Interesting Legal Snippets

Rail crash victim stabs another to death but cannot claim for consequences of his wrongdoing

2009-08-18T16:10:00.001+01:00

In the case of Gray v Thames Trains and others the Claimant had been a passenger injured in the Ladbroke Grove train crash in October 1999. Although he suffered minor physical injuries, he subsequently developed severe post traumatic stress disorder and depression. In August 2001, he became involved in an argument with a pedestrian and stabbed him to death.

Gray claimed loss of earnings as part of his claim against Thames Trains which included an element for future loss of earnings for the period after his arrest and detention.

It was accepted that, if it had not been for the negligence of Thames Trains, Mr Gray may have continued to live an uneventful life and therefore would have carried on in his job and earning wages in the future.

However, the House of Lords has ruled that he cannot claim for future loss of earnings because a claimant cannot base a claim or cause of action on their own wrongdoing.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Hearing loss caused by noise at work

2009-07-20T11:53:00.002+01:00

A Claimant has successfully sued her employer for moderate noise levels before 1990 and received compensation for this.

The Court of Appeal found in favour of the Claimant in Baker v Quantum Clothing Group and Others [2009] EWCA Civ 499. In this case the Claimant proved she had suffered from noise induced hearing loss. The Defendants were found liable under Section 29 of the Factory Act 1961 for damage to the Claimant's hearing sustained from January 1978.

It was found that from 1973 the defendants should have measured the noise in their workshops. If they had measured the noise they would have found the range between 85 and 89 decibels and they then should have arranged the provision of ear protectors which would not have been difficult or expensive to do.

From January 1988 the average employer will be liable in negligence for hearing loss if noise levels were between 85 and 90 decibels.

If you have suffered from loss of hearing due to noise at work which has been diagnosed in the last 3 years, please contact Isabel Elliott to discuss your potential claim.
Contact her on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Dog Owner not liable for injury caused after he unleashed his dog

2009-06-29T09:40:00.001+01:00

The Court of Appeal have recently held that, when considering cases where dogs have injured a person, they have to be satisfied that a reasonable person in the dog owner’s position would think that the injury caused by the dog was likely to follow from what he does or what he does not do. In the case of Whippey v. Jones, CA, 8/4/09 the dog handler was not liable because it was not unreasonable to unleash the dog when he did. It is not enough that the injury was a possibility, it has to be likely to happen.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Taking photographs - Privacy

2009-06-19T09:50:00.002+01:00

In January 2009 the European Court of Human Rights (EctHR) delivered judgment in the case of Reklos & Davourlis v Greece (App. No. 1234/05).

The facts are a bit thin but involve parents of a baby boy who was taken to a special care baby unit after he was born. Unknown to the parents the hospital allowed a photographer to take pictures of the baby. The photographs were later presented to the parents who were upset that the hospital had allowed the photographer access to their baby inside the unit. The clinic refused to hand over the negatives.

The Court found that taking photographs on this occasion violated the baby's right to respect for his private life.

The Court noted that the negatives belonged to the photographer, that the parents were refused the negatives and that the images might be exploited, contrary to the wishes of the baby or its parents.
This ruling suggests that consent of the subject to the mere taking of the photograph is crucial, not least because it presupposes a discussion as to the future use/exploitation of the image and by whom.

Adults can also object to their photograph being taken by others.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

What happens if..

2009-06-19T09:48:00.001+01:00

I become unable to manage my finances because of old age or ill health?

If you become unable to manage your finances because of mental ill-health – whether through increasing age and forgetfulness or as a result of accident – someone will need to step in to take over to administer your property and affairs.

While you still have mental capacity, you can choose who you wish to do this on your behalf by creating a Lasting Power of Attorney. This is a document under which you authorise one or more people you have selected to manage your property and affairs. It can come into operation straight away or it can be operative only at some future time when you have become unable to manage your finances.

You can impose conditions on your chosen attorney – for example, a condition that they may not sell your house or limiting the assets they may deal with. Subject to those conditions an attorney can do most things which you could do yourself. However they may not change your will without a court order.

A Lasting Power of Attorney has to be registered with the Court before it can be used. It is expected that it will be registered as soon as it is signed, so that in the event of you becoming incapable in the future, the attorney will be able to step in immediately to manage your finances for you.

There are safeguards in that notice of the registration has to be given to others- again, nominated by you- and once registered anyone who is concerned about the way in which the attorney is managing your affairs can notify the Court of Protection which regulates the conduct of attorneys and can intervene if need be.

An attorney has to agree to act and to be bound by the statutory principles which are intended to protect you and to help you to take part, as much as possible , in decisions that affect you.

If you do not have a Lasting Power of Attorney, anyone (usually a member of your family) may apply to the Court of Protection to have themselves, or someone else appointed as a ‘Deputy' who will be authorised by the Court to manage your property and affairs, under the supervision of the Court.

The Deputy will be able to do only what is authorised by the Court and may need to apply to the Court for guidance or further authority, for example if your property needs to be sold to fund care fees.

Like an attorney under a Lasting Power of Attorney , a Deputy is required to adhere to the statutory principles mentioned above.

Contact Gillian Scott on 020 8300 9321 or gscott@wmk-law.com alternatively Contact Us

Liability for horseplay amongst pupils

2009-06-11T10:36:00.002+01:00

The case of Orchard v Lee [2009] EWCA Civ 295 involved a collision between a lunch break supervisor and a 13 year old pupil who was playing tag in the playground with one of his friends. The Court found that if a game was being played in an appropriate play area and in accordance with the rules or accepted norms of the activity then the pupil would not be held negligent.

Therefore, if schools want to reduce risks of similar accidents happening, the onus will be firmly on the school to prevent or prohibit either the activity or alter the lay out of the particular environment to have designated zones or have obstacles to discourage speed. If the school takes these measures they must be regularly enforced.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

First Corporate manslaughter charge

2009-06-09T08:48:00.003+01:00

In April 2008 the Corporate Manslaughter Act 2007 came into force.

In September 2008 a Gloucestershire company was the first to be charged with the offence of Corporate Manslaughter in connection with the death of a young geologist on a building site near Stroud in Gloucestershire. The geologist was in a pit taking soil samples when the sides of the pit collapsed crushing the geologist to death.

In addition to the Corporate Manslaughter charge, a director has been charged with manslaughter and the company has been charged with an offence under the Health and Safety at Work Act 1974.
The director will appear at Stroud Magistrates Court on June 17 to face charges both as an individual and on behalf of the company.

If the company is found guilty it will be liable to pay an unlimited fine and the Court could impose a remedial order requiring steps to be taken by the company to address the failures that led to the death of the geologist.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Asbestos Claims: New Scheme for Mesothelioma Sufferers.

2009-06-09T08:45:00.002+01:00

From 1 st October 2008 people suffering from Diffuse Mesothelioma, an asbestos related illness, may be able to claim for a lump sum payment under a new government scheme entitled 2008 Diffuse Mesothelioma Scheme.

