7037 Willans Law News W12 · Page 2 Law News Client news Paul Symes-Thompson and Susie Wynne have...

Our commercial property team expanded in July with the arrival of Alasdair Garbutt who moved from Charles Russell LLP.

An experienced commercial property specialist who began his career with Nabarro LLP, Alasdair deals with a wide range of work in relation to sales and acquisitions, development transactions, landlord and tenant and property management matters. He has particular expertise in property investments, property management, clawback, overage, options, business leases and development and security documents.

Law NewsNewsletter for commercial clients Winter 2012

Willans LLP ı solicitors

www.willans.co.uk

Property ‘development’

Once again we have been recognised as a strong player in the 2012 edition of the Legal 500, being rated for our work in corporate & commercial, dispute resolution, property litigation, human resources, commercial property, charities, intellectual property and family law. Eight partners have been named as leading lawyers in the region, including Paul Symes-Thompson, Margaret Austen, Jonathan Mills, Nick Cox, James Grigg, William Morse, Laurence Lucas and Simon Brazier.

We are delighted with this year’s results. Legal 500 is an independent guide, and fi rms and individuals are recommended purely on merit.

Legal 500

Greetings

As before, we won’t be sending corporate greetings cards at Christmas. The money we save on printing and postage will, instead, go to this year’s chosen charity, Cobalt.

Online bookmaker lost out on small print

Can you be certain your online terms are enforceable? In a recent case, the court ruled that the contract between an online bookmaker and a customer was not binding.

The case involved one Colin Cochrane, who had registered with Spreadex, the online bookmaker. He accessed his account from his girlfriend’s computer but failed to log out correctly. Spreadex later informed him that his account had accumulated a debt of £50,000.

Mr Cochrane claimed that his girlfriend’s young son had used the account without his permission. Spreadex were not sympathetic and demanded immediate payment. When Cochrane refused, they began legal proceedings, relying on a term of their customer agreement that said: “You will be deemed to have authorised all trading under your account number”. As with so many websites, this formed part of lengthy terms to which users often click ‘agree’ without actually reading them.

There were two issues for the court to decide: fi rst, was there a contractual relationship? Although Mr Cochrane initially signed up to the terms and conditions, it was found that access to the website

was designed to facilitate ‘future transactions’: these would be the contracts, rather than the right of access itself being the contract.

Second, was the term fair? Even had there had been a contract, the court said the term on which Spreadex relied was too widely drawn and unfair. Its rationale would have meant Mr Cochrane was responsible for his account even if it had been hacked into by someone in a different country. The High Court found in Mr Cochrane’s favour.

As online transactions in general become the norm, more cases of this nature will end up in court. Businesses with an online presence should give thought to the way they operate and when they intend contractual relations should be formed. The case shows that contracts are not necessarily formed at the point the user signs up to a website, but instead may be the time they start using it to order products or services. It also demonstrates the importance of careful drafting to ensure the terms and conditions they want to apply will be enforceable.

Paul Gordon [email protected]

Law News

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Client news Paul Symes-Thompson and Susie Wynne have recently completed a substantial acquisition worth in excess of £20million for a manufacturing client with a worldwide reputation.

Susie Wynne recently completed a new lease for leading legal recruitment consultancy, Austen Lloyd, in connection with their office premises in Queen’s Square, Bristol.

Wheel clamping – the new picture

The few exceptions relate to government agencies and, for example, some car parks that may be used by the public at railway stations, airports or local authority housing.

Now, the alternative for private landowners is to impose parking charge notices (tickets) against illegally-parked cars and to pursue vehicle-keepers who fail to pay.

Parking enforcement on private land remains unregulated and relies on the laws of contract and trespass. Put simply, as long as there is adequate signage, you are deemed to have accepted the parking terms and sanctions. Parking charge notices can be left on the illegally-parked vehicle or posted to the vehicle-keeper (if, for example, the non-compliance is detected by camera).

