We launch litigation funding with DBA option

Litigation | Product

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Shakespeare Martineau is to offer, for the first time, damages-based agreements (DBAs) as part of its portfolio of litigation funding options called ‘FeeManage’.

DBAs are a fairly new addition to English law and are contingency-based agreements where legal fees are payable as a percentage out of the damages received in the event that the case is successful. Shakespeare Martineau is proud to be in a position to offer DBAs as part of its FeeManage proposition.

If a DBA is entered into, and the predetermined success criteria is achieved, but the recovery from the losing party is relatively low, the DBA percentage fee from recovered monies may be a sum significantly less than that which would have been payable by the client on a normal retainer basis or pursuant to a conditional fee arrangement (CFA) – meaning an increased shared risk between client and legal advisors.

In addition to DBAs, the firm is working with a variety of funders to offer, third party funding (TPF) and after the event (ATE) insurance in combination with CFAs as potential options.

Unlike competitors, Shakespeare Martineau is not tied to a single funding provider, in order to flex requirements and offer full or part funding for litigation claims.

Too often businesses are put off from pursuing debts and assets that are rightfully theirs due to the associated costs, impact on the balance sheet and risk,” explains Barry Jervis, partner and litigation expert at Shakespeare Martineau.

Litigation was buoyant across the country before the pandemic and, as we emerge into a post-pandemic economy, we can expect disputes to increase further. However, the costs of litigation are climbing sharply, alongside increasing numbers of businesses experiencing cash flow issues as a fall out from the pandemic.

Our new ‘FeeManage’ service helps to reduce the financial risk of litigation.”

Every individual and every business is unique and while traditional CFAs might work for one client, third party funding might be more appropriate for another. Whatever the size or complexity of the litigation, we have an option that will suit.

We’re really proud to be taking a different approach to litigation funding. We’re not fixed to a single provider and we’re giving our clients every option available for funding their claim.

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Barry brings a no-nonsense approach to resolving disputes for his clients whilst involving them at every stage of the process.

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The menopause in the workplace –
how best to support staff and our fixed fee policy package

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As the population in general gets older, employers are having to deal with many issues linked to having an older workforce.  One of these issues is the menopause and the difficulties it can cause for staff who are going through it.

Employers have typically been slow to recognise the issues faced by menopausal women, and many women feel uncomfortable discussing it, as it is often seen as a taboo subject.  However, acknowledging these difficulties and assisting women to remain in work in spite of them, will be a significant factor in retaining female staff in this age bracket. Retention of experienced staff (whatever gender) is vital in avoiding the loss of key skills and experience from the organisation. Retention of older female staff can also have benefits in addressing the gender pay gap.

Menopause: The facts

The menopause is a natural stage of life for women, usually in their late forties/early fifties, although it can also happen earlier or later. Part of the process includes the “perimenopause” which is when a woman's body is starting to change.

There are many symptoms of the menopause including: hot flushes; difficulty sleeping and night sweats; feeling tired and lacking energy; mood swings; anxiety and panic attacks; difficulty concentrating and focussing; and migraines and other aches and pains.

It is important to note that the menopause affects every woman differently both emotionally and physically. The impact it has on an individual’s health can affect how they work, their relationships with colleagues and has knock-on effects on absence and productivity.

Menopause: The law

The menopause and perimenopause are not specifically protected under the Equality Act 2010. However, if a worker is treated unfairly because of the menopause or perimenopause, this could amount to discrimination because of, for example, their sex; a disability; and/or their age.

  • Sex discrimination - Unfair treatment of a worker because of their sex could lead to a discrimination claim, for example if an employer treats a woman's menopause or perimenopause symptoms less seriously than it would a male worker's health condition when considering a drop in job performance.

  • Disability discrimination - A disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This is a broad definition and a worker's menopause or perimenopause could potentially be regarded as a disability by an employment tribunal. If a worker has a disability, an employer must consider making changes to reduce or remove any disadvantages the worker experiences because of it (i.e. reasonable adjustments).

  • Age discrimination - Workers are protected against unfair treatment because of their age. This may include unfair treatment of workers because thy are going through the perimenopause or menopause.

