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Coodes LLP is recognised as one of the leading law firms in Cornwall and Devon and the longest established firm in the region. We provide legal advice across the entire spectrum of business and personal needs, delivered by highly-experienced lawyers, organised according to the needs of our clients. We are open, honest and direct.
More than two years have now passed since the implementation of the Offence of Coercive Control, Section 76 of the Serious Crime Act 2015. Coodes Solicitors’ Family Executive Christopher Johns talks about domestic violence and how Section 76 can protect a person suffering from abuse.
Domestic violence does not always mean being physically assaulted. It can mean psychological, physical, sexual, financial or emotional abuse, and it does not necessarily mean violence perpetrated by a man to a women either. Abuse can be committed by anyone, regardless of age or sex.
At Coodes Solicitors, we see many clients who are experiencing domestic abuse and fear what would happen to them should they challenge the coercive or controlling behaviours of their partner.
The Offence of Coercive Control, which came into force on 29th December 2015, now means that coercive or controlling behaviour is a crime and that people who are subjected to domestic abuse are better protected. The offence also gives the Police a mechanism to deal with those who perpetrate such behaviours.
A number of cases that have been prosecuted under the Offence of Coercive Control have highlighted some of those behaviours that are now covered by legislation.
What is protected by the Offence of Coercive Control?
It is against the law (among other things) for a partner to:
share explicit photos
restrict or control access to money
isolate from friends and family
frighten or intimidate
monitor a partner’s communication
take control of any part of their partner’s life
force a partner to do things they do not want to do.
By having this more robust protection in place, people can be more empowered than they ever have been to come forward and report abuse.
What can I do if I am experiencing controlling behaviour from my partner?
The most important thing is to report domestic abuse, or suspected domestic abuse, to the police.
Visiting a Solicitor also means you can get advice on where you stand legally, as well as the possibility of taking out an injunction against the partner in question.
First Light, a charity that supports thousands of people each year affected by domestic violence, is also a great place to get support and advice.
Are you about to start a build project such as an extension or new build, or refurbishment of an existing premises? Jo Cook, construction lawyer at Coodes Solicitors, outlines what a construction lawyer does and the benefit of hiring one.
What is a construction lawyer?
A construction lawyer is a specialist contract lawyer who advises on all construction related contracts such as:
The contract between the contractor and the client. This can be an industry standard contract such as JCT (Joint Contract Tribunal contracts) or a bespoke contract
The appointment of professionals such as architects, engineers, project managers and QS. Again this can be an industry standard document such as RIBA or bespoke
Contracts between the main contractor and the subcontractors
All other construction documents such as collateral warranties, guarantees, letters of intent and bonds
Why have I never heard of a construction lawyer?
Construction lawyers are a rare breed in Cornwall. In fact, I am the only one permanently based here. I trained and practiced in London for over ten years before relocating to Cornwall.
Why hire a construction lawyer?
Everyone is optimistic at the start of a build project and positive that nothing will go wrong. Unfortunately that is not always the case. Projects tend to overrun and/or end up costing more than you think. This can apply even if you have what you thought was a fixed price build contract. I can advise you on:
The contents of your contracts to avoid any nasty shocks
The need to have written contracts with all those you engage on a build project
The terms of those appointments and contracts to ensure you are protected against unnecessary risks, delays and spiralling costs.
What should go into your construction contract?
Having a robust contract in place will give you protection and let you know where you stand on matters such as:
How often you have to make a payment
Who is signing off each stage of the works and how much the contractor should be paid at each stage
Is there a retention? This means money being withheld from the contractor until the project has been completed and all snagging carried out
What limits are on the contractor and/or professionals’ liability
What insurances you would expect the contractor and professionals to maintain
How much the project will cost and how changes will be priced
When the project is due to be completed
Whatever the nature of your build, a construction lawyer is a necessity, not a luxury, and should save you stress, money and a great deal of time.
Are you planning to buy a property in the South West that is more than 50 years old? Then there is a chance that your new home may contain mundic. Maria Richards from Coodes Solicitors’ Residential Property team explains why you may need a screening test.
What is mundic?
