Issue 6 October 2011 Jamie Berry picks TWM to help grow business law We are delighted to welcome Jamie Berry to TWM. He is an experienced corporate and commercial lawyer who will work alongside Peter Stevens and his team, adding to our expertise in business law. Prior to joining TWM, Jamie ran his own legal consultancy in British Columbia, Canada and was also a partner at a London law firm until November 2010. Jamie works with high net worth individuals, luxury sports car manufacturers and property developers amongst others, advising on a wide range of corporate and commercial matters. Jamie lives in Godalming and counts mountain biking and snowboarding amongst his varied interests. Promotions www.twmsolicitors.com Legal 500 praise for TWM The Legal 500 2011 edition was recently published. The independent guide to UK law firms recommends TWM in five specialist areas of law. They are: • Commercial property • Corporate & commercial • Employment • Family • Personal tax trusts and probate The family team is ranked in the top tier in its category for the 7th consecutive year. The guide explains: “TWM Solicitors LLP handles the whole spectrum of family matters. ‘Outstanding’ department head Charmaine Hast specialises in divorce and abduction matters, and has strong international connections. She is ‘clever, articulate and dedicated – no client could ask for more’. Among the highly experienced team, Karin Walker and Alex Davies are also well regarded”. About the personal tax trusts and probate team, the guide says: “The ‘excellent’ TWM Solicitors LLP handles a range of tax, trust and probate instructions. Contentious probate work, led by Guy Perkins, remains a key strength for the firm”. We are delighted to announce three lawyer promotions which came into effect on 1 August 2011. From left to right, Richard Bland becomes a Partner in the residential property team, having started with the Firm as a trainee back in 2003. Trisha Siddique (family in Wimbledon) and Laura Ricci-Walker (residential property in Reigate) were promoted from Solicitor to Associate. We have also appointed our first non-lawyer partner with the promotion of Finance Director, Andrew Hayes to the equity. Awards nominations The Wimbledon office was shortlisted at the Merton Business Awards in the category ‘Best Medium Sized Business’. The nomination was for the work and quality of service provided by the team in SW19. The Firm has also been shortlisted at The Law Society Excellence Awards 2011 for Excellence in Practice Management.
Transcript
Issue 6 October 2011
Jamie Berry picks TWM to help grow business lawWe are delighted to welcome Jamie Berry to TWM. He is an experienced corporate and commercial lawyer who will work alongside Peter Stevens and his team, adding
to our expertise in business law. Prior to joining TWM, Jamie ran his own legal consultancy in British Columbia, Canada and was also a partner at a London law firm until November 2010. Jamie works with high net worth individuals, luxury sports car manufacturers and property developers amongst others, advising on a wide range of corporate and commercial matters.
Jamie lives in Godalming and counts mountain biking and snowboarding amongst his varied interests.
Promotions
www.twmsolicitors.com
Paul Celebrates 25 YearsCongratulations to Paul Bradley, private client partner in the Reigate office, who recently celebrated his 25th anniversary with the Firm.
New Trainees
We welcome our new trainees who are setting out on their
legal careers. Pictured are L-R: Candy Stockton, Richard
Whitaker, Sarah Osborne and Catherine Johnstone. Sarah
might already be known to some readers, having worked at
TWM for five years as a licensed conveyancer.
In addition, we are delighted to report that following
completion of their training contracts, Matthew Gosnell and
Joanna Stiff have qualified as solicitors and join the family
team in the Wimbledon and Guildford offices respectively.
Minima Yacht ClubFor the 5th consecutive year, TWM sponsored Minima Yacht
Club’s annual sailing regatta raced along the River Thames
at Kingston on the first weekend in September.
The two day open event attracted over 30 boats and 60
competitors from five local sailing clubs including a team
from TWM’s dispute resolution department comprising Eileen
Barry (Minima’s membership secretary), David Hitchcock
and Sean Hilton. Racing a boat he had never sailed before
and dodging all the river traffic, including a fleet of Dunkirk
little ships, Sean won the “Solo” class trophy presented by
the Mayor of Kingston, Councillor Patrick Codd.
Residential Property An Englishman’s home is his castle.
The new Channel 5 television series, The Removal Men, recently featured a client from our Leatherhead office who has used the Firm on several occasions when moving house.
The common theme throughout the series, irrespective of where or why people were moving, was just how emotional the moving process can be. It is often said that the three most stressful things in life are death, divorce and moving home! The latter can often be very much underestimated. Buying a new home is likely to be the largest single expense one makes.
An experienced lawyer who can put themselves in the shoes of the person or family moving is often the best choice. Before instructing a lawyer on your house move
you should consider whether:
• you value direct access to the lawyer who will be handling your house move or are you happy to speak to a different person each time;
• you want a bespoke and empathetic service or a commodity type service; or
• you want to work with people who are likely to know the local area and the other parties involved in your house move or not.
These are the qualities and service levels provided by our residential property team.
Inaugural Epsom business awardsFollowing involvement from Rt Hon Chris Grayling, MP for
Epsom & Ewell, the inaugural Epsom and Ewell Business
Awards were launched in July, with TWM one of the award
sponsors. Commenting on our involvement, Head of Epsom
office, John Sandford-Pike said “Epsom and Ewell is home
to very many established and innovative businesses. TWM
is delighted to support these Awards, thereby helping local
organisations to showcase their undoubted expertise”.
For further details, visit www.epsombusinessawards.co.uk
News and Views is TWM Solicitors’ quarterly newsletter for clients and contacts. The articles included in this publication are necessarily brief and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.
TWM Solicitors is a full service law firm. It is the second largest firm based in Surrey and its approach centres on achieving success for its clients.
