Specialist disputes solicitor, Alex Lyttle, will be bringing his expertise to Weston from September 2010.  Alex will be dividing his time between the Wards’ Weston office (on The Boulevard) and our Bristol City office.

Alex acts for a wide range of businesses and private individuals.  Areas of expertise include disputes ranging from breach of contract and shareholder disputes through to debt recovery claims, property disputes and a wide range of employer and employee employment matters.

Originally from Northern Ireland, Alex trained with Morrison and Masters Solicitors in Swindon, before working at Treasures Solicitors in Gloucester.  He joined at Wards last year, from Saunders Roberts Solicitors based in Worcestershire. 

He comments: “The Wards Weston office has always been important to the firm and I’m delighted to be joining the team there.  I think that it’s important for local people to get expert advice in a location that’s convenient to them.  Why should they have to travel to Bristol? I’m very much looking forward to getting to know the town and working with local businesses and individuals”.

There appears to be little let-up in the flow of press coverage relating to examples of legal costs in boundary disputes between neighbours reaching astonomical figures.  These disputes are usually fought with disproportionate ferocity, considering the value of the land, and regularly go all the way to trial, when most other disputes would have settled out of court.

Of all the possible arguments, disputes over boundary land seem to invoke the strongest primal instincts, often leading to an almost irrational “tunnel vision” mentality, where neither side will concede.  But this is hardly surprising when you consider that almost every war fought between neighbouring countries over the centuries has had a disputed boundary as the core issue.

There have been recent calls for legal professionals to try to force these disputes away from trial, towards being settled at mediation, but this may ultimately be a futile exercise.  Some disputes are just not appropriate for mediation. Where two parties have polar opposite views and winning is a matter of principle, in many cases, heavy discouragement as to costs risks seem to leave people unfazed in their determination to win outright.

During the management of a dispute a judge will always ask whether a mediation has been attempted.  Often, however, this is little more than a box-ticking procedure – merely a hurdle to leap before the trial can be listed.  For very good reasons the judge cannot know what occurred at the mediation and it might have been the case that both parties refused to move towards a negotiated settlement and sat there all day with their arms crossed!

The nature of these disputes undoubtedly accounts for a large number of them reaching trial.  Lack of clarity in this area of law is most likely another valid reason.  Recent cases have been decided using a variety of methodology and it is pure chance which way a judge will go.

The fact the loser pays the winner’s costs at the end of litigation can be an unfortunate prolonging factor in these cases. Parties feel forced to progress to an appeal as they simply cannot afford to lose.  In essence they are forced to gamble and go ‘double or quits’. Judges have full discretion to award a proportion of costs against the victorious party, if they feel that they have dragged their heals when they should have settled. That said, in the main they would need good reason to depart from the loser pays principle. Furthermore, boundary disputes are not usually cases where offers of financial sums are exchanged, so it is much harder for the judge to decide which party should have settled and when.

It is a basic principle of law that conduct after the creation of a contract cannot be an aid to interpreting the terms of that contract. In plain English, only information existing at the time the contract was created can show what the true intentions of the parties were.  This has meant that over the years, the exact placement of a boundary has been determined by reference to the plan and/or the description of the land noted in the transfer document.  Over the years, verbal descriptions have been phased out with sole reliance now being placed on the accuracy of the plan.  Leaving aside the issue of whether the plan has been drawn accurately in the first place, there is the problem that having been scaled down so much, a line of ink may represent a relatively large amount of land on the ground and as is so often the case with these disputes, the areas fought over are small.

The recent cases of Ali v Lane [2006] EWCA Civ 1532 and Haycocks v Neville [2007] EWCA Civ 78 were both decided in a very practical, common sense way which moved away from the strict approach of boundary interpretation.  The judges in these cases looked at features on the ground such as tree placement, historic fence posts and topography to decide the most likely intended boundary line.  This method of interpretation can only be used when the boundary plan or description in the transfer is ambiguous as to the precise location of the boundary.

But then in the case of Charalambous v Welding [2009] EWCA Civ 1578 when presented with facts very similar to those in Haycocks the judge avoided considering the shrubs on the ground as evidence of the boundary, finding them to be irrelevant. Although other factors came into it, the decision as to the exact boundary line was made purely by reference to a possibly inaccurate plan.

Two even more recent Court of Appeal cases of Bowler v Wallis [2010] Unreported and Huntley v Armes [2010] EWCA Civ 396 followed the same reasoning as Charalambous.  Both these decisions in the Court of Appeal overturned first instance decisions that located the boundary looking at ground features and again used the original plan for the property as the sole guide.