In addition, the Health and Safety at Work Act 1974 says an employer must, where reasonably practical, ensure health, safety and welfare at work.  An employer must minimise, reduce or where possible remove workplace health and safety risks for workers. This will involve carrying out a health and safety risk assessment with a view to ensuring menopausal symptoms are not made worse by the workplace and/or its work practices, and making changes to help a worker manage their symptoms when doing their job.

Menopause: Your questions answered

Our fixed fee menopause policy

We’re offering a fixed fee menopause policy drafting service. For a fixed price of £950 plus VAT*, our team of experts will prepare a bespoke menopause policy for your business. This includes:

  • A consultation to determine the best approach for your organisation and employees

  • Advice from a dedicated team of experts who will work with you to create a policy unique to your organisation and its ethos

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 about the menopause policy

  • Evolving your menopause policy in line with Government policy changes and other developments

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Helen is an experienced employment lawyer, who works proactively with clients to identify solutions to complex HR issues. Helen has worked with a number of client to implement a menopause policy across a variety of sectors.

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Are you a farming business? Complete our free legal health check

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Legal support for agriculture businesses

We're delighted to announce that we are offering farming businesses a free legal health check to support the agricultural sector.

The interactive, online questionnaire, which should take users no longer than 20 minutes to complete, aims to identify and highlight any potential issues and legal gaps that may need addressing to safeguard a farming business’ future – providing certainty and security for forthcoming generations. 

This includes family arrangements – partnership issues, wills, family agreements and potential disputes – and diversification, supplier contracts, renewable energy schemes (for example solar), and business aspirations. 

Head of agriculture Peter Snodgrass, who advises his farming clients on a wide variety of matters from partnerships to agricultural tenancies, said: “A regular review of your business and family affairs is good practice as circumstances and business goals change over time. 

“We want to help you review your current arrangements and highlight any areas where further advice, support or action could be beneficial or required to ensure you meet your objectives and have peace of mind that all arrangements are up to date. 

“Completing the user-friendly questionnaire will help provide our team with the information they need to best identify any areas of concern. Once submitted, we will review your responses and call you to arrange a free consultation meeting with one of our agriculture specialists.” 

Last month, we expanded the size of our agricultural law team to meet growing demand for its specialist legal services, including the appointments of partner Amy Cowdell, legal director Jennie Wheildon and solicitor Kimberley Brookes – bringing with them more than 30 years’ combined experience. 

Peter said: “Agricultural law is a niche but highly sought-after and prestigious area of law. We are continuing to expand the team with the aim of building a centre of excellence in the country that is able to support farming businesses with all their legal requirements.” 

Complete the farming health check today

Get In Contact

Peter advises his farming and landowning clients on a wide variety of matters from partnerships to agricultural tenancies.

The legal requirements of the agricultural sector can be complex and you need a team who are real experts in agriculture law – lawyers that understand and have experience of the issues affecting you and your business.

Our agriculture law team supports and advises farmers, landowners, producers, landlords and tenants on all types of issues affecting this vibrant and challenging sector.

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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.

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

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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.
Get In Contact

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.

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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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Fixed Fee Service

Preparing for the IR35 changes
Contract reviews

How to prepare your business for the IR35 changes

The delayed changes to the off-payroll (IR35) scheme are due to come into force on 6 April 2021 it is important that businesses do not underestimate their new obligation to assess the status of any contractors they employ.

It is important that businesses who will fall under the expanded scheme start preparing now for the changes ahead, and don’t leave it until the last minute. You need to make sure your organisation is fully prepared ahead of the introduction of the new rules, and are clear on the status of your contractors. 

With this in mind, we’re offering fixed-fee contract reviews to help guide you through the new rules

What is the IR35 scheme?

From 6 April 2021, the IR35 scheme will be expanded to medium and large private sector businesses.

These are defined as organisations where two of the following apply: an annual turnover of over £10.2m, a balance sheet of over £5.1m or more than 50 employees

What are the new IR35 changes?

The IR35 rules are essentially anti-avoidance tax legislation, designed to tax “disguised employment” at the same rate of normal employment.

Previously, these rules only applied to public sector companies, and it was the responsibility of the contractor to complete the IR35 assessment.

