Latest News

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• Commercial Update

  Court of Appeal upholds High Court decision regarding all monies guarantees not being discharged by a variation of pre-existing underlying contract

  In National Merchant Buying Society Ltd v Bellamy & another, the Court of Appeal has upheld an earlier High Court decision that an all monies guarantee was not discharged by the variation of a pre-existing underlying contract. News of the High Court decision had previously been posted on this site by Jason Waghorne of our Nottingham Commercial team 0115 959 6365.

  The appellant had argued that the variation of an existing contract should discharge the guarantee. Dismissing the appeal, the Court of Appeal held that an all monies guarantee should not be linked to or limited by the existing contract.

• Employment Law Update

  Relocation following grievance was not victimization

  On appeal, it has been found that an employer was not acting unfairly in dismissing an employee who refused to relocate following the employee raising a grievance and submitting a tribunal claim about persistent racist comments, writes Tony Wilkinson of our Nottingham Employment law team 0115 959 0055.

  Although the Employment Appeals Tribunal acknowledged that the remarks and the handling of the grievance had amounted to direct race discrimination, the tribunal had been wrong to conclude that the relocation arose as a consequence of a grievance being raised. Instead, relocation was considered a reasonable solution, particularly in light of the employer’s offer to subsidise additional travel costs and allow the employee a choice of jobs, after the employee had refused to participate in an Acas mediation.

• Private Client Update

  Inheritance Act 1975: Deceased's right before death under joint life policy

  Duncan Godfrey, of our Nottingham Wills and Probate department 0115 959 0055 has learnt that the High Court has found that a deceased person may, immediately before death, become entitled to a joint tenancy of the right under a life policy to benefit from an assumed terminal illness.
  The decision furthers the law in determining whether jointly held interests may be brought into the deceased's net estate under the Inheritance Act 1975.

• Employment Update

  Government announces National minimum wage increases

  The government has announced the national minimum wage rates which will take effect later this year, writes Tony Wilkinson of our Nottingham Employment law team 0115 959 0055.
  The new rates, which will apply from 1 October 2013, are:

   

  • The standard adult rate - £6.31 ph
  • The development rate - £5.03 ph
  • The young workers rate - £3.72 ph
  • Apprentices - £2.68 ph
  • The accommodation offset - £4.91

   

  Although the Low Pay Commission had recommended freezing the apprenticeship rate, the government opted to increase all rates.

   

• Commercial - Unfair Terms in Consumer Contracts Regulations 1999 do not apply to mixed purposes

  
  The High Court has clarified the definition of ‘consumer’ under the Unfair Terms in Consumer Contracts Regulations, writes Jason Waghorne of our Nottingham Commercial Team 0115 959 6365.

  In reaching its decision, the court acknowledged that the buyer's main purpose for entering into the contract was for his own private use, but as he also had a commercial purpose for entering into the contract, this reason took him outside the definition of consumer. In obiter statements, the court said that a buyer who had given a seller the impression that he was acting for business purposes (even if he wasn’t) was also not entitled to consumer protection under the regulations.

   

• Employment - Not following the Acas Code for dismissal

  An employer’s decision to dismiss, despite not following the Acas Code has been held to be fair by the Employment Appeals Tribunal, writes Tony Wilkinson of our Nottingham Employment Team 0115 959 0055.

  Following a number of acts of misconduct and a final written warning, the employee was dismissed despite the employer failing to formally notify the employee of the potential consequences of the disciplinary hearing, or the written warning. The Employment Appeals Tribunal found that upon review of the employer’s dismissal procedure overall, the employee was aware of the consequences of the written warning and that he might be dismissed. Employers should, however, be wary of assuming that they do not have to follow the Acas code. It should be followed in all cases.

• Wills and Probate Testamentary capacity

  Duncan Godfrey of our Nottingham Wills and Probate Team 0115 959 0055 writes that in the recent case of Hawes v Burgess and another, the Court of Appeal has held that where a solicitor has prepared a will and makes a contemporaneous record that the testatrix had requisite capacity to do so, it would take strong evidence to rebut that view.

