Employment Contracts Vs Consultancy Agreements - The Pros & Cons

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How To Staff Your Business

One of the many important decisions for any start-up company or one in the early days looking to grow is how to staff your business. There are different options available to you, so do you employ a member of staff or use a consultant?

Employment contracts v consultancy agreements - the difference between the two

Employment contracts set out the terms on which a company wants to employ a person. This is usually with a view to employing a person on a long term permanent basis, unless you use a fixed term contract for a specific project or tasks to be delivered over a fixed period of time.

Consultancy agreements set out the terms on which a company wants to engage a person to deliver services for the company. Consultancy arrangements are usually temporary in nature and relate to the delivery of specific services, projects or tasks.

There are a number of differences between the two, but some of the important differences for a company when deciding which is the most appropriate to use are:

  • Duties: an employee can be instructed to carry out a number of duties that are reasonable and within the employee’s remit/job description. Whereas a consultant will usually carry out very specific tasks in which he/she has expertise.

  • Control: a company can exercise a greater level of control over what an employee does. Whereas a consultant is expected to deliver the services using his/her own skill, in their own way and often in a time scale chosen by the consultant.

  • Hours of work: an employee’s hours of work are usually set by the employer over a set number of days per week. However, a consultant will usually carry out the services in their chosen timescale, but often with a dedicated number of hours/days per month.

  • Equipment: an employee will usually use the employing company’s equipment. Whereas a consultant will often provide his/her own equipment.

  • Tax: an employee will usually be paid through a PAYE system where appropriate deductions for tax NICS will be made. A consultant on the other hand will be responsible for his/her tax arrangements and he/she may charge VAT.

  • Mutuality of obligation: employers are obliged to offer work to the employee and the employee has to accept it and do the work. Whereas consultants have more freedom to pick and choose the work that they accept.

  • Exclusivity: employees are usually prevented from working for other companies or indeed themselves whilst employed. Whereas consultants will usually be able to work for other companies during the period of engagement with your company.

There are of course other differences, but these are some of the more pertinent considerations.

Which arrangement should you choose?

This is an important decision and the choice will usually depend on a number of factors such as, expertise already within the company; money available to pay a salary or fees; and how much control you want to exercise over those joining the company. It is common for consultants to cost more in the short term because they usually bring an expertise and they do not acquire some of the employment related rights (such as holiday pay, pensions and Statutory Sick Pay).

For technology based companies intellectual property (and how you best protect it) will also be a major consideration whether you choose to employ or engage with people to grow your company.

Whichever arrangement you decide on, it is important to ensure that the relationship is correctly documented in order to protect the company moving forward. Failing to put in place employment contracts or consultant agreements can lead to legal and financial risks in the future, so it is recommended you take advice on both the appropriate choice of arrangement and content of the contract or agreement.

For more help and guidance on the topic, please get in touch to find out more about the fixed fee services that we offer.

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Emma is an experienced employment lawyer acting for a range of clients including public sector, manufacturing and engineering, care providers, and insolvency practitioners.

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Khokhar Solicitors has been intervened by the Solicitors Regulation Authority

If you would like to talk to someone in our team at Shakespeare Martineau, please call 0300 247 2470

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What has happened to Khokhar Solicitors?

Khokhar Solicitors, 52 Tuns Lane, Slough, SL1 2XD, has been closed down by the Solicitors Regulation Authority (‘the SRA’). This is called an intervention. The intervention took place on 22nd June 2022. Emma Porter of Shakespeare Martineau of 1 Colmore Row, Birmingham, B4 6AA has been appointed as the intervening agent and her team is helping with the closure. Please click here to see the SRA link for the full closure notice.

Please contact Shakespeare Martineau’s Interventions Team on 0300 247 2470. if you wish to speak to someone or email interventions@shma.co.uk
We have also set up a dedicated PO Box to deal with enquiries related to this intervention. Please feel free to correspond with us at:
SHMA SRA Interventions,
PO Box 18228
Birmingham
B2 2HX

What does this mean?

Unfortunately, the closed firm can no longer act for you and you will need to find another solicitor. We have not taken over the closed firm and cannot act for you but we will support you through the process of instructing another solicitor.

You can choose any solicitor you like to act for you. If you don’t know another solicitor, then your local Citizens Advice Bureau may be able to help you. If you have internet access, you can also search for a new solicitor on The Law Society.

What happens to my file?

You can have your file sent to you or to your new solicitor.
If your matter is legally aided, then your file can only be released to a solicitor who undertakes this type of work.

If there are two or more of you named as clients, you will need to agree where the file should be sent. If you want your file to be sent to you, you will need to provide some copy identification. It will not cost you anything to have your documents sent.

What happens to my money?

The money in the closed firm's bank accounts have been transferred to the SRA.

Shakespeare Martineau or the SRA will look at the closed firm’s accounts to work out who the money belongs to. The SRA will try to return any money the closed firm was holding for you.

How do I access an old closed file, will, deed or another record?

If your enquiry relates to a will, deed or another document of record that the intervened solicitors were holding for you then your file (if recovered) will be held at the SRA’s intervention archiving department.

We do not hold any files that relate to closed or completed cases, wills or deeds at our offices. These files are held at the SRA’s archiving department.

The SRA’s archiving department will be in touch to see what you would like to happen to your documents. If however, you have not heard from them yet then you can arrange to complete a file request form which can be accessed from the SRA’s website alternatively you can contact them at interventionarchivefile@sra.org.uk or telephone them at 0370 606 2555

You will need to make an application for money to be returned to you.

If the closed firm's accounts are not in good order, it might be hard to work out exactly how much money is owed—and to who. For that reason, it might take us or the SRA some time to return your money.

If the money cannot be returned to you or only part of it can, you can apply to the SRA Compensation Fund.

If you urgently need money that the closed firm was holding for you, you can apply for a payment.
There is no guarantee that you will get a payment. You must prove that the solicitor was holding your money and satisfy the Fund’s other rules.

For more information, please email claims.management@sra.org.uk or telephone 0121 820 2580.

How can I get more information?

Find out more about SRA interventions by clicking here. If you would like to talk to someone in our team at Shakespeare Martineau, please call 0300 247 2470.

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Emma is the Head of Operations for our Volume and Consumer group and has in excess of 18 years’ legal practice management experience.

Solicitors Regulation Authority Intervention Agents

We are pleased to have been appointed by the Solicitors Regulation Authority (SRA) as one of four Intervention Agents acting on its behalf. The SRA is responsible for the regulation of solicitors’ practices and solicitors across England and Wales and our role as Intervention Agent means that we are instructed to assist the SRA with the closure of firms through the Intervention Process. The purpose of the Intervention Process is to ensure that public interests and the clients of the intervened firm are protected.

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Spring 2022 Consumer Finance Update

Eddie Flanagan discusses the latest updates from the consumer finance world

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Now is a key time for both consumer protection and the effective use of regulatory bodies to protect everyday consumers

Key factors affecting consumers

  • Amid the cost of living crisis, and the surges in energy bills, what do we know about the impact on consumer financial behaviour?

  • What can consumers expect in the upcoming months?

  • How can consumers prepare for further forced tightening of their own and lenders purse strings?

Klarna is Reporting Consumer Activity to Credit Bureaus

What seemed to be a light touch and easily accessible form of finance could prove to have more negative long term effects on perceived credit worthiness. From 1st June 2022, FinTech organisation Klarna started reporting customer data to credit bureaus in the United Kingdom. This move was in preparation for BNPL sector regulations that will come into force shortly to try and quell the amount of debt owned by younger consumers. With 16 million people using Klarna within the UK, with options to pay in 30 days or split the payments into three, there is a perception that this is fuelling unaffordable spending and that regulatory intervention is now due.

TransUnion and Experian are two of the bureaus that are receiving Klarna’s data. This then influences individuals’ credit reports, and could have unforeseen consequences on the likes of mortgage applications.
Ryan Browne, writer for CNBC, says: “BNPL companies face a reckoning in the U.K. and other countries, as regulators look to crack down on such services amid worries they are encouraging consumers — Gen Z and millennials, in particular — to spend more than they can afford” (CNBC).

However, these regulatory interventions may leave unexpected adverse credit foot prints. This raises the question that the lead time for same should have been extended.

Credit Card Debt on the Rise amid Cost of Living Crisis

According to a report by Creditspring, the UK is forecasted to borrow a further £9bn on credit cards within the next six months, due to the cost of living crisis.

Bank of England figures give a breakdown of how lending currently looks:

  • UK individuals currently borrowing £1.5bn every month on credit cards;

  • This will increase by 18% to £68.9bn;

  • Monthly debt repayments have increased by 9% YoY;

  • Total balance of unsecured loans has increased by 13% YoY.

27% of UK households are feeling “financially unstable” due to rising costs. Only 10% felt this way during the pandemic, which speaks volumes about the worrying state the UK’s economy. Theodora Hadjimichael, the CE of Responsible Finance, says “Any one of the cost of living crisis, recovering from the financial impact of the pandemic, or the explosion of unregulated Buy Now Pay Later products would have sent shockwaves through society. All three together are causing a seismic shift in the consumer credit market” (Credit-Connect).

Cost of Bills to Overtake Wages by 2024

According to Credit Strategy, a new report from Yorkshire Building Society and the Centre for Economics and Business Research has found that monthly outgoings could overtake incomes, by £100 a month in two years.

Younger generations looking to start on the property ladder could face increasing interest rates, and a potential need to dip into savings just to “get by”.

With the adverse effect of Covid, the unprecedented rise in fuel costs, together with inflation at such rates that is unknown to many, consumers we are now facing a perfect storm.

It has been noted that many consumers are now starting to challenge energy companies for hiking up their monthly instalments.

Regulatory measures must be applied effectively to ensure that consumers are protected. Transparency, fairness and the good behaviour of creditors is key to the resolution of financial issues in this time of considerable uncertainty.

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Eddie and his team advise clients on a wide range of issues concerning leasing, hire, consumer credit, the FCA source book and the regulatory landscape affecting the UK finance and leasing sector.

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Now, more than ever, contingency planning has never been more essential. Our full-service team can offer technical expertise, commercial acumen and unrivalled eye for detail around your business options, funding arrangements or any other challenges you may currently be facing.

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Energy security strategy – an opportunity missed?

