http://www.ashfords.co.uk/ Ashfords News, latest 20 items Mon, 07 Oct 2013 01:06:38 +0000 en http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Act+-+September+2013 http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Act+-+September+2013 Fri, 13 Sep 2013 13:00:00 +0000
News




ICO publishes guidance on subject access requests

The Information Commissioner's Office ("the ICO") has published guidance to assist organisations in dealing with requests from individuals for their data.

Subject access requests allow individuals to ask organisations about what information they hold about them.  If any information is held, the organisation will usually be required to suppl[...]]]>
News




ICO publishes guidance on subject access requests

The Information Commissioner's Office ("the ICO") has published guidance to assist organisations in dealing with requests from individuals for their data.

Subject access requests allow individuals to ask organisations about what information they hold about them.  If any information is held, the organisation will usually be required to supply copies to the individual making the request.  Generally, organisations are obliged to respond to any requests within 40 days.

The ICO receives a substantial number of complaints by individuals who believe that their subject access requests have not been dealt with correctly.  Over the last financial year, 6,000 such complaints were made.
 
In order to assist organisations in responding to subject access requests, the ICO has outlined ten steps for organisations to consider:





Identify whether a request needs to be considered as a subject access request;
Obtain enough information to be sure of the requester's identity;
Ask the requester at an early stage if more information is required to assess their request;
If the organisation is charging a fee to deal with the request, this should be asked for promptly.  Organisations are permitted to charge a fee of up to £10, unless the request relates to medical or educational records;
Check that the information the requester wants is available;
Do not make any changes to the records, even if they are inaccurate;
Consider whether the records contain information about other people;  
Consider whether any exemptions apply.  The exemptions include information held for the purposes of crime and taxation, certain types of management planning information and information that may prejudice negotiations with the requester;
Explain any complex terms or codes that are included in the information.  Organisations should ensure that the information can be understood by the requester; and
Where appropriate, provide the response in a permanent form.


The ICO will be carrying a survey of websites later this year, with the aim of identifying what information organisations provide to users who may want to make subject access requests.  A report on the findings is expected in early 2014.  

ICO fines Aberdeen City Council for 'serious data breach'

Aberdeen City Council ("the Council") has received a financial penalty of £100,000 following a 'serious data breach'.
 
The breach occurred after a Council employee accessed various reports and meeting minutes relating to the involvement of social services with a number of individuals from her home computer. A file transfer programme automatically uploaded these documents to the internet.  This resulted in sensitive information about vulnerable children and their families becoming publicly-available online.

The documents were available online for more than 3 months, before being discovered by another Council employee.

This case reveals the importance of organisations having in place an effective home working policy and appropriate security measures to ensure sensitive information is kept confidential.  

The Council was found by the ICO to have no such policy and measures.  The Council will be required to enter into an undertaking with the ICO, committing it to improve its compliance with data protection legislation.






Recent Decisions




Case Ref: FER0480190
Public Authority: Sheffield City Council ("the Council")

This case related to a request made for information about what had been done with a sum of money that the complainant��s employers were required to pay to the Council in connection with a planning matter.

The Council initially stated that it held no further information, but later located additional information falling within the scope of the request, which it disclosed to the complainant.

The complainant referred the matter to the Commissioner to determine whether the Council had disclosed all of the relevant information.

The Commissioner confirmed that the Council had provided all the information falling within the scope of the request.  It is therefore not required to take any further steps in relation to this request.

However, the Commissioner also found that the Council breached regulation 5(2) of the Environment Information Regulations 2004 ("EIR") by failing to supply the information within 20 working days of receipt of the request.  The Commissioner has recommended that the Council take steps to improve the way in which it processes information requests in future.

Case Ref: FER0483676
Public Authority: Department for Environment Food and Rural Affairs ("Defra")

A request was made for details of a planned badger cull.



Defra provided the complainant with some of the requested documents but released parts of the information in redacted form, relying on the exemptions under regulations 12(5)(a) (adverse effect on public safety) and 12(5)(g) (adverse effect on the protection of the environment) of the EIR.

The Commissioner concluded that Defra had applied the exemptions incorrectly.  It was therefore not entitled to redact the information, and is obliged to disclose the information in full.

Case Ref: FS50486137
Public Authority: BBC

The complainant made a request to be supplied with a copy of the Balen Report "Reporting the Middle East" paper JB(04)40 ("the Balen Report").  
The BBC argued that the information was covered by a derogation, meaning the obligations of the Freedom of Information Act 2000 (��FOIA��) do not apply to it.  

The Commissioner agreed that as the Balen Report is held by the BBC for the purposes of ��journalism, art or literature�� it does not within the scope of the FOIA.




Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.

]]> http://www.ashfords.co.uk/news/Ashfords+to+admit+non-lawyers+to+partnership+as+it+moves+beyond+law http://www.ashfords.co.uk/news/Ashfords+to+admit+non-lawyers+to+partnership+as+it+moves+beyond+law Wed, 11 Sep 2013 15:40:00 +0000
First published in The Lawyer by Becky Waller-Davies
 
South West firm Ashfords is set to launch a range of professional, non-legal services to complement its practice areas, as part of its five-year strategic vision.
The spread of products will operate across a range of practice areas and will include services such as project management, health and safety and regulatory advice. Ashfords will run these add-ons from its Bristol, Exeter and London offices[...]]]>
First published in The Lawyer by Becky Waller-Davies
 
South West firm Ashfords is set to launch a range of professional, non-legal services to complement its practice areas, as part of its five-year strategic vision.
The spread of products will operate across a range of practice areas and will include services such as project management, health and safety and regulatory advice. Ashfords will run these add-ons from its Bristol, Exeter and London offices as market conditions in those cities are the most suitable.
Partner Garry Mackay said: ��We have a very defined strategy in that where we want to be as far as legal services are concerned, that will be our core business but we have those interrelated services as a key feature in our strategy.��
Mackay gave the example of the firm��s IP practice being an ideally suited for non-legal services. He said: ��We have a strong intellectual property practice. It makes very good sense for us as a business to build in links with patent agents and trademark agents and so we will be looking to bring that on board.
��It is not just about providing legal services now, we are going to be able to do project management, to send people in and give clients clearance on fire and safety requirements, people will go in and do risk compliance if anything does go wrong.��
The firm has already begun to build its regulatory offering with recent lateral hire former Lyons Davidson head of regulatory corporate crime Richard Voke. Mackay added: ��Part of what he [Voke] brought to the table was the proposed structure for driving forward the health and safety side.��
Ashfords will look to initiate people into the business as the delivery of services develops. Mackay explained: ��We will look to bring people within Ashfords; there is an element of don��t run before you can walk, so with certain initiatives we will look to have direct links with external organisations at the moment. The aim is to slowly bring them all on board as we find out what works for clients.��
He said that non-lawyer staff brought in to carry out these operations would be eligible to be admitted to the partnership and stated that non-legal staff would be able to become a ��major part of the business�� and go ��as high as they want to get��. He added: ��I think a lot of people have bemoaned the market but we have taken it the opposite way and gone for it.��
]]> http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+August+2013 http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+August+2013 Mon, 02 Sep 2013 10:05:00 +0000
Re Hellas Telecommunications (Luxembourg) II S.C.A (a.k.a. Hosking v Nautadutilh Avocats) [unreported] The High Court held that, in English main proceedings, the English law of legal professional privilege determined which documents could be withheld by Luxembourg lawyers.
Hellas was incorporated in Luxembourg. It moved its COMI to the UK shortly before being put into Administration. It was subsequently placed into Liquidation. The Administration and Liquidation were main pr[...]]]>
Re Hellas Telecommunications (Luxembourg) II S.C.A (a.k.a. Hosking v Nautadutilh Avocats) [unreported] The High Court held that, in English main proceedings, the English law of legal professional privilege determined which documents could be withheld by Luxembourg lawyers.
Hellas was incorporated in Luxembourg. It moved its COMI to the UK shortly before being put into Administration. It was subsequently placed into Liquidation. The Administration and Liquidation were main proceedings under the European Insolvency Regulation.
Hellas owed substantial sums to creditors. The Liquidators wished to investigate the circumstances of the company's failure: in particular, three transactions involving Hellas. The Liquidators believed that the documents they required were in the possession of Nautadutilh Avocats, a Luxembourg firm of lawyers.
The Liquidators made an application to the English Court for an order that Nautadutilh (and certain individual members of that firm who had worked on the relevant files) deliver up documents "belonging to" Hellas and produce documents "relating to" Hellas.
Nautadutilh argued that it had already provided all the documents "belonging to" Hellas that they could properly disclose under the law of Luxembourg. They submitted that they could not disclose, or even describe, any other documents falling within the application as those documents were subject to Luxembourg rules of professional conduct and secrecy.
The Court found that the European Insolvency Regulation determined that, once insolvency proceedings had been commenced, the law to be applied to those proceedings was the law of the Member State in which they had been opened. Thus the Court held that English rather than Luxembourg law was to be applied when deciding whether a document was protected from inspection by reason of legal professional privilege. Particularly relevant in this case were issues concerning joint clients and communications between lawyers.
The Court ordered production of documents "belonging to" Hellas. The Court would also be prepared to make an order for production of documents "relating to" Hellas, as the order sought by the Liquidators was neither unnecessary nor oppressive, and such documents were reasonably required for the Liquidators' investigations.
The Court held that Luxembourg law was relevant, however, as the legal advice and assistance had been sought under Luxembourg law and the Respondents were potentially at risk of serious professional and criminal consequences for breaching Luxembourg law.
The Court ordered an adjournment to allow opportunity for constructive dialogue between the parties in Luxembourg on the practicalities of disclosure of the documents and a final opportunity for Nautadutilh to comply with the Liquidators�� request.  If the parties could not come to agreement, an order for production would be made.
Bluecrest Mercantile NV v Vietnam Shipbuilding Industry Group [2013] EWHC 1146 (Comm) The High Court has confirmed that it can order a stay in proceedings by a creditor against a debtor company where proposals for a Scheme of Arrangement are on foot.
Vietnam Shipbuilding Industry Group (Vinashin) was a Vietnamese shipbuilding company. It fell into financial difficulties and negotiated with its creditors with a view to entering into a Scheme of Arrangement under the UK's Companies Act 2006. While those negotiations were in progress, two of Vinashin's creditors issued proceedings to recover sums due to them. Vinashin applied to the English High Court for a stay of those proceedings pending agreement of the proposed Scheme of Arrangement.
The Court agreed to order a stay as requested. This decision represents a development in the law: in earlier cases, it had been held that the Companies Act did not give the Court power to order a stay in such circumstances. However, in this case, the High Court held that its general power, under England and Wales' Civil Procedure Rules, to stay the whole or a part of any proceedings was applicable and could be used for the purpose.
In exercising its discretion as to whether or not to order a stay, the Court considered the following factors:

