Willans LLP ı solicitors Law News Newsletter for commercial clients Spring 2015

Chambers 2015 – leaders in their field

We are pleased to report another good showing in Most of our departments and 11 lawyers have been Chambers, the annual independent legal directory. It ranked. New entrants to the individual rankings researches the UK legal scene, conducting interviews for their work are litigation partner Paul Gordon, with lawyers, clients and business contacts and company commercial partner Theresa Grech, compiles a list of recommended firms and lawyers. the “open, friendly and diligent” wills, probate & trusts associate Ruth Baker, “pleasant, straight- For the first time our intellectual property department is talking” agricultural partner Frank Smith and the acknowledged to be one of the best in the county, with “very professional, knowledgeable and attentive” an impressive tier one ranking. Our employment and commercial property partner Nigel Whittaker. family/matrimonial lawyers are also ranked tier one.

HR Legal Toolkit introduced at the Business Show

We have joined forces with HR software specialists the likelihood of litigation. This service provides a ‘one- Cloudtamers and developed an innovative software stop shop’ for businesses with staff in and Law News is now solution to help HR managers, and those with line Wales – no matter what the size or industry. available electronically. management responsibility, to manage human If you would prefer resources more efficiently and to mitigate employment Come and visit us on stand CA5 near the to receive it in this law risks. We will be launching this new module at Entrepreneurs Bizaar at The Gloucestershire format then please let The Gloucestershire Business Show in May. Business Show on 13 and 14 May 2015 at us know, email us at: Racecourse. [email protected] Cloudtamers Ltd has been working with ERP, HR and payroll solutions since 1991 and helps organisations keep track of their most valuable assets: customers, employees and finance. In 2013 they developed HR management software which covers the entire employment lifecycle, from recruitment, through retention and reward to release. This powerful cloud- based system can assist businesses globally – and it is Cloudtamers all contained within one system. HR Legal Toolkit

The ground breaking new element, HR Legal Toolkit, Official legal provider

integrates with Cloudtamers HR software and creates CMYK CMYKCMYK a seamless system to guide users through approved HR processes – from recruiting to performance issues Process Document Legal templates library helpline or dismissal – thereby controlling spend and reducing

PANTONE 321PANTONEPANTONE 321 321

Top tips for trustees Conflicts of interest The essential trustee Annual return 2015 Public benefit reporting On 1 May 2014, the Charity On 25 November 2014, a The updated online return A reminder that trustees of

Commission updated new version of the Charity is now ready.HEX #3A99AA AllHEX #3A99AAHEXregistered #3A99AA registered charities must their conflicts of interest Commission’s “The essential charities with an income of state in their annual report guidance; it contains a trustee” guidance was more than £10,000 and all how they have carried out revised definition and published. It is due to issue CIOs who are reporting on the charity’s purposes for introduces a three-step a final version in Summer their financial years ending the public benefit. approach to handling 2015 following recent in 2015 must complete the Kate Hickey conflicts of interest. consultation with trustees. online form. [email protected]

www.willans.co.uk Page 1 Law News

Trustees of charities – is CIO status for you?

Since The Charities Act 2011 introduced the new form of legal entity, known as a charitable incorporated organisation (CIO) 3,426 charities have registered as CIOs.

Unless a charity is purely grant making, its activities The Charity Commission said some while ago that it almost certainly involve a level of risk, which may was going to introduce a straightforward procedure create personal liability for the trustees. It is possible for trusts to convert to CIOs. We are still waiting to give considerable protection to the trustees by for these regulations to be issued. Until then the incorporating the charity as a company limited by way to proceed is to incorporate a new charity in guarantee or a CIO. the form of a CIO; transfer the assets from the old charity and then dissolve the unincorporated charity. CIOs are increasingly popular although their power This process involves drafting a new constitution for to borrow money is limited, since there is no register the CIO and then applying for registration to the of charges at the Charity Commission for a lender to Charity Commission. Once the CIO is registered, an give notice of its security. However, a CIO is a separate agreement is prepared to transfer the assets of the Kate Hickey – a legal entity in its own right and enjoys a simple original charity to the new CIO. corporate lawyer with regulatory regime, since it only has to register with, a charities & not-for- and report to, the Charity Commission. Care should be taken over the transfer of existing profit sector focus. contracts (including employment), since a change of By contrast, a company limited by guarantee has to control may be triggered or novations and registration comply with two sets of regulations – those under of property may be required. Once the asset transfer company law and those under charity law. A CIO is able has been completed, the original charity is dissolved. to hold property itself and does not require trustees to hold property on its behalf, thereby avoiding the need Kate Hickey to document assignments of property or contracts [email protected] every time there is a change of trustees.