• Property - Changes to Energy Performance Certificates

  On 9 January 2013 a new regime relating to Energy Performance Certificates came into effect, writes Chris Carlin of our Arnold branch 0115 920 0020.
  Although it introduces two duties, it fell short of introducing express powers of enforcement, or penalties for breaches. However, compliance with these duties would avoid any complications arising from non-adherence. The duties introduced are:

  • A duty to display an Energy Performance Certificate in commercial buildings where the total useful floor area esceeds 500m²; and
  • A duty to include the asset rating as shown on the Energy performance Certificate in any advertisement through a commercial outlet whether the property is being sold or rented.

   

• Employment - Reasonable adjustments do not extend to exempting disabled employees from absence management policy

  Employees who have a history of intermittent and long-term absence will not be unfairly dismissed if an employer dismisses them for non-compliance with its short-term absence policy, writes Tony Wilkinson of our Nottingham Employment Team 0115 959 0055.

  Despite a recommendation from occupational health that a phased return to work be undertaken, the Employment Appeals Tribunal upheld a tribunal decision rejecting an employee's claim for unfair dismissal and failure to make reasonable adjustments for a disability as it felt that non-compliance with the policy was not a reasonable adjustment for the employer to make.

• Commercial - When is notice of an assignment not notice of an assignment?

  When is notice of an assignment not notice of an assignment? asks Jason Waghorne of our Nottingham Commercial Team 0115 959 6365.

  Based on previous authority and obiter comments made in Santander UK plc v Harrison and another, information given in response to a request made under data protection legislation does not constitute notice of assignment under section 136 of the Law of Property Act 1925 as this section requires notice to be given expressly and in writing in order for an assignment to be a legal assignment.

• Commercial Update

  Doorstep Selling Regulations

  Jason Waghorne of our Nottingham Commercial Department 0115 959 6365 writes that the Court of Appeal has given consideration to a contract formed at the consumer’s home, where the trader failed to serve on the consumer a notice of his right to cancel.

  Although the court held that failure to serve the notice meant that the cancellation period had not started to run and the consumer was not entitled to cancel the contract, the failure to serve notice meant that the contract was unenforceable against the consumer.

• Wills and Probate

  Wills and Probate

  Lifetime Planning and Business Property Relief

  Those considering lifetime planning should carefully consider the nature of the assets which they hold, writes Duncan Godfrey of our Nottingham Wills and Probate department 0115 959 0055.

  In an appeal to the Upper Tribunal, HMRC has succeeded in its argument that a let holiday cottage was a business that consisted mainly of holding an investment, so that it did not meet the qualifying criteria to be a relevant business property for Business Property Relief.

• Employment Update

  EAT holds direct age discrimination to be objectively justified by a strong social policy objective

  Tony Wilkinson of our Nottingham Employment Team 0115 959 0055 writes that the Employment Appeal Tribunal has confirmed that it will apply a public interest test to age discrimination cases. Notwithstanding that it could amount to direct age discrimination, the EAT found that an enhanced redundancy payment for older workers was justified, as it sought to address the extra problems which older workers face after losing their jobs.

• Property Update

  Prescriptive rights of way

  A decision of the Adjudicator to the Land Registry relating to an easements has been upheld by the High Court, writes Valerie Wilkinson of our Nottingham Property Team 0115 959 0055.

  In reaching its decision the court considered the role and findings of the Adjudicator who had previously decided that the property in question has the benefit of a right of way for vehicles based on the doctrine of lost modern grant. Although used by the claimants infrequently, the court decided that the frequency was sufficient to allow the claimants to acquire a prescriptive easement. The question of continuity of use is one of fact.