If we can help with a legal issue, please do not hesitate to contact one of our team:
Cranleigh - Richard Bland 01483 273515Epsom - John Sandford-Pike 01372 729555Guildford - Adrian O’Loughlin 01483 752700Leatherhead - Mark Stevenson 01372 374148Reigate - Demelza Patricio 01737 221212Wimbledon - Peter Lambert 020 8946 6454
For further information about TWM Solicitors, please visit our web site: www.twmsolicitors.com
Legal 500 praise for TWMThe Legal 500 2011 edition was recently published. The independent guide to UK law firms recommends TWM in five specialist areas of law. They are:
• Commercial property • Corporate & commercial • Employment • Family • Personal tax trusts and probate
The family team is ranked in the top tier in its category for the 7th consecutive year. The guide explains:
“TWM Solicitors LLP handles the whole spectrum of family matters. ‘Outstanding’ department head Charmaine Hast specialises in divorce and abduction matters, and has strong international connections. She is ‘clever, articulate and dedicated – no client could ask for more’. Among the
highly experienced team, Karin Walker and Alex Davies are also well regarded”.
About the personal tax trusts and probate team, the guide says:
“The ‘excellent’ TWM Solicitors LLP handles a range of tax, trust and probate instructions. Contentious probate work, led by Guy Perkins, remains a key strength for the firm”.
We are delighted to announce three lawyer promotions which
came into effect on 1 August 2011. From left to right, Richard
Bland becomes a Partner in the residential property team, having
started with the Firm as a trainee back in 2003. Trisha Siddique
(family in Wimbledon) and Laura Ricci-Walker (residential
property in Reigate) were promoted from Solicitor to Associate.
We have also appointed our first non-lawyer partner with the
promotion of Finance Director, Andrew Hayes to the equity.
Awards nominationsThe Wimbledon office was shortlisted at the Merton Business Awards in the category ‘Best Medium Sized Business’. The nomination was for the work and quality of service provided by the team in SW19.
The Firm has also been shortlisted at The Law Society Excellence Awards 2011 for Excellence in Practice Management.
Business Law Timely reminder of Directors’ Duties
and his wife. The director was not directly involved in the arrangements, which had been made by another employee, who had made it clear to the customer that there would be nothing in it for him. The customer was going through a divorce, and was happy for the equipment to be off his premises and not count as his assets for the purposes of any claim his wife might have.
The equipment was old, dilapidated and in poor condition. The director needed to carry out remedial work on it, at his own expense. His attitude throughout was that this was an entirely personal matter between friends, which had nothing to do with the company.
The court disregarded the director’s arguments about “commercial reality”. It did not matter whether the director or the customer had acted corruptly or in bad faith, nor that the value of the benefit to the director was negligible, the customer received no benefit from it and the company had suffered no quantifiable loss, nor that the director did not deal directly with the customer or that, if there had been no free loan, the director would not have hired that sort of equipment in the market. These arguments all missed the point: the director owed duties of loyalty to his company, which had been broken by his failure to disclose the arrangements to his co-directors for approval.
Much has been written recently about the Bribery Act, but, a recent case has given a timely reminder that a company director should not overlook his existing statutory duties to the company.
In Philip Towers v Premier Waste Management Limited,a director had been lent, free of charge, by one of the company’s customers a second hand excavator and dumper truck, which he had used in the renovation of a dilapidated farm house and outbuildings belonging to himself
Employment Statistics on Tribunals show mixed picture
third. Clearly these are areas which employers will have to keep under review and address.
355 Costs Orders were made during the year. It does appear that Tribunals are increasingly using Costs Orders where appropriate. It remains the case that a Costs Order will not follow whenever a claim is unsuccessful but the Tribunals are taking the matter more seriously and considering the issues where appropriate.
First prosecution under Bribery Act
The Bribery Act was introduced into Law with effect from 1 July 2011. The first prosecution under the Act has been announced. Ironically, the employee was an administrative clerk employed by Redbridge Magistrates Court. It is alleged that he promised to “influence” prosecution of a motoring offence for payment of a £500 bribe. The matter has been referred to the Southwark Crown Court to be heard in mid October.
Each year the Government publishes figures detailing Tribunal claims issued. Those for the year to 31 March 2011 have recently been distributed. These show that the number of claims issued in the Employment Tribunals as a whole fell by 8%. On the face of it this is good news but hides the fact that the previous year had seen an increase in claims of 56% upon the year prior to that! Of perhaps more interest is the breakdown of claims.
There was a slight fall in the number of claims for unfair dismissal and redundancy. This may reflect the fact that restructuring and redundancy exercises undertaken by employers in light of the ongoing economic difficulties faced by the country have been completed. Employers believe that they now have the right numbers and the right workforce ready for the future.
Of the total unfair dismissal claims issued which proceeded to a trial, 40% were successful and 60% failed.
Bucking the trend for reduction in claims, complaints of discrimination on grounds of part-time status increased by a factor of 3 and claims for age discrimination increased by one
Private Client Asset Protection through Lifestyle Wills
possibility of paying for care home fees which may even deplete the entire estate. At present, care costs will only be paid in full by the State when the survivor’s assets have been reduced to £23,250.
• If the surviving spouse remarries to protect the assets in the trust so that they pass to the family of the original marriage, not to the new spouse (and/or the children of the new marriage).
• Flexibility to provide for vulnerable beneficiaries who may not be capable of managing large sums of money.
• Flexibility to provide a vehicle for tax planning for the next generation.
In addition, if the value of the estate of the first spouse to die exceeds the current nil rate band of £325,000 further protection can be provided by putting these assets into a Flexible Life Interest Trust for the benefit of the survivor. This second Trust structure will provide similar protection for the rest of the estate assets which exceed the nil rate band.
