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Proprietary Estoppel Explained

Proprietary Estoppel Explained

Proprietary estoppel is a principle in law, where one person claims that they have been promised property and have put themselves at a disadvantage in expectation, but ultimately have not received what they claim they were promised. This is best explained by way of case authorities. One of the more famous cases is that of Davies & Anor v Davies [2016] EXCA Civ 463 which provided some guidance in relation to the courts view of claims based on proprietary estoppel.

The case involved a family who run a farming business. Representations were made to the daughter to the effect that she would inherit the family business. Throughout the years the family, like many others had disagreements and the intentions of the parties varied. The case was brought by the daughter to seek a stake in the business and the assets. She had placed reliance on the representations made by her parents and the reliance on these representations had led to detriment.

The judge at first instance held that the daughter had, as a result of her parents' representations, formed a number of different expectations. At times she understood that she would inherit the farm and business and, for a period of some years, she believed that she had already been made a partner in the business.

In relation to the question of detrimental reliance, the trial judge found that this was not a case in which the daughter "positioned her whole life on the basis of her parents' assurances". The judge identified two broad strands in the detriment that she had suffered:

  1. working for long hours on the farm without full payment; and
  2. the loss of the career (with shorter hours and better pay) that she would have had, had she not worked on the farm.

In the first instance the court was satisfied that the daughter had a case and £1.3 million was awarded. The decision was appealed to The Court of Appeal and the award was reduced to £500,000.

The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity (b) reliance by the claimant on that assurance and (c) detriment to the claimant in consequence of his reasonable reliance.

In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant's assurances against any countervailing benefits he enjoyed in consequence of that reliance.

Financial abuse of the elderly - what can you do?

Financial abuse of the elderly - what can you do?

Financial abuse of the elderly is on the rise.  The number of cases we see as a firm is increasing year on year.  From a personal view point it is disheartening to think that the most vulnerable of our society are being treated this way.

The law makes provision for the care of the elderly and there are steps that can be taken to help protect the elderly.   A deputyship or a lasting power of attorney (LPA) can be set up.  An LPA deals with the property and financial affairs, or for health and care.  An LPA appoints usually one or two people to look after these affairs on your behalf.  You can make provision for up to four people to be noted on the LPA.  These are used when a person feels that it has become too much to deal with finances, property or health care.  They appoint someone who can take care of matters on their behalf.  If you or a family member need help setting up an LPA or a deputyship then we, as a firm, can help you out.

If you are named on an LPA then you are acting in a position to trust.  In being named on an LPA you have numerous duties to undertake and legal obligations.  These should be explained to you by a solicitor when drawing up the LPA.  If this does not happen then you may have a case against the solicitor who you paid to advise you.  An LPA is a serious legal relationship and they should not be taken lightly.

If you breach your duties under the LPA then you may find yourself liable to both criminal and civil proceedings.

As a firm we specialise in these cases and we can help when a loved one has been financially abused.  We can help to get back monies that have been taken and ensure they are given back to the victims.  Ultimately we strive to look after our clients and ensure their misappropriated items and/or monies are returned and there is sufficient protection to stop this happening again.

If you have concerns about the treatment of an elderly family member, friend or acquaintance please feel free to call us.  The only way abuse of the elderly cases will be irradiated is by outing the guilty parties and making sure justice is served, and as with anything prevention is better than cure, make sure you have adequate protection in place to stop any abuse before it starts.

A Guide to the Court Process

A Guide to the Court Process

In some cases it isn’t possible to agree a suitable compensation settlement with your opponent and so you have to take Court proceedings. The purpose of Court proceedings is so a Judge can look at all of the evidence and decide whether the opponent is legally responsible for your accident. The Judge also decides upon the amount or order that you are entitled to.  This guide predominantly looks at the court process under CPR Part 7 as it is known (

As the person making the claim you will be known as the Claimant. Your opponent will be referred to as the Defendant. To start the Court proceedings, your solicitor, or you yourself, will prepare documents which set out your claim (known as a Claim Form and Particulars of Claim) and send them to the Court. The Court will then send these documents on to your opponent who will normally have four weeks to respond.

After your opponent has sent you the document setting out their case, known as the Defence, a Judge will look at the claim and issue a list of instructions (known as Directions) for both you and your opponent to follow. The purpose of these Directions is to make sure all of the evidence is gathered and sent to the Court so the Judge can make his or her decision.

Directions include a timetable to follow. You will have to send any documents that are relied upon and your witness statements to the opponent by the dates laid out in the timetable. Your solicitor will prepare your statement for you, as well as statements for any witnesses who saw your accident or can give extra information about your injuries.

The Court will decide what witness experts reports you and the opponent are allowed to rely upon. For claims that are valued at under £25,000, the opponent is usually not allowed to get their own experts’ reports but they may be able to ask questions of your experts.

