Governance of Solicitors in the UK

As reported last July, property fraud is on the increase and as a result, the Land Registry has nominated July as ‘Scams Awareness’ month. If you own property please take a moment to:

As part of lifetime planning, it is really important to make a Will but it is becoming equally important for people of all ages to also consider making Lasting Powers of Attorney (LPAs). A Will deals with your affairs following your death, but a Lasting Power of Attorney looks after you and your affairs whilst you are still alive whatever age you are.

The Angel Group consisted of eight companies, all of which had been placed into administration by a mixture of floating chargeholder’s appointment, director’s appointment and Court Order.

The new Insolency Rules will come into force on 6th April 2017.

The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

Two sisters have been ordered to pay their late father’s girlfriend almost a third of their inheritance payment, after she was deemed “a wife in all but name.” This is the latest story to cause families to reflect carefully on their particular circumstances and to take steps to protect the family and avoid emotional stress as well as avoiding large legal costs.

The continued housing shortage across the UK is hardly surprising, but according to the Royal Institution of Chartered Surveyors (RICS) rents could rise by as much as 15% by 2023 as the supply of new rental property dries up.

According to recent statistics, more than 98,500 people handled probate without the help of any professional services, such as legal or accountancy advice, last year – around 38% attempted to execute wills on their own. It led to an increase of around 35% of cases that end up in court because of disputes relating to wills and probate.

Another high profile case has hit the headlines, where divorced parents are in disagreement over child support claims, but it is something that can affect anyone – high profile or not.

The rise in interest rates announced yesterday was reported to be at the highest level since the recession in 2009. How will these rises affect mortgages, savings and property in general?

Last week we covered off some of the issues associated with Lasting Power of Attorney and what happens if family members take advantage. Not only does this often lead to financial difficulty for the vulnerable family member, but it can also cause a lot of heartache for other family members involved.

The Owens v Owens case has thrown open the debate surrounding “no fault” divorce once again. Whilst the Divorce etc. Law Review Bill remains up in the air, there are more cases appearing where there are simply no legal grounds for a divorce.

Following on from an earlier article on inheritance tax (IHT), there was mention of a way to make provision for your children, without being involved in a long period of running a trust and incurring IHT charges including the costs associated in running a trust. The answer might be creating a Bare Trust.

The Brexit White Paper of 12 July 2018 suggests what the future of skilled EU migrants in the UK might look like, but the wording is vague. In this analysis for Thomson Reuters, Downs Head of Immigration Samar Shams tries to decode the government’s plans for skilled migration from the EU.

The case of Mills v Mills has thrown open the debate once more, surrounding upkeep of non-earning partners in the event of a divorce. How easy is it to financially support a separated partner, but also guarding the interests of each party?

The Home Affairs Committee has published Downs Solicitors’ submission to its inquiry on post-Brexit migration policy. The submission, drafted by Head of Immigration Samar Shams, makes suggestions relating to the future of work and the realities of corporate restructurings. Samar argues for appeal rights and gender equality, and the reduction of application fees. Samar also warns that mobility negotiations might lead to overly complex immigration rules and requirements.

In this month’s Employment Law Journal, Downs’s Head of Immigration Samar Shams offers practical advice on GDPR compliance. The analysis covers immigration contexts including the resident labour market test and visa applications as well as right to work checks. The article is designed to support employers in this developing area of compliance.

A story in the news at the weekend highlighted an important point: how can you ensure you keep control of your finances, after you have legally signed them away?

On your death, everything you own that is part of your estate will be liable to 40% inheritance tax (IHT), which could cost your loved ones thousands of pounds. The only way to help reduce paying any IHT unnecessarily is to plan as effectively and as early as possible to ensure your family is protected – and your wishes are respected. Here are a few things to consider for your IHT plan.

We wrote an earlier blog relating to research from the SFE, which revealed an incapacity crisis-causing gulf between those who planned for mental incapacity and those who didn’t. Despite a growing concern among individuals, and how their mental state may deteriorate, it seems that excuses for not getting their affairs in order are boiling down to a few common myths.

We’ve been closely following the case of Rebecca Steinfeld and Charles Keidan, who have just won their battle in court to be granted a civil partnership. As well as the case raising questions around equality – until now only same sex couples have legally been allowed to enter into a civil partnership – there are ethical issues too.

There is something of an unspoken topic in the headlines at the moment – that of mental incapacity and what we should do with respect to your wishes during future life.

The well-documented case of Rebecca Steinfeld and Charles Keidan has barely left the headlines whilst the court ruling continued as to whether or not the couple would be granted a civil partnership. Now the Supreme Court has unanimously ruled in favour of the couple, what could this mean for other couples in future?

As the temperatures set to reach record levels in the UK over the next week or so, there’s no doubt that many of us will be enjoying the great outdoors. But, what about those long office hours in stuffy, windowless buildings? Are employees entitled to go home if it is too hot? Do they have a “right” to air conditioning, for example?

The Home Office published a Statement of Intent on 21 June 2018 setting out the application processes EU nationals and their family members will have to undertake to stay in the UK beyond the post-Brexit transition period. The Statement does not indicate when exactly the application process will open, stating only ‘late 2018’. The settlement scheme will be introduced in phases, and will open fully from 30 March 2019. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.

The Tech Nation (formerly Tech City) visa scheme has gradually become useful. The Tech Nation scheme falls under the Tier 1 (Exceptional Talent) visa category, for migrants with outstanding achievements or promise in their fields. During Tech Week , the Home Office published (another) Statement of Changes in the Immigration Rules. The changes take effect next month and include changes to the Tech Nation scheme which will be of interest to migrant techies.

You may have already heard of Universal Wealth Preservation but, if you haven’t, there’s plenty you can read about them in the headlines. However, the case has recently come to light again, as the company’s owners have been arrested in connection to a number of offenses – and families are wondering if they will ever see their hard-earned cash again.

Even those who are not football fans will probably be aware that the Football World Cup competition starts in Russia on 14 June. ACAS have produced some guidance to assist employers in dealing with the issues that are always thrown up by tournaments of this kind.

There are just a few days to go before the GDPR legislation will come into force, but according to a recent poll, 89% of organisations in the UK remain “confused” by GDPR. Organisations will need to act fast if they have not already made progress with the new legislation – here are a few tips from us to help you along the way.

A Will is on everyone’s ‘to do’ list. But do you know what would happen to your children if the worst were to happen? Here are 5 reasons why you should put a Will in place in order to protect your little ones:

New Home Owners Day is celebrated on 1st May, but, whilst buying a house is supposed to be one of the most stressful things we encounter during a lifetime, we can help make house buying and selling a little less painful with these tips.

Yes, it is an awkward topic, but there are many modern families that do not see eye to eye. Whilst it is easier to let bygones be bygones in the land of the living, what should you do if you need to discuss your family affairs in the event of your death?

Tuesday 10th April represents National Equal Pay Day – and what better time to be talking about it than now? With the first phases of Gender Pay Gap reporting now in the news, the spotlight is firmly on businesses to account for their pay data.

It’s National Love Your Children Day on Saturday 7th April, which is a good time to reflect on how important our family is to us. In many legal scenarios, we often consider our nearest and dearest when it comes to protecting ourselves – and our children’s future. Lasting Power of Attorney is something that is difficult to consider, but, when it comes to allowing someone you trust, like your children, to take over your family affairs, it is an extremely important document.

