in : brief THE NEWSLETTER OF NAPTHENS SOLICITORS SUMMER 2016 ISSUE SEVENTEEN Growth continues for Real Estate Division Recent senior appointments to both the Commercial Property and Construction teams have seen Napthens’ Real Estate Division expand. Special report : Preparing for the challenges of later life. Pages 4&5 Most recently, experienced legal experts Paul Hardy and John Lomax joined the Commercial Property team as partners based in the Blackpool & Fylde and Preston offices, respectively. Paul Hardy, born and brought up on the Fylde, joins the team after 17 years at Manchester law firm Hempsons where he trained and became a partner. He has particular expertise in areas including landlord and tenant issues including agreements for lease and development work, freehold disposals and acquisitions and general estate management work. John, of Bolton, comes to Napthens following 12 years with international law firm Hill Dickinson and prior to that with the niche property law firm Bullivant Jones, both in Liverpool. He has expertise in retail and has acted for major companies on all aspects of property work with The expanding Napthens Real Estate team includes (L-R) Earle Brady, James Allison, John Lomax, Paul Hardy and Deborah Turner Business Roundup Ruth Connor of Marketing Lancashire writes about championing the county. page 2 Fresh thinking Levity Cropscience is aiming to change the way food is grown. page 6 Southport base Napthens announces its latest expansion. page 3 Face2Face Our experts discuss the future of Cumbria’s infrastructure. page 7 Feat of endurance Anthony Fox reveals his training secrets. page 8 a focus on new store openings, estate portfolio reorganisation and management including strategic planning. The pair will advise on a broad range of property matters for clients including landowners, developers and investors. They are the latest recruits to the firm’s Real Estate division, following the appointments earlier this year of lawyers including Commercial Property partner Kate Mallaband. Kate heads up the Commercial Property team in Cumbria and joined from local firm Oglethorpe Sturton & Gillibrand. She brings more than 10 years’ experience working in the sector. Meanwhile, solicitor Deborah Turner joined the Preston team from law firm Brabners. The Construction & Engineering team has expanded with the appointment of partner and head of department Earle Brady. Earle joined Napthens from DLA Piper in Liverpool where he was legal director and Head of Construction & Engineering in the North West. The high profile solicitor is known for his work in the sector including advising on the stand extension at Anfield for Liverpool Football Club. Senior associate solicitor Leigh Child also joined the Construction team alongside Earle. Based in Cumbria, Leigh has particular expertise in public procurement. The Real Estate Division offers advice to a range of clients across the commercial property and construction sectors, and encompasses the specialist departments of Rural Business and Leisure & Licensing. Jamie Allison, head of Napthens’ Real Estate Division, said: “This is an exciting time for the Real Estate team. A busy property market, strong demand for our specialist services and the opening of new offices in the region over the past few months, have meant we can service our pre-existing clients better whilst being presented with fresh opportunities and new clients coming on board. “Our reputation in the region means we are in the fortunate position of being able to recruit top class, highly experienced new team members who bring real benefits for our clients.” napthens.co.uk
Transcript
in:briefTHE NEWSLETTER OF NAPTHENS SOLICITORS
SUMMER 2016ISSUE SEVENTEEN
Growth continues for Real Estate Division Recent senior appointments to both the Commercial Property and Construction teams have seen Napthens’ Real Estate Division expand.
Special report: Preparing for the challenges of later life. Pages 4&5
Most recently, experienced legal experts Paul Hardy and John Lomax joined the Commercial Property team as partners based in the Blackpool & Fylde and Preston offices, respectively.
Paul Hardy, born and brought up on the Fylde, joins the team after 17 years at Manchester law firm Hempsons where he trained and became a partner.
He has particular expertise in areas including landlord and tenant issues including agreements for lease and development work, freehold disposals and acquisitions and general estate management work.
John, of Bolton, comes to Napthens following 12 years with international law firm Hill Dickinson and prior to that with the niche property law firm Bullivant Jones, both in Liverpool.
He has expertise in retail and has acted for major companies on all aspects of property work with
The expanding Napthens Real Estate team includes (L-R) Earle Brady, James Allison, John Lomax, Paul Hardy and Deborah Turner
Business RoundupRuth Connor of Marketing Lancashire writes about championing the county.
page 2
Fresh thinkingLevity Cropscience is aiming to change the way food is grown.
page 6
Southport baseNapthens announces its latest expansion.
page 3
Face2FaceOur experts discuss the future of Cumbria’s infrastructure.
page 7
Feat of enduranceAnthony Fox reveals his training secrets.
page 8
a focus on new store openings, estate portfolio reorganisation and management including strategic planning.
The pair will advise on a broad range of property matters for clients including landowners, developers and investors.
They are the latest recruits to the firm’s Real Estate division, following the appointments earlier this year of lawyers including Commercial Property partner Kate Mallaband.
Kate heads up the Commercial Property team in Cumbria and joined from local firm Oglethorpe Sturton & Gillibrand. She brings more than 10 years’ experience working in the sector. Meanwhile, solicitor Deborah Turner joined the Preston team from law firm Brabners.