The Scheme aims to benefit those suffering from diffuse mesothelioma which was not contracted as a result of their employment, who are not entitled to claim by any other means and who have not received payments for their illness from any other source, ie: from an employer or from a Ministry of Defence Scheme.

People entitled to make a claim under the Scheme are those who have been:-

Exposed to asbestos via a relative (for example a wife washing her husbands work clothes)
Exposed to asbestos environmentally (for example by living close to a factory)
Exposed to asbestos while self employed
Exposed to asbestos but the exposure cannot be determined, as long as it was in the UK.

A dependant of a relative who has died of the disease can also claim under the Scheme.

The government aims to make 95% of payments within 6 weeks.

For the first 12 months of the Scheme anyone can make a claim no matter what date they were diagnosed. However, after the first year the claim must be brought within 12 months of the date of diagnosis, or 12 months of date of death in the case of dependants.

If you think you may be eligible you should therefore act as soon as possible to make a claim.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

What do you need in a Will?

2009-06-09T08:42:00.002+01:00

There are the obvious things – who do you want to inherit your money and property - and who do you want to ensure your wishes are carried out.

The people who you want to inherit are called ‘ beneficiaries' and your Executors are the people responsible for carrying out your wishes

So far so straightforward.

But what if you have young children or your beneficiaries are under 18 ? A properly drawn-up will can set up a trust for them, ensuring that your Executors have the power to use your money for the children's benefit; or can pass the money to their parents for them to look after for the children. And it can appoint guardians to look after your own children - responsible for their upbringing at a time when you are not there to do this yourself.

If you have a second marriage, you may need more complicated arrangements to ensure that a new spouse is provided for, but that assets which you may have inherited from an earlier marriage are protected and will ultimately pass to your children from that first marriage. This can be done by setting up a trust in your will.

You can also cater for the possibility of a family catastrophe- who would you want to inherit if tragic circumstances cause the loss of all your beneficiaries? By planning thoughtfully for a disaster which hopefully will never happen you can help your family avoid additional problems at a time when they have many other things to deal with.

Talk to our professional advisers to ensure that everything you need is in your Will.

Contact Gillian Scott on 020 8300 9321 or gscott@wmk-law.com alternatively Contact Us

Rent arrears - Landlord's remedies

2009-04-09T16:26:00.005+01:00

1. Court Action for Arrears of Rent and Other Sums Due

Before taking court proceedings a “letter before action” is usually served which is a demand for payment of the arrears within a specified period stating that failure to do so will result in Court proceedings for all sums due plus interest and costs.

Court proceedings are costly and may not be productive especially if the tenant were to enter into insolvency during the course of the proceedings, which would reduce the chance of obtaining payment in full.

2. Statutory Demand

If there can be no dispute as to the amount of money owed and it is in excess of £750, then a statutory demand requiring payment of all outstanding sums within 21 days, can be served on the tenant.

If such demand is served correctly and payment is not tendered within 21 days then a petition for the compulsory winding up of the company tenant/bankruptcy of the individual tenant can be presented.

This method should only be used if there is no possible dispute as to liability.

Whilst the delivery of a statutory demand can jolt a tenant into action, it can also force an otherwise solvent tenant into insolvency, thereby reducing the chance of obtaining payment in full for arrears of rent.

3. Forfeiture

Most leases provide for Landlords to forfeit the lease if the tenant is 14/21 (or such other period as may be provided) days late in paying the rent, even if it has not been formally demanded. Whilst forfeiture can be useful against a defaulting tenant, it will only be useful if the tenant actually wishes to retain its leasehold interest in the property.

This cannot be used if there is anyone living in any part of the property

Landlords should remember that this step could result in an empty property and no rental income until a new tenant is found.

Forfeiture can be obtained by:

a. Peaceable re-entry on to the property or

b. Obtaining an order of the court.

a. Forfeiture by Peaceable Re-Entry

Landlord's are not required to obtain a Court Order for forfeiture by peaceable re-entry and when the right of forfeiture is being exercised for failure to pay rent, n o prior notice is required to be given to the tenant.

Peaceable re-entry is where, without using excessive force, a Landlord enters on to the property and, usually changes the locks, barring access to the property of the tenant.

Whilst this is a relatively cheap and quick option it does have a downside. A tenant can make an application to the court within six months of the date that a Landlord re-enters the property for relief.

Landlord's taking this step will have an uncertain period of six months during which it may be difficult to re-let the property as there is the potential that the court could provide relief to the tenant thereby requiring re-occupation of the property, by the old tenant.

b. Forfeiture by Order of the Court

Landlords make an application to the Court for an order to re-enter the property which is then enforced as set out above.

It should borne in mind that even with a Court Order the Tenant can seek relief although the timescale within which to do so will be set by the Court.

4. Distress

This is a speedy and usually effective method to recover sums due, by entering onto the property and seizing movable goods to the value of the outstanding rent and towards the costs of the action.

Obviously this will only be as good as the sale value of the goods on the property belonging to the tenant.

A certificated bailiff must be employed to effect this action.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Infertile men allowed to claim compensation for destroyed semen samples

2009-04-02T09:40:00.002+01:00

In the case of Yearworth and Others v North Bristol NHS Trust [2009] EWCA Civ 37 the Court of Appeal ruled that male cancer patients could claim compensation against the hospital trust who had allowed their frozen semen samples to thaw through the hospital's failings.

Chemotherapy had damaged the men's fertility. Unfortunately the hospital had accidentally thawed the samples in 2003.

The men are allowed to claim damages for psychiatric injury and/or mental distress in bailment.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Home Information Packs

2009-03-19T08:31:00.003Z

As from the 6th April a property will not be able to be marketed unless the Home Information Pack contains :

Index
Sale Statement
EPC
Property Information Questionnaire
Office Copies and Title Plan
The Searches (Local and Drainage)
If Leasehold, a copy of the Lease

The Property Information Questionnaire is a new document for inclusion in the HIP and will be completed by the Seller and contain basic information about the property that is likely to be of assistance to potential buyers.

It is advisable to have a full, official Local Authority Search included in the HIP. Personal searches with insurance cover for unanswered information will not be valid from 6 th April 2009.

There are many companies who offer HIPs, but it is advisable to use a firm of Solicitors for the compilation of the HIP as we can provide you with legal advice regarding the completion of the documentation, including the Property Information Questionnaire.

A HIP is valid until the property is sold. There is no obligation to update any documents in the HIP whilst the property remains on the market.

If the property is sold, but the sale falls through the HIP is still valid provided the property is remarketed within 28 days of the sale falling through. If the property is NOT remarketed within 28 days a new HIP will be required.

If you do not market the property for sale and sell your property to a friend or a relative then a HIP is not required, but you must obtain an Energy Performance Certificate.