If an agreement cannot be reached beforehand, the Court will set a date on which the Judge will make his decision (known as a Trial). Usually, both you and your opponent will need to attend Court for the Trial. Whilst this may seem daunting, your solicitor, if you choose to instruct one, will go through everything with you and arrange for someone to represent you at the Trial. It will usually be a Barrister (also known as Counsel) who represents you at the Trial, and they will normally meet you beforehand to run through everything with you.

After your Barrister and your opponent’s Barrister have made their arguments, the Judge will make a decision, called a Judgment. Sometimes, in more complicated cases, the Judge may not give his Judgment on the day but take some time to think about it before giving his or her decision a few weeks later.

Electronic Bill of Costs Implemented Today

Electronic Bill of Costs Implemented Today

Today marks the date which some Costs Lawyers have dubbed “E-Day”; the introduction of the electronic format bill of costs. For readers unfamiliar with the new electronic bill, this is now mandatory for any cases in which work has been done after the 6th April 2018.

Whilst on the face of it a simple move to modernise and develop the process of costs recovery, the changes will have far reaching implications for firms and practitioners - both in respect of how they work, and the way in which they receive remuneration for their services.

Lord Justice Jackson outlined in his final report (December 2009) that “the bill format must be compatible with existing time recording systems, so that at any point in a piece of litigation a bill of costs can be generated automatically”.

In theory, I am sure that most would agree that Jackson LJ’s past proposal would be both useful and advantageous. However, in reality, the changes which have now come into effect assumes that each fee earner will accurately record their time to the same standard and have access to advanced (and costly) case management software.

In further development of the rules, work within the new format bill of costs must now be split into phases, tasks, activities and expenses.

Litigators will be familiar with the 10 primary phases (not including contingencies) in which work must be split when preparation of a Precedent H costs budget is necessary. Tasks are further sub-categories in which the nature of the work done within a particular phase must be defined. Activities represent a brief summary of what work has been done within in a particular phases and task i.e. the task – Plan, Prepare, Draft Review.

To put the above into perspective, a typical phased bill of costs would require work to be placed within 1 of the 10 budget phases only. With the introduction of the additional sub-categories, that same work is now required to be further broken down into 1 of 15 primary phases; 41 tasks, 10 activities and 15 expenses.

Clearly, the new requirements to claim for costs will now take on a much more involved approach from both fee earners and Costs Lawyers. This will no doubt result in preparation of an electronic bill of costs which by its own nature is many times larger than a traditional bill of costs. In addition, should a matter procced to Detailed Assessment, it is likely that any hearing will now require additional time and Court resources.

Turning to the rules, Practice Direction to CPR 47.6 sets out the circumstances in which an electronic bill of costs must be used.

5.1 “…The circumstances in which bills of costs must be electronic bills are that—

(a) the case is a Part 7 multi-track claim, except—

(i) for cases in which the proceedings are subject to fixed costs or scale costs;

(ii) cases in which the receiving party is unrepresented; or

(iii) where the court has otherwise ordered; and

(b) the bills of costs relate to costs recoverable between the parties for work  undertaken after 6 April 2018 (“the Transition Date”).”

Fast-track cases are excluded. This is no doubt largely predicated on the move to make the majority of fast-track cases subject to fixed costs, as per the provisions currently contained within CPR 45.

Of course, whilst the specific exemptions are clear within the above outlined provisions, what does raise eyebrows is the wording of 5.1 (a). When considering the rules together with the fixed costs provisions of CPR 45, the word “allocated” does not feature. Whilst on the face of it the rules apply only to multi-track claims, the wording does not make it specifically clear as to whether an electronic bill of costs would be required in circumstances whereby a claim has been issued by way of Part 7, for which the multi-track is the most appropriate or normal track, but yet has not been formally allocated by the Court. In this circumstance, an approach of caution should be adopted.

Furthermore, 5.1 (a)(iii) provides that an electronic bill of costs will not be necessary “where the court has otherwise ordered”. For practitioners, and no doubt the Court, this may allow an olive branch. It may be such that any cost managing Judge specifically makes an order disposing with the need of an electronic bill of costs. I would suggest that practitioners use this rule to their advantage.

What should be made clear is that an electronic bill of costs is only required for work done after the 6th April 2018. Receiving parties are still at liberty to draw a traditional bill of costs for the work done up to the 6th April 2018, and prepare an additional “E-Bill” for the work done thereafter. Again practically, this offers practitioners a way around the requirement to undertake costly and timely preparation of an electronic bill of costs relating to all work done to date.

In summary, it is clear that the intention of Jackson LJ was to place greater importance upon fee earners to record their time accurately; supported by the relevant evidence. Whilst I personally wish to subscribe to the ideal that all fee earners will record their time in phases, tasks, activities and expenses, I suspect that this will simply not happen. Ultimately, the increasingly laborious task of quantifying and sub-categorising work will remain with the Cost Lawyer. In lieu of the above, I cannot stress enough the importance of specialist costing software and investment in staff training – two things which Glaisyers have already seen benefit from.

For more information on the change or how we can help, contact the Glaisyers’ Costs Team – 0161 833 5671.