The Construction & Engineering team has expanded with the appointment of partner and head of department Earle Brady.
Earle joined Napthens from DLA Piper in Liverpool where he was legal director and Head of Construction & Engineering in the North West. The high profile solicitor is known for his work in the sector including advising on the stand extension at Anfield for Liverpool Football Club.
Senior associate solicitor Leigh Child also joined the Construction team alongside Earle. Based in Cumbria, Leigh has particular expertise in public procurement.
The Real Estate Division offers advice to a range of clients across the commercial property and construction sectors, and encompasses the
specialist departments of Rural Business and Leisure & Licensing.
Jamie Allison, head of Napthens’ Real Estate Division, said: “This is an exciting time for the Real Estate team. A busy property market, strong demand for our specialist services and the opening of new offices in the region over the past few months, have meant we can service our pre-existing clients better whilst being presented with fresh opportunities and new clients coming on board.
“Our reputation in the region means we are in the fortunate position of being able to recruit top class, highly experienced new team members who bring real benefits for our clients.”
napthens.co.uk
welcome / business roundup / legal update:
in:brief welcome
Welcome to the latest edition of in:brief, which covers a range of topics including a special double-page spread looking at how an ageing population is transforming later–life planning.
Our experts are joined by care home operators, the director of a successful leisure business and a financial planner to highlight some of the issues faced by those planning for the future, and ways to avoid some of the pitfalls.
We also turn the spotlight on two great businesses in our Client Profile features. This time it’s the turn of Levity Cropscience, run by two scientists looking to change the way our food is grown using cutting edge techniques.
Then we take a look at Bowker Motor Group, a name synonymous with motoring and transport for almost 100 years. This year Bowker is celebrating the 20th anniversary of moving into Preston’s docklands.
Meanwhile, Ruth Connor, the Chief Executive of Marketing Lancashire, talks about the important work being done to promote the area as a place to live, work and invest in.
In our Face2Face feature, James Todhunter, Napthens’ Head of Cumbria, chats with Simon de Vere of property asset management and planning consultancy North Associates. The pair discuss the past, present and future of Cumbria’s infrastructure.
We also hope you will enjoy a number of helpful advice pieces from our Corporate, Construction, Litigation and Employment & HR teams, examining topics including crowdfunding, inheritance disputes, construction penalty clauses and health and wellbeing in the workplace.
Finally, our latest edition brings readers up-to-date with the latest news from Napthens itself, plus we speak to Employment and HR solicitor Anthony Fox to find out about the challenge of taking part in an Iron Man sporting competition.
I hope you enjoy reading this edition. Do let us know if you have any feedback.
2 in:brief SUMMER 2016 www.napthens.co.uk
Earle Brady
It is thought that the first online project to be funded through crowdfunding took place in 1997 when the band Marillion were unable to afford to tour after the release of their seventh album.
American fans used the then fledgling internet to raise $60,000 so they could play in the US. Marillion have since used crowdfunding to successfully fund the production of their following three albums.
Since then many other creative projects followed suit and the first crowdfunding website appeared in 2001. There are now hundreds of crowdfunding platforms online.
Crowdfunding works by matching funders (members of the public) to people seeking funding, such as entrepreneurs with an online portal allowing them to showcase projects, or companies which are then funded through the platform.
There is no limit to the amount of individual contribution but unlike more established methods of fund raising, many platforms permit participants to contribute as little
Key to the county’s success is partnership – when Lancashire speaks in one voice there’s no better place to study, do business or to spend quality time with family and friends.
Over 63 million people choose to take short breaks and days out in Lancashire, our universities are amongst the best in the country and manufacturing, aerospace and Lancashire’s food and drink industries are without doubt some of the UK’s most innovative and successful.
Marketing Lancashire is led by myself, the chief executive, with Tony Attard OBE, founder and group Chief Executive of Lancashire-based Panaz Limited as chair of the board. The board now welcomes James Allison, partner and Head of Napthens’ Real Estate Division.
Marketing Lancashire is supported by Lancashire County Council and has partnerships with district and unitary authorities across the county as well as a growing membership base through the private sector.
In 2015 Marketing Lancashire was appointed by the Lancashire
The rise of crowdfunding
Business Roundup
Richard Robinson, partner and Head of Corporate explains the different crowdfunding models.
Enterprise Partnership (LEP) to lead on the development of a new Lancashire narrative. Having a clear narrative and confident voice that highlights our strengths, assets and ambitions, means we can actively take Lancashire to market.
As well as the creation of the Lancashire narrative, Marketing Lancashire has led an increased drive in PR and communications to get Lancashire talked about for all the right reasons. This has included promotional activity in New York, Miami, Germany, Australia and France and planned events such as the Farnborough Air Show in July and MIPIM UK property show in October.
A new e-newsletter, the Lancashire Business Brief is distributed weekly showcasing positive Lancashire media stories and a monthly Lancashire LEP newsletter ‘the Lancashire Link’ has been introduced to highlight the work and progress of the LEP.