When you decide that you want to sell your property contact Woolsey Morris & Kennedy and we will be pleased to provide you with a quotation for the preparation and supply of your HIP and we can also act for you in the subsequent sale and any associated purchase at competitive rates.

Contact Ian Motton on 020 8300 9321 or imotton@wmk-law.com alternatively Contact Us

Rugby punch injury

2009-03-04T16:22:00.002Z

In the recent case of Gravil v Carroll and Redruth Rugby Football Club the Court of Appeal found the rugby club to be vicariously liable for a serious assault on the claimant.

Vicarious liability is the principle by which one person can be held liable for the conduct of another. The person held vicariously liable may be completely blameless but there must usually be some sense in which he has authorised the acts of the party who is at fault.

In relation to employment it is the general rule that it is the fact of employment that gives rise to the vicarious liability, not the actions of the employer who may be completely blameless.

In the case of Gravil v Carroll and Redruth Rugby Football Club the assault followed a semi-professional game of National League Division 2 Rugby Union when the first defendant, Carroll, punched the Claimant, Gravil, in the eye causing a blow out fracture requiring reconstructive surgery. The assault occurred at the end of the game after the whistle had been blown.

The Court of appeal held Carroll had been acting in the course of his employment when he punched Gravil. Not only was there a close connection between the punch and Carroll's employment but the punch amounted to a failure to perform his duty. There were provisions in his contract to deter foul play. This was a point in favour of vicarious liability and it was found fair and just to hold the club liable for the punch.

If you have suffered an injury caused by a professional or semi-professional sportsman or sportswoman please contact Isabel Elliott for advice on a personal injury claim.

Contact Isabel on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Payment Protection Insurance claims

2009-02-27T15:45:00.001Z

In late 2008 the Financial Ombudsman Service (FOS) announced reforms to Payment Protection Insurance.

By 2010 banks and building societies will not be able to sell the product to consumers alongside credit agreements, or for 7 days afterwards, with a complete ban on the sale of single premium policies.

Payment Protection Insurance can be mis-sold in an enormous number of different ways and can be made on policies dating back 6 years. This does mean the process of making a claim is often lengthy and complex. If a claim dates back to before 2005 when the Financial Services Authority (FSA) was appointed as regulator the Ombudsman does not have jurisdiction to deal with the complaint.

Tens of thousands of customers are seeking compensation from lenders and financial services providers who are each accused of mis-selling policies covering loans, pensions and mortgages. However, the success rate remains low.

Therefore, if you need advice with a Payment Protection Insurance you were sold please contact Chris Elliott to obtain a professional steer to help you succeed in the pursuit of a claim. We can increase your chance of success.

Contact Chris on 020 8300 9321 or celliott@wmk-law.com alternatively Contact Us

Are you at risk of wrongful trading?

2009-02-06T15:57:00.001Z

What is Wrongful Trading?

Section 214 of the Insolvency Act 1986 states that if it appears, when winding up the Company, that, at any time before the commencement of the winding up a director of the Company “ knew or ought to have concluded that there was no reasonable prospect that the Company would avoid going into insolvent liquidation ” then a court may order that director, or those directors, to make a contribution to the assets of the Company.

What should directors do to protect themselves from such claims?

Obtain professional advice in respect of any major decision to be taken by the Company with regard to measures to keep trading and insist that this advice is documented.
Hold regular board meetings with all directors present to review the financial position of the Company.
Circulate board minutes immediately after meetings, this will provide evidence of whether or not the steps taken by the directors minimise the potential loss to creditors of the Company.
Prepare a list of possible sources of funding for the Company and ensure that this is documented. This list will be useful in identifying when the Company had no reasonable prospect of avoiding insolvent liquidation.
Draw up a timetable identifying key dates and financial targets for the Company, if the key dates and targets are not reached in accordance with the timetable this will show that the Company has no reasonable prospect of avoiding insolvent liquidation and you must cease trading immediately.

What should directors avoid doing in order to protect themselves from such claims?

Do not allow the Company to take on new substantial liabilities, unless they are essential to the continuance of the Company and are in the best interests of the Company.
Do not wait for a winding up petition to be issued before realising that the Company is in financial difficulty. Ensure that you have up to date financial reports available at all times.
Do not ignore issues such as pressure from creditors; late filing of accounts or judgements being entered against the Company, this is a tell tale sign that the Company can not continue to trade.
Do not delay in raising with the board your concerns if you believe that the Company has no reasonable prospect of avoiding insolvent liquidation. This should be documented and financial and legal advice must be sought immediately.
Do not resign, you could still remain liable as you are required to take every step possible to minimise potential loss to creditors and as soon as you believe that you can no longer trade then one of the insolvency procedures i.e. liquidation or administration must be implemented.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Skiing accident in the Alps

2009-01-21T10:17:00.000Z

Graham Anderson was on a family ski holiday. It was their third ski holiday using tour operator Snowbizz. They were staying in Puy St Vincent. Mr Anderson was having lessons with a ski instructor Jerome Portejoie who permitted and possibly encouraged Mr Anderson to ski off piste when Mr Anderson hit into a tree and was seriously injured.

The UK High Court has ruled that the French Ski instructor should pay a substantial sum in damages to Mr Anderson. The Court felt that the potential for serious injury is clear when skiing off piste. The potential for serious injury when impacting with a tree is obvious and therefore the instructor should not have taken Mr Anderson off piste during his lessons.

A skier cannot relinquish all responsibility to an instructor. Adult skiers must say something to the instructor to avoid the suggestion that they are not taking sufficient care of their own safety.
The Court held that the ski instructor was two thirds responsible for this accident and that Mr Anderson was a third responsible for his own accident.

The Court warned that everyone recognises that skiing is inherently risky and accidents causing injuries, sometimes very serious, will occur without there being any negligence established.

It is estimated that Mr Anderson may receive in excess of £1,000,000, but damages are yet to be assessed.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Asbestos Claims: New scheme for Mesothelioma sufferers

2009-01-21T10:14:00.001Z

People entitled to make a claim under the Scheme are those who have been:-

Exposed to asbestos via a relative (for example a wife washing her husbands work clothes)
Exposed to asbestos environmentally (for example by living close to a factory)
Exposed to asbestos while self employed
Exposed to asbestos but the exposure cannot be determined, as long as it was in the UK.

A dependant of a relative who has died of the disease can also claim under the Scheme.
The government aims to make 95% of payments within 6 weeks.

For the first 12 months of the Scheme anyone can make a claim no matter what date they were diagnosed. However, after the first year the claim must be brought within 12 months of the date of diagnosis, or 12 months of date of death in the case of dependants.

If you think you may be eligible you should therefore act as soon as possible to make a claim.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Late Filing Penalties

2009-01-08T14:40:00.004Z

As you are aware the Companies Act 2006 (‘the Act') has been introduced in stages and the final implementation is not due until October 2009.