Whilst for some simple Wills are sufficient, if you are interested in protecting assets for the next generation then TWM Lifestyle Wills which incorporate different types of Trust are an effective estate planning tool.
Usually, a married couple want everything to pass to the surviving spouse on first death and to their children on the second death which can be achieved through simple Wills leaving the entire estate to the survivor with provision for the children on the death of the survivor.
However, it is possible on the death of the first spouse to put the amount of the available nil rate band, currently £325,000, into a Nil Rate Band Discretionary Trust for the benefit of the surviving spouse in their lifetime and a class of beneficiaries (usually the children and future grandchildren). This means that assets to the value of the nil rate band are ring fenced in the trust which can protect and retain control over assets in the following situations:
• To keep assets in trust from being assessed if the survivor needs to go into care. Increasingly it is not only Inheritance Tax that will reduce your children’s inheritance but the
Dispute Resolution Part 36 “Offers to Settle” in Court Proceedings in England and Wales
Part 36 has been the focus of judicial consideration over the past few months and is the subject of forthcoming reforms in this area. Proposals to reform Part 36 largely centre around the costs consequences of failing to beat an opponent’s Part 36 offer at trial. The current rules provide that:
• If a defendant makes a Part 36 offer and the claimant does not accept that offer and then fails to obtain a more advantageous judgment at trial than that offer, the court will order the claimant to pay the defendant’s costs from the date when the relevant period expired plus interest on those costs (but the defendant has to pay the claimant’s costs before that date).
• If a claimant makes a Part 36 offer which is not accepted by the defendant and the judgment against the defendant is at least as advantageous to the claimant as that offer, the court can order the defendant to pay the claimant’s costs on an indemnity basis (which is more generous than the standard basis of assessment) from the date the relevant period expired plus interest on those costs and on the whole or part of any sum awarded (excluding interest on that sum) at a rate of up to 10% above base rate.
The issue of what amounts to a “more advantageous judgment” was considered in the case of Carver v BAA plc (2008) where the Court of Appeal held that “all the circumstances must be
Whilst there is nothing preventing a party making an offer to settle in any way it chooses, (and often this is to be positively encouraged) there can be costs, interest and tactical advantages in making a formal offer to settle which complies with the rules of court which govern the conduct of civil litigation (The Civil Procedure Rules – “CPR”). Offers to settle in the prescribed form (known as Part 36 Offers) aim to encourage parties to try and settle a dispute. They set out the costs consequences that a party will face if it refuses a reasonable offer to settle.
Further amendments to Part 36 have been proposed in the Government’s response to the recent Review of Civil Litigation Costs: Final Report, published in March 2011; the precise details are yet to be finalised and are not expected to be put in place until late 2012. It is hoped, however, the proposed reforms will go at least some way to resolving the ambiguities created by recent case law so that parties can be confident of making a Part 36 offer of settlement during proceedings and can rely on any such offer for its full effect.
taken into account” in determining whether the final outcome of a case was “more advantageous” to a claimant than accepting a defendant’s Part 36 offer. In other words, it was not necessarily sufficient to be awarded a sum of money which exceeded the amount offered and other factors could be taken into account. This decision was widely criticised by many for introducing an unwelcome degree of uncertainty into the Part 36 regime.
The effect of the ruling in Carver will be reversed by a new court rule CPR 36.14 (IA) from 1 October 2011. The rule will therefore be that where a money offer is beaten at trial, by however small a margin, the Part 36 costs consequences will apply.
FAMILY Mediation and Information Assessment Meetings
a MIAM before they can issue an application to the court.Some people were concerned that the meetings may be seen as a tick box exercise. Inevitably, there are some people who have absolutely made up their minds that they want to go to court and do not want to try to resolve matters through mediation. They will make that very clear in their MIAM and the mediator will probably have to reluctantly agree that mediation will not be suitable for them. However, in many cases, one or both parties have not made up their mind absolutely before attending the MIAM and they find the meeting a very useful way of understanding how mediation works and the advantages of resolving their disputes through the mediation process.
Individuals can attend a MIAM alone or together. The mediator will explain the mediation process to them, together with information about other amicable methods of resolving matters such as collaborative law. Many couples find that they like the mediator’s approach to matters and decide to stay within the mediation process. When we are advising clients as solicitors (rather than acting as mediators), we may suggest that they attend a MIAM at a very early stage to allow them to explore whether mediation would be suitable. There is no need to wait until court proceedings seem inevitable. We consider carefully the mediators to whom we refer our clients, to be sure they have the best chance possible of resolving their disputes through mediation.
Mediation is usually a quicker, cheaper and more amicable method of resolving family disputes. Four members of the Family Department at TWM are currently mediators and able to carry out MIAMS.
Observant readers of our Newsletter will remember that in February 2011 we told you that most people wanting to issue court proceedings to deal with finances on divorce or disputes concerning children would be required to attend a Mediation Information and Assessment Meeting (MIAM) before they could do so. These new rules came into force in April 2011, so we have had five months to see how the new procedures are working.
As we expected, we were not approached by large numbers of people needing MIAMS during the first month or two after the new rules came into force. Most people who thought they might have to issue court proceedings because they were finding it difficult to resolve issues amicably made sure they issued their proceedings before 6th April 2011 so that they did not have to attend a MIAM.
However, as time passes, we are being approached by more and more individuals and couples who need to attend
Business Law Timely reminder of Directors’ Duties
and his wife. The director was not directly involved in the arrangements, which had been made by another employee, who had made it clear to the customer that there would be nothing in it for him. The customer was going through a divorce, and was happy for the equipment to be off his premises and not count as his assets for the purposes of any claim his wife might have.
The equipment was old, dilapidated and in poor condition. The director needed to carry out remedial work on it, at his own expense. His attitude throughout was that this was an entirely personal matter between friends, which had nothing to do with the company.