Employers Guide to GDPR Compliance - Part 1

Employers Guide to GDPR Compliance - Part 1

Judging from the noticeable increase in enquiries received this year, there appears to be a lot of employers starting to establish what steps they should take to comply with GDPR when it comes into effect on 25th May this year. Whether you fall in this category or simply want to check or seek assurance that the steps you have taken so far are correct, here is the first of a series of employer guides to ensuring GDPR compliance.

The next guide will address how you are able to justify processing employee personal data in accordance with the prescribed legitimate grounds set out within GDPR. It will also look at the issue of consent and whether or not it is still safe to rely upon the consent as a lawful ground for processing.

What should the 30,000 businesses caught up in the Carillion disaster do now?

What should the 30,000 businesses caught up in the Carillion disaster do now?

This week’s announcement of the liquidation of construction giant, Carillion, has plunged the financial stability of a significant number of SMEs and contractors in the company’s supply chain into uncertainty.

Although the Government announced that it would be stepping in to fund public sector contracts awarded to the company, most of the company’s contracts came from its private sector operations. And with these only receiving Government support for two days, the outlook for them is less certain. This could have significant implications for the construction supply chain, where 86 per cent of employment is dependent on small and medium-sized sub-contractors.

While it’s too early to have any details on payments to unsecured creditors and for contractors, with many specialist sub-contractors at risk of not getting paid - Carillion is said to have had just £29m in cash and more than £1.3bn of debt when it filed for administration earlier this week - this puts jobs and companies under threat. One analyst has estimated suppliers may receive less than 1p for every £1 they are owed.

So what should those 30,000 businesses, many of them SMEs, caught up in the debacle be doing now? Nick Johnson, Managing Partner at Glaisyers Solicitors, advises…

Says Nick: “In short, unfortunately there’s not a lot they can do. Many of the processes of Carillion’s liquidation will be the same as those seen in all liquidations, which results in a degree of investigation into the affairs of the liquidated company, collection of assets and payment of liabilities. This can carry on for years after a company’s initial demise. With many contractors working on 120 days terms, they will already be at the limit of their cash reserves.

“If these businesses are reliant on contracts from Carillion, or is a significant creditor, there is a risk that they too could also end up insolvent. Particularly because those smaller businesses may lack the cash to continue to pay their own creditors.”

While unsecured creditors will no longer be able to pursue or enforce their own claims against the liquidated company, they will be entitled to share in any distribution made to the unsecured creditors by the liquidator later in the process, subject to any funds being available for them after secured and preferential claims are taken into account. However, the likelihood is that no one is going to get anything out of this.

Advises Nick: “I’d advise anyone who has a contract with Carillion to dig it out now to check the small print, and if necessary take advice on the effect of liquidation. Contracts may not automatically be discharged, but often contractual clauses will allow for termination in the event of insolvency. This could include a retention of title clause, sometimes known as a Romalpa clause or as a reservation of title clause, which allows the supplier to retain ownership over any goods supplied until certain conditions are met, thus providing them with a form of security. For example, if it is stated in the contract, the supplier may retain the title to the goods until full payment is received. When valid, the supplier’s claim to any unused goods will be binding against any trustee or liquidator subsequently appointed.”

While it is too early to say how many subcontractors and suppliers are directly affected by outstanding payments or loss of work, many contractors, particularly those awaiting longstanding payments from cash retentions, will already be writing off the cash. In those circumstances, the business owners need to take urgent professional advice, both to see if the business can be saved and to avoid personal liability in the event it cannot. Also the banks have said they will give support but this is likely to be limited.



New Minimum Energy Performance Certificate Requirements for Rented Property

New Minimum Energy Performance Certificate Requirements for Rented Property

Energy Performance Certificates (EPCs) have long been seen as an unnecessary annoyance but now the introduction of the Minimum Energy Performance Standard (MEPS) mean EPCs have the potential to cause real upset in the market.

The Basics

From 1 April 2018, it will be illegal to grant or assign a lease of or sublet a property which does not have a MEPS rating of “A - E”. All rental properties will require an EPC. Whilst there are a number of exceptions, the general rule of thumb will be that the new regulations will affect all commercial property unless it is a listed or agricultural building.

The Impact

Surveys carried out in the years following 2011 suggest that around 18% of commercial property stock in the UK has an EPC rating of “F” or “G”, so this is no drop in the ocean.

The market is also likely to be affected in advance of the implementation of the new regulations as value of the property will be affected by the mandatory work that needs to be carried out and the possible gap in rental income a Landlord may suffer which the property is not lettable.

Banks have been imposing requirements for a couple of years on borrowers, obliging borrowers to spend the necessary money under threat of having the investment loan reduced in 2018.

Landlords may be inclined to think that the new regulations are future problem, if they already have sitting tenants. However, not having attained a sufficiently high EPC rating could mean that their tenants will be left holding all the cards. Tenants would be able to argue that the open market rent of the property is “nothing” as the Landlord would not be able to let the property at all until the works were carried out to make the property sufficiently energy efficient. This could cause havoc in rent review or lease renewal negotiations.