With less than two months to go until the new General Data Protection Regulation (GDPR) comes into force, are you and your business ready for the new requirements?

National Reconciliation Day (2 April) yesterday reminds us of the importance of reconciling our differences, particularly for couples. We’ve all resorted to the fool proof “yes dear”, which promised to be the secret to a strong relationship in years gone by.

The Equality and Human Rights Commission (EHRC) has published a report, Turning the tables: ending sexual harassment at work report recommending steps to strengthen protection for victims of sexual harassment, promoting transparency and placing a legal duty on employers to take effective steps to prevent sexual harassment. The report has also recommended an increase in compensation levels for victims where this duty has been breached.

Organisations that have not yet published their gender pay gap information by the deadline next week could face unlimited fines.

Author: Matthew Kilgannon

The Employment Tribunal (ET) is not known for making cost orders, in fact they are quite rare.

Specialist employment law Partner, Matthew Kilgannon, discusses last month’s first Employment Appeal Tribunal (EAT) decision on parity of terms for Agency workers.

Author: Nigel Cook

The case arose because of a purported appointment of administrators following the filing of a notice of intention (NOI) by the directors (which had to be given to the floating chargeholder) but immediately after a winding up petition had been filed by the judgement creditors who also opposed this application. This appointment was invalid because of para 25 of Schedule B1.

Author: Nigel Cook

In this case, the Court of Appeal considered a challenge to an Administrator’s appointment under paragraph 14 of Schedule B1 made by a floating charge holder.

Author: Richard Middlehurst

The perplexing case last February of the millionaire mushroom farmer is set to become a test case for “ unreasonable behaviour “.

Recent research by Legal and General revealed that it’s ‘the bank of mum and dad’ that is the 10 biggest UK mortgage lender. As house prices rise, particularly in the South East, it means that more and more first and second time buyers are relying on their parents, either to provide a substantial deposit or to assist in the payment of Stamp Duty.

Author: Matthew Kilgannon

Following the decision to remove fees in the Employment Tribunal (and our earlier article on the subject – available here), the Government has now launched the opening wave of its refund scheme.

Author: Chris Millar

The High Court has held that a discussion between business people in a pub did not create an oral contract as there was no intention to create a legal relationship.

Author: Caroline Walton

Following the Grenfell Tower fire, the Department for Communities and Local Government has published a collection of useful information on fire safety for tenants and residents aimed at people who might have concerns about the building in which they live. These can be found here.

Author: Nicola O'Dwyer

With an increase in the number of older women within the workplace, the menopause appears to becoming less of a taboo subject. This has also been assisted by the exposure that has been given to the subject of the menopause in the media.

Author: Tim Hughes

We are often approached by clients who say they are thinking of gifting their home, or other property, to their children or other family members to “save tax”.

Author: Chris Millar

Progress reports are now dealt with in Part 18 of the IR 2016.

Where the directors/company give notice to appoint an administrator, the notice must include a Statutory Declaration. That Statutory Declaration must be made not more than 5 business days before the notice of appointment is filed with the Court.

Author: Chris Millar

(a) The High Court has confirmed in the recent case of Mohammed Safier v Wendy Wardell [2017] EWHC 20 that third party funds should not be paid into the ISA, and therefore do not attract the Secretary of State’s administration fee.

Author: Chris Millar

In the first instance, the creditors committee fixes the basis of the administrator’s remuneration. If the creditors committee fails to do so, or there is no creditors committee, then the creditors, as a body, must be asked to fix the administrator’s remuneration. If the administrator has delivered a paragraph 52(1)(b) statement i.e. there will be nothing to distribute to unsecured creditors, then only the secured creditors and the preferential creditors need be asked.

Author: Nigel Cook

In response to a threat by its Landlord to exercise its right of distress over the company’s assets, the company’s sole director filed a Notice of Intention to appoint an administrator and served it on the qualifying floating charge holder thus creating the interim moratorium under paragraph 43. Successive Notices of Intention followed and upon the filing of the fourth Notice the Landlord applied for an order to remove the last Notice on the grounds that it was an abuse of process. In fact, the company was proposing a company voluntary arrangement otherwise than through an administration.

Author: Nigel Cook

The Company had granted to a bank a debenture containing fixed and floating charges i.e. qualifying floating charges over its assets. An unsecured creditor had obtained a Freezing Order preventing the company from disposing of or dealing with those assets covered by the debenture. The Debenture included express power to appoint a Receiver to sell the charged assets and also to act as agent of the Chargor company. The Bank applied to the Court for an Order to vary the Freezing Order so as to allow it to appoint a Receiver.

Author: Tanaz Nowrouzzadeh

Asbestos has historically been used in a broad range of industries, including the construction of buildings. We now know that asbestos carries significant health risks and in 1985 the UK banned the import and use of asbestos. Despite this ban, asbestos can still be found in many buildings and the people who are most at risk from asbestos are workers who disturb it without realising it is there and surveyors when carrying out inspections of those buildings

Three Jersey incorporated companies owned shopping centres in England and each had granted qualifying floating charges to its main lender, Nationwide Building Society (NBS).  NBS entered into arrangements with the respondents to share the funding risk with the respondents and to sell the loan. 

Author: David Seals

In Officeserve Technologies Limited (in liquidation) and another v Anthony-Mike, the High Court held that a settlement agreement entered into between a company and one of its directors during the period between a winding up petition being presented and the making of the winding up order was void.

Author: David Seals

In Federatie Nederlanse Vakvereniging and others v Smallsteps BV (Case C-126/16), the European Court of Justice considered how the ARD applied to a pre-pack. The insolvent business consisted of 380 childcare centres employing 3,600 staff in Holland.

Author: Matthew Kilgannon

Background

It appears that, in the last few weeks the Southampton Employment Tribunal has agreed to grant a Claimant, an extension of time to bring her claims.

Author: David Seals

In BAE Systems (Operations) Limited –v- Konczak ("K") the Court of Appeal rejected the employer’s argument that an award of compensation of £360,178 in a discrimination claim was excessive.

Author: Joanna Pashley

Did you know that from April 2017 an additional allowance for inheritance tax came into force which could save your estate up to a further £350,000 by April 2020? This has the potential to take a married couple’s total tax allowance to £1 million.

Author: Emily Kidd

What are Employment Tribunals?

Most UK employment rights are enforceable through the Employment Tribunals. Employment Tribunals were originally set up so that the layperson could bring a claim in an informal setting which did not require them to have legal representation. Any legal costs were usually borne by each of the parties, unlike the civil courts where the losing party was usually ordered to pay both parties’ costs.

Author: Matthew Kilgannon

On 25 May 2018, the General Data Protection Regulation (GDPR) will replace the Data Protection Act. While the GDPR is a European Regulation, the UK Government has confirmed that the UK’s exit from the EU will not affect the commencement of the GDPR.

Author: Albina Khad

Is your company’s balance sheet affected by aging debt and you are looking to recover it from your debtor? If so, prior to commencing court proceedings, you will now be expected to comply with the new Pre-Action Protocol for Debt Claims (the “Protocol”), which comes into force on 1 October 2017. It can be located on the Ministry of Justice website and will apply to a business (including sole traders and public bodies) (the “Creditor”) claiming payment of a debt from an individual (including a sole trader) (the “Debtor”). The Protocol does not apply to “business to business” debts unless the Debtor is a sole trader. Failure to follow the Protocol will put you at risk of costs sanctions being imposed against you by the court. It’s aim is to encourage communication and resolution without the need to issue proceedings.