The court disregarded the director’s arguments about “commercial reality”. It did not matter whether the director or the customer had acted corruptly or in bad faith, nor that the value of the benefit to the director was negligible, the customer received no benefit from it and the company had suffered no quantifiable loss, nor that the director did not deal directly with the customer or that, if there had been no free loan, the director would not have hired that sort of equipment in the market. These arguments all missed the point: the director owed duties of loyalty to his company, which had been broken by his failure to disclose the arrangements to his co-directors for approval.
Much has been written recently about the Bribery Act, but, a recent case has given a timely reminder that a company director should not overlook his existing statutory duties to the company.
In Philip Towers v Premier Waste Management Limited,a director had been lent, free of charge, by one of the company’s customers a second hand excavator and dumper truck, which he had used in the renovation of a dilapidated farm house and outbuildings belonging to himself
Employment Statistics on Tribunals show mixed picture
third. Clearly these are areas which employers will have to keep under review and address.
355 Costs Orders were made during the year. It does appear that Tribunals are increasingly using Costs Orders where appropriate. It remains the case that a Costs Order will not follow whenever a claim is unsuccessful but the Tribunals are taking the matter more seriously and considering the issues where appropriate.
First prosecution under Bribery Act
The Bribery Act was introduced into Law with effect from 1 July 2011. The first prosecution under the Act has been announced. Ironically, the employee was an administrative clerk employed by Redbridge Magistrates Court. It is alleged that he promised to “influence” prosecution of a motoring offence for payment of a £500 bribe. The matter has been referred to the Southwark Crown Court to be heard in mid October.
Each year the Government publishes figures detailing Tribunal claims issued. Those for the year to 31 March 2011 have recently been distributed. These show that the number of claims issued in the Employment Tribunals as a whole fell by 8%. On the face of it this is good news but hides the fact that the previous year had seen an increase in claims of 56% upon the year prior to that! Of perhaps more interest is the breakdown of claims.
There was a slight fall in the number of claims for unfair dismissal and redundancy. This may reflect the fact that restructuring and redundancy exercises undertaken by employers in light of the ongoing economic difficulties faced by the country have been completed. Employers believe that they now have the right numbers and the right workforce ready for the future.
Of the total unfair dismissal claims issued which proceeded to a trial, 40% were successful and 60% failed.
Bucking the trend for reduction in claims, complaints of discrimination on grounds of part-time status increased by a factor of 3 and claims for age discrimination increased by one
Private Client Asset Protection through Lifestyle Wills
possibility of paying for care home fees which may even deplete the entire estate. At present, care costs will only be paid in full by the State when the survivor’s assets have been reduced to £23,250.
• If the surviving spouse remarries to protect the assets in the trust so that they pass to the family of the original marriage, not to the new spouse (and/or the children of the new marriage).
• Flexibility to provide for vulnerable beneficiaries who may not be capable of managing large sums of money.
• Flexibility to provide a vehicle for tax planning for the next generation.
In addition, if the value of the estate of the first spouse to die exceeds the current nil rate band of £325,000 further protection can be provided by putting these assets into a Flexible Life Interest Trust for the benefit of the survivor. This second Trust structure will provide similar protection for the rest of the estate assets which exceed the nil rate band.
Whilst for some simple Wills are sufficient, if you are interested in protecting assets for the next generation then TWM Lifestyle Wills which incorporate different types of Trust are an effective estate planning tool.
Usually, a married couple want everything to pass to the surviving spouse on first death and to their children on the second death which can be achieved through simple Wills leaving the entire estate to the survivor with provision for the children on the death of the survivor.
However, it is possible on the death of the first spouse to put the amount of the available nil rate band, currently £325,000, into a Nil Rate Band Discretionary Trust for the benefit of the surviving spouse in their lifetime and a class of beneficiaries (usually the children and future grandchildren). This means that assets to the value of the nil rate band are ring fenced in the trust which can protect and retain control over assets in the following situations:
• To keep assets in trust from being assessed if the survivor needs to go into care. Increasingly it is not only Inheritance Tax that will reduce your children’s inheritance but the
Dispute Resolution Part 36 “Offers to Settle” in Court Proceedings in England and Wales
Part 36 has been the focus of judicial consideration over the past few months and is the subject of forthcoming reforms in this area. Proposals to reform Part 36 largely centre around the costs consequences of failing to beat an opponent’s Part 36 offer at trial. The current rules provide that:
• If a defendant makes a Part 36 offer and the claimant does not accept that offer and then fails to obtain a more advantageous judgment at trial than that offer, the court will order the claimant to pay the defendant’s costs from the date when the relevant period expired plus interest on those costs (but the defendant has to pay the claimant’s costs before that date).
• If a claimant makes a Part 36 offer which is not accepted by the defendant and the judgment against the defendant is at least as advantageous to the claimant as that offer, the court can order the defendant to pay the claimant’s costs on an indemnity basis (which is more generous than the standard basis of assessment) from the date the relevant period expired plus interest on those costs and on the whole or part of any sum awarded (excluding interest on that sum) at a rate of up to 10% above base rate.
The issue of what amounts to a “more advantageous judgment” was considered in the case of Carver v BAA plc (2008) where the Court of Appeal held that “all the circumstances must be
Whilst there is nothing preventing a party making an offer to settle in any way it chooses, (and often this is to be positively encouraged) there can be costs, interest and tactical advantages in making a formal offer to settle which complies with the rules of court which govern the conduct of civil litigation (The Civil Procedure Rules – “CPR”). Offers to settle in the prescribed form (known as Part 36 Offers) aim to encourage parties to try and settle a dispute. They set out the costs consequences that a party will face if it refuses a reasonable offer to settle.