whether or not the company was insolvent;whether the Scheme of Arrangement was at a reasonably advanced stage (in this case, a Term Sheet had been prepared and a creditors meeting was to be convened);whether there was a real prospect of the Scheme of Arrangement being approved by the requisite majority of creditors;whether the benefit of the Scheme of Arrangement to creditors generally was such as to outweigh any prejudice suffered by the dissentient creditors; andwhether the claims to be stayed would disrupt the proposed Scheme of Arrangement.
This case marks a useful development in the law of Schemes of Arrangement. It confirms that the Court can grant a stay of proceedings (and not just the enforcement of a judgment) to enable a Scheme to be proposed, protecting the debtor company from action by dissentient creditors in the meantime.
Vinashin then made a separate application for orders relating to the proposed Scheme of Arrangement (Re Vietnam Shipbuilding Industry Group [2013] EWHC 2476 (Ch)). The High Court held that Vinashin had sufficient connection with England for the Court to have jurisdiction, because the loan facility agreement under which the debts in question arose was governed by English law and subject to the non-exclusive jurisdiction of the English courts.
Updates from around the World
US / IrelandSeán Dunne, an Irish property developer who had filed for bankruptcy in the US, has also been made bankrupt in Ireland. The dual bankruptcy had been approved by the US Court with the support of Mr Dunne's US Trustee, who will work with the Irish Official Assignee to realise assets in the bankruptcy estate.
UNCITRALThe guide to enactment of the UNCITRAL Model Law on cross-border insolvency has been revised. The revisions relate to the characteristics of foreign proceedings susceptible to recognition under the Model Law, and the factors relevant to determining a debtor's COMI.
AustraliaIn Yu v STX Pan Ocean Co Ltd, the Australian Court recognised STX's South Korean insolvency proceedings as foreign main proceedings but declined to grant additional relief sought by Mr Yu, STX's South Korean Receiver. Mr Yu's application effectively asked the Court to restrain Australian creditors from enforcing maritime liens or arresting or seizing STX's ships in Australian ports. The Court held that it was not in the interests of creditors for it to make such an order.
ScotlandIn Re The Scottish Coal Company Ltd, the Scottish Courts confirmed that a Liquidator has power to disclaim onerous property. The position in Scotland had previously been unclear as, in contrast to England and Wales, there is no express statutory authority for a Liquidator to do so.
Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them. 
]]> http://www.ashfords.co.uk/news/Can+duties+of+fair+dealing+and+good+faith+be+implied+into+commercial+contracts'3F http://www.ashfords.co.uk/news/Can+duties+of+fair+dealing+and+good+faith+be+implied+into+commercial+contracts'3F Fri, 23 Aug 2013 17:15:00 +0000


Background



The Court has recently considered this point in the case of Yam Seng PTE Ltd v International Trade Corporation Limited [2013] EWHC 111 (QBD). In this case Yam entered into an exclusive distribution agreement with ITC to distribute toiletries and fragr[...]]]>


Background



The Court has recently considered this point in the case of Yam Seng PTE Ltd v International Trade Corporation Limited [2013] EWHC 111 (QBD). In this case Yam entered into an exclusive distribution agreement with ITC to distribute toiletries and fragrances in various overseas territories. The negotiations began in January 2009 and Yam was told that ITC had "recently signed" a licence agreement relating to the products (it later transpired that the licence agreement was not signed until the same month that the distribution agreement was signed). Following negotiations a 30 month exclusive distribution agreement was signed.



After 15 months Yam terminated the contract on the basis of that ITC had breached the agreement in a number of ways, including:




failing to ship orders promptly;
failing to make products available in accordance with the agreement;
refusing to supply certain products after Yam had marketed them;
undercutting agreed prices; and
providing false information to Yam in the knowledge what it would be relied upon.

Yam asked the Court to award damages for breach of contract and misrepresentation (on the basis that it had been induced into entering an agreement  by D's assertion that it was licensed at a time it was not). The Court looked at each of the allegations in turn, however underlying the whole case was the issue of whether a duty of good faith could be implied into the agreement.



The Court's decision



The Court found in favour of Yam in breach of contract and misrepresentation (even though ITC later had the benefit of the licence). In reaching his judgment Mr Justice Legatt reviewed the doctrine of good faith and fair dealing in English law. Historically English law has not recognised a general duty to perform contracts in good faith, however this is something which is recognised in Europe (including Scotland) and other jurisdictions (including the United States, Canada and Australia).



It was decided that a duty of good faith could be implied in some, but not all, commercial contracts on the basis of the presumed intentions of the parties and the relevant background against which the contract was made. Relevant background included not only facts known to the parties, but also shared values and the norms of behaviour. There was an expectation of honesty underlying almost all contractual relationships. Fidelity to the parties' bargain was one of many generally accepted standards of commercial dealing that was central to good faith and contracts could not expressly provide for every possible event, so their language has to be given a reasonable construction which promoted the values and purposes expressed or implicit in the contract.



Traditionally English law had drawn a clear distinction between fiduciary relationships (e.g. partnership, trusteeship) containing onerous disclosure obligations and other contractual relationships where there was supposedly no duty of disclosure. Mr Justice Legatt considered that this division was arguably too simplistic; contracts involving a longer term relationship and substantial commitment required a high degree of communication, cooperation and predictable performance based on mutual trust and confidence. They involved expectations of loyalty, which were not legislated for in the express terms of the contract but were implicit in the parties' understandings. Examples of such "relational contracts" included joint venture agreements, franchise agreements and long term distribution agreements.



It was found that although elements of the test for good faith are sensitive to context, the test is objective: it depended, not on a party's perception of whether conduct was improper, but on whether the conduct would be regarded as commercially unacceptable by reasonable and honest people.



The judge recognised that if a duty of good faith is to be implied into long term commercial contracts then it is open to the parties to take this into account when drafting their agreement and to specifically exclude any implied duty of good faith.



It remains to be seen whether this case, and its treatment of good faith, will be followed by higher courts in the future.



If you would like to discuss this article further please contact:



Louise McPhie
Associate
01392 333996 or l.mcphie@ashfords.co.uk




NOTE:
Whilst we obviously hope that this Guide will be of assistance to you, it is intended to provide only generalised guidance on English Law for our clients, and is no substitute for specific advice in relation to the circumstances of a particular case, which we are happy to provide. If, after reading this guide, you have any queries or comments, please do not hesitate to contact your litigation contact at Ashfords LLP.



]]> http://www.ashfords.co.uk/news/Consultation+requirements+do+not+apply+to+service+charge+agreements+made+prior+to+construction+or+letting http://www.ashfords.co.uk/news/Consultation+requirements+do+not+apply+to+service+charge+agreements+made+prior+to+construction+or+letting Fri, 23 Aug 2013 09:25:00 +0000
The High Court has held that a long term agreement entered into before a building is constructed or let is not a "qualifying long term agreement" (QLTA) under the Landlord and Tenant Act 1985 (the Act) and accordingly, the consultation requirements do not apply to it.

A QLTA is an agreement entered into by, or on behalf of, the landlord for a period of more than 12 months. Such agreements are [...]]]>
The High Court has held that a long term agreement entered into before a building is constructed or let is not a "qualifying long term agreement" (QLTA) under the Landlord and Tenant Act 1985 (the Act) and accordingly, the consultation requirements do not apply to it.

A QLTA is an agreement entered into by, or on behalf of, the landlord for a period of more than 12 months. Such agreements are subject to the consultation requirements relating to service charges detailed in sections 20 and 20ZA of the Act

In the present case, the Court was required to determine whether the consultation requirements applied to a long-term agreement entered into in relation to buildings which had not yet been constructed or which were not let at the time of the agreement.

Section 20 provides that the landlord must consult with residential tenants if the amount payable by any one tenant for services to be provided under a QLTA will exceed £100 in any one year. Whilst it is possible for the First-tier Tribunal ("the Tribunal") to dispense with these consultation requirements, if a dispensation is not granted and the landlord does not comply, the landlord is limited to recovering only £100 per tenant per year.

Here, the Claimant (BDW) had constructed an estate which included four residential blocks of flats. Under an agreement between BDW and a company Utilicom Ltd, Utilicom Ltd was to provide hot water and electricity to the flats and BDW was to pay a monthly charge. These costs were to be ultimately invoiced to the tenants. However, at the time of the agreement, there were no tenants in any of the flats.

If the agreement was classed as a QLTA and therefore the consultation requirements applied, then since consultation was impossible in the absence of any tenants, BDW would have had to seek dispensation from the Tribunal, failing which it could not recover more than £100 from any later tenant per year.

BDW submitted that the consultation requirements could not apply because the definition of QLTA in section 20ZA of the Landlord and Tenant Act 1985 referred to "the landlord", denoting an existing tenancy and not a future tenancy. The High Court Agreed.

The Court stated that it seemed inconceivable that, if it was intended that the legislation should apply to agreements entered into when the property was yet to be constructed or let, the draftsman would have so provided in clear terms. Further, the Court held that it was difficult to imagine that there would not have been explicit provisions, had it been intended that potential future landlords would be obliged to seek dispensation from the Tribunal to avoid the consultation requirements with non-existent consultees.

The decision will be welcomed by landlords, who may avoid onerous consultation requirements in relation to service charges if they enter into a QTLA prior to the property being constructed or let. The case may well encourage future landlords to enter into such agreements in advance of letting flats to ensure they can bypass the consultation stage and recover all service charges, with being limited to an "appropriate amount" as provided for by the Act.


For further information please contact a member of the Housing Team on 01392 333994.



Printable version


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.