Mundic is a term used for blocks that are comprised of waste mining material mixed with aggregates, such as beach sand. The blocks were mass produced from 1900 to 1950, although in some areas the practice was carried out until the early 1960s.
The blocks were commonly used in property construction in South West England, primarily in Cornwall, as other materials were not always readily available during that era. Cost was also of primary concern at the time.
Why might I need to test for mundic block?
If you are looking to buy a property in the South West built between 1900 and 1965, your mortgage lender will, in all probability, require you to have an up-to-date test carried out for mundic block.
This is because some of the materials used in mundic block can cause deterioration and weakening, which in turn will cause subsidence to the property. This will have a major effect on the eventual decision to lend you money for mortgage.
Even if you are a cash buyer, and not planning to take out a mortgage, it may be a good idea to get this test completed to ensure that when it comes to selling the property on in the future, you will be able to do so at full market value.
How to test for mundic block
The test will help to analyse the category of materials used to construct the property. Drilled samples are taken from various parts of the building including the external walls, the foundation and the chimney, and are then examined by experts in a laboratory.
What do the results of my mundic test mean?
The results categories that your property could fall into are as follows:
Class A: Sound concrete. Satisfactory condition.
Class A/B: Concrete considered to be sound, subject to adequate protection and maintenance.
Class B: Concrete contains more than 30% of possible problem aggregates, although it appears sound, it could cause potential problems.
Class C: Those found to be clearly unsound from examination.
Most mortgage lenders will require either a Class A or Class A/B result to meet with lending criteria. It is often the case is that properties don’t directly fall into Class A or C, but instead in the middle of the spectrum, which usually means more testing.
Only about 5% of properties fall into Class C, with around 80% of screening tests meeting Class A requirement. Only 15% of properties will show inconclusive results, needing further rounds of testing.
Having a mundic block test is a sensible step to assess the future prospects for selling your home.
A recent European Court of Justice ruling on holiday pay could have major implications for employers who engage contractors on a long-term basis. Coodes Solicitors Employment Lawyer Philip Sayers explains.
In a recent case against The Sash Window Workshop, a contractor successfully established that, despite the fact that he was termed self-employed, he was actually a worker by law and entitled to paid holiday.
Mr King worked on a commission-only basis for the company, receiving no sick pay or paid annual leave. He did not book any holiday as he knew he would not be paid.
As a result of this case, the European Court of Justice has now ruled that anyone who has worker status has an unlimited right to carry over paid annual leave, where they have not had the opportunity to take it because they wouldn’t have been paid for it.
The ruling states that any employee who meets the criteria to be classified as a worker, who did not receive paid holiday leave so didn’t book any, should now be due their annual leave allowance potentially going back to 1996, when the working time directive was introduced. This means that in the worst case scenario, companies who have employed long-serving self-employed people, could now be due to pay up to 80 weeks of holiday pay to each person.
This recent European Court of Justice ruling has also called into question another Employment Appeal Tribunal (EAT) decision relating to holiday pay. Last summer, the EAT confirmed that a series of unlawful deductions is broken where there are more than three months between non payments to a worker. In other words, if a worker has had a gap of three months or more between holiday the business does not need to reimburse the worker for earlier lost holiday pay. In addition, the Government recently introduced a two-year time limit on any retrospective claims for holiday pay. These rulings do not seem to be very compatible with the latest European Court of Justice ruling.
It is not yet clear how these various legislative changes will work together in practice. However, businesses who use contractors should be aware that they could now be vulnerable to high value claims. This decision has been made under the current EU-derived Working Time Directive, so it must be observed in its entirety until Brexit is enforced. When the UK leaves the EU, the position could potentially alter, but of course this remains to be seen.
A Government scheme to help people reclaim employment tribunal fees is now up and running. Coodes Solicitors Employment Lawyer Philip Sayers explains what this means for both employers and employees.
Over the summer the Supreme Court declared that employment tribunal fees were unlawful. At the same time, the Government announced that it would reimburse fees, now estimated to the tune of £33 million, following a successful pilot stage.