Author: Victoria Walker

The recent case of Sharp v Sharp which went to the Court of Appeal, deals with how assets should be shared for DINK’s * when the marriage has not been a long one and the contributions to the marital assets have been unequal.

To increase awareness of the role of the The Society for Trust and Estate Practitioners (STEP) and its members (TEPs), they have launched a new public facing website www.advisingfamilies.org. The website explains what a TEP is, what they do and what benefits you can expect from using a TEP.  STEP members are from a range of professions, including accountancy, banking, financial advice, law, tax advice and trust administration.

Author: Floris Shoebridge

The English courts, and in particular London courts, have often been considered as being generous to the financially weaker party within financial proceedings and London is often referred to as the ‘divorce capital of the world’. The recent, widely reported case, which resulted in the 44 year old stay-at-home wife of a 61 year old City banker receiving a settlement sum of £483 million (41.5% of the overall assets) has done nothing to dissuade the use of this title.

Author: Keith Potter

For many employers dismissing an employee for long term sick absence is probably regarded as one of the more straightforward tasks. The relevant case law has been established for about 40 years and the basic principles are well understood.

Author: David Seals

A well drafted contract of employment will normally contain a robust provision restricting the employee from disclosing the employer’s confidential information. But breaches of confidentiality do not regularly feature in employment cases that come before the Courts. There are various reasons why an employer may not pursue such matters. However, the position for employees in regulated sectors such as the banking industry who misuse confidential information is more fraught, as the case referred to below demonstrates.

Author: Brian Fraser

A recent BBC article has highlighted the importance of seeking legal advice when taking steps to mitigate the costs of Nursing Home Care. It concerns Don Steer, who had been diagnosed with terminal cancer. Due to the value of his savings and owning his home outright with his wife, he did not qualify for council support in relation to costs of care. Concerned they may have to sell the house to pay for care home fees, Mr & Mrs Steer placed their house into trust. Mr Steer passed away before needing to pay care home fees, but should they have been required it is likely that the transfer of the house into trust would have been ineffective. This is because a significant factor in placing the house in trust was to reduce their estate for capital assessment. If the local authority determine this to be deliberate deprivation of assets, they can take action to recover charges.

Author: Nicola O'Dwyer

In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.

Author: Tamsin Reader

Since 1993, Leaseholders have been able to claim an extended Lease from their Landlord(s). With flats with less than 80 years it may be difficult to sell or secure a mortgage on. Extending your Lease either by agreement, or otherwise, overcomes this problem and makes your property more desirable and in most cases a more valuable asset.

Author: Nigel Cook

The company had carried legal aid work regulated by the Solicitors Regulation Authority. The sole director placed it into administration (avoiding liquidation) so that its files could be reviewed and bills sent to the Legal Aid Agency.

Author: Nigel Cook

The applicants had been involved as partners in a partnership business which had been wound up under the Insolvent Partnerships Order 1994 which provides for procedures to be applied equivalent to the insolvency regimes for companies and LLP’s.

Author: Nicola Conley

Many of us enjoy social media, sharing photographs and reading about the good times that people are enjoying with their loved ones. But have you thought that any information you share on Facebook, Twitter, Instagram can be read and potentially used against you in your separation/divorce proceedings?

Author: Nicola O'Dwyer

In FirstGroup PLC v Paulley, the Supreme Court considered the extent to which reasonable adjustments should have been made by a bus operator to accommodate a wheelchair user.

Author: Chris Millar

1. Does a conflict of interest arise where a solicitor acts for both the Petitioning Creditor and the Liquidator of a company?

Author: Nigel Cook

In this appeal from the Registrar the directors succeeded in overturning a compensation award in favour of the liquidators

Author: Keith Potter

There is long-standing case law to the effect that, if a dismissal for misconduct is to be fair, the employer must investigate the facts thoroughly. It must then be able to show that it has reasonable grounds for concluding that the employee committed the misconduct of which he is accused and that the relevant misconduct is a sufficient reason for dismissing the employee. The employer’s decision must be shown to be within the range of reasonable responses – a principle which gives some latitude to employers.

Author: Keith Potter

The employment tribunal’s decision in the case relating to the Uber taxi drivers was given in late October 2016 (Aslam and others v Uber BV and others). The drivers claimed that they were “workers” under employment legislation. If true, this meant that they were entitled (a) to the national minimum wage for hours worked, (b) to paid annual leave and (c) to protection against unlawful deductions from wages.

Author: Keith Potter

There has been conflicting case law on the subject of the right of workers to take rest breaks during the working day. The Working Time Regulations entitle a worker to an uninterrupted rest break of at least 20 minutes (or 30 minutes in the case of a worker less than 18 years’ old) where the working day exceeds 6 hours.

Author: Keith Potter

In 2015 the government embarked on consultation about simplifying the tax treatment of termination payments, an area which has frequently given rise to dispute and uncertainty in the past. The government’s response to the consultation has now been published. The proposed changes will take effect in April 2018.

Historically, holiday pay was always calculated by reference to an employee’s basic pay. This principle was challenged in 2011 in a case involving various British Airways employees (Williams and others v British Airways plc), who successfully claimed that various allowances that they normally received in addition to their basic pay should be taken into account when calculating their rate of holiday pay. According to the Court, it was necessary to consider whether the additional allowances were intrinsically linked to the work which the employees were contracted to perform. The Court decided that there was a sufficiently close link and that the allowances should therefore form part of holiday pay.

Author: Matthew Kilgannon

Background

Christmas parties can be a hot bed issues for business owners and HR. With Christmas parties in full swing, the High Court has recently delivered a decision that provides a timely reminder of the extent of your liability at such events.

Author: Liz Dalgetty

Private Client Solicitor, Liz Dalgetty, has joined a number of organisations representing older and vulnerable people to raise serious concerns around the Government’s online tool for creating Lasting Powers of Attorney (LPAs).

Author: Chris Millar

The DBIS has given guidance:-

Author: Nigel, Cook

In the case of Express Electrical Distributors Limited v Beavis and Others, the Court of Appeal considered an application for a retrospective validation order, following the disposition of property after the issue of a winding up petition.

Author: Caroline Walton

This article follows on from our previous discussion relating to the pilot scheme introduced by the Government under the Immigration Act 2014 whereby residential landlords were required to check the immigration status of their tenants before granting them a tenancy.

Author: Nigel Cook

Longmeade was part of the UK Lehman Brothers group. It went into compulsory liquidation in 2010 and the Official Receiver (OR) was appointed liquidator. The company had the opportunity to participate in distributions from US and Canadian insolvency processes but these were irretrievably lost as a result of inaction by the OR. Eventually new liquidators were appointed in place of the OR and they obtained legal advice that the losses to the company could be recovered by bringing a negligence claim against the Government ‘s BIS Department. Funding was available both for their costs and also against an adverse costs order.

Author: Nigel Cook

This case involved an application by the plaintiff law firm for an administration order against its former client in respect of fees under a Conditional Fee Agreement (CFA). The CFA contained provisions for arbitration in event of dispute and it seems that the client challenged at least some of fees claimed.

Author: Caroline Walton

With an increase in the current trend of people advertising their residential properties as alternatives to hotels, on the internet or elsewhere, as a way to earn money, tenants need to tread carefully as they could be in breach of a covenant in their lease.