Business immigration – how we can help

With immigration a key political issue ahead of the Our employment team provides a full service to upcoming general election, businesses can often employers, from advising on business visitors and find themselves on the front line of the debate. international assignments, to the tiered points-based Therefore, it is vital that they ensure their recruitment system. We can also assist overseas companies processes are in line with statutory requirements. looking to transfer employees to the UK.

Employers are increasingly relying on overseas workers We can help companies obtain sponsorship under to provide the skills they need for their business, the points-based system and provide practical advice and immigration clearance for key employees can on using the sponsor management system. therefore be crucial for a business to succeed. Business immigration can play a key role in a Following the introduction of the points-based company’s workforce. We go the extra mile to Matthew Clayton – system, employers are required to do more than provide practical and business-focused advice to help Chambers UK say: “is ever to comply with immigration regulations, or face businesses achieve their commercial goals in a cost responsive, commercial, significant penalties for employing illegal workers. effective way. understands where employers are coming It is important that a business puts in place the correct Matthew Clayton from and gets right to procedures and trains recruitment staff to operate [email protected] the point.” them to ensure compliance and avoid any penalties.

Client news National shelter and a number of shops for Dispute resolution partner, homelessness charity them but they have now Paul Gordon obtained a Shelter has instructed appointed him to look favourable judgment for commercial property after a portfolio of 66 UK company Excelerate associate Alasdair shops and 20 offices Technology. They recently Garbutt to manage the around the country. won a costs order on majority of its property account of over 90% of in England. Alasdair their budgeted costs; a has previously handled very good day in court.

Page 2 www.willans.co.uk Spring 2015

New company name and trading disclosure regulations cut red tape for businesses

New regulations which came into force on 31 The regulations implement the following: January 2015 have made it easier for companies and • the list of characters, signs and symbols that LLPs to choose or change their name. can be used in a name is extended. Previous regulations required a company name to consist The Company, Limited Liability Partnership and of letters from the roman alphabet and a small Business Names (Sensitive Words and Expressions) number of additional characters. The characters Regulations 2014 introduced a reduced list of words have been extended to include “@”; “&” “£” “$” and expressions, for which companies, LLPs and and “€” amongst others. businesses need approval of the Secretary of State to use in their name. The ‘sensitive’ words that • the words to be considered or disregarded when have been deleted from this list include “National”, determining if a proposed name is the ‘same as’ “Board” “European”, “Group”, “Holding”, another in the registrar’s index are amended. Theresa Grech – “International” and “”. • the trading disclosures requirements are wide experience amended, so that if at least six companies share of corporate and Having to seek approval for a name can hold up an office, place or location, their registered company matters, and registration. The aim of reducing the list is to allow names may be held and made available for a specialist in data a greater number of new companies to incorporate inspection at that venue, rather than the name protection and IP. quickly without delaying the process. having to be displayed at all times.

The Company, Limited Liability Partnership Further details of these Regulations can be and Business (Names and Trading Disclosures) found at www.legislation.gov.uk Regulations 2014 replace five sets of regulations and deal with restrictions relating to the registered Theresa Grech names of companies, LLPs and business names, and [email protected] the requirements for making trading disclosures.