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A few thoughts on the government’s new energy security strategy, published on 7 April

First, it’s not really new.   The Energy White Paper back in December 2020, building on the Prime Minister’s ‘Ten Point Plan’, has already committed the UK to ambitious goals in areas such as offshore wind, nuclear power, low carbon heating and clean hydrogen. What the strategy does do, however, is raise the scale of ambition in some key areas.

Second, it’s really quite long term – so much of it is not going be deliverable for at least a decade.  And that’s notable considering this strategy was a reaction to the very immediate shock to the system in the form of sky high wholesale energy prices, exacerbated by the Ukraine crisis and the prospect of curtailment of Russian gas flows.

Third, it has a gaping hole in it, and that’s energy efficiency.  It is already being touted as an energy ‘supply’ strategy because it has so little to say about the demand side of energy.  And that’s disappointing, because helping GB consumers – domestic and business alike – to reduce their energy consumption is not only going to reduce the scale of the energy security challenge; it is also the surest way to help address the standard of living crisis which is not going to see energy prices reduce any time soon, and in a way which reduces carbon emissions.  Our homes are the worst insulated in Europe, and it is starting to feel like the government really doesn’t have any fresh ideas or appetite to sort this out.

Fourth, amidst all the fanfare of a shaky consensus at COP26 in Glasgow last year and the beginnings of a concerted global movement to tackle climate change, it does seem a backward step to be licensing more North Sea oil and gas, and giving an (admittedly) faint second chance to fracking.

That all said, there are some good things in the strategy.  Sharing centre stage are nuclear power and offshore wind.

On the first of these, the government aims to reverse the decline in UK nuclear by building 24 GW of new capacity by 2050, the equivalent of eight large nuclear power stations.   The government’s track record on delivering on new nuclear build projects has been poor, with just the eye-wateringly expensive Hinkley Point C to show for all the talk over many years, and so it therefore hashas some work to do to get private sector investment re-engaged, but of course it now has a ‘regulated asset base’ funding model designed to kick start projects, which will transfer construction risk to consumers.

However it has surely missed the boat if it wants to replace with new nuclear capacity our ageing existing nuclear power stations as they decommission over the coming years.

On offshore wind, the plan is to increase the previous target, 40GW by 2030, to 50GW, and crucially with a promise to reduce planning and consenting delays, and this will be welcomed by developers as these have been acting as a real barrier to new developments.

But both these technologies have long lead times, especially when compared with onshore wind, and are much more expensive.   So what about onshore wind and solar?

Onshore wind appeared to have suffered from a severe dose of nimbyism, with reluctance from within government to give it a real push.   This despite the fact apparently the majority of the public support it. And there were words of encouragement for solar, but no firm targets.

What is particularly good to see however is strengthened targets for production capacity of low carbon hydrogen (especially green hydrogen, from electrolysis), which surely has a pivotal role to play in the decarbonisation of both transport and heat. Crucial here will be funding models to get UK hydrogen production get to scale (for example contracts for differences, as used so effectively to support renewable energy production), and new business models for hydrogen transport and storage infrastructure.  Combined with the measures on nuclear and offshore wind, these important commitments on the ‘supply’ side reinforce the long term trajectory towards net zero.

But none of this will come cheap, and the short term issue right now is the cost of living crisis, with the average energy bills rising by 54% and set to increase again with a further rise of the energy price cap later in the year.  This strategy offers nothing in the short term beyond measures already announced.  And with so little to say on energy efficiency where there is the potential to make some of the biggest gains across energy security, decarbonisation and energy affordability - yet where so much of the heavy lifting is still needed - it is hard not to see it as an opportunity missed.

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Andrew is a specialist energy regulatory and contracts lawyer, who works with a range of utility and developer clients and funders to help them manage regulatory and legal risk in a fast moving and complex environment.

Energy & Water Law

We’re exceptionally proud of the deep-rooted energy and water specialisms we have here at Shakespeare Martineau. As one of our priority areas for investment and growth, much of our time and resource is focused upon these related (and converging) sectors, ensuring we are at the forefront of industry developments and are best placed to make a positive difference to our clients.

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Biodiversity Net Gain – opportunities and obligations for developers and landowners alike

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With the ink still wet on some of the policies and agreements to come out of COP26, sustainable development is high on the political agenda.  Improving biodiversity is a major issue for landowners, developers and planning authorities and biodiversity net gain is a method utilised to improve a site's value – the higher the biodiversity net gain, the potentially higher the value, and who doesn’t want that?

What is meant by biodiversity?

The biodiversity of an area is the variety of plant and animal life in a particular habitat.  A high level of biodiversity is considered to be desirable and important.

What is biodiversity net gain?

The act requires, amongst other things, that all development schemes in England must deliver a mandatory minimum 10% biodiversity netgain which must be maintained for a period of at least 30 years.   

Biodiversity Net Gain follows a mitigation hierarchy – four steps designed to result in a win- win situation. Wins for the environment and wins for the developer. 

The four steps 

Avoidance – avoiding any impact completely such as changing the location of development 

Minimisation – reducing the time, extent, impact, intensity of the development. 

Onsite restoration – measures taken to restore the habitat involved.  This step is particularly necessary if avoidance and minimisation were not possible in the first instance. 

Offset - measures taken to compensate for the adverse impacts after the previous three have been explored in full. 

What does this mean for land developers?

Local planning authorities have required similar mitigation measures from developers via the local plan system for a number of years. However, the new Act will bring the existing requirements of the planning system into statute, giving some form of certainty in terms of what is required. The preference is for mitigation measures to be provided on-site, but where this is not possible, the developer should aim to provide and secure mitigation measures in terms of local habitats.

The key for developers with this new law is to ensure that any proposals are brought forward with BNG in mind. Measures should be factored in and accommodated from an early stage, to avoid pitfalls further down the line. Creative thinking and additional planning throughout the process will prevent pitfalls further down the line. Engaging with the local planning authority during the process will also demonstrate that the BNG process has been thoroughly engaged with.

What does this mean for landowners?

By 2028 the farm subsidy, known as the Basic Payment Scheme will be eradicated and in its place (to a degree) the new Environmental Land Management Scheme (ELMS), set under the Agriculture Act 2020, will be fully integrated. The ELMS is based on the philosophy of “public money for public goods”, and biodiversity (along with all natural capital considerations) will play a huge role within the various schemes planned.  What we don’t know at this stage is how the private sector contracts between developers and landowners will sit with the ELMS and whether there will be the ability to benefit from both. (‘Stacking’ is the issue of whether the same land can ‘stack’ one payment upon another).

It would appear that there is an opportunity for landowners and farmers to take advantage of developers offsetting their BNG requirements, by adding a new revenue stream for any farm business or landed estate, which may be more lucrative than what the ELMS have to offer. However, a word of caution. All businesses will need to consider their own carbon footprint before embarking on entering into any offset BNG contracts, to ensure they can reach their own net zero carbon target.

Furthermore, as this is still a new concept, values need to be carefully considered. With land needing to be set aside for BNG for a minimum of 30 years (with the Secretary of State having powers to increase this as it sees fit), it might have the negative effect of reducing the capital value of the land. This needs to be compensated by the offset contracts between landowners and developers. Tax planning for future generations also needs to be considered for landowners.

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Anna has 15 years’ experience advising on all aspects of planning, compulsory purchase and highways law, acting for a variety of public and private sector clients throughout her career including landowners, promoters, developers, local authorities, central government agencies, regional development agencies, and various NHS Trusts.

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Green Campus Survey -
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Universities and colleges are ideally placed to lead the way in the fight to mitigate the effects of climate change across the full range of their operations, from research, teaching and skills work, to built environment, procurement, purchasing and partnering as well as international and civic missions.

The purpose of this survey is to understand the education sector’s point of view on green campuses – what are the barriers and how embedded is sustainability into all aspects of further and higher education.

And whether the sector believes sustainability has an impact on which institutions students choose to attend.

We’ll be comparing the results from those working for institutions with the opinions of young people thinking about applying to college and university.

A report sharing the results will follow – you can sign up to be the first to receive this report here.

This survey will take no longer than five minutes to complete and your data will remain anonymous.

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Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Agriculture: diversifying or leasing your land to create habitat banks

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Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

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Family Law & Family Solictors

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Dealing with the practical, legal and emotional process of a relationship breakdown is difficult and stressful enough as it is, without the added complexity of a pandemic. From family court hearings to financial divorce settlements and maintaining child arrangements, we can help you. Whatever the situation.

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A simple guide to defamation – what is it and how to bring and protect against a claim

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The law has recognised for well over 100 years that individuals or businesses have a right to have the estimation in which they stand in the opinion of others, unaffected by false statements.  In simple terms, if someone says something untrue or damaging about you then you should have the right to stop them and to undo the damage.

How can a person be defamed? 

There are two ways:

  • Libel which involves words that are printed.  This includes messages written on social media, email,    text messages etc, and
  • Slander where words are spoken about someone.

Although there are some special rules for slander, both are equally serious.

Who can sue for defamation?

Individuals can sue for themselves; or businesses be it companies, partnerships etc subject to certain limitations.

Who cannot sue for defamation? 

Government bodies, political parties or people who have passed away.  The fact that a political party cannot sue does not mean that an individual politician could not bring a claim however, and indeed all too often it is politics that can be the basis of a claim.

What makes someone liable for defamation? 

Anyone who knowingly takes part in the publication of a defamatory statement can be liable for its publication.  Under section 10 of the Defamation Act, that will be the author, the editor of the publisher of the statement – unless that is not reasonably practicable.

There is a particular defence called innocent dissemination.  It protects for example a person working on the printing of a newspaper; or people who might operate an internet page where someone publishes a statement.

What needs to be established to bring a defamation claim? 

There are three key points:

  1. That someone has published a statement to a third party. That means they cannot sue someone who has simply said something only unless there is another party who will have heard or read that statement.
  2. Secondly, it has to be a statement that defames the person wanting to bring the claim.
  3. After the Defamation Act 2013 it now must have caused or be likely to cause serious harm to the reputation of the person wanting to bring the claim. If it a business wanting to bring a claim this last element will require proving some financial loss.

There are special rules that apply to slander.

What does publication mean? 

‘Publication’ has a special meaning and it is not enough that someone simply wrote something or said something; it must be communicated to another person.