Next Steps

Landlords should review the EPCs on all of their properties and take steps now to improve their EPC rating to the required standard as soon as possible so it can plan any expenditure in conjunction with key dates across its portfolio.

A year in review and what we expect in 2018 in Employment Law

A year in review and what we expect in 2018 in Employment Law

This year has been a busy year when it comes to Employment Law. We expect 2018 to be the same. Here's a run down of some of the big cases from 2017 and what 2018 has in store.

What to expect in 2018

EU General Data Protection Regulation

This is likely to be the biggest issue for HR practitioners to tackle in 2018 as everyone prepares to comply with the new rules governing the processing of personal data in readiness for GDPR coming into force on 25th May 2018. In addition to this, the UK Government is also proposing to replace the Data Protection Act 1998 with a new Data Protection Bill which is due to be debated at a third reading in the House of Lords on 17th January 2018, at which point it should progress to the House of Commons.

The Gig Economy continues to create uncertainty for businesses with the Supreme Court due to hear the case of Pimlico Plumbers Ltd –v- Smith on 20th and 21st February 2018 following the Court of Appeal’s decision holding that a plumber was a worker (not a self-employed contractor) for the purposes of the Employment Rights Act 1996 and Working Time Regulations 1998 as well as an employee within the extended meaning of that term in the Equality Act 2010.

Mandatory Gender Pay Gap Reporting

The Regulations came into force on 6th April this year requiring employers to publish an annual report containing data on its gender pay gap. The first reports for large private employers are due by 4th April 2018.

Key Cases

We are also expecting Judgment in a number of important and interesting cases including:-

Porras Guisado –v- Bankia SA & Others from the European Court of Justice. Advocate General Sharpston has indicated that in her opinion pregnant workers should be protected from dismissal even before they have informed their employer of the fact they are pregnant. In the UK, it is generally accepted that a woman cannot benefit from statutory protections on the grounds of her pregnancy (ie, not to suffer discrimination or dismissal) until her employer becomes aware of her pregnancy. This decision will therefore be of great interest to many.

In March, the Court of Appeal is due to hear the case of Focus Care Agency Limited –v- Roberts & Others where it will determine the correct approach when deciding whether employees who sleep in, in order to carry out duties if required, engage in “time work” for the entire duration of their night shift or alternatively whether they are only entitled to be paid the national minimum wage for periods when they are awake and carrying out relevant duties.

Review of 2017

Gig economy companies criticised for "almost unintelligible" employment contracts

The dynamics at play within the ‘gig economy’ and the legal definitions of relationships between companies like Uber and Deliveroo and their drivers/riders has been among the most high profile employment law stories of the past year and the same could well be true of 2018. The companies insist that their frontline operatives are effectively self-employed but the basis for that claim is being widely disputed and coming under increasingly close legal scrutiny in the UK and across Europe. Read more.

Gender pay disparity reports reveal “alarming gaps”

Companies with more than 250 employees on their payrolls are being legally obliged to report on the scale of any pay disparities between men and women within their workforces. The relevant regulations are being steadily phased in on an annual basis but early indications are that there are some “alarming gaps” in pay at big companies, as Sarah Scholfield outlines in this article posted on our website back in April. .

Are ‘sleep in’ workers working or sleeping and should they be paid National Minimum Wage?

A number of interrelated legal cases emerged in the first half of 2017 with pertinence to the question of whether employees should be paid National Minimum Wage (NMW) while they’re on ‘sleep in’ shifts. The key issue at hand was whether employees should be considered to be actively working or simply being ‘on call’ while engaged on a shift that allows them to sleep at certain times and at specific locations. The Employment Appeals Tribunal decided that there is no one-size-fits-all answer to the questions posed as we explain here back in June.

Shared Parental Leave – Do offers made to women need to be matched if they’re transferred to male partners?

A case put before the Tribunal in early summer 2017 brought into sharp focus the question of whether enhanced maternity packages offered to female employees should be fully transferable to their male partners when maternity leave is being shared. Sarah Scholfield outlined the details of the case and the most important lessons for employers. Read more.

Should pregnant workers be protected from dismissal even if their employers don’t know they’re expecting?

The EU’s Pregnant Workers Directive protects pregnant employees from dismissal from the day that they inform their employers of their situation until they have returned from maternity leave. However, the ECJ has recently been considering the question of whether the same protections should be applied even where employers are yet to learn of their employee’s changed circumstances after a case involving a Spanish bank worker came to court in Catalonia. Read more.

Window salesman’s claim for backdated holiday pay raises big questions for employers paying workers on commission

A case brought before a number of different courts and tribunals this year raised some potentially very significant questions for all manner of businesses which pay members of their workforces on a commission-only basis. The case involved a former salesman for the Sash Windows Company who was let go at the age of 65 and subsequently alleged age discrimination and to be owed years’ worth of holiday pay he never received. Read more.