You may not however be aware that section 453 of the Act specifies that a civil administration penalty shall be payable if accounts are delivered late and permits the Secretary of State to specify the level of this penalty by way of regulations.

Section 453 comes into force on the 1 February 2009 and the current schedule of late filing penalties will be changed. Simultaneously the Government will amend the 1985 Companies Act (‘the 1985 Act') so that these changes will apply to accounts that have been prepared under the 1985 Act, but are deemed to be delivered late on or after the 1 February 2009.

The new table of penalties will be:

How late are the accounts delivered	Penalty – Private Company	Penalty Public Limited Company
Not more than one month	£150.00	£750.00
More than one month but not more than three months	£375.00	£1,500.00
More than three Months but not more than six months	£750.00	£3,000.00
More than six months	£1,500.00	£7,500.00

In addition to the above be aware that if there was a failure to comply with filing requirements in relation to the previous financial year (commencing on or after 6 April 2008) the penalty will be double that show above.

You should:

Check your filing date
If you have an accountant ensure that they are aware of the filing date and
Ensure that your Registered Office address is up to date so that you receive your reminders from Companies House.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Changes to the Home Information Pack requirements

2008-12-22T09:16:00.002Z

The Government has recently announced further changes to the Home Information Pack (‘HIP') which are due to become effective on the 6 th April 2009.

It has introduced a Property Information Questionnaire (‘PIQ') to be included in all HIP's for properties marketed for sale after 5 th April 2009. The PIQ provides basic information about a property including leasehold information.

In addition, all properties will be required to have a HIP available to all potential purchasers from the first day of marketing. Agents will be able to advise purchasers that a property is expected to come to the market, but will not be permitted to market the property until the HIP available.

Also HIP providers will no longer be able to provide insurance backed personal searches. This should ensure that searches provided in all HIP's are acceptable to lenders and prevent the need for official searches to be obtained by purchasers.

WMK are pleased that the Government have taken this step as we have always provided official searches in our HIPs.

Contact Ian Motton on 020 8300 9321 or imotton@wmk-law.com alternatively Contact Us

What happens to individuals who deceive the Court?

2008-12-19T14:55:00.003Z

The Court has a discretion to punish a party or witness who sets out to deceive the Court with false evidence. One punishment open to the Court is to strike out the claim.

The recent case of Ul-Haq and others v Shah (2008) EWHC 1896 (QB) involved a rear end shunt caused by Mrs Shah. It was accepted that Mr and Mrs Ul-Haq had been in the car hit from behind by Mrs Shah. What was in dispute was whether Mr Ul-Haq's mother, Mrs Khatoon, was also in the car. The Judge found that Mrs Khatoon's claim was entirely fraudulent and that Mr Ul-Haq and his wife had conspired to advance this fictitious claim. Mr Ul-Haq and his wife were both guilty of serious breaches of the court rules although they had both genuinely suffered the injuries they had claimed for themselves. Accordingly, Mrs Khatoon's claim was struck out. However, Mr Ul-Haq and his wife received compensation for their injuries but they were ordered to pay two thirds of Mrs Shah's costs reducing their compensation considerably.

In another case ( Arrow Nominees In v Blackledge (2001) BCC 591) involving forged documents where the forgery was admitted before trial, the Court of Appeal struck out the claim because of the dishonesty as the Court of Appeal felt that any judgment in favour of the claimant would be regarded as unsafe.

In conclusion it is important not to make a dishonest claim or commit a dishonest act relating to the claim once the claim has started. The claim can be struck out (lost) and the claimant can be ordered to pay all of the opponents costs. This could be an extremely expensive mistake to make.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Chancel Repair Liability

2008-12-19T14:50:00.001Z

What is Chancel Repair Liability?

We receive a number of enquiries on this issue which arises in all residential purchases and sales.

It refers to an ancient interest benefiting many Parochial Church Councils in England and Wales which requires owners of former rectorial land to meet the cost of repairs to the Church Chancel.

What is the Church Chancel?

This is the area where the rector (the parish priest) officiated. The duty of repairing the property belonging to the Church fell on the owners of the properties within this area.

So why has the question of Chancel repair become such an issue?

In June 2003 there was a case heard by the House of Lords called Wallbank v Parochial Church Council of Aston Cantlow and Wilmcote which stated that the Parochial Church Council could claim a contribution from the Wallbanks towards the cost of the repairs required to the parish property.

Who is liable for Chancel repair?

Whenever we act for you in the purchase of a property or land we will carry out a preliminary search to establish whether or not the property you propose to purchase is situated on former rectorial land.

The search will either confirm that the land is, or is not, within an area that may have a potential liability. If the result confirms that the land is not within such an area then no further steps have to be made.

What if the search confirms that the land may be within an area with potential liability?

We will then discuss the following options with you:

You obtain a Chancel repair indemnity policy and ask the seller to meet the cost of this. If they refuse to do so, you can pay the premium yourself.
We obtain a more in depth search which may provide more certainty as to whether there is, or is not, such a liability.
There is a slight drawback with this particular course of action. If the search indicates that there is such a liability and you decide to proceed with your purchase, we would be under an obligation to notify the Land Registry who will record an entry against the title to the property which could cause problems on a future resale or re-mortgage of that property.

Will this effect future transactions?

At the present time any liability to make contributions binds successive owners of a property even though there may be no entry recorded on the title register at the Land Registry. However, the Land Registry have stated that the Parochial Church Council has until 13 th October 2013 to register their interest against properties. If they do not make the registration by this date, then any purchaser of land to which the liability previously attached will not be subject to it – current owners will, however, remain liable.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

It is a Matter of Identification

2008-12-18T09:55:00.002Z

On the 10 November 2008 the Land Registry introduced a requirement on all conveyancers to verify the identify of their clients in an attempt to reduce the risk of property fraud.

When all parties to a transaction are represented by a conveyancer this should not become a problem.

What happens when one or more parties to the transaction are not represented by a conveyancer?

The conveyancer acting for the represented party will not usually be prepared to verify the identification of other, unrepresented parties to the transaction and accordingly the application will not be accepted by the Land Registry.

So what can be done?

If the unrepresented party is an individual then they are required to complete form ID1 which will need to include;

their personal details
a certified passport photograph of themselves and
be signed by a conveyancer.

If the unrepresented party is a Company or other corporation then an officer or other person with authority to do so, is required to complete form ID2 which will need to include;

the details of the Company of other corporation
details of the authorised individual
a certified passport photograph of the authorised individual and
be signed by a conveyancer

What if a conveyancer is not prepared to verify the unrepresented party's identification?

An appointment to attend at the Land Registry Customer Information Centre where the application is to be submitted will be required and a Land Registry employee will carryout the identity checks and if in order will sign the ID1/ID2.

Not only must the unrepresented party attend the appointment but also the party seeking to make the application with the application for registration.

What should I do?

