claimed by a freeholder is reasonable, whether to appoint a manager for the property if a freeholder's management is not sufficient or whether certain terms in a lease should be varied.

2. Right to Manage
Leaseholders who own flats can consider forcing the freeholder to transfer the management of the property to the leaseholders. If the leaseholders are eligible, this can be done by the service of an initial notice on the landlord. Providing the correct procedures are followed, after a period of time the management functions will pass to the leaseholders and they will be able to decide how the property is managed.

3. Right to Enfranchise
Many people wish to take control of the freehold purchasing it with the other leaseholders. Eligible leaseholders have the ability to force the freeholder to sell the freehold to them for market value. The collective leaseholders will then have the ability to deal with the management, grant themselves lease extensions, etc.

Not all properties or tenants will be eligible to have the management transferred to them, or to acquire the freehold through enfranchisement, and legal advice should be obtained before attempting to exercise any of these rights.

In addition to the options detailed above, there are a number of requirements in relation to service charges with which freeholders must comply, including providing a summary of the leaseholder's rights and obligations when they serve the service charge demands and consulting certain leaseholders before certain works are carried out.

Above are only some of the options available to leaseholders. If you wish to discuss your options, please call Jennifer Tear on 01752 292308.

Don't Suffer in Silence

It is sadly true to say that Domestic Abuse is an issue in a significant number of relationships. As Rebecca Ellerbeck of Wolferstans Solicitors, an accredited Resolution Expert in the area of domestic abuse explains, "Domestic abuse is much more common than people realise. Many factors can contribute towards stress in a relationship and when levels of stress rise domestic abuse peaks."

On numerous occasions such abuse is often witnessed by children causing them significant distress and long term emotional problems.

Domestic abuse is not only physical violence but can include emotional or psychological abuse, sexual violence and abuse, threats, harassment and financial control. It can happen in all kinds of relationships and for any reason irrespective of age, race, sexuality, sex, wealth, geography and lifestyle.

Domestic abuse tends to follow a pattern of abuse and is designed to consciously control and dominate a partner/ former partner or family member. Once the abuse starts it often gets worse over time.

Whilst women are more likely to be the victims of domestic violence, men are also affected.

The first step in dealing with domestic abuse is to recognise what is happening to you and understand that you are not to blame.

It is important to tell someone you can trust as quickly as possible.

There are remedies available to protect you if you or your family are victims of domestic violence. The Court can make a Non-molestation Order which forbids the abuser from abusing or threatening violence, harassing, pestering or intimidating you and any children. Such an Order gives the Police powers to arrest the abuser should the Order be broken. The Court can also make an Occupation Order which will enable you to enforce your right to stay living in your home and for the abuser to leave. In some cases Exclusion Zones can also be put in place around the property.

The Wolferstans Domestic Abuse Team have significant experience in dealing with Injunctions and other work necessary to protect victims of domestic abuse.

The Team are able to provide urgent Legal Advice out of hours on 07917784970.

During office hours please contact Rebecca Ellerbeck on 01752 292302 Carrie Meikle on 01752 292305.

We can also put you in touch with local support networks who will continue to support and assist you in coming to terms with the situation once all legal aspects have been dealt with and the appropriate protection afforded. There is a huge amount of support out there!

Support Networks

• Plymouth Domestic Abuse Service– 01752 252033
• Refuge –01752 562286
• 24 hour National Domestic Violence Helpline – 0808 200 0247

If you are affected by domestic abuse please do call us. Don't suffer in silence.

The Bribery Act 2010

In April 2010, the new Bribery Act received Royal Assent. The provisions under this Act will now come into force on 1 July 2011 this year.

The legislation represents a substantial overhaul of the UK’s bribery laws. Amongst other offences, it introduces a corporate offence if a commercial organisation has failed to prevent bribery by an associated person (including third parties), whether in the UK or overseas.

There can be no doubt that the legislation demonstrates a commitment to eliminate bribery, but the burden on commercial organisations has been subject to much criticism, especially in drawing the line between legitimate corporate hospitality and illegitimate greasing of palms. It may be true that a lot of business is done on the golf course, but will a free round of golf now be out of bounds?

Rather than make it clear, or give any sort of financial indication, the guidance sets out six key principles which commercial organisations are required to consider; proportionality, top-level commitment, risk assessment, due diligence, communication and monitoring and review. The guidance also states that commercial organisations should introduce or develop proportionate anti-corruption policies and procedures. How this all sits with the proposed bonfire on red tape is not easy to reconcile, but this certainly adds some fuel for the fire.

Whilst it is tempting to dismiss this scenario as being one which would not apply to your organisation, consider the following example: Company (‘X Ltd’) is bidding for work from Y Ltd in a public tender. During the course of the bidding process, X Ltd’s sales director takes Y Ltd’s Chief Executive on a night out. The sales director pays for food, drink and entertainment. Is that a bribe?

Under the new law, consideration would have to be given as to the desired effect of the hospitality. If, for example, it is to try and get Y Ltd to prefer X Ltd’s bid over its competitors even if, for example, its competitors are offering a better deal, the sales director is trying to get the managing director of Y Ltd to perform his duties improperly, and may have committed an offence. The managing director of Y Ltd may have committed an offence by accepting the bribe.

In 99% of cases, it will be difficult if not impossible for the prosecuting authorities to know or prove any intention to persuade Y Ltd to act improperly. Unless the services of X Ltd were so manifestly inferior that no sane (or sober) customer would prefer them, a court cannot sensibly enter into the commercial arena and impose its view of whether Y Ltd’s MD made a good choice for his business.

Cases do however occur from time to time in which, for example, a company places an order for double-glazing and the MD ends up with a nice, free conservatory at home. In cases of that sort, it is likely to come to the attention of the company first, who may well take a dim view, and dismiss the manager in question. It would seem rather harsh in the circumstances to fine the company who exposed the wrongdoing.

It could be however that the authorities hear about it first, especially where a disgruntled fellow executive (with no conservatory) reports it as a “whistleblower“. The company could still take disciplinary action, and in fact both the buying and selling companies could be guilty of an offence of failing to prevent bribery if they cannot show that they have taken adequate measures to prevent it. They could face unlimited fines, and the directors could face imprisonment.

The government has now produced the long-awaited guidance to commercial organisations. This states that “reasonable and proportionate hospitality” will not amount to bribery under the legislation, although facilitation payments of any kind are prohibited. However what constitutes “reasonable and proportionate hospitality” is still the subject of much debate, on and off the golf course.

If you would like us to draw up a policy which meets these new requirements, call Jen Tear on 01752 292308.

Wolferstans Refurbishment

The buildings are currently having a facelift, creating a meeting room suite and much improved reception area to enhance our clients’ experience of visiting our premises. Thus uplifting the standard of the facilities we offer in meeting rooms and car parking to match the quality of the legal service that we provide.

Court of Protection Panel Deputy Appointed

Wolferstans Solicitors are pleased to announce that Samantha Buckthought, Partner and Head of the Wills and Trust Department has been appointed to the Official Panel of Professional Deputies for the Court of Protection.

The Court of Protection is a body who oversees the affairs of individuals who lack mental capacity. A Court of Protection Deputy is someone who is appointed to act for an individual where they lack mental capacity.

The Court of Protection maintains a list of approved Professional Deputies for clients in situations where nobody close to the client is willing or able to act. The Panel was previously 250 in number, but the Court of Protection recently announced an overhaul of Panel Deputyships and invited applications to join the new Panel.

The new Panel amounts to just 60 Panel Deputies and, and the rigorous eight week application process attracted over 10 applications for every place on the Panel

The appointment means that the Court of Protection may now call upon Samantha to act as an Independent Deputy for an incapacitated person, where there is no family member or friend able to act or whether circumstances dictate that the persons affairs would be better dealt with by an Independent Professional. Predominantly this appointment would cover any one in this situation in the Plymouth and Cornwall regions.

Samantha commented “I am delighted to accept this prestigious appointment, which is not just personal recognition, but is also reflective of the hard work and expertise of all the members of my team and Wolferstans as a whole. My appointment to the Panel will mean that we will be able to help clients who we wouldn’t otherwise have been able to and, with more and more people losing mental capacity every year, it will enable us to assist family members at what is such a difficult time.”

Samantha heads up a team of 9 specialist lawyers who cover all elements of Court of Protection, Wills, Trusts, and Estate work.

Samantha Buckthought can be contacted on 01752 292216.

Budget Leaves Red Tape Intact

Among the small print in this year's Budget are measures to reduce the burden of red tape on businesses. That, at least, was the declared aim, though the actual measures announced seem not so much a bonfire as a light singeing of discrimination law.

The elements of the package were that small businesses with up to 10 employees would be exempt from new laws for the first three years, that the proposed extension of the right to flexible working for parents of 16 and 17 year olds would not come into force, that the "dual discrimination" provisions in the Equality Act 2010 would be scrapped, and that they would consult over the need for employers to take steps to prevent staff being subjected to harassment by third parties. Nothing too sensational there, you may think.

The exemption from new laws will only have any impact if there are indeed new laws in the pipeline for businesses to adjust to, and none have been announced. Equally, repealing the extension on the right to request flexible working is fairly small potatoes. Interestingly, all three major parties went into the last election promising to extend the right to flexible working to all employees, singles or couples, those with grown up children, tiny tots or none at all. Any why not? It is not in fact a particularly burdensome regulation, since most employers will agree to consider a request for flexible working on whether or not there is, strictly speaking, the legal right to make a request.

Dual discrimination claims are rare in practice, and in fact are not a creation of the Equality Act at all, which largely codified the existing law on discrimination. A good recent example was the case of Miriam O'Reilly, sacked from her job presenting Countryfile on the BBC because of her age. In fact it was a combination of her age and sex - blokes seemed to hang on in front of camera despite the passage of years – and hence a case of dual discrimination. Her case pre-dated the Equality Act, and it is hard to see any change in the law to ban dual discrimination affecting the outcome now. It is even harder to see why it should: if it is unlawful to discriminate against women and against older workers, why would be ok to discriminate specifically against older women?

The rules on third-party harassment fall of the same category, in that they pre-date the Equality Act by many years. These derive from the famous "Bernard Manning" case in 1996 when a black waitress at a hotel, in which Bernard Manning was entertaining the punters, was subject to that racist taunts from the Mr Manning at the microphone. On the facts, this harassment was foreseeable (!) and the Hotel was found liable. This was, in fact, an application of the normal rule that employers have a duty of care to their staff, but a repeal of the relevant section of the Equality Act would prevent such claims being brought in future. This measure is just for consultation at present, and it may be those consulted have more sympathy for the waitress than the hotel.

The major regulations on business, left untouched in the budget, are the TUPE Regulations – the Transfer of Undertakings (Protection of Employees) Regulations 2006. First introduced in 1981, these regulations have been a thorn in the side of businesses for many years. The laudable aim is to protect employees when a business changes hands, but the reality is that employers taking on that new or failing businesses, and growing by acquisition, end up with a patchwork of terms and conditions for their staff which last for years and are irremovable. With many public functions being outsourced to private companies, particularly in the care and housing sectors, these regulations are a real discouragement to the privatisation process. There is at least plenty of fuel left for a bonfire of regulations.

Please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351 for all employment advice.

Income Splitting - Another HMRC Attack

A case involving a 'multiple shares' company, in which different classes of shares were created, with different rights and varying dividends paid to the shareholders over time, illustrates the baleful look that HM Revenue and Customs (HMRC) give to such schemes.

A husband and wife had set up the share structure when they bought a business, each of them investing half the money required. The agreement was that in return for her investment the wife would receive far fewer 'A' shares than her husband (who had day-to-day control over the business) and not be in a position of responsibility in the company. However, she stood to receive far larger dividends than he did, because she was also issued with 'B' shares which could (and in the event did) receive dividends in their own right. The position was complicated by the fact that the dividends were paid to her on the understanding that she would pay them across to her husband. The dividends she passed across were used to repay loans (for which they were both jointly liable) taken out to purchase the business.

HMRC argued that the arrangement was 'income splitting' and the effect was to set up a 'settlement' for the wife. Accordingly, various Income Tax assessments were raised to assess the wife's income as if it were her husband's.

The court's decision upheld HMRC's argument, but only in part, the judge ruling that there was nothing gratuitous in the issue of the 'B' shares on the basis that the wife's investment warranted more than they were worth in return.

As a result, the net gain to HMRC is about £6,000 in extra tax – considerably less than originally sought.

The case does show, however, that HMRC will seek to apply legislation relating to settlements if it suspects income splitting, and illustrates the wisdom of making sure that where various classes of shares are created, this is done with the benefit of expert advice.

HMRC have recently announced their intention to appeal against the court's decision.

We can advise on all aspects of corporate share structure and shareholders' agreements. Contact Roger Sands on 01752 292316 or more advice.

Happy (NI) Holiday!

HM Revenue and Customs have now published a Technical Note confirming the terms that apply to the National Insurance (NI) 'holiday' for new businesses, introduced on 6 September 2010.

For the NI holiday to apply, the new business has to have been started after 22 June 2010 (Budget Day) and by 5 September 2013. Certain types of employment (e.g. nannies) do not qualify, nor do businesses which are in Greater London and the South East (see the Technical Note for precise details).

The NI holiday does not apply to employee contributions, but only to the employer's contributions. It lasts for each employee for one year from the day on which they are first employed. The maximum NI that can be avoided is capped at £5,000 per employee.

The NI holiday will reduce the cost of employing new staff by approximately ten per cent, so is a factor to consider if you are thinking of setting up a new business.

For all employment law advice please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Former Partner Not Entitled to Share of Property

A woman has failed in a £680,000 High Court bid for half the proceeds of the sale of a business she helped to run, following the breakdown of a partnership. The claimant valued the business at £1.36 million and claimed 50 per cent of that valuation.

Her former partner, Trevor Miller, was the owner of The Old Rectory in Sprotborough, Doncaster, a building of historic interest and the childhood home of World War II fighter pilot Sir Douglas Bader.

In 2004, a relationship developed between Mr Miller and the claimant, Jan Hopton. The couple decided later that year to renovate the property – which had fallen into disrepair – and to run it as a guest house. Mrs Hopton was able to dedicate much of her own time to planning and designing the new look and to organising the renovation works. She offered to put some capital into the project but, in the event, the works were paid for entirely by Mr Miller, at an estimated cost of £120,000.

The guest house duly opened for business in April 2005 and achieved considerable publicity due to the efforts of Mrs Hopton. Shortly afterwards, the business was awarded a Diamond Rating by the Tourist Board.

Although both parties agreed that there was a business partnership in operation, no written agreement was ever made. A draft document had been discussed with their respective solicitors but never signed. In August 2005, there was an argument over the draft agreement and the couple came to blows. The police were called and Mrs Hopton left. Mr Miller continued the business thereafter without Mrs Hopton.

In October 2008, Mr Miller sold the property for £800,000 inclusive of fixtures and fittings, and annual accounts were presented to that date. Mrs Hopton considered that these accounts underestimated the profits, which she estimated at £235,352 based on 80 per cent occupancy of 4 rooms and 100 per cent occupancy of the conference room. Mrs Hopton also claimed £500,000 for ‘goodwill’. In the opinion of the High Court Judge, her estimates were ‘quite simply wholly unrealistic’.

It was determined that the partnership had begun at the opening of the business in April 2005 and was terminated shortly after Mrs Hopton had left the premises, by the end of September 2005. Both parties had attempted to initiate a reconciliation and these attempts had failed. Moreover, their solicitors had agreed to final accounts being drawn up to this date.

The goodwill was estimated by the judge at £20,000, based on a simple multiple of the annual profits and not taking account of the improvements to the property. Given that Mr Miller had funded the improvements and there was no evidence that the property had been transferred to the partnership, the property remained his alone.

When the goodwill was added to the assets declared in the accounts, this brought the total asset value of the business to £29,682. Mrs Hopton was awarded £20,000, based on a 20 per cent share of the post-dissolution profits for the period until the business was sold, plus a share of the asset value, in proportion to her estimated capital involvement in the business.

This case provides a clear example of why prospective business partners should make no financial or other commitment before a proper written partnership agreement is in place. Contrary to popular belief, such agreements are especially important in a ‘family’ context as dissolutions of business relationships in such circumstances tend to be more highly emotionally charged than those formed at arm’s length.

For more information and advice, please contact Roger Sands on 01752 292316.

Exclusion Clauses Fail to Protect IT Consultants

Clauses limiting liability under contracts have always been contentious, so a recent decision is to be welcomed because it sets out clearly the limitations which apply to exclusion clauses.

The case involved GB Gas Holdings (Centrica) and Accenture, which had a contract to implement an IT-based billing system for the gas supplier.

In the event, there were many problems with the system and GB sought restitution for its consequential losses. Accenture resisted paying compensation, on the basis of a limitation clause in the contract.

This sought to exclude:

• loss of profits or of contracts arising directly or indirectly;
• loss of business or of revenues arising directly or indirectly; and
• any losses, damages, costs or expenses whatsoever to the extent that these are indirect or consequential or punitive.

Losses for which restitution was sought (amounts claimed in brackets) included:

• loss of gas distribution charges resulting from the unreliable transmission of usage data (more than £18 million);
• compensation paid to customers, which included ex-gratia payments to preserve goodwill (£8 million);
• additional borrowing charges (£2 million);
• costs of chasing debts not correctly due (just under £400,000); and
• other costs (more than £100,000).

The court ruled that none of the above losses (including the ex-gratia payments) was excluded by the limitation clause.

If you are entering into any substantial contract, we can advise you on how best to minimise your commercial risk. Contact Roger Sands on 01752 292316.

Disability-Related Discrimination - Landlords and Tenants

One of the changes made by the Equality Act 2010, the main provisions of which came into force on 1 October 2010, is to make it easier for a claimant to establish a case of 'disability-related discrimination', which was made more difficult following the decision in London Borough of Lewisham v Malcolm. In that case, the House of Lords ruled that a disabled tenant who was evicted from his flat for breach of the terms of his tenancy agreement (he had sub-let the flat in contravention of the lease terms) had not suffered discrimination despite the fact that he suffered from schizophrenia. The Court ruled that the Council, which was unaware of his condition, would have treated any other tenant the same way.

The Act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that a person discriminates against a disabled person if they treat them unfavourably because of something arising from, or in consequence of, their disability, with no requirement for a comparator. In circumstances similar to those in Malcolm, a landlord would have to show that the treatment of a disabled tenant was a 'proportionate means of achieving a legitimate aim' in order to defeat a claim of disability discrimination against them. The Act does, however, provide a defence where the landlord can show that it did not know, and could not reasonably have been expected to know, that the tenant had a disability.

The Act also contains a new right for disabled tenants of residential or mixed-use premises, whereby they can request that the landlord make physical changes to the common areas of a building, such as hallways and stairs, in order to meet their needs, where such changes are reasonable.

In such circumstances, the landlord and the disabled person must agree in writing the rights and responsibilities of each of them with regard to the adjustments being made. The agreement must include the responsibilities of each with regard to:

the cost of any work to be undertaken;
other costs arising from the work; and
the restoration of the common parts to their former condition if the disabled person stops living in the premises.

The landlord can insist that the disabled person covers the cost of the adjustments, and of any restoration work should they vacate the premises.

For all Landlord and Tenant advice please contact Clare Magill on 01752 292354 or Cindy Rai on 01752 292358

Court of Appeal Supports Right to Make Environmental Challenge

A decision by the Court of Appeal to grant a protective costs order in favour of objectors to a development on the site of Hampton Court railway station should make it easier for those objecting to developments on environmental grounds to bring their cases to court. The case was brought by an architect with a special interest in Hampton Court and was against the local council, which had granted planning permission for the development.

The Court's order limited the architect's liability for legal costs to £5,000, and those of the council to £35,000, the intention being to prevent the cost of bringing a challenge becoming prohibitive for a person of ordinary means.

The decision makes it clear that the Court supports the principle of making it possible for the public to challenge developments on environmental grounds.

For more information and advice please contact Clare Magill on 01752 292354.

Communications Needed to Understand the 'Factual Matrix' are Admissible

'Without prejudice' communications, made when negotiating legal disputes in order to aid agreement, are not normally admissible in court. The idea behind them is to allow the parties to explore possible areas of agreement and make suggestions and admissions which they would not be willing to admit to in court.

A recent case shows, however, that just heading a communication 'without prejudice' does not offer blanket protection from disclosure.

The Supreme Court ruled that facts communicated in without prejudice correspondence, which would be admissible but for the without prejudice rule, could be admitted in evidence in a subsequent dispute to which they were relevant, provided that their disclosure was appropriate in order to understand the circumstances surrounding the matter and served as an aid to the construction of the agreement reached.

Although it may seem that this makes it risky to rely on the precept that disclosures made without prejudice will remain undisclosed, the ruling made it quite clear that the disapplication of the rule would not be extended beyond evidence necessary to explain the 'factual matrix'.

Contact Roger Sands on 01752 292316 for advice on all aspects of business law.

Collective Redundancy Consultation - Court of Appeal Seeks Clarification

The Court of Appeal (in United States of America v Nolan) has sought guidance from the European Court of Justice (ECJ) as to the point at which the obligation to consult arises under Directive 98/59/EC, the Collective Redundancies Directive.

This issue has caused problems in the past and clarification will be welcome. Whilst the Directive provides that an employer should begin consultations when 'contemplating' making collective redundancies, this duty is given effect in domestic law – under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) – as being a duty to consult when an employer 'proposes to dismiss' employees as redundant.

The question arose in this case following a decision by the Secretary of the US Army to close a US Army base in Hampshire, which resulted in the redundancy of some 200 civilian employees. One of the employees, Christine Nolan, brought a claim on behalf of the redundant employees for compensation by way of a 'protective award' under TULRCA on the ground that the USA had failed to consult with representatives of the civilian workforce in accordance with its obligations under section 188. She argued that the consultation period was far less than the 90-day period required and, in particular, that there had been a failure to consult before, and about, taking the operational decision to close the base.

The Employment Tribunal found that no meaningful consultation over the closure of the base, and the redundancies this would involve, had taken place and awarded Mrs Nolan a 30-day protective award. The Employment Appeal Tribunal upheld this decision, relying on the decision in UK Coal Mining Ltd. v National Union of Mineworkers that where closure and dismissals are inextricably linked, the duty to consult over the reasons for the closure arises.

The USA appealed to the Court of Appeal on the ground that the more recent judgment of the ECJ in a Swedish case (Akavan Erityisalojen Keskusliitto Alek RY and others v Fujitsu Siemens Computers) is authority for the proposition that, upon the true interpretation of the Directive, the consultation obligation is not triggered by a proposed business decision to close down a workplace but only arises at the later stage when the decision has been made and the intention to make the employees redundant has been formed.

The Court of Appeal chose not to venture further views on the correct interpretation of the Directive, concluding that it could only decide the appeal with the benefit of further guidance from the ECJ.

This is an important issue as employers need to understand the exact nature of their consultation obligations in such circumstances. We will keep you up-to-date on any developments.

For all employment advice please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351.

Council Obliged to Oppose Unauthorised Development

When a development plan is passed which should have been subject to an Environmental Impact Assessment (EIA) but was not, does the granting of a retrospective consent for EIA development have force or is the planning authority obliged to take action against an unauthorised EIA development?

That question recently came before the Court of Appeal when an objection was raised against the retrospective granting of consent for an EIA development of a glassworks in Chester.

The Court heard that it was accepted that the development was an EIA development. It agreed that, in principle, retrospective planning permissions could be granted in such cases.

However, such permission could only be obtained by an action to oppose an enforcement notice against the unauthorised development. Local authorities are, in the Court's view, obliged to serve enforcement notices when unauthorised EIA developments occur. Failing to do so would allow unauthorised EIA development to take place 'by the back door' and failing to commence action would eventually render the development immune from enforcement proceedings.

For more information and advice please contact Clare Magill on 01752 292354

Assured Tenancy Changes - Information for Landlords

On 1 October 2010, the threshold rent for the 'assured tenancy' regulations to apply to a property rose to £100,000 per year. The change affects both new and existing tenancies. The previous limit, which had remained unchanged for more than two decades, was £25,000.

An assured tenancy has rights which it has always been considered inappropriate to grant to tenants of luxury properties, but, with the passage of time, some large but ordinary properties fell into the 'exclusion zone' because the gross rents exceeded £25,000. Most of the tenancies affected by the change will now be assured shorthold tenancies (ASTs).

The implications for landlords are:

Any deposit received under an AST (including deposits in connection with renewals of tenancies) must be dealt with via one of the approved tenancy deposit protection schemes;

The form of notice to quit changes under an AST and the landlord is required to serve a minimum of two months' notice on the tenant at the end of the term or at a break point in the lease, regardless of the lease terms; and

The tenant is also entitled to a minimum of six months' tenure: even if the lease term is for a shorter period, a landlord cannot recover possession of the let property until the expiry of six months.

There are other significant changes which apply to 'pre-1997' common law tenancies (which will be few in number) and some disposals of tenanted properties.

Lastly, there is an 'accelerated possession procedure' which applies to ASTs and which will become more commonly available.

Further information can be found at:-

http://www.communities.gov.uk/housing/privaterentedhousing/annualrentalthreshold/

For advice on all aspects of landlord and tenant law, contact Cindy Rai on 01752 292358.

Holiday Chalets

In March 2010, the High Court decided that a lease of a holiday chalet is protected by the Landlord and Tenant Act 1985 which, in particular, protects holiday chalet owners against claims for excessive service charges. It means that the site owner must consult with the chalet owners as to what works he should carry out, and when, and at what charge. The chalet owner can apply to the Leasehold Valuation Tribunal in the event of a dispute.

Fore more information and advice please contact William Duncan on 01752 292362

Compensation Culture?

Say something often enough and people begin to believe it. Humphrey Bogart never said 'Play it again, Sam' in Casablanca yet it hasn't stopped people everywhere insisting that he did. Not to worry.

But sometimes wrong perceptions may be harmful.

That we live in a 'compensation culture' has been stated with such frequency in the past decade that few of us now doubt it exists. But does it? Recently headlines have appeared describing this as 'a problem of perception rather than reality' and nothing more than 'an insurance industry myth', encouraging us to reassess whether such a culture exists at all. The finger of blame has been pointed variously at a nanny stte, scam-artists and greedy lawyers. As a consequence, some people have hesitated to seek legal redress when they suffer loss at the hand of another motorist, an employer or a public body, fearful of being labelled as somehow lacking moral fibre or, worse still, a fraudster. The reality is of course somewhat different.

The basic principle of compensation is simply to return the victim to the position he or she occupied before an accident: it is not to squeeze a windfall out of someone else. Large awards will inevitably attract publicity, but are only made when an individual has suffered a significant loss: sometimes permanently life changing. Even when the physical effects of a car accident or an injury at work are just temporary the short term hardship created by lost independence, transportation and income are known to cause domestic mayhem which can have repercussions for many months or even years.

Notably the last Parliamentary review of the subject revealed that following the introduction of conditional fee agreements - known to most of us as 'No Win, No Fee' - the number of personal injury claims being presented had actually fallen. So it seems that although such arrangements are somehow portrayed as the dark under side of the legal profession, it has not turned out to be license for unrestrained avarice. Quite the contrary.

A culture of compensation can be traced back at least 3500 years, when it was included within the Mosaic Law found in the earliest bible writings. Since then it has been enshrined in virtually every subsequent law code. So who stands to gain from this recent crusade?

Some suggest the insurance industry has a twofold interest in promoting the idea. As already stated, the perception of such a 'culture' discourages genuine victims from seeking compensation at all, or perhaps influences others to accept a modest settlement so as not to cause any fuss. Additionally - and less obviously - it may also be serving to persuade Councils, companies and lowly motorists of the need for additional protection, and so they keep forking out ever higher premiums.

If this is so, the irony should not escape us. Was everyone to stop seeking compensation when suffering loss or injury, there would be no need for insurance at all. Do golden eggs and geese spring to mind...?

For more information, please contact Paul White on 01752 292263.

Declaration of Trust

You are in a relationship and you have decided that you want to buy a home together. You are putting in all the money for the deposit as your partner has little by way of savings. How do you protect yourself and your money should your relationship break down or should you die?

Your son or daughter is newly married and is desperate to buy their first home but is struggling to raise a large enough mortgage. You have some spare savings and would like to help, but how can you ensure that you will get your money back if their marriage does not work out?

Both these problems and many others can be resolved by all interested parties entering into a Declaration of Trust. A Declaration of Trust is, amongst other things, a document which shows clearly how much of the value of the property is owned by whom. A Declaration of Trust can record the contributions made by each of the parties and the share of any future proceeds of sale which each of them will receive.

It is important to protect everyone concerned by setting out at the outset, everyone’s position. It is much more costly and difficult to unravel the reality of a situation once a relationship breaks down and you will probably not get back what you are entitled to.

A Declaration of Trust can also include as much or as little information as all the parties wish. For example it can confirm:-

Who will pay the mortgage payments and all the domestic outgoings or in what shares the payments will be made;
Who may have the exclusive right to live in the property;
Who will be responsible for the cost of carrying out any necessary repairs;
What will happen if the relationship between the parties fails and one person wants the property sold or what will happen if one of the parties should die.

A Declaration of Trust is a document which records the agreement of the parties. It cannot be brought to an end unless everyone agrees or on the death of one of the parties unless the document states a contrary intention. Without a Declaration of Trust, there may not be any evidence that the actual interests of the parties are different from the interests which are recorded in the Legal purchase documents.