Northern power house: legal highs

Northern power house: legal highs

Every year the Legal 500 divides law firms into different tiers depending on their size, achievements and growth, and this year’s report showed that the Manchester legal market is more buoyant than ever, with large numbers of solicitors opting to work at the heart of the Northern Powerhouse.

The strength of the UK’s regional legal centres was also highlighted in a report published this week on the state of legal services by TheCityUK. Manchester emerged as the strongest regional centre in terms of legal employment, with around 12,000 people working in legal services in 2015 – the most recent figures available – compared with 8,000 in Birmingham and Leeds. All of which proves that while the June 2016 referendum may have caused a slight blip, the trend for business in the region hasn’t weakened as a result.

So just what is driving law firms up the M6? The authors of the latest edition of the Legal 500 review attribute the legal sector’s continued growth to the city’s broad industrial base, growing tech sector and government investment in schemes such as the Northern Powerhouse. It’s true that there’s recently been a wave of expansion in the north, with several large corporations, including the BBC, and Google all moving aspects of their businesses from London to Manchester, lured by reduced office and staffing costs and the ability to increase profits without compromising on quality. And to capitalise on this commercial activity, a growing number of international and City law firms are choosing Manchester as their northern base.

The report’s authors also mention the intense competition that now exists in the city as a direct result of new entrants. This obviously means that companies must compete to retain the best staff, particularly as major accountancy firms are also continuing to drive the recruitment of senior lawyers as they bolster their legal practices. Here at Glaisyers, we currently employ over 60 people in the North West, and are looking to increase our workforce by 10% in the next 12 months. An £850k refinancing package, provided by NatWest, will give us the flexible capital needed to attract new staff and develop our marketing, training and IT systems. This will enable us to achieve our objectives to attract new talent and support our staff in developing new business streams while supporting change so we can be more efficient in what we do.  But whilst it’s great that some big brands are being attracted by the merits of the Northern Powerhouse, Glaisyers is focusing on the foundation of the northern business sector, SMEs and owner managed businesses.  We see a real place in the market for an SME sized law firm run by owner managers who specialise in supporting and working alongside the SMEs who make up 99.9% of businesses here.

As investment continues to pour into the city and the cost of living and running a business in London continues to rise, the number of leading law firms and talented lawyers making their mark in the north is only going to increase. There’s certainly never been a more exciting time to be a lawyer in Manchester.

Are you eligible to claim more on your Monarch flights?

Are you eligible to claim more on your Monarch flights?

When it was announced in October that Monarch Airlines had been placed into administration it left 110,000 customers stranded abroad and some 300,000 future bookings cancelled with no option to be rescheduled.

In my Passle ‘Claiming your money back after a Monarch cancellation’, I mentioned under a Section 75 claim you are able to claim against the defaulting party (Monarch) or your bank/credit card. A section 75 claim allows you to claim for your direct losses and any associated damages (as long as they are reasonable).

Banks and credit card companies are moving ahead with these claims and paying the damages that have been incurred. A partner here at Glaisyers was a Monarch customer who had his flight cancelled. After going through his credit card’s claims process the card company has refunded the entire cost of the new flights he had to book – the cost of the original flight (that he cannot take following the insolvency) and the additional cost incurred for having to buy a replacement flight with a different carrier.

If you have any questions about your claim or if you’re eligible to claim for additional costs, give us a call.

Employment Seminar - Autumn 2017

Employment Seminar - Autumn 2017

9th November, 2017 | Glaisyers Office

Our Breakfast Seminar is suitable for business owners, directors, HR managers and other individuals responsible for handling HR matters within their organisation.

Our seminar on the 9th November will cover a number of different topics, including:

  • General Data Protection Regulation (GDPR)
  • Dismissal for personal messages sent at work
  • Can disciplinary suspensions amount to a breach of trust and confidence?
  • Abolition of employment tribunal fees – what are the implications for employers?

Coffee and breakfast will be served from 8:30am with the presentation running from 8:45am until 10:30am.

Our solicitors will be on hand to help answer any questions you may have in relation to the forthcoming changes and any other employment law queries you may have.

Want to attend?
The free event can be booked here - Register Now - by going to our event registration page.

Do you have any questions you would like to ask the Employment Team? Please email [email protected] or [email protected] and they will be happy to help.

Please book early to avoid disappointment.

Personal Liability of Directors - Lunch Seminar

Personal Liability of Directors - Lunch Seminar

As a director your duties and responsibilities reach beyond regular day-to-day business activity. You are legally responsible for the company's actions and have obligations and duties that extend beyond those of a normal employee. Glaisyers is hosting a lunch seminar from 11 am to 1 pm on Thursday, 19 October, specifically for directors, to help you understand the extent you are personally liable.

Nick Johnson, Russell Brown and Julian Bond, all partners at Glaisyers, will be leading the seminar, giving presentations and holding discussion groups, to cover all facets of personal liability of directors.

Topics will include:

  • What are your duties as a director?
  • When are directors personally liable?
  • Director disqualification
  • What you need to know about director service agreements



Pregnant workers – when do they qualify for protection?