]]> http://www.ashfords.co.uk/news/Public+Sector+Update+-+August+2013 http://www.ashfords.co.uk/news/Public+Sector+Update+-+August+2013 Fri, 16 Aug 2013 09:30:00 +0000
PlanningHS2 challenge rejected by Court of Appeal
The Court of Appeal has handed down judgment in the appeals by objectors including residents' groups and 15 councils along the route against the high court decision to dismiss various challenges to the Command Paper High Speed Two, which sets out the Government��s strategy for the High Speed Two railway.
The primary ground of appeal was that a strategic environmental assessment was required as the Command Paper High Spe[...]]]>
PlanningHS2 challenge rejected by Court of Appeal
The Court of Appeal has handed down judgment in the appeals by objectors including residents' groups and 15 councils along the route against the high court decision to dismiss various challenges to the Command Paper High Speed Two, which sets out the Government��s strategy for the High Speed Two railway.
The primary ground of appeal was that a strategic environmental assessment was required as the Command Paper High Speed Two was a ��plan or programme�� that ��set the framework for development consent�� and was ��required by administrative provisions�� within the meaning of Articles 2-3 of the Strategic Environmental Assessment Directive 2001/42/EC. 
The majority held that the Command Paper did not ��set the framework for development consent��. It appeared to the majority that the legal test was not met in that the plan or programme should have legal influence on the subsequent decision on whether or not to grant development consent. With respect to this Command Paper the development consent decision-maker was Parliament, which was sovereign.
The possibility was not ruled out that a plan or programme may set the framework where it had "sufficiently potent factual influence", but not where the decision-maker is Parliament since it was impossible to second-guess in advance what factors a Parliament would or would not take into account. The majority declined to make a reference to the Court of Justice of the European Union as the Court's case law gave sufficient guidance.
One judge dissented on this central issue, holding that the majority��s approach would leave a "significant gap" in strategic environmental protection in EU law since it would mean that no plan or programme could set the framework for development consent where the subsequent development consent decision-maker was a sovereign legislature. 
The judge also disagreed with the majority's decision not to refer the case to the CJEU since it was for the CJEU and "not the domestic court of a member state to decide whether the fact that a member state chooses to adopt a process of granting development consent for a major project which will have significant environmental effect by way of an act of national legislation is sufficient, of itself, to place the Government��s adoption of a plan or programme outwith the scope of the EU-wide strategic environmental protection conferred by the SEA Directive."
Despite this set back the objectors have vowed to fight on. Permission to appeal to the Supreme Court has been granted on the ground that a SEA was required.
ProjectsRecommendation for simplification, modernisation and better management for Government procurement strategy
A report published by the Public Administration Select Committee ("PASC") on 19 July identified weak governance, in particular a "persistent lack of skills, strategy and leadership", as the key cause of procurement and contract management failures in the UK. The report  noted that procurement processes in the UK generally take 50% longer to reach contract award than in Germany and France. The report also criticised the backdrop of European laws, which it alleged "reinforce a process-oriented, risk-averse culture in procurement, which in the UK has resulted in delay, increased cost and a failure to focus on outcome". With that in mind, the PASC has set out recommendations for the development of procurement strategy in the UK and encouraged the Cabinet Office to undertake its own review on this issue. The report is timely, following a European Commission Communication on 17 July which identified the EU's wider procurement objectives. 
The report provides an indication of how procurement law in the UK may be developed going forward, although the strategy that will actually be taken by the Cabinet Office remains to be seen. Taking into account the broader EU objectives, the PASC broadly recommended simplification, modernisation and better management. Specific recommendations include:

a centralised procurement system (a "single Government customer") with a clearly defined mandate;increased use of e-procurement;an efficient mechanism for challenging erroneous procurement, which minimises the potential to inhibit effective public procurement;partnership between the Cabinet Office and other government departments, including BIS, to ensure that greater visibility is given to industry of future procurement activity;greater market accessibility for SMEs and increased publication of Government spending in this regard;strategic use of public procurement in response to social and environmental considerations (e.g. by setting wider contract performance measures, such as the creation of apprenticeships);more robust public sector officer training and management systems, including increased commercial and procurement expertise from the private sector; andan increased monitoring and reporting role for the State.     
Personal InjuryExtending the Portal - reducing costs for Defendants
Further to last month's article, we can confirm that the Government's proposal to extend the Claims Portal has gone ahead. Since 31 July 2013, the Portal now includes:   Employers' liability and public liability claims where the accident occurs on or after 31 July 2013; andRTA claims between £10,000-£25,000 limit where the Claim Notification Form is submitted on or after 31 July 2013.  Public authorities and their advisors will need to ensure that they are registered with the Portal and ready to use it now it is force. In particular, the short deadlines for responding to Portal claims need to be diarised. If you have any queries about this process, please contact Flora Wood on 01392 334020 or f.wood@ashfords.co.uk.  

Litigation and Dispute Resolution
Post-Jackson Disclosure
As the dust settles on the Jackson Reforms, more and more disputes are being litigated under the new regime. Cases issued after 1 April 2013 will be on unfamiliar ground for all involved. Disclosure is one area which has undergone reform and although perhaps less radical than considered by Jackson at various stages of his review, those changes are significant. Disclosure is the process of making available evidence which supports or undermines a party's case. The significance of changes to the rules on disclosure is compounded by the relatively light touch that has actually been applied to the wording of Part 31 of the Civil Procedure Rules which governs Disclosure. Further, there are no amendments at all in the guidance contained within the accompanying Practice Directions. This article considers two areas of reform which are likely to have a considerable practical impact. 
The Disclosure Menu Standard Disclosure in all multi-track cases (other than for PI or clinical negligence claims) has been replaced in favour of a menu of options for the Court to determine the best approach. Parties are required to work together and seek to agree a proposal for disclosure in advance of the first Case Management Conference. 
The menu options range from an Order dispensing with disclosure to a bespoke disclosure Order that the Court considers appropriate. A standard approach is yet to be bed in. There is however wide scope for judicial creativity and innovation with the Directions they give.   
Disclosure Report Parties now have to consider the documents to which a disclosure obligation would attach at a much earlier stage in the litigation process.
Under the new rules, not less than 14 days before the first case management conference each party must file and serve a report (verified by a statement of truth) which �“(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;(b) describes where and with whom those documents are or may be located;(c) in the case of electronic documents, describes how those documents are stored;(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and(e) states which of the directions are to be sought (i.e. a choice from the Disclosure Menu).Early preparation is key. Disclosure is often a significant exercise in terms of both time and costs. The disclosure exercise must be properly project managed and cooperation between the parties is essential.  
Property Litigation"Bedroom Tax" is not discriminatory
R (on the application of MA & Ors) v The Secretary of State for Work and Pension [2013] EWHC 2213 (QB)
The High Court has decided that the recent changes to how the maximum amount of housing benefit is calculated is lawful and not discriminatory. 
The case of R (on the application of MA & Ors) v The Secretary of State for Work and Pension was a judicial review challenge to the changes introduced into the Housing Benefit Regulations 2006 ("the 2006 Regulations") by the Housing Benefit (Amendment) Regulations 2012 ("the 2012 Regulations"). All of the ten claimants were in receipt of housing benefit and consisted of people whose disabilities varied from adults requiring a room for full time carers to children who were unable to share bedrooms with their siblings. 
The 2012 Regulations have altered the basis on which the maximum amount of housing benefit is calculated. The new Regulation B13 of the 2006 Regulations dictates the number of bedrooms required in the property by reference to certain criteria. These criteria provide that the person in receipt of housing benefit is entitled to one bedroom for each of various categories of person who live in the property as their home. These require a room each for a couple; an adult; two children of the same sex; two children under the age of 10 years old; a child; and an additional room if the claimant or their partner requires overnight care.
The changes to the 2006 Regulations have the effect of reducing the eligible rent where the number of bedrooms in the property exceeds the number permitted under the criteria in Regulation B13. There is a reduction of 14% where there is one excess bedroom, and 25% where there are two or more excess bedrooms. The Government has tried to address the risk of unfairness in the new policy by permitting local authorities to make discretionary housing payments (DHPs).
In the current case, the Claimants submitted that the new measures were discriminatory under Article 14 of the European Convention on Human Rights 1950 (which provides for a general prohibition against discrimination) on the basis that the State is obliged to take positive steps to configure the Regulations so as to accommodate the needs of disabled people. The Court disagreed. In a judgement delivered on 30 July 2013, the Court stated that the claimants had not shown that there was a specific class of person who needed extra bedroom space by reason of disability and who could be identified in practical and objective terms. The claimants were not a class of persons that could be sufficiently differentiated from other groups equally in need of extra space for other reasons. Whilst this did not preclude Article 14 from applying, it meant that the Secretary of State was only under an obligation to consider and take account of the effects of his policy on the disabled and ensure that the means chosen to achieve his aims were appropriate and not disproportionate. 
The question that the Court had to consider was whether the refusal to exclude some disabled persons from the criteria set in Regulation B13, and the provision for DHPs, constituted a proportionate approach to the difficulties faced by people such as the claimants as a result of the housing benefit policy. It was decided that the measure was not without reasonable foundation. Additionally, the provision of extra funding for DHPs and advice and guidance on its use could not be said to be a disproportionate approach to the difficulties that some disabled people faced under the changes. Accordingly the application was refused.
The claimants are likely to appeal this decision and whilst the appeal is awaited, it will be interesting to see how the local authorities and housing associations respond to the decision. It is possible that DHPs will be extended or bedroom needs reassessed temporarily until a final decision is made. In the judgement, the court also criticised ministers, pointing out that the Government had known since May 2012 that the law needed to be changed to provide for disabled children. In these circumstances the attitudes of housing providers may, at least in part, influence the appeal decision in due course. Watch this space.

Data Protection/FOI
ICO fines cold-calling company £225,000 for nuisance calls 
The Information Commissioner's Office (ICO) has issued further monetary penalties totalling £225,000 for breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), following failures to respect individuals' opt-out requests made via the Telephone Preference Service (TPS). 
Nationwide Energy Services has received a penalty of £125,000 and We Claim You Gain has been fined £100,000. Both companies are part of Save Britain Money Limited, based in Swansea and are currently at the centre of a BBC documentary about call centres. 
Following investigation by the ICO, it was found that the companies were the subject of over 2,700 complaints. The complaints were made between 26 May 2011 and 31 December 2012 via the TPS or were reported to the ICO using the ICO's online reporting tool.
Neither company had carried out sufficient checks to ascertain whether the individuals being telephoned by the companies had registered with the TPS. Such checks are a legal requirement of the PECR. 
These fines are the latest in a series of monetary penalties issued by the ICO for breaches of the PECR. In November, the ICO issued fines totalling £440,000 to the owners of marketing company, Tetrus, for sending millions of unsolicited text messages over the course of three years. Tetrus had failed to obtain the consent of the recipients and had not identified itself as the sender of the communications. In May, DM Design was fined £90,000 after consistently failing to check whether individuals had opted out of receiving marketing communications and continuing to make unwanted marketing calls. 
To date, the ICO has issued penalties totalling over £750,000 to companies who have failed to comply with the PECR. Another 10 companies are currently under investigation by the ICO.
The ICO's director of operations, Simon Entwisle, said "the public have told us that they are fed up with the constant bombardment of nuisance calls. People have the legal right not to receive marketing calls and these companies have paid the price for failing to respect people's wishes." 
"We welcomed discussions in the House of Commons [last month] around ways to improve the law around unwanted marketing calls and texts. We would like to see it made easier for us to issue monetary penalties to companies who are breaking the rules. Similarly, �¦ the rules on how consumers give their consent to receive calls needs to be clearer". 
The ICO's online reporting tool, which enables consumers to provide details of unwanted marketing texts and calls, was set up in March 2012. To date, it has received over 200,000 responses. 
The level of fines imposed illustrates that breaches of the PECR are taken seriously by the ICO. Any organisation carrying out marketing by telephone must ensure that they have complete and accurate procedures for checking their records against the TPS lists. It goes without saying that individuals who opt-out or who have opted-out of receiving marketing communications should not be contacted.  

