Please select the area you are interested in from the list below:

Commercial Property

I am intending to lease business premises. Do I need a solicitor to negotiate the terms for me?

Landlords and their Agents deal with business leases on a daily basis and you may not have the same level of experience.

Landlords often fall back on“Heads of Terms” agreed before a solicitor has advised a prospective tenant as a reason for not accepting a revision to the draft lease It is vital, therefore, that you instruct an experienced solicitor to assist you with negotiations before “Heads of Terms” are agreed with the Landlord or his Agent.

Why should I, as a prospective Tenant, employ a solicitor to advise me on the lease?

By entering into a lease you will be taking on obligations to the landlord, in particular, regarding repairs and for compliance with Regulations and Statutory provisions. Your solicitor is there to redress the balance between landlord and tenant and to make sure that you, as a tenant, are not taking on liabilities which are unfair or are particularly onerous.

Is the landlord or the tenant responsible for repairing damage to the premises which occurs during the term of the lease?

This would depend on the terms of the lease. However, whilst a tenant may not be directly liable for damage or repairs to the structure he may, indirectly, be liable if the landlord can recover such costs by way of a service charge.

What is involved in “contracting-out” of “security of tenure” under the Landlord and Tenant Act 1954?

The 1954 Act gives a tenant in most circumstances an automatic right to renewal of a tenancy at the end of the term. A landlord and tenant can agree that the security of tenure provisionsare “contracted out” of the 1954 Act. To do this a very specific procedure under the Act must be complied with, otherwise it will be invalid.

Can my pension fund lease business propertyto my business?

If you are intending to buy business premises you should consider whether it is beneficial to buy it in your own name and lease it to your business, in the name of your business or in a pension fund and the trustees lease it to your business. Normally the most financially and tax efficient way is to buy business premises in the name of a pension fund provided, of course, your pension fund has sufficient funds available for such an acquisition.

Does the Tenant have a right to leave before the end of the term?

Unless the Lease contains a specific provision allowing a tenant to terminate the lease term prematurely, a “break clause”, the tenant cannot otherwise terminate the lease. If a tenant holds over after the end of the term, the continuation tenancy can only be brought to an end by the tenant serving 3 months’ written notice. This gives the landlord an opportunity of finding a new tenant. Holding over by just one day can cause a tenant a real problem.

What are ‘restrictions on alienation’? How far do they usually extend?

A commercial lease invariably restricts the tenant from assigning the lease or sub-letting and there will be complex provisions in the lease which need to be considered very carefully. Once a tenant enters into a lease, the tenant’s liability, even if he has assigned the lease, will still continue until, at least, the end of the term. When a tenant enters into a lease he must be prepared to be responsible for the obligations under the lease for the whole term of the lease.

Commercial

What are my Duties as a Director?

Broadly speaking, your duties to the Company are:

To act within your powers;
To promote the success of the Company;
To exercise independent judgment;
To exercise reasonable care, skill and diligence;
To avoid conflicts of interest;
Not to accept benefits from third parties
To declare interests in proposed business

Further duties may be implied by common law and there are specific provisions requiring disclosure and shareholder approval (such as Directors loans and credit transactions, service contracts, Directors’ interests in shares and substantial property transactions).

How Will Company Law Change with the Introduction of the Companies Act 2006?

The Companies Act 2006 is due to come into force in October 2008 and (at over 700 pages) is the largest Act of Parliament ever passed. It will replace the Companies Acts 1985 and 1989 and other companies legislation. Despite its volume, many of the provisions represent a relaxation of the regime for private companies.

Private companies will no longer need a Company Secretary;
The entire concept of “authorised share capital” will be abolished,
Companies may issue as many shares as required;
Directors can give an address for service, rather than their home address;
Directors’ duties are set out in a code;
The rules on Directors’ loans will be relaxed;
Financial assistance for the purchase of a Company’s own shares is no longer prohibited and the “whitewash” procedure will no longer be required.

What do I need to think about when trading online?