Why leave it to chance? It is easy to assume that it will never happen to you but everyone knows someone who has endured some sort of family dispute and next time it could be you. By advance planning and making a Declaration of Trust, there is at least certainty about the property at a time when so many other things may be unclear.

For more advice please contact Gillian Foster on 01752 292301

Family Legal Aid Cuts Fatally Flawed

Government proposals set to create misery and administrative chaos at taxpayer's expense.

Ill-considered, rushed and draconian Government proposals to cut legal aid risk creating devastating consequences for families and children.

Even some victims of domestic violence could be denied legal help, according to a local family law expert The coalition government consultation on legal aid reform closes on Monday and Philip Thorneycroft, Head of family law at local firm Wolferstans claims that the proposed cuts could also create spiraling costs for the taxpayer and create chaos in the family court system.

Mr Thorneycroft, who is a also a committee member of Resolution in Devon said: 'The Government's deeply-flawed proposed cuts could spell the end of family legal aid in England and Wales. They would certainly be a hammer blow for huge numbers of families and children, creating a society in which it is virtually impossible to gain free legal help when going through the pain of divorce and separation.

'The Government should shelve these quick-fix proposals, and take a more considered, constructive approach. That includes fully joined-up thinking with its own on-going Family Justice Review. Otherwise the Government risks creating an expensive mess that will cause misery for huge numbers of families and children.'

Resolution's major concerns include the fact that large groups of vulnerable people will no longer be eligible for legal help, including people wanting to divorce or whose partner wants to divorce them. The only option available to families who still qualify for legal aid will be mediation, which is not suitable for all cases.

'A fatal flaw in the government's proposal to only fund mediation to separating families is the fact that it requires both people to be willing to take part.' As a trained mediator and a collaborative lawyer I am always encouraging Clients to look at alternative ways of dealing with their problems rather than going to Court - said Mr Thorneycroft . However iIf one parent is denying contact to another, or refusing to be reasonable about money they can simply refuse to attend mediation.

'The only option for those then left suffering injustice is to give up, or to represent themselves in court. No easy task at the best of times, let alone at a time of high emotional stress,' said Philip Thorneycroft.

Other large groups of people in need - including parents who need legal help in tracing or arranging contact with their children and cohabitants at risk of losing their home will also no longer be eligible for legal aid, except when there has been recent domestic violence.

For such people the Government is using a definition of domestic violence that is needlessly and unhelpfully narrow, leaving people suffering domestic abuse particularly vulnerable and possibly having to represent themselves against their abuser in court.

Other key concerns are that all legal aid will only be accessed through a single government telephone helpline - a proposal that could have a disproportionate impact on ethnic minorities, young people and women and needs further thought and consultation.

Mt Thorneycroft also says that the Government's proposals could be the final nail in the coffin for many legal aid providers, leaving too few lawyers able to help the small numbers of vulnerable people who would still be protected by family legal aid. This has been experienced in Cornwall where clients have to travel a considerable distance to obtain help from a legal aid provider. Mr Thorneycroft confirmed that he was aware that a number of firms in Plymouth had given up taking on legal aid cases in view of the anticipated changes.

The reduction of family legal aid cases will inevitably result in large numbers of people representing themselves in family courts, a problem that the Government admits it has not assessed. Increased numbers of people representing themselves in court will clog up the family court system, with cases taking much longer than at present.

Mr Thorneycroft confirmed that a number of firms in Plymouth were actively assisting Resolution in campaigning to persuade the Government of the urgent need to review its controversial proposals, and ensure that legal aid genuinely does provide access to justice for the vulnerable.

For information and advice please contact Phil Thorneycroft on 01752 292310

Employment Tribunal Changes

Business Secretary Vince Cable, who recently complained that there seemed to be a state of Maoist revolution across government, today announced consultation on what will amount to fundamental reforms of the employment tribunal system. Under the new proposals, employees will need two years' service before they can bring a claim of unfair dismissal, and if they do bring a claim they will need to pay of fee - rumoured in the press to be up to £500 - for the privilege. ACAS will be required to attempt mediation in all cases, and if the case proceeds to a hearing it is likely now to be heard by an Employment Judge, sitting alone, rather than by the traditional panel of three - a judge and two non-lawyers drawn from the employers and employees side of industry.

There is widespread agreement that the present system is not working well. Employers feel that they can be held to ransom; claims are brought by ex-employees which force them to seek legal advice, the cost of that legal advice cannot be recovered from the employee if the claim is defeated, and so all too often they offer a few thousand pounds in compensation to avoid an expensive hearing, thus encouraging more claims.

The alternative, time-honoured system of the civil courts, whereby costs are awarded to the successful party, would deter the vast majority of employees from bringing a claim, most of whom are out of work and in financial difficulties, and there is hardly any point having a right not to be unfairly dismissed or discriminated against if there is no remedy available.

The new fee proposal is therefore an attempt to deter speculative or frivolous claims, while preserving reasonable access to justice for employees. In combination with the compulsory use of ACAS, it aims to help reasonable parties avoid legal costs by straightforward negotiation. A small business will still feel the need for legal representation at a hearing, but should be more confident about negotiating a deal via ACAS at an early stage. They may want some legal advice on the merits of the claim, but in many cases will handle the discussions personally. That, at least, is the theory. Much will depend on how active and effective ACAS is able to be in resolving disputes early on. At present ACAS conciliators contact the parties and offer their services in trying to resolve the dispute, but there is no obligation to use them and all too often they are only contacted as the hearing date approaches. A dramatic change seems unlikely however, since at present neither side can recover legal costs, and so they already have a huge incentive to reach agreement, and the services of ACAS are available if they wish.

The two-year qualifying period for unfair dismissal is an altogether different type of change. Far from being a mere procedural reform, this is a major change to the most significant legal right enjoyed by employees. Without it, staff can be given notice on a whim. In practice this rarely happens, but new joiners are usually the first to be shown the door when redundancies are required.

The government's consultation paper suggests that this should result in between 3,700 and 4,700 claims each year, i.e. less than 5% of claims. This prediction is based on a comparison with data from the Labour Force Survey and a 2008 survey of Employment Tribunal Applications. How this figure has been arrived at is unclear. Those latest figures from the Labour Force Survey go back to 2002, when 20% of employees were in their first year of service and 13% in their second year. In these more mobile times, the average time employees stay in a job is now only about 3 years, and so the new rule may significantly reduce the employment protection of a large swathe of the workforce. Some sectors of employment like call-centres or retail have a higher turnover of staff, depriving many more of legal protection, and there is a particular difficulty for young people starting their careers. This is when people move jobs more frequently and they will now be at increased risk of selection for redundancy.

The significance of all this goes well beyond the impact of tribunal statistics. There is a widespread concern about lack of job security, and even the most conscientious employee feels a sigh of relief at passing the one year mark. Two years is a long haul, and the arbitrary nature of the change is bound to provoke concern. The rationale is that employers will be more willing to offer employment if it is easier to dismiss, but a year is plenty of time to assess someone’s suitability for employment. Many managers will feel that this is good for business, or at least those managers with two years' service.

Please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351 for all employment advice.

What is Chancel Repair Liability?

Did you know that as a homeowner you could be at risk of having to pay towards your local Church’s repair costs? Most people now buying a home have to obtain insurance to protect them against this risk. Therefore, if you have not recently moved home you may not be aware of this risk.

Chancel repair liability is a liability which, if arising, requires homeowners to be financially responsible towards repairs to their parish church. However, the liability is limited to repairs needed to the chancel of the church. (The chancel is the area of the church located at the East end and usually containing the choir stalls and altar). Further, it only relates to those repairs required in keeping the chancel 'wind and water tight and maintaining essential fittings'. However, the repair costs demanded could still be significant if the liability affects you. The liability could arise if a private individual acquires land which was once Church land.

How do I know if my property is affected?

If your property is nowhere near a church, chancel repair liability could still arise. This is because, historically, rectorial land was not necessarily always situated close to the church itself. Therefore, the property's location is not a sufficient indicator. Further, there is no central record which lists affected properties either. A chancel repair liability search can be undertaken, but, currently, it can be cheaper to simply proceed in obtaining insurance to protect yourself anyway. Your Solicitor can obtain a chancel repair liability indemnity insurance policy quickly and cheaply for you. A one off premium is payable and the policy document will be sent to you for you to simply keep in a safe place should it ever be needed.

We can obtain a chancel repair policy for you for a fixed legal fee. There are no forms to fill in and the policy document can then be stored with your deeds.

If you are interested in obtaining a policy, or, for more information contact Sue Williams on 01752 292343 or Pauline Anning our at Plymstock Branch on 01752 495990

More than 800 Serious Incidents Occurred at Hospitals in the South West

More than 800 serious accidents and errors that occurred during a two year period have been identified by South West Hospitals.

During the period between January 2009 and October 2010, 804 'serious untoward incidents' (SUIs) occurred at hospitals in the South West, of which 109 were reported by Plymouth Hospitals NHS Trust.

The reported SUIs include incidents where there were:-

1. Surgical errors

2. Treatment delays

3. Maternity service problems

4. Hospital infections

5. Confidentiality breaches

Simon Parford, Partner and Head of the Clinical Negligence Department said:-

'It is always of great concern to patients to learn that such serious incidents which could and should have been avoided have occurred. However, the disclosure of this information does not surprise me as we are contacted by patients to investigate dozens of similar claims arising from treatment at hospitals throughout the South West every year.

The consequences of such incidents can be devastating both for the patient and their families and in appropriate cases, we are able to recover substantial damages to help compensate for what has happened and to provide for their future needs.'

Please contact one of our Client Co-ordintors if you have a negligence claim you wish to pursue.
Ann Hooper 01752 292374 or Debbie Miller 01752 292364

Maternity Leave for Fathers

From 3 April this year our embattled politicians will be at risk of a new danger, once again entirely of their own making. One of the trickiest difficulties they have had to contend with in recent years has been the obligation to take paternity leave whenever a new offspring arrives.

Tony Blair, who introduced the right to statutory paternity leave and pay, felt obliged to take two weeks away from the press of business when baby Leo was born. His example has been widely followed, most recently by David Cameron and Ed Miliband, who have absented themselves from the office, officially at least, for the required period of two weeks. Anecdotal evidence suggests that they may have been about the only ones. The right to one or two weeks' paid absence has not proved enormously popular, which is understandable given that the rate of pay is the same as statutory maternity pay (rising to £124.88 per week from April) and is difficult for families to manage with both parents off work.

From April however the awful possibility looms that they may be entitled to months and months of the stuff. New Regulations provide that the father (or at least the mother's partner, but I will stick to father for simplicity) can take up some of the mother's entitlement to maternity leave and pay. This may be very welcome, particularly in households where the mother is the major earner. It is also inherently fairer and less sexist.

At present the law requires employers to grant qualifying mothers a full year off work for maternity leave. Dad, by contrast, has his two weeks. No surprise then that mothers tend to take on the bulk of the childcare responsibilities. That may be the traditional arrangement, but the existing law tends to reinforce it, and the new arrangements aim to shake things up a bit.

The rules are rather complex and bureaucratic, so let us take an example. Mother works in a high- flying job where she wants to take as little time off as possible after baby arrives. She starts her maternity leave four weeks before the due date. Twenty four weeks later (twenty weeks after the birth) she returns to work and father takes up her rights to pay and leave. Father will of course work at a different company altogether, who may be surprised to hear that he is exercising his rights to 'additional paternity leave'. As long as he has given them 8 weeks' notice he can take up to 26 weeks off work. In fact, those 26 weeks can be taken as any stage after the 20 week point from the birth, up to the child's first birthday.

And there's more. Mother had not used up her full entitlement to maternity pay, which now amounts to 39 weeks in total. When she returned to work she was still 15 weeks short, so Father's can claim from his employer this 'additional statutory paternity pay'.

It remains to be seen how popular this new right will be. My guess is that despite their well-known preference for kissing babies few male politicians will be taking advantage of the extra six month's off.

Please contact Eoin Fowell on 01752 292350 or James Twine 01752 292351 for any employment related matters.

Depression and the Disability Discrimination Act

Whether or not someone with a mental impairment is protected by the Disability Discrimination Act 1995 (DDA) depends on whether the illness has a substantial, adverse and long-term effect on the individual's ability to carry out normal day-to-day activities and on whether or not the condition is likely to recur.

According to a survey carried out by the organisers of Time to Change, a campaign to end discrimination faced by people experiencing mental health problems, 92 per cent of Britons feel that it would harm their job prospects were they to disclose a mental health condition to their employer or prospective employer. This often makes it difficult for sufferers to avail themselves of the protection afforded to them by the DDA.

A recent case has clarified the approach to be taken in determining whether a mental condition is a disability under the DDA (J v DLA Piper UK LLP).

A lawyer, referred to as 'J', claimed that in 2008 DLA Piper withdrew its offer of a job after she disclosed to its Human Resources Department that she had a history of depression. DLA Piper claimed that the job offer was withdrawn because of a freeze on recruitment.

On a preliminary issue, the Employment Tribunal (ET) was not convinced that J had suffered from clinical depression in the past and found that she did not have a disability for the purposes of the DDA at the time in question. On appeal, however, the Employment Appeal Tribunal (EAT) ruled that the ET was wrong in failing to take into account the evidence of J’s GP regarding her mental condition and its decision that her past depression did not amount to an impairment was perverse. This was material because it affected any decision as to whether she had a disability that was likely to recur without the necessary treatment.

In the EAT's view, in cases where there is a dispute about the existence of an impairment, there are two questions for the ET to answer:

1. Does the claimant have a mental or physical impairment? and
2. Does this have an adverse effect on that person's ability to carry out normal day-to-day activities?

Whilst it is good practice in every case for the ET to state separately its conclusions regarding each - and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it - in reaching its conclusions, the ET should not proceed by 'rigid consecutive stages'. It makes sense to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

The case was therefore remitted to be heard by a fresh ET.

Contact Eoin Fowell or James Twine for advice on any employment law matter.

Competition Law Invalidates Confidentiality Clause

Businesses often seek to protect themselves by inserting confidentiality clauses and anti-competition clauses in their contracts of employment and commercial agreements, so that if an employee leaves or the contractual relations end, the potential commercial damage to the business is minimised.

However, the drafting of such clauses is fraught with potential pitfalls because the courts will not enforce a clause which is too widely drawn.

In a recent case, the former director of a company (now in liquidation) which had entered into an agreement with an office machine company went to the High Court to argue that his erstwhile employer's confidentiality agreement had been breached by the other company. The office machine company claimed that the agreement as it had been written was in breach of competition law and was thus invalid. The purpose of the court hearing was to determine whether the case was arguable.

Although the Court found that the former director's claim was arguable, it ruled that part of the agreement did breach competition law, because it went beyond what was reasonable to protect his former employer's confidential information and was without limit as to its area or time of application.

An agreement which breaches competition law will not be upheld by the court and in some circumstances (where there are anti-competitive effects which distort market conditions) could lead to action being taken by the Office of Fair Trading. For advice on drafting all commercial agreements, contact Roger Sands on 01752 292316.

Franchise Disclaimers Fail to Persuade Court

Franchise agreements are well known for being the cause of disputes between franchisee and franchisor, so if you are considering taking on a franchise, it is important to take professional advice first.

Recently, well-known franchisor Kall Kwik UK Ltd. was in court after a new franchisee sued it because estimates provided by Kall Kwik for refitting costs turned out to be much lower than the actual figure - a difference of between £15,000 and £30,000.

Kall Kwik had used the low estimate twice, including in a cash-flow forecast. This had a disclaimer, which relieved Kall Kwik from responsibility except in the case of fraud and which advised the user to obtain independent verification of its contents.

A second disclaimer was to be found in the franchise agreement itself. This excluded liability for misrepresentation in inducing the franchisee to enter into the agreement, but not for the performance of the agreement itself.

The court found Kall Kwik was liable for the franchisee's additional costs because the franchisee had suffered a financial loss which was reasonably foreseeable and which arose as a consequence of a breach of the duty of care that Kall Kwik owed to the franchisee.

Please contact Roger Sands on 01752 292316 for more advice.

Duty of Care Law to be Redefined

For a claimant to succeed in an action in tort (civil wrong), the person against whom the claim is being made must owe them a 'duty of care'. The purpose of this rule is to prevent claims being made against persons who are remote from the claimant and thus could not foresee the loss that might result from their actions.

This doctrine is important in the building industry, since work is often subcontracted down through a chain of contractors.

In a recent case, a sub-subcontractor went to court seeking to prevent itself from being joined in a claim brought by the firm which had originally suffered a loss. The situation was that firm A claimed against B, which had subcontracted the work to C, which had subcontracted it to D. D argued that it owed A no duty of care with regard to its substandard workmanship and went to court to argue that the claim against it (it was joined in the claim by B) should be struck out.

It argued that it had no contract with A and that A’s loss was purely economic. Established law is that in the absence of a 'special relationship of proximity' the law of tort imposes no duty of care to safeguard a claimant against economic loss. This principle prevents the chain of liability from becoming (potentially) infinitely long.

The Technology and Construction Court declined to rule that the claim against D could not be brought.

The other question which will be addressed in this case is that of ‘complex structure’. Established case law provides that even where there is a duty of care, the resultant economic loss can only be claimed for with regard to 'other property', not with regard to the object itself. In the case of a building, however, is the object the building as a whole or is the building a complex structure made up of individual components? If the latter, then damage to one part allows a claim in tort to be made in relation to the other parts.

In the case in point, the claim relates to insulation material which was incorrectly applied to pipework. If the court decides that the insulating material is an integral part of the building as a whole, then there will be no claim. If, on the other hand, it is ancillary equipment which is not part of the building as a whole, and therefore the rest of the building is 'other property', then the claim may be able to be made.

This case differs from most otherwise similar ones in that the claim was brought directly by the firm that suffered the damage, and the claim was brought in tort, not contract, because a claim under the law of contract would have been out of time.

The ruling of the Court may well have a significant impact on firms in the construction industry. Mr Justice Akenhead noted that the case will need to examine 'the extent of the duty of care owed by those in the position of subcontractors' where their work ‘causes consequential damage to other elements of the building'.

Contact Bill Duncan on 01752 292362 for more information.

No Break if Wrong Party Served

A recent case highlights the importance of making sure that procedural issues are dealt with correctly in the giving of formal notices.

When a tenant wished to terminate its lease, it served the relevant notice on the landlord. At least, that is what it thought it had done. The problem was that although the lease stipulated that the notice had to be served on the landlord, the property had been sold during the currency of the lease, so there was a new landlord.

The tenant considered that the notice had to be served on its original landlord as named in the lease. The new landlord considered that the notice was invalid because it had not been served on it. Judge Lewison agreed with the landlord. The previous landlord would have no interest in examining the notice, nor in communicating it to the new landlord.

The tenant had to give the notice to the current owner and the break notice was therefore invalid.

Problems such as this are easily avoidable if professional advice is taken.

Contact Clare Magill on 01752 292354 for assistance in all tenancy matters.

Procedural Irregularity Defeats Possession Application

A social landlord that failed to follow its own procedures when it sought possession of one of its properties met with a rebuff in the High Court recently.

The housing association applied for possession of a flat occupied by a woman with a 'starter tenancy' - an assured shorthold tenancy.

However, the association failed to follow its own procedures and policy when it sought possession. It informed the tenant that a second review of the decision to seek possession was available: this was not the case.

The Court ruled that the failures to follow its own procedures and policies, and evidence of procedural unfairness, made the housing association's decision to seek possession unlawful.

This case highlights how important it is for social housing providers and others to follow their stated policies and procedures when seeking possession of property.

Contact Clare Magill on 01752 292354 for all Landlord and Tenant related matters.

Second Notice Served Late Means Lease not Ended

A tenant wishing to vacate premises by terminating its lease should read the break clauses in the lease carefully and comply fully with them: failing to do so can prove to be an expensive mistake.

A recent case dealt with a dispute over a notice to terminate a lease. The Royal Bank of Scotland (RBS) was the owner of a property let to another company. The property was managed for RBS by Schroder Property Investment Management Ltd. (SPIM), the property management arm of the Schroder Investment Group.

The lease provided that if the tenant wished to terminate the lease, the landlord had to be given nine months' notice. Under the break clause, notice to terminate the lease had to be given by 3 October 2009. The lease also stated that the notice had to be served on SPIM. The notice to break the lease was duly served on RBS in September 2009, but the notice to SPIM was not served until December 2009.

The High Court held that time was of the essence in the service of both of the notices and SPIM's notice also had to be served by 3 October 2009.

The notice to break the lease was therefore ineffective.

It is essential to comply with break clauses not only in terms of any time limits but also in terms of the method by which the notice is given and to whom. We can assist you to make sure you avoid a continuing liability for a lease you wish to terminate.

Contact Clare Magill on 01752 292354

Valuer not Liable for Valuation Inaccuracy

Valuation, as any valuer will tell you, is an imprecise art. Claims against valuers for negligent valuations are therefore notoriously difficult to sustain. Recently, the court heard a claim brought by investors in hotels that a valuer had neglected to take into account a 'turnover rent'.

The turnover rent was calculated in such a way that the rent payable by each hotel increased if the turnover exceeded a certain figure, but it was in effect based on a 'rolling average' so that if the turnover was less than the target figure, the shortfall 'rolled forward' against the subsequent payments. The result was that the rent would not rise above the base level until the whole of the shortfall was made good.

When the valuer prepared his valuation, he did not take the shortfall provision into account in working out when the increase in rents was likely to occur.

Investors, who had invested in the hotels after an offering by an intermediary, claimed this was negligent, that the valuations were overstated as a result and that the valuer was in breach of a duty of care to them.

The court agreed that the valuer did owe a duty of care to the investors. However, there was no evidence that the intermediary had relied on the valuation. The intermediary had been informed about the shortfall clause and had created prospectuses which omitted parts of the valuer's valuation.

In any event, the valuation produced was within a 'reasonable bracket' of the acceptable range of valuations. Although the valuer's methodology could be criticised, the valuation was sufficiently accurate not to justify a claim.

Contact Clare Magill for advice on any commercial property law matter.

When You Agree Terms and Conditions

When you do business with someone else, it is important to agree the applicable terms and conditions - merely exchanging terms can be a recipe for dispute, as a recent case shows.

The case involved a US company, which ordered goods from a British company. Both companies used standard terms of business, which were (of course) different. In particular, the US company’s terms of business contained a clause that made a supplier liable without limit for consequential losses to the purchaser resulting from certain breaches of the contract. The vendor’s terms limited its liability in such circumstances.

The goods supplied were defective and caused a considerable loss to the US company, which then sought compensation. The defendant argued that because the purchaser had taken delivery of the goods after having been sent a notification of its terms and conditions, its terms and conditions applied. The purchaser argued that by accepting the order in its terms and conditions, those applied.

The court held that:

a contract will be formed on the most recent set of terms and conditions supplied unless the recipient objects;
acceptance of one party's terms can be inferred in certain cases by the behaviour of the other party. However, merely taking delivery of the goods would not be sufficient to justify that inference; and
where there are two 'competing' sets of terms and conditions and no agreement as to which applies, the inference is that neither does.

Accordingly, neither set of conditions applied. Because the applicable law was that of England, the provisions of the Sale of Goods Act 1979 applied instead.

'It is critical to make sure that when you form a contract, the terms of the contract are known and agreed by both parties,' says Bill Duncan.

Contact Bill Duncan on 01752 292362 for more advice.

New Employment Tribunal Fast Track Scheme

Since April 2009, the names of employers and individuals who fail to pay Employment Tribunal (ET) awards have been added to the Register of Judgments, Orders and Fines, once enforcement proceedings have been brought against them in the County Court. The Register can be searched by members of the public, banks and credit reference agencies and the move was intended to provide an incentive to settle awards on time. In the first year, details of 570 companies and individuals who have failed to make payments have been added to the Register.

Help is at hand, however, as successful claimants can now avail themselves of an extended service from High Court Enforcement Officers if the other party fails to pay an ET award. An Enforcement Officer will complete the court process and move to enforcement as soon as possible. The only cost to the claimant is a £50 court fee, to issue a writ to seize assets to the value of the amount owed, and this will be added to the sum of money owing to them.

There is a telephone advice line for people pursuing awards. The number is 0845 456 8770.

For all employment related enquires, please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Company Director Faces Massive Confiscation Order

A director of a Staffordshire refrigeration company was recently jailed for 44 months after pleading guilty to charges of false accounting, fraud and theft.

The man had been perpetrating a fraud against the company he worked for, which involved falsifying rental agreements, disposing of the company's assets and misappropriating funds. The fraud was eventually detected and the director was charged after the company had failed.

He had used the proceeds of the fraud to buy a villa in Marbella, Mercedes cars, a 47-foot yacht and a luxury home in Derbyshire.

However, the court also handed down a confiscation order of £919,482.

The courts are increasingly exercising the powers given them by the Proceeds of Crime Act to confiscate assets of criminals and to use the seized assets to compensate their victims.

Recently, two men who failed to pay confiscation orders, after being part of a VAT fraud said to have netted more than £35 million, have had their prison sentences increased by a further ten years. The two, who were part of a gang of 21 engaged in 'missing trader' fraud, now face sentences totaling 34 years and still face liability for the orders.

If you have been the victim of commercial fraud and the perpetrator has assets, establishing your losses may lead to you receiving compensation.

Contact Roger Sands for more advice on 01752 292316

Medical Mistakes Identified at Derriford Hospital

Twenty serious “untoward incidents' in which patients were left severely harmed or dead have been identified by Plymouth Hospitals NHS Trust.

These incidents, which occurred at Derriford Hospital in Plymouth, were revealed in the quarterly Healthcare Governance Report. They include incidents where:-

1. An antenatal review did not recognise high dose of anti-epileptic medication being administered and the baby was born with fetal valproate syndrome (a birth abnormality potentially including facial deformity and heart defects).

2. A swab retained following open cholecystectomy operation for the removal of the gall bladder which was discovered during emergency surgery due to a condition unrelated to the retained swab.

3. A cancelled cardiology operation resulting in death.

4. A 17 month delay in follow up appointment at the Royal Eye Infirmary resulting in the patient becoming blind.

5. A failure to provide follow-up care resulting in delay of 4 years and permanent loss of vision for the patient.

6. A possible preventable intra-uterine death.

7. An error during cardiac surgery requiring life-saving intervention.

8. An in-patient suicide.

9. A failure to recognise the severity of an illness and the patient's deteriorating condition which led to cardiac arrest, ultimately resulting in an unexpected patient death.

10. A patient found unresponsive after surgery.

11. A death following collapse and unsuccessful resuscitation, potentially due to equipment failure.

Simon Parford, Partner and Head of Clinical Negligence said:-

Please contact our Client Co-ordintor if you have a negligence claim you wish to pursue.

Should Snow Stop Pay?

Not only is the snow an immediate concern, but it looks as though we are going to have to get used to dealing with it every year for the foreseeable future. So it is worth planning to manage absence due to extreme weather conditions by making it part of your Employment Policies and Procedures as it can reduce costs and improve efficiency.

The legal position
The legal position is that if your business has stayed open despite the snow then it is your employees' responsibility to get to work. If they don't turn in for work due to the snow (and therefore don't provide work in return for pay) then, unless it says differently in their contract of employment or you have implied otherwise in practise, you don't have to pay them.

If you don't pay your employees when they are entitled to be paid they can make a claim to a tribunal on grounds of 'unlawful deduction from wages' and in some circumstances, if the underpayment is significant, they may even seek to treat it as a fundamental breach of contract and therefore grounds for constructive/unfair dismissal.

Furthermore, if you pick and choose which employees to pay and which not to pay in these circumstances you could be opening a can of worms in terms of discrimination so be careful and take advice first.

Childcare arrangements
As many schools are closing during the extreme weather conditions employees responsible for child care arrangements may request emergency leave as a statutory right. Statutory emergency leave is unpaid as a rule but if you have made other contractual arrangements or implied otherwise in practice employees in this position may claim full pay. Therefore, be sure to check the employee's contract and previous decisions in similar circumstances before refusing to pay for this type of leave.

Company shutdown during extreme weather conditions
If you close your business temporarily for whatever reason, including closure due to extreme weather conditions, this falls into the category of 'lay off'. If you have a contractual right to lay off your employees they will be entitled to 'statutory lay off pay' which is a fraction of full pay. If you have chosen not to include lay off provisions, then your employees will be entitled to full pay for the duration of the shutdown. Note that the majority of employers do not include the right to lay off in their employment contracts because it is regarded as de-motivating and can prove a barrier to recruitment.

The practical position
Refusing to pay your employees won't create much goodwill among your workforce so it may be better to pay the price and support them now so that they will return the favour when you need one (hopefully!) However, many employers cannot afford to pay employees on snow leave especially if demand for products and services has dropped at the same time.

Your options going forward
You could consider more practical and mutually agreeable solutions especially if you want to avoid setting a precedent for 'paid snow leave' each year. For example, employees may prefer to swap 'unpaid snow leave' for 'paid holiday leave' and in some cases working from home can be a practical solution.

There are a few important factors to take into account and we can insert a policy into your Employment Policies and Procedures to make sure a move to 'Homeworking' doesn't backfire on your company. The policy covers all eventualities including performance and quality issues, health and safety and equipment issues.

Whatever you decide, as a member of our HR Intelligence service you can ensure that employees know what is expected of them during these extreme weather conditions by asking us to draft a policy especially for your business. Why not take the initiative?