Author: Chris Millar

A debtor resisted a Petition against him upon the basis that the petitioner had an ulterior motive in seeking to make the debtor bankrupt, namely to obtain the debtor’s shares in a Spanish company.

Author: Chris Millar

A judgment debt can be assigned if it is in writing, unconditional, doesn’t purport to be by way of charge only, and relates to the whole of the debt. Notice of the assignment must be given to the judgment debtor. For enforcement of the Judgment, an Application will have to be made to the Court for the assignor to replace the assignee as judgment creditor.

Author: Chris Millar

In the recent case of Horton v Henry, the Court of Appeal considered whether a bankrupt’s un-exercised right to draw down his personal pension should be included in his income assessment, and therefore payable to his trustee under an IPO within Section 310(7) of the Insolvency Act 1986.

Author: Joanna Pashley

Did you know that it is now possible for you to inherit your partner’s ISA savings? Before 6 April 2015, when a person died the ISA(s) tax benefits died with them. The effect being that if a spouse inherited money that they wished to reinvest in their own name, they could only reinvest into another ISA, up to their own ISA allowance for that year.

Author: Richard Cunningham

If you are considering joining the 80,000 British home owners who currently rent part or all of their property through Airbnb, then you should consider some of the pitfalls before you take that step.

Author: Caroline Walton

As previously reported, the Land Registry have introduced a service called “Property Alert” which is a free monitoring service for anyone who might be concerned that their property could be targeted by fraudsters who might sell or mortgage it without the knowledge of the true owner. Fraudsters are particularly targeting properties which have no mortgage or charge registered against them, particularly those which are empty or let out.

Author: Emily Kidd

As we begin the journey to move forward from the vote to leave the EU, we consider the implications for employment law of Brexit.

Author: Daniella Magennis

In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.

Author: Daniella Magennis

INTRODUCTION

Many employers offer employees childcare vouchers under a salary sacrifice scheme. This allows employees to benefit from tax and national insurance savings.

Author: Daniella Magennis

On 26 November 2015, the Government Equalities Office issued guidance for employers on recruiting and retaining transgender employees. This new advice has been produced in collaboration with the UK’s leading inclusion and diversity experts, Inclusive Employers, who work with employers to achieve an inclusive culture in the workplace. Correspondingly, the recently published guide offers useful practical suggestions and ideas on how employers can implement new strategies in the running of their organisation to afford more consideration to transgender employee needs; thereby creating an ethos that engenders dignity to all workers, allows every member of staff to feel included and complies with the law.

Author: Matthew Kilgannon

We often advise clients regarding the enforceability, or otherwise, of clauses seeking to limit the activities of former employees. Most people are of the view that such clauses cannot be enforced, but, if properly drafted; such post-termination restrictions can be enforceable.

Author: Chris Millar

IT supplies are hugely important for the continuation of many businesses and section 233A of the Insolvency Act 1986 extends the list of essential suppliers to include IT supplies “for the purpose of enabling or facilitating anything to be done by electronic means”. Such suppliers will be unable to terminate supplies or demand existing pre-insolvency debts are paid, as a condition of continuing supplies.

Authors: Nicola Conley & Tyne Harman

With the Easter holidays approaching you may be wondering about childcare arrangements and whether your child is old enough to be left on their own. What age do they need to be for it to be safe enough to leave them unattended? In truth, there is no law stating an age when you can leave a child on their own, however it is an offence to leave a child alone if it places them at risk of harm.

Author: Emily Kidd

As we digest the effect of today’s budget on our lives, I set out below a summary of the implications for employers.

Authors: Caroline Walton and Megan Lawless

Did you buy or sell a commercial property on or shortly after 1 April 2014? If so, you risk losing the right to make a claim for capital allowances (CA) as the two year deadline to make such a claim is fast approaching!

Author: Neil Pfister

What is the PSC Register and why has it been introduced?

From April 2016, nearly all companies and LLPs in the UK will be required to keep a ‘PSC’ or 'persons with significant control' register to ensure that the individuals who are its ultimate beneficial owners and controllers are identified, and crucially that details of their holdings in these companies and LLPs are made public.

Author: Nigel Cook

The Scottish Court rejected an application by administrators for an Order allowing them to avoid the need to set aside the prescribed part of the floating charge realisations.

Author: Nigel Cook

The company Fivestar had been placed into administration and owned a freehold property which had been charged to a secured lender. Following the administration the company was dissolved rather than being placed into administration.

Author: Nigel Cook

Armstrong Brands Limited entered into a loan agreement to be supported by a debenture which, if properly executed, would be a “qualifying floating charge”. Both the loan agreement and debenture were signed by the then sole Director and the Company Secretary but left undated and undelivered for some months. By the time the debenture was actually delivered the director had resigned and been replaced.

Author: Nicola Conley

Divorce is one of the most stressful situations that you can go through. It is emotional, causes much anxiety and your mind is in turmoil so you may not be thinking rationally. Whilst a lot of people start their divorce proceedings themselves by completing the forms on line, we often speak to people who have completed the documents incorrectly, and then face the added stress and burden of trying to rectify the errors.

At Downs, we regularly review and draft Service Agreements for Directors and contracts of employment (whether for full-time staff, part-time staff, fixed term appointments, home workers, zero hours etc). Doing so enables us to highlight some important areas for you to consider.

Author: Keith Potter

It is frequently said that an employer ought to act promptly when made aware of information which may involve a breach of a disciplinary rule, particularly in cases where the possible penalty is dismissal.

Author: Keith Potter

From time to time employers are faced with cases in which two or more employees have taken part in an instance of misconduct, often one involving violent or threatening behaviour. The employer may take the view that the conduct of one of the participants was more reprehensible than that of the other(s). Is the employer entitled to differentiate between the employees as regards the disciplinary sanctions that it imposes?

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

Author: Ian Jones

As of 1 February 2016 the Government’s ‘Right to Rent’ law came into force. This requires private landlords to check, prior to the commencement of any new tenancy, that a tenant or lodger can legally rent a residential property in England and Wales.

Author: Laura Marchington

The Deregulation Act 2015 (“the Act”) received Royal Assent on 26 March 2015. The Act contains a mixed bag of provisions from landlord and tenant to transport and health & safety and child and trust funds. It was billed to simplify regulation and iron out a number of glitches in the law but due to the pace it was rushed through Parliament, it is questionable whether this has been achieved.

Author: Caroline Walton

In an attempt to combat property fraud, the Land Registry have introduced an alert service called 'Property Alert' which is aimed at helping the public to protect themselves against property fraud.

Author: Stephanie Tilley

The Construction Design and Management Regulations (CDM Regs) of 2007 have been revised by the CDM Regs 2015 and these changes, which took effect on 6th April 2015, relate to the management of Health & Safety on construction, engineering and property projects and developments, and the extension of the responsibilities and obligations to affect domestic projects. Criminal and civil sanctions continue to attach to any breaches.

Author: Tyne Harman

In the recent cases of Sharland and Gohill, the Supreme Court ruled that Mrs Sharland and Mrs Gohill could re-open their financial cases on the grounds of their ex-husbands’ fraudulent disclosure of their respective finances.

Author: Sarah Gillen

You might be surprised to learn that since 2005 cohabitation has increased by approximately 33% compared to an approximate 2% increase in marriage. Some of the reasons for this could be that people are giving higher priority to achieving financial independence, getting a foot on the property ladder or having children over marriage. In addition, there no longer appears to be any stigma attached to cohabitation or starting a family outside of wedlock. Even Prince William and Kate Middleton cohabited prior to marrying which would have been unheard of a generation before.