Is publication to just one other person enough to lead to a claim? 

Yes it can do, but if it is only one person, proving that enough harm has been done to a reputation becomes more difficult.  Of course the more serious a statement the easier it is to establish that; or the more relevant the individual; but if the scope of publication is very low there is a risk of a claim getting struck out.  It is necessary to understand the scope of publication very carefully.

How is defamation proved if publication does not use a name? 

The test is that a reasonable person who knew the person wanting to bring a claim, would reasonably understand the statement as referring to them.  A claimant need not be referred to by name; or even identifiable by the world in general; that makes sense because if someone does not really know them can a publication really affect their opinion?  Obviously not.  Obviously however the more prominent an individual is, say a celebrity or a politician, the larger the group of people will be able to understand that something refers to them.

Can publication refer to other people as well as the claimant? 

It is still possible bring a claim.  The fact that one person might understand it to refer to someone different does not stop a claim being brought but again be very careful.  In that situation the context of statement can be all the more important.

When is something defamatory or not? 

The answer to this is what do the words used actually mean?  Ultimately the court will determine what words do mean but there are two key things to consider.  What is the natural and ordinary meaning of the words?  If that comes over as something that would make someone think less of the subject then that natural and ordinary meaning could be defamatory.

What if the meaning is not obvious? 

That does not mean that a publication is not going to have a defamatory meaning.  Everyone knows how innuendo or suggestion can be used and if a person would still understand it to be defamatory, then an innuendo meaning can be found.

How can it be established how serious a statement is; or what is possible to publish? 

That will change from case to case but the courts look at how serious a statement is, using three particular levels; the most serious is imputation of guilt or saying someone is guilty of something; the second is that there are reasonable grounds to suspect someone might be guilty; the third and least serious is that there are grounds to investigate someone being guilty.  The more you tend towards the last serious meaning; often the less likely it is that a statement might be defamatory.  Remember though, saying that there are grounds to investigate can still easily be defamatory.

What is a defamatory statement? 

It is a statement which would seriously affect in a negative way the attitude of someone reading or hearing that statement towards the person or business that it is about; or it has a tendency to cause them to do that.  Again that is quite wide and can encompass a huge range of different statements but if it is not sufficiently serious a claim can again be struck out.

What was the defamation law change in 2013?

The changes were significant and section 1 of the Defamation Act requires a claimant to show that a publication of a defamatory statement has caused or is likely to cause serious harm to their reputation. What serious harm means will always potentially vary but assessing harm is now one of the most important things a lawyer must do.

What is different about defamation law affecting companies? 

Where a body ‘trades for profit’ as the Defamation Act defines it the test is whether the publication has caused or is likely to cause the body serious financial loss.  Again what is a serious financial loss will vary from business to business; what is a serious financial loss for an SME would be of little consequence to a large plc potentially.  Again the devil is in the detail and a business needs to consider this very carefully.

Are there any defences to a defamatory claim? 

Yes there are.  Assuming that the statement has been established to have been published; refers to the claimant; had a defamatory meaning and all the other elements are in play, there are still some defences.

The first and most important: truth. If what the statement says is substantially true then that can protect the defamatory publication.  Rarely however is a claim so simple.

There is a defence of honest opinion.  To succeed it must be established that the statement is actually an opinion; why that opinion is formed and crucially it is an opinion that an honest person could have held at the time on the basis of the facts; and where there is not any element of malice in regard to that opinion.

There are some defences even if a statement is defamatory and cannot be protected as either truthful or an honest opinion.  One of those is the public interest defence.  This is where a statement is on a matter genuinely of public interest – not simply something which is interesting to the public which is an important distinction.  Most importantly the defendant must have reasonably believed the publication was in the public interest.  This is a very sensitive and complex defence and it will apply sparingly.

Is there ever a time where someone can say whatever they like and can be protected? 

Occasionally there is something called a privilege defence. Privilege means someone can speak freely without being able to be sued for defamation; these fall into two main categories:

  • Absolute privilege - something enjoyed by someone giving evidence to a judge in a court case; or a member of Parliament speaking in the House of Commons.
  • Qualified privilege – the more commonly used. Importantly however even privilege defences can be defeated by malice.  Qualified privilege effectively means that someone has a social or legal or moral or other duty to make a publication even though it might be defamatory.

How long have you got to bring a claim?

This area of law is very different to others; you only have one year from the date of the first publication by the person you want to sue.

What could be done to put things right if someone has been defamed? 

Here there is a difference between what a court can do and what lawyers can potentially achieve; a court can award damages i.e. a payment of money to the defamed party to compensate for the harm done; and this can include what is called aggregated or special damages in particular circumstances.  A court can require publication of the summary of the judgement to potentially undo some of the damage of the publication; can require publications to be taken down pages for example; and in the most serious cases can grant an injunction stopping further publication where there is a danger of that happening.

Can a court grant an apology? 

This is one thing that the court cannot do albeit there can be what are called offers of amends.  Lawyers acting for you can however potentially secure an apology which often means as much to a claimant as a court judgment.

Is it possible to stop something defamatory being published?

Unfortunately, the answer is usually no.  Ultimately what is called an interim injunction to stop someone publishing will only be awarded in the most exceptional cases.  That does not mean that a potentially claimant should give up and good lawyers can help manage this situation and it may be that someone has that exceptional case.  More often than not injunctions are obtained by the use of other elements of the law such as what is called malicious falsehood; or data processing breaches for example.

Defamation is a very complex area of law.  With the prevalence of social media however and the freedom and impunity with which certain people will feel that they can say what they like about businesses, people and can spread publications far and wide across the globe causing real damage in minutes, action is required.

Of course the best circumstances are for the person publishing to be very careful with what they say; or at the very least take some advice from a lawyer before they publish something that might be controversial or potentially defamatory.

Importantly there are often better and more appropriate options than heading to court, but ultimately however there are times when only court action is the right option.

If thinking of bringing a claim for defamation; or are being threatened with a claim for defamation however it is important to seek specialist advice.  Many solicitors will deal with litigation; few deal regularly with such a specialised area of law where if someone makes a mistake huge costs can be accrued very, very quickly and a reputation actually made worse, not better by litigation.

If you have any concerns about what is being said about you; your business; or what you wish to say, you should take advice as soon as possible.  Our expertise and experience means we can not only advise you as to how to deal with the matter legally but also how to manage a reputation through this and avoid some of the common pitfalls.

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Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

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A guide to making a privacy claim - what are they and how to succeed

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It is a common misconception that privacy claims are the preserve of the rich and famous and while often of course it is those sorts of claims that receive the press attention; from Prince Harry and Prince William; to Michael Douglas, a wide variety of the rich and famous have brought important privacy claims.

The truth is however, every individual has the right to a private life and every individual’s private information can be misused.  Bringing a privacy claim will centre, more often than not, on a claim for misuse of private information.  Here is our simple guide to the basics of a privacy claim; the essential elements of it and the remedies that can be obtained.

Like many areas, privacy is a narrow specialist area where expert advice and input is critical.

Is there a right to privacy law in the UK? 

Yes there is and it is a relatively new cause of action based around the Human Rights Act. Everyone has a right to respect for private and family life; and Naomi Campbell and Michael Douglas’ claims in the early 2000s have helped build this area of law.  If someone has used your private information or attacked your privacy, you can do something about it.

Can I stop the publication of confidential information?

Yes you can.  Historically an individual could bring a claim for breach of confidence but the law has since been expanded far beyond that to areas which involve a wide range of matters not limited to publishing information.

What does the law now protect as a result?

The misuse of private information protects two key things.  It protects private information and it protects individuals from intrusion into their private life.  The courts even refer to this as invasion of privacy hence the title.

What do I have to prove to bring a privacy claim and succeed?

There are two key stages.

  • First, does the person wanting to bring a privacy claim have a reasonable expectation of privacy in the information complained about; and secondly, if yes,
  • is that expectation of privacy outweighed by any opposing interest (usually the interest of the party wanting to publish private information).

If the answer to the first is yes; and the answer to the second is no, a claimant has a good claim to protect their private information.

What is meant by the ‘publisher’ of the information?

Any individual, as well as any media outlet or other legal entity, is capable of publishing, in a legal sense, private information. Publishing in essence effectively means making that information known to someone who should not know about it.  For example, there have been a wide range of claims brought by ex-husbands and ex-wives concerning private information that has been thought to be misused.

Should everyone have a right to an expectation of privacy? 

The courts have said that this is what is called an objective question.  It is to take account of all circumstances which include the attributes of any claimant; the nature of the activity; the place it was happening in; the nature and purpose of the intrusion; the absence of any consent; and whether it was known or could be inferred; and the effect upon the claimant; and importantly, the circumstances in which and why the information came into the hands of the publisher.  It is a complicated test.

Is there any guidance on the objective question of privacy? 

There are certain general principles that have arisen mainly about particular types of information. For example, there is not any public interest in a legal sense in disclosure or publication of purely private sexual encounters even if they may involve adultery; additional considerations can give children rights to privacy in circumstances where adults would not; information about health will also normally be treated as private; public figures may enjoy less protection than private individuals; information about how people behave in private places such as their home is likely to have a reasonable expectation of privacy whereas, if an activity takes place in public whether it is private or not will depend upon the full circumstances.

How do I protect my reputation during a privacy claim?

This is a developing area but, there have been important cases where the fact that individuals have been suspected of criminal offences for example and therefore could suffer damage to their reputation, has been relevant. Being accused of a crime and any issues arising from that potentially becoming published need very careful scrutiny.

If I have a reasonable expectation of privacy how can that be outweighed? 

This is a balancing test.  Ultimately, no right, be it right of privacy or right of publication, always takes priority. Key considerations are:

- Does the publication contribute to debated general interest?
- How well known is the person who is the subject of the publication?
- The prior conduct of the parties;
- The manner of obtaining information and whether it is true;
- The content and form of the publication;
- The consequence of publication and the severity of any sanction.

There are therefore a wide range of factors that have to be taken into account and again, expert input is critical.

What remedies are available to me if my privacy is breached or my private information is misused?

There are two key elements; damages and an injunction.

Damages are to compensate you for loss or damage.  These will be for damages arising from the wrong itself; and to compensate for distress, hurt feelings or loss of dignity and importantly, can be increased for aggravating behaviour by the publisher.