The narrative will launch in September in Lancashire with further launches to take place in Manchester and London. An ambassadors programme which
enables key business leaders across the county to shout loudly and proudly about Lancashire’s strengths will also be launched to support the new Lancashire narrative; a place led group of Lancashire based businesses who are ambitious and passionate about Lancashire and want to play a part in driving Lancashire’s future success.
Marketing Lancashire’s board will act as guardians of the county’s story and brand. The board will provide a strategic business led view and leadership for the promotion and development of Lancashire, regionally, nationally and internationally.
Over the summer Lancashire’s £3.7billion visitor economy businesses will be completing applications for the Lancashire Tourism Awards 2016, to be held at Blackburn Cathedral on Thursday, November 10 and later that month, Marketing Lancashire will be encouraging the county to shout about Lancashire Day.
On November 27, 2015 our social media campaign to celebrate Lancashire Day reached over 40
million people in over 800 locations worldwide. With a compelling new narrative and new Lancashire ambassadors, what an opportunity for more of us to be Lancashire champions. We know that Lancashire is the place to be – let’s tell the rest of the world!
as £10. Typically the entrepreneur will be required to specify a target amount and cut-off date, and will not receive funding unless this target is reached.
There are three broad crowdfunding models; donation, debt and equity – each distinguishable by the return for the funder:
Donation model
Individuals provide money to a company or project for non financial reasons or for a non-monetary reward.
People invest because they believe in the cause. Rewards may be offered and are often intangible such as acknowledgements on an album cover, free entry to an event, free gifts and so on. Donors’ motivation for putting their money in is not for a return and they expect nothing back, except perhaps to feel good about helping the project.
Debt model
Individuals lend money to a company or project in return for
repayment of the loan and interest on their investment.
Also called peer-to-peer (p2p) lending, it allows for the lending of money whilst bypassing traditional banks. As with any loan, investors receive their money back with interest.
Equity model
Individuals invest in an opportunity in exchange for a share in the profits or revenue generated by the business, project or venture.
So, what next for crowdfunding?
Crowdfunding is a way of raising finance by asking a large number of people for a small amount of money each. Until the advent of crowdfunding, financing a business, project or venture involved asking a few people for large sums of money. Crowdfunding challenges this idea by using the internet to talk to thousands – if not millions – of potential funders to raise money.
Crowdfunding is here to stay. The rapid growth in the crowdfunding
industry shows no sign of abating and it is increasingly seen as the best way to get a new venture off the ground. It is still a novel solution to funding and more traditional means of finance remain the norm, but as the market evolves crowdfunding may well become mainstream.
Ruth Connor, chief executive of Marketing Lancashire
Richard Robinson
Championing Lancashire as a place to live, work and invest in, as well as a diverse and stunning place to visit is Marketing Lancashire’s mission.
Earlier this year Napthens acquired well-known Hoghton Street private client practice Richard Jacklin & Co. The move is a springboard for Napthens in West Lancashire and Sefton. In addition to the firm’s range of private client services such as wills and estate planning, residential property, family and divorce and wealth management, Napthens’ commercial services are easily accessible for local businesses.
Simon Ainsworth, Head of Napthens’ Private Client Division is leading the growth of the business in key markets in the region.
Simon said: “An essential part of our growth is building an experienced team who will provide the highest level of service and expertise to the many clients we have locally. Demand for our services is high and since opening in Southport we
It was the year that football came home; Dolly the sheep was cloned; and, Damon Hill clinched the Drivers’ World Championship in Japan. A little closer to home in 1996, Bowker Motor Group moved its Preston BMW dealership to its new location on Preston Docks.
Back then, the Bowker family name was already known throughout Lancashire as successful road haulage and logistics business WH Bowker Ltd (formed in Blackburn in 1919).
In 1984 the group had diversified with the award of their first BMW franchise in Accrington. Then, in 1988 Bowker purchased Kinders Ashton Garage Ltd in Preston – one of the oldest BMW dealerships in the country.
expansion in Southport / client profile / Trans-continental expands:
SUMMER 2016 in:brief 3www.napthens.co.uk
Blackpool’s Trans-continental Group has opened two new sites thanks to advice from Napthens’ Commercial Property team.
The business, based at Amy Johnson Way, has taken a lease at its first site outside Lancashire, in Nuneaton in the East Midlands.
The expansion comes as the business also completes the lease of a former aircraft hangar at Squires Gate Industrial Estate in Blackpool. Trans-continental was advised on the leases by Martin Long, partner in the Commercial Property team.
The Nuneaton site is a 7,000sq ft showroom which will showcase the company’s Snowtime and Suntime brands – ranges of Christmas goods and garden furniture and outdoor leisure equipment.
In Blackpool, the 64,000sq ft warehouse space will store goods prior to distribution around the world including the Far East, Europe and the US.
The two new sites add to the existing showroom and HQ in Blackpool, and a showroom in Hong Kong.
Martin said: “Trans-Continental has gone from strength-to-strength and it’s great to see a business founded in Lancashire doing so well, and expanding into new locations.”