Remember, any change to your Policies and Procedures is included in the price of your annual membership so it makes sense to get it sorted now or even first thing in the New Year.

Log on via any of our employment pages for more support with all your employment law issues.

For all employment advice please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

When is a Breach Not a Breach?

Virtually all contracts contain provisions which allow the parties concerned to cancel the contract in the event that the other party breaches it. However, with many contracts being complex and imposing a variety of obligations of varying importance on the parties to the agreement, the courts will fight shy of concluding that a minor breach is sufficient to terminate a contract altogether.

Recently, retailer Debenhams and the landlord of a proposed new store were in dispute over their contract. It provided that the landlord would pay Debenhams a reverse premium of £900,000 in three tranches of £300,000. The first tranche was due when contracts for the lease were exchanged. That was paid. The second tranche was payable when the premises were ready to be fitted out.

The landlord had problems with the builder contracted to construct the building and informed Debenhams that the second tranche would be delayed. It proposed alternative arrangements, such as an extended rent-free period. The landlord made it clear that it was committed to the project.

When it failed to make the second payment in time, Debenhams claimed the landlord had breached the contract, relying on a clause which implied that any breach of the various obligations was sufficient to terminate the contract.

In court, Debenhams argued that the failure to pay the second tranche on time was a 'repudiatory breach of contract' and entitled them to terminate the agreement.

In the court's view, the breach was insufficiently severe to allow Debenhams to terminate the contract. The contract contained a clause which specified how interest was to be calculated in the event that a payment was made late: that was sufficient compensation for the late payment.

In this case, the court took a commonsense view of the circumstances. It is possible to specify the consequences of particular breaches in a contract where these will be of particular importance.

For advice please contact Clare Magill on 01752 292354 or Bill Duncan on 01752 292362.

Can a Landlord End a Tenancy When Terms Do Not Allow?

The Court of Appeal recently had to deal with a case which turned on a simple point- if the agreement for a tenancy purports to preclude the landlord from bringing the tenancy to an end unless the tenant falls into arrears of rent or commits another breach of the agreement, can the landlord ignore that clause and bring the tenancy to an end by service of a month's notice to quit?

In 1993, a Ms Berrisford entered into an 'occupation agreement' with a housing association to rent a flat at £89 per week. She lived there for several years, then in March 2008 she received a notice to quit, the validity of which would be unquestioned were she the holder of a monthly periodic tenancy.

In reality, the landlord did not want possession of the property, but wanted to negotiate a higher rent. This was subsequently agreed at £171 per week. However, the case proceeded because the housing association wanted to know the legal status of its rental agreements. It has (as do other housing associations) many agreements containing a clause which states (or states in similar terms) that 'This Agreement may be brought to an end by the Association by the exercise of the right of re-entry specified in this Clause but ONLY in the following circumstances:-

If the rent reserved hereby or any part thereof shall at any time be in arrear and unpaid for 21 days after the same shall have become due;

If the member shall at any time fail or neglect to perform or observe any of the stipulations conditions or provisions contained in this Agreement which are to be performed and observed by the Member;

If the Member shall cease to be a member of the Association;

If a resolution is passed unde the Association's Rules regarding a proposal to dissolve the Association

THEN in each case it shall be lawful for the Association to re-enter upon the premises and peaceably to hold and enjoy the premises thenceforth and so that the rights to occupy the premises shall absolutely end and determine as if this Agreement had not been made (but without prejudice to any right of action or remedy of the Association).

The question was, could the housing association rely on the above clause to serve a notice to quit on a tenant who did not breach its terms?

The Court ruled (by a 2-1 majority, and with LJ Aikens stating that he reached his conclusion 'without enthusiasm') that despite the clear intent and wording of the clause, the landlord was able to bring the tenancy to a close by issuing the appropriate notice and the clause did not act to prevent the landlord from so doing.

In his judgment, LJ Mummery suggested that this area of law might benefit from a revisit by Parliament, as it is clear that the impact of landlord and tenant law generally has acted to override a term that was agreed between landlord and tenant and which seems perfectly clear.

We can advise on any aspect of social housing or landlord and tenant law.

Please contact Clare Magill 01752 292354 or Bill Duncan 01752 292362.

Clear Drag-Along Clause is Binding

Getting into business is easy. Getting out of business is often where the real problems start. That is why it makes sense to have a partnership agreement (or a shareholders’ agreement if the business is a company) in place from day one.

A shareholders' agreement will normally have a 'drag-along' clause, which requires the other shareholder(s) to sell their shares to a third party wishing to acquire the whole of the business when a majority of the shareholders agree.

The decisions of the courts in cases concerning such clauses have resulted in their enforceability coming under question, but a recent case has provided relief for shareholders who may wish to rely on a drag-along clause.

It involved the owner-manager of a company who wished to acquire another company. He did not have sufficient funds to do so, so sought assistance from a private investor. They formed a new holding company for the purpose of buying out the target and the target was purchased. The two men created a shareholders' agreement, which provided that in certain circumstances the investor could require the owner-manager to acquire his shares and, if he failed to do so, the investor could sell them to a third party.

The stipulated circumstances occurred and the investor sought to invoke the disposal of his shares under the drag-along clause. The owner-manager attempted to resist the transfer of the shares. However, because the drag-along clause was very tightly worded, it was straightforward for the court to conclude that it had been complied with in full.

Such clauses should always be worded in clear and unequivocal language, so that there is no room for doubt as to whether or not the conditions that trigger the drag-along clause have been met.

For assistance in all agreements between partners, shareholders or investors, please contact Roger Sands on 01752 292316.

Competition Law - OFT Gets Tough with Directors

The Office of Fair Trading (OFT) has published revised guidance on Competition Disqualification Orders (CDOs), which are orders under which company directors are disqualified from acting as directors where the company of which they are a director is in breach of UK or European competition law.

A CDO can disqualify a director for up to 15 years if the court deems them to be unfit to act as a director. CDOs can be applied to anyone acting in a directorial capacity, no matter what their notional status in the company.

The major changes in the new guidance are:

Directors who should have known of competition law breaches, as well as those directly involved with breaches, will be potentially liable to receive a CDO;

Directors who fail to cooperate with an OFT investigation will not be offered immunity from a CDO. Those who do cooperate will be offered immunity where the company qualifies to be treated leniently; and

The OFT will be able, in exceptional cases, to apply for a CDO before judgment has been made with regard to a breach of competition law by the company, if it can satisfy the court that an offence has been committed.

The changes in procedure should ring warning bells for company directors who are aware of breaches of competition law, or suspect breaches may be being committed by their company.

If you have concerns about any aspect of competition law, please contact Roger Sands on 01752 292316.

Cumulative Environmental Effect Crucial in Planning

When planning permission is sought, the effect of the proposed development on the environment is a necessary consideration in the granting or otherwise of the permission.

The Court of Appeal recently ruled that where the granting of planning permission may have an environmental impact outside the works which are proposed in the application, this must also be taken into account.

It is the cumulative effect of a particular development that has to be assessed. Where the works envisaged by the planning permission constitute only part of the environmental impact, the whole picture must be considered: the cumulative effect of the works is a matter of fact.

This case confirms that developers considering making a planning application must give due weight to the overall impact of their plans.

For more advice please contact Clare Magill on 01752 292354

Does an Option Pass with the Lease?

In 2000, a landlord entered into a lease with its tenant and also gave the tenant an option to buy the freehold of the let property. The option agreement expired at the end of October 2004.

The tenant was a restaurateur whose business was not successful. It therefore surrendered its lease to the landlord in October 2000. It had previously assigned the option to purchase the freehold of the restaurant to another company, which subsequently took a lease over the building.

On 29 October 2004, the new tenant attempted to exercise the option to buy the premises. The owner of the building opposed this, claiming that the option could not be assigned separately from the lease.

The court examined the option agreement. This referred to the 'purchaser' and had nothing in it to indicate that it was in any way connected with the lease, it having been concluded in entirely separate documentation.

There was, therefore, no reason to conclude that the option could not be transferred to the new tenant by the old one.

The landlord also attempted to have the notice of exercise of the option served by the new tenant ruled to be invalid because the option agreement specified that a deposit of £10,000 was to accompany the notice. No deposit was sent. The option, the landlord argued, had therefore lapsed. However, the court ruled that the notice was clearly intended to create contractual relations and the option contract had within it sufficient remedies for non-compliance. The breach of contract created by the failure to enclose the deposit was not therefore fundamental – to be so, the option contract should have been specific on the point.

For Landlord and Tenant advice please contact Clare Magill on 01752 292354.

Employer Pays Price for Super Salesperson

An employer whose bonus scheme for sales staff was not tightly worded enough was recently left to count the cost after an appearance in the Court of Appeal.

The employer hired a salesperson on a contract which included bonuses for meeting sales targets. The salesperson generated sales far in excess of what was anticipated and claimed very substantial bonuses as a result.

The salesperson's contract had a clause which allowed the employer to limit the bonuses paid during the year, but this provision was not invoked during the year, despite the salesperson's sales figures running well ahead of expectations throughout the period.

The employer sought instead to rely on another clause, which allowed the bonus to be capped at 100 per cent of salary. By concession, the employer did not apply the clause strictly and allowed a bonus of 130 per cent. This, however, was still less than the employee considered was due to her.

The Court of Appeal considered that such clauses could only apply in exceptional circumstances and that the circumstances of this case were not exceptional enough to warrant the application of a bonus cap. In the absence of a more tightly worded capping clause, the bonus, which amounted to more than £100,000, was payable.

For advice on all aspects of contracts of employment and bonus scheme wording, please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351.

HMRC Set Listed Building VAT Trap

A recent case involving the VAT treatment of listed buildings illustrates a potential trap for those who convert such buildings.

A listed building which has been 'substantially reconstructed' is a zero-rated supply, which means that the VAT incurred on the 'approved alterations' is recoverable.

However, for this treatment to apply, it is also necessary that at least 60 per cent of the work carried out is 'approved alterations'. Accordingly, a building which has been gutted and rebuilt will qualify.

Herein, however, lies the problem: substantial reconstruction implies that the building has been reinstated to its former appearance and this is, in effect, a form of repair. This argues against the possibility of 60 per cent of the work involving 'alterations'.

HM Revenue and Customs (HMRC) have put forward the argument that work cannot be both reconstruction and alteration.

The case in point only considered whether the property had been substantially reconstructed, but the indications are that HMRC wish to pursue their argument at a later date, so watch this space.

This legislation has been around for a long time and this is the first case to pick up on the looseness of the wording of the sections relating to the VAT treatment of listed buildings. If HMRC are successful in their argument, it could have severe implications for developers of such properties.

For more advice please contact Clare Magill on 01752 292654

Insubstantial Non-Compliance Cannot Block Contract

A sale and leaseback agreement between a landlord and tenant was the subject of a recent court case. The decision turned on whether it was reasonable to refuse to comply with the agreement if vacant possession of a very small portion of the property could not be given.

In the case in point, a developer entered into an agreement with a property owner under which the developer acquired an option to buy a freehold development of more than 80,000 square feet. If the option was exercised, the developer was required simultaneously to grant a leaseback of part of the development to the owner.

For reasons which are unclear, a very small part (180 square feet) of the development which it was anticipated was to be made available with vacant possession was not and therefore could not form part of the leaseback. An adjacent area of similar size with vacant possession was offered instead.

The owner refused to complete the sale when the developer sought to exercise the option, arguing that vacant possession of the premises as per the original plan was an essential term of the agreement between them. Since the developer's proposal breached that essential term, the owner was not required to sell. The developer went to court to obtain an order for specific performance - a remedy which requires a party to a contract to perform its obligations under it.

The court looked at the agreement and concluded that the area which did not benefit from vacant possession was insignificant and did not prevent the substance of the bargain from being fulfilled: the property owner was quite capable of being compensated financially for the small extent to which the developer did not comply with the agreement.

For more information please contact Clare Magill on 01752 292354

Unknown Liability Not Actionable

One of the prime objectives of the due diligence process carried out by the prospective buyer of a business is to ensure that there are no skeletons in the cupboard of the business being bought. Warranties and indemnities are important safeguards, of course, but it is far better to identify any potential problems at the outset.

Typically, the vendor of the business will supply accounts for it and will warrant that these show a 'true and fair view' of its position. In a recent case, a purchaser of a business relied on audited accounts and more recent management accounts, which were provided on this basis. Subsequently, however, an undisclosed liability of more then £2 million was discovered.

The purchaser sought to rely on the warranty that the accounts showed a true and fair view and claimed damages from the vendor. However, the vendor claimed that it had been completely unaware of the potential liability, the omission of which was due to a third-party error. The accounts did, therefore, show a true and fair view as far as the vendor understood the situation to be at the time these were signed off and also when they were disclosed to the purchaser.

The Court of Appeal firstly considered whether the accounts had been properly audited in accordance with accepted auditing standards. It concluded that they had. It then went on to find that because the accounts had been properly audited and the vendor was completely unaware of the liability at the date the accounts were signed off and on the date of sale, the accounts did show a true and fair view and there was no breach of the warranty.

One way of seeking to minimise risks of this sort is to put a 'ratchet' clause in the sale agreement such that any significant undisclosed liability that exists (whether known about or not) at the date of sale, and which becomes manifest within a specified period, will lead to a repayment. In some circumstances, a proportion of the purchase proceeds may be held in escrow for the specified term.

For advice please contact Roger Sands on 01752 292316.

Without Prejudice Rule Trumps Public Disclosure

The Employment Appeal Tribunal (EAT) has upheld the principle that 'without prejudice' communications are not permitted as evidence in court except in very clearly defined circumstances.

Without prejudice communications are those which take place between the opposing sides in a legal dispute that are entered into with a view to reaching a settlement. Making such disclosures ‘without prejudice’ means that the negotiations can be undertaken without the fear that disclosures made for the purpose of settling the dispute will be produced in evidence later.

In principle, the court will only allow the use of without prejudice material as evidence either when a failure to do so would act as a 'cloak for perjury' or to prevent a clear impropriety on the part of one or both parties.

In a recent case, a woman who was claiming sex discrimination and victimisation against her ex-employer sought to produce in evidence communications made to her on a without prejudice basis during negotiations prior to settlement of an earlier claim. It was her contention that evidence regarding a refusal on the part of her employer to give her a reference showed that it had 'reprisal in mind' from that time onwards and had subsequently discriminated against her either by refusing to provide a reference or by giving her a poor reference when approached. Her ex-employer wished to prevent the evidence from being used.

The Employment Tribunal and (on appeal) the EAT both declined to allow the material to be used as evidence despite the fact that it had already been made public as a result of 'whistleblowing' by the woman.

We can assist in facilitating all negotiations and ensure your interests are protected where necessary.

For all Employment advice please contact Eoin Fowell on 01752 292350 and James Twine on 01752 292351

Planning Reversals Based on Facts - Court Backs Narrow View

It is not often that decisions are quashed on the basis that the court in which a case was heard got the facts wrong, but a recent planning case shows that it can occur.

The case concerned a planning application which related to two sides of a property. The owners of the property to the North of the property being developed were not served with the required notice of the planning application, so did not oppose it.

The application was in any event refused, as the proposals relating to the South side of the property were regarded as unsuitable. The applicant reapplied with an amended proposal, which related only to the proposed development of the North side. The owners of the adjacent property to the North objected and that proposal was also turned down by the planning inspector.

The applicant then challenged the refusal of the original application and this application was granted by the court, but only in respect of the proposed development on the North side. However, no evidence regarding the fate of the second application was heard at that appeal, so the owners of the land to the North sought and obtained a refusal of the permission which had been granted on appeal.

At this point the Secretary of State challenged the decision by way of an appeal to the Court of Appeal, arguing that the merits of a planning application were solely for the inspector to determine, not the court, and the inspector could not be faulted for failing to take into account material which had not been brought to his attention. By turning down the application, the court had, in effect, made it obligatory for planning inspectors to take an investigative role as regards the planning histories of properties.

The Court of Appeal ruled that the proceedings would be unfair where:

there is a mistake of fact, including regarding the available evidence;
the fact was in effect objectively verifiable;
the appellant or his advisers were not responsible for the mistake and
the mistake played a material part in the decision-maker's reasoning.

The inspector's decision could therefore be quashed.

What is important about this case is the narrow application of the rules: it would seem, therefore, that reversals of such decisions on the basis of errors of fact will be rare.

For more information and advice please contact Clare Magill on 01752 292354

Capacity to Make a Will

One of the ways a Will can be deemed invalid is if the person making it does not have capacity. If a loved one made a Will at a time when you feel they did not have sufficient capacity, their Will could be contested.

So what is 'capacity'?

The required capacity is what lawyers refer to as testamentary capacity, and is often referred to as ‘sound mind, memory and understanding.' Whether a loved one has the required capacity is determined upon whether they:

understand that by the document they are making they are, by their own choosing, giving their property to specific people on their death;

know the extent of their property; and

understand the nature and extent of their obligations to relatives and others, particularly those who are financially dependant upon them.

If you are concerned that a loved one made a Will at a time when they might not have been able to appreciate the things set out above, you could bring a claim.

The level of competence is greater than what is required for any normal day-to-day transaction, and must be present both at the time your loved one gave instructions for the Will, and at the time they sign it. Clearly fluctuating capacity is a real issue, as it is common for people with mental health problems to be perfectly fine one day but to struggle the next. The key dates are therefore the date instructions for the preparation of a Will were given and the date the Will was actually signed.

What next?

If you feel you may have a claim, you should seek legal advice as early as possible, and ideally before Probate is granted.

There are many different means of funding a contentious probate claim, one of which is Public Funding, which Wolferstans are able to offer.

If you would like advice in respect of a potential claim, please contact Samantha Buckthought, for an initial no obligation discussion on 01752 663295

With Children in Mind - The Benefits of Mediation

When a marriage/long term relationship breaks down it is a difficult time for everyone, not least the children. In order to make the circumstances as easy as possible for the children it is important that the adults (usually the parents and sometimes new partners) make sure that the children are protected from any conflict as much as possible. The children usually just want their parents to get on even if they can no longer live together, and it can be very damaging to children to feel that they are a source of conflict for their parents.

Therefore when there are children involved it is usually better if the parents can reach an agreement about the arrangements for the children rather than it having to be resolved by a Court. As emotions are usually running high at such times mediation is often a good way forward to assist in reaching a compromise which both parties are able to accept, to avoid Court proceedings. A mediator’s role is neutral to both parties and is to assist the parties to reach their own solution to the problems. These usually work better for families than solutions which are imposed by a Court.

The benefit of reaching agreement through mediation is that it is usually quicker and cheaper. It also preserves a better working relationship between the parents who, after all, will have to continue to work together as the parents of the children for the rest of their childhoods, which is often many years.

Mediation is also an effective way to resolve disputes about financial matters on relationship breakdown.

For further information about mediation please contact Kate Westmacott, solicitor and family mediator, on 01752 292298.

Industrial Deafness

Struggling to hear the TV? Have your family been complaining that you do not hear them? Ever noticed a high pitched ringing sound in your ears? Do you have difficulty hearing a conversation when there is background noise? Worked in a noisy environment? You could be entitled to compensation.

Many people think that their hearing problem is just a symptom of old age. However, in many cases hearing loss can be contributed to by causes other than age, such as exposure to excessive noise at work. This could be from the tools or machinery they were using or, that were being used around them. Many people recall having to shout to their work colleagues to be heard, or that their ears would ring or hurt when they got home from a day's shift.

Employers should have known about the dangers of working with excessive noise as early as 1963 and should have taken steps to reduce the noise and to protect employees hearing. In so many cases, employers failed to take care of their workers in this way, resulting in hearing loss and often tinnitus - buzzing or ringing in their ears. The loss is often permanent and irreversible and the sufferers either have to contact the NHS for hearing aids or pay a considerable sum from their own pocket. Many people just suffer in silence (almost literally) because they are not aware that exposure to excessive noise may have contributed to their problem.

Relatively few people know that compensation can be available for hearing noise caused as a result of exposure to excessive noise at work. Claims for deafness caused in this way should be dealt with by specialists who ensure that it is not the individual, or the NHS, that bears the brunt of their employer's failure to act .

In many cases, it is obvious the employer failed to properly protect the employee from being damaged. There simply wasn't the hearing protection available, or if the employee did manage to get hold of some, it was inadequate for the job. In every case there are certain time limits in which to bring a claim. Advice from a solicitor specialising in such cases should be sought as soon as possible after symptoms are noticed, even if this is many years after working in the noisy environment.

Hearing loss can be a problem which develops gradually. Many people say that they have not noticed their hearing is a problem until a family member points it out to them. Even then, they believe it is due to ageing and it isn't until they read an article like this that they put two and two together.

Another factor that some people believe would hinder any claim is whether their employer is still operating. As with most things in life, there is usually an insurance company involved! Most of these cases are not actually dealt with by the employers, but their insurers at the time the employee worked in the noisy conditions. So, regardless of whether the employee stopped working years ago or the company has changed hands, providing an Insurer is found, a case can proceed.

Such cases are dealt with under a 'no-win no fee' agreement, so there should be no concerns about the expense of proceeding as there is often nothing for the person bringing the claim to pay the Solicitor whether the case is won or lost.

If you would like to speak to someone about bringing a claim for your hearing loss and working conditions, please contact either Michelle Bolton or James Lewis, Solicitors in the Industrial Disease Department at Wolferstans, on: 01752 663295.

Property Disputes

The judgement in the recently decided Court of Appeal Case Wilkinson and another v Farmer [2010] EWCA Civ 1148 contains some useful comment and guidance on the attitude of the courts in relation to disputes between neighbours.

The application before the court was an appeal from a decision made by HHJ David Cooke.

The unhappy matter had started as an application to the Deputy Adjudicator to HM Land Registry. The parties were neighbours in Shropshire. They had fallen out about the precise width of an express right of way granted over Susan Wilkinson's property in favour of Frederick Farmer.

The right of way was originally reserved by a conveyance dated 24th December 1898 (the 1898 Conveyance). The width of the right of way depended on the construction of the wording in that conveyance and this was taken into account by the Deputy Adjudicator in conjunction with the relevant surrounding circumstances. Apparently there was no dispute between the parties that this was an appropriate course of action. However given the age of the plan attached to the 1898 Conveyance it did not apparently provide much precise evidence, and this presumably contributed to their disagreement as to the actual width of the right of way.

Factually, the events leading to the litigation were not exceptional. Susan Wilkinson applied to the Land Registry for an alteration of her official plan. She disputed that the actual width of the right of way (a track or road) was as shown on her title plan and wanted the plan altered to reflect this. Frederick Farmer objected and the application was referred to an adjudicator Simon Brilliant who sat as a Deputy Adjudicator to HM Land Registry.

He held a two day hearing in Ludlow. He heard oral evidence from 6 parties and took account of some written witness statements too. He had access to recent photographs an 1866 OS map and some plans attached to later conveyances.

Subsequently he granted Mrs Wilkinson's application excluding some of her land from the right of way. Mr Farmer appealed and HHJ David Cooke sitting as a High Court judge allowed his appeal. Amongst other considerations he attached more weight to plans in the later conveyances which of course were drawn subsequently to the original reservation of the right of way.

His decision was reversed by the Court of Appeal who decided that the Deputy Adjudicator had been entitled to reach the decision that he had made, on the basis of the evidence he had considered.

The full decision explains this in much more detail but Lord Justice Mummery with whom his two fellow judges agreed, made some useful general comments and extracts of these comments taken from the judgement are set out below.

'The whole exercise has been an uncomfortable experience of the unsatisfactory aspects of the conduct and the cost of neighbour disputes in courts. Everybody agrees that, if at all possible, disagreements between neighbours about rights of way, boundaries or whatever should be settled without ever going near a court. In my view professional advisors have a duty to warn their clients at an early stage about he downside of neighbour litigation, even for a successful party.'

'These cases, which have increased with the rise in home ownership, present priority problems for an overstretched civil justice system. When a neighbour dispute gets to court, there is a risk of it looking relatively unimportant to everyone except the parties.'

'The litigation, now in its third round, is modest. The costs of the case are not modest. The combined costs of the parties to date are estimated to exceed £100,000.'

'The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are.'

The moral of this case is that neighbours should at all costs (and the costs could be very high in monetary terms) avoid taking their disputes to the courts.

Professional advisors should heed the advice given by the learned judge in the case referred to above and warn their clients as to risks of litigation and also give them advice about the alternatives.

Some property disputes can be usefully referred to relevant expert Tribunals who are made up of independent experts who will act on an inquisitorial basis to determine the facts of a dispute and make a decision on that basis and using their relevant experience.

The jurisdiction of the Leasehold Valuation Tribunal runs concurrently with the County Court in relation to a raft of matters affecting leasehold owners of flats and the Tribunal also has jurisdiction in relation to enfranchisement and lease extensions relating to houses and flats.

In addition mediation with help from a professionally qualified mediator or arbitrator who may not be a lawyer, might often offer parties a more holistic and acceptable determination.

Neighbours should always be conscious that, regardless of how a dispute may be settled they still have to co-exist together afterwards and regardless of whether they are content with the outcome. Peaceful co-existence requires communication and communication at an early stage of a dispute may result in settlement without recourse to litigation.

For more advice please contact Cindy Rai on 01752 292358

Cindy is a partner at Wolferstans Solicitors specialising in commercial property law. She also sits as a part time Chairman of the Residential Property and Leasehold Valuation Tribunals and as a member of the Rent Assessment Committee.

The addresses of some useful Websites are listed below.
http://www.tribunals.gov.uk/
http://www.lease-advice.org/
http://www.rpts.gov.uk/about_us/lvt.htm
http://www.cedr.com/
http://www.adrgroup.co.uk/

Supreme Court Upholds Court of Appeal Decision in Radmacher

In Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 the Supreme Court has today decided by a majority (Lady Hale dissenting) that the Court of Appeal was correct to hold the husband to the pre-nuptial agreement made by the parties.

The appellant and respondent were married in London in 1998. The husband is French and the wife German. They entered into an pre-nuptial agreement before a notary in Germany at the instigation of the wife, to whom a further portion of her family's considerable wealth would be transferred if an agreement was signed. The agreement was subject to German law and provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. The husband, who at the time worked as a banker, declined the opportunity to take independent advice on the agreement. The parties separated in October 2006 after 8 years of marriage. They have two daughters.

In the High Court Baron J had awarded the husband £5.5m even though the pre-nuptial agreement had stated that neither party would seek maintenance from the other in the event of divorce. The wife appealed to the Court of Appeal.

Giving the lead judgment, Thorpe LJ allowed the wife's appeal broadly on the grounds that Baron J had not given sufficient weight to the existence of the pre-nuptial agreement in her initial award. He said:
"In future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings."
The Supreme Court (by a majority of 8 to 1) has dismissed the appeal. The substantive judgment is given by Lord Phillips (President), with an additional judgment from Lord Mance. Lady Hale gives a dissenting judgment.

The majority determined that the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold the husband to the agreement. He is extremely able and his own needs will in large measure be indirectly met from the generous relief given to cater for the needs of his two daughters until the younger reaches the age of 22. There is no compensation factor as the husband's decision to abandon his career in the city was not motivated by the demands of his family but reflected his own preference. Fairness did not entitle him to a portion of his wife's wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her.

In the view of Lady Hale there remain important policy considerations justifying a different approach for agreements made before and after a marriage.

It is likely in our view that this will lead to more Pre-Nuptial agreements being drawn up and that those agreements in certain circumstances are more likely to be replied upon in any subsequent divorce proceedings. It is important that any agreement is drawn up correctly. If you need any assistance please contact Philip Thorneycroft of our Divorce Team 01752 292310

Equality Act 2010

A considerable amount of fanfare has greeted the arrival of the Equality Act 2010, with the Daily Mail in the vanguard, splashing its front page with a headline proclaiming the death of the office joke.

All humour is now effectively banned in the workplace, lest it offend one person or group, or in case they are able to take offence on behalf of a relative, friend or someone they know. All journalism aims to provoke an emotional reaction in its readers of course, something this article will signally fail to achieve, since the boring truth is that the Equality Act will make very little difference in practice to the existing law. This is a somewhat shocking disclosure in itself, since lawyers are generally keen to point up the perils and cost of each new piece of legislation, and many powerpoint slides have been consumed in the business of explaining and warning of the changes. Most of this effort has been directed towards teasing out any points of difference, most of which are minor and only of interest to the nerdy employment lawyer.

One such change is the abolition of pre-employment health questionnaires, on the grounds that they discriminate against disabled candidates, who tend not to be called for interview. In fact these questionnaires are still lawful, but in the event of a disability discrimination claim the burden of proof will now switch to the employer to show that the decision was not tainted by discrimination. In practice, this is little different from the present state of the law, and if a candidate with some long-standing health problem (and almost any long-standing health problem generally amounts to a disability for these purposes) applies for a job, discloses their condition and is not selected, the employer is at risk of a claim, and is likely to have the burden of proving their innocence.

The main political aim of the Act, the introduction of a public sector socio-economic duty - effectively to spend money in targeting those in most need - has not been introduced, and no doubt the coalition government could see little difference between spending money in areas of most need and spending money in Labour voting areas.