The scheme, completed by The Ministry of Justice and the HM Courts Tribunal Service, is now live and anyone who paid a tribunal fee between 29th July 2013 and 26th July 2017 is entitled to have that sum reimbursed.
How can employees claim back tribunal fees?
Claimants who lost their case and therefore did not get their money back via the employer, can claim back issue fees and hearing fees. To do this they need to complete a form and submit it to the HM Courts and Tribunals Service, either by post or online.
What do tribunal fee claims mean for employers?
Although this scheme will primarily be of concern to claimants at employment tribunals, it can also benefit employers. Most businesses who lost a case against a former employee will have had to pay for the claimant’s legal costs. Employers who have been ordered to reimburse fees to claimants can now also claim those fees back. The employer must present evidence that the payment was made to the claimant. Employers are also eligible to seek a refund if a fee has been paid to an employment tribunal and no reimbursement has been paid, or if a representative paid the fee and the employer reimbursed them. There are, however, exemptions to this, particularly where fees were dealt with as part of an agreed settlement.
Third parties, including solicitors, legal expense insurers and family members, who have also paid fees, can also reclaim them.
Businesses and employees should visit Gov.uk for more information and to make a claim. All those that successfully reclaim tribunal fees should receive a full refund along with annual interest at 0.5% calculated from the date of the original payment to the refund date.
Following the rise in interest rates how should construction firms protect themselves? Construction lawyer Jo Cook and Business Disputes lawyer Gareth White from Coodes Solicitors give their verdict.
The Bank of England has raised interest rates for the first time in more than ten years. The first increase since July 2007 has seen the official bank rate being lifted from 0.25% to 0.5%. According to Bank of England governor Mark Carney, interest rates are likely to rise twice more over the next three years.
Because of the rising cost of materials and labour, the new interest rates could have a major impact on construction firms. Put simply, the increase in interest rates will mean an increase in the cost of construction projects. This could create cash flow problems, so it is more important than ever for contractors at every level to protect themselves as much as possible by reviewing their payment terms.
Cash flow is King in construction
There is a well-known saying in the construction industry that “cash is king”. Unfortunately, late payment is still an issue in the sector and many building companies go into administration because of cash flow problems.
‘Pay when paid’ clauses, which used to allow a contractor to pay a subcontractor after receiving their own payment from a client, were outlawed in 1996. However, this practice still exists, causing cash flow problems for building firms. You should seek legal advice if you are subject to such behaviour.
Reviewing your payment terms
Construction contracts usually have a ‘due date’, setting out when the payment is due, and a ‘final date for payment’ which, as the name implies, is the date by which payment has to be made. If, payment is not made by the final date for payment it is overdue. In light of rising interest rates, do you need to reconsider how long you leave between the due date and final date for payment? Would a shorter gap ease some of the burden on your business? You could also consider bringing forward your due date.
It is also worth checking that your payment terms reflect how you invoice. For example, do you invoice weekly while your terms say you invoice monthly? Having consistency across your terms and what you actually do in practice will leave you less vulnerable to late payments and cash flow problems.
Can you charge interest on late payments?
Under the Late Payments and Commercial Debt Regulations 2013, a business is entitled to charge interest at 8% plus base rate on any late payments. In addition, there is a fixed “damages” sum dependent upon the value of the debt. You are able to set a lower level of interest in your terms and conditions. Many firms avoid charging interest because it can damage client relationships. However, you have up to six years from the date of the breach to be able to claim the interest. But beware, if you delay in bringing the claim the court might not award you the full amount for the full period. Legal advice should be sought, whether the claim is immediate or delayed, as it can be difficult to enforce without going through a lawyer.
A building contract can contain a mechanism under which the contract sum increases due to fluctuation events. These events can be increased cost in labour, materials, transportation, currency, taxation and so on. Fixed lump sum contracts generally, by their nature do not permit the contract sum to change due to fluctuations.
A contractor usually accepts a fluctuations risk where the contract period is a matter of months rather than years, although in practice this also depends on prevailing market conditions. It is certainly worth checking if your contract permits price fluctuations and to include such provisions in future contracts.
What if my business does not get paid for work we have done?