• Commercial Update

  High Court considers restrictive covenants in franchise agreements

  Antony Fyson of our Long Eaton Commercial Team 0115 973 4111 has learnt that the High Court has found in favour of a franchisor by enforcing an ambiguous restrictive covenant against an ex-franchisee. Had it not done so, the ambiguity would render the clause unenforceable.

  Dismissing the ex-franchisee’s argument, the court also held that a widely drawn restrictive covenant was not necessarily void simply because there was the remote possibility that future circumstances may arise which could render the clause unreasonable.

• Employment Update

  Is complete disclosure of convictions and cautions a breach of Human Rights?

  The current scheme for checking criminal convictions, which requires disclosure of all spent convictions and cautions, may breach the right to respect for private life under Human Rights legislation, writes Tony Wilkinson of our Nottingham Employment Team 0115 959 0055.

  While The Court of Appeal recognises that blanket disclosure operates for a legitimate aim, that of protecting employers and vulnerable persons, the current scheme goes beyond what which is proportionate. However, the Court qualified its position by finding that serious offences never being rehabilitated is proportionate and would therefore not constitute a breach.

• Litigation Update

  Causation and burden of proof

  The Court of Appeal has provided useful guidance on the issue of causation, writes Richard Bates of our Nottingham Litigation team 0115 959 0055.

  In its judgment, the Court of Appeal disagreed with the first instance court's finding that, as a rule of law, an inherently unlikely cause becomes the probable cause simply because all other causes were even less likely.

• Property Update

  Consultation on planning application process continues

  The Government’s proposals for streamlining the planning process continue, writes Lynn Bilyeald of our Nottingham Property Team 0115 959 0055, following responses to initial consultations which were published in July 2012.

  Last year the Government published three consultations on streamlining the planning system and responses received have highlighted other areas of possible improvement. Among those areas which the latest consultation paper is seeking views includes:

  • The requirements for design and access statements;
  • Looking at the type and amount of information which local authorities can request in order that they are truly necessary; and
  • Requiring local authorities to give reasons for approving planning permission for development.

  Any views on this latest consultation must be submitted by 4 March 2013.

• Employment - Christians working on Sundays is discrimination but can be objectively justified

  Christians working on Sundays is discrimination but can be objectively justified

  Following the decision in Mba v Mayor and Burgesses of the London Borough of Merton, writes Tony Wilkinson of our Nottingham Employment Team 0115 959 0055, the Employment Appeals Tribunal has upheld the decision that requiring Christian employees to work on Sundays is discrimination because of their religion but can be objectively justified and therefore the employer was not liable. It was considered in this case that there were genuine commercial reasons for requirement to work some Sunday shifts

• Litigation-The importance of following pre-action protocol

  The importance of following pre-action protocol

  Majid Iqbal of our Nottingham Litigation Team 0115 959 0055 has learnt that a recent High Court judgment has reinforced the position that the court can depart from the normal rules regarding costs, where a party has not complied with pre-action protocols.
  
  Pre-action protocols are set procedures designed to encourage settlement or, if this is not possible, to make the trial process more efficient. The case involved a Part 36 offer being made by the Claimant who failed to properly deal with the defendant�s request for pre-action disclosure of information. In the judge�s opinion, this conduct was not conducive to these aims.

  There remains the risk that defendants will pursue even minor breaches of protocol in order to recover costs, but the High Court decision should serve as a timely warning that parties should, if possible, remain co-operative and not disregard any pre-action protocol where it is relevant to the case in hand.

• Litigation- Joining the back of the queue

  Litigation

  Joining the back of the queue

  Lawyers have looked on in interest as the Court of Appeal has given consideration as to whether a charging order, registered against a property and registered as a unilateral notice at the Land Registry takes priority over compromise proceedings scheduled in a Tomlin order, writes Richard Bates of our Nottingham Litigation Team 0115 959 0055.

  The claimant company did not challenge the High Court�s previous decision that the charging order merely secured a judgment debt and was not "made for valuable consideration", but instead argued priority based on the arrangements between the parties. The argument did not sway the Court of Appeal who upheld the High Court�s decision.