You can catch up on our recent webinar on what changes are expected.

How will IR35 changes affect me?

Companies that use contractors (i.e. the end-users) will now need to determine their contractor(s) employment status and provide them with a Status Determination Statement if an employment relationship is established - deduct tax and NICs at the appropriate rate

Whether an employment relationship arises depends largely on the contractual arrangements in place.

If the contract includes a right of substitution, avoids an obligation to provide/ accept work, is structured by reference to completion of a project or piece of work and avoids integration (i.e. the provision of a work uniform or email account), then it is likely to constitute genuine self-employment and won’t be subject to the off-payroll rules.

However, the reality of the working situation needs to be considered on a case by case basis and we are on hand to assist with the factors that HMRC will be looking for and to assist with your status determination requirements.​

Get this wrong and the off-payroll rules will apply, resulting in additional tax and NIC liability, together with the possibility of HMRC being able to pursue the end user and to look more in depth at how the business works with contractors.

When making the determination statements for your contractors, you should use the HMRC check employment status for tax (CEST) tool. However, it is important to be aware that it is not unusual for a status to be “unclear”. If you are unsure, it is imperative that you take independent legal advice.

How we can help

Our team of expert employment solicitors partner with your business to understand your goals, as well as any difficulties you face, and apply their knowledge to your specific set of circumstances and are perfectly placed to help review your contracts for your contractor staff. Read more about our employment contract services.

How our fixed fee service works

For a fixed price you will receive the following:

  • An assessment of the contract and working arrangements for your self-employed contractors

  • A dedicated team of experts who will provide you advice on likely status and implications

  • Updated and compliant contracts for your contractor staff

*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.

Catch up on our recent webinar
on what IR35 changes are expected

Our employment expert, Rhys Wobourn reminds employers of what the changes are,
who they apply to and what the implications of the new IR35 rules will be.

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Sending in the bailiffs… no longer an option for landlords

Updated 15 September 2020 | Sending in the bailiffs… no longer an option for landlords

On 15 September 2020, the government announced further measures to protect commercial tenants from recovery action by restricting the ability of landlords to recover unpaid rent by utilising the Commercial Rent Arrears Recovery process (“CRAR”).

The British Property Federation have reacted with disappointment, as some businesses are taking advantage of the crisis by refusing to pay rent - despite them having the funds to pay. However, this announcement will no doubt be very welcome news for those tenants who have struggled to rebuild their businesses since the national lockdown earlier in the year.

What has now changed?

On 24 April 2020, the Taking Control of Goods and Certification of Enforcement Agents (Amendment) (Coronavirus) Regulations 2020 (“the 2020 Regulations”) came into force and restricted the use of CRAR, unless 90 days’ of rent remained unpaid.

In June 2020, the government extended the law so that CRAR could only be utilised if 189 days’ of rent remained unpaid.

Now, a further amendment has been made, which will come into force on 29 September 2020, and the law provides that:

A. CRAR can only be utilised between now and 24 December 2020 if there is 276 days’ of unpaid rent; AND
B. CRAR can only be utilised after 25 December 2020 if there is 366 days’ of unpaid rent.

What does this mean for me now?

This effectively means that landlords can only utilise CRAR between now and 24 December 2020 if a tenant has not paid 276 days’ worth of rent. This equates to the rent that was owed for the March, June and September 2020 quarters.

The law then goes further and states that if landlords wish to utilise CRAR on or after 25 December 2020, then there must be 366 days’ of unpaid rent owing. This equates to a further 90 days of rent and essentially means that landlords will also be unable to utilise CRAR if the December 2020 quarter rent remains unpaid.

If you are a landlord

If you are a landlord, CRAR may no longer be an effective recovery method available to you for unpaid rent from March 2020. However, you may be able to utilise CRAR if there are larger sums of unpaid rent which pre-date March 2020.

Further, remember that there are alternative remedies that landlords can utilise to seek recovery of rent and other sums if your tenants are not engaging with you. Our real estate disputes team can advise and guide you through the options.

If you are a tenant

If you are a tenant, you should carefully review any Notice of Enforcement that is served upon you, as these are now likely to be invalid. It appears CRAR will be an ineffective method of recovery until March 2021.