Trans-Continental, founded in 1994, now employs more than 150 staff, mainly in the UK with small teams in Hong Kong and China.
The group supplies more than 10,000 product lines to household names including the majority of UK garden centres.
Contact us:
We welcome your feedback and comments on any of the articles in this issue of in:brief. Feel free to drop us a line at [email protected] or visit our in:brief page on our website, www.napthens.co.uk/inbrief.
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New sites for Trans-continental
Recruitment continues in SouthportAs Napthens’ newest office location opens its doors, the firm continues to recruit to meet the growth in demand for services in Southport.
Bowker Motor Group celebrates 20-year docklands anniversary with new hybrid car launches
Client profile
have recruited top quality people to the office in a variety of roles. We’re looking forward to welcoming more people to the team in the coming weeks and months.”
Recent recruits include conveyancing executive Debbie Robinson with 18 years’ experience in her field,
Eight years later, the Preston dealership relocated to the new purpose-built facility. And the gateway docklands location remains the group’s home to this day.
Paul Bowker, Chief Executive of Bowker Motor Group, takes up the story: “The move to Preston docks transformed our business. No doubt about it. It was an important milestone. It gave us a landmark location and became the catalyst for a new period of expansion throughout the county.”
In 2001 BMW awarded Bowker Group the new MINI franchises in both Accrington and Preston. The next 15 years witnessed succession of refurbishments, acquisitions and another relocation from Accrington to Trident Park in Blackburn.
Today, the group now employs over 300 people in ten dealerships throughout Lancashire. Six of the dealerships are accounted for by BMW, MINI and Car Centres in both Blackburn and Preston.
Bowker Ribble Valley and Bowker Maserati opened in Osbaldeston in 2012 and 2014 respectively. And those new dealerships were sandwiched between the Bowker Motor Group’s first foray into transport on two wheels: Bowker Harley-Davidson opened in Preston in 2007. And Bowker Motorrad - the new name for Southport Superbikes - opened in 2015, also in Preston.
Paul continues: “We enjoy building successful dealerships. And over the years we’ve tried to remain true to the entrepreneurial spirit of the family.
If we can do anything to improve the service for our customers we will.”
At Bowker BMW the last 20 years have paved the way to the next 20 years. This year’s most significant car launches offer an irresistible glimpse into the future of motoring.
They include the eagerly-awaited new range of plug-in hybrid electric vehicles (PHEV) including the BMW X5 xDrive 40e, 330e Saloon and the 225xe Active Tourer. There’s a new electric i3 with a range of 205 miles too.
Paul adds: “It’s incredible to reflect on how far motoring has advanced in the last 20 years since we moved to the docks. I think the next 20 will offer even more incredible innovations; with BMW right at the forefront of the most exciting new technologies.”
www.bowkermotorgroup.com
(L-R) Simon Ainsworth, John Whittingslow and Richard Jacklin outside Napthens’ Southport office
Paul Bowker
Bowker’s state-of-the-art new showroom on Preston docks
along with legal assistant Robert MacGregor and reception staff Adele Ruane and Victoria Molloy. They have joined Richard Jacklin, who specialises in estate planning, and team members including licensed conveyancer Helen Kenyon and probate executive Jane Riley.
CEO John Whittingslow, said: “Southport is an area where we already have a strong footing. We have a number of clients – individuals and businesses – based in the locality and having an office in the town means we are well placed for growing this business.”
Martin Long
4 in:brief SUMMER 2016 www.napthens.co.uk
special report: later life planning
Planning for changesAs the UK’s population experiences improved health and longer lives, there are a number of new challenges emerging and, as a nation, the industry around planning for later life is growing.
From financial advisers to care home operators, everyone has a valid and important role to play in helping to plan for an often uncertain future. But the issues are complex and wrapped in red tape, with many in the industry concerned that both private individuals and those working in the sector are left confused.
Nicola Theobold, manager at Bowerswood care home in Garstang, near Preston, said many people have little understanding of the realities of the situation, and she has been supported by Napthens’ Wills & Estate Planning team’s new ‘care home pack.’
She explained: “Many people who come to us have a very limited knowledge of everything, from funding care onwards, and we must help to advise them at what is already a very traumatic time.
“There is the question of funding, whether the sale of a property is necessary to cover care fees, to whether the individual is being supported privately or by the local authority. In general there is very little information out there and it can be very unclear.
“Napthens’ care home packs have been invaluable, giving guidance on issues from Will planning to power of attorney. This kind of information helps make things clear from both the resident’s side, and the management’s side.”
Moor Park House in Preston is a care home which often cares for
“We always make it clear that thorough and early planning is the best way to ensure a person’s wishes for the future can and will be taken care of.”
Andrea Challis Louise Highton Natalie Neild Sean Aldridge David Hardman
people with complex needs, physical disabilities or acquired brain injuries.
Natalie Neild, manager, has seen all too well what proper planning can do to alleviate stress at a difficult time.
She commented that as part of the care planning process, staff discuss what future plans and wishes the residents have, whether they have made any advance decisions, and if they have an LPA in place.