• Employment Are non-compete restrictive covenants enforceable when an employer no longer undertakes the competing work?

  Employment

  Are non-compete restrictive covenants enforceable when an employer no longer undertakes the competing work?

  By way of a reminder to carefully consider the scope and extent of restrictive covenants contained in employment contracts, Tony Wilkinson of our Nottingham Employment Team0115 959 0055 writes that the High Court has recently held that an employee will not be in breach of non-compete restrictions in his contract of employment where, with the departure of the employee, the employer ceases carrying on the employee�s particular type of work.

• Litigation - Solicitors breath a collective sigh of relief

  The Court of Appeal has overturned a decision of the High Court and in doing so has prompted a collective sigh of relief from conveyancing solicitors, writes Richard Bates of our Nottingham Litigation team 0115 959 0055.

  Under the High Court decision, solicitor firms would have been found to have acted in breach of trust where mortgage sums are paid, unwittingly, to an imposter posing as the seller's solicitors. The Court of Appeal has subsequently confirmed that in those circumstances, provided the solicitor firm had acted honestly and reasonably, the court should grant relief from liability as the obligations placed upon it were not absolute.

• Employment Law - Criminal records checks

  The Home Office has announced that from 1 March 2013 the new criminal record checking system is to be launched by the Disclosure and Barring Service (DBS), writes Tony Wilkinson of our Nottingham Employment Department 0115 959 0055.

  The new system, following lobbying by interested parties, will be free and will enable employees and volunteers to apply for a criminal records disclosure certificate and to then check online whether it remains current. This altered approach will limit the need for repeated applications to be made.

• Company/Commercial - Can warranties give rise to claims of misrepresentation?

  
  The High Court has considered the question of whether breaches of express warranties in share sale agreements could give rise to an action for misrepresentation, writes Jason Waghorne of our Nottingham Commercial Department 0115 959 6365.

  While admitting non-reliance on any pre-contract representations, it was the buyer's assertion that some of the warranties amounted to false representations which induced it to buy the company.

  Under the deal, certain directors and senior management of the target company took a minority stake in the purchasing company as part of a management buy-out structure. The court, therefore, needed to consider whether the knowledge the MBO team gleaned from those appointments was attributable to the buyer and whether such knowledge would preclude the buyer from claiming breach of warranty.

  The court found that the agreement between the parties consistently maintained the distinction between representations and warranties and that it wasn't the intention of the parties that the limitation clauses would only be effective, when applied to the same worded clauses, if the clauses were considered to be warranties. Additionally, the buyer had not acquired actual knowledge of facts giving rise to the warranty breaches by virtue of members of the MBO team becoming directors of the buyer

• Property - Appealing a party wall award

  Lynn Billyeald of our Nottingham property department 0115 959 0055 writes that in a unanimous decision, The Court of Appeal has held that the "postal rule" applies to appeals against party wall awards.

  Applying that rule, the 14-day time limit for appealing party wall awards runs from the date of deemed receipt (i.e. the date it would have been received in the ordinary course of the post, whether or not it is received on time, or at all) of the award and not the date the award was posted. The lesson to be learnt from this decision is that if you are subject to a Party Wall Act 1996 procedure, ensure that any appeal is lodged well within the prescribed time limits.

• Private Client - Date announced for 2013 Budget date

  Petra Feast of our Nottingham Wills & Probate team 0115 959 0055 confirms that hot on the heals of the Autumn Statement, HM Treasury has announced that the 2013 Budget will be delivered on Wednesday 20 March 2013.

• Employment - Volunteers without contracts

  The Supreme Court has confirmed a decision by Court of Appeal stating that a Citizens Advice Bureau volunteer, who had no contract, was not covered by the Disability Discrimination Act 1995, writes Tony Wilkinson of our Nottingham Employment team 0115 959 0055. The decision was decided on the grounds that the volunteer was not "in employment" within the definition of that Act.

• Archive News