Stopping publication via an injunction.  This is probably the primary scenario most people are most interested in.  A key principle here is that injunction will only be granted to restrain publication before a final trial determining matters, if the court is satisfied that the party wanting an injunction is likely (which means more likely than not) to establish that the publication should not be allowed.  In short, if the case is good enough and the circumstances are right, you can stop publication.

This is a guide only and as you can see it is a complicated and fluid area of law that requires specialist advice to navigate.

For more information on privacy claims - please contact Daniel Jennings below.

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What is harassment and how to stop it

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In this guide, we take a look at what harassment is and how to stop it

Harassment of any type can be a distressing experience if are a victim of it; or a difficult problem to deal with if a family member or employee has been accused of it.

To be able to deal with harassment it is firstly important to understand it,  Our simple guide looks at the different types of harassment, the burden of proof required to prove it and steps that can be taken to stop it.

Harassment – What is it?

The key definition of harassment is found in the Protection from Harassment Act 1997 which provides that ‘a person may not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.

There is plenty of scope for bringing various different types of conduct within this definition.

One of the key issues that needs to be determined is what is a course of conduct. This is set out in statute again and it involves, in relation to the same person, conduct on at least two or more occasions; or in the case of conduct in relation to two or more people, conduct on at least one occasion in regard to each of them.

What conduct can count as harassment?

Actions such as stalking, up-skirting and other conduct that has been in the media, are now reasonably well recognised as potential harassment.  However, one of the most important forms of conduct which is not always considered is speech.  This can include written media and most importantly, in the current climate, can include social media publications.

Not only is there a right to be protected from harassment in a written or verbal form, there is a right to freedom of speech.  A court has to perform a balancing act and conduct has to be sufficiently serious before it can be found to be harassment.  For that reason, while claims can be brought for harassment alone, generally people do not regard something truthful being said about them, which is in the public domain and not private, as being harassing.  And for that reason often claims are brought in conjunction with defamation claims; or misuse of private information claims.

How do I make a claim for harassment?

  1. You must be able to show a course of conduct as above;

  2. You must be able to show if it is targeting an individual;

  3. Importantly it has to be calculated to and does cause alarm, fear or distress; and

  4. There must be conduct that is oppressive and unreasonable as opposed to merely unattractive, unreasonable or regrettable.

As mentioned above only two actions can be enough to bring a claim but the content of the action however is still critical to establish a claim for harassment.  It does not mean that will always be the case however and the fewer the events and the longer the time between them the less likely it is that they will amount to harassment. Recent judicial authority uses the helpful terms ‘persistent and deliberate’ and they are a good guide.

What if someone says they didn't know their actions were harassment?

It is not enough for someone to say they didn’t know. There is an objective test and key is often whether someone ought to have known their conduct was harassing.  It is a test however judged against not that specific individual as few defendants will ever say that they knew that they were causing alarm or distress to a claimant.

If a claim succeeds is someone found ‘guilty’?

No, there are three particular defences to a course of conduct which would otherwise be harassing and those are:

  • it was for the purposes of preventing or detecting crime;
  • it was under some rule of law or to comply with some other requirement imposed upon a person; or
  • that in the particular circumstances pursuing that course of conduct was reasonable.

When it comes to defences, inevitably for the vast majority of defendants, it is the third defence that needs consideration.

What does to pursue a course of conduct being reasonable mean?

Again this is an objective test and it is assessed at the time that the conduct took place and because reasonableness depends upon the circumstances of each individual action and it is therefore very much dependent upon specific facts.  For a start however, a court will always look at the exact type of conduct be it physical, publication of words or otherwise; the timing of it; the frequency of the conduct.

What are the consequences of a claim if it is successful?  Is a harassment claim worth bringing or something to worry about? 

The answer is yes.

In the first place financial damages can be awarded for anxiety caused and any financial loss that might have been suffered; but to be a claimant you do not need to have suffered financial loss.

Most people’s main concern is stopping harassment first and getting some sort of recompense second and an injunction is a legal way of saying someone must not do something and is one of the most common remedies people seek.

How do I get an injunction to stop harassment? 

if you are dealing with something not involving speech then it is the traditional requirements for an injunction that must be met, this is a matter of whether there is a serious question to be considered and where the balance of convenience lies – for more information on this burden you can see our guide to injunctions. If it was involving speech then you also engage the right to freedom of speech of a publisher.

Is it true that you cannot get an injunction for defamation where someone says they have a defence.  What is the difference here?

This is a very complicated issue but the ultimate difference is between the form of what is said and the manner in which it is said; this is one reason why claimants and their lawyers have in recent years sought to use claims for harassment; claims for data protection and other rights to succeed in getting injunctions where otherwise they might have failed.

Courts have suggested that (with the assistance of lawyers) that some degree of self-help is potentially to be expected.  The courts address this as follows; the first step is for example some self-resilience trying to shrug off unpleasant messages or comments which are part of day to day irritations and annoyances; secondly if communication is specifically directed towards someone then take advantage of practical options available to prevent unwanted contact – that can relate to the platform on which communications are made or other various tools for blocking content which might mean it is not necessary for a court to grant an injunction unless these have been explored.

So, can I try to get harassment stopped myself?

The short answer is yes but as explained above, people speaking also have the right to free speech and many platforms such as Twitter, YouTube, Facebook or any other platform have to not only respect that but they also set great store by that freedom of expression and generally involvement of lawyers is necessary to succeed; unless the harassment is so blatant and so serious as to be so obvious that a strong claim lies there.

For more information or to consult us about a harassment claim, please contact Daniel Jennings.

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Daniel is a highly regarded experienced specialist commercial litigator and defamation expert.

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Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

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Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

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Here is our guide to the common types of injunction and what they can be used for

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What is an injunction?

An injunction is a court order, which either requires something to be done (a mandatory injunction) or prohibiting someone from doing something (a prohibitory injunction). They are in many ways the strictest court order, because they are usually accompanied by a penal notice. In short that means, if someone breaches the injunction they can be imprisoned.

Injunctions are usually an “interim injunction”. That means they are in effect to maintain the status quo and protect assets, evidence or other materials that are important to the final determination of a claim. This brief basic guide gives some key points about injunctions, such as freezing injunctions or springboard injunctions.

What are the types of injunction?

Common types of injunction include:

  • Freezing orders.
  • Search orders.
  • Springboard Injunctions.

Injunctions are not limited to these however, nor are they to be seen in isolation. Often will something else from the court will be applied for at the same time, for example an order such as a Norwich Pharmacal Order* to disclose certain information.

Freezing orders (freezing injunctions)

A freezing order (sometimes referred to as a freezing injunction) is an interim injunction granted by the court restraining a party (the respondent) from disposing or dealing with assets. It can apply to both individuals and businesses.

A freezing order is discretionary and a court will exercise that discussion if the following tests can be met:

  1. the applicant must have a cause of action, justiciable in England and Wales;
  2. the applicant must have a good arguable case on the merits; and
  3. there must be a real risk of the respondent's assets being dissipated.

What can a freezing order be applied to?

Almost any asset can be frozen subject to meeting the tests. Commonly an order will cover things such as bank accounts, valuable machinery or vehicles or other valuable item. A freezing order is to prevent assets being dissipated; or in simple terms the freezing order is so that, in the event that the defendant needs to satisfy a court order following trial, the defendant has the funds to satisfy that very court order.

Search orders

A search order / injunction requires a defendant to allow the claimant's representatives to enter premises and search for, copy, remove and detain documents, information or material. The key purpose of such an injunction is to preserve documents or materials that will constitute evidence in a claim to be determined later.

Invariably an independent solicitor (not associated with the case) will be appointed by the court to supervise the search and ensure that it is conducted fairly.

Springboard injunctions

This is an injunction to deprive a party of the benefit of an ongoing unfair competitive advantage obtained as a result of earlier unlawful conduct.

Commonly these have been used against former employees / contractors who have unlawfully taken confidential information from a business; however their use has grown in recent years to include breaches of fiduciary duties or breach of duties of fidelity.

Although it may seem to reverse matters in fact this again is to preserve the status quo – how matters would be if confidential information for example had not been taken and used. The test for a springboard injunction are:

  • That there has been unlawful behaviour by the subject of the injunction;
  • That an unfair competitive advantage has been obtained;
  • That the nature and period of the competitive advantage justifies the court intervening;
  • That the advantage still exists at the date when the springboard injunction is sought and will continue unless the relief is granted.

Each specific injunction has a number of special requirements BUT there are some key guiding principles that should be considered:

  • If you are concerned about something and that there might be urgency seek advice immediately. Injunctions are always time critical. If you do not act and seek advice it can either be too late practically, because assets can have been disposed of or destroyed; or it can be too late legally. Act now or you may miss the chance
  • If you are applying for an injunction, in a commercial case, an applicant for an interim injunction must typically undertake to pay the respondent whatever the court may later order by way of compensation, if it is later held that the interim injunction was wrongly granted.
  • Whether to grant an injunction will usually depend upon whether it would be "just and convenient" to do so.
  • The balance of convenience is very often the determining factor and there is a three-part test:
    • Would damages be an adequate remedy were the applicant to succeed at trial?
      • If yes then an interim injunction will not usually be granted.
      • If no, then would the applicant's cross-undertaking in damages provide adequate protection for the respondent if, on final determination, it transpires that the interim injunction should never have been granted?

If no, that suggests interim relief will not be granted.

Injunctions are powerful weapons, and require expert assistance. If you are considering an injunction, or simply think you might have an urgent situation act and enquire immediately.

*  A Norwich Pharmacal Order (NPO) is an order which compels an innocent third party to provide information about another party who may have been mixed up in “wrongdoing

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Daniel is a highly regarded experienced specialist commercial litigator and defamation expert.

Litigation & Dispute Resolution Solicitors | Shakespeare Martineau

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Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

Real Estate & Planning

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

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Don’t waste money on space you don’t use! Re-gear

29 Jun

Real Estate & Planning

Don’t waste money on space you don’t use! Re-gear

With many companies now operating a hybrid working model following the work from home […]

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Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

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Devereux & Co has been intervened by the Solicitors Regulation Authority

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What has happened to Devereux & Co?