Further amendments to Part 36 have been proposed in the Government’s response to the recent Review of Civil Litigation Costs: Final Report, published in March 2011; the precise details are yet to be finalised and are not expected to be put in place until late 2012. It is hoped, however, the proposed reforms will go at least some way to resolving the ambiguities created by recent case law so that parties can be confident of making a Part 36 offer of settlement during proceedings and can rely on any such offer for its full effect.
taken into account” in determining whether the final outcome of a case was “more advantageous” to a claimant than accepting a defendant’s Part 36 offer. In other words, it was not necessarily sufficient to be awarded a sum of money which exceeded the amount offered and other factors could be taken into account. This decision was widely criticised by many for introducing an unwelcome degree of uncertainty into the Part 36 regime.
The effect of the ruling in Carver will be reversed by a new court rule CPR 36.14 (IA) from 1 October 2011. The rule will therefore be that where a money offer is beaten at trial, by however small a margin, the Part 36 costs consequences will apply.
FAMILY Mediation and Information Assessment Meetings
a MIAM before they can issue an application to the court.Some people were concerned that the meetings may be seen as a tick box exercise. Inevitably, there are some people who have absolutely made up their minds that they want to go to court and do not want to try to resolve matters through mediation. They will make that very clear in their MIAM and the mediator will probably have to reluctantly agree that mediation will not be suitable for them. However, in many cases, one or both parties have not made up their mind absolutely before attending the MIAM and they find the meeting a very useful way of understanding how mediation works and the advantages of resolving their disputes through the mediation process.
Individuals can attend a MIAM alone or together. The mediator will explain the mediation process to them, together with information about other amicable methods of resolving matters such as collaborative law. Many couples find that they like the mediator’s approach to matters and decide to stay within the mediation process. When we are advising clients as solicitors (rather than acting as mediators), we may suggest that they attend a MIAM at a very early stage to allow them to explore whether mediation would be suitable. There is no need to wait until court proceedings seem inevitable. We consider carefully the mediators to whom we refer our clients, to be sure they have the best chance possible of resolving their disputes through mediation.
Mediation is usually a quicker, cheaper and more amicable method of resolving family disputes. Four members of the Family Department at TWM are currently mediators and able to carry out MIAMS.
Observant readers of our Newsletter will remember that in February 2011 we told you that most people wanting to issue court proceedings to deal with finances on divorce or disputes concerning children would be required to attend a Mediation Information and Assessment Meeting (MIAM) before they could do so. These new rules came into force in April 2011, so we have had five months to see how the new procedures are working.
As we expected, we were not approached by large numbers of people needing MIAMS during the first month or two after the new rules came into force. Most people who thought they might have to issue court proceedings because they were finding it difficult to resolve issues amicably made sure they issued their proceedings before 6th April 2011 so that they did not have to attend a MIAM.
However, as time passes, we are being approached by more and more individuals and couples who need to attend
Business Law Timely reminder of Directors’ Duties
and his wife. The director was not directly involved in the arrangements, which had been made by another employee, who had made it clear to the customer that there would be nothing in it for him. The customer was going through a divorce, and was happy for the equipment to be off his premises and not count as his assets for the purposes of any claim his wife might have.
The equipment was old, dilapidated and in poor condition. The director needed to carry out remedial work on it, at his own expense. His attitude throughout was that this was an entirely personal matter between friends, which had nothing to do with the company.
The court disregarded the director’s arguments about “commercial reality”. It did not matter whether the director or the customer had acted corruptly or in bad faith, nor that the value of the benefit to the director was negligible, the customer received no benefit from it and the company had suffered no quantifiable loss, nor that the director did not deal directly with the customer or that, if there had been no free loan, the director would not have hired that sort of equipment in the market. These arguments all missed the point: the director owed duties of loyalty to his company, which had been broken by his failure to disclose the arrangements to his co-directors for approval.
Much has been written recently about the Bribery Act, but, a recent case has given a timely reminder that a company director should not overlook his existing statutory duties to the company.
In Philip Towers v Premier Waste Management Limited,a director had been lent, free of charge, by one of the company’s customers a second hand excavator and dumper truck, which he had used in the renovation of a dilapidated farm house and outbuildings belonging to himself
Employment Statistics on Tribunals show mixed picture
third. Clearly these are areas which employers will have to keep under review and address.
355 Costs Orders were made during the year. It does appear that Tribunals are increasingly using Costs Orders where appropriate. It remains the case that a Costs Order will not follow whenever a claim is unsuccessful but the Tribunals are taking the matter more seriously and considering the issues where appropriate.
First prosecution under Bribery Act
The Bribery Act was introduced into Law with effect from 1 July 2011. The first prosecution under the Act has been announced. Ironically, the employee was an administrative clerk employed by Redbridge Magistrates Court. It is alleged that he promised to “influence” prosecution of a motoring offence for payment of a £500 bribe. The matter has been referred to the Southwark Crown Court to be heard in mid October.
Each year the Government publishes figures detailing Tribunal claims issued. Those for the year to 31 March 2011 have recently been distributed. These show that the number of claims issued in the Employment Tribunals as a whole fell by 8%. On the face of it this is good news but hides the fact that the previous year had seen an increase in claims of 56% upon the year prior to that! Of perhaps more interest is the breakdown of claims.
There was a slight fall in the number of claims for unfair dismissal and redundancy. This may reflect the fact that restructuring and redundancy exercises undertaken by employers in light of the ongoing economic difficulties faced by the country have been completed. Employers believe that they now have the right numbers and the right workforce ready for the future.
Of the total unfair dismissal claims issued which proceeded to a trial, 40% were successful and 60% failed.