Employment 
Redundancy Inadmissibility of Pre-termination Discussions   
From the 29 July 2013, new statutory provisions enshrined in the Enterprise and Regulatory Reform Act 2013 ("ERRA") have created the concept of "pre-termination negotiations". 
BackgroundPreviously, employers could enter into settlement negotiations by virtue of the "Without Prejudice" rule, enabling discussions to take place with a view to terminating the employee's employment on the basis that the discussion will be inadmissible as evidence in subsequent Tribunal proceedings. However, discussions were only protected if there was a dispute between the employer and employee.
New provisionsNow, employees and employers are able to enter into certain confidential, pre-termination negotiations under agreed terms within a ��Settlement Agreement�� (the new name for Compromise Agreements as of the same date), which will be inadmissible in any ordinary Unfair Dismissal proceedings, without a prior dispute being necessary.
No such protection will be afforded where the Employment Tribunal considers there has been anything improper or connected with "improper behaviour", to the extent it is just to do so. 
In support of the provisions, ACAS have introduced a Statutory Code of Practice on Settlement Agreements. The Code gives guidance on good practice when conducting pre-termination negotiations and includes guidance of what might amount to "improper behaviour":
All forms of harassment, bullying and intimidation; Physical assault or the threat of physical assault and other criminal behaviour; All forms of victimisation; discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; andPutting undue pressure on a party to accept an offer.Breach of the Code will not in itself give rise to proceedings, but the Tribunal may take account of a breach when considering cases and whether there is an Unfair Dismissal.
These provisions aim to give employers the ability to raise a severance deal without fear of an allegation of constructive dismissal. Similarly, employees can propose settlement terms to their employer in confidence. 
However, the protection will not apply to claims of discrimination, harassment, victimisation or claims relating to breach of contract, albeit the usual "Without Prejudice" rule will still apply. Employers must therefore be cautious when considering pre-termination negotiations and ensure there are no other factors at play.
If you require further information or if you intend to offer a Settlement Agreement to an employee in the future please do contact Ashfords' Employment and HR team.

Construction
Civil Litigation Costs 
Is post-Jackson proportionality so new? Even in cases begun prior to the Jackson Reforms on 1 April 2013, litigants should remember the need to keep costs in line with likely results.
SummaryThe case of Bellway Homes Ltd v Seymore (Civil Engineering Contractors) Ltd shows that, even in proceedings begun before 1 April 2013, the court may set aside the usual application of Part 36 offer cost consequences where the parties' conduct has resulted in a claim for costs which is disproportionate to the value of the case. Though the Defendant "won" the case and the Claimant failed to beat the Defendant's Part 36 offer (very narrowly), the court held that both parties' conduct was such, given the size of the settlement, that a split costs order was appropriate.
BackgroundThe Claimant, responsible to a local authority for a road programme, employed the defendant to perform works which overran substantially. At adjudication the Defendant secured an order that the Claimant pay £1 million. The Claimant paid, but in court sought to recover approximately £500,000 (though realistically this claim was worth about £350,000).
Substantive ProceedingsThe Claimant claimed that the adjudicator had been over-generous to the Defendant who refuted this and counterclaimed for £146,955 which it claimed was due in respect of retention. The Defendant made a Part 36 offer that the Claimant pay £1 in full and final settlement and pay the legal costs of both the claim and counterclaim.
Following a series of offers and counter-offers the parties settled at the last minute, the Defendant paying £146,953 to the Claimant. However, in the interim the Claimant had paid the Defendant £146,955 in respect of its counterclaim. Combined costs estimates totalled about £1.3 million.
Costs ProceedingsThe Defendant claimed that its Part 36 offer had not been beaten because it had received £2 more in respect of its counterclaim than it had paid in settlement. Therefore the Defendant argued that the Claimant, pursuant to Part 36, was liable to pay both parties' costs.
The Claimant argued that it had been justified in bringing the claim, or otherwise it would have paid the £146,955 for the counterclaim, but not recouped the £146,953 claimed.
The LawThe court accepted that the normal application of Part 36 was that where a Claimant failed to beat a Defendant's offer, the Claimant would be liable for costs from the end of the relevant period. However the court held that it possessed some discretion to act justly by considering all the circumstances of the case, though this would require strong justification.
The JudgmentThe court analysed the reasonableness of the parties' positions over time, concluding that both parties had acted unreasonably.
Ultimately the court held that the Claimant had been justified in bringing the claim. However, the Claimant could have offered to settle by retaining the retention monies and discontinuing the claim by using a non-Part 36 offer, including a reasonable costs solution. It had not done so because it had wanted more from the claim than was realistic. Nevertheless, the Defendant had been unreasonable in insisting, right up to settlement, that the Claimant paid both parties' costs.
The court ordered that the Defendant pay 50% of the Claimant's costs for a period; that the Claimant pay all the Defendant's costs for a period and thereafter that the parties bear their own costs.
CommentIn a situation where costs far outstripped the value of the case, the court refused to allow the Defendant to recover its costs on standard Part 36 terms because its offer had been unreasonable in terms of costs. This is an indication that the proportionality emphasis post-Jackson is not unprecedented and that litigants have always had to keep costs in line with likely results. On balance the Claimant was held more culpable as a result of failing to beat the Part 36 offer. Nevertheless, the implication is that had the Claimant produced a reasonable Without Prejudice Save as to Costs offer for both settlement and costs, its failure to beat the Defendant's Part 36 offer on settlement would have been less damaging.
Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them. 
]]> http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Act+-+August+2013 http://www.ashfords.co.uk/news/Data+Protection+and+Freedom+of+Information+Act+-+August+2013 Thu, 15 Aug 2013 10:30:00 +0000

Website terms come under scrutiny from the ICO    



The Information Commissioner's Office ("ICO") has raised concerns about the terms of use of a number of popular websites.



The ICO's survey focussed in particular on the major UK dating websites.  It has revealed a number of areas of non-compliance with the Data Protection Act 1998 ("DPA"). In particular, there is [...]]]>

Website terms come under scrutiny from the ICO    



The Information Commissioner's Office ("ICO") has raised concerns about the terms of use of a number of popular websites.



The ICO's survey focussed in particular on the major UK dating websites.  It has revealed a number of areas of non-compliance with the Data Protection Act 1998 ("DPA"). In particular, there is concern that:




The website terms and conditions are not sufficiently prominent, especially those by which the user grants consent to the dating company to use the member's personal information;
Members are being required to grant the dating companies perpetual licences to use their personal information, which cannot later be revoked;
The websites exclude liability for the loss of or damage to the personal information supplied; and
Website users are often required to provide personal information before they have had the opportunity to read (and decide if they are happy to agree with) the terms that will apply to the companies' use of their information.



The ICO has contacted four of the biggest online dating companies. They have been asked to respond with information as to how they intend to deal with the ICO's concerns.



Evidently the ICO is concerned that companies providing online dating services are falling short of the legal standards for ensuring compliance with data protection legislation. The ICO has issued an appeal for information from any individuals who have had their personal information misused by an online dating company.



While this particular investigation concentrated on the online dating industry, the issues it raises are highly relevant to all organisations that collect information from the public via their websites.  It demonstrates the importance of ensuring that the terms governing the collection and use of such information are compliant and accessible to website users.



ICO issues further fine for nuisance calls    



As we reported last month, the ICO is in the midst of a crackdown on unsolicited marketing calls and has issued numerous monetary penalties to businesses for failure to comply with data protection legislation.



The ICO has since issued a further monetary penalty against Tameside Energy Services Limited ("TES"), a company based in Manchester, of £45,000 for breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECR") and also for failing to observe opt-out requests made via the Telephone Preference Service.



TES offers services in the domestic energy sector. Following an investigation by the ICO, it was found that TES had been responsible for in excess of 1,000 complaints to the ICO and the Telephone Preference Service made between 26 May 2011 and 31 January 2013. In particular, one complainant had made over 20 requests for her details to be removed from TES' database and, even so, continued to receive unwanted calls.



The ICO initially proposed a fine of £90,000, but was prepared to take into account TES' financial circumstances and reduced the penalty.



TES has also been issued with an enforcement notice requiring it to cease unsolicited direct marketing calls to individuals who have indicated to TES that they do not wish to be called, or to individuals who have subscribed to the Telephone Preference Service. Failure to comply with the notice may lead to formal criminal prosecution under section 47(1) of the Data Protection Act 1998.
   



Recent Decisions    




Case Ref: FS50499580    
Public Authority: Foreign and Commonwealth Office ("FCO")    


This decision concerned a request made for information about the Iraq Inquiry.



By the date the complaint was made, the FCO had failed to provide a substantive response to the enquiry.



It was therefore decided by the Commissioner that the FCO had breached sections 10(1) (which specifies the time limit for compliance) and 17(3) (which obliges the public authority to give notice where it refuses a request) of the Freedom of Information Act 2000 ("FOIA").



The Commissioner has ordered the FCO to either disclose the relevant information, or send the complainant a refusal notice, setting out the reason for not providing the information (including any public interest considerations).



Case Ref: FER0479985    
Public Authority: Natural England    



A request was made for information in relation to the funding of the companies licensed to carry out pilot badger culls.



Natural England withheld the information. It argued that disclosure would affect the confidentiality of proceedings, the voluntary supply of information and commercial confidentiality.



The Commissioner agreed that Natural England had correctly applied the exemption provided in regulation 12(5)(d) of the Environment Information Regulations 2004 ("EIR").  It may therefore withhold the information requested.


Case Ref: FS50480038    
Public Authority: London Borough of Enfield Council ("the Council")    



This case related to an information request made concerning the actions of a social worker at the Council.



The social worker had previously reported the theft of a cat,
which the complainant had taken to a cat charity, as she considered that its health had been suffering in a care home. The police had not taken any action.



The Council confirmed that it did not hold any relevant information. It also said that if it received further freedom of information requests about the same subject matter, it would consider such requests to be vexatious.



After further requests were made by the complainant, the Council  declared the requests to be vexatious. Under section 14 of the FOIA, a public authority is not obliged to comply with a request for information if it is vexatious.



The Commissioner concluded that the Council had incorrectly applied section 14 to the complainant's requests. However, as the Council had already confirmed that it held no relevant information, the Council was not obliged to take any further action.


 


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.


]]> http://www.ashfords.co.uk/news/Clarifying+a+timing+anomaly'3A+Superstrike+Ltd+v+Rodrigues+'5B2013'5D+EWCA+Civ+669 http://www.ashfords.co.uk/news/Clarifying+a+timing+anomaly'3A+Superstrike+Ltd+v+Rodrigues+'5B2013'5D+EWCA+Civ+669 Fri, 09 Aug 2013 13:00:00 +0000
In Superstrike Ltd v Rodrigues, the Defendant had taken an assured shorthold tenancy for a fixed term of one ye[...]]]>
In Superstrike Ltd v Rodrigues, the Defendant had taken an assured shorthold tenancy for a fixed term of one year less one day from 8 January 2007 and had paid one month's deposit under the terms of the agreement. At the expiry of the fixed term, whilst no new tenancy agreement was entered into, the Defendant became untitled under section 5 of the Housing Act 1988 to a statutory periodic tenancy on equivalent terms. 6 months later, the landlord company a notice for possession under section 21 and subsequently issued possession proceedings under the accelerated procedure.

The Claimant company obtained a possession order on 8 May 2012 but it was subsequently set aside on the ground that the company had failed to comply with section 213 of the Housing Act 2004 in relation to the deposit, the provisions of which came into force on 6 April 2007. The Claimant successfully appealed to a circuit judge who held that as the deposit has been paid before the relevant sections of the 2004 Act came into force, these provisions did not apply and the possession order was reinstated. The Defendant tenant appealed to the Court of Appeal on the basis that the deposit had to be regarded as being paid and received in respect of the new statutory periodic tenancy and not the original fixed-term tenancy.