It has been said that a Supreme Court decision featuring one of these types of disputes would set a strong precedent for the methodology required to decide all future ones. This would lead to greater certainty of how each party would stand early on and would make it easier for legal professionals to advise on the likelihood of being successful.  The problem with this is that it can already cost hundreds of thousands of pounds for the loser in legal costs for the dispute to reach the Court of Appeal, so with the extra hours of preparation to get to the Supreme Court, the costs will be even greater.

Once clarity is achieved, the number of early settlements should go up but human history would indicate that it is unlikely people will stop fighting wars over what they claim is their land.

An increasing number of disappointed investors are making complaint, having been snared into “land banking” schemes.

Invariably, a cold call from a company with an impressive name prompts the private investor to show an interest in the concept of buying land on the hope that one day, it will be the next Cribbs Causeway or (dare I say) Bradley Stoke. Buy land – after all, they aren’t making any more of it!

The reality of many of these schemes is that a “developer” buys a farmer’s field for £10,000 and sells small parcels of it to 100 people for £10,000 each.

It’s easy to see how he makes his money – but usually very hard indeed to see how the “investors” will ever recoup their investment, let alone the pie-in-the-sky profits which the telesales callers predict. Sometimes land will be protected green belt, an Area of Outstanding Natural Beauty or even a Site of Special Scientific Interest – nevertheless it is touted as having “excellent development potential” for the future.

Anyone who has sat on a committee will be able to guess how hard it would be to get all of these “landowners” to work together on a planning application even if one were to stand a chance of success.

The promoters of these schemes will go to great lengths to take as much of their target’s savings as possible. Simply investing a little is not an option as the pressure mounts to buy more and more plots. People find themselves suckered into multiple land deals until they finally see the light.

The promoters will also try to make it easier for investors not to take independent legal advice on the matter – sending witnesses round to witness signatures for example, so that the investor is not at risk of mentioning this “wonderful opportunity” to a more sceptical neighbour or advisor. Keep it between ourselves, eh – don’t want to let everyone else onto such a good thing.

In these circumstances, a careful analysis of the legal and contractual position is called for. Robust letters followed by swift court action are often required to protect the investor’s rights. A thorough review of the sales process can identify chinks in the armour these people hide behind and go some way to recovering funds. Police involvement can be sought – but the schemes are careful to avoid scrutiny of the authorities wherever possible.

Until legislation brings this form of investment within the regulated Financial Services sector, investors should be careful to take full independent advice before parting with any funds. Those who have lost out to such schemes should have the process reviewed by an experienced Solicitor in case there is a prospect of recovering some funds.

The law has rapidly caught up with the development in electronic communications by broadening the scope of the rules to incorporate emails, text messages, blog posts and every other form of electronic communication into the category of documents that have to be disclosed in litigation.

The ease and speed of electronic communications have lead to the replacement of ‘talking around the water cooler’ with incriminating, permanent evidence that can be analysed in court.

The obvious solution to this ‘modern’ problem is to delete the sensitive messages, but the reality is that they can almost always be recovered.  The information is not easily accessible (in that the deletion process scatters the information around the ‘system’) but an expert can forensically piece the data back together.  In most cases, files are not truly deleted until the information has been overwritten.

The recent case of CPC Group v Qatari Diar Ltd brought into the spotlight the concern that parties to litigation delete relevant, disclosable emails to stop crucial evidence emerging and undermining their case at trial.

Qatari Diar had pulled out of a contract with CPC where they were appointed to redesign Chelsea Barracks.  It was widely assumed that this was because Prince Charles had openly criticised the modern architectural plans and had used his influence behind the scenes.  CPC wanted to prove that was the case by accessing email records between key employees that would expose their most candid discussions.

It transpired that the emails between the parties involved had been deleted and, although CPC did eventually manage to have them recovered from Qatari Diar’s computers, they arrived too late to be used against them at trial.  Luckily for CPC, the emails were not needed, on this occasion, to demonstrate that Qatari Diar had breached the terms of their contract.  However, in many other cases the contents of deleted emails would be required, to prove key facts.  On this occasion, the recovered emails did, however, show that witnesses had misled the court from the stand.

The process of recovery has to be undertaken by an expert and is time consuming and notoriously expensive.  The question arises: who will pay for these costs?  Generally, at the conclusion of litigation, the loser will pay the winner’s costs and document recovery can form part of this.  That is why an increasing number of litigants attempt to argue that the costs of recovering these documents are disproportionate to the matters in dispute, and this conveniently prevents them from having to disclose the documents that might ‘torpedo’ their case.