Pregnant workers – when do they qualify for protection?

Under the EU Pregnant Workers Directive (“PWD”), pregnant workers are protected from dismissal from the beginning of pregnancy to the end of maternity leave. The legislation defines a pregnant worker as someone who has told their employer they are pregnant. In the UK the Equality Act 2010 prohibits pregnancy and maternity discrimination during the “protected period” which starts at the beginning of pregnancy and ends when the worker returns to work following maternity leave.
A recent Spanish case has raised some interesting questions about whether a pregnant worker could qualify for protection before their employer even knows they are pregnant.


Ms Guisado worked for a Spanish bank. The bank embarked on a collective redundancy process and as a result of this Ms Guisado was dismissed. At the time of her selection for dismissal she was pregnant, but the Bank was unaware of her pregnancy. She issued proceedings in the Spanish court challenging her dismissal. Her claim was initially rejected so she appealed to the High Court of Catalonia. In considering her claim the court referred a number of questions to the European Court of Justice including whether it was possible for a worker to qualify for protection under the PWD when they have not yet told their employer they are pregnant. The court also raised a number of other questions relating to the PWD and in particular whether it requires pregnant workers to be given priority for retention in collective redundancy situations.

Advocate General’s opinion

Advocate General (AG) Sharpston delivered her opinion earlier this month. In considering the questions posed by the Spanish court she highlighted a tension within the PWD on the basis it provides for protection from the beginning of pregnancy but only defines a pregnant worker as someone who has informed their employer that they are pregnant. In her opinion this could be resolved either in favour of the employer (by making it clear that workers are only protected once they have told their employer) or in favour of pregnant workers (giving protection from the beginning of pregnancy).
AG Sharpston was mindful of the purpose of the PWD and the protection pregnant women need within the workplace. In view of this she felt the PWD should protect women from the beginning of pregnancy. She did acknowledge the difficulties this approach could expose employers to but seemed satisfied that they would have the chance to rectify any potentially unfair and/or discriminatory dismissal by reinstating that person or reopening the dismissal process.
In terms of priority for retention, AG Sharpston made it clear that in her view the PWD does not impose an absolute obligation on employers to retain pregnant workers but rather the employer must be able to demonstrate that there is no plausible possibility of reassigning them to another suitable post. This mirrors the position in the UK where pregnant workers are given priority in relation to any suitable alternatives when the redundancy arises during their maternity leave but do not qualify for the same priority when pregnant.


Whilst the AG’s opinion is not binding on the ECJ it is persuasive and therefore UK employers are likely to await the ECJ’s decision with interest. Should the court follow her opinion it will raise some potentially difficult issues for employers who may find themselves inadvertently dismissing an employee who it later transpires was pregnant. The AG has suggested that employers should not be too concerned about this on the basis they would have the chance to remedy any damage by reinstating the worker or going back though the dismissal procedure taking in to account the individual’s pregnancy. She also made the point that workers would be under a duty to notify their employer of their pregnancy without unreasonable delay. Whilst I think this approach is sound in principle, it fails to take in to account the disruption this would cause to an employer’s business and the time it would take to reopen any dismissal proceedings. It seems unfair to expose employers to this risk and is at odds with the approach currently taken in the UK where women don’t benefit from statutory protection until they have notified their employer of their pregnancy. What’s more it may also lead to dispute as to what amounts to unreasonable delay and evidencing when an individual actually found out they were pregnant.

What are the benefits to SMEs of having a trusted solicitor on hand?

What are the benefits to SMEs of having a trusted solicitor on hand?

For small to medium-sized enterprises (SMEs), having an in-house team of legal experts and advisors on hand to guide through whenever issues arise isn't always a cost-effective option. However, that doesn't mean you have to be without that all important safety blanket for when a legal issue arises.

Many SMEs strike up a relationship with an independent firm of solicitors whose advice can be trusted and called upon at important moments, saving them money in long-run.

Here's a look at some of the key benefits of having a quality solicitors firm you can trust on hand as an SME.

Peace of mind

Operating a successful SME is never likely to be easy regardless of the industry you're in or what the aims are for your organisation. Therefore, there will always be plenty to focus on and no shortage of strategic matters and day-to-day issues to attend to as an SME boss.

Having a good relationship with a firm of solicitors means that an SME and its leadership team in particular can be confident that they're well placed to deal with any legal issues that might come along. This in turn means that company directors and managers can remain focussed on doing what they do best rather than concerning themselves with potential legal wrangling or the details of specific legislation.

Knowledge and experience

Perhaps the most fundamental reason why it can be so beneficial for an SME to have a working relationship and a good understand with a solicitors firm is the knowledge and expertise that they can bring to bear.
A quality solicitors firm which gears its services specifically towards meeting the needs of SMEs will always have a wealth of relevant expertise and experience to draw upon in the interest of its clients. This knowledge can be absolutely invaluable in any number of different scenarios for small and medium-sized enterprises in any sector.