The other, much-trumpeted aspect has been extra protection for carers, although no such specific rule has been introduced. Instead, the Act simply codifies the existing law, established in the case of Attridge v Coleman, in which Mrs Coleman worked for a law firm (!) who made her working life more difficult after the birth of her disabled son, when she needed more flexibility. She won her claim of disability discrimination even though it was her son, not her, who was disabled. This principle will continue to apply, and may be relied on by those who care for an elderly relative, for example, and therefore need more flexibility at work, but the coalition have promised to extend the right to request flexible working in any event, and the bottom line is that where such requests are made for genuine, family or caring reasons - not just to have a bit of 'me time' on a Friday - and where this fits the needs of the business, such requests should be (and generally are) granted. No change there then.

Another recent case whose reasoning has been incorporated into the Act is English v Sanderson Windows, in which the employee complained about the homophobic banter he received, just because he went to public school and lived in Brighton. Mr English was not gay, you see. Things came to a head when it was reported in the works magazine that he had been at a Gay Pride parade in Brighton wearing a pair of pink, lycra cycling shorts. Mr English resigned and claimed discrimination on grounds of sexual orientation, even though he was not gay, they knew he was not gay, he knew they knew etc. It is possible that the Employment Appeal Tribunal was having an off day. That decision was never appealed, but that was the law as at 2008, and the new Act makes very little difference.

Only very anoraky employment lawyers can come up with situations where the Act may change what would have happened anyway. This week, for example, a man lost his claim under the sex discrimination act, who was arguing that he was dismissed because his partner was pregnant, rather like Mrs Coleman and her claim of discrimination by association.

The Employment Appeal Tribunal looked at the wording of the Sex Discrimination Act, which talks about discrimination against 'a woman' on the ground of 'the woman's pregnancy', and decided that this was a step too far. Will this now change? Will there be a rush of men claiming discrimination because they are having a hard time at work when they come in bleary eyed after the midnight bottle feeds? The Appeal Tribunal said that it was "not entirely clear" what the position would be under the new Act, and this could be a very good summary of the whole Act. It is not entirely clear what difference it will make.

For Employment Advice please contact Eoin Fowell 01752 292350 or James Twine 01752 292351

Non-Party Has No Right Over Agreement

Just because someone benefits from the terms of a planning agreement, that does not mean they are entitled to enforce it.

So ruled the High Court in considering an application from a property owner to force the owner of an access road serving the back of the property owner's premises to allow the road to be used in a way not specified in the original planning consent.

In the case in point, the property owner wished the road to be usable as an emergency egress, but the purpose of the original right of way had been to overcome the loss of vehicular access to the front of the properties when the street outside was pedestrianised. The owner of the access wished to restrict its use outside specified times of day.

The property owner would undoubtedly have benefited from a change in the planning agreement, but it was not a party to it.

It is well established that only those who are parties to an agreement can take action over it. In this case, in order to achieve its aim, the property owner would have to secure the permission of the owner of the access road and then obtain planning permission if necessary.

For more advice please contact Clare Magill

Brother Succeeds to Tolerated Trespass Property Right

A tolerated trespasser is a person who has had an eviction order made against them but who remains in occupation of the property with the landlord's acquiescence because they continue to pay rent.

Since the Housing and Regeneration Act 2008 came into force, a new tolerated trespass cannot arise because, in the above circumstances, the tenant is now granted a new tenancy similar to that which they would otherwise have had.

However, there remain existing tolerated trespassers and the court recently had to determine what happens on the death of someone who occupies a property on this basis. Normally, when a social housing tenant dies, the next of kin have the right to continue the tenancy. In the circumstance in which the property is occupied by a tolerated trespasser, however, there is no tenancy to which the next of kin could succeed.

The case was brought by a man who had moved in with his brother to look after him prior to his death. His brother was a tolerated trespasser and when he died, the council applied to obtain possession of the flat. The case reached the Supreme Court, which found that the man should be given the right to succeed to his late brother's 'tenancy'.

The decision will come as a relief to family members of people who occupy their properties as tolerated trespassers.

Contact Clare Magill on 01752 292354 for advice on all landlord and tenant matters.

Change of Name Causes Break Notice to Fail

A tenant which changed its name ended up in court recently over the validity of a notice to break its tenancy.

The tenant had issued a notice to its landlord, during the period of the lease, that it was changing its name from AHC to ESL. There was another company in the same group of companies as AHC called ESL and, in the event, AHC did not change its name as it had intended.

When the break notice was served, the document was issued in the name of ESL, not AHC, and contained the company registration number of ESL, not AHC.

The landlord claimed that the notice to break the lease was invalid. The tenant claimed that the earlier notice of intention to change its name was sufficient to make the break notice valid.

The court ruled that it was a formal requirement of the lease that the break notice should be given by the tenant. It clearly was not.

However, could it be said that the notice was given by ESL as agent for AHC? The court would not accept that argument either: there was wholly insufficient evidence to assert that ESL was the agent of AHC and, in any event, there was no reference to ESL acting as agent for AHC. The document was presented as if ESL was acting on its own behalf and the landlord had no reasonable belief that the document could be binding on AHC.

In this case, a simple error in the drafting of the document, coupled with a failure to spot the error before the document was sent, has cost the tenant dear.

Contact Clare Magill on 01752 292354 for advice on all landlord and tenant matters.

Company Fined After Worker's Head Crushed

Brick manufacturing company Hanson Building Products Ltd. has been fined £280,000 and ordered to pay costs of £29,204 after pleading guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974 following the death of a worker at its distribution plant in Coleshill in Warwickshire.

Peter Clarke, 57, was working at a 30-metre conveyor belt that carried concrete blocks from a kiln to a packaging area. He had only recently joined the company and his job was to remove sample blocks in order to carry out quality testing.

The blocks were arranged into stacks ready for packaging by manoeuvring the conveyor backwards and forwards. Mr Clarke was working next to a low bridge over the conveyor. When he leaned forward to remove some blocks for checking, another worker changed the direction of the conveyor, crushing Mr Clarke's head between the blocks on the conveyor and the metal platform. The operator of the conveyor was unable to see Mr Clarke because his view was obscured.

The Health and Safety Executive (HSE) carried out an investigation into the incident. It found that the company had failed to carry out an adequate risk assessment for the operation. The only risk that had been identified was the possibility that workers might get their fingers trapped between the blocks and the stairway leading to the platform.

HSE inspector Peter Snelgrove said, 'There were no safe systems of work for removing the blocks and the company failed to supervise Mr Clarke adequately. The area where he was working was well known as a danger zone by other workers, but he had been on site for less than two weeks and nobody had told him about the risks'

Risk assessments must be carried out systematically and all foreseeable risks considered. HSE guidance on risk management can be found at http://www.hse.gov.uk/risk/fivesteps.htm.

For Employment Advice please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Court Rules Software Supplier's Standard Terms Unfair

A recent case highlights the importance of getting standard terms in contracts right.It involved a hotel group, which entered into a contract with a computer software firm specialising in software for managing hotels.

A standard term in the software supplier's contract said that the software would work in accordance with operating manuals, which would be supplied before the contract was formalised. The conditions attached to the contract provided that if this term were breached, the software supplier would be liable to the hotel group only for the provision of maintenance and support.

The contract also contained a term that excluded any warranty that the software was fit for purpose. In the event, the software proved unable to cope with the demands placed on it by a busy four-star hotel in London and regularly froze.

The hotel group sued and the software supplier attempted to rely on the exclusions in the contract. The court ruled that the contract terms limiting the supplier's liability were void (under the Unfair Contract Terms Act 1977) because they were not reasonable and, in addition, the operating manuals had not been supplied.

Software suppliers are experts at drawing up contracts which, whenever possible, absolve themselves from liability if their software does not work properly. We can help you to negotiate a contract which requires the software provider to supply software that does what it is claimed it will.

For advice please contact Roger Sands 01752 292316

Dilapidations Clauses - What Can Be Claimed?

It is established law that when a lease comes to an end, the landlord cannot use the dilapidations clause to make a windfall profit out of a tenant.This might occur, for example, when the schedule of dilapidations is agreed and payment made, but the landlord demolishes the property in order to redevelop it.

The principles that govern the payment under a dilapidations clause are:

1. The amount of damages has to be assessed on a reasonable basis. The landlord's intentions for the building are of central importance to this, as an intention to redevelop or demolish the property would probably render the dilapidations trivial. In a recent case, the argument that extensive refurbishment was one of the options available to a landlord was insufficient to dislodge a tenant's liability for dilapidations since the landlord had other reasonable options for the property and had not yet decided what to do with it.

2. If there is no realistic alternative to demolition or redevelopment, then the fact that the landlord had no settled intention as regards the future of the premises may not have an effect on the assessment of the damages for dilapidations, which would normally therefore be nil or minimal.

3. Where the landlord undertakes a scheme of redevelopment or refurbishment beyond that which the tenant could be expected to pay for, the landlord's right to reimbursement is limited to what the tenant would have paid to put the premises in reasonable repair as they were previously. The landlord must carry the cost of improvements.

4. If the landlord can prove it would have acted differently if the premises were returned in good repair, it can recover the cost of the dilapidations less the cost of any subsequent work undertaken which would have rendered putting right the dilapidations unnecessary.

5. If the return of the premises in a dilapidated state results in loss of rent, the landlord may claim for the lost rent for any period which exceeds the period the tenant would have taken to comply with the dilapidations covenant, to the extent that the landlord can demonstrate a causal connection between the failure to repair and the loss of rent.

Contact Clare Magill for advice on any landlord or tenant matter.

Guarantee Value Overturns CVA

Two landlords who stood to lose the benefit of a guarantee for their rent if a Corporate Voluntary Arrangement (CVA) went ahead were successful in opposing the CVA after the court agreed that the CVA as proposed was 'unfairly prejudicial' to them as defined by Section 6 of the Insolvency Act 1986.

Although the CVA was claimed to have offered the landlords 100 per cent of the sum they would have received had the insolvent company surrendered the leases, they produced evidence that the actual sum they stood to receive under the CVA was a mere third of that sum.

With the current degree of uncertainty in the commercial property market, a guarantee of rent is a valuable thing to have. The court ruled that it was unfair to require the landlords to give up their guarantees, even if there was a payment made in consideration for so doing.

The case will be greeted with relief by landlords. It follows a similar ruling in 2007.

Contact Clare Magill on 01752 292354 for advice on all landlord and tenant matters.

Planning Appeal Fails For Man 'Not Aggreived'

The Court of Appeal has recently ruled that a man who did not take part in the planning process for a community sports centre, swimming pool and tower block could not subsequently claim to be a ‘person aggrieved’ and ask for a judicial review of the planning decision.

William Ashton discovered that the proposed tower block would cast a shadow across his balcony. After planning permission was granted, he challenged the decision on the basis that it was granted on a mistaken understanding regarding the funding of the project, which was stated by the planning inspector and Secretary of State as being ‘at no public cost’.

The Court dismissed Mr Ashton’s application to appeal the decision, firstly on the basis that the ‘no cost’ argument referred to costs being met from government funding other than by way of available grants and secondly on the basis that the man was not a ‘person aggrieved’ as he had played no part in the opposition to the planning application.

Delay can bring disappointment in planning matters: contact us for advice at an early stage if you wish to oppose a planning application.

Contact Clare Magill for advice on 01752 292354

Rights and Responsibilities - Contracual Differences

The difference between rights and responsibilities under a contract is sometimes important. When a contract is transferred from one person to another, the type of transfer determines what aspects of the contract pass.

If a contract is assigned, the rights under the contract are passed on. So, for example, an author could enter into a contract to assign future royalties to someone else.

When a contract's responsibilities are also passed on, the practical effect is that the new owner of the contract acquires all the rights and responsibilities of the former owner. This is a critical difference where there is something which must be done in order to benefit from the rights under the contract.

A recent case involving a property transaction illustrates the difference. It involved a man who had contracted to sell a property to German supermarket chain Lidl. The man had previously entered into a contract to buy the property and that contract was passed to Lidl. He was entitled to retain £100,000 of the purchase consideration until certain construction works were completed. When the works were completed, he was entitled to retain half of the further costs from the sum retained and required to pass the balance on to the original owner.

There was a similar term in his contract of sale with Lidl. However, in the case of the contract with Lidl, the company was entitled to retain the whole of the cost of the further works from the payment.

Lidl retained £100,000 from the payment to the man. When the further works were completed, he claimed that these had cost more than £200,000. He refused to pay any of the retention monies to the original owner.

The court had to decide whether the benefit which passed to Lidl under the assigned contract required it to perform the man’s obligations under the original contract. It ruled that it did not. The obligations remained for him to perform and were not passed on to Lidl.

For advice please contact Roger Sands 01752 292316

Vendor's Refusal of Sub-Sale Repudiates Contract

When the buyer of a town house decided, after exchanging contracts for its purchase, to sub-sell the property, he requested the vendor to convey it directly to the person who was buying it from him. However, the vendor refused.

The purchaser claimed that because the vendor had refused to allow the contract to be assigned, the contract had been repudiated. He then withdrew from the purchase.

The result was a court appearance for the vendor and the purchaser. The vendor argued that he was within his rights not to allow the purchaser to assign the contract for sale because the Standard Conditions of Sale (SCS) that apply to residential sales contracts state specifically that 'the buyer is not entitled to transfer the benefit of the contract'.

The court compared the SCS rules with those that apply to commercial properties. In the latter case, the wording of the corresponding clause is much more restrictive than that which applies to residential sales. The court concluded that the wording of the SCS did not exclude sub-sales and the purchaser was therefore within his rights to refuse to complete once the vendor had refused to assign the contract.

The buyer's victory in court was doubly fortunate as the proposed sale to his purchaser fell through. Had the vendor not refused the sub-sale, the buyer would have had to complete the purchase of the property.

Vendors wishing to avoid the possibility of a sub-sale arising will need to ensure that appropriate wording is added to their sale agreement.

For more advice please contact Clare Magill on 01752 292354

Employer not Liable for Agency Worker's Remarks

A recent case (May and Baker Ltd. t/a Sanofi-Aventis Pharma v Okerago) serves as a reminder to employers of the sort of problems that can arise during an international sporting event when members of their workforce support different participants.

Mrs Okerago claimed that remarks made to her by a colleague, Ms Dower, during the 2006 FIFA World Cup amounted to direct discrimination under the Race Relations Act 1976 (RRA). Mrs Okerago told the Employment Tribunal (ET) that Ms Dower, an agency worker, told her to 'go back home' after Mrs Okerago replied 'my country' when asked which team she would be supporting in the competition. By not specifically investigating her grievance on this issue, she claimed that her employer had aided and abetted the discrimination.

The ET judged May and Baker liable for Ms Dower’s discriminatory remarks but this decision was overturned on appeal.

The Employment Appeal Tribunal (EAT) found that there were no adequate findings of fact in the ET’s judgment to support the ruling that Ms Dower was an employee of May and Baker, which was necessary for a finding of liability under Section 32(1) of the RRA. The ET's finding that 'to all intents and purposes she was treated as an employee on a day-to-day basis and acted as one' was not a sufficient basis for finding the company liable.

In addition, the EAT ruled that there were no adequate findings of fact to support a conclusion that Ms Dower acted as an agent of May and Baker, for the purposes of RRA Section 32(2). Also, a person cannot aid another to do something that the other person has already done. The failure to investigate Mrs Okerago's grievance and the other matters referred to by the ET all took place after the World Cup incident had already occurred and there were no findings that the company knew about Ms Dower's remark at that time to support the suggestion that it had assisted the incident to occur.

The EAT went on to say that although the ET found that by its conduct May and Baker was 'compliant in allowing an environment to continue where such conduct could take place', there were no findings by the ET that the company had allowed such an environment to exist prior to, or at the time of, the World Cup incident.

This case hinged on the fact that the complaint concerned the conduct of an agency worker, not an employee. The claimant's case was not advanced on the basis that her employer was vicariously liable for the agency worker's actions. The ET made no findings of fact on that point and it was not therefore open to Mrs Okerago to argue it in the EAT.

Contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351 for advice on any employment law matter.

Pension Implementation Charges for NHS Pensions

Where couples are undergoing a Divorce and one of the Parties has an NHS Pension they need to be aware of a rise of 700% the NHS pension providers charge for implementing a Pension Sharing Order.

The fee will increase from the current rate of £393.62 to £2,760 as from 1st January 2011. Clients therefore need to do everything they can to make sure they get their Pension Sharing Orders made and through to NHS Pensions before the end of the year. The increase in charges is in line with those suggested by the National Association of Pension Funds, it is expected that there will be other pension providers who will also be increasing their fees. Any Client who has, or their spouse has, a pension provision is therefore urged to contact Philip Thorneycroft of our Divorce and Ancillary Relief team.

Landmark Legal Decision offers Hope to South West Hospices

Wolferstans Solicitors has welcomed a breakthrough decision in relation to the treatment of Mesothelioma Patients and is encouraging hospices caring for those suffering from the condition to actively seek recoverable financial costs that they are currently missing out on.

The Judgment by His Honour Judge Anthony Thornton QC, handed down in the case of Drake and Starkey 'v- Foster Wheeler Limited, held that the reasonable and necessary costs of a hospice providing essential palliative care in cases where a terminal decline in health was as a direct result of malignant mesothelioma caused by exposure to asbestos would be recoverable. It was ruled that any award would be paid directly to the hospice rather than the estate, which in this case awarded the hospice £10,021.00.

James Walsh, Head of Industrial Disease unit, Wolferstans, comments, 'This is a significant decision that could provide welcome support to many, as well as much needed income to the hospices around the South West that do such sterling work on minimum funding.

'Colleague John Messham, who joined Wolferstans following the closure of the Bond Pearce Personal Injury Department earlier this year, also praised the landmark decision, 'I've been practising Asbestos litigation for over 25 years years now, dealing with cases distressing to sufferers and their families, and any decision that offers assistance to them, and helps keep open the hospices that help them through such dark days, is something we should all be thankful for."

Wolferstans is an APIL (Association of Personal Injury Lawyers) accredited practice and its clinical negligence team has been identified by the UK's leading guides to the profession, Chambers and Partners and The Legal 500, as experts in the field.

For more information please contact James Walsh on 01752 292260

Default Retirement Age to be Retired

The coalition Government has published a consultation document proposing to phase out the Default Retirement age of 65 from April 2011.

Under the proposal, no new notices of intended retirement should be issued after 6 April 2011, and from 1 October 2011 all retirements under the statutory procedure will cease completely. If implemented, this will have significant implications for businesses throughout the United Kingdom. Employers will no longer be able to rely on the Default Retirement Age as an unequivocal defence to age discrimination claims.

The Government has mooted phasing out the Default Retirement age for sometime, but removing it altogether so quickly, will catch most employers by surprise. Employers will have to decide how to deal with employees who wish to continue working beyond their 65th birthday.

Employers will still have the option to retire employees, but each retirement must be justified. Alternatively, employers will need to performance manage employees when their performance falls below an expected level.

It will remain permissible for an employer to set a default retirement age, but the age must be justified. This is a task fraught with difficulties and is bound to lead to claims to the Employment Tribunals. To defend such a claim, an employer will have to provide real evidence to support their suggestion that performance will decline after a set age. In a recent case, a professional football referee was forcibly retired at the age of 48. He issued a claim to an Employment Tribunal who found that the default retirement age of 48, was discriminatory. The Tribunal acknowledged that the physical demands of the job might justify a retirement age of 48 in certain instances. However, they also held that the employer had failed to justify that a default retirement age of 48 was necessary, as opposed to 49, 50 or any other age.

As with an employee of any age, performance management of an under performing employee takes time and effort. An employer must follow a proper and fair procedure to include; issuing the employee with warnings, setting targets and giving the employee a chance to improve. Furthermore, the performance management of an ageing employee must be genuine. It will be a risk for an employer to suddenly start performance managing an employee at the age of 65 (or older), when the employee had performed without cause for complaint in the past.

The key for employers will be to avoid stereotypical assumptions and only set a Default Retirement Age or commence capability proceedings if there is a genuine need, which can be supported by real evidence. In the short term, employers should consider reviewing all standard contracts of employment (which will no doubt contain a Default Retirement Age), in addition to considering adaptations to the workplace to assist older workers.

If you require further advice with regard to the abolition of the Default Retirement Age or any other employment law related matter, please call either James Twine on 01752 292351 or Eoin Fowell on 01752 292350

Failure to Enforce Right Leads to its Loss

An easement (such as a right of way) is a right over someone else's land. A right of easement, once granted, is quite often forgotten about. However, a recent case shows how important it can be to make sure that an easement does not lapse through acquiescence to an interference with the easement.

It involved neighbours, one of whom had been granted an easement in 1980 permitting access to a pathway that ran along a strip of land owned by the other. The easement replaced an earlier right of way which had been expressly granted.

By 1999, the strip of land was being used for car parking and the owner had removed most of the pathway and resurfaced the area. The other neighbour did not object to the works.

Later, both properties were sold and the new owners of the land which had the benefit of the easement sought an injunction to have their access reinstated and to prevent car parking.

The argument proved unsuccessful because the previous owner of the property had done nothing to prevent the owner of the land in question from breaching the terms of the easement over a long period of time. As a result, the easement, although contained in the deeds to the property, was no longer enforceable.

The case was won on the argument that the neighbour who had benefited from the easement had stood by and allowed the landowner to prevent them from exercising their right of easement. It would therefore be unfair (under a legal principle called 'estoppel') for a later owner to rely on a right which their predecessor in title had failed to enforce, because the landowner had been induced by that conduct to conclude that the right would not be enforced.

Where the facts support it, an easement, even one specifically granted, may be considered to have lapsed, although this case must be distinguished from the notion of abandonment - an easement not used for many years will rarely result in the extinguishment of the easement and only if there are other significant circumstances.

For advice on any matter relating to property law, contact Clare Magill, Cindy Rai or Sam Woods.

Law Firm Concerned about Public Confusion over Asbestos Compensation Rights

Wolferstans Solicitors has warned against public confusion over the rights to claim compensation in asbestos related disease claims.

James Walsh, Head of Industrial Disease unit, Wolferstans, comments, 'We're concerned that the publicity around the Pleural Plaques Former Claimants Payment Scheme, just announced by the new Government, might leave sufferers from other asbestos related diseases under the misconception that all they are entitled to claim is £5,000.”

'Wolferstans welcome the introduction of this new compensation scheme and believe it is a positive move forward from the previous shambles, and it's a fair figure too, provided claimants retain their right to civil compensation if their symptoms deteriorate in the future. However we think it is vital that anyone suffering from more serious symptoms ' i.e. mesothelioma, lung cancer, asbestosis or pleural thickening - understands that court action is still possible for them.'

'Comments such as the one by Lord Henley earlier this year about Ministers not wishing to 'line the pockets of lawyers at the expense of those suffering from Pleural Plaques' are very unhelpful and misleading when the majority of these claims are run on a No Win No Fee basis. Law firms such as Wolferstans pride ourselves on working to support those in our local community at times when they are at their most vulnerable and struggling to battle - never mind understand - the complexities of the legal system.

'We are proud to have the strongest specialist industrial disease team in the South West including John Messham who has recently joined us after 34 years at Bond Pearce, and we will continue to offer our clients the best service possible'

The Pleural Plaques Former Claimants Payment Scheme offers compensation to people who started a claim/diagnosed before October 2007. Applications for compensation through it must be lodged before 1 August 2011.

For more information please contact James Walsh

New Rights for House Buyers

The new Consumer Code for Home Builders came into force on 1 April 2010 and provides significant new protection for those who buy homes 'off plan'.

The Code requires builders of houses to keep buyers informed of the progress of the construction work. It specifically requires builders to provide 'reliable and realistic' information regarding completion of the construction, handover dates and the date on which the completion of the contract for purchase may be expected.

Buyers must also be advised that they have the right to withdraw from the purchase if there is an unreasonable delay in completing the construction of the home and serving the notice to complete. The Code sets out a standard form of wording for use in such circumstances. The buyer may terminate the contract if the builder fails to serve notice to complete the sale within six months for houses and twelve months for flats, where contracts are exchanged before the building is weatherproof. If contracts are exchanged at an advanced stage of construction, the buyer has the right to terminate the contract if the builder fails to serve notice to complete the sale within two months for houses or four months for flats.

Builders should be aware of the new Code and ensure that their sales documentation is compliant. Contact Cindy Rai for advice.

Wolferstans Back BBC Findings

Responding to a BBC Panorama investigation into Will writing companies, and the shocking financial pitfalls that face unwary consumers that use them, Wolferstans Solicitors has called for urgent Government action to address the problem.

Samantha Buckthought, Head of Wills, Trust and Probate comments, '37 million people in England and Wales have not yet written a will and risk dying intestate, with the Government then deciding who gets what. However, whilst it is undeniable that writing a will is very important, it is equally of concern that many people have gone to the time, trouble and expense of writing a will, yet for some reason that will may be found to be invalid, or won't carry out their wishes properly when they die.'

'Wolferstans, as a firm of solicitors, are heavily regulated and specialised in undertaking all aspects of will drafting, from the most straight forward to the most complicated will and everything in between. A professionally drawn will is much more likely to be correct, achieve what you want to happen, be validly executed and to be accepted once you die. I believe it is essential the Government take action and save the public from this unnecessary chaos.'

With contentious probate cases increasing by 107% year on year, it is clear families are no longer reluctant to challenge a will or to make a claim under an Estate. Whilst there is no guarantee that such claims can be prevented, a professionally drawn will makes it less likely to be successful and avoids the risk of dying intestate, which can happen when utilizing cut-priced will writing options.

'It is often the case that taking the cheaper, easier options just store up problems for the future, which will cost much more to put right' continues Samantha Buckthought, 'only a specialist in will drafting will be able to fully advise you on all the issues, both the ones you have thought of, and the ones you may have considered. For example, a natural choice for a parent is to leave all of their possessions to their children, but what if one of those children is disabled and in receipt of means tested benefits? Their inheritance could mean the end of that entitlement to benefits which could cause them considerable problems, not to mention the fact that they may be very vulnerable if they have a large sum of money.'

For more information and advice please contact Samantha Buckthought.

Council Must Consider Appropriate Measures Before Seeking Eviction

A council's decision to serve an immediate notice to quit on a tenant who had attacked and injured a caretaker was ruled to be unreasonable by the Court of Appeal recently, because the council had not considered that the tenant's behavior might have been due to the mental impairment from which he suffers.

The tenant was known to suffer from a personality disorder which leads to obsessive and irrational behaviour. As a result, it was incumbent on the council to consider whether there was any alternative to seeking immediate eviction of the tenant.

However, the fact that the tenant's appeal against the eviction order was successful did not mean that the council could not seek his eviction if, once it had considered the other possible approaches and its obligations under public law, it concluded that it was appropriate to seek possession of the premises.

For more advice please contact Clare Magill

Rights of Tenant when Lease ends - Surprise Decision

The Court of Appeal has issued a surprising judgment regarding the nature of a tenancy after the lease has expired.

A tenant was granted a three-month lease, which contained a clause that, after that period, the lease was terminable on either side by giving one week's notice. The tenant later granted sub-leases to two other tenants - one purporting to be for eight years and one for 10 years.

The question later arose as to the validity of the leases the tenant had granted to his sub-tenants. The landlord argued that after the expiry of the tenant's lease, he was a tenant 'at will', and thus a week's notice was sufficient to recover the premises, because the tenant could not pass better title than he himself possessed.

The subtenants argued that a 'periodic tenancy' had been created, because the tenant who was their landlord had paid the rent and this had been accepted after the expiry of the lease. If this were the case, then the tenant had the right to create sub-tenancies - although these would not have been for the eight- and 10-year terms agreed, but on the same terms as the tenant landlord's periodic tenancy.

Only in special cases does a short-term tenancy have the protection afforded to longer tenancies under the Landlord and Tenant Act 1954. The subtenants therefore were arguing that they were protected under the Act and the landlord that they were not.

It needed the Court of Appeal to decide the issue. To the relief of many landlords, it ruled that the clause which allowed the tenant a week's notice at the end of the lease was not inconsistent with the concept of a tenancy at will and therefore the tenant and subtenants did not have the protection of the Act.

This decision runs counter to that in an earlier case on the same issue. The received wisdom on the subject had been that in a case in which a notice period is specified after the lease term has expired, a tenancy at will is not created.

'Although landlords will be happy with this decision, the safer option may be to make sure that a lease does not specify a notice period if the tenant remains in occupation after its expiry,' says Cindy Rai.

For advice please contact Cindy Rai

Tenant Loses Protection by Making Improvements

A tenant who carried out improvements to her property has found out that by so doing her tenancy has lost its status as a 'protected tenancy', after a ruling by the Court of Appeal.

The tenant had made the improvements, which, if taken into account, meant that the open market rent for the premises would exceed the maximum annual rent of £25,000 under which a tenancy can be a protected tenancy. When her lease expired, a dispute arose over whether the improvements should be taken into account in assessing the rent payable under the new lease. If so, she would lose her protection. If not, her lease would retain its status as an 'assured periodic tenancy'.

Despite a judgment in which Lady Justice Arden commented that it was 'presumptively unfair to the tenant' that she should have to pay an increased rent when she was the one who had paid for the improvements in the first place, the Court ruled that the landlord was permitted to take the improvements into account when setting the rent.

Because the rent would exceed £25,000 a year, once the improvements were taken into account, the tenancy would not be a protected tenancy and the landlord would be entitled to serve the tenant with a notice to quit.