Devereux & Co, 52a High Street, Westbury on Trym, Bristol, BS9 3DZ, has been closed down by the Solicitors Regulation Authority (‘the SRA’). This is called an intervention. The intervention took place on 31 January 2022. Shakespeare Martineau of 1 Colmore Row, Birmingham, B4 6AA is helping with the closure.

Please contact Shakespeare Martineau’s Interventions Team on 0300 2472470. if you wish to speak to someone or email interventions@shma.co.uk

What does this mean?

Unfortunately, the closed firm can no longer act for you and you will need to find another solicitor. We have not taken over the closed firm and cannot act for you.

You can choose any solicitor you like to act for you. If you don’t know another solicitor, then your local Citizens Advice Bureau may be able to help you. If you have internet access, you can also search for a new solicitor on The Law Society.

What happens to my file?

You can have your file sent to you or to your new solicitor.
If your matter is legally aided, then your file can only be released to a solicitor who undertakes this type of work.

If there are two or more of you named as clients, you will need to agree on where the file should be sent. If you want your file to be sent to you, you will need to provide some copy identification. It will not cost you anything to have your documents sent.

What happens to my money?

The money in the closed firm's bank accounts has been transferred to the SRA.

Shakespeare Martineau or the SRA will look at the closed firm’s accounts to work out who the money belongs to. The SRA will try to return any money the closed firm was holding for you.

How do I access an old closed file, will, deed or another record?

If your enquiry relates to a will, deed or another document of record that the intervened solicitors were holding for you then your file (if recovered) will be held at the SRA’s intervention archiving department.

We do not hold any files that relate to closed or completed cases, wills or deeds at our offices. These files are held at the SRA’s archiving department.

The SRA’s archiving department will be in touch to see what you would like to happen to your documents. If however, you have not heard from them yet then you can arrange to complete a file request form which can be accessed from the SRA’s website alternatively you can contact them at interventionarchivefile@sra.org.uk or telephone them at 0370 606 2555

You will need to make an application for money to be returned to you.
If the closed firm's accounts are not in good order, it might be hard to work out exactly how much money is owed—and to who. For that reason, it might take us or the SRA some time to return your money.

If the money cannot be returned to you or only part of it can, you can apply to the SRA Compensation Fund.

If you urgently need money that the closed firm was holding for you, you can apply for a payment.

There is no guarantee that you will get a payment. You must prove that the solicitor was holding your money and satisfy the Fund’s other rules.

For more information, please email claims.management@sra.org.uk or telephone 0121 820 2580.

How can I get more information?

Find out more about SRA interventions by clicking here. If you would like to talk to someone in our team at Shakespeare Martineau, please call 0300 2472470.

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Emma is the Head of Operations for our Volume and Consumer group and has in excess of 18 years’ legal practice management experience.

Solicitors Regulation Authority Intervention Agents

We are pleased to have been appointed by the Solicitors Regulation Authority (SRA) as one of four Intervention Agents acting on its behalf. The SRA is responsible for the regulation of solicitors’ practices and solicitors across England and Wales and our role as Intervention Agent means that we are instructed to assist the SRA with the closure of firms through the Intervention Process. The purpose of the Intervention Process is to ensure that public interests and the clients of the intervened firm are protected.

Our Thoughts

All the latest thoughts and insights from our team

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

Real Estate & Planning

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

Read article Right Arrow

Don’t waste money on space you don’t use! Re-gear

29 Jun

Real Estate & Planning

Don’t waste money on space you don’t use! Re-gear

With many companies now operating a hybrid working model following the work from home […]

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SHMA® On Demand

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Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

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Intervention of Cardinal Solicitors Ltd

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Cardinal Solicitors Ltd has been intervened by the Solicitors Regulation Authority

What has happened to Cardinal Solicitor Ltd

Cardinal Solicitors Ltd, Rear Of 38, London Road, Cobblestone Place, Croydon, United Kingdom, CR0 2TA, has been closed down by the Solicitors Regulation Authority (‘the SRA’). This is called an intervention. The intervention took place on 24 December 2021. Shakespeare Martineau of 1 Colmore Row, Birmingham, B4 6AA is helping with the closure.

Please contact Shakespeare Martineau’s Interventions Team on 0300 2472470. if you wish to speak to someone or email interventions@shma.co.uk

What does this mean?

Unfortunately, the closed firm can no longer act for you and you will need to find another solicitor. We have not taken over the closed firm and cannot act for you.

You can choose any solicitor you like to act for you. If you don’t know another solicitor, then your local Citizens Advice Bureau may be able to help you. If you have internet access, you can also search for a new solicitor on The Law Society.

What happens to my file?

You can have your file sent to you or to your new solicitor.

If your matter is legally aided, then your file can only be released to a solicitor who undertakes this type of work.

If there are two or more of you named as clients, you will need to agree where the file should be sent. If you want your file to be sent to you, you will need to provide some copy identification. It will not cost you anything to have your documents sent.

What happens to my money?

The money in the closed firm's bank accounts have been transferred to the SRA.

Shakespeare Martineau or the SRA will look at the closed firm’s accounts to work out who the money belongs to. The SRA will try to return any money the closed firm was holding for you.

You will need to make an application for money to be returned to you.

If the closed firm's accounts are not in good order, it might be hard to work out exactly how much money is owed—and to who. For that reason, it might take us or the SRA some time to return your money.

If the money cannot be returned to you or only part of it can, you can apply to the SRA Compensation Fund.

If you urgently need money that the closed firm was holding for you, you can apply for a payment.

There is no guarantee that you will get a payment. You must prove that the solicitor was holding your money and satisfy the Fund’s other rules.

For more information, please email claims.management@sra.org.uk or telephone 0121 820 2580.

How can I get more information?

Find out more about SRA interventions by clicking here. If you would like to talk to someone in our team at Shakespeare Martineau, please call 0300 2472470.

Get In Contact

Emma is the Head of Operations for our Volume and Consumer group and has in excess of 18 years’ legal practice management experience.

Solicitors Regulation Authority Intervention Agents

We are pleased to have been appointed by the Solicitors Regulation Authority (SRA) as one of four Intervention Agents acting on its behalf. The SRA is responsible for the regulation of solicitors’ practices and solicitors across England and Wales and our role as Intervention Agent means that we are instructed to assist the SRA with the closure of firms through the Intervention Process. The purpose of the Intervention Process is to ensure that public interests and the clients of the intervened firm are protected.

Nuclear Energy (Financing) Bill: A further boost for the UK Nuclear Industry

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Anyone who has downloaded the electricyMapp App which shows the carbon intensity of electricity consumption and production across Europe on an hourly basis will immediately see the impact and benefit of nuclear power. 

With the exception of Iceland with its geothermal power and those Scandinavian countries with high levels of hydro power it is the presence or absence of nuclear which determines the level of carbon intensity and the harm being done to the environment.  France, where 60% of electricity generation is from nuclear power consumes a quarter of the carbon intensity of Germany (even when the wind is blowing) following the early decommissioning of the German Konvoi fleet of nuclear reactors. 

The Energy White Paper gave a welcome if general endorsement of the role of nuclear in the quest for net zero.  The key obstacle to the renaissance needed in large scale nuclear power has been the question of finance.  Private entities simply could not raise the necessary finance for the design and construction stage of such expensive projects using the Contracts for Difference mechanism in the United Kingdom given the long gap between investment and return. Funding the risks and costs associated with development, design, planning and construction before any electricity and revenue can be generated proved too much for the proposed British nuclear projects of Toshiba, Hitachi and Kepco, particularly in the aftermath of Brexit.  

The cost of capital is known to add up to 40% to a nuclear project’s build cost.  A finance model which reduces uncertainty over revenue receipts and accelerates return would provide a better credit rating for the project and therefore reduces the cost of finance.  In addition to making the development of nuclear plants more likely, such a mechanism would save money in the long run for consumers.  The nuclear industry has advocated the use of a regulated asset base (RAB) model for some time and have cited the use of such a model on other large infrastructure projects such as Thames Tideway Tunnel and the third runway at Heathrow as precedents. 

Essentially, the RAB financing model includes part of the upfront costs of the nuclear new build plant on to the energy bills of consumers before electricity is generated. 

The Nuclear Energy (Financing) Bill which looks to introduce a RAB model into the nuclear sector received its first reading in Parliament in October 2021.  This was exactly two years following the closing of the consultation on a new RAB model instigated by BEIS.  Whilst the delay in bringing this legislation to Parliament is regrettable the content of the Bill has generally been welcomed. 

There were industry concerns at the time of the consultation that the construction and optimally the development process would be covered by the model and that the Office for Nuclear Regulation (ONR) would not be diverted from their nuclear safety role in regulating the finance model on behalf of consumers.  These two concerns have largely been met. 

The Bill is made up of the following parts: 

What is a RAB financing model?

  • Part 1: Nuclear energy generation projects: regulated asset base model 

    The Secretary of State has the power to designate a nuclear company’s eligibility to benefit from a RAB special licence.  The designation is made following consultation and is essentially premised on the project being advanced enough to merit designation and that it is likely to result in value for money.  A nuclear company’s licence will be modified, if designated, to incorporate the RAB licence conditions. 

    Ofgem, not the ONR, will regulate the nuclear company based on the modified licence. 

  • Part 2: Revenue collection contracts 

    The Secretary of State is empowered to make regulations in relation to revenue collection contracts, which includes the power to designate a revenue collection counterparty. 

    Payments made to the nuclear company are done by reference to allowed revenue based on forecasting which may be made prior to operation. 

    Following commissioning Ofgem is to determine a market revenue.  This market revenue is deducted from the allowed revenue that the nuclear company is to receive over the charging period. 

  • Part 3: Special administration regime 

    The risk of an Ofcom regulated nuclear company becoming insolvent is addressed by the Secretary of State, or Ofgem with the approval of the SoS, being able to apply to court for the appointment of a special or nuclear administrator with the objective of completing construction or operating the plant. 

  • Part 4: Funded decommissioning 

    In a move to facilitate the secured interest funding of projects the provisions of the Energy Act of 2008 are amended in relation to the decommissioning of nuclear plants by clarifying what is meant by being “associated” with a licensed site operator. Holding shares, rights or powers in relation to the enforcement of security interests does not mean the creditor is associated with the site operator for the purpose of decommissioning. 

What’s in the Bill?