If a party to your proposed transaction will be unrepresented then you should raise the problem of identification at the outset of the transaction and not leave it to chance.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Personal Injury Trusts

2008-12-17T09:44:00.000Z

When an injured party is paid compensation t here is a possibility that the compensation may impact on the injured party's current and/or future entitlement to social security means tested benefits.

Some examples of means tested benefits are income support, housing benefit, council tax benefit or local authority support.

If an injured party receives welfare benefits they should notify the people who deal with their benefits claim of any change of circumstances.

It may therefore be in an injured party's interest to have compensation paid into a Personal Injury Trust to protect their benefits. Under social security regulations the value of a trust fund set up out of money paid as a result of a personal injury (a Personal Injury Trust) is ignored for most benefit purposes.

Social security benefit legislation is quite complex and if an injured party receives a number of benefits now or at some time in the future, the receipt of capital is likely to affect each benefit in a different way.

If an injured party deliberately rids themselves of compensation in order to claim or increase their benefits, they are treated as still possessing the compensation for social security benefit purposes. This may include the purchase of personal possessions, expensive holidays and/or carrying out repairs and improvements to the home.

In addition to this if an injured party intends to pay off debts which are not required to be repaid by law immediately, for example family IOUs, the injured party may be seen as deliberately depriving themselves of capital. This could also include credit cards, general loans and mortgage.
If a personal injury trust is set up the injured party can continue receive and/or claim in the future means tested benefits.

Trusts can be set up to allow an injured party to have access to the compensation when needed.
It is always best to set up a trust at the earliest opportunity so that there is no uncertainty over the status of the compensation i.e. to be able to prove the money going into the trust is in fact part of the personal injury compensation.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

The Transferable Nil Rate Band for Inheritance Tax

2008-12-16T10:45:00.001Z

The current nil rate band for inheritance tax - below which an estate will not pay inheritance tax on death - is currently £312,000

Last year the Chancellor introduced an additional relief for married couples and civil partners only, enabling a claim to be made for a transfer of a proportion of any nil rate band unused on a first spouse's death to be added to the nil rate available at the second death when this takes place after 9 th October 2007.

The amount transferred is the 'unused proportion' - so if a husband dies leaving his entire estate to his wife, the 'unused proportion' can be 100% - available at the rate applicable at the date of the second death .

The claim can be made whatever the date of death of the first spouse, and irrespective of the value of the assets in that estate.

However, the Revenue require production of a number of documents and information about both spouses, which is not always readily available. Gill Scott recommends that married couples ensure that they retain all the relevant papers and that on the first death the documents be assembled into a pack which can be retained in safe keeping until required by the survivor's executors.

There are of course a number of conditions attached and time limits for claims.

Contact Gillian Scott on 020 8300 9321 or gscott@wmk-law.com alternatively Contact Us

Tips for reducing stress when Buying or Selling your home

2008-12-11T14:44:00.000Z

Consider our advice as your legal adviser and not just that of your friends, family and estate agents, during the process, we have done it before!
Take time to read through the correspondence you receive from us, it will contain important details and information.
Inform us if you are going away on holiday or will be un-contactable during the process.
Tell us if you have any worries at the beginning of the transaction. This will assist to allay any fears and anxiety you may have.
Let us know at the outset if any part of the purchase price is being provided as a gift or loan to you by a third party.
Ensure that sufficient funds are in place for your purchase. Please remember that this needs to include the deposit, (if not coming from your sale) legal fees; stamp duty; land registry fee and costs paid out on your behalf during the transaction for searches

DO NOT

Fix a removal date at the start of the transaction. The moving (completion) date may have to be changed as the matter progresses especially if there is a chain and it is not fixed until exchange (of contracts). If you need to complete within a certain time frame then tell us at the outset so that all parties in the transaction can be informed early on.
Hand over any money or deposit to the Seller or the agent directly. If this is requested then speak to us.
Book your removals until contracts have been exchanged.
If you are in rented accommodation, give notice to your landlord until contracts have been exchanged and the completion date has been fixed.
Cancel your buildings insurance or any regular payments due in respect of the property you are selling until completion.
Forget to clear the property, remembering the garage and attic, of all belongings not included in the sale and make good any damage caused when things are removed.

and very importantly remember your sale and purchase is a 2 stage process

Exchange of Contracts - when a legal commitment to sell and/or buy arises
Completion - the day you would move in/out of your property

Contact Woolsey Morris & Kennedy on 020 8300 9321 or enquiries@wmk-law.com

Settling Accident Claims directly with Insurers

2008-12-10T16:16:00.000Z

Isabel Elliott, partner at Woolsey Morris & Kennedy warns victims of accidents not to settle claims directly with opponents insurers before seeking advice from an independent personal injury lawyer. The insurer has a clear conflict of interest in keeping the amount they pay out to a minimum and will not look after the best interests of the victim.

Independent personal injury lawyers will advise in relation to value and what it is possible to claim for. Victims should not let the insurer push them into settling without at least some initial advice from an independent personal injury lawyer.

Often a medical report is required to determine the exact injuries caused by the accident and how they might affect the victims life in the future.

Woolsey Morris & Kennedy advised a young victim of 19 about a dislocated knee where the insurers had offered £1000 to settle the claim. Woolsey Morris & Kennedy obtained a medical report on the injury which detailed a serious injury worth over £10,000 for pain and suffering and in addition private operation costs of over £8,000.

If a victim settles directly with an insurer it will be on a full and final settlement basis. Therefore, the victim will not be able to go back to the insurer later for more money if the injury takes an unexpected turn for the worse.

With a no win no fee agreement the victim should not have to pay anything to get legal advice before settling a claim because the insurer should pay reasonable legal costs in addition to the compensation payment.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Debt Collection

2008-12-04T11:39:00.000Z

At Woolsey Morris & Kennedy we recognise the need for businesses to maintain cashflow. We offer a debt collection service which delivers results at a very competitive price. We will send a letter of demand on your behalf to any Debtor for a set fee of £25.00 plus VAT. If the Debtor makes a payment following our letter, the £25.00 plus VAT will be the total that you pay to us.

We think that you will find that this is significantly cheaper than if you use a Debt Collection Agency who usually insist upon a percentage of the amount that they recover from you. The £25.00 plus VAT rate applies to whether you are owed £100.00 or £100,000.00.

Should payment not be made following the letter of demand then we will discuss with you how any Court proceedings are to be funded so that you and your business are in control of and aware of costs at all times.

Contact Chris Elliott on 020 8300 9321 or celliott@wmk-law.com alternatively Contact Us

Changes to the Companies Act 2006 - Directors Duties

2008-12-03T09:45:00.000Z

On 1 October 2008 more provisions of the Companies Act 2006 came into force.