Bucking the trend for reduction in claims, complaints of discrimination on grounds of part-time status increased by a factor of 3 and claims for age discrimination increased by one
Private Client Asset Protection through Lifestyle Wills
possibility of paying for care home fees which may even deplete the entire estate. At present, care costs will only be paid in full by the State when the survivor’s assets have been reduced to £23,250.
• If the surviving spouse remarries to protect the assets in the trust so that they pass to the family of the original marriage, not to the new spouse (and/or the children of the new marriage).
• Flexibility to provide for vulnerable beneficiaries who may not be capable of managing large sums of money.
• Flexibility to provide a vehicle for tax planning for the next generation.
In addition, if the value of the estate of the first spouse to die exceeds the current nil rate band of £325,000 further protection can be provided by putting these assets into a Flexible Life Interest Trust for the benefit of the survivor. This second Trust structure will provide similar protection for the rest of the estate assets which exceed the nil rate band.
Whilst for some simple Wills are sufficient, if you are interested in protecting assets for the next generation then TWM Lifestyle Wills which incorporate different types of Trust are an effective estate planning tool.
Usually, a married couple want everything to pass to the surviving spouse on first death and to their children on the second death which can be achieved through simple Wills leaving the entire estate to the survivor with provision for the children on the death of the survivor.
However, it is possible on the death of the first spouse to put the amount of the available nil rate band, currently £325,000, into a Nil Rate Band Discretionary Trust for the benefit of the surviving spouse in their lifetime and a class of beneficiaries (usually the children and future grandchildren). This means that assets to the value of the nil rate band are ring fenced in the trust which can protect and retain control over assets in the following situations:
• To keep assets in trust from being assessed if the survivor needs to go into care. Increasingly it is not only Inheritance Tax that will reduce your children’s inheritance but the
Dispute Resolution Part 36 “Offers to Settle” in Court Proceedings in England and Wales
Part 36 has been the focus of judicial consideration over the past few months and is the subject of forthcoming reforms in this area. Proposals to reform Part 36 largely centre around the costs consequences of failing to beat an opponent’s Part 36 offer at trial. The current rules provide that:
• If a defendant makes a Part 36 offer and the claimant does not accept that offer and then fails to obtain a more advantageous judgment at trial than that offer, the court will order the claimant to pay the defendant’s costs from the date when the relevant period expired plus interest on those costs (but the defendant has to pay the claimant’s costs before that date).
• If a claimant makes a Part 36 offer which is not accepted by the defendant and the judgment against the defendant is at least as advantageous to the claimant as that offer, the court can order the defendant to pay the claimant’s costs on an indemnity basis (which is more generous than the standard basis of assessment) from the date the relevant period expired plus interest on those costs and on the whole or part of any sum awarded (excluding interest on that sum) at a rate of up to 10% above base rate.
The issue of what amounts to a “more advantageous judgment” was considered in the case of Carver v BAA plc (2008) where the Court of Appeal held that “all the circumstances must be
Whilst there is nothing preventing a party making an offer to settle in any way it chooses, (and often this is to be positively encouraged) there can be costs, interest and tactical advantages in making a formal offer to settle which complies with the rules of court which govern the conduct of civil litigation (The Civil Procedure Rules – “CPR”). Offers to settle in the prescribed form (known as Part 36 Offers) aim to encourage parties to try and settle a dispute. They set out the costs consequences that a party will face if it refuses a reasonable offer to settle.
Further amendments to Part 36 have been proposed in the Government’s response to the recent Review of Civil Litigation Costs: Final Report, published in March 2011; the precise details are yet to be finalised and are not expected to be put in place until late 2012. It is hoped, however, the proposed reforms will go at least some way to resolving the ambiguities created by recent case law so that parties can be confident of making a Part 36 offer of settlement during proceedings and can rely on any such offer for its full effect.
taken into account” in determining whether the final outcome of a case was “more advantageous” to a claimant than accepting a defendant’s Part 36 offer. In other words, it was not necessarily sufficient to be awarded a sum of money which exceeded the amount offered and other factors could be taken into account. This decision was widely criticised by many for introducing an unwelcome degree of uncertainty into the Part 36 regime.
The effect of the ruling in Carver will be reversed by a new court rule CPR 36.14 (IA) from 1 October 2011. The rule will therefore be that where a money offer is beaten at trial, by however small a margin, the Part 36 costs consequences will apply.
FAMILY Mediation and Information Assessment Meetings
a MIAM before they can issue an application to the court.Some people were concerned that the meetings may be seen as a tick box exercise. Inevitably, there are some people who have absolutely made up their minds that they want to go to court and do not want to try to resolve matters through mediation. They will make that very clear in their MIAM and the mediator will probably have to reluctantly agree that mediation will not be suitable for them. However, in many cases, one or both parties have not made up their mind absolutely before attending the MIAM and they find the meeting a very useful way of understanding how mediation works and the advantages of resolving their disputes through the mediation process.
Individuals can attend a MIAM alone or together. The mediator will explain the mediation process to them, together with information about other amicable methods of resolving matters such as collaborative law. Many couples find that they like the mediator’s approach to matters and decide to stay within the mediation process. When we are advising clients as solicitors (rather than acting as mediators), we may suggest that they attend a MIAM at a very early stage to allow them to explore whether mediation would be suitable. There is no need to wait until court proceedings seem inevitable. We consider carefully the mediators to whom we refer our clients, to be sure they have the best chance possible of resolving their disputes through mediation.
Mediation is usually a quicker, cheaper and more amicable method of resolving family disputes. Four members of the Family Department at TWM are currently mediators and able to carry out MIAMS.
Observant readers of our Newsletter will remember that in February 2011 we told you that most people wanting to issue court proceedings to deal with finances on divorce or disputes concerning children would be required to attend a Mediation Information and Assessment Meeting (MIAM) before they could do so. These new rules came into force in April 2011, so we have had five months to see how the new procedures are working.