We can advise you on any Notice of Enforcement you receive and your options. We have developed a tailored fixed fee service to guide you in this process – so please get in touch with a member of the team.

Contact us

We can help and advise you in these difficult situations but time is of the essence.  We have developed a tailored fixed fee service to guide on your options.

Please contact Martin Edwards or Justine Ball for further information on another member of the property litigation team in your local office.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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Helping you recover the debts of insolvent construction companies

Helping you recover the debts of insolvent construction companies

In a highly anticipated ruling, the Supreme Court has announced that adjudication can now be used by insolvency practitioners as a way of recovering debts owed to insolvent construction companies.
Here we look at what adjudication is, what this ruling means for insolvency practitioners, and how it could help improve recovery rates in a sector where it is notoriously difficult to recover debts and maximise funds available for creditors of insolvent companies.

What is adjudication?

In simple terms, it is a fast-paced and efficient form of dispute resolution, with the process generally taking just 28 days from start to finish to secure an adjudicator's decision.

In comparison to more traditional dispute resolution routes such as court proceedings or arbitration that can take a significant amount of time and resources to conclude, adjudication is a far more time and cost effective approach.

What does the Supreme Court ruling say?

Over the past two years, there has been lots of debate about whether adjudication is a viable option for insolvency practitioners seeking to recover debts owed to insolvent construction companies. This was due to potential conflicts between the adjudication process and insolvency rules.

However, this Supreme Court ruling has decided that the adjudication and the insolvency regimes are not incompatible, and that adjudication is a viable option for dispute resolution in these circumstances. In fact, the Court recognised that an adjudicator's decision can actually be really useful to a liquidator in carrying out the insolvency set-off process - in stark contrast to previous perceived conflicts.

Read more about the ruling here.

This means that the door is now open for insolvency practitioners to use adjudication to resolve disputes on behalf of insolvent construction companies.

How can adjudication help insolvency practitioners?

In the past, insolvency practitioners have had limited and often very expensive options for dispute resolution when recovering debts owed to insolvent construction companies. In addition, the industry has always carried a high number of casualties - a trend likely to be temporarily worsened as a result of the Covid-19 pandemic, with rising costs and supply chain delays impacting on projects and cash flows.

Adjudication now provides a quicker and much more cost effective route for insolvency practitioners to recover debts. This is a crucial lifeline to help maximise the funds available for creditors of liquidated construction companies.

How can we help?
Ahead of starting an adjudication, it’s important you get advice from experienced specialists who understand every step of the process, to ensure you get the best possible outcome.

Our team of experts are here to help, offering you a fixed fee consultation session to explore your case and assess whether adjudication is the right way forward for you.

Fill out our enquiry form to set up an initial call.

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Step one:
Free consultation session
In your no-obligation session we undertake a detailed analysis of the dispute, so we can advise you clearly about the merits of an adjudication, the most likely outcomes and the commercial implications of taking action.

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Step two:
Adjudication begins
We guide you through the process, providing strategic advice and representation, while helping to compile the information needed for your submissions as efficiently as possible. This often includes obtaining witness statements and other technical expert evidence to present your case in the best light. This process generally takes only 28 days.

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Step three:
Adjudicator's decision

The adjudicator will then go away to make a decision.

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Step four:
Compliance
Generally parties will comply with an adjudicator's decision. However, if things don't go to plan and the other party fails to comply, we can support you with enforcement actions through the court. If you win, the legal costs you incur for this part of the process will be paid by the other side.

Our adjudication experts work with you every step of the way 

Our strong track record in construction related disputes means we have the specialist knowledge to guide you through the adjudication process, helping you to secure the best possible outcome. We have a proven track record and the key tactics to use to ensure your argument is recognised and represented robustly.

We will be at your side from start to finish, guiding you through the various stages, helping to resolve matters quickly and efficiently.

Meet the team

Fill out the form below to enquire about our fixed fee consultation service

Your guides to recovery & resilience

As the UK takes tentative steps towards an increase in economic activity and recovery, it is vital that businesses are prepared in every aspect. From financial considerations, employees, leadership and premises, to supply chain implications, health and safety and protecting your private wealth, our guide highlights what organisations and individuals should consider when moving from survival mode towards one where you recover and thrive.