Other changes to vehicle laws include extending police powers to remove vehicles parked on

private land. This ensures landowners have the means to keep their land clear from obstructive or dangerously-parked cars.

In the past there have been many instances of cowboy clampers preying on motorists by charging excessive release fees. If rogue firms now switch to handing out excessive parking notices, an independent appeals service (POPLA) will allow drivers to challenge the penalties.

Only parking enforcement companies who are members of the British Parking Association are allowed to obtain vehicle keepers’ details from the DVLA. However non-private landowners may continue to issue tickets and enforce them through the civil courts.

Alasdair Garbutt [email protected]

Live/work use for planning purposes

For planning purposes, this use is classed as sui-generis (meaning ‘of its own kind’ or ‘the only one of its class’). To comply with its planning designation, the accommodation must have a genuine mix of residential and business use .

Homeowners should be careful that they are not simply ‘home working’. For example, working at home from a computer one or two days a week would constitute using the property as a dwelling house, with the ‘working from home’ part being ancillary to that use. This would be a material change of use from live/work and would be likely to require planning permission.

Ultimately, the decision as to whether a proposed use meets the live/work accommodation criteria

is a matter for the local planning authority to decide. Each authority has different opinions: some have guidance on what constitutes live/work accommodation which may assist.

It may also be worth looking at how the building was used in the past and whether the previous owner used it as genuine live/work accommodation. Continued use in breach of a planning condition could be immune from enforcement action under certain conditions when a certificate of lawful use can be granted.

Frank Smith [email protected]

The description ‘live/work accommodation’ is often used for a barn or other rural property that has been converted for domestic use.

From October, it became a criminal offence to wheel-clamp on private land.

Winter 2012

www.willans.co.uk

Frank Smith is currently handling the sale of a large farm near Cheltenham comprising a farmhouse, farm buildings and 110 acres of mixed arable and pasture land divided into six lots.

He has secured a deal where the seller may be entitled to further payment post-purchase, providing the buyer can obtain planning permission for residential or commercial development on the land.

The case of the dodgy banister

Plans to boost UK house building, jobs and the economy

It is common for tenants to make alterations to their properties. Generally these are approved by the landlord but not always. A recent High Court decision is a reminder to landlords of the importance of checking their properties for any unauthorised alterations.

In the case, Hannon v Hillingdon Homes Limited, Ms Morrison was one of Hillingdon’s tenants. Some twenty years earlier, without consulting her landlord, she had removed all the banister rails and posts from the staircase in the property.

Mr Hannon was a heating engineer who visited the house on behalf of the landlord to mend the boiler. He fell over the side of the staircase, causing permanent damage to his ankle. As a result, the 46-year old lost his job and his income and he sued Hillingdon Homes, arguing that the house was defective. He referred in particular to the Defective Premises Act which, he said, imposed a statutory duty on the landlord to protect him from such defects.

The court agreed that the absence of banisters was a defect: a banister is an integral part of a staircase, which forms part of the structure of a property. In removing the banisters, Ms Morrison was in breach of the terms of her tenancy agreement. Although the landlord was unaware of what she had done, they were responsible for correcting the defect and were found liable to compensate Mr Hannon.

If you are in charge of premises, you need to carry out assessments of the potential dangers to individuals in your properties and make repairs. Even if the premises have been in the same state for a long time and there have been no mishaps, that does not let you off the hook for any accident that may happen in the future.

Jonathan Mills [email protected]

The government’s recently announced ‘major housing and planning package’, aims to boost affordable housing, the construction sector and major infrastructure projects. These are some of the measures:

• Developers who can prove that a local authority’s costly affordable housing requirements are making their development project unviable will see them removed.

• The Infrastructure (Financial Assistance) Bill will include guaranteeing the debt of housing associations and private sector developers for major infrastructure projects.