For Landlord and Tenant advice please contact Clare Magill

Village Green Decision Supplies Blueprint for Stymieing Development

Most people - and certainly those who have been involved in an opposed planning application - know what a NIMBY is but, following a case heard in the Supreme Court, we may now see the rise of NOOViGs (not on our village greens). The reason for this was the victory of a group of residents in Redcar, who wished to oppose a proposal to develop land which included part of what had been a golf course.

They did so by applying for the land in question to be registered as a village green under a procedure set out in the Commons Act 2006. This allows land to be registered as a village green if 'a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as of right in lawful sports or pastimes on the land for a period of 20 years'.

The land was used by members of the public for recreation. If whilst out walking they encountered golfers in the course of play, it was common practice for them to wait until play was finished or until the golfers signalled for them to pass.

The original planning application was approved by the inspector, largely because he recognised the superior right of golf club members to use the land compared with the general public. This meant that the general public had not used that part of the land 'as of right'.

However, the Supreme Court took a different view, ruling that the legislation was concerned with the nature of the use of the land and it was not necessary to examine whether the users of the land believed they had the right to use it as they did. What mattered was whether a significant number of members of the public had openly used the land for recreational purposes without any formal agreement for its use and without the landowner taking steps to assert its right to prevent it.

Applying that test, the deference showed to the golfers was a matter of normal civility and did not indicate that the non-golfing users of the land were not using it as of right.

The decision is likely to be used as a blueprint for arguments against developments elsewhere as NOOViGs seek to use the Act to prevent unpopular development projects. Registration of land as a village green will act, in effect, as a permanent block on development.

For advice please contact Clare Magill

Company Pays Price When Contract Terms Do Not Reflect Current Law

'Pay when paid' clauses in construction contracts came under the microscope in a recent case, with unfortunate results for a company that did not keep its contract terms up to date.

The case involved a contractor which was carrying out work for a firm that went into administration, owing the contractor for the work it had done. Some of that work had been subcontracted to two other firms. The sums involved were substantial, with one of the subcontractors owed nearly £1 million.

The contractor relied on a pay when paid clause, which meant its liability to the subcontractors was limited if the firm to which it was contracted (the ‘employer’) did not pay it the sums due to it. The operation of such clauses is prohibited by the Housing Grants (Construction and Regeneration) Act 1996 (HGCRA) unless it can be shown that the employer is insolvent. The precise wording of the relevant part of the Act has changed over the years, following an amendment in the Enterprise Act 2002 that changed the meaning of the section which relates to insolvent companies. The new wording means that where a company ‘self-certifies’ its need to enter administration, that suffices for the purposes of the relevant section of the HGCRA. Prior to that change, only an administration which resulted from a court order would qualify. Standard contract documentation now usually incorporates appropriate wording to allow for this change.

Unfortunately for the contractor, when it made its contracts with the subcontractors, it failed to change the relevant clause, with the result that the pay when paid clause was not triggered when the employer entered administration unless the administration was the result of a formal process.

In this case, the employer's administration was by the informal, self-certifying route. Accordingly, the contractor could not rely on the pay when paid clause and was liable to its subcontractors whether or not it received payment.

'The judgment does not dwell on how it was that a contract of this size could fail to take account of changes in the law that are well known in the construction industry,' says Bill Duncan, “and a trip to the Court of Appeal in pursuit of a lost cause magnified the loss.'

Involving us at an early stage in the negotiations in all contractual matters will help control your legal risks and avoid potential pitfalls.

For advice and more information please contact Bill Duncan

Social Media in the Workplace

The increased popularity of social networking sites such as Facebook and Twitter can pose significant challenges for employers.

A survey commissioned by IT services provider Morse, polled almost 1500 workers and found that 57% of employees spent an average of 40 minutes per week on social networking sites. Morse equated this statistic to a loss of just under a full working week for each employee per year!!

Loss of productivity however is not the only problem faced by employers. During 2009 a number of national household retailers were subject to negative press and customer complaints, further to employees complaining about their employers and their customers on social networking sites. If not addressed, these incidents can cause immeasurable damage to your business’s reputation. One way of minimising the risk and negative influence of social media, is for an employer to impose a clear social media policy.

If your employees work with computers on a daily basis it is commonplace for an internet or electronic communications policy to be in place. Such a policy ordinarily gives the employer the right to monitor personal e-mails and internet use. However, many of these policies are quickly out-of-date and do not specifically cover social media sites such as Facebook and Twitter.

Any policy should be clear and leave an employee in no doubt as to what they can and cannot say with regard to their employer and its business. Some businesses will choose not to allow employees to access these sites all together. However, this is not always practicable especially in creative industries which rely on social media as a means of marketing and communication and this will not address those who post away from the work place.

A social networking policy should encourage employees to raise any genuine complaints through the company's grievance policy as opposed to posting potentially negative comments on, for example, Facebook. It should also remind employees of the manner in which they should treat their colleagues and identify that information which offends or degrades a colleague may be viewed as an act of bullying, harassment and/or discrimination.

The policy should leave an employee in no doubt that bringing the business's reputation into disrepute is likely to lead to disciplinary action being taken and in serious or repeated cases, this could lead to dismissal.

If you require further information in regard to dealing with social media in the workplace, drafting a social media policy or any other matter please contact James Twine on 01752 292351.

The Recession May Be Bad But It Isn't Frustrating?

One of the reasons a contract can be abandoned is that the performance of the contract is 'frustrated' - something happens which makes it impossible to complete.

In August 2007, the builders Barratt contracted with site owner Gold Group Properties Ltd. to build a large number of houses and flats. The nature of the agreement was that once the properties were built, they would be sold and the sale proceeds would be shared between Barratt and Gold. The contract was in the form of a 'development agreement'. The land was transferred to Barratt in early 2008. The development agreement specified minimum prices for the properties sold.

Barratt was later advised that the minimum selling prices included in the development agreement would not be achieved and decided not to commence the development. Gold sued for £9.5 million in lost profits.

Barratt defended the action, using the argument that the minimum prices set out in the development agreement constituted a guaranteed minimum return or a condition which must be satisfied for the contract to have effect. It contended that the contract was therefore frustrated.

The court could not accept this argument. For a contract to be frustrated, an event must occur which is a change that is so significant that the parties to the contract could not reasonably have foreseen it when they entered into it. A fall in property prices is not such an event.

The lesson to be learned is that if protection from changes in the prevailing economic conditions or any other factor is important in a contract, the appropriate terms should be agreed at the outset. Contact Clare Magill for more advice.

Are your Fire Risk Assessments up to date?

Local Fire Authorities no longer issue fire certificates. The Regulatory Reform (Fire Safety) Order 2005 introduced a risk-based approach to fire safety, making it a legal requirement for the person responsible to carry out a fire-risk assessment for all non-domestic premises in England and Wales. This includes the shared areas of houses in multiple occupation.

The person responsible must identify any possible dangers and risks from fire to anyone who might be on the premises, consider who may be especially at risk and eliminate or reduce those risks as far as is reasonably practicable. Measures must be put in place to protect users of the premises from any risks that remain and a plan drawn up of the action to be taken in the event of an emergency. These findings must be kept up to date. Employees and others working at the premises must be informed of the risks and the preventive and protective measures in place and provided with adequate safety training. There are additional emergency measures that must be taken if there are dangerous substances present.

Failure to comply with the legislation is a criminal offence, punishable by fines or even a prison sentence.

The Government has guidance on making your premises safe from fire at
http://www.communities.gov.uk/publications/fire/regulatoryreformfire.

Planning Change Affects Private Landlords

Little publicised, but nonetheless important for many private landlords, are changes implemented by the Town and Country Planning (Use Classes) (Amendment) (England) Order 2010, which mean that, in certain circumstances, a landlord wishing to let out a property as a house in multiple occupation may need to seek planning permission before doing so.

The main effects of the new Use Classes Order are to amend Class C3, which until the change included all houses that are occupied by up to six persons not living together as a household and to specify classes of use for which planning permission is not required.

Class C3 has now been subdivided into three classes:

Class C3(a) is a single family household. In this case, there is no limit to the number of persons who can occupy the property;
Class C3(b) applies to those living together as a household and receiving care. In this case, the occupancy limit before planning approval is needed is limited to six people; and
Class C3(c), which includes those living together as a household and not within class C4.

Class C4 relates to houses in multiple occupation which are occupied by between three and six people who share basic amenities such as a kitchen or bathrooms. It specifically includes bed-sit properties.

Planning permission is not required for a change of use from Class 4 to Class 3, but will be required for a change from Class 3 to Class 4.

The changes came into effect on 10 April 2010 and have implications for many residential landlords. Contact Clare Magill or Cindy Rai for advice.

DDA Not Applicable to Tenant Wanting to Keep Dog

A dog may be man’s best friend, but the Court of Appeal recently ruled that the positive effect on the mental health of a woman disabled by bipolar disorder of keeping a dog did not engage the Disability Discrimination Act 1995 (DDA) and so allow a prohibition in the lease on keeping pets to be overridden.

The woman, who had been homeless, obtained a flat that was leased to her by a social landlord. The social landlord itself leased the building from the owner and the head lease contained a clause prohibiting the landlord from allowing its tenants to keep pets.

When she first moved into the flat, the woman did not have the dog. She only took it in when her ex-husband could no longer look after it, and it became her ‘reason for getting up in the morning’. However, its barking caused complaints by other tenants.

She was ordered to remove the dog and the case ended up in the Court of Appeal, which agreed that the head lease on the building prohibited the landlord from allowing her to keep the dog. She had not had it when she moved in and the ban on keeping animals did not make it impossible or unreasonably difficult for her to enjoy the premises. Her disability was not such as to make it essential for her to have the animal with her in order to carry out normal day-to-day activities (as would be the case with a guide dog) and the DDA was therefore not applicable in the circumstances. Had her landlord allowed her to keep the dog, it would have been in breach of its lease.

There are still many challenges being brought by social housing tenants based on the DDA and Human Rights legislation, but few are proving to provide relief for the claimants. Contact Bill Duncan for advice on any social housing matter.

Over Optimism Not Grounds for Claim

The developer of the M20 services in Kent was recently successful in court in resisting a claim for damages from the tenants of the service area, who were dissatisfied because representations made to them regarding visitor numbers and the facilities of the site were not realised, causing them commercial losses.

The main cause of the tenants’ dissatisfaction was that visitor numbers, estimated in an independent report commissioned by the developer to be between 11,000 and 12,000 a day on average, were in reality only about a tenth of the number anticipated.

In addition, the developer’s sales literature had envisaged having screens showing Channel Tunnel and port departure information. Lastly, the tenants claimed that the signage from the motorway was not of the expected standard. The former was later found to be impractical for technical reasons (despite being an idea which had attracted the support of the Port of Dover and Eurotunnel) and the latter was not under the control of the developer. The developer could not therefore be held to account for either of these issues.

When the lease documentation was examined, the court found that the developer had restricted its liability to any representation made by its solicitors in reply to questions.

The decision as to whether the shortfall in visitor numbers could lead to a claim therefore turned on whether the representations were made fraudulently to induce the tenants into executing their leases. The court sympathised with the tenants, but there was no ground for believing that they were: indeed, the developer had also suffered a large loss because of its reliance on the over-optimistic forecasts.

If you intend to lease premises where footfall is crucial, it makes sense to negotiate an appropriate clause in the lease agreement, so that the rental paid will be less if expectations are not met.

We can assist you in negotiating a lease which protects your position if things do not turn out as expected. Contact Clare Magill for more advice.

Compulsory Purchase - Strict Approach Necessary

Councils that use compulsory purchase orders must adhere strictly to the relevant planning law, as a recent decision of the Supreme Court makes clear. The dispute pitted Wolverhampton City Council against supermarket giant Sainsbury’s.

The Council had a site that it wanted to see redeveloped and Tesco wanted to build a store on another site in the city. The Council and Tesco agreed a deal allowing Tesco to develop its target site on the condition that it also developed the other site.

The only problem was that the majority of the site that Tesco wanted to develop was owned by arch-rival Sainsbury’s. The Council therefore applied for a compulsory purchase order (CPO) over this land. Sainsbury’s opposed the order and the dispute went all the way to the Supreme Court.

The Court had to consider what constituted a ‘lawful consideration’ when making such an order. In this case, the Council proposed to purchase the land in question because it wanted the second site developed, not because of the improvements that would result from the development of the site targeted by Tesco. The development of the second site was ruled not to be a lawful consideration in applying for the CPO. Lord Collins stated that the terms of the Town and Country Planning Act 1990 meant that the Council could not ‘take into account a commitment by the developer of a site part of which was subject to a CPO to secure the development, redevelopment or improvement of another site’.

The judgment in favour of Sainsbury’s has several implications. Clearly, the courts will not uphold an attempt to deprive someone of their property unless the decision to do so has been taken in strict compliance with the law. In practical terms, it is common for planning permission for development schemes to be agreed on the basis of some ancillary development or other benefit to the community being part of the deal. Clearly, where such schemes involve the use of CPOs, there may well be difficulties.

For advice on any planning matter, contact Clare Magill or Cindy Rai.

Budget Summary 2010

Summary of Changes Affecting Business Clients

During the election campaign, George Osborne nailed his colours firmly to the mast of a deficit reduction strategy. He has not disappointed in that, but questions remain over whether the effect of the expenditure cuts and the mixture of tax increases and decreases in the Budget will be to depress growth and to stymie the desired effect in the medium term. Time will tell.

Corporation Tax

The main rate of Corporation Tax (CT), applicable to companies with taxable profits over £1.5 million, will be reduced from 28 per cent to 27 per cent on 1 April 2011. Thereafter, it will fall a further 1 per cent each year until reaching 24 per cent on 1 April 2014.

The CT rate for small companies (those with taxable profits below £300,000) will decrease from 21 per cent to 20 per cent from 1 April 2011.

The general thrust of the changes is to make trading by means of a limited company, and basing a company in the UK, more attractive. With the recent Companies Act (2006) now fully implemented, the UK now has a much more attractive legislative and tax regime than previously.

A small change has also been made to the rules for consortium relief, whereby control and voting rights are a factor in determining the percentage of a loss that can be claimed from a consortium company. However, a company will no longer have to be UK resident to transfer its share of the consortium’s losses to another consortium member.

Further CT reforms are expected to be announced this autumn.

Capital Allowances

From 1 April 2012 for companies, and 6 April 2012 for unincorporated businesses, the rate at which capital expenditure attracts CT relief will be reduced, from 20 per cent to 18 per cent annually in the case of items allocated to the ‘main rate pool’ and from 10 per cent to 8 per cent in the case of items in the ‘special rate pool’ (such as long-life assets, integral features etc.)

The annual investment allowance will also be reduced from April 2012, from £100,000 to £25,000.

Businesses considering major capital investments should consider the implications of the changes carefully.

General

From 23 June, the rate of Capital Gains Tax (CGT) applying to any gains above the basic rate Income Tax band (£37,400 for 2010-11) increases from 18 per cent to 28 per cent. However, business investors will be cheered by the fact that the lifetime limit for Entrepreneurs’ Relief has been increased from £2m to £5m. The rate of CGT on gains qualifying for Entrepreneurs’ Relief remains at 10 per cent.

Many new businesses located in most regions of the UK will benefit from a ‘National Insurance Contributions (NICs) Holiday’, whereby qualifying employers will not have to pay the first £5,000 of Class 1 employer NICs due in respect of the first 52 weeks of employment of each employee (up to a maximum of 10) hired in the first year of business. The scheme is expected to run for three years and will cover any Class 1 employer NICs that fall due during this time.

The scheme is due to start in September 2010, although this is yet to be confirmed. Businesses that commence trading on or after 22 June will be able to enjoy the benefits of the scheme: they will have to pay Class 1 employer NICs until the scheme is introduced but will receive a holiday of equal duration once the scheme commences.

The scheme is intended to promote private enterprise in areas where there are currently a large number of public sector employees. It will therefore not cover London, the South East and the East.

Full details of the scheme will be published before its introduction. There will be restrictions on the types of eligible businesses: the Government intends to restrict the scheme to ‘businesses which undertake a sufficient degree of new economic activity’. What this will mean in practice will be revealed when full details of the scheme are published.

VAT

The standard rate of VAT is set to rise from 17.5 per cent to 20 per cent on 4 January 2011. Items which are exempt or zero-rated for VAT purposes, or upon which VAT is charged at the reduced rate of 5 per cent, are unaffected.

The rates applicable to businesses using the flat-rate scheme for VAT will also change, and can be found at http://www.hmrc.gov.uk/budget2010/bn45.pdf. The turnover threshold above which businesses must leave the flat-rate scheme will be increased from £225,000 to £230,000, inclusive of VAT. This change is designed to help businesses which would otherwise no longer be eligible to participate in the flat-rate scheme.

Anti-avoidance legislation has been introduced to combat schemes which attempt to apply the current VAT rate to goods or services which will be delivered on or after 4 January 2011.

If any of the items in this bulletin apply to you and you would like advice, please get in touch. The end of the tax year is 5 April for individuals and 31 March for companies.

Please contact Clare Magill for more advice.

Budget Summary 2010

Summary of Changes Affecting Private Individuals

They promised we wouldn’t like it and they were right. Other than freezing Council Tax, there was precious little to cheer in the Budget other than the hope that it may have the desired effect of reducing the yawning deficit in the public finances: time will tell regarding that.

However, there were some plums to be picked among the thorns. In particular, the tax regime affecting carers has been improved significantly. Also, the changes to National Insurance Contributions and the increase in the tax-free personal allowance will benefit the lower-paid. Adjustments will be made once the Retail Prices Index (RPI) for September is known in order to adjust the tax thresholds to prevent the change from benefiting higher-rate taxpayers.

Income Tax

Tax Thresholds - Although the increase by a further £1,000 from April 2011 in the tax-free allowance for Income Tax (IT) purposes will attract the headlines, the higher-rate limits are being frozen until at least 2014.

Furnished Holiday Lettings

The Government is cancelling the proposed changes relating to the taxation of those operating furnished holiday lettings businesses, but measures governing the ‘actual days let’ rules are being tightened up.

Investments

From 6 April 2011, the ISA limits will be increased in line with the RPI on an annual basis. One nice touch by the Chancellor is that the increases are to be rounded to the nearest £120, so that individuals who save monthly will be able to calculate their monthly savings more easily.

There are detailed changes to the legislation on Venture Capital Trusts (VCTs), which have the practical effect that a wider range of investments can now attract VCT status, and other changes, one of which is that Enterprise Investment Scheme and VCT companies no longer have to trade in the UK but need only have a ‘permanent establishment’ here.

Pensions

The Government is deferring by two years (to age 77) the age by which a pension must be vested by the pension holder. This applies now, but only to those who have not reached the age of 75. The detailed changes will take effect in 2011, so there will be a limited window of opportunity to take any necessary action.

We can assist you with all wealth planning and wealth preservation matters.

Please contact Clare Magil

Why put if off any longer

Making a Will is one of those jobs which many of us put off for another day, but why wait until the increase in VAT takes effect on the 4 January 2011 and let it end up costing you more?

A Will is an important document to ensure that your wishes are followed after your death. Why would you want to work hard to provide for your loved ones, only for the ones you want to receive your estate to be left out if you rely on the Law of Intestacy.

If you die without making a Will the Law of Intestacy provides a strict order as to who will inherit your estate in the event of your death which may not necessarily be those you would have chosen. This is especially relevant to those of you who co-habit, are separated but not yet divorced or have children by a former partner.

Why not take a short period of your time to come in and talk to us about your family circumstances and we can inform you of who will benefit from your estate after your death . You may be very unpleasantly surprised at the result. There is no obligation for you to take this matter any further but you would at least be in a position to make an informed decision as to whether your estate will be passed to the right people.

A Will is a relatively inexpensive document to have drawn up, but would give you the peace of mind that those you love receive what you would want them to have.

Another aspect of your estate which is always sensible to consider is your position in relation to the payment of Inheritance Tax.

Despite much press coverage in the run up to the election the coalition government has decided to shelve their plan to increase the Inheritance tax threshold. With the present allowance of £325,000 remaining in place for the foreseeable future and no plans to change the legislation allowing for the unused allowance of the first person of a married couple to die to be reclaimed on the death of the second person, now may be a good time to consider your Inheritance Tax position.

Take advantage of the next few months and come in for an appointment to consider your estate so that you have time to make or update your Will prior to the increase in VAT..........surely you have given the Chancellor enough of your money in your lifetime........why give him anymore than necessary?

Contact Melanie Cotterill at Wolferstans Solicitors on 01752 292244 to find out more

Advice to Employers during World Cup 2010

The World Cup kicks off in South Africa on 11 June 2010 and it is important for employers to be aware of the issues they may be confronted with during the tournament.

The competition will run from 11 June until 11 July 2010 and during this period employers may receive requests from employees to take time off to watch the televised games, whereas other employees may fail to seek approval and simply ring in sick, or take time off the following day to recover from a post-match hangover.

Employers need to make a decision: will business continue as usual, or will you allow a certain degree of flexibility. The easiest option for an employer is simply to insist on business as usual but this is likely to have a negative effect on staff morale.

If you are going to allow some flexibility during the World Cup you need to lay down some clear ground rules. This will need to be the case whether you allow employees to take time off as paid holiday, allow employees to take unpaid leave, allow employees to be flexible and watch games while making time up elsewhere, provide a television for employees at work, or simply insist on business as usual.

It is important that as an employer you treat staff fairly and consistently. Try to remember that not everyone supports England and there are 32 teams participating in the World Cup. It is important not to discriminate against employees from other nations and if you are allowing time off or flexibility to watch England games, you should do the same for other nations so employees from different nationalities can follow their teams. To ignore this advice could expose you to a risk of claims for discrimination. My advice is that while an employee is unlikely to bring a claim it is better to be sensitive to the possibility.

Inevitably, some employees will phone in sick to recover from a hangover or to watch a televised game. Others may simply not turn up at all. The best course of action is to be clear from the outset that this sort of behaviour will not be tolerated and is likely to result in disciplinary action.

If by some miracle Capello manages to replicate Alf Ramsey and England progress to the final (extremely unlikely I know), the only game scheduled to kick off during normal working hours is the final group game against Slovenia on 23 June 2010. This game kicks off at 3 pm and is likely to be the game that causes the most disruption, if any, to your workforce. Communication is key, and failing to address the issue could see a late batch of requests for holiday which your business may or may not be able to cope with.

My advice is to communicate with all staff either via e-mail or in a meeting. As part of this communication you can set out your expectations for staff attendance during the World Cup and explain any flexibility or variations you will allow.

If you require any further advice on issues facing you during the World Cup or any other employment matter please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

PS – If England do make it to the final, please do not call on 12 July 2010 the employment department will be off sick!

Huge Increase in Inheritance Disputes

Did you know it is possible to challenge a person's Will? Many don’t, as up until only a few years ago disputes following a person's death (known as contentious probate disputes) were relatively rare. However, the Courts have seen a significant increase in this, with a shocking 177% more claims in the last year alone.

As a result of the stark increase in contentious probate disputes, Wolferstans have created a dedicated contentious probate team, who can act on either side of a dispute.

Contentious probate disputes are extremely complex, as they are dealt with in many ways completely differently to any other type of dispute. For this reason, it is extremely important that the lawyer dealing with the dispute has a good knowledge of not only general litigation matters but also specific probate issues. Wolferstans have therefore ensured that their team have just such experience.

Whether you have not been sufficiently provided for when someone died, you are concerned about the validity of a will, or find yourself in a dispute with a Personal Representative or beneficiary, we can assist.

If you would like advice in respect of a potential contentious probate claim, please contact Samantha Buckthought, Amy Kernohan or Victoria Hughes in our Wills and Trusts Department, for an initial no obligation discussion.

Please note that proceedings in respect of contentious probate matters often need to be addressed within a short space of time and it is therefore advisable to seek legal advice as promptly as possible.

Safeguarding your Future

The future can always seem a long way off, but none of us know what is round the corner.

An accident can happen to any one of us at any time and at any stage of our life. Such an accident may result in our mental capacity being affected, temporarily or permanently This may mean that we are no longer able to deal with our own affairs as we used to.

If this happened to you, who would you want to deal with your affairs? Unless you take action now whilst you can, this choice will be taken away from you and someone will be appointed by the Court of Protection.

If someone is appointed by the Court of Protection, they may not necessarily be the person whom you would have chosen. They may be a remote family member, friend or even a professional person who you have never met, who will then be making important decisions about your life and affairs.

In addition to which an appointment takes on average six months to put in place and costs around £1500. There are on-going annual fees involved which are payable to the Court of Protection and whenever the person appointed asks the Court for guidance or approval to take certain steps, more
fees are payable.

What is the alternative I hear you cry? A Lasting Power of Attorney.

There are two types, one to deal with your financial affairs and property and one to deal with your personal health and welfare.

The benefits of a Lasting Power of Attorney are:

It allows you to choose who to appoint as your attorneys;
You can appoint replacement attorneys should one of your chosen attorneys or all of them be unable to act;
You can choose how your attorneys can act. For instance are they all to act jointly or can they have the option to act jointly and independently?
You can choose whether you want to restrict what your attorneys can do for you. For example you could specify that they are not to sell your property.
You can include guidance for your attorneys to follow to assist them in their role;
You chose who is notified of when the Lasting Power of Attorney is being registered to be used rather than someone else notifying whom they think is appropriate;
You choose who decides if you are capable to make the Lasting Power of Attorney rather than it automatically being your GP.

A Lasting Power of Attorney is not just for the elderly it is also for those who are employed in the services, business men and women who travel a lot and everyone else as none of us know what the future holds. Car accidents, accidents at work and accidents at home are becoming more and more common as our lives become more and more hectic and we find ourselves rushing that little bit more. A small bang to the head can be life changing.

Therefore as you can see, by preparing now for the future which may not be that far off, you have the peace of mind that should you be unable to manage your own affairs, you have someone whom you trust and whom you have chosen to act on your behalf.

If you wish to discuss this further, please contact Samantha Buckthought on 01752 663295 who is based at our Office at 60-66 North Hill, Plymouth, Devon, PL4 8EP. We also have an Office at Plymstock, 7 Radford Park Road, Plymstock, Plymouth, Devon, PL9 9DG if more convenient.

Builder Saved by Contract over Faulty Flue

In a recent case, a builder who included a contractual term which reduced his liability in tort (i.e. for a civil wrong) found this was sufficient to defeat a claim brought by a customer.

The builder had constructed a house which contained two gas fires. These were ventilated by flues, which the builder had also constructed. Fifteen years after the house was built, the owner had a gas safety test carried out and the flues failed. The owner therefore commissioned a survey, which found that the flues had not been constructed in accordance with the Building Regulations that were in force at the time.

The fault was discovered well after the builder’s guarantee of workmanship under the original contract to build the house had expired, so he did not owe the house owner a contractual duty to repair the flues. The owner therefore argued that the builder owed him a duty of care under the law of tort.

The builder contended that there was no duty of care which would give rise to a claim in tort. The house owner’s loss was economic and, as such, it was governed by the contract and the time limit for bringing a claim had expired.

The judge accepted that, in principle, builders can owe their clients a duty of care in tort as well as a contractual duty. In this case, however, the contract under which the property was built specifically excluded any defect outside the ten-year guarantee period. A claim that this clause itself was an unfair contract term and was therefore unenforceable under the Unfair Contract Terms Act 1977 (UCTA) was rejected as the UCTA specifically excludes contracts over land.

Contractors should be aware that they can have a duty of care in tort as well as under the contract. Liability in tort can extend well beyond the guarantee period under the contract. As this case demonstrates, care should be taken over the terms of the contract to ensure that liabilities under tort, as well as contract, are minimised.

For more advice please contact Bill Duncan

Application for Judicial Review of Planning not Actionable

A developer whose planning permission was subjected to judicial review, instigated by a firm which had an interest in the outcome, found that the Court of Appeal was unwilling to rule that the firm which engineered the review could be sued by the developer, despite the fact that it had mixed motives for its actions.

The case arose after the firm had threatened to bring and subsequently brought proceedings for judicial review of a planning decision involving a development in Westminster. The property developer claimed that the threat was made in order to put pressure on the developer to assist the firm to relocate its offices, which were affected by the development.

Since a judicial review can only proceed with the permission of the court, which weeds out claims that lack merit, the Court found that there was no tort (wrong) committed by the firm which could permit the developer to seek damages.

For more advice please contact Cindy Rai

Adjudication Error Stays Enforcement

Adjudication is designed to be a simple and quick process for the resolution of differences and the adjudicator’s decision is normally one which has to be accepted ‘warts and all’. An adjudicator’s award stands until the matter is finally decided by an arbitrator or the court.

For many years, the position has been that even if the adjudicator makes a decision which is wrong in law or fact, this cannot prevent the enforcement of that decision by the court. However, a recent judgment saw the judge take a somewhat different approach in such circumstances.

A contractor had hired a subcontractor to carry out railway signalling work. When a dispute between the two arose, they went to adjudication. In reaching his decision, the adjudicator failed to take into account all of the payments made under the contract, with the result that the subcontractor was deemed to be entitled to more than £1/2 million. Had the adjudicator not made this error, no sum would have been payable.

The matter ended up in court, with the subcontractor seeking summary judgment against the contractor and the contractor claiming that the adjudicator lacked jurisdiction and that the decision was wrong as a matter of fact, so should not be enforced.

The court ruled that whilst the adjudicator did have the appropriate jurisdiction, the decision was in error in fact and/or law. In this case, the judge ruled that it was open to the court to make a final decision because the contract did not contain an arbitration clause and so the matter did not have to be decided by means of arbitration. Furthermore, there was no substantial dispute over the facts of the case and the court was able to reach a decision on the material before it. The court therefore decided that no sum was payable.