“If they don’t and they have no mental capacity, it’s quite difficult because often their next of kin wants to be involved in decision making around health but if that’s not put in place, they can’t legally do it,” she explained.
“Many of our residents are younger people who have acquired brain injuries, for instance, and they tend not to have planned ahead.
“Where there is no power of attorney the Court of Protection must get involved, it can take months to sort out.”
As an illustration of the issues many face later in life, the Alzheimer’s Society estimates there will be 1 million people with dementia in the UK by 2025.
Sean Aldridge, senior associate in the Wills & Estate Planning team at Napthens works closely with care home clients and management to make sure they have all the information they need to support residents and their families.
He explained: “There are plenty of benefits to having both financial and health and welfare LPAs in place. It might give a son or daughter the authority they need to make decisions themselves, and give them the weight they need to fight their parent’s corner in relation to issues
such as care decisions and medical issues.
“But don’t forget, from the care homes’ point of view it’s a good thing to make sure residents have the correct financial power of authority in place as well.
“This means there will be no uncertainty when it comes to the stark reality of paying the bills. I’ve heard of plenty of situations where a resident of a home is paying the bills themselves, but lose capacity. At which point it is a lengthy process for the family members to turn to the Court of Protection and take on the responsibility themselves.
“What we also find particularly useful when setting up an LPA, is we talk to the person involved at length and draw up a letter of wishes to give instructions to whoever is appointed attorney, covering more personal issues that are important to them.
“It may be that a person enjoys being in the garden, or has a particular hobby. A letter of wishes can point this out and help them have the best possible quality of life.
“We always make it clear that thorough and early planning is the best way to ensure a person’s wishes for the future can and will be taken care of.”
David Hardman, financial planner with Napthens Wealth Management, said the key is talking to clients early on and discovering exactly what they want to achieve.
He said this may be being able to afford the care they want when they are older, or reducing the risk of assets which might otherwise be inherited being sold off to fund that care, and the best way to ensure assets can be passed on.
David explained: “Many clients simply don’t want to even think of care and later life planning. But the majority will also have had some experience of a relative needing care so they do understand how important the process is.
“Effectively the situation for most is that a means test will take place and people will either have enough to fund the care they want or they won’t. Then it can depend on
SUMMER 2016 in:brief 5www.napthens.co.uk
special report: later life planning
Ensuring the future is taken care of should be a priority, and brings particular challenges where business ownership is involved
whether the family will help or hope the local authority will cover the cost when they have nothing left.
“So we will look at the type of assets they have, the guaranteed income they have and what savings and investments will be available. Are they enough to achieve some of their objectives and if not, what can we do to help?
“We will examine whether giving certain gifts or establishing a trust can help, making sure the Will is written correctly and if there is anything that can be done to make sure not all of an estate will end up being sold to fund care.
“A care home operator can do much to help, such as offering a new resident someone to talk to and making helpful information available.”
For those with a business to run, and who may one day wish to pass the business to the next generation of the family, planning for the future has extra implications that can have a wide impact if not done properly.
Now in its fourth generation as a family business, succession planning is key to Partington’s future. The business operates caravan parks in areas including Blackpool, the Lake District and North Yorkshire.
Andrea Challis, director, explained that the business has been operating more than 70 years, and she has grown up knowing that thinking of the next generation is important.
She said: “Our parents have always spoken openly about what’s in their Wills, and how important it is to protect the business.
“When we began talking to Napthens about this issue, it became clear how devastating the results of not planning could be. If something happens to a key director, for instance, and they are incapacitated, it could literally stop the business from operating.”
For Andrea and her family, the key to this protection is to be found in LPAs. Andrea reports that all four of the business’ directors have
both personal and business Lasting Powers of Attorney, including herself and her brother Rob Kearsley.
For Andrea, the risks of not having an LPA in place are stark: “Bank accounts could be closed, key people could be unable to pay cheques, it would be impossible to invest in the business.
“In exactly the same way as a business owner wouldn’t go without a Will, they shouldn’t leave their business exposed by not having LPAs in place.
“It’s also important to appoint the correct person in relation to LPAs, someone who knows the business well and can make good decisions in relation to it. Without the correct planning in place, the delay in going to the Court of Protection could significantly affect the business.”
Louise Highton is director and specialist on the topic at Montpelier Chartered Accountants. She works closely with Napthens when advising businesses on such issues, and
points out the issue is not just about succession planning or making a Will.
It shouldn’t be left until later in life and be seen as something younger people don’t need to worry about. She explained: “This should be done by anybody who runs a business, no matter their age.
“Lasting Powers of Attorney are not just about age, they cover important issues such as accidents and becoming incapacitated and unable to make decisions about the business.”
She warned that when preparing an LPA, care should be taken to separate what is important personally from what is important to the business.
“In my experience one of the biggest issues is that people prepare one financial LPA which therefore covers both their personal finance, and business affairs.
“They end up with a situation where someone is appointed to take care of
everything but while they are capable to make personal decisions, they ultimately don’t have the experience or knowledge necessary to make decisions about a business.