Sections 175-177 relate to Directors' Duties and cover the following:

1. Duty to avoid conflicts of interest unless previously authorised; and
2. Duty not to accept benefits from third parties; and
3. Duty to disclose any interests in a proposed transaction or arrangement; and
4. Duty to disclose any interest in an existing transaction or arrangement.

What does this mean for you?

In essence, the Act is merely making Directors current common law obligations a statutory requirement. You may find, therefore, that as a Company, you wish to operate a more formal procedure regarding conflicts of interest, but it should not result in Directors having to behave any differently to the way they currently do in this respect.

Your Directors, however, must bear in mind that these statutory duties are the personal responsibility of each of them personally and not the Company. Only Directors can be aware of any actual or potential conflicts and they must keep these under review and notify the relevant individuals within the Company of any changes in this respect.

1. Duty to Avoid Conflicts of Interest

A Director must avoid any "situation" in which he has or may have a direct or indirect interest conflicting with that of the Company.

Directors' involvement can, however, be authorised by the Board of Directors provided that:

(a) There is nothing in the Company's Articles of Association preventing Directors from authorising the potential conflict; and

(b) The Director(s) concerned is/are not permitted to be included in the quorum or the vote authorising the particular conflict.
It would be advisable for you to ensure that your Company's current Articles of Association and internal procedures deal with the following:

(a) The Board of Directors are permitted to authorise conflicts

(b) That the Director(s) involved are not permitted to be included in a quorum or vote taken with regard to the conflict; and

(c) There are adequate measures in place to ensure that any such authorisations are recorded clearly in minutes of meetings.

2. Duty not to Accept Benefits from Third Parties

Directors must not accept any personal benefit from any third party being offered to them because:

(a) they are a Director; or

(b) they do something, or do not do something, as a Director.

In essence this brings us back to age old question "when is a bribe not a bribe?"

Our advice is that you should ensure that all your Directors report to the Board of Directors any personal benefit offered or accepted and that this be recorded in the minutes of the meeting.

3. Duty to Disclose an Interest in a Proposed Transaction or Arrangement
All Directors are already required to disclose any interest in a proposed transaction or arrangement whether direct or indirect and this is extended to "connected persons".

However, there is now a statutory requirement on Directors to declare any interests to the Company and it is suggested that this should be done by way of notice or by way of a formal declaration to the Board of Directors and recorded in the minutes.

4. Duty to Disclose any Interest in an Existing Transaction or Arrangement
This duty is part of the duty set out under point 3 above and also crosses into the realms of the duty set out in point 1 above.

All Directors should be notified and reminded that they are required to keep the Company up to date with details of their interests in particular transactions and if during the particular transaction or arrangement the potential conflict or interest changes in any way , they must notify the Board of Directors accordingly.

All Directors must also be made aware that it will be a criminal offence to fail to declare an interest in an existing transaction or arrangement. You may wish to consider the Company's current procedures for such notifications and the way that they are recorded.

In order to satisfy the requirements of the statutory duties, we suggest the you should keep the following key words in mind:

Awareness
Transparency
Record

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Bouncy Castle case - Appeal Court reverses Decision

2008-12-02T09:20:00.000Z

In the "Bouncy Castle Case" (Perry v Harris [2008] EWCA Civ 907) the Court of Appeal did not believe that there could be any justification for parents to keep children under constant, uninterrupted supervision whilst they were on the bouncy castle. Just because one parent turned their back for a few moments when the accident occurred was not a breach of duty.

The Court of Appeal stated that it is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so.

This accident was classed as a freak and tragic accident which occurred without fault.
Therefore, the injured child in the Bouncy Castle Case was not awarded any compensation for the injuries that resulted on the bouncy castle.

(Note: The full decision can be found on Bailii: http://www.bailii.org/)

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Changes to the Companies Act 2006 as at October 2008

2008-12-01T10:19:00.001Z

This is a brief summary of some of the new sections under the Companies Act 2006 and should not be taken as a full and comprehensive guide to the new legislation.

If you require detailed advice on the implications of the new Act and your Company then please contact this office and speak with Charlotte Parry-Jones.

A Company's Directors - Sections 155-159,175-177, 180(1), (2)(in part), (4)(b), 181 (2) and (3),182-187
There will be a minimum age for Directors, of 16 years. If you have Directors under the age of 16 years on the 1 st October 2008 they will cease to be a Director and you will need to amend your register of Directors accordingly.

Directors will have the additional duty to avoid any conflicts of interest and potential conflict situations will be required to be authorised by the board of Directors, unless there is anything in the Company's articles preventing this. Please note that the Director(s) concerned cannot count in the vote for authorisation.

Directors will not be able to accept a benefit from a third party because of their position as a Director. The duty will not be infringed if the benefit cannot reasonably be regarded as giving rise to a conflict of interest.

Directors must declare any interest in any matter, whether direct or indirect to the other Directors before the Company enters into any transaction or arrangement. A declaration is made by notice in writing or by general notice. Failure to do so is a criminal offence.

A Company's Share Capital - Sections 641(1)(a), (2)-(6), 642,643, 652 and 654
Private Companies can reduce their share capital, although a statement of solvency must also be made by the Directors not more than 15 days before the date of the resolution.

There will be no requirement for the ability to reduce share capital to be contained within the Companies Articles, although you can prohibit reduction of share capital in your articles.

Acquisition by Limited Company of its Own Shares
The restrictions under the Companies Act 1985 on financial Assistance and "Whitewash" procedure will be repealed.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Could remote working lead to personal injury claims?

2008-11-27T12:14:00.000Z

According to the TUC 3.5 million people work from home. This does not include mobile workers or those who work at home after a day in the office.

Many 'mobile' devices are not ergonomically designed for prolonged use so the risk of repetitive strain injury (RSI) could be significantly higher than for office-based staff.
RSI already costs employers £300,000,000 each year.

As yet there do not appear to have been any legal personal injury cases directly relating to home working. However, working from home could cause more work related injuries if the employees home workstation is not ergonomically assessed and if the employee is not told how to sit, how high their desk should be and how the other items on the desk should be set up.

The legislation that governs working in the workplace also governs working at home so employers need to consider the home environment for health and safety purposes when allowing home working.

Employers should be aware that laptop associated back problems are on the increase

Therefore, Woolsey Morris & Kennedy would recommend that employers carry out the necessary workstation assessments and issue employees with guidance with a view to avoiding RSI injuries in the future for home workers or workers on the go.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Changes to Stamp Duty Land Tax (SDLT)

2008-11-26T15:09:00.000Z

On the 3 September 2008 the government announced a rise in the Stamp Duty Land Tax threshold, increasing the 0% tax threshold on purchases from £125,000.00 up to £175,000.00 for a one year period.

Perhaps this will give the property market the boost that it needs, enabling first time buyers and people wishing to make an investment in property, to enter the market.
This is certainly a step in the right direction as many will agree that this year has been a testing time for the property market which has not been assisted by the constant negative media. We should all look at 2008 as a year where prices are levelling out, re-adjusting and becoming more realistic.