Author: Angus Storar

Recently, a Ministry of Justice poll of Court users for 2014/2015, showed that 70% of all Claimants had attempted to resolve their dispute directly with their opponents and of those Claimants, 68% would have rather avoided making a Court claim and the expense of litigation..

Co-Authors: Matthew Kilgannon and Daniella Magennis

BACKGROUND

Many employers are oblivious to a very important legal responsibility; protecting the health and safety of employees who drive at work.

Co-Authors: Neil Pfister and Daniella Magennis

BACKGROUND

The Consumer Rights Act 2015 (the Act) came into force on 1 October 2015, marking the most significant overhaul to UK consumer law since the Unfair Contract Terms Act 1977. Prior to the Act most UK consumer legislation dated back 30 years - a time when online retailers were yet to exist and digital content was a far cry from the multimedia hypermarket that we have at our fingertips today. In addition, consumer law was overly complex and ambiguous with much overlap between the various pieces of relevant legislation. Indeed, inconsistencies emerged in some cases where UK consumer law was found to conflict with EU law.

Author: Martin Steer

The issue fees for all civil claims above £10,000 are now calculated at 5% of the value of the claim subject to a maximum Court fee of £10,000 and Claims of £200,000 or more will cost £10,000 to issue.

On 6 October, the Court of Justice of the European Union (CJEU) issued its decision that has far reaching implications on businesses that transfer personal data to the United States. It held that the European Commission’s decision on 26 July 2000 that personal data can be transferred to the United States where organisations sign up to the ‘Safe-Harbour’ data protection principles, was invalid.

This was an application for an administration order by a former director and alleged creditor of the company. The applicant had been excluded from the business by her fellow director. From the facts it appears that the company was a start-up and that its business plan did not anticipate it making a profit for some time.

Author: Nigel Cook

There is a hotchpotch of provisions in these Acts containing amendments to the Insolvency Act 1986 and the Rules.

Some provisions have already into effect (as anticipated in our previous IP Alerter) and others have been brought in during October 2015.

Author: Chris Millar

Ex Turpi Causa (Non Oritur Actio) essentially means that no action should arise based upon an illegal act. This equitable principle has been developed by the Courts over many years, latterly by the House of Lords in Tinsley v Milligan (1994) and Stone & Rolls Limited v Moore Stephens (2009), when the Court struck out a claim against auditors for failing to discover the fraudulent activities of a director, upon the basis that the claimant company was attributed with the illegal activities of that director.

Author: Chris Millar

It remains the case that many foreign companies (particularly those with their COMI in the EU) wish to avail themselves of the English Schemes of Arrangement for compromising or re-structuring liabilities. The English Courts have in recent years accepted jurisdiction where they have considered that there is “sufficient connection” with the laws of England.

Author: Nigel Cook

The case of Wilson and 375 Live Limited v SMC Properties Limited was an application for a Validation Order under Section 127 of the Insolvency Act 1986. It was heard by Mr Registrar Briggs. The case involved 375 Live Limited taking a bridging loan and granting a mortgage over freehold property to the lender as security. Under pressure from the lender the company sold the property unaware that prior to completion of the sale HMRC had presented a winding up petition. The purchaser applied to Court for a retrospective Validation Order which was opposed by the liquidator who claimed that the property had been sold at an undervalue and the transaction declared void.

Author: Laura Marchington

Historically, the service of a Statutory Demand has been the precursor to commencing insolvency proceedings, whether it was bankruptcy proceedings against an individual or a Winding up Petition against a corporate director.

Author: Caroline Walton

The Housing (Wales) Act 2014 was introduced with the aim of improving letting and management standards for people who rent private accommodation across Wales. From this Autumn all private landlords who have a rental property in Wales must register themselves and the addresses of their rental properties. Landlords who undertake letting and property management activities at a rental property in Wales must apply for a licence via Rent Smart Wales unless they instruct an agent to do the work on their behalf in which case the agent must be licensed.

Author: David Seals

In the recent case of Ramphal –v- Department for Transport, the Employment Appeal Tribunal (“EAT”) held that a dismissal was potentially unfair where it had been too heavily influenced by the HR department. The case has serious implications on the limit to HR’s role in dismissal cases.

Author: Zara Munday

English law has historically provided that you should (with some exceptions) be able to leave your estate to whomever you wish. The exception lies in the ability for certain disappointed family members to make a claim under the Inheritance (Provision for Family Dependants) Act 1975 for ‘reasonable provision’. It is usually very difficult to prove that you have not been left a ‘reasonable provision’ by the deceased.

Author: Caroline Walton

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 contain the draft proposals which are expected to come into force on the 1 October 2015. They will require residential landlords in the private rented sector to...

Author: Nicola O'Dwyer

The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.

Author: David Seals

In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.

Author: Andrew Peach

Do you rent out your property?

If so, you must be aware of the provisions of the Energy Efficiency (Private Rented Property) England and Wales Regulations which enable tenants to make energy efficiency improvements to domestic private rented properties and to require minimum energy efficiency standards (MEES) to be met before both domestic and non-domestic properties can be let out.

Author: Caroline Walton

If you are a landlord of residential property who has let the property out on an Assured Shorthold Tenancy (AST) then you may need to take action before 23 June 2015 to avoid financial penalties and the possibility of being prevented from recovering possession of the property from the tenant.

Author: David Seals

With less than a week until polling day, we consider what the main political parties have planned for employment law should they be elected.

Author: David Seals

The Employment Appeal Tribunal (EAT) has made a decision which suggests that the “public interest” test for whistleblowing claims introduced two years ago will be a much easier one to satisfy than had been previously thought.

Author: Zara Munday

The upcoming changes to European Law will allow greater flexibility to owners of foreign property and give individuals increased control over who they can leave their property to once they have passed away. The following article is relevant for individuals who have moved from England to a participating EU state and for those who live in England but have property in a participating EU state.

Author: Matthew Kilgannon

The recent case of Timothy James Consulting v Wilton has provided some helpful guidance on a couple of important areas of law:

Author: David Seals

Shared Parental Leave (“SPL”) is a brand new employment right from April 2015 which allows working parents to share statutory leave and pay on the birth or adoption of a child.

Shared Parental Leave and Pay - the New Employment Right

Maternity Leave – pregnant employees are entitled to 52 weeks maternity leave and, subject to eligibility conditions, 39 weeks statutory maternity pay (“SMP”). SMP is paid at the following rates: 

Author: Chris Millar

Author: Chris Millar

(a) Can a creditor find out if a director has applied for permission to re-use a prohibited name?

Author: Nigel Cook

This case involved a claim by British Gas Trading Limited (BGT) against former administrators of Peacock Stores for gas and electricity supplies to vacant stores. BGT argued that these supplies should be an expense of the administration and thus have a priority.

Author: Nigel Cook

This Order which will come into effect on 1st October 2015 is derived from the Insolvency Service Consultation and draft Order issued in July 2014 which we reported previously.

Author: Nigel Cook

Changes to some of the provisions of the EC Regulation on Insolvency Proceedings (ECRIP) will come into effect in 2017. The main changes relate to the assessment of the centre of main interests (COMI) both for corporate and individuals; broadening the scope of secondary proceedings; protection of local i.e. national creditors outside secondary proceedings; and coordination of cross border group insolvencies.