Judges are getting wise to this and despite the fact that ‘proportionality’ is still a crucial principle of the Civil Procedure Rules, there are judgements like Digicel where the Judge ordered the defendant re-do their whole electronic disclosure which cost them around £2 million.  As the Judiciary starts to realise the importance of these documents, to the facts in dispute, solicitors who fail to respond to these developments risk harsh treatment from Judges in the form of cost penalties.

Business owners are able to guarantee avoiding expensive document recovery exercises in the future by linking all the business computers and mobile communication devises to one server, which collects, orders and stores all these documents ready for potential disclosure.  The downside of this is that even the deleted emails would be collected and therefore proportionate to recover and disclose. This would facilitate easy compliance with disclosure requirements but would expose any underhand practices that the business may have undertaken.

The decision on whether to be totally transparent, or risk having to pay huge costs to recover deleted files, depends entirely on what a business has to hide.

James Murray is a trainee solicitor in the disputes team at Wards.  This article was written with Elizabeth Fry.

Introduction

It is a question nearly as old as employment litigation itself: If as an employer, I win at Employment Tribunal will I be able to recover my costs, from the employee who brought the claim against me?  As you may be aware the general rule is no.  The reason behind this is that when the legislation was set up it was thought that an employee would be put off taking action against the employer if they had liability for not only their own legal case but also that of the employer.  But is this now always the case? 

The law

Three recent cases have suggested that this hard and fast rule is being eroded in certain circumstances, they are “Daleside Nursing Home v Matthew”, “Dunedin Canmore Housing Association v Donaldson” and “Nicholson Highlandwear Ltd v Gordon Nicolson”.

Daleside was a case for race discrimination in which the central allegation was found to be untrue.  The Employment Appeal Tribunal held that on the finding that the main plank of the claimants case was a lie it followed that their behaviour was unreasonable and costs should be awarded.

In Dunedin the claimant brought a claim for breach of a compromise agreement.  The tribunal found that this was indeed untrue but did not award costs.  The Employment Appeal Tribunal found that as the claimant had not been either reasonable or honest then costs should be awarded.

Finally in Nicholson Highlandwear one of the tribunal explicitly stated that the claimant was unreasonable and dishonest, and once again costs were awarded. 

Conclusion 

The common theme in all the cases was that the employee was lying.  It is true that, generally, most employers are left with the cost of an Employment Tribunal and, unfortunately, nothing can be done, as they had no option but to defend the claim.  But if the employee lies on the ET1 and then lies to the tribunal, the cost to the employee could be a whole lot more than simply their time. 

Employers in these circumstances and where there is evidence should defend any claim brought against them vigorously.  Who knows the threat of costs may even be enough to persuade the employee to drop the case at an early stage

If you would like to talk through these issues then please do not hesitate to contact alex.lyttle@wards.uk.com

Introduction

With all the political shenanigans over the last couple of months, it is easy to forget that not everything has changed.  If matters proceed as planned the Equalities Act 2010 will come into force this October.  Though there is currently some discussion as to whether the new Government will go through with all or any of the Act, it is always good to be prepared. 

Purpose

The Act’s purpose is to simplify legislation by bringing together many disparate parts into one place.   The idea being, to make it easy for everyone to know what their rights are.  But is this all it does, or does it take the law any further? 

Positive Discrimination

Should the Act survive in its current form, then there will be a sea change in both the law and the way you have to do business.  For example, it brings to the fore the question of positive discrimination.  This is where, as an employer you would be able to employ one person rather than another, so long as they are from a group with a perceived disadvantage.  For instance if you have 2 people going for the same job, and they are both equally qualified and interview as well as each other.  However, if one is disabled in some way then you would be able to employ the disabled person on the grounds that disabled people are poorly represented in the workplace. Such positive discrimination is permitted but not required, in these circumstances.

Consequences

What relevance does this have to you?  Is there anything for you to worry about?

It could be that the Act as a whole is punted into the long grass and forgotten over time, or certain sections of the Act could be dropped.

Even if it does become law, it is arguable that the section on positive discrimination would, like much legislation, be seen as a good idea, but be impossible to enforce.

Or it could be that it does what the original intention was and enshrines the idea of positive discrimination into English law.

Whatever happens, it is it is important that you ensure that your disciplinary and grievance procedures, contracts of employment and recruitment procedures are up to date, so that if any changes arise, you have taken them into account in all your business documentation.   

If you would like to talk through these issues then please do not hesitate to contact alex.lyttle@wards.uk.com

SME and B2C marketing thinking has many ideas and theories about why and how people buy.

Sometimes we’ll buy an item or service because we trust the brand – think of John Lewis for example – but a great deal of business transactions are brought about by knowing, liking and trusting an individual.