Whilst this announcement has been welcomed it does not assist the middle market, of £250,000.00 and £500,000.00 who face a 3% charge to Stamp Duty Land Tax and many hope that the Government will in time make a concession in this respect to keep the market moving forward.

Let's keep our fingers crossed!

In the meantime, if you feel you wish to take advantage of this Stamp Duty Land Tax holiday, then why not try our cost calculator on our web site and see if this is an option for you.

Call on 020 8300 9321 or email enquiries@wmk-law.com alternatively Contact Us

A tax trap for the unwary. Leases and Stamp Duty Land Tax

2008-11-21T09:42:00.000Z

Might you unwittingly be doing something which could lead you into problems with the Revenue's Stamp Office? The risk is I think best illustrated by a fictional example.

David and Jeremy run a successful business which they want to expand. They decide to acquire new premises. They are advised to purchase in their own names and then let to their trading company. By this means they ring fence the freehold asset in the event of the company running into problems. The company pays a rent which discharges the mortgage they raise to buy and there are various tax efficiencies in the arrangement. David and Jeremy declare the rent in their personal tax returns and the company shows it as a charge against income in the accounts.

These entrepreneurs decide not to trouble with a written lease but instead rely upon a verbal arrangement between them and the company which, after all, is wholly owned by them.

The rent is £80,000 a year.

What's the problem?

Stamp Duty Land Tax (S.D.L.T. which replaced Stamp Duty in 2003) is a much more aggressive, complex and expensive tax than was Stamp Duty when it comes to the lease regime and especially in the case of leases for an indefinite period. This applies just as much as leases by word of mouth was it does to written leases or other forms of tenancy be they called licences or tenancy at will.

The Finance Act which introduce S.D.L.T. has created a "tax fiction".

It does this by saying that for S.D.L.T. purposes a lease for an indefinite term is treated initially as if it were a lease for a fixed term of one year. If it continues after the end of the year, it is treated as a lease for a fixed term of two years. Continuation beyond the second year produces a lease for a fixed term of three years and so on. It does not matter if the continuation is for one day only, that day is treated as a year for these purposes. These provisions override any other Act of Parliament relating to leases for indefinite terms.

There are two consequential traps.

First, the need to make a return at the appropriate stage and second, the liability to pay S.D.L.T. once the total value (called "net present value") rises above the threshold at which S.D.L.T. starts to be payable - currently £150,000.

The effect of all this is that at the end of the first year of the verbal tenancy created by David and Jeremy they must first file S.D.L.T. returns and second, pay tax of £19. If they fail to do both these things within 30 days, penalties become payable which can amount to double the tax in addition to a penalty for failure to send in a return and on top of that interest accrues. Although the tax is only £19 at this stage the amount increases so at the end of the year two the tax is £741 and it continues to escalate year on year.

How would anyone know, you might ask?

The arrangement is oral, the tax is dealt with transparently both by the company and those who receive the rent.

That is just the problem. The Inspector of Taxes who looks at the company accounts and the personal tax returns sees the arrangement and calls for a copy of the lease. Unfortunately for David and Jeremy he doesn't get round to doing this until five years have gone by. By that time the failures to file returns and non payment of tax have mounted significantly.

This comes as a complete surprise when it was thought taxes were being dealt with in a proper way and unfortunately the business and its owners find themselves very much on the wrong side of HMRC.

What can you do?

If you are operating the sort of arrangement outlined above you should immediately seek professional advice. If you are planning to do so, the best course is often (although not always) to enter into a proper written lease, pay the tax at the outset and know that you can sleep easily at night without worrying about Inland Revenue transgressions.

If, having thought about this, you think that your arrangements may be on the wrong side of the Revenue's requirements, we shall be pleased to review the situation, advise on the implications and recommend a course of action. This might best be done in conjunction with your accountants.

It is a daunting prospect but if you think there might be a problem it is best addressed now since it will not go away. If you would like an initial "diagnostic" discussion we offer for a fixed fee of £500.00 plus VAT to review your present arrangements, discuss the situation briefly with you and recommend a more detailed plan of action.

If that offer is of interest please either send copies of any documents there may be or, if none, an outline of the arrangements, or telephone or send a letter or fax, whichever suits you best.

Contact Paul Venton on 020 8300 9321 or pventon@wmk-law.com alternatively Contact Us

Bereavement Damages

2008-11-19T10:55:00.000Z

On 1 st January 2008 the amount of bereavement damages increased from £10,000 to £11,800 which can be claimed by a husband or wife of a deceased whose death was caused by a third party or for the parent of a deceased child under 18 who has never married. If the deceased child left two parents the award will be split in half for each parent.

Bereavement damages were last increased from £7,500 to £10,000 on 1 st April 2002.
Partner at Woolsey Morris & Kennedy, Isabel Elliott, commented "We are disappointed that the increase is so modest for those who have suffered a tragic loss. We also hope that the Government will review this award more regularly in the future than it has done in the past."

The explanatory memorandum issued by the government can be found at http://www.opsi.gov.uk/si/si2007/em/uksiem_20073488_en.pdf

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

You'll get HOW MUCH!

2008-11-19T09:51:00.000Z

Spouses and Civil partners frequently assume that in the event of the death of one, the other will inherit the whole of the first estate .

Not so.

If a spouse or civil partner dies without a will, leaving children , the amount which the survivor is entitled to inherit is limited to £125,000. If there are no children, but parents or brothers and sisters, the surviving spouse will be entitled to a legacy of £200,000.

These figures were last changed in 1993 - but after a review ( in 2005) the Government has agreed that the limits are too low and will change them to £250,000 and £450,000 respectively - but not until February 2009.

Even this may not be enough to ensure a surviving spouse inherits the family home.
Ensure that your money and property passes to those members of your family or friends who you have chosen by making or reviewing your will. Don't leave it to chance.

Contact Gillian Scott on 020 8300 9321 or gscott@wmk-law.com alternatively Contact Us

Injured Soldiers

2008-11-18T16:37:00.000Z

On 17 th July the Ministry of Defence released a Service Personnel Command Paper. It detailed an increase in compensation for seriously injured soldiers. Soldiers can be compensated under the Armed Forces Compensation Scheme ("the Scheme") when they have been injured. The Scheme provides a lump sum and guaranteed income payment. The Ministry of Defence has doubled the compensation lump sum for seriously injured soldiers from £285,000 to £570,000. Lump sums for less serious injuries has also been increased according to the severity of injury.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Changes to the Companies Act 2006 as at 6 April 2008

2008-11-17T16:04:00.000Z

A Company's Capacity and Related Matters - Section 44
Company documents will be validly executed if signed by:

Two Directors

One Director and the Company secretary or

By a Director in the presence of a witness who attests the signature.

A Company's Members - Sections 121 and 128
Entries relating to former Members of the Company in the register can be removed 10 years after the date that member ceased to be a member (previously 20 years).