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Business interruption insurance | our fixed fee support

COVID-19 continues to be a disruptive force across all sectors, with many companies unable to continue with business as usual.

When COVID-19 first impacted, companies turned to their business interruption insurance to claim back the money they had lost and they continue to do so. Companies were then faced with arguments from insurers refusing to provide cover.

Business interruption insurance - do insurers have to pay out for COVID-19-related losses?

To get clarity on whether insurers have to pay out to companies under business interruption policies for COVID-19-related losses, the Financial Conduct Authority (FCA) brought a test case.

The outcome of the FCA test case in the High Court provided a degree of clarity to both businesses and insurers, especially in terms of interpretation.  However, the arguments continued as both the FCA and six of the insurers had been allowed to appeal aspects of the original High Court judgment,  the decision on the appeal (which was heard by the Supreme Court)  was made on 15 January 2021 and has found in favour of policy holders. The decision to dismiss the insurers’ appeals was unanimous.

The decision is good news for policyholders. It is more likely now that insurers will be required to pay out on policies identical to and similar to those tested by the FCA’s case.

The art of interpretation

The aim of the original FCA High Court test case was to provide businesses and insurers with a degree of certainty on how the wording of policies should be interpreted. The Supreme Court’s decision provided more certainty. In some aspects, the Supreme Court went much further than the High Court which strengthens the argument for policyholders.

Potentially worth billions of pounds, the case involved the examination of 17 policy wordings from eight insurers to assess whether COVID-19 generates a pay-out. The Supreme Court’s decision had claims rejected to re-visit their policies and for others who did not claim at the time to have a look at their policies with a view to making a claim.  This decision will also have an impact beyond business interruption insurance and into other areas of insurance. This is because one element of the case was about causation; namely what was the cause of the business interruption?

Challenges to overcome

There are a number of issues that come into play regarding business interruption claims, including:

The intended nature of business interruption policies - many business interruption insurance policies only have basic cover for business interruption resulting from property damage (so actual physical damage to the property). Other business interruption policies (often bought as an add on to a property damage policy) cover business interruption for other causes – for example relating to infectious or notifiable diseases or denial of access or where public authorities enforce closures or impose restrictions. This denial of access (and what caused it) often conflicts with the policyholder’s view, who may feel that they should receive a pay-out regardless of what triggered the business interruption.

Geographical coverage – Some insurance policies include geographical coverage clauses, which cover businesses if there is a “notifiable disease” on the premises in the surrounding area. With COVID-19, it may be difficult to prove that it was present in a certain location (the outcome of the test case has helped here for certain policy wordings). Subject to the wording of the policy, the Supreme Court decision will now assist.

Demonstrating a causal link – COVID-19 will have to be directly linked to the losses incurred for businesses to be covered. This could have been a challenge, as the losses may be due to the Government-mandated closures, rather than the virus itself but the Supreme Court’s decision has provided the clarity needed here too.

Making a claim on your business interruption insurance policy

The three national lockdowns imposed as a consequence of the COVID-19 pandemic inevitably mean businesses which cannot or could not operate (or whose operations are restricted) should consider whether their losses are recoverable under any business interruption insurance policy they hold. It is the case though that after the first national lockdown some insurers re-wrote their policies to tighten up on the extent of any indemnity cover and to put themselves in a stronger position to refuse cover when entering into new policies.

As a result of the Supreme Court decision, insurers with policy wording identical to or similar to those tested should now  settle all valid claims as soon as possible and it is understood that, in many cases, the process of settling claims has already begun.  However, regardless of the outcome, it is important to remember that claims will turn on their particular facts and, most importantly, the wording of the policy.

How we can help with our fixed fee support

It may be that you are thinking of making a claim under a business interruption insurance policy or that you have already made that claim and it has been rejected.

Making a successful claim

It’s vital that if you are thinking of making a claim to your insurer that you have an understanding of whether the policy wording will cover you and a plan to challenge any arguments that an insurer may advance to try to invalidate any claim.