As we expected, we were not approached by large numbers of people needing MIAMS during the first month or two after the new rules came into force. Most people who thought they might have to issue court proceedings because they were finding it difficult to resolve issues amicably made sure they issued their proceedings before 6th April 2011 so that they did not have to attend a MIAM.
However, as time passes, we are being approached by more and more individuals and couples who need to attend
Issue 6 October 2011
Jamie Berry picks TWM to help grow business lawWe are delighted to welcome Jamie Berry to TWM. He is an experienced corporate and commercial lawyer who will work alongside Peter Stevens and his team, adding
to our expertise in business law. Prior to joining TWM, Jamie ran his own legal consultancy in British Columbia, Canada and was also a partner at a London law firm until November 2010. Jamie works with high net worth individuals, luxury sports car manufacturers and property developers amongst others, advising on a wide range of corporate and commercial matters.
Jamie lives in Godalming and counts mountain biking and snowboarding amongst his varied interests.
Promotions
www.twmsolicitors.com
Paul Celebrates 25 YearsCongratulations to Paul Bradley, private client partner in the Reigate office, who recently celebrated his 25th anniversary with the Firm.
New Trainees
We welcome our new trainees who are setting out on their
legal careers. Pictured are L-R: Candy Stockton, Richard
Whitaker, Sarah Osborne and Catherine Johnstone. Sarah
might already be known to some readers, having worked at
TWM for five years as a licensed conveyancer.
In addition, we are delighted to report that following
completion of their training contracts, Matthew Gosnell and
Joanna Stiff have qualified as solicitors and join the family
team in the Wimbledon and Guildford offices respectively.
Minima Yacht ClubFor the 5th consecutive year, TWM sponsored Minima Yacht
Club’s annual sailing regatta raced along the River Thames
at Kingston on the first weekend in September.
The two day open event attracted over 30 boats and 60
competitors from five local sailing clubs including a team
from TWM’s dispute resolution department comprising Eileen
Barry (Minima’s membership secretary), David Hitchcock
and Sean Hilton. Racing a boat he had never sailed before
and dodging all the river traffic, including a fleet of Dunkirk
little ships, Sean won the “Solo” class trophy presented by
the Mayor of Kingston, Councillor Patrick Codd.
Residential Property An Englishman’s home is his castle.
The new Channel 5 television series, The Removal Men, recently featured a client from our Leatherhead office who has used the Firm on several occasions when moving house.
The common theme throughout the series, irrespective of where or why people were moving, was just how emotional the moving process can be. It is often said that the three most stressful things in life are death, divorce and moving home! The latter can often be very much underestimated. Buying a new home is likely to be the largest single expense one makes.
An experienced lawyer who can put themselves in the shoes of the person or family moving is often the best choice. Before instructing a lawyer on your house move
you should consider whether:
• you value direct access to the lawyer who will be handling your house move or are you happy to speak to a different person each time;
• you want a bespoke and empathetic service or a commodity type service; or
• you want to work with people who are likely to know the local area and the other parties involved in your house move or not.
These are the qualities and service levels provided by our residential property team.
Inaugural Epsom business awardsFollowing involvement from Rt Hon Chris Grayling, MP for
Epsom & Ewell, the inaugural Epsom and Ewell Business
Awards were launched in July, with TWM one of the award
sponsors. Commenting on our involvement, Head of Epsom
office, John Sandford-Pike said “Epsom and Ewell is home
to very many established and innovative businesses. TWM
is delighted to support these Awards, thereby helping local
organisations to showcase their undoubted expertise”.
For further details, visit www.epsombusinessawards.co.uk
News and Views is TWM Solicitors’ quarterly newsletter for clients and contacts. The articles included in this publication are necessarily brief and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.
TWM Solicitors is a full service law firm. It is the second largest firm based in Surrey and its approach centres on achieving success for its clients.
If we can help with a legal issue, please do not hesitate to contact one of our team:
Cranleigh - Richard Bland 01483 273515Epsom - John Sandford-Pike 01372 729555Guildford - Adrian O’Loughlin 01483 752700Leatherhead - Mark Stevenson 01372 374148Reigate - Demelza Patricio 01737 221212Wimbledon - Peter Lambert 020 8946 6454
For further information about TWM Solicitors, please visit our web site: www.twmsolicitors.com
Legal 500 praise for TWMThe Legal 500 2011 edition was recently published. The independent guide to UK law firms recommends TWM in five specialist areas of law. They are:
• Commercial property • Corporate & commercial • Employment • Family • Personal tax trusts and probate
The family team is ranked in the top tier in its category for the 7th consecutive year. The guide explains:
“TWM Solicitors LLP handles the whole spectrum of family matters. ‘Outstanding’ department head Charmaine Hast specialises in divorce and abduction matters, and has strong international connections. She is ‘clever, articulate and dedicated – no client could ask for more’. Among the
highly experienced team, Karin Walker and Alex Davies are also well regarded”.
About the personal tax trusts and probate team, the guide says:
“The ‘excellent’ TWM Solicitors LLP handles a range of tax, trust and probate instructions. Contentious probate work, led by Guy Perkins, remains a key strength for the firm”.
We are delighted to announce three lawyer promotions which
came into effect on 1 August 2011. From left to right, Richard
Bland becomes a Partner in the residential property team, having
started with the Firm as a trainee back in 2003. Trisha Siddique
(family in Wimbledon) and Laura Ricci-Walker (residential
property in Reigate) were promoted from Solicitor to Associate.
We have also appointed our first non-lawyer partner with the
promotion of Finance Director, Andrew Hayes to the equity.