There are a number of reasons for this.

It can be time consuming and expensive for a business to establish a corporate brand which is known, liked and trusted enough to bring business in of itself.

For many purchases however, people buy from people.

A potential client will want to engage someone who they feel they can get along with. Someone who “talks their language” or who they feel some empathy with – often in priority to the brand or organisation which that person represents. Also, the power of a personal recommendation cannot be overstated.

We’ve recognised this ourselves in the way our website introduces our lawyers as approachable people – not just lawyers but rounded individuals with personalities, senses of humour and – would you believe it – interesting lives outside of the office. Prospective clients can check us out online as individuals working together under the Wards banner. As a result, many new clients now come in saying that they feel like they know us already – even before stepping into their first meeting.

Bringing the personal element into a marketing strategy is increasingly important – and very fashionable – for those services where the customer or client has a high degree of personal interaction with a trusted advisor.

This is the reason why business and social networking sites are the focus of so much attention by marketing professionals at the moment.

Professionals are exhorted to build up their own following on Twitter, or to have as many LinkedIn, Facebook or Ecademy contacts as they can carry. When a need arises, or a tweet hits the spot, any of those contacts can ping off an email without the need to search for the right person, break the ice and begin building a relationship.

The initial stages of the relationship (knowing, liking, trusting etc) are already well underway by the time you are keeping up to date with what can sometimes seem to be the most tedious details of someone’s work and home life.

Somehow, knowing what someone likes on their toast for breakfast, or where they went on holiday, makes it easier for a Financial Director to consult them about an imminent threat to the profit & loss account

However, this can all have serious implications for the employer.

Building a business based on individuals and their own networks can bring appreciable risks to the information employers prefer to keep confidential – and information which they are under a legal duty to control.

For example: -

• The Data Protection Act requires data to be kept for specific purposes only. Using the automatic contact finders on some networking sites allows third party access to your Outlook contacts – which will almost certainly have detailed client contact information – putting you in breach of the Data Protection Act.
• An employee’s profile on social networking sites follows them from job to job. How can employers control what information appears on a former employee’s networking entries/contact lists?
• Many of these sites allow recommendations and reviews to be posted which follow the employee, not the employer. These need to be managed as they can reveal details about the employee’s clients which should best be kept confidential. Also, is the recommendation really for the business rather than the salesman?
• There are increasing concerns about privacy on Facebook and other such sites.
• Employers need to consider the extent to which their marketing strategy permits individuals, rather than the business itself, to build a following.
• Employees don’t need to print off Outlook contacts or sneak a memory stick out of the office to take their contacts with them when they join a competitor. A watertight restraint of trade clause is critical for businesses which are vulnerable to this sort of threat.

For these reasons employers need to:

• keep a handle on how employees promote businesses online & develop a policy about contacts;
• consider implementing a formal policy on what can and what cannot be uploaded – and what should happen to data and contacts if the relationship should come to an end; and
• carefully define confidential information in the contract of employment to minimise disputes when the employment comes to an end.

James Taylor is an Associate Solicitor with Wards Solicitors.

The activities of our new Coalition Government have been watched keenly over the past few weeks, particularly when they relate to our already fragile finances. Discussions have been well-publicised concerning potential changes in VAT, income tax, pensions and now Capital Gains Tax (CGT). With an emergency Budget due on 22 June, the fact that many plans still lack full details does nothing to put minds at rest.

The Coalition Agreement indicates that Capital Gains Tax will be increased to approximately the same rate as income tax. They have further suggested that there will be “generous reliefs” for entrepreneurial and business assets.

In Plain English:

• The CGT rate is set to rise from 18% to 40% (or even 50%)
• It isn’t clear when this will take effect
• A retrospective change from the beginning of this tax year seems unlikely
• The CGT rate could change for disposals which take place after the “emergency budget” planned for 22nd June.
• It has been suggested that the CGT rate will probably increase to 40% (or even 50%) from the beginning of the next tax year (i.e. for disposals after 6 April 2011)
• It has been suggested that there will be a lower rate for business assets (but a figure has not yet been confirmed)

So, what does that mean for you?

Although full details of the proposals are not yet available, we can help you with implementing some suggestions that have been made as to how you might prepare for this change.

Non-business assets

If you have non-business assets (for example a buy to let property) you may want to consider making a disposal or transferring equity before the changes come into effect.

If, as expected, CGT is raised to 40pc for non-business assets, someone who bought a £100,000 second home 25 years ago could pay an extra £56,000 in tax if the Government decides not to take inflation into account, according to recent reports. Most properties bought by private investors, such as buy-to-lets and holiday homes, are regarded as non-business assets and so would not be exempted from any rise in CGT.