COP26 showcased the utility of nuclear in achieving net zero particularly in the way the industry has demonstrated its flexibility in the future co-generation of hydrogen together with generating electricity for the grid.  Additionally, the news of funding for the Rolls Royce small modular reactor (SMR) project has given increased hope to the sector.  The Bill together with the Labour party’s support for it has given a further boost to new build nuclear and hopes for Britain hitting its net zero objectives. 

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Ian has experience in utilities and energy infrastructure, engineering and major construction projects both in senior in-house positions and in private practice.

Ian has advised on a range of energy projects including nuclear new build, nuclear decommissioning, and gasification, advanced gasification, solar, wind and biofuel.

Energy & Water Law

We’re exceptionally proud of the deep-rooted energy and water specialisms we have here at Shakespeare Martineau. As one of our priority areas for investment and growth, much of our time and resource is focused upon these related (and converging) sectors, ensuring we are at the forefront of industry developments and are best placed to make a positive difference to our clients.

Our Thoughts

All the latest thoughts and insights from our team

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

Real Estate & Planning

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) […]

Read article Right Arrow

Don’t waste money on space you don’t use! Re-gear

29 Jun

Real Estate & Planning

Don’t waste money on space you don’t use! Re-gear

With many companies now operating a hybrid working model following the work from home […]

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SHMA® On Demand

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Agriculture: diversifying or leasing your land to create habitat banks

6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

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Teachers’ Pension Scheme – strategic issues independent schools need to think about

20 Jul

Esther Maxwell, Legal Director | Emma Glazzard, Solicitor

Teachers’ Pension Scheme – strategic issues independent schools need to think about

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How to cope with family tensions over Christmas

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12 Days of Christmas - Day 7: Seven swans a-swimming

Retailers and marketers would have you believe that Christmas is a time of year we all look forward too – precious time off work, Christmas parties, giving and receiving gifts, the perfect Christmas with family  - many of whom you do not see often at all.

Settling down to spend Christmas day together can be stressful and often doesn’t go to plan.  So how can you survive the day?  Here’s a few tips to help you through

  • Be mindful of what you say

    Show respect towards your family and expect the same in return. Often tensions can arise because of brutal honesty or unsolicited advice. Consider your words carefully before you open your mouth and don’t say anything you would not like said to you.

  • Be realistic

    If rifts exist already, they are not going to go away for Christmas day. Keep conversation light and hope that everyone finishes the day as happily as they can.

  • Let it go

    This time of year can be stressful and someone will know what buttons to press to get a reaction so pick your battles wisely and perhaps save them for another day.

  • Your guest list

    Playing the role of referee at Christmas is not good for the mind or soul, so scale it down this year and spread it out.  You don’t need to see everyone on one day.  Different relatives on different days makes for a calmer Christmas.

  • Focus on you

    At a time of year when time is precious and there is the opportunity to take a little time off hopefully, remember that you do not to do it ALL.  It can help to delegate jobs on Christmas Day, that can include asking for help with food prep, washing up, assistance with childcare etc.

    It can all seem a little overwhelming so focus on what makes you happy – and make plans accordingly.  If there is an expectation (as there often is), make sure you have those conversations early so people know what is (and is not) happening. 

    Also remember the basics of self care, like good sleep, fresh air, plenty of water, and all of this will help with the inevitable excesses.

At a time of year when it can all get a bit frantic and you feel a bit like you are paddling for your life, remember the seven swans a swimming and try to slow down and glide through the festive season. You will come out the other side feeling calmer and ready for the new year.

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Biodiversity Net Gain – opportunities for landowners, obligations for developers

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With the ink still wet on some of the policies and agreements to come out of COP26, sustainable development is high on the political agenda.

Improving biodiversity is a major issue for landowners, developers and planning authorities and biodiversity net gain is a method utilised to improve a sites value – the higher the biodiversity net gain, the potentially higher the value, and who doesn’t want that?

What is meant by biodiversity?

The biodiversity of an area is the variety of plant and animal life in a particular habitat. A high level of biodiversity is considered to be desirable and important.

What is biodiversity net gain and what does this mean for Developers?

Biodiversity net gain (BNG) sits within the Environment Act 2021 which received Royal Assent in November 2021. The act requires, amongst other things, that all development schemes in England must deliver a mandatory minimum 10% biodiversity net gain which must be maintained for a period of at least 30 years. This is now a legal requirement.

Biodiversity Net Gain follows a mitigation hierarchy – four steps designed to result in a win- win situation. Wins for the environment and wins for the developer.

  1. Avoidance – avoiding any impact completely such as changing the location of development

  2. Minimisation – reducing the time, extent, impact, intensity of the development

  3. Onsite restoration – measures taken to restore the habitat involved

  4. Offset - measures taken to compensate for the adverse impacts after the previous three have been explored in full

What does this mean for landowners?

By 2028 the farm subsidy, known as the Basic Payment Scheme will be eradicated and in its place (to a degree) the new Environmental Land Management Scheme (ELMS), set under the Agriculture Act 2020, will be fully integrated. The ELMS is based on the philosophy of “public money for public goods”, and biodiversity (along with all natural capital considerations) will play a huge role within the various schemes planned.

What we don’t know at this stage is how the private sector contracts between developers and landowners will sit with the ELMS and whether there will be the ability to benefit from both. (‘Stacking’ is the issue of whether the same land can ‘stack’ one payment upon another).

It would appear that there is opportunity for landowners and farmers to take advantage of developers offsetting their BNG requirements, by adding a new revenue stream for any farm business or landed estate, which may be more lucrative than what the ELMS have to offer. However, a word of caution. All businesses will need to consider their own carbon footprint before embarking on entering into any offset BNG contracts, to ensure they can reach their own net zero carbon target.

Furthermore, as this is still a new concept, values need to be carefully considered. With land needing to be set aside for BNG for a minimum of 30 years (with the Secretary of State having powers to increase this as it sees fit), it might have the negative effect of reducing the capital value of the land. This needs to be compensated by the offset contracts between landowners and developers. Tax planning for future generations also needs to be considered for landowners.

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Amy specialises in agricultural property law, bringing more than 16 years’ experience.

She advises on a variety of matters such as buying and selling farms and estates, agricultural tenancies, easements, bank security work, and advising landowners on diversification projects such as commercial leases and selling land for development.

Green Energy

Our Thoughts

All the latest thoughts and insights from our team

Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

29 Jun

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6 Jul

Peter Snodgrass, Partner & Head of Agriculture

Agriculture: diversifying or leasing your land to create habitat banks

We know that biodiversity net gains provide a significant opportunity for landowners to diversify […]

Register Right Arrow

Teachers’ Pension Scheme – strategic issues independent schools need to think about

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Have you considered your pet in your will?

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Most people know the importance of ensuring that they have a will in place, to provide for their loved ones after their death. However, many people have not considered their “non-human” loved ones and who will care for those furry family members after their human carer has died. 

Although it may seem distasteful to some, legally speaking, pets are considered to be part of your personal “chattels”, like your clothes, car or your furniture, and will therefore form part of your estate when you have died. You should consider making provision for what will happen to your pets in your will. 

It is important to consider not only who you would like to care for your pets, but also the costs of caring for them and whether it may be appropriate to leave funds to those who will take on their care. However, it is essential to choose someone that you trust to ensure that not only will your pets be properly cared for, but also that any funds left to that person are used for the purpose for which they were intended. It is not possible to leave funds directly to a pet. 

For those who do not have family or friends who would be able to take on the care of their pets, there are charities who will care of them, usually as long as arrangements are put into place beforehand.  

It is therefore a matter that should be considered carefully and researched thoroughly, to ensure that your furry, feathery or even scaly family members will be properly cared for and that those French Hens will continue to live happily after your death. 

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Matt works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice

Wills & Succession

It can be difficult to envisage a time when you’re not there to provide for your family. However, we are here to guide and support you with preparing a will so your wealth is protected for your loved ones into the future.

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Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

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COP26 - Round up of week 1

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A few reflections on COP26 after week 1 in Glasgow, by head of energy Andrew Whitehead

First, you don’t have to be in the blue or green zones to find some great events going on around the city, and beyond.  And Glasgow has plenty of venues to meet up for breakfast, lunch, dinner, or just a coffee, which is just as well as there are plenty of clients and contacts coming and going.

So, what are people talking about?

Well, beyond the big headline announcements around methane emissions, deforestation and carbon reporting, and looking to the energy sector, there are some recurring themes.

First, hydrogen surely has an important role to play, not just for heating homes and cooking, but as a substitute for natural gas in industrial processes and as a transport fuel.   In fact, some say the hydrogen economy in 2050 could be the size of the oil and gas industry now. Our gas network companies are doing some vital work in this area, to develop demonstration projects to prove the concept and ensure our existing pipeline system is up to the job of safely conveying hydrogen at high pressure.

We are proud to be working for clients in this area on the cutting edge of research and development, a great example being the Birmingham Centre for Railway Research and Education (BCRRE), at the University of Birmingham, which is showcasing at COP next week its HydroFLEX hydrogen-ready passenger train, an exciting collaboration with Porterbrook.

What will be interesting is how hydrogen networks supplying homes will play out against the government’s drive to install electric heat pumps.  It feels like a VHS/Betamax technology battle, but actually there must be a place for both; heat pumps on their own are not going to be sufficient.  What seems clear is that developing hydrogen, at least initially, around industrial clusters, is a good start.  These can bring together production and demand, and utilise carbon capture and storage, allowing a transitional space to deploy so-called ‘blue’ hydrogen as a kick start to the eventual sustainable development of green hydrogen production.

This holistic approach to creating a circular carbon economy has also been a theme in discussions around how we can decarbonise the “hard to abate” energy intensive industries such as cement, steel and chemicals.  This is a vital nut to crack, as emissions from the industrial sector account for over 35% of overall emissions.  And the challenge is not just one of decarbonising energy usage, but also to address the emissions associated with the industrial processes themselves.

At COP26 we heard from many businesses who are doing the right thing and leading from the front, and we have also heard from our own government on its plans to ramp up carbon reporting to improve transparency.   Critical here will be how each of us as individuals embrace making the right consumer choices – which will often not be the cheapest – in order to stimulate demand for low or zero carbon products and services.