The new fees for money claims Big business quiz – save the date 19 May

Large increases in court fees were introduced in Calling all keen quizzers! Our annual March. If a money claim is below £10,000, then the charity quiz will be court fees are unchanged, but for those above, the held on Tuesday court fee will be 5% of the value of the claim. This 19 May at National will be capped at £10,000 for a £200,000 claim, Star in Ullenwood, and those lodged via Money Claim Online will have Cheltenham. A a 10% discount on fees. fantastic quiz night, it provides This increase has caused great concern to both great networking the Civil Justice Council and senior judges, who opportunities, as argue that it may limit access to justice and prevent well as prizes for the best team. equality before the law. Amy Gates – handles disputes arising out of Contact There is now a proposal to raise the court fees for [email protected] possession claims by £75. commercial contracts, property and landlord or call 01242 542916 to sign up a team of 4. and tenant matters. Amy Gates Cost is £50 per team. [email protected]

Dispute resolution following the termination Rural legal experts the Land Registry that lawyer, Nick Southwell of an agreement. We Frank Smith and the evidence provided successfully acted for Mr recovered damages Rupert Burchett was deficient. Horrocks in a breach of together with indemnity defeated an contract claim against costs for Mr Horrocks. application to register Bank House Investment manorial rights over Management Ltd for a client’s farmland fees and commissions in Gloucestershire, which were due to him successfully arguing to www.willans.co.uk Page 3 Law News

Should you settle a claim early to restrict costs?

Litigation is a very expensive way of resolving of the sum awarded to him; costs on the indemnity disputes and it is not uncommon for the cost basis; interest on those costs and (as a penalty) an of issuing, or defending, a claim to exceed the additional percentage of the amount awarded damages. One way of trying to limit your exposure to costs is to use Part 36 of the Civil Procedure Rules. • The claimant loses – the claimant pays the defendant’s costs on the standard basis plus interest Under this rule one party makes a formal without from expiry of the relevant period until judgement prejudice offer to the other party to settle the dispute. It can be made at any time, whether or • The claimant beats the defendant’s offer – the not proceedings have been issued. If the offer is claimant is awarded costs on the standard basis accepted, the defendant is required to pay the claimant’s costs up to the date of acceptance. • The claimant fails to beat the defendant’s offer However if an offer is not accepted you should – the defendant pays the claimant’s costs on Nick Southwell – consider the cost consequences bulleted below. the standard basis up to the expiry of the offer; handles a variety of thereafter the claimant pays the defendant’s costs disputes and is focused Note that costs are awarded on either a standard on the standard basis plus interest on providing pragmatic or an indemnity basis. In the case of the former, and commercial advice to clients to achieve the party receiving their costs must prove the • The claimant loses at trial – the defendant is awarded results whether in reasonableness and proportionality of the amount costs on the standard basis plus interest from the negotiations or at trial. claimed. In the case of the latter, there is no expiry of the relevant period until judgement requirement for the costs to be proportionate, which means that it is for the paying party to show that the For the defendant in particular, where there is a costs claimed are unreasonable. concern over liability, and in order to protect their position on costs, it is important to put forward a • The claimant succeeds but fails to beat his own reasonable offer to settle the claim in accordance offer – the claimant is awarded costs on the with Part 36 as soon as possible. standard basis Nick Southwell • The claimant equals or beats his own offer – from [email protected] the expiry of the relevant period the claimant is likely to be awarded interest on the whole or part

Amending a contract? Remember the law against penalties

Commercial contracts often contain what is known provision was void as a penalty and unenforceable as as a liquidated damages clause. One party may have the sum was no longer proportionate. to pay the other a pre-agreed sum for failing to meet a particular obligation in the contract. To be This case is a useful reminder that, when varying enforceable such a sum needs to be proportionate the contract, you should think about the effect the and a genuine pre-estimate of loss, and should not amendment may have on the original liquidation amount to a ‘penalty’. damages provision. Is it rendered disproportionate and unenforceable? If so, the parties should also In a recent case, the High Court had to consider a consider varying the liquidation damages clause. contract which had been amended to substantially reduce the price payable for services under the Theresa Grech contract, but where the liquidated damages provision [email protected] had not been reduced. The court ruled that the

Client news Our wills, probate & #ChoicenotChance 25-50 age group. It trusts team recently encouraged people to is reported that this supported the Ministry think about what would group is less inclined of Justice’s campaign happen in the event of to consider making to highlight the their death or loss of a will, despite often importance of planning mental capacity. Through having young families, your future by making the use of social media or running their own a will and a lasting the MoJ aims to raise businesses on which power of attorney. awareness among the their families depend.