If you believe you have not been paid by a client, the first thing to do is to check the terms of your contract to make sure payment is definitely due and owing. If the debt is due and owing, you should consider serving a Default Notice. This is a formal notice demanding payment. The notice usually allows seven to 14 days to correct the breach, depending on the terms of the contract. The Default Notice informs the other party of the breach and gives them an opportunity to correct the breach. This can often lead to repayment quicker than legal proceedings and preserves the contract for the benefit of the parties. Any future breach on similar terms may allow you to terminate the contract.
Most Default Notices need to contain certain information and/or be served in a particular way. You should obtain legal advice before serving one as the effects on the parties can be serious, especially if one is served incorrectly.
Serious or persistent breaches of the contract may allow termination. This is a very serious step to take and you should always obtain legal advice before doing so as otherwise you may be sued for wrongful termination; even if you are owed money by the debtor.
Most building contracts specify that alternative dispute resolution (ADR) will be used to deal with any disputes, including debts. ADR includes mediation and other ways of resolving disputes without going through an expensive court case. A lawyer will be able to guide you through this process and explain the advantages and risks.
Rising interest rates will have consequences for any business. This is a timely opportunity to check your payment clauses in your terms of business and ensure your invoices state interest is payable on late payments. And, if you don’t have any terms of business, now is a good time to rectify that.
If the business you work for is struggling financially it can have a massive impact on your finances and wellbeing. Coodes Solicitors Employment Lawyer Philip Sayers explains what you are entitled to if your employer is insolvent.
It is extremely stressful if the company you work for is failing, particularly if it is struggling to make the monthly payroll when you have your own bills to pay. It is useful to have some knowledge about where you stand should your employer be unable to pay you what you are owed.
First of all, do you know if the business has entered into a formal insolvency event? This may be referred to as administration, liquidation or a creditor’s voluntary arrangement. The Government will not step in until it does, so this can be a frustrating situation for an employee. If the business is running out of money but is not yet formally insolvent, then an employee should seek legal advice, get in touch with ACAS and maybe even bring a tribunal claim, to protect themselves.
What happens when a business becomes insolvent?
When a business becomes insolvent, there will be two likely outcomes for the business and its employees. If it goes into liquidation then the employee will lose their job – with immediate effect in the case of compulsory liquidation.
If it goes into administration or into a creditor’s voluntary arrangement, the company will either be rescued or its assets sold on to a new buyer. In this case, the employee is more likely to keep their position, as the new owner becomes the new employer.
When a company goes into administration, an administrator has 14 days to decide to take on employment contracts or dismiss the employees. If the decision is taken to keep employees on then wages due under that contract are of high priority as creditors. Unfortunately, employees are often left as unsecured creditors in relation to other debts they are owed.
Can I get help from the Government if my employer goes into liquidation?
If the company you work for goes into liquidation, it is not all bad news. Although an employee can’t generally sue an employer who is in liquidation, they can get help from the Government.
Employees can claim from the National Insurance fund via the redundancy payments office for:
Arrears of pay for up to eight weeks
Holiday pay up to six weeks
Statutory notice pay up to 12 weeks (all are capped at £489 per week)
Statutory redundancy pay
What rights do I have if new owners take over the business?
There are many different things that could happen if the company you work for is failing and then bought by another business. There are various different ways businesses will treat employees in this situation as there are many different scenarios.
If the company’s assets are bought your employment may be transferred via what is known as a TUPE transfer, so that you continue working for the new employer. Generally, employees will have the same terms and conditions as well as special protection against dismissal but may not be able to recover any existing debts from the new employer.
Where the assets of a company in liquidation are bought, any remaining employees will not automatically transfer over. The new owners would be free to hire the old workforce under their own terms and conditions, so it is important that you check your new contract.
If your employer is in administration when their assets are bought, you will transfer to the new employer and get protection against dismissal. Again, be aware that the new owner has some scope to change terms and conditions of employment.
Tax on termination pay is set to change in April 2018. Coodes Solicitors Employment Lawyer Philip Sayers explains what it could mean for employers.
In the past, there has been criticism around how businesses and employees are taxed when an employee leaves without having to work their notice. Complaints are often centred around the system being too complicated and, in some instances, employers taking advantage of the situation.