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There is also plenty of talk at COP26 on the role of nuclear.   Large scale nuclear has been given a boost recently with the new finance bill which will allow developers to share construction risk by guaranteeing a pre-build revenue stream.  For smaller “modular” reactors, constructed offsite in purpose-build factories, Rolls Royce reckon that, from the early 2030s, they can turn out two a year on current projections, in time more.  These could be a game changer for nuclear – at 430MW each, one is enough to power a city the size of Leeds.

The electrification of heat and transport is of course going to involve a seismic shift in how our power system works, and indeed that transition is well underway.  In its role as system operator, National Grid is already using a host of new balancing tools to “keep the lights on”, and in due course to keep many of our homes warm and our cars on the road.  And those tools are deployed alongside sophisticated weather forecast modelling and digital optimisation technology. This is no straightforward task; the UK government has committed to a zero carbon power sector by 2035, consistent with the 6th carbon budget, and National Grid is working ahead of the curve to ensure that, over the next four years, it will be able to operate the system without fossil fuels whenever there are sufficient renewables running.   The company has been innovative in this space, and one of the themes of COP26 has been to find opportunities to share best practice and ideas with other system operators around the world.

And this theme of collaboration has been a recurring one.   Look no further than the North Sea, where the UK expects to meet the bulk of its 40GW offshore wind ambitions, but these ambitions sit alongside those of countries like Norway, Denmark and Belgium.   Brexit and politics is not getting in the way of genuine international collaboration where we have shared objectives with our neighbours, the most recent example being the subsea electricity interconnector between the UK and Norway, the world’s longest.  This and the other interconnectors need to be optimised alongside planned offshore wind and other energy projects to create an integrated whole which delivers secure and efficiently delivered energy where it’s needed.

And this is where, once again, it comes right back to the individual.  These big projects need local buy in; they typically involve new cables, convertor stations, substations and other onshore infrastructure, and so the benefits and the bigger picture need to be clearly explained and understood.

But isn’t that the case also for the climate change challenge itself? If we are to keep global temperature rise to within 1.5 degrees, we each of us need to make some hard and difficult choices about how we live our lives. People don’t take kindly to being told what to do; far better to explain and win hearts and minds.

For me, that’s been the recurring question over the course of this opening week at COP26; are the world’s politicians brave and bold enough to commit to what’s needed and back themselves to make the case for change when they go back home next week?

Andrew Whitehead, Senior Partner & Head of Energy

A lot rests on the shoulders of our politicians, who must start thinking and acting long term.  And we need to reverse the recent trend of isolationism because the climate change threat will only be solved by collective action in a spirit of generosity, trust and compromise. We have heard during COP26 that we don’t lack availability of global finance which can be raised and deployed in developing and implementing the necessary solutions.  What we risk seeing is a failure of governance, and at this late hour, with the stakes so high, that cannot be allowed to happen.

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Andrew is a specialist energy regulatory and contracts lawyer, who works with a range of utility and developer clients and funders to help them manage regulatory and legal risk in a fast-moving and complex environment.

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Energy & Water Law

We’re exceptionally proud of the deep-rooted energy and water specialisms we have here at Shakespeare Martineau. As one of our priority areas for investment and growth, much of our time and resource is focused upon these related (and converging) sectors, ensuring we are at the forefront of industry developments and are best placed to make a positive difference to our clients.

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High Court highlights the risks of drawings in lieu of salary

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The high court has held that companies cannot write off a directors loan arising from drawings in lieu of salary just before liquidation to minimise a director’s liability on insolvency.

The court rejected arguments that the loan was salary paid in advance of future dividends, and upheld the idea that where companies do not have sufficient profits, but in any event choose to pay dividends, owner-directors will be liable to repay them on liquidation.

What was the case about (in headline summary)?

Ms Buchanan was the sole director of Bronia Buchanan Associates Limited (the Company).  She received a minimal PAYE salary, but she received significantly larger payments in the form of drawings in lieu of salary (resulting in a directors loan showing in the company accounts).  The Company ceased trading on 22 September 2014 and entered into insolvent liquidation.  In the lead up to liquidation the Company reclassified the ‘directors loans’ showing in its accounts as drawings

The liquidators called upon Ms Buchanan to repay her directors loan, explaining that the reclassification of the loan to Ms Buchanan as “drawings” in the company’s accounts was ineffective to release her from liability to repay it.  Ms Buchanan argued that the drawings received should have been recorded as salary, and as such she was entitled to the money drawn, and stated that her professional advisers had informed her that ‘financially matters were fine’.  She argued that the loan had been reclassified as drawings the months before liquidation (on the alleged advice of insolvency practitioners) and therefore she was not liable to repay it.

The court rejected Ms Buchanan’s arguments.  It decided that, despite her insistence that the amount owed was always payable to her as “drawings,” the sum remained as a debt owed to the Company by her.  It therefore fell to be repaid upon liquidation.  The attempt of a company, in the final days of its life to write-off a large debt to a connected person was found not to have any effect in law.  Had this had been allowed by the court, every owner-director may attempt it in their companies’ final days.

Practical Takeaways

This decision reinforces the position that once a shareholder director elects to be remunerated via drawings in lieu of salary, the drawings payments made to them cannot later be reclassification as having been salary on a ‘quantum meruit’ if there are in sufficient profits to declare a dividend.  If a company does not have sufficient profits to declare a dividend to offset those drawings the director will be liable to repay the sums on insolvency.

While this is often seen as the most tax preferable way for a shareholder director to remunerate themselves, it comes with risks.  Directors need to balance those risks against the benefits.  This analysis will be brought into sharp focus as we exit the COVID-19 pandemic and the restrictions on the ability of creditors to take action against companies are lifted.

Shareholder directors should always take competent professional advice and consider the full implications before remunerating themselves vis this method.

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Frank specialise in providing managed solutions in financially distressed scenarios to assist OMBs, companies, directors, lenders, investors and other stakeholders, as well as insolvency office holders.

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Business survival at the best of times is challenging but how you react to the current crisis, and what actions you take now, can help avoid an insolvency situation. Our experts provide advisory, transactional and litigation services in relation to all restructuring and insolvency matters. We are by side when times are tough

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Intra-Company Transfer Visa Update: Are you looking to transfer staff to the UK for temporary work assignments?

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Multi-national companies have been transferring skilled staff for work around the world for many years but how does this work when coming to work in the UK under the points based immigration system?

Multi-national companies have been transferring skilled staff for work around the world for many years but how does this work when coming to work in the UK under the points based immigration system?  

The UK has the short term Intra Company Transfer visa route to allow established employees of an overseas entity to be transferred to the UK to carry out their work in a skilled job on a temporary basis. 

Last month the Home Secretary commissioned the Migration Advisory Committee (MAC) to review the UK’s current route to ensure it complies with the UK’s commitments under free trade agreements and to advise on eligibility criteria for workers and sending organisations. MAC recently published their detailed review of the Intra Company Transfer route 2021 on 13 October. 

What are the proposed changes employers can expect? 
  • General salary thresholds are expected to increase from £41,500 to £42,400 for the main route and decrease for graduate transfers from the current £23,000 to £20,840 
  • Intra-Company Transfer does not lead to settlement today. However this could be an option in the future with any time spent in the UK counting towards settlement where staff switch from this category into another route.  
  • A new 12 month secondment visa is being considered with the possibility of a single renewal where there is a contract between an employer’s overseas and UK entity in excess of £50 million, and the business has been operating for at least 12 months 
  • A new short term route could be introduced to amend current visitor rules to cover specialist technical work which only requires a few days or weeks to complete 
  • The Immigration Skills Charge will remain, however this will not apply to EU nationals under this route from 1 January 2023 further to the UK-EU Trade and Co-operation Agreement 
What can employers expect to remain? 
  • The skills threshold that is currently RQF level 6 is expected to remain the same, so employers can only sponsor staff in jobs that are at degree level and above 
  • Employers can only transfer staff that have been employed in their overseas organisation for at least 12 months (unless paid a minimum of £73,900 a year) or three months for graduate transfers 
  • Sponsored staff will still not be required to meet an English language requirement in comparison to the Skilled worker visa route 

Employers should be mindful that MAC’s report details recommendations made to the Home Office at this stage so it remains to be seen exactly what approach will be taken towards this UK work. If MAC’s report is however reflected, it could result in some significant changes for the Intra Company Transfer route over the next year.   

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Tijen is widely recognized as an expert in UK business immigration. She represents high net worth entrepreneurs with inward investment and helps them navigate through the complexities of the rules and practicalities of relocation.

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Intervention of Porter & Co Law Ltd

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Intervention of Porter & Co Law Ltd

What has happened to Porter & Co Law Ltd?

Porter & Co law Ltd, 40 Benhill Avenue, Sutton, SM1 4DA has been closed down by the Solicitors Regulation Authority (‘the SRA’). This is called an intervention. The intervention took place on 06/10/21. Shakespeare Martineau of 1 Colmore Row, Birmingham, B4 6AA is helping with the closure.

What does this mean?

Unfortunately, the closed firm can no longer act for you and you will need to find another solicitor. We have not taken over the closed firm and cannot act for you.

You can choose any solicitor you like to act for you. If you do not know another solicitor, then your local Citizens Advice Bureau may be able to help you with this. If you have access to the internet you can also search for solicitors in your area by visiting

What happens to my file?

You can have your file sent to you or to your new solicitor. If your matter is legally

aided, then your file can only be released to a solicitor who undertakes this type of work.

If there are two or more of you named as clients, you will need to agree where the file should be sent. If you want your file to be sent to you, you will need to provide some copy identification. It will not cost you anything to have your documents sent.

What happens to my money?

The money in the closed firm's bank accounts has been transferred to the SRA.

Shakespeare Martineau or the SRA will look at the closed firm’s accounts to work out who the money belongs to. The SRA will try to return any money the closed firm was holding for you.

You will need to make an application for money to be returned to you.

If the closed firm's accounts are not in good order, it might be hard to work out exactly how much money is owed — and to whom. For that reason, it might take us or the SRA some time to return your money.

If the money cannot be returned to you or only part of it can, you, can for a grant.

If you urgently need money that the closed firm was holding for you, you can for a payment.

There is no guarantee that you will get a payment. You must prove that the solicitor was holding your money and satisfy the fund’s other rules.