Page 4 www.willans.co.uk Spring 2015

Shareholders’ agreements – Why do you need one?

Whether you are a small company with two, or • set out what happens if a shareholder dies, by a larger business with multiple shareholders, it is implementing cross options, deemed transfer impossible to overstate the importance of having a notices or permitting transfers to family members properly drafted shareholders’ agreement. • place restraint of trade provisions on shareholders, restricting their ability to compete The agreement helps manage the relationship against the company. between directors and shareholders within a business, providing clarity and certainty and enabling Failure to put a shareholders agreement in place directors to focus on the running of the business means that there is greater uncertainty in the event whilst also providing protections for shareholders. of a dispute or if an unexpected event occurs. It is very important that a shareholders agreement In the absence of an agreement it will be much is a bespoke document, drafted to address the Peter Raybould – harder to resolve disputes between shareholders specific needs of a particular group of shareholders. handles mergers and quickly and cheaply. For example, the agreement can be used to: acquisitions, and advises clients on We must stress that an agreement does not • control the decision making capabilities of the general aspects of guarantee that disputes between shareholders will board of directors commercial law. be avoided. It does however, provide shareholders • set the dividend policy of the company with a security blanket, giving them assurance that if ever a problem arises they have a point of • put in place procedures which the company must New fact sheet reference which is likely to protect their interests. available – Company follow for share transfers or on a sale of the books checklist company Peter Raybould All companies are • protect minority shareholders’ interests by placing [email protected] required under the restrictions on dominant shareholders Companies Act 2006 to keep their company • determine what happens to his shares if books up-to-date. a shareholder becomes bankrupt or if his We have produced a employment with the company is terminated guidance note of the typical information you should include in your books which can be accessed from downloads on our website.

Rural news

Come and see us at the Cotswold Agricultural buildings and permitted Point-to-Point, 12 April development rights We are pleased to be supporting the Cotswold Local authorities have been slow to come to terms Point-to-Point on Sunday 12 April at Ossage Farm, with the new Class MB permitted development Andoversford, Gloucestershire. Come and visit us at right, which allows agricultural buildings under our tent for a glass of wine and other refreshments. certain circumstances to be converted into residential dwellings. Successful conversions are Careful lotting of farmland is required almost always only taking place where applicants to save SDLT appeal the initial decision. The Autumn Statement in December saw CAP reform – Basic Payment Scheme Specialist rural affairs wholesale revisions of the stamp duty land tax partner, Frank Smith is (SDLT) system. The changes will bring major 1 January 2015 saw the introduction of the Basic described by Chambers savings on residential transactions below £937,500 Payment Scheme (BPS) which replaced the existing UK as “a pleasant, but anything above that figure could result in a Single Farm Payment Scheme. Take care if you are straight-talking solicitor.” higher SDLT bill. thinking about restructuring your existing business to “fit” the new regulatory requirements.

To read Frank Smith’s articles in full, visit www.willans.co.uk/news

www.willans.co.uk Page 5 Law News

Employing an ex-offender – retribution or rehabilitation

Society believes that an offender should be punished Whether or not an employer can safely dismiss for their crime. However, it also recognises that someone will depend upon the circumstances. It is once the punishment has been served, the offender extremely unlikely that a dismissed employee could should be rehabilitated back into society having allege discrimination because they would have to rely served their “time”. upon one of the so-called protected characteristics.