Previously, where contracts did not contain a right for the employer to make a payment in lieu of notice but the employer opted to make one anyway – rather than have the employee work out their notice – the general position was that the payment in lieu could form part of a tax-free £30,000 exemption. In that scenario any restrictive covenants in the employee’s contract would also become nul and void.
The new legislation should mean that that it will be easier to manage the taxes and harder to manipulate. However, these changes will have an effect that employers should be aware of.
How tax on termination pay is set to change
If an employee receives a payment of £30,000 or less as part of their termination pay, then much of that payment is generally exempt from income tax and national insurance contributions but it depends on what elements make up that sum. While this threshold will remain the same after April, there will be a number of other changes.
Firstly, all pay in lieu of notice amounts will be taxable, regardless of whether an employee has a contractual right to this pay or not. This replaces the previous position whereby, in the absence of a payment in lieu clause, notice pay could generally form part of the £30,000 tax exemption.
Any earnings received post-employment, which would have been treated as earnings if that person was still currently employed, will also be taxed. Payments for what is known as ‘injury to feelings’ as compensation for discrimination will also be taxable, whereas the current position is that they are tax free in most scenarios.
In addition to this, foreign service relief will be abolished, meaning that those who have worked abroad will work to the same taxation criteria as if they had worked solely in the UK. This has been abolished as it was seen to be not be indicative of today’s global workforce.
What does that mean for employers?
While the new legislation will mean a simpler termination process, there may be some financial implications.
Terminations, under the new legislation, will likely be at a higher cost to employers as all pay in lieu of notice payments are taxable. Also, employers should be aware that they may have to offer more money to terminated employees as that employee is likely to receive a lower amount due to the tax deducted.
What happens if employers get it wrong?
If tax and/or national insurance contributions on termination pay is incorrect then HRMC will normally deal with the employer as they have responsibility for unpaid tax under PAYE regulations. That means that although the tax in question is largely the employee’s income tax the employer may have to pay it and, if so, the employee will receive a tax credit for it.
In addition, the employer may have to pay penalties on late or inaccurate tax or national insurance contributions. So it is vitally important to insure that any termination pay is properly taxed as subject to the new legislation.
Sonya Bassett, Partner and Head of Corporate and Commercial at Coodes Solicitors, outlines the six stages of selling a business.
Whether you are selling a small business or a multi-national firm, the process is much the same. Here are the six key stages of selling a business.
1. Structuring the sale
There are, essentially, two ways to sell a limited company. One is to sell shares of the company that owns the business, the other is to sell the assets that make up the business. The two are fundamentally different. If you sell the shares of the company then all its assets, liabilities and obligations are also acquired by the buyer. If you sell the assets, then it is just the assets together with any liabilities that the buyer agrees to take on.
If you are selling a sole trader or partnership business this will be an asset sale.
There are important tax considerations to be taken into account when structuring a sale. A share purchase or an asset purchase will come with different tax considerations for the seller. You will need to discuss the various tax implications of each type of sale with an accountant. This will help you decide how the sale should be structured.
It is also important to be prepared for any sale of your business as much as two years before the sale. Is your share structure clear and do you know how any sale may be progressed under the terms of your shareholders’ agreement? Is it clear how your assets are held? Is your Intellectual Property registered? Have you settled any bad debts or outstanding claims?
You need to agree whether there will be a cash payment at completion or cash in stages or whether payment is by way of shares. You may also wish for the current management team to work for a certain period to hand over or even run the business for a period of time. Therefore you may want to incorporate earn out provisions such that the team only receive some of the consideration on achieving certain target
2. Establishing a confidentiality agreement and heads of terms
Before the seller and buyer can start negotiations, a variety of agreements should be signed. These can include a confidentiality agreement, exclusivity agreement, and heads of terms. Sometimes called ‘letters of intent’ or a ‘memorandum of understanding’, a heads of terms sets out the terms of a commercial transaction agreed in principle between both parties.
At this stage it is advisable to seek a lawyer’s help with drafting these agreements. In particular it is not sensible to try and agree heads of terms without legal input. You could agree in principle to something that you may later regret and which in turn causes you to lose your bargaining power.