In practical terms, this means that where an adjudicator has made a mathematical error which is easy to demonstrate, it may be possible in some circumstances to go to court to obtain a declaration of parties’ rights that will prevent enforcement of the adjudicator’s award. Where matters are more complex, however, it may not be possible to obtain a decision of the court. One possible strategy in such circumstances might be to refer some points directly to the court in the first instance.

Construction disputes are often complex and can spiral out of control unless handled carefully.

Bill Duncan or Jennifer Tear can advise you if you are in dispute over a construction contract.

Whole Agreement Clause Determines Payment Schedule

Construction projects inevitably lead to a large number of contracts being created between the various contractors, subcontractors, suppliers and developers involved.

This in turn can produce problems in the event of a dispute, as it can be difficult to know in some circumstances which contract applies.

In general, where a term in a contract has been drafted specifically for the contract, that term will take precedence over any conflicting standard term in the contract, unless it is expressly overridden by a term in the standard contract.

In a recent case, a dispute arose under a contract for a mixed residential and commercial development in Camden. It concerned the payment dates under the agreement and whether the developer had issued a valid withholding notice against the contractor’s application for payment. However, the terms in the contract were not compatible with those contained in the standard JCT agreement that governed the development as this contained a ‘whole agreement’ clause, which specifically stated that it was not to be overridden or modified in a number of areas, which included the payment mechanism.

Accordingly, ruled the court, the standard JCT terms applied, notwithstanding the specific payment clauses in the contract.

Disputes such as this can have a major impact on a business, especially when cash flow is tight and additional finance facilities are difficult to obtain. Wolferstans can help you make sure your contracts do not result in any unpleasant surprises.

Contact Bill Duncan for advice.

Law of Covenants set to Change

With nearly two thirds of freehold titles subject to an easement (which gives someone other than the owner a right over the land) and nearly four fifths of properties having some form of restrictive covenant, it is no wonder that disputes over land rights are common.

The Law Commission has been looking into the problems caused by restrictive covenants and easements and in 2008 produced a report highlighting several ways in which the law was deficient. The upshot of this process is that new legislation has been proposed, which should see the light of day within the next year or so.

The Law Commission’s proposed solution involves replacing the existing law on covenants with ‘land obligations’, which can be an obligation to do something or refrain from doing something on the land. The main aspects of the proposals are:

The obligation would have to be specifically labelled as a land obligation in the document under which it is created and would have to be created in a prescribed form. This would make the obligation sufficiently specific to render the likelihood of a dispute over its meaning or the land concerned unlikely;
An obligation which creates a legal interest in the land would have to be registered;
New obligations which pass from owner to owner could not normally be created where title to land is registered; and
Damages for breach of the obligations could be by way of legal remedies (payment of a sum in damages) or equitable ones, such as an injunction.

There are, in addition, a number of more technical proposals.

For more informatin and advice please contact Clare Magill

Share Manoeuvres Cause Lease Breach

A company that was part of a group recently found that it had breached its lease when a corporate reorganisation was carried out.

The problem arose because the lease on the company’s premises contained a clause that the tenant company was allowed to share occupation of the premises as long as it remained a member of the same group of companies to which it belonged when the lease was executed.

In this case, the tenant’s holding company had pledged the tenant company shares to a bank as security for facilities provided by the bank. This led to the tenant ceasing to be a ‘member of the group’, as a result of which it no longer had the right to share occupation of the let premises.

Although this was a Scottish case, the principle would be the same under English law, with one crucial difference. In Scotland, in such circumstances the bank’s interest is recorded by an entry in the shareholders’ register. In England and Wales, signed share transfer forms would normally be held by the bank, but the shareholders’ register would be left alone until the bank wished to rely on its security. In that event, the group structure is undisturbed until the bank’s interest is recorded in the register of members.

The precise way this might affect a group depends on the shareholdings and their rights but, in principle, care should be taken, especially when a holding company has a majority of the shares but not voting rights in its subsidiary.

For more information and advice contact Roger Sands

Hypothetical Tenant Doesn't Count

When vacating premises at the end of a lease, the maximum amount of the tenant’s liability for dilapidations under the dilapidations clause will be based on the difference in value of the leased property in its repaired and unrepaired states.

In a recent case, a ‘blue-chip’ tenant wished to remain in its premises, but its offers of new lease terms were rejected by its landlord and so it vacated the premises.

The value of the building in good repair exceeded the value in its current state by approximately £120,000. However, the tenant argued that the appropriate calculation should be based on the value of the building with the tenant remaining in the premises as, were the property for sale, it would have made the same offer to remain in the premises as it had made to its landlord. The court accepted the argument that a hypothetical purchaser would have preferred to have accepted the tenant’s offer, as this would have avoided an expensive void period. The tenant would have taken a new lease with the hypothetical purchaser when it bought the property. In this case, the diminution in value of the freehold would have been less than £50,000.

The landlord appealed to the Court of Appeal, which overturned the ruling. The correct valuation was that of the property as the landlord received it from the tenant at the end of the lease. There was no lease in existence then, so the value of such a lease could not be taken into account.

For more advice please contact Clare Magill

Holiday Preparations - Power of Attorney?

Passports, tickets, money – check. Power of Attorney? Will?

The last 2 items might not seem the most essential when you’re preparing to jet off on holiday, but in fact, they could be the 2 most important documents.

As well as the more common hazards faced by holiday makers such as losing your wallet or passport, being robbed, or suffering an injury and being detained in a foreign hospital, we now have the additional risk of the erupting Volcano in Iceland disrupting flights and causing chaos.

Since the volcano began erupting in March 2010, and with no end in sight, it is an all too familiar tale of individuals being stranded and struggling to make alternative travel arrangements. Keeping financial status quo at home, continuing with house purchases and sales, and trying to maintain a business and extend insurance cover are all unnecessary burdens.

Due to Data Protection, Banks and other Organisations will not allow next of kin or relatives access to your finances, unless you have made a Power of Attorney (POA). A general POA can be prepared to give power to an individual to deal with your finances and property. These can be limited to a certain period of time or the accounts you wish your attorney to access. POA’s can cost as little as £150 + vat to prepare, a small price to ensure piece of mind at home and for your business.

Before heading off on holiday, as morbid as it may be, it is important to consider preparing a will, as the reality of an Intestate estate, should something happen to you, can be far more disturbing. The archaic intestacy laws do not recognise unmarried couples and could lead to your estate being distributed vastly different to what you would want.

Here are just some of the other circumstances which are not catered for if you die without making a Will:

Your spouse or Civil Partner will not necessarily inherit all of your estate.
The Crown takes you estate if you have no living relatives.
A former spouse will inherit under Intestacy if you are not divorced.
Stepchildren or partners will not inherit.

Wills cost from as little as £130 + vat per person, but can give you the piece of mind you need to ensure an enjoyable holiday.

To discuss a General Power of Attorney or Making a Will, please contact Melanie Cotterill or Samantha Buckthought at Wolferstans Solicitors of 60-66 North Hill, Plymouth, Devon, PL4 8EP on 01752 663295. We also have an office at 7 Radford Park Road, Plymstock, Plymouth, Devon, PL9 9DG.

Top legal firm dammed if they did and dammed if they didn't - or were they?

During May 2010, national legal firm Eversheds lodged an appeal against an Employment Tribunal ruling that it must pay £123,300 in compensation to a male solicitor – Mr De Belin. Mr De Belin succeeded with a claim for sexual discrimination in circumstances where he was selected for redundancy ahead of a female solicitor returning from maternity leave.

Eversheds’ redundancy procedure employed a points system scored against a range of criteria. One of the criterion (carrying a maximum of 2 points) scored potential candidates in relation to how quickly they recovered outstanding fees/debts (lock-up) from their clients. A female colleague of Mr De Belin, was automatically awarded the maximum two points for this criterion because Eversheds were not able to assess her, owing to her being on maternity leave for the prescribed period. It appears Eversheds employed this approach because they were fearful of a claim for sex discrimination from the woman returning from maternity leave.

Mr De Belin was awarded only half a point for this criterion, giving him a total of 27 points compared to his female colleague’s 27.5. This resulted in him being selected for redundancy and ultimately succeeding with a claim for sex discrimination.

Mr De Belin has said “An employment partner in the redundancy process stated to me that the firm was acting on a risk management basis so as not to give a woman on maternity leave any chance of taking legal proceedings against them.

There are only two of us in the redundancy pool and the issue of lock-up could have been approached fairly in many ways. However the risk management process seemed to dictate that it was not relevant.”

Ironically, Eversheds have fallen foul of the Sex Discrimination legislation in an attempt to minimise the risk of a claim for sex discrimination! This highlights the difficulties facing employers conducting redundancy procedures or handling employees generally. Previously, employers may have been under the misconception they should protect against the risk of a claim from a pregnant employee by affording her extra protection. However, this case confirms this is a dangerous tactic for employers to adopt and can lead to claims from male employees.

Ultimately as Mr De Belin indicated, there were a variety of ways in which Eversheds could have avoided this situation. The obvious approach would have been to remove any criteria that might adversely affect an employee returning from maternity leave. Perhaps this is something they considered, but after realising this would result in the female employee being selected for redundancy, they decided against it.

Some might argue they were “damned if they did and damned if they didn’t”. However, if Eversheds had removed the criteria pertaining to lock-up and selected the female employee for redundancy, they may well have stood a greater chance of defending a claim from her, than they did from Mr De Belin.

If you require advice in relation to a redundancy exercise or any other employment related matter, please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

Power of Attorney Alongside Travel Insurance

Lessons should be learned from the recent air traffic crisis, and that much of the personal disruption could have been avoided if people had planned ahead with a Power of Attorney.

Most people know at least one person who was affected, the common problem being finding the cost to fund alternative routes home or funding a few more days until flights resumed. Many people were relying on credit cards but if these were up to their limits or – due to the crisis – a payment had been missed, they would be of little help. Families trying to help those stranded encountered problems when trying to pay money into other people’s accounts since banks are in fear of fraud and cannot breach the Data Protection Act, so many travellers have been in real difficulty.

Since nobody is entitled to deal with anyone else’s affairs the firm is advocating that travellers consider utilising a Power of Attorney in the same way they might consider Travel Insurance, thereby allowing someone they trust access to their accounts and avoiding matters piling up at home such as bills, house sales and business matters in the case of future delays.

The recent chaos provides a salient warning to travel plans of the future. The solution in many cases would have been to have a Power of Attorney in place to cover these one-off emergencies. This allows you to appoint at least one other person to deal with your financial affairs and property. It can also be used by business owners to ensure that their business can continue to run smoothly in their absence or by homeowners going through a remortgage, sale or purchase. You can restrict what your attorneys can do for you, therefore if you run a business, you may wish to appoint one attorney to deal with your business and another to deal with your personal affairs. The best aspect of a Power of Attorney, is that you are still in full control of your affairs, so when you return you can continue where your attorneys left off.

There are different types of Power of Attorneys available, the three most common types being a General Power of Attorney, a Specific Power of Attorney and a Lasting Power of Attorney. The first two are only valid if applicants have the mental capacity to oversee what their attorney(s) are doing for them. Therefore to provide for long-term needs, a Lasting Power of Attorney is more appropriate as this can continue when someone might lose their mental capacity.

For further details e-mail Melanie Cotterill or telephone her on 01752 292244

The Election 2010

The election has been called and no one will have failed to notice the three main parties have gone into campaign overdrive. It is nigh on impossible to drive to work without passing campaign billboards sporting either Cameron or Brown's smiling face, switch on the television without catching a party political broadcast, or pick up a newspaper without immediately being drawn to a story focusing upon the most eagerly anticipated election for a generation.

The relevant manifestos have been published and while the employment law policies might not feature heavily in a voter's decision-making process, the policies make interesting reading to anyone involved in employment law and/or HR.

The Conservatives
In a similar vein to much of Cameron’s electoral campaign, the Conservatives are critical of Labour's influence on employment legislation in the preceding thirteen years. The Conservatives suggest the labour market has become over-regulated which has restricted the ability of businesses to compete, and in fact put off some employers from employing workers. The Conservatives are mooting a flexible labour market in which the balance between employer and employees is redressed. They have even gone as far as to suggest they might introduce a “one-in one-out' system for legislation.

All three main parties including the Conservatives, have pledged to extend the right to request flexible working to include all parents of children under the age of 18. The current regulations apply to parents with children under 17 or disabled children under 18, or certain adults who require care. However, they have also confirmed they do not intend to allow all parents to request flexible working, as this would be an unfair burden on employers.

Interestingly, the Conservatives have also proposed increasing the limit for deposits to be paid by a claimant at an Employment Tribunal and increasing the limit on cost awards, in an effort to discourage weak or vexatious claims.

They would also introduce a variation to the system of parental leave, whereby parents were allowed to share maternity leave after the mother had taken the first fourteen weeks. This proposal may include an ability for both parents to take leave simultaneously.

If Cameron wins an outright majority he will be our next Prime minister. If this occurs, he has promised to reduce red-tape and regulation in the hope this will stimulate the economy, and free the hands of employers - watch this space.

Labour
If the Labour Government were to secure a further term this would no doubt result in a steady increase of further employment related legislation. The Labour campaign appears to place more emphasis on flexibility and fairness as opposed to the flexibility promised by the Conservatives. On 8 April 2010, arguably the most significant piece of employment legislation from Labour's thirteen year tenure, came into force. The Equality Act has received limited media attention and this may be due to the fact that the majority of its provisions do not come into effect until October this year. If Labour remain in power provisions including socio-economic duty, equal pay audits and positive action will be introduced reflecting Labour's push for fairness for workers. However, if the Conservatives are elected these particular provisions will not be brought into force.

A Labour Government would also extend the right to request flexible working to include parents of children under the age of 18, but under Labour, only mothers would be entitled to parental leave in the first twenty-six weeks following the birth of a child as opposed to the fourteen weeks proposed by the Conservatives.

If Gordon can avoid further trips to Rochdale he may cling on to his throne, and if so we can expect to see the introduction of further legislation and in Labour's view a fairer labour market.

Liberal Democrats
The Lib Dem's proposals for dealing with employment legislation are not as far reaching as the Tories' suggestion of 'one in, one out', but they too have felt the need to manage the introduction of further employment legislation.

Of the three main parties, the Democrats have the most radical proposals with regard to requests for flexible working, which they envisage extending to all employees, not just parents and carers. The party has suggested that the current system leads to dissatisfaction among other staff and negative connotations with regard to flexible working.

The Liberal's proposals for maternity leave are similar to those of the Conservatives in that paternity leave would take the place of maternity leave in a singular system, allowing parents to share twelve months leave between them in whatever way they elected.

One of the Democrats more interesting proposals would be to name.-blank job application forms, so that the name of the applicant is not revealed, in an attempt to prevent discrimination occurring from the outset of the job application process. Instead, application forms and CVs would use an alternative method of identification such as a National Insurance Number. This proposal is in response to research showing it is more difficult for candidates with an ethnic name to receive a positive response from an employer, than an English named candidate.

One place where the Liberals and Labour find common ground in contrast to the Conservatives, is with regard to their policy of increasing National Insurance contributions, whereas Cameron has said he will stop the increase altogether for anyone earning under £35,000. Clegg would of course counter this with his proposal of not taxing anyone earning less than £10,000.

If the election results in a minority Government, Clegg might be able to secure the implementation of some of his policies in brokering a deal for a coalition. If so, his tactic of disagreeing with both of his main rivals on different policies will be reflected in his de-regulation of legislation and an increase in the rights of employees.

If come 7 May 2010 we have a hung parliament and a coalition between Labour and the Lib Dems we are likely to see a slight curbing of the introduction of further regulation and an increase in the rights of employees.

If you require advice on any employment related matter please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

The Importance of a Will

Did you know that if you are single or divorced with a child under the age of 18, under the rules of intestacy your child would be the sole beneficiary of estate.

However, because they are a minor, they would be unable to deal with the administration of your estate so who would do it on their behalf?

The answer is that it would usually be the person who has parental responsibility for them, which could mean your former spouse or partner would be entitled to delve around in your personal affairs.

More often than not, a split from a partner or spouse can be less than amicable and hence they are generally the last person anyone would want nosing into their bank statements and around their home.

Many people think their parents would deal with it. Wrong. They would not have the authority to do so.

In addition to which, your former partner or spouse would have to appoint someone to act with them to hold your child's inheritance on trust until the child reaches the age of 18. Your former partner or spouse can appoint whoever they wish, such as their new partner or spouse. Would you really want them looking after your child's money?

Many people under estimate the importance of making a Will.

The above is just one example of one situation which can arise as a result of not making a Will.

Another is where you are cohabiting with another as a couple. If you die without leaving a Will, the rules of intestacy make no provision for a cohabitee and thus your partner, on your death, could suddenly find themselves homeless if they are living with you in your home. It can also cause problems where you own the property together because the property may not automatically pass to the surviving joint owner.

The only option your partner would have, would be to make a claim against your estate which would delay the administration of your estate, be costly and cause more upset at a time which is already difficult.

Furthermore, they could end up with less than what you would have wanted them to have.

A Will can deal with both of these scenarios and many more. A Will can also alleviate so much of the stress your loved ones would have to deal with if they were to find themselves in one of these situations.

A Will offers you and your loved ones peace of mind that your wishes are going to be carried out by people you trust and your estate is going to exactly who you want it to go to rather than what the law dictates.

To discuss Wills further or to make an appointment to make a Will, please do not hesitate to contact Melanie Cotterill on 01752 292244

Wolferstans Launches MyInjuryLawyer.co.uk

Wolferstans has launched a new Website, MyInjuryLawyer.co.uk, exclusively for its clinical negligence services this week.

Wolferstans' medical negligence team is dedicated to helping victims of medical negligence. The specialist team has been identified by the UK's leading guides to the profession, Chambers and Partners and The Legal 500, as experts in the field and is also an APIL (Association of Personal Injury Lawyers) accredited practice.

The team have recovered over £50 million in compensation for clients nationwide over the last five years and provide expert advice and help to hundreds of clients every year on a wide range of medical negligence claims.

MyInjuryLawyer remains part of the Wolferstans partnership and is not a separate legal entity.

The new Website features a free phone helpline: 0800 043 4299, which consumers will be able to call seven days a week, 24 hours a day.

Stephen Hanbury, Associate Solicitor, hopes that the new site will become the first point of call for anyone seeking legal advice following a medical accident.

'The MyInjuryLawyer brand aims to offer clarity and transparency in its dealings with anyone seeking impartial, professional advice in circumstances where they suspect that the standard of medical treatment or care afforded to them or their loved ones has been substandard'.

The Website can be accessed by clicking here myinjurylawyer.co.uk.

If you would like to find out more about MyInjuryLawyer then please e-mail Stephen Hanbury or contact him on 01752 663295.

Employment law - what's around the corner?

As we approach the end of the financial year, employers must brace themselves for a number of changes to employment law effective from 6 April 2010. April 2009 saw the repeal of the Statutory Dispute Resolution Procedures and automatically unfair dismissals, the introduction of the new ACAS Code and a rise in statutory holiday entitlement. The consequences of the developments for 2010 may not appear to be as significant, but there is no doubt their introduction will still have a major impact on an employer’s business.

New rights to request time off to train

From 6 April 2010 employees working for employers with more than 250 employees will have a new right to request time off to train. This is a considerable development in the rights of employees. An employee must have been employed for 26 weeks and the training must be for the purpose of improving both their effectiveness at work, and the performance of their employer’s business. The right will be extended to all employees, regardless of the size of their employer from 6 April 2011.

There is no right for an employee to be paid for the time off once it has been granted and the amount of time allowed off is at the discretion of the employer. The employer may elect to grant all, part, or none of the time off requested by the employee.

An employer may refuse a request completely if they think that one of the specified business reasons applies. These include the effect on ability to meet customer demand, the costs burden, inability to re-allocate work or a belief that the training would not improve the employee’s effectiveness or business performance. In these circumstances, it will not be difficult for an employer to justify refusing a request. However, if an employer does not comply with the correct procedure or fails to consider the request, this could lead to claims to an Employment Tribunal.

Additional paternity leave and pay

From 6 April 2010 parents of babies born (or adoptive parents) on or after 3 April 2011 are eligible for additional paternity leave and pay. An eligible employee (who would usually be the father) will have the right to take up to six months’ paternity leave if the mother returns to work early. Part of the leave will be paid if taken during the mother’s paid leave period.

While in reality a parent will not be eligible for additional paternity leave and pay until on or after 3 April 2011, employers should consider updating their policies and procedures as soon as possible and by the end of 2010 at the latest. That said, if the Conservatives were to come to power according to their policy statements and pledges; they will be looking to introduce a new system of flexible parental leave, giving parents 52 weeks leave that can be shared between them. Please look out for further articles on this subject on our website.

Fit notes to replace sick notes

From 6 April 2010 a GP will only be able to tick either (1) 'Not fit to work' or (2) 'You may be fit for work taking account of the following advice' and there will be no option for 'fit to work'. The theory is to encourage greater communication between employers and their employees' GPs. However this stream of communication will always be restricted by the fact that a GP's ultimate responsibility is to their patient. For further information on this development please see the article entitled Fit Notes to Replace Sick Notes which can be found under the Employment Law News Tab under Employment Law on the website.

If you require advice on any of these developments including a tailor-made and updated paternity policy please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

Pioneering Plymouth Heart Doctor to Face Misconduct Hearing

Wolferstans has been instructed by a number of clients who have expressed concerns about treatment they, or their loved ones, have received from Dr Joseph Motwani, who was employed as a Consultant Cardiologist at Derriford Hospital in Plymouth from 1999. Dr Motwani was suspended from the Trust in 2008 and is due to face a General Medical Council hearing in the summer.

Plymouth Hospitals NHS Trust have conducted a thorough internal investigation involving nearly 600 patients of Dr Joseph Motwani, who was employed as a Consultant Cardiologist from 1999. The investigation, which has taken nearly 2 years, has identified a number of patients who may have received sub-standard care from the cardiologist. A consultation process is underway with some of the patients involved.

Wolferstans is a Plymouth based firm of Solicitors with a highly regarded, specialist Clinical Negligence department. The firm has experts who are members of the specialist Clinical Negligence panels of the Law Society and Action against Medical Accidents. It also has a contract with the Legal Services Commission for the provision of Public Funding (Legal Aid) advice.

Partner Barry Bayley said "We understand this is a very difficult and upsetting time for patients and their families, and are happy to advise anyone who has concerns over the care they have received.
"It must be remembered that the majority of the patients investigated were found to have received safe and appropriate treatment. However it is inevitable that some patients and families will have concerns, and I would urge anyone with concerns to contact a specialist clinical negligence Solicitor who will be able to give sensible and proper advice."

For an initial discussion with one of our specialist medical negligence team of lawyers please contact Polly Atkinson on our dedicated number 01752 292219 or email her at patkinson@wolferstans.com.

Budget Update - Freeze on Inheritance Tax

In the Budget, the Chancellor froze the level of the nil rate band for Inheritance Tax purposes at its current level, until the tax year 2014/2015.

This is the first time in over 15 years that the Nil Rate Band has been frozen for such a period of time, as it has typically increased year on year in the Budget since 1995.

The impact of this calls into question Inheritance Tax planning that you may have undertaken in your Will.

The Nil Rate Band is the amount at which you pay Inheritance Tax on your death at 0%. It is currently £325,000 per person, meaning that subject to your individual circumstance, you will pay Inheritance Tax at 40% on the balance of your Estate. All transfers between spouses and to charities are exempt, and there are more specific reliefs that may also be available.

In 2007 the transferrable Nil Rate Band was introduced. Prior to this, if a spouse left everything to his wife, there is no Inheritance Tax to pay on his death, but when his wife subsequently passed away, she only had her own Nil Rate Band to use. This meant that she would have to pay the Inheritance Tax upon everything over the Nil Rate Band, including that which she had inherited from her husband. The same is true in reverse.

The Transferrable Nil Rate Band introduced the possibility of transferring to your spouse the Nil Rate Band so that on the second death there was the possibility of using two Nil Rate Bands. One of the advantages to this is that when the Nil Rate Band increases year on year, if there is a time lag between the deaths, the available Nil Rate Band on the second death can be more than would have been available on the first spouse's death.

However, now that the Nil Rate Band no longer seems set to increase for the foreseeable future, it may not be so advantageous to utilise the transferrable Nil Rate Band. There are other important planning steps that can be taken in your Will or during your lifetime to mitigate your Inheritance Tax liability and preserve your assets, which may be more advantageous This may include setting up Trusts within your Will or during your lifetime or taking certain steps with your assets.

With everything else increasing in value and with house prices set to rise in the future, with the Inheritance Tax Band remaining static, it is highly likely that your Estate or the Estate of someone you know will fall into the tax bracket and Inheritance Tax will be payable. It has therefore never been more important to review and revise your Will and your tax planning and take specialist advice as to savings that may be made.

Wolferstans have a dedicated Wills and Trust Department who can assist you in all elements of tax planning, will drafting and preserving your assets. Contact Samantha Buckthought, Head of the Wills and Trust Department at Wolferstans on 01752 663295 or at our Plymstock office on 01752 401515.

Landlord's Intention Must be Long Term

When a tenant's lease is governed by the Landlord and Tenant Act 1954, the landlord has limited grounds for refusing to renew the lease. One possible ground is that the landlord wishes to make use of the premises for its own business purposes.

In a recent case, a tenant who had applied for a new lease had his application opposed. The landlord argued that he wished to use the premises in order to run a retail news agency. He offered to give an undertaking that he would not use the premises for any other business purpose for a period of two years.

The tenant believed that the landlord wished to have possession of the premises so that he could sell them, even though the property was not on the market and no prospective buyer was in place.

The legislation does not specify for how long a landlord must intend to occupy premises for the purposes of his business in order to be able to oppose the renewal of a lease. However, the Court of Appeal considered that if the landlord's intention was to sell the property within five years, he did not intend to occupy it for a long enough period to satisfy the ‘for the purposes of his own business' condition.

The undertaking offered by the landlord merely prevented him from running any other type of business and was limited to two years. It did not require the landlord to trade and the landlord had closed an adjacent business he owned.

On the balance of the facts before it, the Court ruled that there was sufficient ground for doubting the landlord's intention to use the property for his own business purposes and the application to refuse a new lease to the tenant therefore failed.

Landlords who wish to obtain possession of leases covered by the Act can expect the courts to adopt the five-year time period referred to above as a rule of thumb for determining whether or not they have successfully made out the case that they require the premises for the purposes of their own business.

Contact Clare Magill or Cindy Rai for advice regarding Landlord and Tenant issues.

Buyers Who Won't Buy - What To Do?

Many developers have been faced with the problem of having to persuade buyers, who bought 'off plan' before the credit crunch struck, to complete their purchases in the light of the subsequent decline in property prices.

If you are faced with such a situation, it helps to understand the buyer's dilemma. Where buyers are reliant on mortgage finance, they may have a real problem as the security they are able to offer may no longer be able to support the mortgage. Although low interest rates mean that financing the repayments has become easier, the combination of lower property prices and more stringent loan to value criteria may create significant problems in such cases. In any event, interest rates are expected to start edging up this year.

Some buyers may seek to renegotiate the purchase price, based on the premise that selling the property elsewhere might be problematic. Some may simply walk away from the transaction hoping that a forfeit of the deposit is the only recompense you will seek and you will re-market the property. In each instance, the best action to take will depend on a number of factors, so take advice.

One possibility in such cases, however, may be to agree to take a second mortgage on the property, which at least presents the possibility of obtaining the amount 'left in' when the property is eventually sold. The provider of the primary mortgage would normally have to agree to such an arrangement. An alternative might be to enter into a shared ownership agreement.

If no other solution can be found, then you could consider serving a notice requiring completion and then, if this does not produce the desired result, taking an action for specific performance, which, if successful, will require the buyer to fulfil the contract and buy the property.

If you are a developer and have, or expect to have, problems with reluctant buyers, contact Bill Duncan for advice.

Ex-Partner Bound by Partnership Accounts

In a partnership, the investment capital on which the business is founded is normally supplied (at least in part) by the partners. Their earnings are credited to their individual accounts in the business and the money withdrawn by each is deducted from their individual account.

When a partner retires, there will almost always be an amount due from the partnership to the partner or vice versa. A partnership agreement therefore normally contains a provision that the final partnership accounts for any period will bind the partners, so that there is agreement over the amount due to or from the retiring partner.

It is not unusual for figures in the firm's accounts to be disputed. What is less common, however, is the situation in which partners claim that the accounts do not bind them. A recent case dealt with precisely such a claim. An ex-partner contended that he was not bound by partnership accounts that covered the year during which he left the partnership because he was not a partner at the end of the year for which the accounts were prepared.

The argument was that the relevant clause of the partnership agreement, which contained a procedure for contesting accounts and which bound 'all partners', did not apply to the retired partner because he was no longer a partner.

The Court of Appeal made short shrift of the claim, deciding that the point of such a clause was to bind anyone who had been a partner in the business for any part of the year in question. It was clearly not intended to create a situation in which some of the partners during the year would be bound by the accounts and others not.

In this case, it needed the Court of Appeal to give the clarity to the legal relations which the partnership agreement did not. A well-drafted partnership agreement is a very sensible precaution, no matter how well you think you know your partners, or your prospective partners, and no matter how well you get along.