If a third party disposal is not possible, there are other options to “bank” the 18% rate and it would be worth your discussing these with your financial adviser.

Business assets (including shares)

At present Entrepreneur’s Relief reduces the rate of CGT on disposals of business assets to 10%, but Entrepreneur’s Relief is only available on the first £2m and business gains in excess of that are subject to CGT at 18%.

Consequently, where the gain will exceed the £2m per person limit, there may be some merit in trying to complete company sales or the disposal of business assets before the general CGT rate increases. There may even be ways to “bank” the 18% rate and it would be worth discussing these with your financial adviser.

It is also possible that the “generous” entrepreneurial/business reliefs referred to in the Coalition Agreement will be more generous than Entrepreneur’s Relief.

What should you do if you’re worried?

As with all situations like this, your first call should be to an expert. They will be able to discuss all of your options with you, or direct you to a specialist who can help.

If you would like to discuss any of your concerns please contact:

Jenny Pierce – Trusts, Estates & Wealth Management
Bridget Juckes – Commercial

If you would like to consider selling your property please contact:
Susan Ellis – Conveyancing

Telephone: 0117 9292811
www.wards.uk.com

The background

Since 2007, sellers have been required to provide Home Information Packs (HIPs) when selling their residential properties. The contents of HIPs included property information, searches and energy performance certificates (EPCs).

HIPs are history….
The coalition government has suspended Home Information Packs (HIPs) with effect from 21 May 2010. However, energy performance certificates (EPCs) will still be required.

What is an EPC?
This is a certificate which will rate on a scale of A-G:

• How energy-efficient the property is, and
• The impact the property has on the environment.

The most efficient property that has the lowest running costs will come into band A. Recommendations are included in the certificate about ways to improve energy-efficiency, to save costs and environmental impact. Your estate agent is obliged to include these two ratings in the property’s sales particulars.

Who will obtain the EPC?
The duty is still on the seller to obtain this. Wards can assist if required and we have a panel of Home Inspectors committed to providing a very competitive and efficient service for our clients.

When must the EPC be obtained?
There is a new duty on the seller to have ‘commissioned’ an EPC before marketing the property. Previously the seller could not market the property unless a full EPC was available. The purpose of this change is to speed up transactions.

What does ‘commissioned’ mean ?
An EPC will be treated as commissioned when the seller:
• instructs an energy assessor to prepare an EPC; and
• has either paid for the EPC or given a clear undertaking to pay for it.
There is also a new duty on the person acting on behalf of the seller to be satisfied that an EPC has been commissioned before commencing marketing.
There is also a new duty on both the seller and a person acting on its behalf to make reasonable efforts to obtain an EPC within 28 days.

Do my estate agents need the EPC before they produce property sale details?
As before, there is a duty that written particulars for homes being marketed for sale include the EPC rating or have the EPC attached. However, the timing has been changed so that this is only required once the EPC becomes available.

What is the penalty for not providing an EPC – who will enforce it?
There is a fixed penalty of £200. Enforcement of these requirements is the responsibility of Trading Standards Officers. There are also penalties for not complying with the duty to commission an EPC before putting the property on the market.

If it is a private sale, is an EPC still required?
Yes, an EPC must still be provided to the buyer before contracts are exchanged

Can the EPC received in the HIP be reused when the home is sold again ?
Yes . Following the suspension of HIPs, all EPCs will be valid for 10 years.

If there was a HIP produced for the home prior to the suspension can the estate agent refuse to provide a copy?
Yes. There is no longer a duty on estate agents to provide a copy of the HIP to potential buyers.

Does this mean more expense for buyers?
Buyers will still receive the EPC from the seller but will now have to commission their own searches. These will typically cost in the region of £150 which is a relatively small amount in the context of overall transaction costs.

Will the suspension of HIPs slow down transactions?
In principle, the idea of having a full ‘sales pack’ early on in the transaction should assist and therefore, speed things up. To have a solicitor involved early also enables issues to be identified and resolved at the outset. The obligatory content of a HIP was however was limited and did not particularly help speed up transactions.

Sellers are however always well advised to gather information relating to their property prior to agreeing a sale, (regardless as to any regulations) in order to reduce delays.

And if we have any further questions?
Our extensive branch network means that we enjoy close business relations with local estate agents and other key professionals, and work together to provide successful and speedy property transactions for our clients.

For more information please contact Susan Ellis on 01275 850460

The Law Society has welcomed the new coalition government’s decision to suspend home information packs (HIPs). This provides an opportunity for the home buying process to be reformed to meet the real needs of the housing market.

Read more about HIPs here