• Big commercial and residential applications are to be directed to a major infrastructure fast-track process. Where councils are poor at processing

decisions, developers can opt to have their decision taken by the planning inspectorate.

• More applications will go into a fast-track appeal process.

• Permitted development rights are to be increased to enable extensions to homes and businesses for a temporary three-year period. Permitted development rights will also allow change of use from commercial to residential purposes.

As with all such schemes, the devil will be in the detail. We look forward to seeing how things operate in practice once they are introduced.

Susie Wynne [email protected]

Jonathan Mills – rated in Chambers UK as: “an outstandingly responsive practitioner with strong property knowledge”

The recent case of Makro Properties Limited and another v Nuneaton and Bedworth Borough Council provides businesses with an opportunity to save business rates by extending empty rates relief.

Commercial property qualifies for 100 per cent relief for the first three months, after falling empty (six months for industrial property) after which full business rates apply. But if the property is re-occupied for six weeks or more before again falling empty, then another six-month exemption applies. There appears to be no limit as to how many times this can be done.

In the case, following the surrender of their lease, Makro stored a few pallets of archived documents for six months at the premises by arrangement with their landlord. When that licence expired, they applied for a further six month rate-free period. The council refused but Makro challenged and won on appeal.

Even though the stored documents occupied only 0.2 per cent of the warehouse’s floor space, the court ruled that this amounted to ‘actual occupation’ for the purposes of business rates. Therefore a new period of empty rates relief applied when that occupation ended.

The decision means that a landlord seeking to minimise the burden of rates on empty premises can let the property on a short-term basis of six weeks or more, then successfully trigger a fresh period of empty rates relief. Even if the main aim of the letting is to gain empty rates relief, it will be successful. Providing certain conditions can be met, the landlord will be able to claim for empty rates relief when the occupation comes to an end.


Maximising empty rates relief

Law News

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Client news Susie Wynne and Paul Symes-Thompson recently completed the sale of Winchcombe-based Brynteg Books. Susie handled the property work and Paul dealt with the sale of the assets of the business.

Nick Cox recently managed a commercial mediation at our offices at the request of two Bristol law firms. It concluded at 8pm on a Friday, happily to the satisfaction of both parties and their solicitors.

Partner Susie Wynne – experience includes portfolio management and investment work for high street names, telecommunications sites and large scale property finance.

Mind your manors!Who is liable for stray livestock on

public rights of way?

Deadline for PCCs

‘Manorial rights’ are rights an estate may possess by virtue of owning the lordship of the manor. Traditionally they bound the surface owner of the land because ‘of overriding interests’. So the buyer of the surface land would purchase it subject to those rights, even if they are not shown at the Land Registry.

However, anyone wishing to claim manorial rights must ensure they are registered before 13 October 2013. After that date, anyone who buys a property with no notice on the registered title that someone else claims the manorial rights will acquire the property inclusive of such rights.

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

There are any number of legal risks associated with stray livestock on public rights of way or access land. If people are injured as a result, the owner could be liable for negligence under a range of different bits of legislation.

Midnight on 12 October 2013 is the deadline for parochial church councils to identify and protect themselves against chancel repair liability. After that date, they risk losing the right to enforce liability against anyone who buys affected land and they may also be seen as failing to fulfil their duties as charitable trustees.

Rural news

Specialist rural affairs lawyer, Frank Smith is a nationally-recognised expert in agricultural, rural and equine matters.

Unfair dismissal claim by deceased employee’s estate

Enforcing restrictive covenants

Winter 2012

www.willans.co.uk

In the case, Fox v British Airways Plc, 44-year old Gary Fox was dismissed on the grounds that he was no longer physically capable of performing his duties. He died five days later. His father began proceedings for unfair dismissal and discrimination but running alongside this was the issue of his death-in-service benefit.

Had he died while still employed, his estate would have been entitled to receive £85,000. On a strict interpretation of the circumstances, the estate was no longer entitled to recover this sum.