“The person being chosen must be fully aware of what they’re getting themselves into. They’ve got to act in the best interests of the business. In some cases, where a business is part of a regulated industry, they too must be regulated.
“I think it’s an area that people just don’t think about but one that can have a catastrophic domino effect. What if someone was unexpectedly incapacitated and were a joint signatory on a bank account, with no plans in place to deal with the scenario?”
All the experts agree that with early planning and expert advice, the challenges of later life can be mitigated and made simpler for all concerned, whether for an individual, or for a business they control.
6 in:brief SUMMER 2016 www.napthens.co.uk
ask the expert / legal update / client profile:
ask the expert:
Inheritance disputes
Q: My partner passed away earlier this year. He was like a father to my daughter, although we never married. Are we entitled to anything from his estate?
A: The starting point is that your partner’s estate will be distributed in accordance with the terms of his last Will, if he had one, and if he did not, in accordance with the rules of intestacy which provide for the estate to pass to any spouse and/or certain blood relatives.
However, if there is no Will or there is but you and your daughter are not named in it, you may be able to bring a claim against the estate for reasonable financial provision if you lived with your partner for two years or more, or you had some financial dependency or co dependency on your partner prior to his death.
As your partner passed away after October 1, 2014, your daughter may also have a claim in her own right. Changes to the law were made in 2014 to enable a child who was not related by blood or legally adopted to bring such a claim – even where the deceased was not married to their parent.
The question is whether your daughter was treated as ‘a child of the family’ by your partner and whether he filled a parental role in her life.
Any claim should be brought within six months of a grant of probate or letters of administration being obtained in relation to the estate, so it is important to seek further advice quickly.
Nicola is a solicitor in the Litigation team. Specialising in inheritance disputes she advises beneficiaries, dependents, executors and estate administrators on any aspect of an inheritance or Will dispute.
Levity Cropscience is a business with a serious aim – to change the way our food is grown, to make farming methods more efficient and environmentally friendly.
Levity Cropscience
David Marks of Levity Cropscience
Appeals against parking fines in supermarket car parks had focused on the fine amounting to a penalty – as such, unenforceable in English law.
In construction contracts liquidated damages clauses (LADs) are a commonly used provision setting out a predetermined, quantified amount of financial damages. LADs work a bit like a parking fine – a contractor must pay LADs (usually a set sum payable per day, week/part of week) to an employer if it is late in completing under its construction contract.
The benefits of pre-agreed damages are that the employer does not have to prove it has suffered a loss or the amount, and the contractor has a limit on its liability and is likely to do all it can to complete on time. The downside is that LADs are the sole remedy for delay, so the employer cannot recover more loss for that particular breach.
Setting the amount of LADs to include in a construction contract is a balancing act between being substantial enough to cover all
And with two leading crop scientists – managing directors David Marks and Anna Weston – the dream of growing to be a £100m turnover business is one that doesn’t seem far-fetched.
Levity, based at Myerscough College near Preston with a small office at Lancaster University, has two main areas of research.
Nutrient use efficiency, to improve the efficiency of the minerals commonly fed to plants, such as nitrogen; and helping crops deal with the environment and weather, something which affects yields more than other challenges such as insects and diseases.
The company also works with customers supplying turf for golf courses and football pitches.
Such research takes time. David explains that the industry is currently dominated by large multi-national companies which produce around 70% of the products required.
predicted losses that might be incurred on late completion, whilst not being so high as to be considered a ‘penalty’ (a no-go in English law).
Until now, the legal test for considering the level LADs should be is that damages must represent ‘a genuine pre-estimate of loss’ that may be suffered. Though LADs are usually quantifiable in terms of loss of rent, or extended construction costs if a project dragged on past anticipated completion date, this has sometimes left a gap between financial and non-financial losses e.g. reputational risk or public interest in completing a project on time.
So, is it a positive step that the courts have updated the legal test for when a clause could be considered a penalty? In ParkingEye Ltd v Beavis [2015] UKSC 67, Mr Beavis brought the ‘penalty’ argument against a parking fine. He claimed £85 was not a genuine pre-estimate of loss because parking was free (so no loss of income from his overstay).
Initially unsuccessful, his appeal case was heard along with Cavendish Square Holding BV v El Makedessi where the court restated the ‘penalty’ test – a clause would only be considered penal if it is a secondary provision and ‘imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation…’
What does this mean in practice?
A fine or damages clause can be set at a level above any estimated losses (or no losses) if its purpose is to protect a commercial interest or a ‘legitimate interest’ and is not exorbitant.
In construction this may open the way for employers to set higher LADs. Damages may be set to protect interests such as goodwill or reputation. Difficulty will lie in valuing those interests in financial terms.
The facts in ParkingEye included third party interests in those ‘commercial interests.’ Does this
open the door for public interests to justify a high level of damages e.g. construction of schools, hospitals?
Judicial developments necessarily involve periods of uncertainty whenever a new legal test emerges. It remains to be seen whether this commercial freedom to quantify LADs is useful or will need further judicial guidance to settle into an easily interpreted test.