Author: Nicola O'Dwyer

In December 2014, the Government launched the Fit for Work scheme (“FFW”). The scheme includes a website and telephone advice line. The opportunity for an occupational health referral will be in place by May 2015.

Author: Lynda Russell

When the term remaining on a lease of a residential property drops below 80 years it not only affects the owner’s ability to sell the property, it also decreases the value of the property and substantially increases the premium payable to the landlord for a lease extension. It is therefore imperative to give serious consideration to applying for a lease extension before the dreaded 80 year mark dawns.

Author: Floris Shoebridge

The Government has recently announced that court fees for the issuing of civil claims are to increase dramatically from April 2015 attracting criticism from Senior Judges, the Law Society, and other members of the legal profession.

Author: Heather Kershaw

The Community Infrastructure Levy came into force in April 2010. It allows local authorities in England and Wales to raise funds from developers undertaking new building projects in their area. The money can be used to fund a wide range of infrastructure that is needed as a result of development. This includes new or safer road schemes, flood defences, schools, hospitals and other health and social care facilities, park improvements, green spaces and leisure centres.

Author: Matthew Kilgannon

Overview

As has been highlighted in the press, the Employment Appeal Tribunal (“EAT”) has this week delivered a decision in the cases of Bear Scotland Ltd v Fulton (and other co-joined appeals) that could have far reaching implications for employers.

Author: Caroline Walton

The Immigration Act 2014 (IA 2014) makes a number of changes to the UK immigration rules in that it prohibits private landlords of residential properties from allowing certain people to occupy those properties. Landlords will now have to check the immigration status of prospective tenants to ascertain whether they have the right to occupy the premises before granting them a tenancy. They must also make sure that someone’s right to occupy the premises does not lapse. The right to rent checks will only apply to new tenancy agreements. Existing tenancy agreements are unaffected and landlords will not be required to carry out retrospective checks.

Author: Andrew Peach

The Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 7, Saving and Transitional Provisions) Order 2014 (SI 2014/2590) has been made, bringing into force various sections of the Anti-social Behaviour, Crime and Policing Act 2014 (ABCPA 2014). Section 97 of ABCPA 2014 will come into force in England on 20 October 2014.

Author: Anne-Marie Webber

The Children and Families Act 2014 introduces many changes, including: ...

Author: Alex Muir

Fracking is the process of drilling down into the earth and directing a high-pressure mixture of water, sand and chemicals at the rock to release the shale gas inside, allowing the gas to flow out to the head of the well. Fracking is shorthand for hydraulic fracturing and refers to how the rock is fractured apart by this high pressure mixture. The process is carried out vertically or, more commonly, by drilling horizontally to the rock layer to create new pathways or extend existing channels.

Author: Caroline Walton

In the latest tenancy deposit case of Gardner v McCusker, the Judge issued financial penalties against the landlord for not issuing the required Prescribed Information. The Court quashed the Section 21 Notice and ordered the landlord to:

Author: Tamsin Reader

In the case of Marks & Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Another [2014], the Court of Appeal has overturned a first instance decision. The tenant, M&S, had exercised a break clause ending its lease early.

Author: David Seals

With the World Cup about to kick off in Brazil these are exciting times for football fans. Expectations for the England team doing well are (thankfully) not high but, based on past experience, expecting a few World Cup-related employment issues might be something you should plan for.

Author: Elizabeth Muston

Some years ago, an elderly client visited our offices to update his Will. We found that his wife also needed a Will but he wasn’t sure if she could make one because she was in a nursing home hundreds of miles away suffering from dementia. We suggested that a solicitor local to the home should visit her to try to establish whether she could understand enough to make a Will and if so, whether she wanted to. We heard no more…

Author: Laura Marchington

Commercial Rent Arrears Recovery (CRAR) is a method of enforcement to recover rent arrears relating to commercial properties. CRAR came into force on 6th April 2014 and is governed by the Tribunals Courts and Enforcement Act 2007 (TCEA) and the Taking Control of Goods Regulations 2013 (TCGR). CRAR must now be used for commercial property and the common law rights of distress is abolished.

Author: Matthew Kilgannon

In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.

Author: Julie Watts

Pre-Nuptial Agreements aren’t just for the rich and famous. For many years now they have become more and more popular with couples from all backgrounds, particularly couples entering into a second marriage or those with inherited assets. However until now the status in divorce law in England and Wales of such agreements has been unclear.

Author: Matthew Kilgannon

Employment disputes are inevitable and will often result in the employer seeking to terminate the employment relationship. As an employment lawyer, I advise both employers and employees on their duties and rights in settling employment disputes. For most people, the best way of resolving such disputes is through the use of a Settlement Agreement; an alternative solution that avoids long drawn out litigation and an Employment Tribunal.

Author: Chris Millar

The Insolvency Rules 1986 are likely to be replaced wholesale by new Rules later this year which are likely to provide, inter alia:-

Author: Chris Millar

Section 1140 of the Companies Act 2006 permits a document to be served on a Company Director by leaving it at or by sending it by post to the person's registered address i.e. the address in the Register of Directors held at Companies House.

Author: Chris Millar

Another set-back for Madoff recoveries.

Author: Chris Millar

If a liability order on which a Bankruptcy Petition was grounded, is set aside on appeal, this change in circumstance provides a ground for rescinding the Bankruptcy Order (under Section 375(1) IA 1986.)

This case related to the liability of a director for unpaid National Insurance Contributions (NIC) under Section 121C of the Social Security Administration Act 1992.

Author: Chris Millar

The wife applied to annul the husband’s Bankruptcy Order.

Author: Chris Millar

The Supreme Court decided that assets were held by a company as bare trustee for the husband, and therefore could be brought into account, but also held that if a Court can find no other way to get at the assets in question where an individual seeks to evade a legal obligation by interposing a company, then the Court may be prepared to pierce the corporate veil.

Author: David Seals

Employees’ contracts of employment are important legal documents which should be periodically reviewed and kept up to date. There are various reasons why you might want to update and change contracts of employment.

Author: Nicola O'Dwyer

It is likely that there will be occasions when an employee fails to attend the workplace owing to circumstances beyond his/her control. This type of non attendance may be caused by the following:...

Author: Matthew Kilgannon

In 2013, we saw a number of changes to the rules relating to unfair dismissal, which includes:...

Author: Nicola O'Dwyer

HMRC has recently issued a consultation paper on false self-employment, due to increasing evidence that Intermediary Companies and Employment Businesses are being used to present individuals as self employed to avoid paying national insurance and tax. They also avoid the costs and risks associated with having employees.

Author: Laura Marchington

Zero-hours contracts have been the subject of much debate over recent months. This includes a lot of press coverage where these types of arrangements have alleged to have been abused. Figures from research carried out by the Chartered Institute of Personnel and Development (CIPD) estimates that around 3% of the workforce are working on a zero-hours contract; that is, approximately one million people.

Author: Caroline Walton

In an effort to combat property fraud, the Land Registry are currently trialling a new alert service called 'Property Alert' which is aimed at helping the public to protect themselves against property fraud.

Authors: SImone Horrobin and Matthew Kilgannon:

The recent Supreme Court decision of Woodland v Essex County Council highlights the exposure faced by Schools when engaging third parties to provide services. While the case involved a maintained School, the implications apply equally to independent Schools, indeed, part of the Court’s rationale included reference to fee-paying schools have greater exposure given the contractual nature of the relationship.