The internet is often an effective way of marketing your business and offering goods and services to a wide customer base, but there are compliance issues and trading risks which some may not foresee. For example:

It is very easy to breach intellectual property rights (which may subsist in utilitarian text, illustrations and layout)
Unless you specify that English Law is to apply, you may find yourself subject to foreign law
Even if business is not transacted via your website, you need to include a geographical address and your VAT number
You should avoid hosting anything which may be defamatory and monitor any submissions to message boards
You must comply with the Data Protection Act when sending promotional e-mails
If you sell goods over the internet or by other ‘distance means’, your customers may have an automatic right to return goods as they have not been able to inspect before purchase.

Should I trade as a limited company?

The main advantage of a limited company is that you are much better protected as a shareholder than as a sole trader or partner. Sole traders and partners are liable for business debts, but shareholders in a limited company need only pay the value of any unpaid shares issued to them (usually very little). Banks will often require personal guarantees when lending to a limited company.

The price to be paid for limited liability is an increased administrative burden including the need to file annual returns and accounts. These accounts are available to anyone who wants to see them (including your competitors) on payment of a small fee. There is the potential for Directors to be personally liable for debts incurred whilst a company is insolvent.

Taxation considerations often play a very important part in making a decision to become “limited”.

Do we need a Shareholders’ Agreement or Partnership Agreement?

There is no legal requirement for shareholders or partners in a business to have a Shareholders’ or Partnership Agreement but there are many reasons why it is a good idea to have one, especially in family companies.

With no specific agreement, the general law along with the Companies Act or Partnership Act will affect any disagreement. These default provisions will probably not lead to the fairest outcome and will make a compromise much more difficult. In negotiating a Shareholders’ or Partnership Agreement many issues can be provided for at the outset, which otherwise would not have been contemplated.

Litigation

Somebody is suing me based on a complete fiction. Do I really have to defend this?

Yes. You ignore a Claim at your peril. Your Defence may well be that there is no valid claim and that it should therefore be struck-out, but you must file a Defence at the Court.

How do I start a claim?

Normally you would start a Claim by completing a Claim Form which can be obtained from your local County Court. You can also obtain a copy online. You will need to pay the appropriate fee which is calculated by reference to the value of your claim. Once issued the Court will serve it and you will be informed of the procedure.

What is an Acknowledgment of Service? What happens if I fail to file one?

If you receive a Claim which has been issued by the High Court or County Court there will be with it a document called “Acknowledgment of Service”. It is extremely important that you protect your position if you are intending to defend the claim by completing this fully (you will need to add in your date of birth) and returning it to the Court within 14 days of service. After that there is a time limit for filing a Defence. You need to make a photocopy. If you fail to acknowledge service within the 14 day period the Claimant can enter a Judgment on his Claim against you.

I have obtained Judgment. How do I get my money?

Once you have obtained Judgment then there are various means by which you can secure payment.

You could issue a Warrant of Execution for a Bailiff to attend on the debtor. You can make an Application that the debtor’s employer pays the debt by instalments out of the debtor’s salary. You could apply for an Order that the debt attaches to the debtor’s Bank Account or to a third party who owes the debtor some money so that you would receive the money owed to you direct from the bank or third party. One particularly powerful means of obtaining payment, though you may have to wait until a property is sold, is a Charging Order on the debtor’s property.

Bankruptcy or Winding up proceedings are also an alternative, although in that instance you would stand in line with the debtor’s other creditors.

A customer refuses to pay.

You should write to your customer and warn him that unless you are paid within 7 days you will take legal action. We will need to see all correspondence and invoices before writing a “14 day letter” to the debtor. Claims for less than £5,000 are dealt with by the Small Claims Court, which does not award costs, even to the winner.

Once judgment has been obtained, we would discuss the various enforcement options.

Someone has registered a domain name with my trading name in it and asked me to buy it back.

These people are called ‘cyber-squatters’ and they have been particularly active in recent years.