It can be a process of a year or two to prove that ideas work, with a lengthy testing and proving process before one of the company’s products – including its ‘smart fertilisers’ can go to market.
David, who has been advised by Phil Brown and Rob Dobson of Napthens’ Corporate team, said: “It is certainly challenging being in R&D and developing products in a market dominated by very large companies.
“We are now in the position where some of the products we are developing are showing good results and starting to hit the market. After a few years of relatively low turnover we now have products ready to go, with people starting to buy them.
“We’re facing rapid growth and hence taking on investment in order to allow us to get these new products to market and begin to grow our brand.”
In six months Levity Cropscience has grown from needing a staff of just two, to five people. The business is launching three new products
over the next month, with a further 12 development projects running, some of which will create multiple products.
With over 100 tons of product shipped this year in the Netherlands alone, the challenge now is to find new customers in new countries.
“We have big ambitions,” added David. “We don’t see why our products couldn’t be available in every continent except Antarctica in the next five years. Our products are outperforming the competition and we have strong interest in the market.
“Through organic growth and some products licensed we believe we can reach a turnover of £100million, which is small in comparison with the giants which dominate the market at the moment.
“Some customers are using our products without realising it, as we have licensed them out. This is one of our challenges – to make sure people know our brand – so we are looking to use distributors and business-to-business licensing to grow.”
www.levitycropscience.com
SUMMER 2016 in:brief 7www.napthens.co.uk
Face2Face / a guide to:
Nicola Mason is an HR consultant in the Employment & HR team.
The role of employer is ever-changing and growing and we are now seeing an increasing focus on individuals’ health and wellbeing – and the impact work can have on this.
We know when the peak times and priorities fall within our business so we should be proactive in preparing our employees for potentially difficult and stressful times.
By putting in place appropriate interventions in advance, we can sail through relatively unscathed.
Consider employee engagement initiatives such as summer parties, pizza Fridays (opportunities to get together more socially), complimentary fruit (added vitamins = less illness), TOIL (time off in lieu).
Could these ideas benefit your workplace, are they affordable, and will they support your business?
The world of HR is increasingly focusing on stress and resilience in an attempt to refocus employees’ and employers’ minds on this issue in the workplace. Employees experiencing stress can find it hard to ‘see the wood for the trees.’
The implementation of managerial coaching and mentoring techniques can help improve this, even through simple questioning such as:
• How are you feeling?
• What do you need to achieve?
• What have you already tried and what could you try?
• What impact will this have if this doesn’t go to plan?
• What can you stop doing (low priority, low impact), in order to help you achieve the business priority (high priority, high impact)?
• What support do you need?
These are just a few simple ways of increasing focus on health and wellbeing for employees.
Simon de Vere (SDV): The first thing is to define what we all mean by ‘infrastructure.’ To me, in addition to roads, rail and transport, infrastructure also includes schools, healthcare provision, public open space, recreational/leisure uses and other social facilities and services.
James Todhunter (JT): Agreed. Infrastructure covers a multitude of aspects and I would include connectivity and communications. Cumbria is delivering absolutely vital services such as power to the nation and water to the North West. We need a single, joined up plan for the whole county.
SDV: Cumbria’s economy is changing at a substantial level and pace. Nuclear investment is significant, with the Moorside Project and decommissioning as prime examples of an expanding industry. Non-nuclear businesses also continue to expand and develop within the region, placing ever-increasing demands on local infrastructure.
A key constraint for the delivery of major infrastructure projects in Cumbria, in addition to identifying and securing sufficient funding, is lead-in times for procurement and delivery. Competing schemes need to be prioritised.
JT: The biggest risk in my view is our attitude. We can be introvert and defeatist – citing our geography as a reason why things can’t be done, rather than challenging ourselves to prove they can be done.
Obviously the recent flooding and subsequent closure of major roads and bridges has devastated the county and painfully highlighted the frailty of our road network – something we have all known for a long time.
The closure of the A591 in particular, for almost six months, had a massive impact on families and businesses. There simply isn’t a plan B. Business owners found their income lost as the North Lakes effectively ceased trading as the millions of day/
weekend/holiday visitors couldn’t physically travel through the heart of the Lake District to their shops, hotels and restaurants.
SDV: It’s clear the floods continue to affect many people and businesses in the region, but perhaps the one positive which has arisen from such a tragic event is that it has dramatically increased the focus of central government on the county.
Visits from the Prime Minister, government ministers and senior civil servants from Whitehall have increased attention on the local economy and the challenges it faces. This should be welcomed as it places increased pressure on government to find solutions - doing nothing is no longer an option.
JT: One area of criticism I have heard from business owners is that Cumbria lacks a single voice in leadership. The Northern Powerhouse agenda is really gathering momentum and in key cities such as Manchester and
Liverpool there are powerful leaders at the top pushing the agenda hard. There seem to be many different organisations who are looking at the infrastructure – LEP for example – but how can it be co-ordinated for a successful outcome and county-wide representation is an important question.