The appeal was allowed. The new statutory tenancy contained an equivalent provision regarding the deposit and accordingly the Defendant should be treated as having paid the amount of the deposit to the company in respect of the new tenancy, by way of set-off against the company's obligation to account to the tenant for the deposit in respect of the fixed-term tenancy. It followed that the Defendant had paid and the Claimant had received the deposit after the provisions of the Housing Act 2004 came into force, so the obligations under section 213 of the Act applied. The landlord should have made arrangements for the deposit to be held in accordance with an authorised scheme if it wished to serve a notice under section 21 of the Housing Act 1988. In these circumstances, Superstrike Ltd had not been entitled to serve notice under section 21 and the possession order should not have been made.

Landlords would be well advised to check the position on deposits on their assured shorthold tenancies where the original agreement predated 6 April 2007 before serving Section 21 Notices to ensure they do not fall into the same trap.


For further information please contact a member of the Housing Team on 01392 333994.

Printable version


 


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.

]]> http://www.ashfords.co.uk/news/Expertise+of+region'27s+leading+firms+is+ranked+in+new+Experian+survey http://www.ashfords.co.uk/news/Expertise+of+region'27s+leading+firms+is+ranked+in+new+Experian+survey Tue, 06 Aug 2013 11:10:00 +0000

New research into levels of corporate activity across the South West has ranked Ashfords and KPMG as the leading professional firms in the wider region.


The survey, carried out by Experian, is on deals taking place in the first half of 2013 and ranks firms by volume and value of transactions.


The volume rankings for legal advisers saw Exeter-ba[...]]]>

New research into levels of corporate activity across the South West has ranked Ashfords and KPMG as the leading professional firms in the wider region.


The survey, carried out by Experian, is on deals taking place in the first half of 2013 and ranks firms by volume and value of transactions.


The volume rankings for legal advisers saw Exeter-based Ashfords top the list with six deals, with Burges Salmon second, Michelmores third and Foot Anstey ranked sixth with four deals.


In recent months, Ashfords has worked on deals including a management restructure at Churchstow-based clothing retailer Quba and helping to secure investment for Exeter-based Antech, which supplies drilling equipment to the oil and gas industry.


Ashfords Partner Louise Workman said: "Despite the disconcerting national figures there is still confidence in the South West and in the businesses that operate from the region. The deals we have assisted with have resulted in large amounts of cash being invested locally which has fuelled individual companies' growth plans and secured jobs."


Tim Jones, chairman of the Devon and Cornwall Business Council, added: "This is significant news that one of our leading professional firms is being recognised at the highest level. It also shows that the South West is a great place to do international and local business and it's great to see that we are bucking the trend."


The trend for larger deals to be carried out by larger firms based outside the Westcountry was borne out in the listing of deals by value, which ranked Burges Salmon at the top with deals worth £274 million, with Clifford Chance, Linklaters and SJ Berwin all ranked equal second with transactions valued at £185 million.


KPMG topped the financial advisers rankings by volume, with PwC in second place and BDO in third. On the listing by value, Bank of America Merril Lynch topped the list, with transactions valued at £450 million while DC Advisory was in second place with deals worth £235 million and KPMG in third place with deals worth £211 million.


Experian said deal numbers in the region were in line with the UK trend which showed a drop of around 15% in volume. It said that the South West was involved in 6.9% of UK deals with the region contributing just over 2% of the total value of transactions.


Significant transactions in the wider region included the £519 million rights issue of Cirencester-based St James Place, in March, followed by a £450 million divestment of the business in May.


Corporate activity highlights of the first half of 2013 for the for the far South West included the institutional buyout (IBO) of Penryn-based mixing console manufacturer Allen & Heath in June. Equity and debt funding of £43 million was provided by the London-based Electra Partners and Allen & Heath management. In addition, Exeter-based GCP Student Living was floated in a £70 million deal in May.


]]> http://www.ashfords.co.uk/news/Grounds+for+Possession'3A+'22Suitable+Alternative+Accommodation'22+does+not+have+to+refer+to+a+Specific+Property http://www.ashfords.co.uk/news/Grounds+for+Possession'3A+'22Suitable+Alternative+Accommodation'22+does+not+have+to+refer+to+a+Specific+Property Fri, 02 Aug 2013 10:30:00 +0000


The Court of Appeal has held that the expression "suitable alternative accommodation" in the Housing Act 1985 (section 84(2)(b) and (c)) is broad enough to encompass accommodation identified by reference to its essential characteristics and did not require the identification of a specific property.



In Holt v Reading Borough Council the Court held that where alternative accommodation[...]]]>


The Court of Appeal has held that the expression "suitable alternative accommodation" in the Housing Act 1985 (section 84(2)(b) and (c)) is broad enough to encompass accommodation identified by reference to its essential characteristics and did not require the identification of a specific property.



In Holt v Reading Borough Council the Court held that where alternative accommodation needs to be provided under the terms of a ground for possession, there is no requirement that an offer of accommodation has been made before the hearing or that the accommodation is available on that date. The Court only has to be satisfied that suitable accommodation will be available when the order takes effect.



The appellant tenant appealed against an order requiring her to deliver possession of her home to the respondent local authority. Aged 59, Ms Holt had lived in the property with her parents her whole life and until her mother's death in 2010, was her principle carer. In 2011, the Council determined that Ms Holt was an "under-occupier" and asked her to apply for a one-bedroom property. However, she refused offers of alternative accommodation and the respondent brought proceedings for possession. Whilst there was no live offer of a particular property at the time of the trail, the Recorder was satisfied that it was reasonable to make an order for possession conditional on the respondent making the appellant an offer of accommodation which satisfied specific requirements set out on the order.



The appellant challenged the finding of reasonableness on the basis that (amongst other things) the Recorder had failed to satisfy herself, as required by section 84(2) of the Housing Act 1985, that the alternative accommodation would be suitable and available when the order took effect. The appellant contended that no order could be made until a specific property comprising suitable alternative accommodation had been identified.



The appeal was dismissed. The court rejected the challenges and commented that the Act did not require that an offer of accommodation had to be made before the date of the hearing of the application for possession; indeed the wording of section 84(2) expressly contemplated that it might not be. The court also rejected the argument that it could not find that it was reasonable to make an order based on alternative accommodation otherwise than in relation to a specific property. If the court was satisfied that accommodation having particular characteristics would be reasonably suitable to meet a tenant's needs, and that such accommodation would become available, it had jurisdiction to make a possession order which would not take effect until the accommodation had in fact become available.



This decision supports local authorities by suggesting that they are not expected to hold properties vacant pending the hearing of a possession claim where other suitable properties would become available within a reasonable time. The court also maintained security for the tenants by requiring that any conditional order that is made should include liberty to apply, a time limit for the suitable alternative accommodation to be made available and a provision which shall determine what should happen should the time limit lapse and no suitable offer is made. However, the court did recognise that it would not always be appropriate for it to make possession conditional on an offer of suitable alternative accommodation being made, particularly were tenant's are especially vulnerable. Nevertheless, the decision should help assist with the procedure and reduce the time involved in obtaining orders for possession where suitable alternative accommodation needs to be provided.


For further information please contact a member of the Housing Team on 01392 333994.


Printable version


]]> http://www.ashfords.co.uk/news/STOP+PRESS+-+Key+Employment+Law+Changes'3A+Enterprise+and+Regulatory+Reform+Act+2013 http://www.ashfords.co.uk/news/STOP+PRESS+-+Key+Employment+Law+Changes'3A+Enterprise+and+Regulatory+Reform+Act+2013 Mon, 29 Jul 2013 16:35:00 +0000

From today various new statutory provisions set out in the Enterprise and Regulatory Reform Act 2013 come into force, which make various changes in employment law and HR practice.


1.    New Employment Tribunal  Fees and Rules of Procedure

       Fees

There is a new fee system in the Employment Tribunal and Employment Appeal Tribunal, which requires Cla[...]]]>

From today various new statutory provisions set out in the Enterprise and Regulatory Reform Act 2013 come into force, which make various changes in employment law and HR practice.


1.    New Employment Tribunal  Fees and Rules of Procedure

       Fees

There is a new fee system in the Employment Tribunal and Employment Appeal Tribunal, which requires Claimants to pay an issue fee to start their claim, and a hearing fee before a final Hearing (unless their personal circumstances mean that they do not have to pay).

Other fees are payable when you want to make a specific application.

Judges now have the discretion to order that the unsuccessful party repays the fees paid out by the successful party.


       Tribunal Procedure Rules

The new Employment Tribunal Rules of Procedure introduce important changes, such as:




The establishment of a "sift" stage in proceedings, which will give Judges the power to strike our claims and defences which have no reasonable prospect of success;
There will be Preliminary Hearings instead of Case Management Discussions and Pre-Hearing Reviews;
The relaxation of the old Default Judgement rules;
Changes to the Cost Order rules; and
Changes to rules about witness evidence, such as statements being taken "as read", although copies have to be available to members of the public.



2.    Cap on Unfair Dismissal Awards

The Unfair Dismissal compensatory award is now capped at the lower of £74,200 (set annually by the Government), or one year��s gross pay, for claims where the effective date of termination is on or after 29 July 2013.


3.    Changes to whistleblowing legislation

Whistleblowing protection is now limited to disclosures which, in the reasonable belief of the worker, are made in the "public interest".

There is no longer the need for workers to show that they blew the whistle "in good faith", but Tribunals have the discretion to reduce compensation by up to 25% where a disclosure is not made in good faith.

The legislation also introduces personal liability for co-workers who victimise whistleblowers, and vicarious liability for their employers.


4.    Pre-termination Discussions and Settlement Agreements

Employees and employers are now able to enter into confidential, pre-termination negotiations, which they will not be able to refer to in any subsequent Tribunal proceedings, unless there has been "improper behaviour". ACAS has issued guidance to employers on pre-termination negotiations.

Compromise Agreements have also been renamed as "Settlement Agreements" in all relevant legislation.

If you require further information on the new legislation and its implications for your business, please do contact Ashfords' Employment and HR Team.


Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.




]]> http://www.ashfords.co.uk/news/Landlords+beware'3A+tenancy+agreements+must+be+fair'21 http://www.ashfords.co.uk/news/Landlords+beware'3A+tenancy+agreements+must+be+fair'21 Fri, 26 Jul 2013 10:30:00 +0000


In 2007, Jahani BV, a company letting residential property on a commercial basis, rented to Mr Asbeek Brusse and Ms de Man Garabito (who were[...]]]>


In 2007, Jahani BV, a company letting residential property on a commercial basis, rented to Mr Asbeek Brusse and Ms de Man Garabito (who were acting on a non-commercial basis) premises to be used for residential purposes in Alkmaar (the Netherlands). The tenancy included the following terms:



'20.1 The tenant shall be in default by virtue of the expiry of a specified period.
20.2 In every case where the tenant is in default as regards the timely and full payment of a specified sum of money, he shall be obliged to pay 1% interest per month on the principal sum owing, from the due date to the date on which the principal sum is paid in full.
...
20.6 The tenant shall owe the landlord an immediately payable penalty of EUR 25 per calendar day for each obligation arising from this agreement and the accompanying Standard Terms which he fails to fulfil or infringes, without prejudice to his obligation to remedy the breach and without prejudice to any other rights that the landlord may have to compensation or otherwise. ...'