Company Secretaries - Sections 270-280 (excluding section 270(3)(b)(ii) and sections 275-279)
A Private Company will no longer require a Company secretary.

Accounts and Reports - Sections 380-474
The requirements in respect of accounts have been redrafted and need to be considered, in detail, with your accountants. The main changes are a reduction in the time to file your accounts, which will now be 9 months, or 6 months in the case of a public Company. Furthermore, the Secretary of State can replace detailed accounting schedules with regulations.

Audit - Sections 475-539
Auditors, unless the Secretary of State, makes regulations to the contrary will be able to enter into a "liability limitation agreement" with the Company so long as it is fair and reasonable in all the circumstances.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us

Corporate Manslaughter

2008-11-13T08:46:00.000Z

From 6 th April 2008 The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect. This Act has created an offence of Corporate Manslaughter in England and Wales and Corporate Homicide in Scotland. These offences apply to corporations, local authorities, NHS, government departments, the police force, partnerships, trade unions or other employers association that is an employer. An organisation can be guilty of these offences if its activities are managed or organised by its senior management so as to cause a persons death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased, in other words falling far below what can reasonably be expected of the organisation in the circumstances.

These offences cover the death of employees, occupiers of premises, suppliers of goods and services, construction and maintenance work, those in custody and those carrying any other activity on a commercial basis.

The penalties if found guilty are unlimited fines, remedial orders (make the organisation take steps to ensure the breach is remedied), publicity orders (publicise the conviction, details, amount of fine and terms of any remedial order).

This Act has not created personal liability for directors to face imprisonment.

Contact Isabel Elliott on 020 8300 9321 or ielliott@wmk-law.com alternatively Contact Us

Changes to the Companies Act 2006 as at October 2007

2008-11-12T09:36:00.001Z

This is a brief summary of some of the new sections under the Companies Act 2006 and should not be taken as a full and comprehensive guide to the new legislation.

If you require detailed advice on the implications of the new Act and your Company then please contact this office and speak with Charlotte Parry-Jones.

A Company's Members - Sections 116-119
The Register is to remain available for inspection by any person on payment of such fee as may be prescribed, or, a copy of the Register is to be provided upon request. You are required to provide this copy within 5 working days (previously 10 working days) of request.

If you believe that the request for a copy of the Register is not for a proper purpose then you may apply to the Court for relief, this application is required to be made within 5 working days of the request.

The person making the request must state the purpose for which the information is to be used and whether the information will be supplied to a third party. It is a criminal offence to knowingly or recklessly make a statement that is misleading, false or deceptive in this respect.

Exercise of Members rights - Sections 145-153
All quoted Companies are now deemed to have within their articles provision to enable Members to nominate another person(s) as entitled to receive and enjoy and exercise all or any of the specified rights of the member in relation to the Company.

A Company's Directors - Sections 154, 160,161, 168-174, 178-179, 188-239, 248-259
A private Company must have at least one Director and a public Company at least two Directors.
Unless a resolution has been passed unanimously to permit block voting, Directors of a public Company must be voted individually.

Directors Duties are now set out in the Act and apply to Shadow Directors :

Directors Duties are Owed to the Company

Directors must act within their powers and in accordance with the Company's constitution

Directors must act in good faith and in a way likely to promote the success of the Company for the benefit of all of it's Members but if the Company is about to go insolvent then the Directors are duty bound to have regard to the interests of the Company's creditors.

Directors must exercise independent judgement

Directors must exercise reasonable care, skill and diligence.

Directors Service Contracts over 2 years (previously 5 years) require the consent of the Members. If such consent has not, or is not obtained, then the notice provision in the Service Contract is void and only reasonable notice is required to be given. This will not affect any current Service Contracts, so long as the previous 5 year provision has not been breached.

Directors contracts, letters of appointment and service contracts are required to be made available for inspection at the company's registered office and copies are to be provided to member's on request and payment of a prescribed fee.

New limits have been imposed in respect of Property Transactions; Loans and Credit Transactions; Payments for loss of office made to Directors and anything over these limits will require the consent of all Members.

Any provision in either a Company's Articles or Director's service contract which exempts a Director from liability is void. However this does not prevent Directors and Officers Insurance.

A Company, can by ordinary resolution ratify any act of the Directors. However, the resolution must be passed without Members with a personal interest in the ratification being entitled to vote.

All minutes of Directors meeting are now required to be retained for 10 years from the date of the meeting and once signed by the chairman are evidence of the decisions made at that meeting.

The definition of connected persons extends to civil partners and other persons of the same or different sex, with whom the Director lives in "an enduring family relationship".

Derivative Claims and Proceedings by Members - Sections 260-269
The Act has introduced a new procedure for bringing an action against a Director or a former Director for breach of duty.

Resolutions and Meetings - Sections 281-361 (excluding Sections 327(2)(c) and 330 (6)(c).
Private Companies are no longer required to hold an annual general meeting and decisions that were made at annual general meetings are capable of being passed by written resolution. Written resolutions can also be passed by way of e-mail. BUT private companies can not remove a Director or an auditor by way of written resolution.

The Members eligible to vote in a written resolution are those who were Members when the resolution was first circulated.

You can not prevent decisions being made by written resolution with provisions in your Articles.
There are no longer extraordinary meetings, however, general meetings can be called by Members with 10% of the voting rights and where it is a private Company and there has not been a general meeting in the previous 12 months, then Members with 5% of the voting rights are entitled to call such a meeting.

The same notice periods apply for the calling of a general meeting, although if short notice is to be given then only 90% (previously 95%) of voting rights are required to agree (private companies only).

Notice regarding a general meeting can also now be given in electronic form and by posting on a website, although, notification of the notice on the website is required to be given to all Members. You can limit the persons on whom notice is required to be given in your articles.
Requirements as to the content of the notice are now set out in the Act along with the right to appoint one or more proxies.

Public Companies must hold an annual general meeting within 6 months of their accounting reference date.

Records of all resolutions and proceedings at meetings must be retained for a period of 10 years.
Control of Political Donations and Expenditure - Sections 362-379 (excluding provisions relating to independent election candidates). Companies are not permitted to make donations to a political party, over £5000.00 within any 12 months period unless the approval of all Members is obtained and such approval must be granted for donations to be made over a period of no more than 4 years.

Accounts and Reports - Sections 417 and 463.
For 'Small Companies' (defined in sections 381-384) there is no longer a requirement to have a Directors report containing a business review.

Audit - Sections 485-488
An auditors term of office will run from the end of 28 days following the circulation of the accounts, until the end of the corresponding period the following year.

Also an auditor shall be deemed reappointed unless the Company decides otherwise, or one of the four prescribed instances apply.

Contact Charlotte Parry-Jones on 020 8300 9321 or cparry-jones@wmk-law.com alternatively Contact Us