If you do have grounds for a business interruption claim, you must gather the right supporting evidence, including collating original documents that show the lost revenues, as well as the forecasted revenues and any expenses incurred. Instead of treating this as a one-off process, you should keep an ongoing record of the relevant information, just in case you decide to make a claim at a later date.

How we can support you

We will carry out a review of your policy wording and provide you with an opinion on validity (whether we think the policy wording covers you or not). We will also identify potential obstacles to any successful claim resulting from our review of the policy wording. We shall do so applying the decision of the court (following the outcome of the Appeal).

Already made a claim and rejected?

A rejected claim doesn’t mean you have to give up. We will carry out a review of your policy wording, consider the reasoning from the insurer for the rejection of the claim and provide you with an opinion on validity. We will assess this against the findings in the Supreme Court decision, if relevant.

If we consider the insurer has got it wrong, we will summarise your options available, such as:

  • Complaining directly to the insurer if you believe the wrong decision was made.
  • Making a compensation claim against the insurance company for breach of contract.
  • Making a complaint to the Financial Ombudsman Service to seek compensation.
  • Assessing whether you are entitled to compensation from the broker if you believe the advice given wasn’t correct.
Costs

If you have yet to make a claim our fixed fee review is
£450 + VAT per policy

If you have made a claim which has been rejected or had cover refused, our fixed fee review is
£550 + VAT per policy

What are my next steps?

Often, the time and financial costs involved in litigating against a large insurance firm puts businesses off taking a stand. However, with the right legal advice, organisations can find viable funding options that allow them to take the next step towards a fair result.

By following the conclusions of the Supreme Court decision and any guidance created from the case, businesses can increase their chances of making a successful business interruption claim, lessening the long-term financial impact of the pandemic.

Contact us

Whether you’re considering making a claim on your business interruption insurance, or have had a claim rejected, our commercial disputes team can advise you on your options and guide you through the process of what to do next.

Do contact us either leaving your contact details here on our short form or by calling either Tim Speed or Steven Skiba. We look forward to hearing from you.

Our guide to recovery and resilience helps to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

Contact us today to find out more about our fixed fee support
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We've put together some frequently asked questions to help you understand more about business interruption insurance

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Getting construction sites back on track after lockdown

Getting construction sites back on track after lockdown

Are you a developer reopening your site following lockdown? We’re here to help you get your sites back on track as quickly as possible.

With the added pressure of worldwide disruption to supply chains, getting sites going again is going to throw up some significant challenges you may not have faced before.

  • Suppliers: It is likely that developers will face long delays as suppliers further up the chain will struggle with manufacturing and sourcing building materials – there will be a long lead-in time to get their production re-started again.
  • Cash: It’s also likely that prices will spike as demand quickly rises and supply needs time to catch up.
  • People/workforce: you may face problems in getting employees back onto sites, and will need to meet requirements for social distancing when you do.

As you will likely have relationships, agreements and contracts in place with your supply chain already – the best thing you can do now is to consider your current position.

Are there barriers to re-opening your sites?

Tell us about them on a free 30-minute video call with our specialist team or register for our webinar where we will discuss the position with employment contracts and workforces, contracts and supply chains and a practical look at how you can get your site back up and running.

Things to consider

  • Talk through issues with experts in employment, construction and development as well as commercial law
  • Find out options available to enable you to get back into business as quickly and efficiently as possible, minimising the impact of any delays
  • Discover routes to protecting yourself against a turbulent market and unpredictable supply chain
  • Consider potential new risks following lockdown and how your sites and staff can be prepared for them

Fill out our enquiry form or click below to request a call-back.

Coronavirus resources
In response to COVID-19, we created our coronavirus hub which includes advice, guidance and insight to help you navigate through these uncertain times. As we all begin to adapt and prepare for the future, our hub will evolve to provide you with further help and resources for surviving, reviving and beginning to thrive in life and business, throughout the challenging times ahead.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we have lots of educational and entertaining content for life and business visit SHMA® ON DEMAND.

Want to get your construction site re-opened as quickly and as safely as possible?

Fill out the form below to request a free 30-minute consultation.

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Meet the team

Missed our recent webinar on getting construction sites back on track after lockdown? Catch up here >>

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We are here to help in your business and personal life - contact us today to find out more.

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