3. The process of due diligence
Once the preliminary agreements are settled, the detailed and complex process of due diligence can begin. This is a business, legal and financial investigation of the company in preparation for a sale.
It may be the case that this was started very early on in the process so as to ascertain whether or not the business is worth acquiring. The potential buyer will start gathering information to build as complete a picture as possible. This information may impact on the negotiations and the price the buyer is prepared to pay. The due diligence process will usually establish any warranties and indemnities, which may be requested by the buyer, which a lawyer can advise you on.
4. Securing key issues for the transaction
There will be a number of issues to consider as part of the transaction, from arrangements for employees and their pensions, to property, environmental issues, IT and IP. The buyer and seller will also need to secure a number of consents and approvals, including from regulatory bodies and from their Board and shareholders if it is a limited company.
5. Signing the key documents
There will be a number of official documents required to secure a business sale. The asset or share purchase agreement is the key document for transferring the business from one owner to the next. There are a number of considerations when drafting or signing an asset or share purchase agreement so good legal advice is essential.
6. Completion and post completion
When the sale is completed, the business is now owned by the buyer. Practically there will be a huge amount for both the buyer and the seller to do, from making the necessary filings and returns to contacting customer, clients and suppliers to ensure that the goodwill in the business is maintained. Having good advisors is key here as by this stage both parties should have absolute clarity as to their ongoing obligations under the agreement as well as any post completion matters that must be addressed. Should any changes need to be made to any contracts it is a good idea to speak to a lawyer especially if it involves changes to employees’ terms.
If the buyer has purchased a limited company there will be a fair few amendments and filings to be made at Companies House and in the company books.
Sarah Evans of Coodes Solicitors’ Family Team welcomes changes to the family courts, which are designed to help protect partners and their children from domestic abuse.
In October 2017, important changes came into family courts in England and Wales to help protect partners and their children against domestic abuse. The changes are designed to help safeguard children and additionally to prevent any victim of abuse being cross examined in court by their alleged abuser.
Perhaps the most significant change is that the Family courts must now very carefully consider whether or not there should be contact between a child and a perpetrator of domestic abuse. The new guidance makes it clear that Judges ought not to order contact before this has been very carefully assessed and explored. Whilst Practice Direction 12J, which sets out the guidance the court ought to follow in these type of cases, has been in place for some years, the language used has been considerably strengthened by these recent changes.
Before the recent change, orders for contact were sometimes put in place and then later found to be entirely unsafe. Indeed, Women’s Aid has said that 20 children have been killed by a parent who was a known perpetrator of domestic abuse. Most of these cases followed a court order meaning the children had to have contact visits or even live with an abusive parent. The changes aim to prevent such a tragedy from happening again.
I have recently been involved with cases where parents making allegations of abuse have told me they feel far safer knowing contact will not be arranged between their former partner and children until matters have been carefully assessed. They feel confident knowing that the changes acknowledge that domestic abuse between partners is harmful to children.
Of course there may well be cases where the partner is subsequently found to have not perpetrated any abuse at all and will have lost possibly months of contact with his or her children. This is a very unfortunate consequence and undeniably a break in contact between a parent and their children can be harmful, upsetting and confusing for the children involved. My view, however, is that the courts must err on the side of caution to protect children and victims of abuse alike where abuse is suspected.
Another fundamental change in the guidance is that alleged abusers are now, largely, prevented from cross examining a former partner in court. A cross examination can last for hours and is often highly stressful. Previously abusers have used this as an opportunity to abuse their victim further. Now the Judge is asked to consider conducting such a hearings as an ‘inquisitorial’ or ‘investigative’ process where the Judge themselves conducts the questioning rather than the parties. This is a key change to protect victims during the court process and one which has been readily adopted by the courts in my experience.
Sarah Evans works closely with a number of organisations supporting victims of domestic abuse including the Susie Project and Independent Domestic Violence Advocates. For more information or advice on divorce or any Family matters, contact Sarah Evans in the Family Team at Coodes Solicitors on 01579 347600 or email@example.com