Initially, a tribunal dismissed the family’s claim, saying that they could only recover £350 for lost life insurance cover. On appeal, the EAT (Employment

Appeals Tribunal) disagreed with this ruling. They found that, where the employee died shortly after dismissal, the loss amounted to the full sum payable on death and not just the premium required to ensure the appropriate insurance cover.

The case has now been referred back to the tribunal for a ruling on the merits of the unfair dismissal and discrimination claim.

William Morse [email protected]

A recent case illustrates the difficulties employers can face when trying to enforce restrictive covenants in employment contracts. In CEF Holdings Ltd v Mundey and others, the court refused to restrict a group of individuals from competing with their former employer.

A term restricting a former employee’s activities is void for being a restriction on trade unless the employer can show that such a term is reasonable and necessary to protect an interest.

In this case, a number of CEF’s employees, including two managers, joined Yesss Electrical, a business set up to compete with CEF. The managers had no restrictive covenants in their contracts. However, their former employer argued that they were in breach of their duties owed to CEF and also that they had tried to entice former colleagues to join Yesss. All the remaining defendants had express restrictions in their contracts. CEF also applied for a ‘springboard injunction’, a mechanism to prevent the managers gaining an unfair early advantage by using contacts they had made while with CEF.

The court found that the express employee restrictions were invalid because they were unreasonably wide. They also took account of the absence of comparable restrictions for the managers and the fact that the employees only had to give a week’s notice - both of which undermined CEF’s argument that they had a legitimate and vital interest to protect. The application for a springboard injunction was also rejected because of the absence of post-termination restrictions in the managers’ contracts and the fact that they did not owe any fiduciary duty to CEF.

Restrictive covenants are a grey area of the law: just because they are written down does not mean they are automatically enforceable. Clearly when deciding if restrictions are reasonable, the courts now take account of comparable covenants and length of notice periods in fellow employees’ contracts, so this is an area where employers must tread carefully.


Susie Wynne acted for clothing retailer Weird Fish in the lease of premises in the designer village Gunwharf Quays in Portsmouth.

Laurence Lucas acted for Uninterruptible Power Supplies Ltd, a member of the Kohler Group, in the purchase of Woodgate House in Hook, which the company plans to use as a new HQ.

Partner William Morse – Legal 500 recommended for skilled employment advice.

In an unusual case, the EAT ruled that the dependants of a deceased worker could claim the loss of his death-in-service benefit, despite the fact that he had been dismissed five days before his death.

But there can be all sorts of consequences when employees are freely posting in a public forum, for example, the case of Paul Chambers who was prosecuted under the Communications Act after unwisely posting a bomb joke on Twitter. He lost two jobs in the process and it took two years before he managed to overturn his criminal conviction.

Where work-related misconduct is discovered as a result of information on a social networking site, employers are justified in taking disciplinary action. In Gill v SAS Ground Services UK Ltd, the employee took part in London Fashion Week while allegedly being on sick leave. As a result, a tribunal ruled that her dismissal for gross misconduct was fair.

Instances of workers venting frustrations about the workplace are increasingly common. Whereas in the past, one might let off steam to workmates in the pub on a Friday evening, the ‘steam’ can now be published for all to see. If the comments are defamatory, there may be a cause of action in libel or the employer may instead decide to dismiss the individual.

Employers should bear in mind that misconduct stemming from comments posted online needs to be treated in the same way as any other type of misconduct. Sacking someone on the spot for an inoffensive comment that didn’t name the business is unlikely to be seen by a tribunal as grounds for dismissal. An employer needs to take into account factors such as the employee’s role in the company, the risk of reputational damage, the seriousness of the alleged misconduct and the disclosure of any confidential information.

Just because something can be seen on the internet does not mean that normal disciplinary procedures can be circumvented. The fairness, or otherwise, of dismissal will still be determined by reference to the Employment Rights Act 1996, even though the principles were drafted long before Mark Zuckerberg dreamt up ‘Thefacebook’.