Contact Roger Sands for advice on partnership and shareholders’ agreements.

Monthly Rental Payments - BRC Keeps Campaigning

The British Retail Consortium (BRC) has been campaigning for the past few years to try to encourage more commercial landlords to accept monthly rental payment arrangements instead of the quarterly payments commonly used. Although the BRC began pushing for changes to the way retailers pay landlords before the recession, it has become an even more significant issue as many businesses are struggling to make ends meet.

The BRC has had some success in persuading more landlords to accept monthly rather than quarterly payments of rent by retailers. According to the BRC's Monthly Rents Survey, since January 2008, two thirds of new leases contain monthly payment terms. However, a BRC survey carried out at the end of last year showed that only 12 per cent of retail leases are on a monthly payment basis and 40 per cent of these are for a temporary period only, for example permitting the retailer to pay monthly for one year only. It was also found that 90 per cent of those who had switched to monthly payments had been, or would be, subject to extra charges.

Although the BRC's campaign has made good progress as regards new leases, there is still a long way to go to convince landlords to accept monthly payment terms on existing leases without penalising those retailers who switch to this type of payment plan. As economic uncertainty continues to impact on businesses, it benefits both landlords and retailers to keep shops open where possible, rather than have empty premises. This can be more easily achieved if retailers do not have to find the funds to pay their rent three months in advance.

Whether you are a landlord or a tenant, if you need advice relating to a tenancy agreement, we can help. Contact Clare Magill or Cindy Rai.

Pregnant Women and Risk Assessments

The Management of Health and Safety at Work Regulations 1999 require all employers to carry out an assessment of workplace risks that could harm employees and to do whatever is 'reasonably practicable'to control these risks. In particular, Regulation 16 requires that where women of childbearing age are employed and the work is of a kind which 'could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any processes or working conditions, or physical, biological or chemical agents', the assessment must include risks specific to new and expectant mothers.

In O'Neill v Buckinghamshire Council, one of the claims made by Mrs O'Neill, a junior school teacher, was that the head teacher of the school where she worked had failed to carry out an assessment of the risks her job entailed after she was informed of Mrs O'Neill's pregnancy and that this constituted pregnancy-related sex discrimination.

The Employment Tribunal (ET) found that the employer had not failed in its duty to carry out a risk assessment as there was no need for one because the Regulations did not apply to Mrs O'Neill's work. Mrs O'Neill appealed, contending that the specific health and safety requirements with regard to new or expectant mothers meant that the Sex Discrimination Act 1975 (SDA) required a regime of positive discrimination regarding possible adjustments to a woman's work similar to that contained in the reasonable adjustment provisions of the Disability Discrimination Act 1995. She argued that in her case, once it was known that she was pregnant, a disciplinary procedure instigated on account of various aspects of her work should have been stopped. However, the Employment Appeal Tribunal (EAT) held that this claim sought to apply a model of law which the SDA does not support.

Mrs O’Neill further claimed that a risk assessment should have been carried out because of the potential risk to her health and safety from stress and the additional risk of catching coughs and colds. The EAT found, however, that no evidence was produced to the ET from which it could have been concluded that Mrs O'Neill's work involved a risk of harm or danger to her as a pregnant worker as defined by the Regulations.

The EAT agreed with the argument put forward for Buckinghamshire Council that there is no general obligation to carry out a risk assessment with regard to all pregnant employees so that a failure to do so amounts to discrimination per se. Whilst it is clearly prudent for employers to carry out a risk assessment for all pregnant workers, the obligation to do so will only be triggered in certain circumstances. These are where:

- the employee notifies the employer in writing that she is pregnant;
- the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby; and
- the risk arises from either the processes or working conditions or from physical, biological or chemical agents in the workplace.

Furthermore, there is nothing in the relevant law to indicate that the employer must hold a meeting with the pregnant worker in order to satisfy the duty to carry out a risk assessment. The employer must, however, inform the worker of the results of the risk assessment. Where risks to the health and safety of a pregnant worker have been identified, the employer must provide comprehensive and relevant information concerning these and must do all that is reasonably practicable to remove or prevent exposure to them.

Employers are advised to make sure they are aware of and fulfil their legal obligations in this regard. We can advise you to make sure you act in accordance with the law and are not open to claims of unlawful sex discrimination.

For any Employment advice please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Massive Litigation Shake-Up Proposed

Lord Justice Jackson's eagerly awaited final report outlining proposed changes to the British system of civil litigation has been published and promises a massive shake-up of the current system, which is considered to impose excessive costs on losers in litigation.

Among the changes proposed are:

- The end of the 'loser pays' principle in British law. A winning defendant’s costs will normally no longer be payable by the claimant in those instances in which the claimant is normally an individual and the defendant an organisation;

- The end of the current system of 'no win, no fee' agreements by making lawyers' success fees and the costs of 'after the event' insurance premiums paid irrecoverable from the losing party. No win, no fee was widely regarded as a panacea when introduced, but in reality has proved problematic; and

- Allowing lawyers to charge contingency fees, by which they receive a percentage of the judgment sum and take the risk of not being paid if the case is not won. In effect, this will replace no win, no fee and should act as a brake on pursuing weak cases.

The current pre-action protocols are to be retained and judges are to be encouraged to become more involved with cases to assist in controlling costs.

Asbestos Statement

The decision by the Lord Chancellor and Secretary of State for Justice (Jack Straw) to uphold the Law Lords' decision, (17 October 2007) that the existence of pleural plaques does not constitute actionable or compensatable damage is a disappointment.

In particular since prior establishment of liability of negligent exposure to asbestos often expedited compensation claims for individuals later diagnosed with mesothelioma, the twelfth most common cancer killer in men and the cancer of most rapidly increasing incidence in women.

The only recourse left for pleural plaques sufferers is very limited. Payments of £5,000 will be made to those who had begun, but not resolved, a legal claim prior to the 2007 ruling, which will benefit anyone left in limbo by the decision. Further details are awaited regarding the extra-statutory payments, but it is expected that anyone diagnosed with pleural plaques following the ruling will have no recourse for compensation.

However, the government's publication of a consultation paper on the issue does offer some hope to mesothelioma sufferers. Since the problem for many sufferers of serious asbestos-related diseases is their inability to obtain full compensation because they cannot trace the employer's insurer of more consequence to many will be the creation of a UK-wide Employers' Liability Tracing Office (ELTO) to manage an electronic database of EL policies and operate an existing tracing service which the Association of British Insurers and the Lloyds Market Association have worked to as a voluntary Code of Practice since 1999. This improvement will be of particular importance where conditions like mesothelioma are concerned, as patients frequently die very soon after diagnosis, leaving little time to trace records and obtain compensation.

However Government plans go further, even with an ELTO there will be some who are unable to trace their insurance records and thus are denied full compensation, so an Employers' Liability Insurance Bureau (ELIB) is proposed, to provide a compensation fund of last resort for those still unable to trace EL.

Aware of the need for immediate action the Government is also to take steps to increase upfront statutory payments currently made to mesothelioma sufferers and their dependants. These will be increased by 1.5%. The Secretary of State for Work and Pensions is also seeking to increase payments to all dependants by up to £5,000, so that awards are closer to those paid to sufferers. Increases which will come into effect on 1 April 2010.

Looking ahead, with a view to reducing the time it takes to conclude future cases, it is proposed that a working group made up of claimant solicitors, trade unions, insurers, the judiciary, and civil servants be brought together to examine litigation practices and procedures for compensation claims relating to mesothelioma, and to seek possible solutions to the difficulties that arise from delays in obtaining medical reports, particularly due to the shortage of medical experts in this area.

Clarification of the limitation period for bringing a claim will seek to resolve difficulties experienced by mesothelioma sufferers as a result of differences in the value of claims settled before or after the death of the person concerned. Such clarification will see the limitation period for bringing a claim run from the date a claimant becomes aware of suffering from mesothelioma.

Further changes to the law will be seen in the Third Parties (Rights against Insurers) Bill, which will enable claims against insolvent employers to be brought direct against the employer's insurer. However the most welcome news of all is the Secretary of State for Health's request that Department of Health officials consider and advise on how best to create a world-leading network of medical research practitioners for asbestos-related disease, and an announcement that the insurance industry will contribute £3 million towards research into asbestos-related disease.

Other asbestos related diseases such as Pleural thickening/Fibrosis, Asbestosis, asbestos related lung cancer and Mesothelioma are unaffected by the decision, and claims against employers in these cases are still actionable.

For more details contact James Walsh, Head of our Industrial Disease Department or telephone James on 01752 292260

Fit Notes to replace Sick Notes from April 2010

No one is very happy with the present system of GP sick notes. GPs are widely felt to sign them off all too readily without any clear idea of the nature of the patient’s job. Often there might be plenty of useful work the employee could get on with, but the poor old employer has no say in the matter. Well, all of this is about to change...

Following last year's consultation on replacing sick notes with 'fit notes' the Government has announced sweeping reforms from April 2010. The most significant change is that a doctor will now be able to consider whether their patient 'may be fit for work taking account of the following advice' as opposed to the current system where the doctor can only certify whether the patient is fit to work or not. There will be no option for a doctor to certify a patient as fit for work.

So the onus will be on the employer to make a decision as to whether to allow a return to work. A further substantial change is that the new 'fit note' will also list a number of suggested measures an employer could introduce to assist a return to work such as: 'a phased return to work' 'amended duties', 'altered hours', and 'workplace adaptations'.

The theory behind the new 'fit note' system is that it will reduce the UK economy's sickness absence bill. The measures seek to encourage communication between the employer and the employee's doctor in an attempt to increase the possibility of an early return to work and reduce the chance of long term absence. This seems to be a very good idea.

Measures to facilitate an early return should now be identified at an earlier stage. However, if employers ignore the doctor’s advice they could find themselves at an increased risk of claims for disability discrimination. Another risk is that the recommendation from the doctor will be too costly or problematic to implement.

The Government may face some opposition from doctors and GPs who will be reluctant to give an opinion on whether their patient can or cannot complete their job and what changes may facilitate an early return.

The key from an employer's perspective will be to ensure that the GP or doctor has a full understanding of the workplace environment, the job undertaken by the employee and what changes if any could be accommodated to facilitate an early return to work.

The theory of greater communication at an earlier stage between an employer and their employee's doctor is a good one, but there are bound to be teething problems with the introduction of the new system.

If you require advice on the change of the system please contact either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.

Rights for unreliable workers

Much hilarity has greeted the refusal this week of a Norfolk Jobcentre to publish an ad for a reliable cleaner. The phrase, 'must be very reliable and hard-working' was rejected on the grounds that it may discriminate against unreliable people.

If there are any unreliable people reading this, we are sorry to say that you have no special legal protection. We have checked. And having recovered our composure, we began to wonder what on earth the Jobcentre manager was worried about. Disability claims maybe? On balance we think it is more likely to be to do with ageism. The thought process may have gone something like this – young people are unreliable, so anything that weeds out unreliable people must be age discrimination.

Adverts all too often ask for staff who are enthusiastic or dynamic, by which they mean young, or at least “younger than me”. And although many employers now boast of having a more mature workforce, we are rarely asked to check over adverts for mature, steady, experienced or – here it comes – “reliable” staff.

It is all rather reminiscent of the scrape Ryanair got into when age discrimination was first introduced, and they were pulled up by the Irish Equality Authority over an advert for “young and dynamic” staff. Because the Equality Authority there has novel powers, they were fined, ordered to tell all their staff, had to review their equal opportunities policy and publish a statement in the Irish Times confirming their commitment to the various strands of equality law in Ireland. It ran:

“So here goes. We solemnly swear that Ryanair does not discriminate on the grounds of race, colour, ethnic or national origin, sex, marital status, sexual orientation, age, disability or membership of the Travelling Community.”

It added that Ryanair would continue to be an equal opportunities employer, and “only discriminate by selecting the best person for the job! Even if they happen to be young, dynamic and enthusiastic!”

Hopefully no similar statement is required in this case, ending in the words “even if they happen to be reliable“. For advice and guidance on unreliable staff, contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351.

Mercy Killing is Not the Same as Assisted Suicide

Following high-profile 'right to die’ cases, which have spawned extensive public debate, and two criminal 'mercy killing' cases which reached different verdicts on seemingly-similar facts, the Director of Public Prosecutions (DPP) has issued guidance on the factors which the Crown Prosecution Service (CPS) will apply when determining whether to bring criminal charges against those involved or not.

The DPP draws a clear distinction between assisted suicide and 'mercy killing' and is unequivocal that the latter is murder or manslaughter under the law and will remain so. Assisting someone to commit suicide is a criminal offence, punishable by up to 14 years' imprisonment. However, provided the guidelines are followed, criminal prosecution is unlikely.

These guidelines are of interest to the thousands of sufferers of terminal diseases - especially those in great pain - and their families.

The factors which make a prosecution more likely in assisted suicide cases relate mainly to situations in which:

- the victim and suspect are not closely connected or payment was involved;
- the victim was physically able to kill them self;
- the victim was a minor; and
- the assisted suicide appears to be part of an organised activity.

The factors which will make a prosecution less likely are:

- if the victim has a clear wish to die and made that known;
- if the victim was physically unable to commit suicide;
- if the victim had a severe degenerative illness, disability or incurable severe physical handicap;
- if the suspect had sought to dissuade the victim from committing suicide;
- if the suspect’s role was minor in assisting the suicide;
- if the suspect was a close relative or friend of the victim and wholly motivated by compassion; and
- if the suspect co-operates with the police.

Wolferstans Says 'Leaving aside moral issues, assisting in the suicide of a loved-one is a terrible emotional burden and the guidance will provide some comfort for those caught in this awful dilemma. However, the guidelines do give the CPS the maximum amount of latitude to bring prosecutions and the guideline that the suspect was 'wholly motivated by compassion’ could easily be regarded as not met if the suspect would have any financial or other benefit from the death of the sufferer. The guidelines should most definitely not be regarded as a 'green light' for assisted suicide.

Wolferstans goes live with Wills register

'Certainty.co.uk, the UK's first 'on-line registry for Wills' has launched in Plymouth with Wolferstans Solicitors as a Founder Member, after almost 20 years' of lobbying for a register of this nature', says Samantha Buckthought, Head of Wills, Trusts and Probate at Wolferstans Solicitors. The register enables rapid registration of a Will and the ability to search for lost or missing Wills.

In a recent public survey commissioned by Certainty, 67% of people surveyed were unaware of the location of their parents' Will. Certainty.co.uk is launching with a unique offer whereby 12.8 million free of charge Will registrations are available to the general public to be used in association with solicitors. Wolferstans is naturally participating in this launch and offering free registration to any of their clients who have made their Wills with Wolferstans prior to 5^th October 2009.

If you're one of the 67% of people who don't know where your own or your parents' Will might be, then you may one day be glad of this Will register which has just been launched and which can easily locate a Will when needed. Over time circumstances change, you might move house or enter a new relationship and keeping your Will safe may be the last thing on your mind. But now your solicitor can register your Will with certainty.co.uk and this will allow your family to locate your Will when you pass away and ensure that your last wishes are respected.

Certainty's Chairman, Kevin Martin and Law Society President 2005/06, holds the firm belief that Certainty provides a definitive solution supported by technological investment and consultations with key legal figures. Kevin, who is spearheading the initiative says, 'We believe Certainty is the first organisation to actually provide a compliant solution to the chronic problem of Will registration.'

What happens if you don't register?

If your Will is not found or worse still, if you haven't made one, then your loved ones may not receive the inheritance that you would wish but would get the proportions laid down by law, and of course family disputes can occur. So for your own peace of mind, the best advice is to make or review your Will with your solicitor and ask them to register it with Certainty.

The recent explosion of unregulated Will writers, online and home do-it-yourself Will packs is confusing and these Wills cannot be registered, only those prepared by a solicitor can be registered.

Samantha Buckthought of Wolferstans says: 'Everyone who cares what happens to their assets after they die should make a Will and review it regularly especially when they experience a major life change such getting married, having children or moving house. Having your Will registered is one of the most important things you can do for your loved ones - our clients will now have the peace of mind that their loved ones can easily locate their Will when the time comes'

Wolferstans is recognised as a specialist in all areas of Wills, Trusts, Probate, and Elderly Client work. We have a dedicated team with extensive experience in acting for clients across a broad range of situations which include the preparation of Wills, Court of Protection and Appointment of Deputies, Administration of Estates, Powers of Attorney and Inheritance Tax Planning.

Contact Wolferstans Solicitors for more information with regard to registering your Will.

Samantha Buckthought - 01752 292216 Email: sbuckthought@wolferstans.com or Melanie Cotterill - 01752 292244 Email: mcotterill@wolferstans.com

Pensions - 'landmark reforms'

Or so they have been described by Pensions Minister, Angela Eagle. On 12 January 2010, a package of eleven sets of regulations relating to pensions auto-enrolment and the other employer duties was laid before Parliament.

Plans have been forming for some time to beef up employee pensions, with a marked preference on both sides of the political divide to introduce auto-enrolment - with employees automatically signed up to a scheme unless they opt not to bother. This is a considerable step further than the stakeholder pension rules, which never really had the impact expected.

During 2009, the Department of Work and Pensions conducted three separate consultation exercises on different elements of the new regime. In September they published draft regulations, and have now unveiled a government-established scheme, previously referred to as personal accounts, but now to be known as NEST - National Employment Savings Trust.

From 1 October 2012, employers will be required to auto-enroll workers in a pension scheme and make minimum contributions. That last bit is likely to be the contentious part.

According to Yvette Cooper, announcing these changes:

"All employers will be required to pay into a pension for their workers for the first time. We have responded to the concerns of business to make the introduction of these reforms as straightforward as possible. Start-up businesses will be given valuable extra time to prepare for these changes as we come out of recession.

"The cost to all of us of doing nothing in the face of an ageing society is too great to ignore. Currently 14 million people get no contribution from their employer towards a pension and around 7 million people are not saving enough for their retirement'.

The draft regulations are a complex set of provisions, but there is time to get to grips with them. There will be a staging process for smaller employers, with the smallest given up to four years to comply. Start dates will vary from 1 April 2012 to 1 March 2016.

Detailed rules will have to be mastered regarding the mechanics of the enrolment process, certifying or self-certifying existing schemes, and detailed compliance points, such as reporting obligations, record keeping, interest and penalties for late contributions,

For employers who have not previously had a contributory pension scheme this may be a considerable headache. For advice and guidance, contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351.

Retirement changes look imminent

In recent weeks Equalities Minister Harriet Harman has signalled a major change in the law on retirement, with huge implications to all of us who have yet to reach that milestone. Only a few weeks after Ms Harman's Equality Bill was announced in the Queen's Speech, with no mention of retirement ages, a measure of far more sweeping effect has been announced in an interview with the Daily Mail and in a speech to the charity Age Concern and Help the Aged.

At present, employers are allowed to dismiss staff when they reach the age of 65, without any redundancy payment, even if they do not want to retire. This comes as a surprise to many, who assume that the recent laws on age discrimination prevent this happening. In fact those new rules generally work against older staff, by making it harder for employers to dismiss them once they have passed the age of 65. The recession has made this worse, with retirement of staff at 65 being used as an alternative to redundancies for younger workers.

As Ms Harman said in her speech:

"People are remaining active and healthy well into their older years. But at the moment there is no legal backing for you if you want to stay at work, so what we are proposing is a massive public policy change.”

The new ideas include not just a change to the compulsory retirement age, but also allowing workers to make flexible working requests to adjust their working hours as they get older.

All this may well have been prompted by a legal challenge to the retirement rules brought last September by Age Concern and Help the Aged, who argued that they infringed European Law. Mr Justice Blake said that there was a "compelling case" for a change in the law, but upheld the present age only when the government undertook to review the retirement age by this April. And since it looks as though the government intends to remain in place until May, there seems to be a good chance that these proposals will be enacted shortly.

Employers will need to review their retirement procedures shortly, and amend contracts of employment dealing with retirement age. For further assistance contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Taking Control of Your Future

There has been much press coverage recently regarding the Court of Protection. The Court of Protection is a body designed to protect those people who lack mental capacity to make decisions for themselves.

This may include young people who have had some form of injury, or the elderly, and in this age of living longer, it is increasingly likely that the Court of Protection will be involved in all of our lives.

If you lose mental capacity and have not taken steps to put in place arrangements for what is to occur with your property and your affairs, the Court of Protection will become involved and may appoint a Deputy to control those affairs. This may not necessary be the person you would have chosen for yourself. The procedure is lengthy, onerous and can be costly, with the Court being involved throughout the lifetime of the incapable person. Acting as a Deputy for someone is a difficult role, with a lot of paperwork involved and cost.

Whilst the Court of Protection is currently looking at ways in which their procedures can be streamlined and made less costly, the current systems are likely to be around for some time, and it is therefore a good time to consider what would occur if you were not able to manage your affairs through absence, illness or incapacity. What affect would this have on your family?

You can take control of what would occur should this happen, by some advanced planning and preparation of a Lasting Power of Attorney. This is a document that appoints an attorney/attorneys who can take control of your affairs and make decisions on your behalf if you were unable to do so. You can give to an attorney power to deal with financial and legal matters, or decisions including your health and welfare, to include medical treatment.

There have been recent changes to Lasting Powers of Attorney which mean that it is easier to prepare one than ever before and the cost and procedure, in comparison to that involved with the Court of Protection, is minimal. You can give guidance to your attorney(s) as to how decisions are to be reached, place restrictions or conditions as to what they can or cannot do and, most importantly, choose the person who is going to be looking after your affairs, which may not occur in the event that you became incapable and a deputy were to be appointed by the Court of Protection.

Advanced planning in this way protects not only your affairs and your family, but enables you to remain in control even if you are unable to make these decisions yourself.

Wolferstans' Wills and Probate Department have a specialist team involved in the preparation and use of Lasting Powers of Attorney and would be pleased to assist with any queries that you have. Please contact either Melanie Cotterill or Sam Buckthought on 01752 663295.

Wolferstans advises Argyle shareholders

Western Morning News article

Separate Use Planning and VAT

VAT isn't the first thing you tend to think of when you look at the wording of a planning consent, but the VAT payable on the construction costs of a property can be severely affected by the wording, as a recent case shows.

It involved a man who wanted to build a new dwelling on the grounds of his listed manor house. The new building was completely self-contained and he claimed the works were zero-rated as they were alterations to a protected (listed) building under item 2 of Group 6 of Schedule 8 to the Value Added Tax Act 1994, because the building had been constructed on the site of a former cottage and pig sties that had been demolished.

The planning consent specified that the new building could only be used 'for purposes either incidental or ancillary to the residential use' of the existing property. The question that arose was whether the wording meant that the planning permission prohibited separate use of the dwelling.

Under VAT law, a property can only be zero-rated if separate use is not prohibited, but did the planning permission mean that separate use was prohibited? HM Revenue and Customs claimed that it did and therefore the building works were subject to VAT.

However, the VAT Tribunal accepted that as the dwelling was a separate building, it could not be argued that it had to be used by the same family as used the manor house. It could be used, for example, by relatives or visitors. Furthermore, there was no prohibition in the planning permission against selling the new building separately.

There was, therefore, no prohibition on separate use, with the result that the building was zero-rated for VAT.

Are LLP Members Employees

In many ways a Limited Liability Partnership (LLP) is as much like a company as a partnership. Recently, an LLP member who was required to retire from the LLP claimed he had been unfairly dismissed.

The Employment Appeal Tribunal concluded that he was not an employee of the LLP and could not therefore bring the claim. The main reason for rejecting his argument that he was, in effect, an employee was that the Limited Liability Partnerships Act 2000 provides that a member of an LLP is not to be considered an employee if, had the LLP been a normal partnership, he would have been considered a partner. If he would not, then the common law tests for determining whether he is or is not an employee are to be used.

The Employment Tribunal had been correct to consider first whether the claimant was a partner in the LLP. Having found that he was, it correctly considered the common law tests and decided that they would not have conferred employment status on him.

Eoin Fowell of Wolferstans say 'It is always important in any partnership for the legal relations between partners to be clearly defined. Partnerships can present complex issues: we can advise as necessary.'

All all Employment advice and guidance please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Disability Discrimination -

Employment disputes often arise because an employer does not consider that an employee's condition is one that qualifies them for protection under the Disability Discrimination Act 1995 (DDA). It is therefore important that the definition of disability contained in the DDA is understood and interpreted in a consistent way.

For the purposes of the DDA, someone has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If the impairment ceases to have such an effect, it is to be treated as still having that effect if it is likely to recur.

Furthermore, an impairment which would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

In SCA Packaging Ltd. v Boyle, the House of Lords has ruled that the word 'likely' should be taken to mean 'could well happen'.

Mrs Boyle suffered from nodules on her vocal chords. She had undergone surgery to remove them and several months of speech therapy, after which she continued with a strict regime that involved voice exercises, resting her voice, sipping water and trying not to raise her voice. She attributed the non-recurrence of the nodules to her adherence to this regime of preventative measures.

In 2000, an office re-organisation was planned. Managers intended to remove a partition, which would expose Mrs Boyle to more noise and thus require her to speak more loudly. She argued that this was a failure to make reasonable adjustments for her disability. SCA Packaging Ltd. denied that she was disabled for the purposes of the DDA.

The House of Lords upheld the decision of the Court of Appeal that in determining whether an impairment would be 'likely' to have a substantial effect without the measures taken to treat or correct it, 'likely' means only 'could well happen'. The more exacting test, whereby 'likely' was held to mean 'more probable than not', should no longer be used. It is sufficient to establish that the condition 'could well recur'. Having established therefore that Mrs Boyle was disabled for the purposes of the DDA, the case was returned to the Employment Tribunal for hearing on its merits.

Eoin Fowell of Wolferstans says, 'This decision clarifies the protection employers must afford to employees who suffer from a disability but who can carry on normal day-to-day activities because their condition is kept under control by medication or a prescribed course of treatment. We can advise you to ensure that your actions do not lay you open to a claim of unlawful disability discrimination.'

Zero Rate plus Standard Rate equals Standard Rate

Property developers should take note of a little-reported VAT case, in which a fairly common VAT planning device has been challenged by HM Revenue and Customs as an ‘abuse’.

The case arose because a developer wished to build and sell holiday homes (which were to be built as such, the buyers not having the right to use them for year-round occupation) on land which had been ‘opted to tax’ for VAT purposes. Because the effect of the option would be to make the sales of the properties subject to VAT (which the buyers could not recover), the deal was constructed in two stages. In the first, the opted land was sold to the purchasers of the holiday homes and then a contract was made between a company related to the vendor of the land and the buyer for the construction of each property. This latter contract would be zero rated. Had the land and buildings been sold in a single transaction by the developer, the whole transaction would have borne VAT.

The VAT Tribunal concluded that the arrangement was an abuse and the entire transaction should carry VAT at the standard rate. Although an appeal against this decision, which seems unusually harsh, must be on the cards, developers in similar circumstances should take care not to compromise their position irrevocably until the result is finally decided.

Electric Shock for Developer

When a developer bought a piece of land, intending to build an office block, it was in for a shock. The land benefited from an easement granting access over adjacent land (the garden of a house). This allowed the right of passage of utility companies over and through the adjacent land.

The developer applied to electricity company EDF to put in an electricity supply to its land, which required EDF to lay cables through the adjacent land. EDF refused to do so unless the owners of that land signed a deed granting it the right to lay the cables. The landowners refused.

The developer went to court, claiming that the landowners were obliged to give the grant to EDF. The claim failed. The landowners could not stop EDF from laying the cables but an easement cannot compel the person(s) granting it to do something – in this case, it could not compel the landowners to give EDF the deed it demanded.

Interestingly, what appears to have started this off was the failure of anyone to discuss the proposed digging of cable trenches with the owners of the garden prior to their receipt of a notice that work was intended. One cannot help but wonder if the issue could have been avoided altogether had a more considerate approach been taken.

Contact Cindy Rai for advice on any commercial property or landlord and tenant matter.

Careful Drafting Essential to Preserve Rights

Careful drafting of all legal agreements is critical, as was illustrated by a recent dispute between a landlord and tenant.

The tenant was a well-known retailer of home furnishings and hardware, which entered into a corporate voluntary arrangement (CVA) with its creditors in 2007, having arranged to sell its share capital to a quoted company to provide a dividend for the creditors.

The company's landlord did not attend the meeting at which the CVA was approved. However, a sum of £200,000 was provided in the CVA as a provision against the company’s liability to the landlord for unpaid rent and dilapidations. The CVA made no specific provision to deal with any claim by the landlord under the terms of the lease.

The landlord later submitted a claim for more than £1/2 million, which included a claim for an extra year’s rent because the landlord expected that would be the void period before a new tenant could be found and the rent payable by the new tenant would include a discount for a period.

The landlord could not reoccupy the premises until the supervisor of the company’s CVA had entered into a deed of surrender of the lease. This was necessary for the landlord to attempt to mitigate its loss. A deed of surrender was therefore entered into.

The supervisor wrote to the landlord advising that the surrender extinguished all the landlord’s claims against the company except for £176,000 by way of dilapidations, rent and service charges unpaid at the date of surrender.

The supervisor claimed that the surrender had put an end to the lease. The landlord could not therefore claim for any future rentals after the date of the CVA because the future rents etc. were not specifically compromised (dealt with) in the CVA document. The landlord argued that its claim was compromised in the CVA and the later surrender of the lease did not affect that position.