In early 2009, the tenants fell into arrears and eventually ceased to pay rent. In July 2009, Jahani brought proceedings against the tenants, seeking, inter alia, termination of the tenancy agreement and an order requiring the defendants to pay a total of EUR 13 897.09 which included the rental arrears (just over £5,000) and additional charges (just over £8,000). The District Court made a possession order and entered money judgement as sought.



The tenants appealed and the appellate court referred the case to the ECJ. The court posed a number of question, including (i) whether Directive 93/13 EEC (and therefore the regulations in relation to unfair contract terms) applied and (ii) whether the domestic court was able to assess the fairness of the contractual terms even if the issue had not been raised by the parties.



The ECJ confirmed held that the Directive did apply to the tenancy. As such, the national court could find that the penalty terms outlined above were unfair. If found to be unfair, the unfair term is not binding on the tenant as a consumer  (Regulation 8).



The ECJ also held that if the national court has power to raise an issue which was not raised by the parties, it is required to assess the fairness of a contractual term and apply the Directive. And if the national court established that the penalty clause is unfair, it cannot merely reduce the amount of the penalty imposed on them by that clause, but is required to exclude the application of that clause in its entirety. Accordingly, the case was remitted to the Regional Court of Appeal for disposal.



Going forward, it is essential that landlords letting for purposes relating to their trade, business or profession consider penalty clauses thoroughly, as now the fairness of such clauses can, and will, be assessed in possession proceedings. If deemed unfair, the penalty clause will be excluded in its entirety and no penalty amount will be payable by the defaulting tenant. To prevent this, substantial penalty clauses should be avoided as unenforceable and consideration should be given to lesser (but more realistic and fair) penalties in leases.

For further information please contact a member of the Housing Team on 01392 333994





Printable version


]]> http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+July+2013 http://www.ashfords.co.uk/news/Cross+Border+Restructuring+and+Insolvency+Update+-+July+2013 Thu, 25 Jul 2013 09:05:00 +0000
Sun Legend Investments Ltd v Jade Yuk Kuen Ho [2013] BPIR 533The English High Court held that a bankruptcy petition based on a debt evidenced by a Hong Kong Court judgment could proceed despite the absence of an English Court judgment. 
Sun Legend had presented a bankruptcy petition against Mrs Ho who was resident in England. The petition was based upon a debt of HK$3,655,516 which was the subject of a judgment of the Hong Kong Court in favour of Sun Legend.
Befor[...]]]>
Sun Legend Investments Ltd v Jade Yuk Kuen Ho [2013] BPIR 533The English High Court held that a bankruptcy petition based on a debt evidenced by a Hong Kong Court judgment could proceed despite the absence of an English Court judgment. 
Sun Legend had presented a bankruptcy petition against Mrs Ho who was resident in England. The petition was based upon a debt of HK$3,655,516 which was the subject of a judgment of the Hong Kong Court in favour of Sun Legend.
Before presenting the bankruptcy petition, Sun Legend had served a Statutory Demand on Mrs Ho, comprising the Hong Kong debt, interest and costs.
Mrs Ho made no application to set the Statutory Demand aside. She did, though, make an offer to settle the Demand. She had also made a previous offer to settle her liability, prior to the final Hong Kong Court hearing. Neither offer was accepted by Sun Legend. 
Mrs Ho opposed the petition and argued that, after Hong Kong was handed back to China by the UK, no treaty existed that enables a creditor to register a Hong Kong judgment in England and Wales. To enforce such a judgment in England and Wales, a creditor would need to bring an action on the Hong Kong judgment, seeking an English judgment based on it. As Sun Legend had not done so, Mrs Ho argued that the petition was an abuse of process.
Sun Legend submitted that, rather than seeking to enforce the Hong Kong judgment, they simply relied on it as evidence of Mrs Ho's debt.
The Court held that Sun Legend's petition may proceed.  There was no requirement for a creditor to hold an English judgment as a precondition to presenting a bankruptcy petition. Liability had been acknowledged by Mrs Ho, who had previously made proposals to settle the debt in open correspondence.
The Court further held that a bankruptcy petition did not amount to enforcement of the Hong Kong Court judgment as the bankruptcy jurisdiction is a separate one involving a class remedy. 
The Court held that a foreign court's judgment in personam may be recognised by the English court under English common law, if the person against whom the judgment was made had submitted to the foreign court's jurisdiction by voluntarily appearing in proceedings. In this case Mrs Ho had participated in the Hong Kong proceedings. Mrs Ho had raised no argument as to why the Hong Kong judgment should not be recognised under English law.
Concept Oil Services Ltd v En-Gin Group LLP and ten others [2013] EWHC 1897 (Comm)The High Court has granted an order under section 423 of the Insolvency Act 1986 reversing international transactions aimed at divesting a company of its assets 
Concept Oil Services Ltd (��Concept��), a company incorporated in Hong Kong, traded in crude and refined oil. It purchased refined oil from En-Gin Ltd (��En-Gin��), a company incorporated in England and Wales, under a framework agreement. The oil was processed in a refinery in Kazakhstan owned by a subsidiary of En-Gin.
Concept suffered multiple losses in respect of refined oil it had paid for but which was not delivered, and in respect of money it had lent to En-Gin to meet its tax liabilities. When Concept sought to recover those moneys, however, it found that En-Gin had become an Anguillan company with no assets. En-Gin had re-registered itself in Anguilla, its corporate structure had been rearranged, and it no longer owned the subsidiary with the refinery in Kazakhstan. 
Having initially obtained a freezing injunction, Concept claimed damages from En-Gin, its associated companies and two of its directors in the torts of deceit and conspiracy. Concept also argued that the transfer of En-Gin's assets were Transactions Defrauding Creditors within the meaning of s.423 Insolvency Act 1986.
The judge found for Concept, holding that the directors of En-Gin had effected a fraudulent misrepresentation by continuing to hold out that it was an English-registered company with substantial assets after that ceased to be the case. Concept had made it quite clear to the directors of En-Gin that it was willing to trade only on the basis that En-Gin was an English company with ownership of the refinery (via a subsidiary). In continuing to contract with Concept without informing it of the changes, the directors were liable in deceit and conspiracy. Furthermore, En-Gin��s transformation into an Anguillan company would not be recognised, and an order would be made under section 423 to restore the status quo.
This case illustrates that, where transactions defrauding creditors are concerned, complex international arrangements will not deter the court from protecting creditors�� interests.
Updates from around the WorldEUIn Promociones y Construcciones BJ 200 S.L. (C-125/12), the CJEU was asked to rule on the interpretation of the EU VAT Directive. Promociones y Construcciones had entered voluntary insolvency proceedings, during which it sold two properties, triggering a VAT liability. The referring Spanish Court wished to determine whether Promociones y Construcciones or the purchaser of the properties was liable to pay the VAT debt. 
The CJEU held that the concept of a ��compulsory sale procedure�� included the sale of immovable property by a judgment debtor in the course of a first phase of insolvency proceedings, i.e. which do not form part of the liquidation proceedings. This was provided that such a sale was necessary to settle creditors�� claims or to enable the debtor to re-establish its economic or professional activities. The matter was passed back to the referring Court to apply the CJEU's interpretation of the Directive on the facts of the case.
UKThe Court of Appeal is to consider a controversial line of case law concerning the classification of rent and service charges as an expense in Administration. In Re Games Station Limited and others, the High Court was bound by previous Court decisions to direct that the quarterly rent and service charge which fell due immediately before the Administration were not Administration expenses, and that rent and service charge falling due after the Administrators' appointment would be payable in full even if they thereafter ceased to use the premises. The landlord and the buyer of the business in Administration will appeal the decision.
Italy Italy has amended its Bankruptcy Act to increase creditor protection in "pre-concordato" proceedings. Under these proceedings debtors may benefit from Court protection while preparing an arrangement with creditors. The new rules provide for the Court to supervise debtors, impose obligations on debtors to file regular reports and give rights to creditors to be heard.
NetherlandsIn Megapool, the Netherlands Supreme Court ruled that, depending on the circumstances, a contractual clause by which a bankrupt party forfeits a right solely because of its bankruptcy, may be invalid. 

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them. 
]]> http://www.ashfords.co.uk/news/New+gTLDs+-+What+can+you+do+to+protect+your+brand'3F+ http://www.ashfords.co.uk/news/New+gTLDs+-+What+can+you+do+to+protect+your+brand'3F+ Wed, 24 Jul 2013 14:20:00 +0000


The world is on the cusp of the largest expansion of the Internet domain name landscape since the 1980s.



The Internet Corporation for Assigned Names and Numbers ("ICANN") is currently examining more than 1,900 applications for new generic top level domains ("gTLDs"). gTLDs are the suffix at the end of a domain name (e.g. .com, .org, .net etc.).



When the "New gTLDs" are launched in the com[...]]]>


The world is on the cusp of the largest expansion of the Internet domain name landscape since the 1980s.



The Internet Corporation for Assigned Names and Numbers ("ICANN") is currently examining more than 1,900 applications for new generic top level domains ("gTLDs"). gTLDs are the suffix at the end of a domain name (e.g. .com, .org, .net etc.).



When the "New gTLDs" are launched in the coming months, the list of gTLDs will be extended to include gTLDs that describe the nature of the website (for example, .accountant, .legal and .university are awaiting approval by ICANN). There will also be more specific brand identifiers (for example, .apple, .volkswagen and .amazon are awaiting approval by ICANN). Only four New gTLD's have been approved so far, none of which are in English. The remainder of the New gTLD's await ICANN's approval before they can be launched.   



Some New gTLDs will be exclusive to specific organisations. Attempts to register blatantly bad faith applications for New gTLDs will fail. For example, Microsoft could not register .apple, nor could Audi register .volkswagen.



Whether or not the dominance of the .com suffix comes to an end, the introduction of New gTLDs presents new opportunities and challenges for brand owners. While businesses can take the opportunity to enhance online brand identity, there is also greater opportunity for cybersquatting, especially at the second level of the New gTLD (to the left of the dot - e.g. "ashfords.law"). Brand owners therefore need to devote more time and cost to monitoring and policing their rights.



What brand protection mechanisms already exist to combat these concerns?



The Trademark Clearinghouse



ICANN introduced the Trademark Clearinghouse in March 2013, as a relatively inexpensive means of recording proprietary trade marks in a centralised, authenticated database. By applying to the Trademark Clearinghouse, trade mark owners will not need to register their marks in a number of different databases as the New gTLDs are introduced. The current application fee for one year's registration for one trade mark is US$150. This registration period is extendable.