For more information, please email claims.management@sra.org.uk or telephone

0121 820 2580.

How can I obtain my will or deeds?

All wills and deeds held by Porter & Co Law Ltd are now stored at our intervention archives department, who will contact you.

A request for wills or deeds can also be made by email: interventionarchivefile@sra.org.uk or by telephone: 02476 339250

How can I get more information?

Find out more about SRA interventions here.

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Emma is the Head of Operations for our Volume and Consumer group and has in excess of 18 years’ legal practice management experience.

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SRA Intervention Agents

We are one of the Solicitors Regulation Authority (SRA) Intervention Agents acting on its behalf. The purpose of the Intervention Process is to ensure that public interests and the clients of the intervened firm are protected.

 

Fixed-Fee Service

Preparing for the COVID-19 vaccine

How to prepare your business for the COVID-19 vaccine rollout

As the Covid-19 vaccine roll-out continues at speed, organisations are facing unprecedented challenges, particularly around whether they can make the vaccine compulsory for their employees. Whatever approach you decide to take as an employer, an important and practical starting point is to put a vaccination policy in place.

We’ve seen an increase in the number of employers wanting to know if they can make it a requirement for their workforce to be vaccinated or penalise employees who refuse.

While there may be some employers in certain sectors who can justify requiring their employees to take the COVID-19 vaccine – for example, those in healthcare where the risk of not taking it can be detrimental to vulnerable people in their care – this will not apply across the board.

It is important to note that the government has not, at present, made it mandatory for members of the public to be vaccinated, nor does it appear likely that this will be the case.

How we can help

An essential important first step is to ensure you have a policy in place that outlines your approach and expectations of your employees. We’re offering a fixed-fee vaccination policy drafting service, for a fixed price of £950 plus VAT.

 

Outside of this fixed-fee package, our team of employment law experts are also on hand to work with you once you have your draft policy prepared, including:
  • Consulting with employees, staff associations and unions.

  • Advising on how to communicate with staff regarding the vaccination policy.

  • Ensuring GDPR compliance when processing related data and how to communicate with staff about how their personal data will be used.

  • Evolving your vaccination policy in line with Government policy changes.

This is such a rapidly developing area that employers should be prepared to keep their position under constant review over the coming months and adapt their approach where appropriate.

How our fixed-fee service works

For a fixed price of £950 plus VAT, you will receive the following:

  • A consultation to determine the best approach for your employees

  • A dedicated team of experts who will work with you to ensure your policy is the right policy for your business

  • A bespoke vaccination policy for your business

*This fixed fee is applicable to the contract review and legal opinion only. Any ancillary work done will be charged at the appropriate rate agreed on engagement.

Want to find out more or have further questions?  Contact us today using the button below.

Helping business prepare for the future of work post COVID-19

The workplace is going to look very different now that most restrictions have been lifted, for many reasons.
Make sure that your business is prepared for the challenges and opportunities that will face us all.

Visit our future of work hub on how we can help:

  • Draft vaccination and flexible working policies.
  • Review your flexible and hybrid working policies.
  • Implement new additional benefits to employees.

We've put together the most frequently asked questions and
what actions you should take

Unfair dismissal claims are a primary risk where they involve an employee with at least two years’ service.  To successfully defend such claims, you will need to persuade a tribunal that it was reasonable to require vaccinations and that the employee(s) unreasonably refused.

A proper dismissal process will also need to be followed and you must consider if there are any alternatives to dismissal in the circumstances. This dismissal would most likely be for misconduct, although the circumstances are very unusual so it may instead fall within the “Some Other Substantial Reason” (SOSR) catch-all category.

Claims for indirect discrimination are the other main risk you may face, particularly in cases where the reason for refusing to get the vaccine is linked to a “protected characteristic”.  For example, a pregnant worker will be well within her rights to refuse the vaccine given the current government guidance.  Note that there is no minimum service requirement in order to bring a discrimination claim.

We strongly suggest that you take legal advice before making any decision to dismiss an employee because they refuse the vaccine.

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Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

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on the COVID-19 Vaccine

Our employment expert, Matt McDonald explores a variety of considerations employers
need to think about from what happens if an employee refuses to take the vaccine through to
dealing with any potential claims.
Product

Shakespeare Martineau launches
bespoke employment portal

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Launching 360+ your virtual legal & HR know-how portal

Our new 360+ portal offers a broad range of employment and HR guides, policies and step by step templates that you can securely download and edit anywhere and on any device. 360+ is here for all your virtual legal service needs giving you the confidence and tools for whatever comes your way, no matter the size of your business.

What is 360+?

It's our new and enhanced employment and HR portal, offering free virtual legal expertise and HR services to keep you up to date in the ever-changing world of employment law and HR including a range of guides, policies and templates and the latest employment news and case updates.

For £100 per month, the premium package also allows existing clients to download and edit templates for their own business and offers training sessions, exclusive member events and discounted hourly rates if they need further advice.

Benefits of using our 360+ portal include…
  • Our 360+ portal gives your HR and/or legal teams the tools they need to be self-sufficient, so they require less need for external support on routine matters.

  • It gives you access to a number of template documents and guidance notes which are regularly reviewed by our lawyers to ensure you have accurate and up-to-date documents.

  • Multiple logins so that the key people in your team have access to the relevant guides and templates to perform their job.

The launch of our new 360+ employment portal is part of our commitment to provide our clients with the tools and guidance they need to drive their business. We believe that the portal, combined with access to our experienced team of experts, will give our clients the platform they need for all their employment legal needs
Intrested in finding out more?
If you are interested in finding out more about the 360+ portal, or one of our employment retainer options which provide a more in-depth client support including a 24-hour helpline and options for document reviews and training session, get in contact with us by filling out an enquiry form or email 360enquiry@shma.co.uk.
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Rhys works with clients from a range of sectors and is a trusted adviser to many longstanding clients, he helps employers manage their staff and HR issues by providing clear and pragmatic advice to find the resolution required.

Employment

Our experienced employment solicitors are perfectly placed to help you navigate a wide range of employment law issues. We provide solutions that are tailored to the requirements of your organisation.

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Firm news

Shakespeare Martineau has increased its rankings in the 2021 edition of the Chambers High Net Worth Guide

National law firm Shakespeare Martineau has increased its rankings in the 2021 edition of the Chambers High Net Worth Guide, a guide to the leading lawyers and law firms for private wealth law.

Consolidating their top tier rankings in Leicester and their strong showing in the Birmingham and surrounds category, the team ranked in Nottingham and surrounds for the first time, with commentators highlighting Shakespeare Martineau as  "diligent, commercially aware and very keen to meet the aims of clients…..keen to innovate”

There was also individual recognition for several of our partners and lawyers including Suzanne Leggott, Mark Dunkley (ranked band 1), Lesley Davies, Anne Tromans, Virginia Harvey and Verity Kirby.

Partners Andrew Wilkinson, also ranked in band 1 and who leads our private wealth disputes team, and Debra Burton were also recognised and commended for their highly specialised work.

Suzanne Leggott, head of the private client team, commented, “This is great news for the teams across our offices, recognising the commitment of our lawyers to their clients and the level and quality of the advice and support we give. Our new Nottingham ranking consolidates our status as one the leading law firms for private wealth work across the Midlands and beyond.”

 

Screenshot 2022-02-18 at 14.36.40

Our Winter Edition of Life Times is Out Now

We bring you the winter edition of Life Times magazine - a round-up of insightful and informative content.

From looking at no fault divorce preparation, to music royalties setting up a charity The winter issue is packed full of useful tips and information.

How can we help?

Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

Fixed-Fee Service

Home workspace loans | Future of flexible working

Home workspace loans for employees | An employer's guide

The pandemic has revolutionised how employees work. As lockdown in the UK lifts, it is likely that flexible home working will permanently become the norm for many organisations.

However, the need for employers to ensure that they are supporting their staff wherever they work has not changed. Now is the perfect opportunity for employers to review how they continue to support home working, and the benefits they have in place. 

A new and innovative option for employers is to introduce interest-free home workspace loans into staff benefit packages, enabling employees to create an appropriate working environment at home. Find out more below. 

What is a home workspace loan?

A home workspace loan is an interest-free benefit that employees can opt into as part of their benefits package, providing them with the funds they need to set up a home office of their choosing – from larger loans to cover bigger expenses such as the construction of a garden office or convert a garage, to smaller loans to purchase items such as office furniture.  

What are the benefits of introducing this type of benefit?

This innovative staff benefit has multiple benefits for both your organisation and your employees.  

For employers who are looking to continue full- or part-time remote working on a more permanent basis, it is a low-cost option to help make employees feel supported in both their mental health and financial wellbeing. It ensures that employees have a safe and healthy space in their working environment, and helps to set clear boundaries between home and work-life balance. 

For employees, this has clear knock-on benefits. A home workspace loan presents the opportunity to invest in creating a more permanent working setup that suits them, helping to boost morale and promote wellbeing. The loans are interest-free and repayments are made through salary deductions, meaning it is a simple, effective and low-cost option for employees. 

Is a home workspace loan a suitable option for my organisation?

Our team of experts work with you to assess the suitability of introducing a home workspace loan benefit into your organisationGet in touch with a member of our team using the button below or contact Eddie Flanagan to find out more.

How our fixed-fee service can help

For a fixed fee, our team of consumer credit experts work with you to set up a home workspace loan benefit for your employees quickly and efficiently, including:

  • Carrying out a no-obligation assessment of the suitability of implementing home working space loans for your organisation.

  • Working with you at every step of implementation and delivery, from loan documentation and FCA regulation requirements, to compliance agreements and communications with employees.

  • Offering expert advice on putting strict provisions in place when offering employee loans, helping you to navigate the potential complexities with ease. Above all, we help you to focus on what’s important: your employees.

Want to find out more or have further questions?  Contact us today using the button below.

Helping business prepare for the future of work post COVID-19

The workplace is going to look very different now that most restrictions have been lifted, for many reasons.
Make sure that your business is prepared for the challenges and opportunities that will face us all.

Visit our future of work hub on how we can help:

  • Draft vaccination and flexible working policies.
  • Review your flexible and hybrid working policies.
  • Implement new additional benefits to employees.

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Our expert lawyers are ready to help you with a wide range of legal services, use the search below or call us on: 0330 024 0333

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