SDV: The responsibility for improvements to local infrastructure must be shared between the public and private sectors, working collaboratively and in partnership.
But the window of opportunity will not remain forever and the region must seize the moment and create robust and compelling cases for securing action, decisions and additional funding to ensure the provision of all types of infrastructure is delivered in a timely and organised manner. Failure to act now whilst the spotlight of government is upon us is likely to result in the region falling short in meeting its objectives for significant and sustainable economic growth.
Simon de Vere (L) and James Todhunter (R) at Tebay Services, Cumbria
“…the window of opportunity will not remain forever and the region must seize the moment and create robust and compelling cases for securing action…”
FACE2FACE: Debating infrastructureJames Todhunter, Napthens’ Head of Cumbria, met Simon de Vere, operations director at property asset management and planning consultancy North Associates, part of the WYG group of companies, to discuss efforts being made to improve Cumbria’s infrastructure.
and finally:
It’s a gruelling physical test of endurance, but for Preston-based employment and HR solicitor Anthony Fox, the Ironman triathlon challenge is the pinnacle of his year.
Me and my...Ironman
Growing up a keen badminton player, at 19 Anthony decided it was time for a new challenge and embarked on running marathons. Completing his first race in Barcelona in 2010 gave him the running bug, leading to a second in Edinburgh and a third in Dublin.
You’d imagine all that practice stood him in good stead for one of the three disciplines of the Ironman triathlon. The worldwide endurance challenge comprises a 2.4 mile outdoor swim, a 112 mile cycle and a 26.2 mile marathon run.
Anthony has competed twice before, first in Bolton in July 2014 which he completed in 13 hours 35 minutes. “I was never a swimmer, so that was challenging. My training regime was around 10-12 hours a week and I lost a stone in weight,” he said.
He also competed in Tenby, Pembrokeshire last year, achieving
a time of 14 hours 35 minutes and is currently gearing up for his third challenge, again on home turf in Bolton in July.
For Anthony, the most challenging part is the training regime, involving early mornings and time away from his fiancée, and fitting it in around work.
His favourite leg is the 112 mile cycle, which by Anthony’s own admission is his strongest.
“One of my favourite pieces of equipment is a turbo trainer which I can use on my bike indoors during winter and means I can use my own bike to practice when I can’t get outside.”
So what is the ideal weather for such a feat of physical endurance? “Preferably between 12-15 degrees, overcast and a slight drizzle. Cloudy conditions are welcomed!
“I like the fact that I’m pushing myself all the time and it’s something to get my teeth into. Training is tiring but it’s always worth it when you cross the finish line.”
Anthony’s ultimate goal is to participate in the Ironman World Championship in Hawaii. It’s entry by qualification only, meaning participants of Anthony’s age need to complete an Ironman challenge in around 11 hours or less or register for the Legacy Program, but this involves completing a minimum of 12 Ironman events in 12 years.
“I’ve got a bit of work to do before I reach that, but if I can achieve a time of 12 hours at my next event, then I’ll be happy.”
Trade mark service offers new tool
New faces at NapthensA number of new starters have joined Napthens over the past few months in departments including Employment, Debt Recovery, Litigation, Corporate and Residential Property
Sarah Collier joined the Employment & HR Department as an associate solicitor, following the arrival earlier in the year of team members Carley Kerrs-Walton, Kate Shawcross, Katy Parkinson and Julie Duane.
Meanwhile, Michelle Geraghty joined the Debt Recovery team as a debt recovery executive working alongside manager Suzanne Dean.
The trade mark registration service offered by Napthens is expanding with a new online portal.
Trade marks are an important way for businesses to develop an identity and help customers recognise products and services.
The new portal, due to be launched by the end of July, will allow Napthens’ clients to log-in and track progress of a trade mark application being handled by the firm’s experts in the Corporate team.
The service will allow access to associated documents and provide helpful information around the trade mark registration process.
Phil Brown, solicitor in the Corporate Department, said: “The trade mark registration process can take around three or four months which can feel like quite a long time, so it’s extremely useful for clients to be able to see where the process is – what documents have been submitted, what is being waited for or even to
Anthony Fox puts his training to the test
Solicitor Nicola Turner joined the Litigation team as a specialist adviser on inheritance disputes.
A number of new faces have also joined the Residential Property team as it continues to respond to client demand in a busy marketplace.
Finally, earlier this year well-known corporate lawyer Gareth McIntegart joined the Corporate team as a consultant. Gareth brings decades of experience in the Liverpool and North West markets, most recently with DLA Piper.
instruct our solicitors on a further application.”
“The service has always offered an online application process, but this takes the service a step further as we offer clients full access via an easy-to-use portal to all the information they need.
“This will be a major benefit, making the process even more efficient and allowing clients to stay up-to-date with any information they need.”
Napthens® is a registered trade mark of Napthens LLP.
Napthens LLP is a limited liability partnership registered in England and Wales: OC325775. The term “Partner” indicates a member of Napthens LLP who is not in partnership for the purpose of the Partnership Act 1890. A list of members is available from our registered office.
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