Author: William Edwards

For parents who are concerned about Inheritance Tax (IHT) following their own deaths, education trusts are a tax efficient means of both financing their children’s education and reducing the value of their estate for IHT purposes.

As one of its many recent changes, the Government has now introduced a new right for employers, employees and their representatives to have confidential discussions regarding the termination of an individual’s employment.

A recent study shows that in 2013 unreasonable behaviour is cited in 47% of all divorces and adultery in just 15%. These figures differ from the 1970s when only 28% of divorce petitions were based on unreasonable behaviour and 29% based on adultery.

Employee Shareholder status came into force on 1st September 2013. The Growth and Infrastructure Act 2013 introduced a new section into the Employment Rights Act 1996 which provides employers the opportunity to provide shares to an employee (the Employee Shareholder), in return for the employee giving up some of their employment rights.

Dealing with your ex over summer holiday arrangements may have been difficult enough, but the start of the new school year with its busy school calendars could prove to be a bigger challenge.

In Neal -v- Freightliner Limited an Employment Tribunal considered whether overtime pay should be included when calculating statutory holiday pay.

There are three major changes to employment law which come into effect on 29 July 2013:

Those that attended the IP seminar earlier this year will have hopefully reflected upon the wider aspects of the “means” available to seek and obtain recognition and reciprocity of insolvency proceedings e.g. UNCITRAL, EC Regulation, common law and/or Section 426.

In USDAW –v- Ethel Austin Limited (in administration) & another case, the EAT has given its long awaited decision regarding protective awards under TULRCA. This involved the cases of employees of the Woolworths and Ethel Austin Stores, the former of which went into administration in November 2008.

In I Lab Facilities –v- Metcalfe & others, the Employment Appeal Tribunal (EAT) considered who could be “affected employees” as defined in TUPE for the purposes of a complaint for failure under the information and consultation provisions.

In AEI Cables Limited –v- GMB & others, the Emploument Appeal Tribunal (EAT) considered whether a maximum protective award under the Trade Union and Labour Relations (Consolidation) Act 1992 had been appropriate.

The High Court has dismissed an application for a validation order under Section 127(1) where the payment to be validated was in respect of solicitor’s fees that the insolvent company had incurred in attempting to compromise the petition debt, rather than in defending the winding-up petition.

The Insolvency Service announced that the UK has opted in to negotiations to amend Counsel Regulation (EC) 1346/2000 commonly known as the EU Insolvency Regulation.

In RC Brewery Limited V HMRC [2013] EWHC1184(CH), the High Court has dismissed an application under Section 127 of the Insolvency Act 1986 for an Order validating the payment of solicitors fees incurred in acting for a company in seeking an injunction to restrain advertisement of a winding up petition.

In a case involving a director’s disqualification, the High Court has summarised and restated the principle governing the definition of “shadow” and “de facto” directors.

On 6th April 2013 a new registration regime for security interests created by companies and LLPs registered in the UK came into force.

In BNY Corporate Trustee Services Limited V Eurosail-UK [2013] UKSC 28, the Supreme Court has clarified the meaning of the insolvency tests under Sections 123 (1)(e) and 123 (2) of the Insolvency Act 1986.

The Enterprise and Regulatory Reform Act 2013 provides the Government with powers to amend the existing provisions of the Insolvency Act 1986, Sections 233 and 372. These powers will ensure that companies and individuals involved in a rescue process do not forfeit the supply of essential goods or services or are forced to accept them on onerous terms.

On 14th June 2013 the decision in the matter of Superstrike Limited –v- Marino Rodriques was handed down by the Court of Appeal. The decision clarifies the situation in relation to tenant’s deposits, in particular deposits taken for an Assured Shorthold Tenancy before the 6th April 2007 and where the tenancy continues after the term as a Statutory Periodic Tenancy (SPT).

Downs Solicitors LLP have recently been recruited onto the Design Business Association's Experts Register.  

In the case of Gaardsoe v Optimal Wealth Management Limited [2012] EWHC 3266 the High Court considered if it had power to permit an action that was commenced in breach of the moratorium as the claimant did not have either Court sanction or the consent of the administrators when the action was commenced.

This is a little understood equitable principle but in appropriate circumstances it can be of great value to a lower-ranking secured creditor.

Recovery by a Trustee of his costs can often be problematic. This may be particularly so where the bankrupt has managed to obtain an annulment.

In the final analysis, it is considered that these cases should not be a fundamental problem for IP’s as the issues highlighted can be avoided. Indeed, the recent case of “Bilta (UK) Limited v Nazir” [2012] shows this issue in stark contrast where the High Court was willing to apply the scope of section 213 in an extra-territorial context.

What is, however, probably more relevant in the international context, is the proposed amendments to the Regulation. Amongst these are:-

To include “hybrid” (debtor in possession e.g. CVA) and “pre-Insolvency” schemes (restructuring e.g. Schemes of Arrangement) within the scope of the Regulation.
Foreign Creditors are given the right to challenge a decision regarding a company’s COMI.
Secondary proceedings will no longer have to be winding up proceedings, and the Court will be obliged to consider the views of the office – holder in the main proceedings.
There will be a greater obligation on office-holders to consult and coordinate in cases involving the Insolvency of a group of companies in different jurisdictions.
There is to be an internet-based register available to the public regarding insolvencies in each EU Jurisdiction, probably via the European e-Justice Portal (ec.europa.eu.civiljustice)
On 15th April 2013 the UK announced its intention to opt-in to the proposed amendments albeit that it is understood that Schemes of Arrangement will be excluded from the amendments to the Regulation.

For further information, please contact Chris Millar either by telephone on 01306 502225 or by email [email protected]

In Kavanagh and others v Crystal Palace FC (2000) Ltd the Employment Appeal Tribunal found that an employment tribunal had erred by finding that dismissals by an administrator were fair because they were for an ETO reason.

Are you are turning residents away because you don’t have enough beds?  Extending your care home could be a cost effective option. However, there are many things to consider before embarking on any building project.

In the Secretary of State for Business –v- McDonagh & others, the Employment Appeal Tribunal (“EAT”) had to consider when “insolvency” occurred under the Employment Rights Act 1996 (“ERA”) in respect of claims for arrears of pay and holiday pay from the National Insurance Fund (“NIF”).

With the passing of The Marriage (Same Sex Couples) Bill, which will allow same-sex couples to marry, an important consideration is what happens if they separate and/or divorce?  A pre-nuptial agreement between same-sex couples will help to prevent ugly breakups.

A recent Court of Appeal decision acts as an important reminder that a landlord must actually give a tenant all the information prescribed by a tenancy deposit scheme (TDS) and that it is not enough that the information is freely and easily available.

Towards the end of 2012, the Government announced its intention to allow more flexible and family friendly working practices.

Restrictive covenants that limit what an employee can do after leaving an employer are extremely difficult to get right, especially non-compete clauses, where the employee is limited in competing with the business for a fixed period after termination.

Software Licences - who game is it?

In April 2007, measures were introduced under the Housing Act 2004 which meant that any Assured Shorthold Tenancy (AST) deposit had to be paid, by the landlord, into one of three Government approved holding schemes within 14 days of receipt and the landlord had to provide the tenant with certain prescribed information regarding the deposit within the same time period. 

Whilst Court proceedings are often contemplated and commenced in order to resolve civil disputes between private individuals or companies..,

Landlords (and Licensors) of domestic property must comply with the provisions of the Gas Safety Regulations 1998 which includes:

From 1 September 2012 squatting in a residential building is an offence, punishable by a maximum prison term of up to six months, a maximum fine of £5000, or both.