Domain names present a problem in intellectual property law. The word ‘polo’ for instance can be used in the real world for cars, confectionery and designer clothing but polo.com can only be the domain of one website. Cyber-squatters can often be dealt with by the Domain Registrar in accordance with the dispute resolution policy. We can help you to make representations to the appropriate Registration Authority and ask them to register you as proprietor.

If there is a genuine proprietorship issue, the Registration Authority may not register you as proprietor and proceedings may need to be brought for passing-off or copyright/trademark infringement, compelling the domain holder to hand-over control to you.

Private Client

What happens if I die without making a Will?

If you die without making a Will, you are “intestate” and the law will decide who inherits your assets. This may not happen in the way you would have chosen. Intestate estates take longer to administer, reducing the amount available to beneficiaries and it is likely that any opportunity to minimise inheritance tax will be lost. In extreme cases, your estate will pass to someone whom you have never met or even devolve to the Crown.

What happens to my business if I die?

This will pass with your other assets. If you have not made a Will there may be no-one with authority to operate the business bank accounts.

How can Inheritance Tax be avoided?

If you make tax-efficient Wills you can make sure to use all the available allowances. We regularly help clients to save tens of thousands of pounds in unnecessary tax.

What is a Deed of Variation? How can these be used to re-write somebody’s Will after their death? Can they be used where there is no Will?

It is possible, within two years of the date of death, to make a Deed of Variation to re-direct gifts made in a Will, provided all the affected beneficiaries agree and they are over 18. They can be used where there is no Will, but they are more complicated and often less effective in these circumstances.

We own a property in Italy. Do I need to write this into my Will? Do I need an Italian Will?

If you own a foreign property you should make a Will in the country where that property is. Their rules in inheritance tax may be different from ours.

Can my house be sold to pay nursing home fees?

Yes, if there is no-one else aged over 60 living in the property. Tax efficient Wills can also be used to protect your assets against nursing home fees.

Can my Will be ‘challenged’?

Your Will may be challenged if you have not made provision, or sufficient provision, for your spouse or partner or a dependent child. If your Will appears unfair on the face of it, a disappointed beneficiary may claim that you lacked mental capacity to make a Will. We can help you to record your reasons for your decisions so that such a challenge can be resisted.

I have married/divorced since I made my Will? Does it need to be changed?

A marriage automatically revokes your Will. A divorce will revoke any gifts to your former spouse and any appointment of that spouse as your executor but otherwise the Will will stand. It is a good idea to review your Will in light of any major change in circumstances.

Can I inherit debts?

You can inherit debts up to the amount you receive from an estate, but your own assets will not be at risk.

Family

We are Unmarried. Do We Share Parental Responsibility for the Children?

Mothers automatically have parental responsibility, whether married or unmarried.

Fathers who are married to the Mother when the child is born automatically have parental responsibility.

Fathers, who are not married to the Mother when the child is born do not automatically have parental responsibility.

If the Child is born before 1st December 2003

An unmarried father can obtain parental responsibility by:

marrying the mother;
by entering into a parental responsibility agreement with the mother;
obtaining a Parental Responsibility Order from the Court (this can be applied for, if the mother will not agree to enter into a parental responsibility agreement);
obtaining a Residence Order from the Court; or
becoming the child’s guardian, if the mother dies.

Also, if the child was registered before 1st December 2003 and the father was not named on the birth certificate, then the child can be re-registered to include the father's name. Once this has been done, the father will have parental responsibility.

If the Child is born after the 1st December 2003

An unmarried father will have parental responsibility if he is registered on the birth certificate.

My Husband has had an affair. When we divorce, will this be taken into account when the Matrimonial Assets are distributed?

Whilst it is distressing that your husband’s actions have led to this situation, the affair is not taken account of when distributing the matrimonial assets, even if it is cited as grounds for the divorce. The only conduct which is taken account of is financial, so if he has hidden assets or used assets unnecessarily, this may be taken into account.

What is a Deed of Separation?

This is an agreement between husband and wife, who do not currently wish to divorce, but wish to sort out the financial side of their separation now as opposed to waiting for the divorce. They record how the finances are to be split and confirm that no further claims will be made against the other, if or when they divorce at a later date.