Patrick Peake [email protected]

Law News

www.willans.co.uk

Social Media

Many employers now actively encourage staff to use social media, such as Linkedin and Twitter, to boost the firm’s online profile.

A million dollar case, brought under the Sale of Goods Act, raised some interesting points to consider when drafting payment terms and ‘no set-off’ clauses.

The case of FG Wilson (Engineering) Ltd v John Holt & Company (Liverpool) Ltd arose because Holt was unable to keep to the payment terms set out in Wilson’s conditions of sale, as well as other terms allowing Holt an extended line of credit.

Among other things, Wilson had included a ‘no set-off’ clause. This barred buyers from setting off the price of Wilson’s products against any other sums due, without prior written agreement.

Wilson’s claim, worth US$12.6m, was for the price of generators and spare parts sold and delivered. Confident in the strength of their position, they applied to court for summary judgment.

Holt disputed the application, arguing that the claim could be set off against another action they had brought against Wilson for breach of an unrelated contract. They said Wilson were not protected, in this instance, by the ‘no set-off’ clause because of the retention of title (ROT) clause in their payment terms. By this, Holt meant that title to the products

had not yet passed to them because they had not been paid for.

The High Court found in favour of Wilson. Despite the ROT clause, they found that title to the goods had passed to Holt because they had been sold on to Holt’s customer.

Holt had also argued that the ‘no set-off’ clause was inherently unreasonable but the court disagreed. The clause was not too narrowly drawn and was reasonable, given the length of Wilson’s credit terms, the high value of the goods supplied, their need to maintain cash flow and Holt’s poor record in terms of payments and general financial stability.

Many businesses will be facing similar situations in the present economy. A review and update of terms and conditions of sale, especially payment terms, can help avoid tangled and costly disputes like this one.

Katie Froude [email protected]

Million dollar case rested on small print

Solicitor Katie Froude works in our litigation team, handling a wide range of work from contractual and employment disputes to landlord and tenant matters.

Trainee Patrick Peake worked as an employment law adviser at the conciliation service, ACAS after completing his legal studies.

Winter 2012

www.willans.co.uk

New dawn for data protection

One consequence of this shift to digital-only working is that of data protection. Now the EC has published proposals for a major overhaul of data protection legislation – which is currently scattered across an array of directives and member states’ own laws.

Since key changes could be brought in as early as next year, businesses will want to be aware of the potential impact.

Individual rights

What is immediately striking is the general drive to give greater protection to individuals’ rights. New definitions make it clear that ‘personal data’ includes anything that can identify an individual. This would apply whether the data were held by the data controller or a third party that, when combined, could identify someone. (Currently in the UK, the same data controller must hold all data necessary to identify an individual.) In practical terms, this could be important where rights holders hand over IP addresses to internet service providers as they can no longer argue that IP addresses are not personal data. Individuals would also gain the ‘right to be forgotten’, enabling them to have their data deleted unless there is a compelling reason to retain it.

Implied consent

There are attempts to move away from the idea of implied consent for the use of data. The UK currently allows data controllers to work on this basis but it is likely that people will have to give much more explicit consent for their data to be used and stored. It is not yet clear what this would mean in practice but probably the days of merely ticking a box online will become a thing of the past.

Cross-jurisdictional issues

An interesting aspect to emerge is the potential cross-jurisdictional effect of the regulation. The rules extend to data controllers outside the EU if the processing relates to either the offer of goods or services to data subjects within the EU, or the monitoring of their behaviour.

This would bring large US companies such as Google, Facebook and Bing into the new regime because of their use of methods like targeted advertising and tracking. Interestingly, EU law defines a child as ‘under 18’ but in the US it is ‘under 13’. This disparity could have huge implications for social media so we can expect heavyweight lobbying in an effort to water down the scope of the proposed change.