In court, the terms of the surrender were examined carefully and the court found that it was quite clear that it preserved the landlord’s rights under the CVA. Indeed, the whole point of the CVA was to create a binding compromise between the company and its creditors. The wording of the deed of surrender was crucial to preserving the landlord’s rights.

Accordingly, the landlord's claim was upheld.

We can advise you how best to protect your rights if you have a tenant who becomes insolvent.

Retirement Changes Look Imminent

Retirement Changes Look Imminent
In recent weeks Equalities Minister Harriet Harman has signaled a major change in the law on retirement, with huge implications to all of us who have yet to reach that milestone.
Only a few weeks after Ms Harmans' Equality Bill was announced in the Queen’s Speech, with no mention of retirement ages, a measure of far more sweeping effect has been announced in an interview with the Daily Mail and in a speech to the charity Age Concern and Help the Aged.
At present, employers are allowed to dismiss staff when they reach the age of 65, without any redundancy payment, even if they do not want to retire. This comes as a surprise to many, who assume that the recent laws on age discrimination prevent this happening. In fact those new rules generally work against older staff, by making it harder for employers to dismiss them once they have passed the age of 65. The recession has made this worse, with retirement of staff at 65 being used as an alternative to redundancies for younger workers.
As Ms Harmen said in her speech:
"People are remaining active and healthy well into their older years. But at the moment there is no legal backing for you if you want to stay at work, so what we are proposing is a massive public policy change

'The new ideas include not just a change to the compulsory retirement age, but also allowing workers to make flexible working requests to adjust their working hours as they get older.
All this may well have been prompted by a legal challenge to the retirement rules brought last September by Age Concern and Help the Aged, who argued that they infringed European Law. Mr Justice Blake said that there was a "compelling case" for a change in the law, but upheld the present age only when the government undertook to review the retirement age by this April. And since it looks as though the government intends to remain in place until May, there seems to be a good chance that these proposals will be enacted shortly.
For any employment queries contact Eoin Fowell, Wolferstans Solicitors, 60-66 North Hill, Plymouth, PL4 8EP Telephone (01752) 663295 or email efowell@wolferstans.com

Blow for Charities as Tax Man moves Goalpost

Charities which acquire buildings face an unexpected blow following the announcement by HM Revenue and Customs (HMRC) that a concession relating to property used for charitable purposes is to be altered. The announcement came out of the blue, with no prior consultation having been held.

Currently, a charity pays no VAT on the acquisition or construction of a new building if it is 90 per cent used for charitable purposes. In practice, this means that charities can let part of their premises to defray costs and not suffer a VAT penalty. However, from 1 January 2010, the proportion of the property which must be used for charitable purposes to qualify for the concessionary treatment will rise to 95 per cent.

HMRC claim that the change will affect few charities and will lead to no increase in the tax take, which rather begs the question as to why it was thought necessary in the first place. HMRC are being subjected to heavy lobbying by representatives of charities, which are already struggling with the effect of the recession on donations. Do not be at all surprised if the Chancellor announces a U-turn in the autumn pre-budget statement. However, if this does not occur, charities considering building or acquiring properties should consider the implications of HMRC’s announcement.

Workers on Long Term Sick Leave - Non-Payment of Holiday Pay

The judgment of the House of Lords in the long-running case of Stringer and others v HM Revenue and Customs (HMRC) will be a blow to many businesses struggling to survive in the current economic climate. The Law Lords have overturned the decision of the Court of Appeal and found in favour of the employees.

The cases concerned HMRC employees who had been off work for substantial periods without pay but who remained employees, for example on account of long-term sickness.

The key issues to be decided were whether a worker who is off work for a long period without pay is entitled to claim statutory paid holiday under the Working Time Regulations 1998 (WTR) even if he or she has not attended work during the relevant period and, also, whether the rules on unlawful deduction from wages are relevant in that situation. Under the Working Time Regulations, there is a three month time limit for such claims. If, however, claims can be brought under the Employment Rights Act 1996 (ERA) and it can be shown that the claim is part of a series of unlawful deductions then, provided a claim is brought within three months of the last deduction, there is no time limit on how far back the claim can go.

In January 2009, the European Court of Justice (ECJ) dealt with the first issue, ruling that employees who have been on sick leave for a long period should be allowed to take accrued holiday on their return to work or be paid in lieu at their normal rate of pay if the employment relationship ends without them returning to work.

Further to this finding, the House of Lords has unanimously agreed that holiday pay does count as wages and, where it has not been paid, a claim can be brought for unlawful deduction from wages under the ERA.

Whilst this decision brings clarification regarding some aspects of this issue, questions still remain. Although the ECJ held that the right to take holiday is not extinguished if an employee is on long-term sick leave, it is up to the national courts to decide whether paid leave can be taken during a period of sickness or whether it should be carried over to another year. As things stand, the WTR in the UK state that workers must take a minimum of four weeks’ holiday in each leave year and the payment in lieu of untaken minimum leave is not permitted except on termination. It will therefore require further case law or a change in the legislation to resolve the remaining problems.

Eoin Fowell of Wolferstans say, “This decision opens the way for backdated claims by employees on sick leave who have been denied their entitlement to paid holiday. Employers are advised to seek advice when dealing with this complex issue.”

For all Employment advice and guidance, please contact Eoin Fowell on 01752 292350 or James Twine on 01752 292351

Swine Flu - Guidance for Employers

Although the rate of increase in new swine flu (influenza A H1N1) cases is reported to be abating, there are still more than 100,000 new cases a week and a surge in infections is expected as the winter approaches, with the first wave anticipated in late August to late September.

The swine flu virus is an unusual strain, not only because it has proven to be highly infectious in the summer months but also because it seems to affect young children more severely than it does the middle-aged. Thus far, more than 30 people have died after contracting the virus. Pregnant women and those with underlying health problems are considered to be particularly at risk. See below for a list of known high-risk groups.

Swine flu has several potential implications for firms, for example:

Liability for failing to take steps to prevent the spread of the infection, particularly amongst those known to be in a high-risk group, and to maintain a safe working environment. Have you carried out a risk assessment yet?
The impact on staff who remain at work, if they work longer hours than usual in order to cover for staff who have contracted the virus;
Problems which may arise if an outbreak results in you failing to deliver to one of your customers or you have a supplier or contractor who lets you down as a result of swine flu (which may be considered to be ‘force majure’). Consider your potential liabilities should either event occur and check your insurance position carefully.

It will be a fortunate business that is left completely unscathed by the virus but there are steps that you can take to protect your staff and keep them informed so as to improve the chances of keeping your business up and running. Be prepared to be flexible. Could staff work from home? Are there alternative ways of doing business other than by direct contact, for example teleconferencing instead of face to face meetings?

Given that employees are likely to be able to self-certify themselves as unfit for work for up to a fortnight, employers must be prepared to deal with the disruption the pandemic may cause. If you have not already done so, put in place contingency measures for dealing with mass absenteeism. Consider what steps you can take to prevent staff returning to work too soon.

Examine all your staff policies and procedures to make sure they are compatible with any situations that may arise. For example, does your sickness policy cover the position of a member of staff who is healthy but who has to take time off work because they have caring responsibilities for someone else who is infected?

Make sure you have up-to-date contact details for all your staff and know who to contact in an emergency.

As always, when considering measures you can take to protect employees, it is important to take care not to overstep the line between protecting them and violating their human rights.

If you are concerned about the effects of swine flu, we can help you to formulate a management strategy to deal with it. Contact Roger Sands at Wolferstans as soon as possible for advice tailored to the individual needs of your business.

Swine Flu: Known High-Risk Groups

People in the following groups may need to start taking antiviral drugs as soon as they are diagnosed with the illness. Doctors may advise some high-risk patients to take antivirals before they develop symptoms, if someone close to them has swine flu.

It is already knownthat people are particularly vulnerable if they have:

· chronic lung disease;

· chronic heart disease;

· chronic kidney disease;

· chronic liver disease;

· chronic neurological disease (neurological disorders include motor neurone disease, multiple sclerosis and Parkinson's disease); and

· immunosuppression (whether causedby disease or treatment);or

· diabetes mellitus.

Also at risk are:

· patients who have had drug treatment for asthma in the past three years;

· pregnant women;

· people aged 65 and over; and

· children under five.

For more information on swine flu, see the DirectGov Swine Flu pages at

http://www.direct.gov.uk/en/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_178842.htm

and

http://www.direct.gov.uk/en/Swineflu/DG_177831.

Procol Harum Co-Writer Wins Share of Royalties

Co-Writer of 1960s Hit Wins Share of Royalties

More than 40 years after the Procol Harum song ‘A Whiter Shade of Pale’ topped the UK charts, organist Matthew Fisher has finally won a share of the royalties, following a decision of the House of Lords.

Mr Fisher, who claimed he wrote the organ introduction to the 1967 hit as well as parts of the melody, won a claim in 2006 in the High Court, which awarded him 40 per cent of the royalties from the tune from the date of bringing the action as well as recognition as co-writer. However, this decision was overturned two years later in the Court of Appeal, which ruled that Mr Fisher was entitled to credit for co-authorship of the song but had no right to royalties as he had waited nearly 40 years before making a claim. His right to royalties was always denied by the band’s leader Gary Brooker and lyricist Keith Reid.

Mr Fisher appealed to the House of Lords, which awarded him damages plus an entitlement to a share in future royalties from the song. In his judgment, Lord Hope wrote that ‘a person who…did so much to make the song in its final form such a success, is entitled to protect the advantage that he has gained from this and to earn his reward’.

The tune has been estimated to generate six-figure annual royalties, even four decades after it spent five weeks at No 1.

The bitterness of the conflict is illustrated by the fact that Procol Harum released in 2006 a ‘40 year’ limited collectors’ edition of the song crediting only Matthew Fisher and Keith Reid and bearing the words ‘Gary Brooker the original composer of A Whiter Shade of Pale declines to share this credit until a decision is made by the Court of Appeal…’. He and Fisher will clearly not be on each other’s Christmas card lists.

This was one of seven cases on which the House of Lords issued judgments during its final sitting. In October, the UK Supreme Court will replace it as the highest court in the land.

“This decision opens the door to a number of similar claims,” says Roger Sands of Wolferstans. “Under UK law, the work of writers and composers remains under copyright until 70 years after their death. If you have failed to receive recognition for such material or you are worried you may be faced with a similar claim, we will be happy to advise you.”

The claim also highlights the need to make sure proper contractual arrangements are put in place whenever valuable intellectual property is being created, so that the financial interests and future rights of each participant are clear.

Landmark Right to Die Ruling

Law Lords Issue Landmark Right-to-Die Ruling

In an unprecedented decision of the House of Lords, a terminally ill woman has won the right to clarification from the Director of Public Prosecutions (DPP) on the circumstances in which a relative of someone who wishes to end their life will be prosecuted under the Suicide Act 1961 if they travel with the person wishing to die to a country where assisted suicide is legal.

Debbie Purdy, who suffers from multiple sclerosis, wanted to know whether her husband, Omar Puente, would risk prosecution if he accompanied her to an ‘assisted suicide clinic’ in Switzerland. So far, 115 people have travelled from the UK to end their lives in this way. No prosecutions have yet occurred but because of the uncertainty surrounding the issue, some people seeking to end their lives have travelled abroad alone rather than risk their relatives being prosecuted for assisting them. Others have remained in the UK to suffer what Lord Hope described as ‘a distressing and undignified death’.

The DPP had previously refrained from giving specific guidance in Ms Purdy’s case. The Court of Appeal ruled that by so doing the DPP was not acting unlawfully and did not breach Ms Purdy’s right to private life under Article 8 of the European Convention on Human Rights. The judge’s reasoning was based on the fact that only Parliament can change the law relating to assisted suicide and as the law stands now it is drafted to cover a wide variety of circumstances.

However, the five Law Lords hearing the case unanimously ruled that the DPP must issue a policy statement stating the circumstances in which those who help someone to travel abroad to end their life might be prosecuted. The Suicide Act provides that ‘a person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years’. This is the first time that the courts have requested that the DPP outline the circumstances that would lead to a prosecution.

The DPP has said that it will produce interim guidance by the end of September 2009 and will then undertake a public consultation exercise before the final policy statement is issued in spring 2010.

Following the ruling, Mrs Purdy said, “The decision means I can make an informed choice, with Omar, about whether he travels abroad with me to end my life because we will know exactly where we stand.”

Although the decision has been treated as a victory by the ‘right to choose’ movement, it could have the perverse result of making it more difficult for a person to accompany a terminally ill friend or relative. Firstly, it is possible that the DPP may issue guidance which is quite restrictive, which would make the position more certain but at the cost of making a prosecution likely where it was not likely before. Secondly, the fact that the Crown Prosecution Service may not prosecute a case does not mean that a ‘right to life’ group will not bring a private prosecution.

See http://business.timesonline.co.uk/tol/business/law/article6733559.ece.

New Minimum Wage rates announced

The Government has announced new National Minimum Wage (NMW) rates that will apply from 1 October 2009.

For workers aged 22 and over, the rate will increase from £5.73 to £5.80 an hour. The rate for 18- to 21-year-olds will rise from £4.77 to £4.83 and for 16- and 17-year-olds the rate will increase from £3.53 an hour to £3.57.

The accommodation offset will rise from £4.46 per day to £4.51 from 1 October 2009.

Normally, the Low Pay Commission (LPC) publishes its recommendations for annual changes to the NMW rates at the end of February each year. However, this is the first time that the rates have been determined in a recession and the LPC requested an extension to this deadline in order to have access to two months’ additional economic data.

In addition to the rate changes, the Government has accepted an LPC recommendation that the adult rate of the NMW should be extended to 21-year-olds. This will be implemented from October 2010.

The LPC has also recommended that information should be publicly available on employers who have shown a wilful disregard for NMW legislation. The Government has committed itself to developing proposals to achieve this, taking into account the practical issues involved.

The Government will also consider the LPC’s recommendation that a minimum wage be introduced for apprentices and will respond in full to this proposal when it sets the LPC’s remit for 2010.

The Department for Business, Enterprise and Regulatory Reform has already announced that the NMW Regulations are to be changed so that tips and service charges can no longer be used to make up staff salaries to the minimum legal level. This change will take effect in October 2009.

Wolferstans achieves Lexcel quality mark

Wolferstans, the Plymouth based law firm, has been awarded the Law Society’s quality mark Lexcel, the best practice standard for the management of law firms. The scheme looks at all aspects of practice management and helps to ensure that firms deliver excellent client care and a consistently high quality of service above and beyond the Law Society’s statutory conduct rules.

Paul Woods, Senior Partner, Wolferstans, comments, “I’m delighted we have achieved the Lexcel accreditation. It is a formal recognition of the way in which we work, clients come first and we always act in their best interests. It also reflects our thorough in-house systems and processes which enable us to be more effective and efficient in our service delivery. We invest in people and new technology, such as IT infrastructure and the latest software tools, to give an accurate, efficient service that is good value.”

Practice Director Max Goodison comments “Achieving Lexcel accreditation is an important step forward for us. Wolferstans has a high profile and a wide and loyal customer base in and around Plymouth, and is a modern, efficient, and go-ahead firm. We recently underwent a new branding programme to reflect this externally, but achieving Lexcel accreditation underlines our commitment to making quality and efficiency of client service central to everything we do.”

To achieve Lexcel standard firms must have proper structures and policies in place, including documentation for the legal framework under which they operate. There must be a risk management strategy, a quality system, and documented procedures for data protection. Accreditation also highlights people management and requires plans for recruiting and development of personnel.

Wolferstans joins nationwide alliance

Plymouth-based Wolferstans has become a founder-member of an exclusive nationwide alliance of top law firms aiming to fight back after the Government allowed banks and supermarkets to give legal advice.

QualitySolicitors.com is the UK's first national legal brand. It aims to promote use of law firms as opposed to what it describes as the 'call-centres' created after the Legal Services Act allowed law firms to merge with banks and supermarkets to offer legal services.

It has initially selected 100 top firms and said users of the free service will be matched to a solicitor, suited to their particular issue, by a team of legally-trained case handlers.

Clare Magill, Wolferstans' head of commercial law, said: "My concern is that the public are at risk in the current market place.

"There are a plethora of 'non lawyer' web sites which either claim to 'match' consumers with the best lawyer for their needs or direct the consumer to a firm which has paid for referrals irrespective of whether or not the solicitor is the best for the client."

QualitySolicitors.com's chief executive, London-based barrister Craig Holt, said: "Legal services provided by supermarkets, banks or building societies out of mass call centres can rarely, if ever, be the right option for consumers."

Statement from the family of Stephanie Hammacott

This is a very private family, thrust into the public gaze under the most tragic of circumstances. Stephanie was simply walking along the pavement on her way to school when her whole world came to an end. She has been survived by her 2 older sisters and her parents, for whom life must continue. But in essence nothing will ever be the same again.

We have agonised over the many details which have been discussed at the Inquest into our daughter’s death this week. We have listened to all the evidence considered by the jury, and welcome their findings, which concluded in particular that gas escaped from a fracture of the gas main outside no.4 Bulteel Gardens “due to insufficient support below and pressure from above”. The technical evidence of the Health and Safety Executive revealed an apparent failure to support the pipeline, which was the responsibility of Wales and West Utilities (the gas pipeline operator). The jury also heard that when the broken pipe was located the investigators found there had been a previous excavation by South West Water a matter of less than 10 inches away from the gas pipe: whilst excavating to remove the broken gas main they discovered “very loose stone” and concluded it was “a high probability” that the reinstatement had been a “very significant factor” which had contributed to the fracture.

It was quite plain to us that a significant number of other failings on the part of the water and gas companies have been identified, some of which may have further contributed. This includes the drilling of a number of holes which were sunk into the pavement nearby and left open for more than 10 years.

It appears that all iron gas mains are now being replaced. This comes too late of course for Stephanie. Serious questions remain to be addressed about the way in which this replacement work was prioritised.

We recognise that public utility companies provide a valuable service to the community. We receive the benefits of those services and pay our bills. In return for this, we expect these companies to take seriously their obligations to maintain their pipelines and keep them in good repair. We expect them to keep us safe. In this they failed. Last January our Steph paid the price of their failure.

We are painfully aware that nothing which has been said or done can rectify what has happened. Stephanie has been robbed of a life. Any parent who reflects upon this must scarcely dare to imagine what it was like at the scene. We pray that no other family will ever have to suffer what we have been through. There is no such thing as an acceptable number of explosions: the loss of one child is one loss too many.

We want to pay our sincere thanks to the members of the local Constabulary and Coroners Office for their unwavering support and sympathetic handling of this investigation. This event must also have been extremely harrowing for them, and for those members of the public and the various emergency services who attended the scene and bravely tried to help. The family would like to express a heartfelt thank you to all who did so, and to those who have subsequently sought to provide some comfort in the aftermath of these events.

We are indebted to our legal team for their hard work on our behalf: Paul White and Michelle Boulton of Wolferstans have worked meticulously in gathering substantial additional information and analysing all the evidence, the various regulations and codes of practice which have been in existence over the past few decades; and Dr. Michael Powers QC who undertook a detailed analysis of the evidence and carefully questioned all the witnesses at the Inquest. Their compassionate approach and dedicated efforts have helped us through these difficult past months.

The elderly occupants of No. 4 Bulteel Gardens Ron and Renee Cloke somehow managed to survive the blast. Quite how they did so we cannot really absorb, but when we learned this we were relieved for them. It must have been terrible for them to witness the destruction of their home and a lifetime of possessions.

Some things can simply never be replaced. Our daughter can never be replaced. We shall forever remember Stephanie as a bubbly girl, full of fun and mischief.

We miss our Steph. We loved her when she was with us. We always will.

Paul Hammacott
Carol Hammacott
and the girls

27 February 2009

Wolferstans enters Chestnut Cup

Wolferstans have entered a team in the 6-a-side football Chestnut Cup on Sunday 26 April 2009 at Marjons in Plymouth.

The competition is being organised by the Chestnut Appeal to help sufferers of prostrate cancer and the families across Devon and Cornwall.

The aim of the Chestnut Appeal is to increase awareness; fund specialist nurses; and fund the latest treatments not available on the NHS.

The football team will be sponsored to enter the Cup and if you wish to donate to the Chestnut Appeal in this respect, please contact our James Walsh, who heads our Industrial Disease and Injury Department.

Credit Crunch - Government Brings Forward Support for Home Owners

Credit Crunch – Government Brings Forward Support for Home Owners

Following the Prime Minister’s announcement that more support would be given to home owners struggling with mortgage arrears, the Department for Work and Pensions has announced that the new package of support under the Income Support for Mortgage Interest (ISMI) system is being brought into immediate effect. It had previously been scheduled to start in April 2009.

The most important change is that the waiting period needed to qualify for ISMI has been reduced from 39 weeks to 13. In addition, ISMI will now pay the interest on mortgages up to £200,000 – the previous limit was £100,000.

The Council for Mortgage Lenders estimates that there could be as many as 75,000 homes repossessed in 2009.

“The Government’s move is one of a package of measures being introduced to help home owners cope with the effects of the credit crunch,” says Sue Williams head of our residential property department. “Home owners who find they are struggling to keep up with their mortgage repayments should take professional advice as soon as possible. It is often possible to negotiate with your lender to reschedule payments and demands for repossession can often be successfully opposed if legal advice is taken.”

For further information, please contact Susan Williams on 01752 292343.

Home Information Packs - More Changes

Home Information Packs – New Changes from 2009

The Government has announced further changes to the Home Information Pack (HIP) regime by introducing the necessity for a ‘Property Information Questionnaire’ (PIQ) for all properties marketed for sale after 5 April 2009. The PIQ will provide basic, useful information about a property including a summary of the leasehold if any and will be contained within the HIP.

In addition, the current arrangement whereby a copy of the lease is the only additional requirement in the HIP for leasehold property sales is, from 1 January 2009, to be a permanent requirement. The temporary ‘first day marketing’ exemption is being abolished, meaning that a basic HIP must be in place before a property is marketed - providing certainty to consumers that a HIP will be available.

Agents will still be able to advise about properties they expect to come on the market, but not to market them.

There are other changes to the HIP regime of lesser significance.

For further information on how this may affect your house sale, please contact Susan Williams on 01752 292343.

Wolferstans launches new look

Plymouth solicitors Wolferstans has unveiled a new look and branding, which is currently being rolled out in its publicity material and new website. The refreshed look has been designed in co-operation with design agency Bluestone360 who considered the 'brand values' of the firm and how these could be reflected in the final style.

Practice Director Max Goodison comments 'Wolferstans has a high profile and a wide and loyal customer base in and around Plymouth, but people may not appreciate what a modern, efficient, and go-ahead firm we are behind the scenes. The new logo and branding have given the firm a more modern look, turning our long-standing two-dimensional graphic into a three-dimensional version with perspective and lighting - still instantly recognisable, but more reflective of the firm we now are.

Though Wolferstans continues to operate out of the same premises in North Hill, with a further office in Plymstock, over the past year or two much work has been undertaken behind the scenes to ensure that the firm stays at the forefront of legal services in Plymouth. Among projects undertaken are the complete outsourcing of its IT infrastructure; the upgrading to latest case management and management reporting software tools, and preparations for Lexcel accreditation.

Paul Woods, Senior Partner, says 'I hope you like our new look. The colours, shapes and fonts used send out a strong and positive message. We are a confident, modern legal firm committed to getting the best possible results for our clients. We invest in able people and new technology to give an accurate, efficient service that is good value. This is the reality of what Wolferstans is about. The fresh new logo and corporate branding material convey to the world exactly who we are right now.'

Wolferstans

Wolferstans has helped a father of two win his High Court battle after a tragic skiing accident in the French Alps left him paralysed.

Hazardous Area

Mr Anderson, a relatively inexperienced skier, was taken “off-piste” by his Ski Instructor to a steep, unmanaged mountainside littered with hazardous trees.

Mr Anderson was skiing with a group when they were instructed by the Ski Instructor to head down towards the trees and to veer off to one side.

Mr Anderson comments that:

“The terrain was steep. We had not skied off-piste on this kind of slope before and I felt anxious knowing that I had found off-piste skiing difficult earlier in the week”.

However, Mr Anderson, who was described by the Judge as “well mannered and courteous”, placed his trust in the Ski Instructor’s guidance and did not “want to split up the group”, so he continued to attempt the slope.

Terrible Accident

Unfortunately, Mr Anderson lost control of his skis and sped downhill, crashing into a tree. On impact Mr Anderson suffered ‘devastating’ injuries and was rendered tetraplegic.

“Clear potential for serious injury”

In his Judgment, Mr Justice Foskett stated that Mr Anderson “should not have been on this slope” and that the Ski Instructor “took his eye off the ball” in failing to notice how much Mr Anderson was struggling.

The Judge acknowledged that “skiing is an inherently risky pastime” and it is generally accepted that those choosing to ski accept some risk of injury.

However, in these circumstances, the Instructor failed to ensure that the terrain “was a reasonably safe piece of terrain for all members of the group” not just the more established skiers, and there was “clear potential for serious injury” particularly in regard to the presence of the trees.

As a result, the Ski Instructor was held two thirds liable for the accident.

The costs are to be met by the Ski Instructor’s Insurers.

To reflect the inherent risk in skiing and Mr Anderson’s decision to continue, Mr Anderson was held one third liable for the accident.

Forefront of legal Challenge

After hearing the successful judgement, Mr Anderson offered his thanks to the legal team at Wolferstans, particularly Andrew Warlow, Partner in the Head and Spinal Injuries Department:

“The support that Wolferstans offered me was at all times professional, thorough and timely. I am particularly grateful to Mr Warlow and the Head and Spinal team for being so approachable and dependable in leading me through this challenging process.”

Wolferstans | News Feed

ACT NOW to recover wrongly paid nursing care fees

Retirement at 65

Mediation - 12 months on

Wolferstans Commercial Department Newsletter - April 12

Unquenchable

Services - Should the Landlord Charge VAT?

Breach of Planning Permission Negates Commencement of Development

Unpaid Invoice Does Not Prevent Break Notice

Breaches of Rights of Access

Evidence Neglected Not Good Reason for New Hearing

Late Registration of Title Means Battle

Property Manager Fined for Failing to Manage Asbestos

Partner or Employee?

MIRROR, SIGNAL, MANOEUVRE!

Coach Chris helps law firm staff get on track

FREE Will Service launched by Wolferstans and Age UK Plymouth

Lump Sum Option for Small Pension Plans

Wolferstans support new launch of Age UK Plymouth

Mesothelioma sufferers given boost by supreme court

Housing Law Changes

Gas Bill Victory a Warning for Property Managers

Covenant Not Overridden by Planning Permission

Pensions Deadline for Small Businesses Delayed

Fraud and the Director

EU Proposals for Data Protection Reform

Companies Take Note - Dividends Can Be Proceeds of Crime

Accident Reporting Changes

Law Firm raises £4k for children's ward

Lawyers Guilty of Astonishing Undercharging

Giving with one hand and taking back with the other  break clauses.

Dying to be a Teacher?

Are you out of touch with what is happening with Employment Law?

Kate Westmacott, Practitioner member of the Law Society Panel

Talented Chefs at Wolferstans cook to raise money for charity!

Choosing the right Family Law solicitor

2012 Christmas Card Appeal

Vince Cable's Speech to the Engineerng Employers Federation

Vast increase in inheritance disputes

The Dangers of Homemade Wills

Radical Reforms!

Employees on long-term sick to miss out on holiday pay!

Compulsory No Fault Dismissal

No Lottery Win for Husband!

Vacant Possession Means What it Says

Amenity Value of Land Stops Development

Court Decides Limits of Expert's Responsibilities in Claim

Human Rights Claim for Compensation Succeeds for House Owners

Unclear Lease Terms Cost Subtenant

Are your Website Images Legal?

Failing to Prevent Bribery - Are you at Risk?

Late Legal Representation Proves Expensive

Investment Partners Entitled to View Documents

Compulsory Purchase - Appropriate Compensation

The Truth, The Whole Truth

Jockey's Attempt to Breach Covenant Falls at Second Fence

Court Reversal for Vendor who did not know what he had sold.

Collective Redundancy - The Election of Employee Representatives

Asbestos and all that......

Tom Phipps Joins Wolferstans

The Stroud Stitson Partnership

Government Proposals - Fees for ET's and a Two Year Qualification Period

Facebook Bash at Boss - OK!

Developer Cannot Avoid Liability by Failing to Market Development

Demolition Requires Planning Permission

Defective Wording does not Remove Liability

'Enjoyment' has Limited Meaning for Tenant

Council Possession Orders Vindicated

Council has Right to Adjourn if Information Insufficient

Competition Law Challenge on Landlord Fails

Court of Protection Comes to Rescue of Problem Trust

Buyer Loses Flat When Vendor's Error Not Rectified

Competition Act Extended to Land

New Associates

Collaborative Law - An Alternative Approach to Divorce

Estranged Daughter Succeeds in Claim Against Mother's Estate

Buying a Property - What do I need to do?

Wolferstans are pleased to welcome Mala Mandalia to their growing specialist family law team.

Wolferstans are one of the first law firms in the area to be accredited under the recently introduced Law Society's Conveyancing Quality Scheme.

Is Your Septic Tank Registered?

Services - Should the Landlord Charge VAT?

Companies Take Note - Dividends Can Be Proceeds of Crime

Giving with one hand and taking back with the other break clauses.

Facebook Bash at Boss - OK!