Cost savings

Another good reason to work closely with a quality firm of solicitors is that doing so could save your business considerable sums of money. A lot of what solicitors firms are able to do for their clients is help them avoid unnecessary costs and liabilities. Indeed, they are exceptionally well positioned to do so.

So, while it may sometimes seem in the short term as if working with a firm of SME-specialist solicitors could be an unnecessary expense, in the longer term it is very likely to prove cost-effective.

An extra edge

Every business is unique and the best solicitors understand that very clearly and they work consistently to help ensure that their clients get all the advice and support they need from a legal perspective.

In the end, all of these issues boil down to competitiveness, and working with high calibre legal experts is always likely to make any SME more competitive and better able to maintain positive progress as they rise to the challenges of operating in their particular industry.

Dress codes: What your business needs to know...

Dress codes: What your business needs to know...

There's been a lot about dress codes in the press recently; with leaked emails from the BBC revealing strict requirements about the appearance of its newsreaders, and a city receptionist sent home for refusing to wear high heels. Most recently Goldman Sachs has announced its decision to relax its dress code to allow certain employees to wear casual clothes throughout the year.

The policy will apply to the bank's technology and engineering staff and is designed to help them attract the best new IT and technology talent. Many businesses in the technology sector, such as Google, already allow their workers to dress casually and Goldman Sachs' decision reflects its desire to compete.

The move within professional services organisations to allow staff to ‘dress down' on certain days is also indicative of the wider trend towards more modern working practices. Employers are beginning to realise that people are just as productive, if not more, when they are comfortable and relaxed at work.

One has to question why Goldman Sachs has only relaxed the dress code for its technology and engineering staff. It is perhaps a missed opportunity not to roll the policy out across the board, particularly given the decision of a number of rival banks to introduce more casual dress codes. It seems to me if Goldman Sachs wants to be able to attract the best it is going to need to move with the times. Imposing unnecessarily strict dress codes is likely to prove a turn off to both new talent as well as existing staff. Allowing individuals the opportunity to express themselves can boost staff morale, which not only helps to increase productivity but also makes the workplace more attractive.

Employers sometimes underestimate the value employees attach to workplace issues like dress codes. It's therefore essential that organisations take time to speak to staff about their dress code, take on board any concerns, and ensure that everyone understands non-compliance is a disciplinary matter.

Whatever dress code an employer seeks to implement they need to keep potential discrimination issues in mind and ensure that their requirements are proportionate to their aim.

  • Employers do not have to apply the same requirements to men and women, provided the rules are no more stringent for one sex than the other. For example, in the professional services sector is it not uncommon for employers to specify that men must wear a suit and tie while the rules for women may state formal business attire. In that situation, while the rules differ between men and women this is unlikely to be discriminatory as it sets the same overall standard of dress.
  • Workplace dress codes remain a tricky area to navigate with regards to religious beliefs. In one European Court of Justice case the employer (G4S) had an internal rule prohibiting employees from wearing any visible signs of their political, religious or philosophical beliefs. The ECJ ruled the ban was not directly discriminatory as it applies to any manifestation of religious beliefs and therefore treats all employees in the same way. It could, however, amount to indirect discrimination, although the court considered G4S' aim of projecting a neutral image to be potentially legitimate. However, any attempt by an employer to single out the headscarf would be both directly and indirectly discriminatory.
  • In some situations employers will be able to prevent employees from wearing religious and cultural dress where it represents a health and safety risk and/or presents security issues if it makes it hard to verify someone's identity.
  • Whatever dress code you introduce it needs to be consistent, with a justifiable reason why it is there - for example because of health and safety reasons, because the job role requires it, or to project a certain image.

While most employees will accept that dressing a certain way for work is part of the job there will always be some that push back. If this happens and an employee isn't following the dress code first discuss the issue with them in private and allow them to explain their point of view. If this isn't sufficient they should be given time to comply before disciplinary action is considered. If they raise legitimate concerns about the policy you should take the time to consider the nature of their complaint before deciding on the appropriate action.

Right to paid annual leave - can workers can leave over where they have been denied the right to take it?

Right to paid annual leave - can workers can leave over where they have been denied the right to take it?


The Working Time Directive (WTD) provides for all EU workers to receive at least 4 weeks paid annual leave a year. The WTD was incorporated in to UK law by the Working Time Regulations 1998 (WTR). The WTR provide for workers to receive 5.6 weeks paid leave.

Following a number of high profile cases both in the UK and European Court of Justice (ECJ), it is now well established that workers who are unable or unwilling to take annual leave because of sickness absence have the right to take that leave at a later stage even if that means carrying it over in to a new leave year. Workers are entitled to receive a payment in lieu on termination in respect of any accrued leave that has been carried over as a result of sick leave. But what happens if someone has not taken all or some of their annual leave because they would not have been paid for it?