The benefits of applying to record your trade marks at the Trademark Clearinghouse are threefold:



1. Sunrise service
A "sunrise period" will proceed the launch of each New gTLD. This comprises a period of at least 30 days prior to the launch (depending on the gTLD registry), where those that have registered their trade marks with the Trademark Clearinghouse will be eligible to apply for registrations at the second level of the New gTLD domains, corresponding with their registered rights before the application procedure is opened up to the general public.



So, to use the example above, if Ashfords records the trade mark 'Ashfords' at the Trademark Clearinghouse, it would be eligible to apply for the domain addresses "ashfords.law" and "ashfords.legal" at least 30 days before the official launch of the .law or .legal New gTLD.



2. Conflict warning service
If, immediately following the sunrise period, a third party attempts to register a second level New gTLD domain address which is identical to the mark recorded in the Trademark Clearinghouse, the third party will receive a notification of the rights asserted in the mark in question. The notice will put the recipient on formal notice of the rights registered at the Trademark Clearinghouse. gTLD registries are required to offer this service for at least 90 days following the end of the sunrise period.



For example, if an individual attempted to register "ashfords.law", then that individual would be sent a notification, formally putting them on notice of Ashfords' registered rights in the mark 'Ashfords'.



3. Claims notification service
If, having received a notice from the conflict warning service, an individual continues with the registration of a second level New gTLD domain address, which is identical to the mark recorded in the Trademark Clearinghouse, the trade mark owner will be notified of the registration, in case they wish to contest it.



Dispute Resolution Procedures



If an objectionable second level New gTLD domain address is successfully registered, responsibility for challenging the registration falls on the trade mark owner.



All of the New gTLDs will be subject to ICANN's Uniform Domain Name Dispute Resolution Policy ("UDRP"). The UDRP provides a means for rights owners to obtain the transfer of a domain name which has been registered and used in bad faith by a party that has no legitimate rights or interests in that domain name, which is identical or confusingly similar to a trade mark owner's mark.  



In addition, ICANN is introducing a faster, more efficient system to address obvious cases of trade mark abuse - the Uniform Rapid Suspension System ("URS"). The only remedy available for a successful claim under the URS will be the temporary suspension of the domain name (e.g. "ashfords.law)" for the duration of the registration period of the domain in question, with the option of a one year extension at the successful claimant's discretion.



ICANN has not yet nominated a service provider for the URS.



Conclusions



Do not underestimate the impact that the launch of the New gTLDs may have on your business. It is inevitable that a greater number of gTLDs will result in an increase in cases of cybersquatting. Recording your trade marks at the Trademark Clearinghouse is a sensible way of reducing instances of cybersquatting on domain addresses that include your trade marks.



If you have not already done so, register your trade marks. By registering your rights now, you will have a stronger means of legal objection if your business is the victim of cybersquatting.


For more information contact Carl Steele, who would like to thank Giles Lane for his contribution to this article.

]]> http://www.ashfords.co.uk/news/Leasehold+Enfranchisement'3A+Committing+a+wrong+won'27t+give+you+a+right http://www.ashfords.co.uk/news/Leasehold+Enfranchisement'3A+Committing+a+wrong+won'27t+give+you+a+right Tue, 23 Jul 2013 13:50:00 +0000


In Henley v Cohen [2013] EWCA Civ 480 the court agreed with the trial judge that having found that the conversi[...]]]>


In Henley v Cohen [2013] EWCA Civ 480 the court agreed with the trial judge that having found that the conversion of the first floor property was in breach of the lease, the judge was right to decide that the leaseholders were not entitled to rely on those unauthorised conversion works to claim that part of the premises had been adapted for living for the purposes of enfranchisement.


The leaseholders held a long lease of the two-storey premises and both floors were sub-let at the time the notice of their intention to enfranchise was given. The ground floor was a shop and the first floor was a storeroom which the leaseholders had converted into a flat despite the landlord's refusal to grant consent. Prior to the conversion, there was no internal access to the first floor property except from the property next door. This was blocked off during the conversion work, meaning access to the first floor was only available from iron steps at the rear of the property, and then walking across the roof of the shop on the ground floor.


The trial judge found (1) the premises, although adapted for living, was not reasonably called a house because of the complete isolation of the first floor from the ground floor; and (2) the landlord's consent had not been unreasonably withheld so that there had been a breach of covenant in the conversion, and ultimately that breach prevented the leaseholders from relying on the conversion to assert their right to enfranchise.


On appeal the Court agreed and found that the leaseholders deliberately committed breaches of the lease by carrying out unauthorised works to the premises in order to qualify for the right to acquire the freehold. Accordingly, there was a direct connection between the unlawful conversion of the first floor, on which the leaseholders sought to base their claim to enfranchise, and the statutory rights which the sought to enforce. Without the conversion works adapting the first floor for living in, the Leasehold Reform Act 1967 would not apply at all.


Lord Justice Mummery said that "the law should not and does not allow that". Accordingly, the appeal was dismissed.


For further information please contact a member of the Housing team on 01392 333994


]]> http://www.ashfords.co.uk/news/CIL+Update+'239+-+23rd+July+2013 http://www.ashfords.co.uk/news/CIL+Update+'239+-+23rd+July+2013 Tue, 23 Jul 2013 09:25:00 +0000















News


London Legacy Development Corporation consults on CIL charges for Olympic Site

The London Legacy Development Corporation ("LLDC"), which was given planning powers under the[...]]]>















News


London Legacy Development Corporation consults on CIL charges for Olympic Site

The London Legacy Development Corporation ("LLDC"), which was given planning powers under the Localism Act 2011 for the land within its area,  has begun consulting on its preliminary draft charging schedule.
The preliminary draft charging schedule proposes the following:







Residential Development - £60/m2;
Convenience supermarkets and superstores and retail warehouses (over 280 sq m) - £100/m2;
Hotels - £100/m2;
Student accommodation - £100/m2;
Comparison and all other retail (A1-A5) - £100/m2 or nil; and
All other uses - nil.

All planning applications within its area need to be made to the LLDC, which has taken on the planning functions of the Olympic Delivery Authority, the London Thames Gateway Development Corporation and the London Boroughs of Hackney, Newham, Tower Hamlets and Waltham Forest.

The preliminary draft charging schedule is available here. The consultation ends on 9 September 2013.













CIL Scenario #9

Mr. Redfern has built a 162m2 two storey rear extension to his existing professional office. He did not apply for planning permission.

A neighbour complains and produces photographic evidence that the building work took place (before CIL was adopted) in September and October. 

A subsequent investigation led to the service of an enforcement notice requiring the extension to be demolished. However, Mr. Foster appealed the notice and won. The enforcement notice was quashed and deemed planning permission granted on 5 June (after the adoption of CIL).

The CIL rate is £70/m2, but is there any CIL liability?


 



Scenario #9 answer:


CIL is applicable at the moment planning permission is issued.

Even though the development was carried out before the charging schedule, Mr. Redfern is still liable to pay because deemed permission was not granted until after the adoption of CIL. 

The initial amount is 162m2 x £70/m2 = £11,340

Mr. Redfern, however, carried out his development unlawfully and so did not serve a Commencement Notice. Therefore under Regulation 83 he is liable to a surcharge of 20% of the amount or £2,500 �“ whichever is the lesser amount. Consequently his total liability is £13,608.

The Council should immediately issue a Demand Notice showing this amount. Again, because no Commencement Notice was issued the full amount is payable immediately.






Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances. Links to other sites and resources provided by third parties are included for your information only. We have no control over the content and accept no responsibility for them.

]]> http://www.ashfords.co.uk/news/Public+M'26A+off+to+a+slow+start+in+2013 http://www.ashfords.co.uk/news/Public+M'26A+off+to+a+slow+start+in+2013 Mon, 22 Jul 2013 15:35:00 +0000

The first six months of 2013 have been slow for the public M&A industry. William Hill and GVC Holdings�� £485m takeover of gambling group Sportingbet was the standout deal, providing £6.85m in legal fees mostly to Addleshaw Goddard, Ashurst and Nabarro.



There was no mega-deal to match the Glencore-Xstrata merger from the second half of 2012 which skewed the deals tables last year and contributed
[...]]]>

The first six months of 2013 have been slow for the public M&A industry. William Hill and GVC Holdings�� £485m takeover of gambling group Sportingbet was the standout deal, providing £6.85m in legal fees mostly to Addleshaw Goddard, Ashurst and Nabarro.



There was no mega-deal to match the Glencore-Xstrata merger from the second half of 2012 which skewed the deals tables last year and contributed £38.9m of the estimated £50.1m spent on lawyers�� time in the past four months of the year.



So January to June 2013 looks quiet. Total estimated fees are only £26.1m, with spend going as low as £21,000 for the £1.07m takeover of AIM-listed investment group Evolve Capital by a concert party. The fees �“ £10,000 charged by Marriott Harrison for the buyers and £11,000 by Memery Crystal for Evolve �“ were minimal because the scope of the firms�� roles was unusually small, with brokers�� fees also rock-bottom.



A handful of deals were called off. Costain��s £164.5m bid for May Gurney was outdone by Kier (see box), while an Ashfords team led by chairman and corporate head Simon Rous successfully defended Coventry-headquartered home safety product maker Sprue Aegis against a hostile £34.8m takeover bid from American consumer products group Jarden Corporation, which turned to Burges Salmon. Estimated fees on the Jarden bid were £50,000 by Sprue Aegis and £200,000 by Jarden, but it is not clear what impact its failure had on the total.


]]> http://www.ashfords.co.uk/news/Divorce+-+The+End+Of+The+Beginning http://www.ashfords.co.uk/news/Divorce+-+The+End+Of+The+Beginning Fri, 19 Jul 2013 14:00:00 +0000

Divorce is always painful. It may be your decision, or one forced upon you. You might have found someone new or be contemplating a single existence. You may be wondering how to divide millions of pounds of assets, or worrying about whether there are sufficient funds to pay two sets of bills. And you may be divorcing after a year of marriage or a very long marriage; divorce amongst older couples is on the increase.


Ta[...]]]>

Divorce is always painful. It may be your decision, or one forced upon you. You might have found someone new or be contemplating a single existence. You may be wondering how to divide millions of pounds of assets, or worrying about whether there are sufficient funds to pay two sets of bills. And you may be divorcing after a year of marriage or a very long marriage; divorce amongst older couples is on the increase.


Take Katherine who came to see me recently. She was an attractive, seemingly composed woman who'd asked to see me to discuss divorce. She told me that she and her husband, David had been married for nearly forty years. They had three children - Joe, aged twenty eight and working in the City, Simon, twenty four and still at University after a series of gap years, and Georgia who was in her second year at Sheffield studying medicine. I found out that Katherine and David were both sixty three.


David had announced to Katherine the previous weekend that he was no longer interested in their plan to retire to Dorset. He wanted a divorce and was moving in with Annabel, a colleague from work of whose existence Katherine had been dimly aware.