In the case of ANGED v FASGA, the European Court of Justice deliberated on whether a worker was able to take leave at a later date when it fell during a period of statutory leave.

If there is a reduction in hours of work does it amount to a redundancy? This was the burning question before the Employment Appeals Tribunal in the case of Packman t/a Packman Lucas Associates v Fauchon.

In the recent case of Ranson v Customer Systems Plc the Court of Appeal set the parameters of when an employee owes his employer fiduciary and fidelity duties.

On Friday 2nd May 2012, the Queen announced the Government’s legislative agenda for the next year. The focus is introducing new measures to boost the UK economy. Two Bills were specifically mentioned: The Enterprise and Regulatory Reform Bill aimed at “creating the right conditions for economic recovery” and The Banking Reform Bill, which will “foster financial stability and a more resilient banking sector”.

A recent case in the Employment Appeal Tribunal (EAT) has stated that TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006) does not apply to the assignment of a lease unless the economic entity retains its identity.

For the past few years there has been much in the news about the use of administrations as the favoured route for saving businesses and jobs. 

Unfair Dismissal

On 6th April 2012, the qualifying period for employees to bring a claim for unfair dismissal in the Employment Tribunal increased from one to two years. This rule is only applicable to employees that commence employment on or after the 6th April 2012. Anyone employed before this date will only have to accrue one year’s service before bringing a claim for unfair dismissal.

The coalition Government’s plans to be seen as the “greenest Government ever” took a step closer with the introduction of a number of new directives.

If you own or are developing a listed building, recent changes announced in the Budget will affect you whether the property is residential or commercial as the zero rating currently available for approved alterations to protected buildings (both residential and charitable buildings) will be removed with effect from 1 October 2012.

If you are a landlord of residential property and you let it out under an assured shorthold tenancy, you should note that the rules relating to the registration of the rent deposit changed on 6 April 2012. You must ensure that, in respect of all rent deposits that you currently hold, they are correctly registered before 6 May 2012, and that you have sent the necessary certificate and the information prescribed by the legislation to all parties who are entitled to receive it within 30 days of receipt of the deposit.

Following the Government’s recent Budget announcement, the NPPF came into force on 27 March 2012.

In Samsung Electronics (UK) Limited –v- Monte-D’Cruz, the Employment Appeal Tribunal (EAT) considered, amongst other things, whether following a restructure of employment roles an employer was compelled to offer a vacant post to an otherwise redundant employee despite him performing poorly at interview for the post.

As a pub tenant you may be leasing from a pubco or other entity, who themself holds a lease from the property owners, i.e. the freeholder, thereby making you “the sub-tenant” who is paying rent to an intermediate landlord, who pays (not necessarily the same) rent to the freeholder.

In an announcement which will be welcome by the insolvency profession DBIS has said that it does not intend to legislate to impose restrictions on the use of pre-pack sales in any insolvency procedure.

The line of cases which began last year with Minmar (929) Limited Khalastchi ([2011] EWHC 1195 (CH)) when the High Court decided that an out-of-court appointment by directors was invalid because of the failure to give notice to the Company, i.e. its shareholders, has had three additions.

Some interesting recent cases and reminders:-

Key2Law (Surrey) Ltd v De'Antiquis [2011] EWCA Civ 1567

The BIS has issued a call for evidence seeking views on the effectiveness of TUPE 2006.

Running a business in today’s world can be vastly time consuming,

If your Lease contains a break clause then you have the right to terminate before the end of the term.  But beware! 

Capital Allowances are a form of tax relief which can be set against Income or Corporation Tax. They are based on the capital expenditure incurred on the provision and installation of certain assets within a commercial building.

On 1 February 2012 the Minister for Housing and Local Government made a written statement updating the Government’s action on housing following the publication of its housing strategy in November 2011.

The Government has issued draft legislation on it’s proposal to increase the qualifying period to claim unfair dismissal from one year to two. The Order is succinctly known as The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, and can be viewed here http://www.legislation.gov.uk/ukdsi/2012/9780111519974

The Land Registry has reported major issues with fraud involving properties which are not occupied by the owner. If you own property which you do not occupy personally we can advise you on the ways in which you can protect yourself from becoming the subject of such a fraud.

Currently if you are buying a residential property as your main residence for a price not exceeding £250,000 and you are a first time buyer, you may not have to pay Stamp Duty Land Tax on the purchase price. This concession expires on 24 March 2012, with the effect that, any purchase with an effective completion date of 25 March 2012 or later cannot benefit from the relief, even if the contract for the purchase of the property is dated before that date. The relief gave a saving of £2,500 on a house purchase of £250K.

I have been contacted by a client in a complete panic asking me to get him out of a hole. He had a lease of business premises within the protection of the Landlord & Tenant Act 1954, the contractual term of which came to an end on 31 December 2011. In June of last year he was served with a non-hostile Landlord’s Section 25 Notice terminating his tenancy as at 31 December 2011. The Notice stipulated the terms upon which the Landlord was prepared to agree a renewal. My client had no issue with those terms and so simply filed the Notice, assuming the renewal would just take its course. Sadly, he didn’t advise me of receipt of the Notice and now finds himself in the position of having received a letter from the Landlord’s Solicitors demanding vacant possession in two weeks' time.

There has, for a long time, been a common misconception amongst non-married couples who live together, (especially if they have done so for a long time) that they become a common law Husband and Wife and have the same rights as married couples. This is false.

To help combat the level of sickness by employees, approximately 140 million days per year, the Government called for a major review of the sickness absence system in February 2011.

On 15 November 2011 the Localism Bill 2010-11 was granted Royal Assent.  The Localism Act 2011 will introduce fundamental reforms in many aspects of Local Government.  These will include:-

The Ministry of Justice (MOJ) has published a response to the Consultation Paper “Options for Dealing with Squatting”.

On 13 December 2010 the Coalition Government presented the Localism Bill 2010-11 to Parliament.

The Department for Communities and Local Government (DCLG) is currently consulting on proposals to reform the Community Infrastructure Levy (CIL).  Draft Regulations to accompany the consultation have also been published. 

If you do not have a valid Will the law sets out who gets your money, your property and all your personal effects.  You would have no say over what happens to your assets when you die and this can cause difficulties for those you care about most; therefore, everyone should have a Will.

The Regulations are intended to give effect to the Temporary Agency Workers Directive (the Directive) and they came into effect on 1 October 2011. The aim of the Directive is to provide basic working and employment conditions for assigned workers that are no less favourable than if they had been recruited directly by the hirer.

The Government has announced proposals that will cause the biggest shake-up of employment law for decades.

What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)?  Freezing property in place?  Placing it in the custody of a third party, such as a court official, sheriff or marshall?

The Department of Communities and Local Government (DCLG) has now published a draft presumption in favour of sustainable development. The presumption states:-

The Law Commission has published its final report containing its recommendations to simplify, modernise and improve the law of easements, covenants and profits a prendre.  on 8 June 2011.

There is a common misconception that once an unmarried couple have lived together, (especially if they have done so for a prolonged period of time) they become a common law Husband and Wife and acquire the same rights as married couples. This is false.

The Feed-In Tariff (FIT) scheme which was introduced by the Government on 1 April 2010, promotes the widespread uptake of a range of small-scale renewable and low carbon electricity generation technologies.