The recent media coverage and furore surrounding However, if the employee has sufficient qualifying the case of footballer Ched Evans, who was service to bring an unfair dismissal claim, and the convicted of rape and imprisoned in 2012, has dismissal is based merely on the discovery that the placed the subject of employing offenders firmly in employee has a spent conviction, then it will not fall the spotlight. within the range of permitted reasons for a dismissal. Asim Khan – advises The issues faced by an employer in such a situation An interesting point for consideration is whether or individuals and will depend on the individual’s length of service, the not an employee who resigns because they are asked businesses on a full nature and seriousness of the crime, and whether to work alongside, for example, a convicted rapist, range of employment the conviction is spent or unspent. In all cases, the could have a claim of their own for constructive law issues. key to an employer successfully navigating this dismissal. An employer would need to be alive to this difficult area will be ensuring that they have a clear potential issue. and comprehensive understanding of their rights and obligations (if any) to the relevant individual, and It is important that employers avoid making knee- undertaking appropriate due diligence. jerk reactions and consider what bearing, if any, the offence has on the particular role in question. The Rehabilitation of Offenders Act 1974 prohibits an employer using knowledge of a spent conviction Asim Khan as grounds for excluding or dismissing a person [email protected] from employment. However there is no specific penalty provided for breaking the law here. Under the Exceptions Order, certain roles are excepted and examples include lawyers, teachers, police officers and those who provide health services.

Thomas Pink wins trademark court battle against Victoria’s secret

In Thomas Pink Limited v Victoria’s Secrets UK The court found that Victoria’s Secret’s use of Limited, the British shirt maker issued court “PINK” in the EU both on its products and as the proceedings for trademark infringement against name of its stores was an infringement of Thomas lingerie retailer Victoria’s Secret over the right to use Pink’s registered trademark. the word “PINK”. It is unlikely that this will open the floodgates Thomas Pink is the registered proprietor of the to allow other businesses in the retail sector to trademark “PINK”. Victoria’s Secret used a similar monopolise coloured names. The Thomas Pink logo as a sub brand and opened UK retail units. trademark is registered in a specific logo form (not the word itself) and it was a result of the trademark Victoria Secrets counterclaimed for revocation of having acquired distinctiveness with consumers, and the UK mark for non-use and invalidation for a lack being used as a brand for such a long time, that Partner Paul Gordon of distinctive character. The court had to consider Thomas Pink was successful in this case. – an experienced whether Thomas Pink could rely on use of the mark litigator and mediator, in a different form to that later registered. It is also interesting that as a result of the judgment used to handling in favour of Thomas Pink, the court awarded them complex commercial The court said that proprietors do not always 90% of their budgeted costs. proceedings, who has consistently use a mark in the precise form it is acted for many large registered. There was no good reason why European Paul Gordon corporate organisations. trade mark law should be so restrictive as to [email protected] require that the use relied on for a mark to acquire distinctive character had to be use of the mark as exactly registered.

Page 6 www.willans.co.uk Spring 2015

Are you dealing with your digital legacy?

£25 billion. That is the current reported figure of unclaimed digital assets in the UK alone.

What are digital assets? What should I do? There is no precise legal definition but commonly Most wills contain a clause dealing with personal they include: chattels. Computer hardware (eg the computer itself) • online bank accounts is a tangible asset and falls within the definition of personal chattels, but digital assets are intangible ones • photographs and videos stored online and therefore are not covered by the definition. • blogs and e-books • social media statuses and tweets We suggest you consider amending the usual personal • information contained in documents, such as emails. chattels clause in the will to include digital assets, or make a separate provision or leave them to be dealt Each internet service provider may have different with as part of your general residuary estate. Partner Simon Cook – policies for dealing with online assets on death. These a private client policies will have been accepted when the online To summarise, there are a number of important points practitioner with over account was created. A few examples are: to bear in mind regarding digital assets to ensure that 22 years’ experience, they do not add to that £25 billion: he deals with all • Facebook – since 2009 Facebook has allowed aspects of wills, accounts to be memorialised so that family and • Make a list of digital assets that have financial or probate & trusts work. friends can continue to post photographs and sentimental value. comments on a deceased account holder’s timeline. • Choose who should deal with the digital assets. However, logging into or editing a memorialised Remember this could include access to emails so account is not permitted. privacy may be an issue. • Google – since April 2013 Google’s inactive • Keep records of online accounts, usernames and account manager allows account holders to decide passwords regularly updated and separate from the how their stored data should be dealt with once will. Consider using a third party provider, such as an they have died. online password protection programme, to help. • Apple/iTunes – this is a licence only and there are • Make a will and consider your digital assets carefully. no rights to reproduce content. Account holders are prohibited from passing on details of ID and Simon Cook passwords to others. [email protected] • Apple/iCloud – these accounts are personal to the account holder and cannot be transferred on death. • Twitter – accounts terminate immediately on death.