Awards nominationsThe Wimbledon office was shortlisted at the Merton Business Awards in the category ‘Best Medium Sized Business’. The nomination was for the work and quality of service provided by the team in SW19.
The Firm has also been shortlisted at The Law Society Excellence Awards 2011 for Excellence in Practice Management.
Issue 6 October 2011
Jamie Berry picks TWM to help grow business lawWe are delighted to welcome Jamie Berry to TWM. He is an experienced corporate and commercial lawyer who will work alongside Peter Stevens and his team, adding
to our expertise in business law. Prior to joining TWM, Jamie ran his own legal consultancy in British Columbia, Canada and was also a partner at a London law firm until November 2010. Jamie works with high net worth individuals, luxury sports car manufacturers and property developers amongst others, advising on a wide range of corporate and commercial matters.
Jamie lives in Godalming and counts mountain biking and snowboarding amongst his varied interests.
Promotions
www.twmsolicitors.com
Paul Celebrates 25 YearsCongratulations to Paul Bradley, private client partner in the Reigate office, who recently celebrated his 25th anniversary with the Firm.
New Trainees
We welcome our new trainees who are setting out on their
legal careers. Pictured are L-R: Candy Stockton, Richard
Whitaker, Sarah Osborne and Catherine Johnstone. Sarah
might already be known to some readers, having worked at
TWM for five years as a licensed conveyancer.
In addition, we are delighted to report that following
completion of their training contracts, Matthew Gosnell and
Joanna Stiff have qualified as solicitors and join the family
team in the Wimbledon and Guildford offices respectively.
Minima Yacht ClubFor the 5th consecutive year, TWM sponsored Minima Yacht
Club’s annual sailing regatta raced along the River Thames
at Kingston on the first weekend in September.
The two day open event attracted over 30 boats and 60
competitors from five local sailing clubs including a team
from TWM’s dispute resolution department comprising Eileen
Barry (Minima’s membership secretary), David Hitchcock
and Sean Hilton. Racing a boat he had never sailed before
and dodging all the river traffic, including a fleet of Dunkirk
little ships, Sean won the “Solo” class trophy presented by
the Mayor of Kingston, Councillor Patrick Codd.
Residential Property An Englishman’s home is his castle.
The new Channel 5 television series, The Removal Men, recently featured a client from our Leatherhead office who has used the Firm on several occasions when moving house.
The common theme throughout the series, irrespective of where or why people were moving, was just how emotional the moving process can be. It is often said that the three most stressful things in life are death, divorce and moving home! The latter can often be very much underestimated. Buying a new home is likely to be the largest single expense one makes.
An experienced lawyer who can put themselves in the shoes of the person or family moving is often the best choice. Before instructing a lawyer on your house move
you should consider whether:
• you value direct access to the lawyer who will be handling your house move or are you happy to speak to a different person each time;
• you want a bespoke and empathetic service or a commodity type service; or
• you want to work with people who are likely to know the local area and the other parties involved in your house move or not.
These are the qualities and service levels provided by our residential property team.
Inaugural Epsom business awardsFollowing involvement from Rt Hon Chris Grayling, MP for
Epsom & Ewell, the inaugural Epsom and Ewell Business
Awards were launched in July, with TWM one of the award
sponsors. Commenting on our involvement, Head of Epsom
office, John Sandford-Pike said “Epsom and Ewell is home
to very many established and innovative businesses. TWM
is delighted to support these Awards, thereby helping local
organisations to showcase their undoubted expertise”.
For further details, visit www.epsombusinessawards.co.uk
News and Views is TWM Solicitors’ quarterly newsletter for clients and contacts. The articles included in this publication are necessarily brief and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.
TWM Solicitors is a full service law firm. It is the second largest firm based in Surrey and its approach centres on achieving success for its clients.
If we can help with a legal issue, please do not hesitate to contact one of our team:
Cranleigh - Richard Bland 01483 273515Epsom - John Sandford-Pike 01372 729555Guildford - Adrian O’Loughlin 01483 752700Leatherhead - Mark Stevenson 01372 374148Reigate - Demelza Patricio 01737 221212Wimbledon - Peter Lambert 020 8946 6454
For further information about TWM Solicitors, please visit our web site: www.twmsolicitors.com
Legal 500 praise for TWMThe Legal 500 2011 edition was recently published. The independent guide to UK law firms recommends TWM in five specialist areas of law. They are:
• Commercial property • Corporate & commercial • Employment • Family • Personal tax trusts and probate
The family team is ranked in the top tier in its category for the 7th consecutive year. The guide explains:
“TWM Solicitors LLP handles the whole spectrum of family matters. ‘Outstanding’ department head Charmaine Hast specialises in divorce and abduction matters, and has strong international connections. She is ‘clever, articulate and dedicated – no client could ask for more’. Among the
highly experienced team, Karin Walker and Alex Davies are also well regarded”.
About the personal tax trusts and probate team, the guide says:
“The ‘excellent’ TWM Solicitors LLP handles a range of tax, trust and probate instructions. Contentious probate work, led by Guy Perkins, remains a key strength for the firm”.
We are delighted to announce three lawyer promotions which
came into effect on 1 August 2011. From left to right, Richard
Bland becomes a Partner in the residential property team, having
started with the Firm as a trainee back in 2003. Trisha Siddique
(family in Wimbledon) and Laura Ricci-Walker (residential
property in Reigate) were promoted from Solicitor to Associate.
We have also appointed our first non-lawyer partner with the
promotion of Finance Director, Andrew Hayes to the equity.
Awards nominationsThe Wimbledon office was shortlisted at the Merton Business Awards in the category ‘Best Medium Sized Business’. The nomination was for the work and quality of service provided by the team in SW19.
The Firm has also been shortlisted at The Law Society Excellence Awards 2011 for Excellence in Practice Management.