Full disclosure of financial information should be given and both parties should have independent legal advice.

Deeds of Separation are not sanctioned by the Court and as such are not watertight to prevent one party making a further claim against the other. However, such a claim is unlikely to succeed, if both parties have had advice and there has been full disclosure.

Does the Party Who the Children Live With, Automatically Get The House?

All the family assets are looked at, being the individual assets of each party and those which are joint. The assets are then divided between the parties. Whilst the party with care of the children may get a greater percentage split of the assets, this does not mean that they automatically get the house. The other party may buy them out or the house may have to be sold. Each settlement is individual to the parties needs and on the basis of the assets available.

The House is in My Former Partner’s Name, but I made the Mortgage Payments and Paid for a New Kitchen, What Am I Entitled To?

When parties have lived together as co-habitees, but have not been married, the position is that on separation, each party is entitled to what they have put in. Therefore, assets in sole names remain the property of the person in whose name it is, for example bank accounts etc.

In respect of a house, which is in one party’s sole name, the other party, must show that they have contributed to the mortgage, upkeep etc, or that whilst it was always in one name, it was always intended to be considered as a joint asset, to enable them to make a claim against the equity in the property. Therefore, if you have evidence of contribution, you will be entitled to a share out of the property, equivalent to your contribution.

Employment

Employers

How Do the New Age Discrimination Regulations Affect My Business?

From the 1st October 2006, the Employment Equality (Age) Regulations have made it unlawful to discriminate against workers, employees, job seekers and trainees because of their age and will have a significant effect on employment practices, particularly on the way employees are recruited.

An advertisement for a post will have to be worded carefully, so as not to infer age discrimination (this would include requiring a number of years’ experience).
Application Forms should not require any age-related information.

The payment of benefits for long service may also be discriminatory.

How retirement is dealt with will also have an effect on a Business. There is however a default retirement age of 65, so an employee can be retired at 65 and this will be a fair reason for dismissal. However, the employee must be notified of the compulsory retirement date and inform the employee of their right to request to work beyond that date, between 6 and 12 months before the due date. There is no obligation on the employer to grant the request, if made.

How Do I Make an Employee Redundant ?

In order to make an employee or employees redundant the following procedures should be followed:-

The jobs at risk should be identified and the selection criteria should be applied;
The people whose jobs are at risk should then be notified that they are at risk of redundancy;
there should then be a period of consultation :-

the employees at risk of redundancy should then be called to a meeting;
the position should be explained to them, including details as to why their job is at risk, what payment they would receive if they are selected;
they need to be advised that they have entered a consultancy period;
alternatives to redundancy need to be considered (to include whether there are other positions within the organization);

A further meeting should then be set up;
At the end of the consultancy period a decision must be notified to the employee as to whether or not they have been selected for redundancy, this should be confirmed in writing and state when it will take effect from and how much they will receive by way of a redundancy payment.

An employee is entitled to request reasons as to why he or she has been selected and to see the selection criteria.

What are the Entitlements on Redundancy?

On redundancy an employee who has been employed for two years or more is entitled to the following:-

Full notice pay in accordance with their contract of employment and/or statute, being the greater of the two;
All benefits up to the date of termination (subject to usual deductions);
All accrued holiday pay up to the date of termination (subject to usual deductions); and
Statutory Redundancy Pay.
Some Businesses will also pay an additional payment on redundancy (an ex gratia payment).

How do I Conduct a Disciplinary Meeting?

If an employee is to be the subject of disciplinary action, the following procedure should be followed:-

The employee should be notified in writing that they are to attend a disciplinary meeting.

The letter should include the following details:-

The date and time of the meeting;
That it is a disciplinary meeting;
The conduct or incident that is the subject of the meeting;
Inform of rights to be accompanied by a work colleague or trade union representative.

The letter should also enclose the Business’ Disciplinary Policy and Procedure;

The meeting should be conducted by the employee’s immediate line manage (unless he or she was involved in the incident);
Notes should be taken at the meeting and the employee has a right to receive a copy of those notes;
After the meeting the employee should be notified in writing of the outcome

Verbal Warning; or
First Written Warning; or
Second Written warning; or
Dismissal.