Marketing calls – fines imposed

A first tier tribunal has upheld a monetary penalty This case serves as a useful reminder to businesses notice for £50,000 for failure to comply with the that they are legally obliged to check the Telephone rules on unsolicited direct marketing calls, as set Preference Service before calling individuals, out in Regulation 21 of the Privacy and Electronic without their consent, for direct marketing Starlight: carol Communications Regulations 2003 (as amended). purposes. Organisations need to keep up-to-date concert success and accurate records, evidence of staff training and Thank you to those A company selling UPVC windows and related compliance in relation to direct marketing. who attended our products to the domestic market made nearly 4 first carol concert last million telephone calls between May 2011 and Theresa Grech December which raised April 2013 of which some 80% to 90% were direct [email protected] close to £1,000 for marketing calls. The Information Commissioner local charity National relied on 524 unsolicited marketing calls, many Star. We received very positive feedback of which had been made to individuals who and will look to hold had registered their telephone number with the a similar concert later Telephone Preference Service. this year.

www.willans.co.uk Page 7 Spring 2015

Stay informed: 2015 employment law seminars

Our employment lawyers are running another To book series of their popular breakfast briefings aimed at Register for these briefings at events@willans. providing directors, HR managers/advisors and in- co.uk, supplying the name of attendee(s) and house lawyers with the top-line facts. seminar dates you wish to book, as well as your company details and telephone number. Venue Alternatively, please call us on 01242 542916. Cheltenham - National Star College, Ullenwood, Cheltenham, Gloucestershire GL53 9QU Dates and topics: 14 May 2015 Gloucester - Holiday Inn Express South Disciplinary processes – FAQs (Cheltenham) Gloucester, Waterwells Business Park, Quedgeley, Gloucester GL2 2AB Tuesday 22 September 2015 ‘Ask the expert’ - put your questions Timings to the speakers (Cheltenham) 7.30am - Registration, breakfast, networking and meet the speakers Thursday 19 November 2015 8.00am - Seminar Employment law changes this year and next (Gloucester) 9.00am - Close; further networking opportunity Thursday 26 November 2015 Cost Employment law changes this year and £15 per seminar (incl VAT). Receive a special rate of next (Cheltenham) £30 if three seminars are booked.

More news on our website www.willans.co.uk

Contact For advice on any of the issues covered in Law News or any other area of law, these are the people to contact in the first instance.

Company/commercial Property & construction

Paul Symes-Thompson [email protected] Nigel Whittaker [email protected]

Theresa Grech [email protected] Laurence Lucas [email protected]

Susie Wynne [email protected] Employment law Jonathan Mills [email protected] Matthew Clayton [email protected] Residential property Contact details Litigation & dispute resolution Robert Draper [email protected] Willans LLP | solicitors Nick Cox [email protected] 28 Imperial Square Cheltenham Divorce & family law Paul Gordon [email protected] Gloucestershire James Grigg [email protected] GL50 1RH Rural business, agriculture & estates 01242 514000 Frank Smith [email protected] Wills, probate & trusts [email protected] www.willans.co.uk Simon Cook [email protected] Charities & not-for-profit Follow us at @WillansLLP Margaret Austen [email protected]

Page 8