David had worked in insurance since he left university and had the benefit of a decent pension. Katherine had not worked since Joe was born. They owned a house in London and a cottage close to the sea in Dorset together worth about £1.2 million pounds.


I gave Katherine some information about how the court was likely to view her case.


"Yours is a long marriage and the starting point when looking at the assets will be an equal split. That will include David's pension, and the court will make what's known as a pension sharing order. In fact, you will probably get more than half the pension fund because women tend to live longer then men although the odds are shortening.


When it comes to income, the amount you receive will depend on David's salary and his and your financial needs. You will each have to prepare a budget. If there's enough money to keep you both, the court wouldn't expect you to work, but it wouldn't expect David to delay his retirement either, even though he's the cause of the financial problem."


"But what about the fact he's ruined my life after nearly forty years of loyalty, hard work, bringing up his children and putting up with his mother?"


"Irrelevant," I reply. "Courts simply don't care about behaviour. Unless," I correct myself, "it involves murder or extreme depravity. I'm afraid adultery doesn't count."


"And Simon and Georgia? Will he have to carry on supporting them?"


"It's too early to say. Probably not Simon, simply because of his age. With Georgia, you may well receive maintenance for her, though less that if she was at home full time, and David may be ordered to pay her tuition fees as he's paying them already. It's an area where Judges are split. Some say children should negotiate directly with their fathers and then pay a sum to their mother for the time they're at home. Others still order fathers to pay some child maintenance for adult students during their first degree, often including a prior gap year".


We went over some other concerns that Katherine had, then the meeting ended and she left with lots of forms to fill in. She looked devastated and I suspected she would never fully recover from the way in which her world had changed forever.


Divorce law is the same whether you're twenty three or sixty three. But the preoccupations of a young career woman, for example, are very different from those of a wife such as Katherine. What are the issues that particularly concern older couples facing a divorce?


Usually, they'll already have built up such wealth as they're going to have so they'll both be facing a significant reduction in their assets that cannot be replaced. This means facing up to a reduced lifestyle just at a time, certainly for someone like Katherine, when the world seems a very bleak and insecure place. Often wives who've been sheltered from financial concerns during their marriage can appreciate the support and guidance of a financial advisor who's neither pushy nor patronising.


Inheritance can play a big part in older divorces. The general rule is that the family's assets are divided equally. What of assets that have been inherited during the relationship? It's all in the timing. It can often seem very unfair when parents of one of the couple have died and the inheritance has already been absorbed into the divorcing couple's lives. On divorce, although there may be an argument for saying it's "non-matrimonial property", the chances are that sums inherited years ago will simply be shared equally along with all the other assets. So what about, say, Katherine's mother who's in her mid eighties with no other children and sitting on substantial property and decent investments? Provided she's in good health, the court will probably ignore Katherine's inheritance prospects. It's one sided, but stems from the British laissez faire approach to inheritance. Katherine's mum can leave everything to her predatory neighbour for all the court knows, and it won't be prepared to make assumptions. This is the case even though, for example, David's parents died a number of years ago and his share of their estate was used to buy Katherine and David's cottage in Dorset. A bit of pay back for Katherine, perhaps.


Couples with children often feel the need to protect them on divorce from the unscrupulous partners that they suspect their spouses have acquired, or may acquire in the future. The divorce court can't impose inheritance planning on the couple. The court's view is that, whatever asset share David and Katherine acquire as a result of the divorce is theirs to do with as they like. The court can't order the couple to make a will, nor order them to leave their estate to any particular person. However, couples often do agree to do this as part of the divorce settlement and draft wills can be attached to the document lodged with the court. The order also includes promises that the wills won't be changed in the future.


However, Katherine should be aware that Annabel may still be able to get her hands on some of David's estate if they live together for more than two years. Someone who's been a financial dependent of the person who dies can bring a claim against their estate and there's an automatic claim where a couple have been married. So even if David and Katherine decide to leave all their money to the children, this would not necessarily exclude Annabel from a claim, especially if, in the fullness of time, she and David marry.


What if Joe decides that he will never forgive his father for the way he's treated his mother and says that he's not allowed to see his son, David's grandson, Fin? Fin's two and David adores him. Would David still be able to see him? Well, there's legislation in place that enables grandchildren to see their grandparents if the court regards it as being in their best interests. Generally speaking, it's regarded as not in the interest of a young child to see a grandparent if there's hostility between the grandparent and their own child. However, there are cases when this could happen. Had Fin been older at the time David delivered his bombshell, and had a separate and independent close relationship with his grandfather, David would have had a chance. However, David's decision to bail out from family life with Katherine has probably come too early for that. He'll have to hope that Joe's attitude will soften as time goes by.


When I met Katherine, I had predicted somewhat gloomily that she would never fully recover from the way David had ended their marriage. However, suppose Katherine finds solace, swiftly followed by love, at the local gardening club where she becomes a very active member? What happens if she realises that all men are untrustworthy and strangely unattractive? Enter Jane, also a divorcee, who's discovered later on in life that she no longer likes men either. She and Katherine start living together, with the blessing of Joe, Simon, Georgia and Jane's children. As a cohabiting couple, they have the same rights as David and Annabel. And if they choose to marry, once the well publicised gay marriage bill is in place, or enter into a civil partnership, they will each have precisely the same claims over each other's property as David and Katherine acquired when they made their vows to each other during the sweltering summer of 1976.


]]> http://www.ashfords.co.uk/news/Property+Tribunal+Functions+Transferred+to+First-Tier+Tribunal http://www.ashfords.co.uk/news/Property+Tribunal+Functions+Transferred+to+First-Tier+Tribunal Fri, 19 Jul 2013 10:30:00 +0000


The Order transfers the functions of the Rent Assessment Committees (which sits as Residential Property Tribunals, Leasehold Valuation Tribunals, Rent Tribunals and Rent Assessment Committees), the Agricultural Land Tribunals and the Adjudicator to Her Majesty's Land Registry into the Prop[...]]]>


The Order transfers the functions of the Rent Assessment Committees (which sits as Residential Property Tribunals, Leasehold Valuation Tribunals, Rent Tribunals and Rent Assessment Committees), the Agricultural Land Tribunals and the Adjudicator to Her Majesty's Land Registry into the Property Chamber of the First-tier Tribunal. This has result of abolishing the office of Adjudicator to the Lands Registry and limiting the functions of the other two Tribunals to Wales only.



Property Chamber has become the seventh chamber of the First-tier Tribunal and has united jurisdictions concerned with property, housing and lands registration. The Order itself was initially made to enforce the provisions of the Tribunals, Courts and Enforcement Act 2007, an Act which created a new two-tier tribunal structure (the First-tier Tribunal and the Upper Tribunal) and provided for a new simplified statutory framework for existing Tribunals. The intention is to develop a more coherent and consistent procedure across the jurisdictions that are transferring into the Chamber.



The practice and procedure to be followed by the Property Chamber is Governed by the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169) which came into force on 1 July 2013 and has replaced the existing rules currently followed by the abolished tribunals, providing for uniform procedure across the tribunal system.



Property Chamber proceedings that will attract a fee are now governed by the First-tier Tribunal (Property Chamber) Fees Order 2013 (SI 2013/1179) which states what fees are payable, when they are payable and by whom. Fees will be payable in the same circumstances as those prior to the Order, but the amount of the fees has been increased to take account of inflation.



The Tax and Chancery Chamber of the Upper Tribunal will hear any appeals from the new Property Chamber which relates to the Land Registration Act 2002, but all other appeals from the Property Chamber will now be heard by the Lands Chamber.



For further information please contact a member of the Housing team on 01392 333994


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]]> http://www.ashfords.co.uk/news/Corporate+Divorce'3A+Achieving+an+amicable+separation http://www.ashfords.co.uk/news/Corporate+Divorce'3A+Achieving+an+amicable+separation Thu, 18 Jul 2013 15:00:00 +0000


Nokia Siemens Network, the joint venture between Siemens AG (NYSE:SI) and Nokia Corporation (NYSE:NOK), reached the end of its six year term in April this year, leading to questions as to what would happen next. 



Whilst both parties initially explored other exit routes, a mutually amicable solution was eventually found with the parties agreeing the terms of a deal for Nokia to acquire Siemens' 50 per c[...]]]>


Nokia Siemens Network, the joint venture between Siemens AG (NYSE:SI) and Nokia Corporation (NYSE:NOK), reached the end of its six year term in April this year, leading to questions as to what would happen next. 



Whilst both parties initially explored other exit routes, a mutually amicable solution was eventually found with the parties agreeing the terms of a deal for Nokia to acquire Siemens' 50 per cent stake.



Both parties are therefore to go their separate ways, with the intention that the business shall continue seamlessly under Nokia's full ownership, in a deal which not only suits both parties but also protects the underlying business. 



But what if an agreement could not have been reached? How might this have impacted the relationship between the parties and the core business operations? 



As pre-nuptial agreements become more prevalent in marriage, so parties to a joint venture should consider at the outset how the relationship might end - whether this be due to an unanticipated deadlock arising between the parties, or as a result of the venture having reached its natural course. 



Joint ventures are inevitably susceptible to a divergence of views between the parties as market conditions change - the best way to avoid problems at the close of the relationship is to plan the exit strategy well in the beginning. 



It is common to provide that if one party wishes to exit by selling its share then any sale of one party's shareholding should be subject to a right of pre-emption in favour of the other party. This will only be a practical option where the parties are in a strong enough financial position to be able to buy each other out. 



If the non-selling party does not exercise such right of first refusal, it is likely in a 50/50 joint venture that they would still have a veto right preventing a sale of the other party's interest to a third party. 



A deadlock between the parties may lead to one party resorting to hostile measures to ensure the other party disposes of its share. In a 50/50 deadlock scenario, it is common to include "shoot-out" or "Russian roulette" provisions designed to ensure fair play by not giving either party the upper hand in negotiating an exit.  



However, such mechanisms can also create uncertainty - in a typical "Russian roulette" example, the party initially serving notice could be forced either to purchase the other party's share or to sell its share to such other party.



The parties may prefer instead to provide for a sale of the venture as a whole to a third party. Even then, in a 50/50 joint venture one would normally expect both parties to have to agree the terms of a sale; if one party does not approve, then the intended exit cannot be achieved. 



This could be resolved by providing that one party is entitled to compel a sale in certain circumstances, eg once a specific financial hurdle has been met. 



In some cases the business might only exist as a result of the identity of one or more of the parties. As such, the joint venture agreement should focus on how the venture will cease operation and how the assets and liabilities will be apportioned between the parties if a transfer to a third party may be inappropriate.



In the absence of a clear exit procedure in the joint venture agreement or - as in the Nokia/Siemens example - an amicable solution being reached between the parties, the only remaining option may be to wind-up the business denying both parties any future earning potential from the venture. A volatile or "last resort" split may also do little to enhance either party's reputation in the market.



SMEs would be well advised to consider how to get out of a joint venture before getting in. Whilst 1 in 3 marriages end in divorce, the nature of a commercial joint venture is such that termination is a more inevitable consequence and the mechanism for an exit should always be at the forefront of minds.


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