The outcome will depend on factors such as the seriousness of the incident or conduct, whether it is a first offence or not.

The notification of the outcome should also include details of the employee’s right to appeal, including date by when this should be done and to whom the appeal should be addressed;
If an appeal is received (which should state they wish to appeal and their reasons), a date for the appeal hearing should be set and the employee notified in writing in the same way as the first meeting;
The appeal should not be heard by the person who initially dealt with the disciplinary hearing;
The outcome will then again be notified to the employee writing. This will state whether the outcome of the disciplinary has been upheld or not;
If the appeal is successful, the employee must be notified of the removal of any warnings or of re-instatement.

How do I Conduct a Grievance Meeting?

If an Employee raises a Grievance, the following procedure should apply:-

A full investigation should be undertaken, in respect of the employee’s grievance;
A meeting should take place;
The employee should be notified in writing that they are to attend a meeting to discuss their grievance.

The Letter should include the following details:-

The date and time of the meeting;
That it is a meeting to hear their grievance;
The details of the grievance should be confirmed;
Inform of rights to be accompanied by a work colleague or trade union representative.

The letter should also enclose the Business’ Grievance Policy and Procedure;

The meeting should be conducted by the employee’s immediate line manage (unless he or she is the subject of the grievance);
Notes should be taken at the meeting and the employee has a right to receive a copy of those notes;
After the meeting the employer should make any further investigations required as a result of the meeting and then the employee should be notified in writing of the outcome

That the grievance has been proved and the action which will be taken as a result or
That the grievance has not been proved, and the employee’s right to appeal the decision, including date by when this should be done and to whom the appeal should be addressed;

If an appeal is received, a date for the appeal hearing should be set and the employee notified in writing;
The appeal should not be heard by the person who initially dealt with the grievance hearing;
The meeting will be conducted in a similar manner;
The outcome will then again be notified to the employee writing. This will state whether the original decision has been upheld or not;
If the appeal is successful, the employee must be notified of any subsequent action that will be taken.

Why Do I need to give My Employees a Contract of Employment?

An employee regardless of the number of hours they work per week is entitled by Law to receive written terms of employment within 2 months of commencing their employment.

The Contract should describe the main terms of the employment and must by Law include the following:-

the names of the employer and the employee;
the date the employment commenced;
the amount of pay and how often payment will be made, for example, weekly or monthly;
the hours of work;
holiday entitlement, including how many days off the employee is entitled to and what the holiday pay will be;
how much notice an employee is entitled to if dismissed and how much notice an employee must give the employer if they want to leave the job;
the title of the job;
where the job is based, for example, whether the employee will have to work in more than one location
what the disciplinary, dismissal and grievance procedures are in the workplace
what sick pay the employee is entitled to
whether the employee can join the employer’s occupational pension scheme, if there is one.

Individuals

How Long Do I Have to Make a Claim in the Employment Tribunal?

Most claims to Employment Tribunals must be made within very strict time limits. In most cases the tribunal must receive your claim within three months. This three months begins with the date your employment ended or when the matter you are complaining about happened.

This means that if it happened on the 1st June, the tribunal must receive your claim on or before the 31st August. If it happened on 15th June, the tribunal must receive your claim on or before the 14th September.

In certain circumstances, for example, when you write to your employer within the original time limit raising a grievance, these limits will be extended by three months - in other words, in most cases to six months.

The circumstances in which the time limits are extended are few, so it is advisable to seek early advice.

Can You Advise Me During the Internal Disciplinary/Grievance Procedure?

You can take advice at any time. However, it is unlikely that we would be able to attend any of the meetings with you, as whilst you are entitled to be accompanied, it is usually limited to a work colleague or a trade union representative.

Do I Need To Tell My Employer That I am Taking Legal Advice?

You are not obliged to tell your employer that you are taking legal advice.

Haworth Holt Bell

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