If the regulation survives in its present form, businesses of all sizes will be affected. The investigative and enforcement powers of data protection authorities would be significantly strengthened. Individuals’ rights would also be beefed up. Businesses would have to be far more open and transparent about the way they store and transfer data.

Inevitably there will be a knock-on for businesses in terms of the greater administrative burden as well as adapting to a raft of other changes. There is still work to be done but there is a clear impression that data protection is going to become a much bigger issue for every business.

Simon Brazier [email protected]

Partner Simon Brazier – an experienced, ex-City lawyer with particular expertise in IT, e-commerce and internet-related issues.

Although ‘the paperless office’ is still a way off, we are all now processing and storing more digital material than ever.

Partner Nick Cox is acting on an increasing number of complaints raised against banks over the mis-selling of interest rate hedging products.

These products were offered to thousands of small- and medium-sized businesses when they took out loans. They were told by their banks that the product would provide an ‘insurance’ against the risk of interest rates rising. But as interest rates have instead fallen to historic lows, many firms have been left sitting on catastrophic losses.

Businesses who consider they have been mis-sold these products should seek legal advice without delay.

For more information, contact Nick Cox [email protected]

Interest rate swaps

Nick Cox – Legal 500 rated for his expertise in commercial and property litigation.

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

Law News Winter 2012

www.willans.co.uk

Boundary disputes can be a nightmare for all concerned. Those involved are often prepared to fight tooth and nail over the smallest strips of land and emotions can run high.

The madness of boundary disputes

In the case of Acco Properties Ltd v Severn, the judge helpfully summarised some of the legal principles that will apply in resolving such disputes.

If the land is registered, the plans filed at the Land Registry will usually show only general boundaries, not exact positions. The same is true of ordnance survey plans.

The starting point in determining a boundary is what is written in the original conveyance, together with the conveyance plan. If these do not clarify matters, the next thing to look for is evidence of features (eg hedges, fences, walls, meter housings etc) that existed at the time of the conveyance, as well as subsequent user conduct.

The Acco case also emphasised the importance of bringing certainty to the boundary rather than leaving it ‘fuzzy round the edges’.

Even if the original boundary can be established, a different one may be created by means of ‘adverse possession’. This is where one party has treated part

of the property as their own, contrary to the true owner’s rights, eg fencing off an area that does not belong to them.

In a dispute, the court will also look carefully at whether there are any boundary agreements in place. These may be informal and need not be in writing; in fact they are often simply verbal or implied agreements.

The Acco case was, in fact, settled on the basis of an informal agreement that had been struck at a meeting to discuss the boundary. At that point, it was understood that, in cutting down two trees, one of the parties was doing so on his own land. The boundary line was, therefore, inferred from this.

The judge in the case described litigated boundary disputes as “economic madness”. Given the uncertainties and potential cost, alternative methods of resolving disputes, such as mediation, are a very attractive and increasingly popular option.


Partner Paul Gordon – an experienced litigator and mediator, used to handling complex commercial proceedings

Contact details

Willans LLP | solicitors 28 Imperial Square Cheltenham Gloucestershire GL50 1RH

01242 514000 [email protected] www.willans.co.uk

Company/commercial

Paul Symes-Thompson [email protected]

Simon Brazier [email protected]

Conveyancing

Bridget Redmond [email protected]

Divorce & family law

James Grigg [email protected]

Employment law


Litigation & dispute resolution

Nick Cox [email protected]


Personal injury law

Nick Richardson [email protected]

Property & construction

Jonathan Mills [email protected]

Laurence Lucas [email protected]


Rural business land & estates

Frank Smith [email protected]

Wills, probate & trusts

Ruth Baker [email protected]

Charity law

Margaret Austen [email protected]

Contact

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

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7037 Willans Law News W12 · Page 2 Law News Client news Paul Symes-Thompson and Susie Wynne have...

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