Facts of the case

Mr King started work for The Sash Window Company in 1999. He was a commission-only salesman which meant he did not receive any salary, paid holidays or paid sickness absence. In 2008 the Company offered him the opportunity to become an employee. Mr King elected to remain self-employed. He was subsequently dismissed by the Company in 2012 when he turned 65. Mr King issued proceedings for age discrimination and unpaid holiday pay by way of an unlawful deduction from wages claim. He argued that he had not taken his full holiday entitlement in any holiday year as it would have been unpaid.

The Tribunal & Employment Appeal Tribunal (EAT) decisions

The Tribunal upheld Mr King's age discrimination complaint. They also upheld his claim for unpaid holiday pay in respect of the following:

  1. Pay in lieu of accrued untaken leave from the current leave year;
  2. Leave requested and taken in previous years; and
  3. Pay in lieu of accrued untaken leave from previous years.

The Company appealed the Tribunal's decision in relation to (3) on the basis they maintained that Mr King had not been prevented from taking his annual leave, unlike those on sick leave, and therefore he had no entitlement to payment for leave accrued but untaken. The EAT upheld the Company's appeal and Mr King appealed the decision to the Court of Appeal.

European Court of Justice (ECJ) - Advocate General's opinion

In considering his case the Court of Appeal referred a number of questions to the ECJ. In essence the Court of Appeal wanted to know whether Mr King should be paid in lieu in respect of all accrued but untaken holiday for the duration of his employment or whether he could only claim for unpaid leave he had actually taken.

In accordance with standard ECJ practice, the Advocate General (AG) has considered these issues and delivered his opinion. As far as the AG is concerned, it would be incompatible with EU law to require a worker to take leave first before being able to establish whether he is entitled to be paid for it. In his opinion, employers are obliged to provide adequate facilities to enable workers to exercise their right to paid annual leave. As a result, if a worker does not take all or some of the annual leave they are entitled to, in circumstances where they would have done so had the employer agreed to pay them, they can claim payment in respect of that leave. As for how far back those claims can go, the AG has confirmed that the right to carry over accrued untaken leave continues indefinitely unless and until workers have the ability to take paid leave. In the circumstances, if someone has never been given this opportunity they would be entitled to a payment in lieu to cover the full period of employment.

Sarah Scholfield comments:

Whilst the ECJ does not always follow the opinion of the AG in most cases it does. Should it do so here, the decision could have wide ranging implications for employers, particularly those in the gig economy. Employers in this sector tend to use a lot of casual workers and these individuals may never have taken any annual leave in the mistaken belief they are not entitled to it. As a result, employers could face claims from these individuals for back dated holiday pay going back over several years which may put some businesses in severe financial difficulty. In the circumstances, we await the ECJ's decision with interest.

GDPR: What businesses should be aware of...

GDPR: What businesses should be aware of...

The GDPR changes all small businesses need to be aware of by Sarah Scholfield, solicitor at Manchester based Glaisyers

When it comes come into effect on 25th May 2018, the General Data Protection Regulation (GDPR) will turn many organisations upside down as they struggle to bring themselves up to the standard required by the new regulation. Particularly as new research shows that a worrying 84% of UK small business owners (in addition to 43% of senior executives of large companies) are currently unaware of the forthcoming changes.

What is the regulation?

The result of four years of planning amongst EU member states and other interested parties, the GDPR is intended to bring greater strength and consistency to the protection of all EU citizens from privacy and data breaches.

Currently, EU data protection laws stem from the Data Protection Directive which was implemented in different ways by EU member states back in 1995. In the UK, the Directive lead to the introduction of the Data Protection Act 1995 (DPA). However, difficulties have arisen over the years as a result of the differing approaches adopted by each member state, and rapid developments in technology. The GDPR is designed to both update and harmonise the legal framework across the EU. The Government have been clear that the UK's exit from the EU will have no impact on the introduction of the GDPR.

What will this mean for small businesses?

Those businesses who already have solid data protection and privacy processes in place are unlikely to see significant changes under the GDPR. For example, the concept of data controllers (who control how and why data is processed) and data processors (who act on behalf of the controller) will remain similar. Likewise, the definitions of personal data and sensitive personal data will see only extensions in the definitions to include things like online identifiers (e.g. IP addresses).

However, that said, there are some important changes small businesses need to be aware of prior to the GDPR's introduction next year.

  • One of the most important relates to the issue of consent. Under the DPA, one of the grounds on which businesses can rely to justify processing personal data is consent. At the moment, we operate a system of presumed consent in relation to personal data with individuals being given the opportunity to opt out of any processing of their personal data. Explicit consent is only necessary for sensitive personal data. Under the GDPR however, organisations will need to obtain express consent to the processing of any personal data, effectively requiring data subjects to actively opt in. This means pre-ticked boxes; silence or inactivity will not suffice.
  • The GDPR will introduce a strict data breach notification process which will require businesses to report any breach within 72 hours unless the breach is unlikely to result in risk to the individual(s) concerned.
  • There will also be changes made to the subject access request (SAR) regime. Under the DPA organisations can charge £10 for responding to a request and have 40 days in which to respond. Under the GDPR, generally organisations will be unable to charge and the timeframe will be reduced to one month.
  • The GDPR will also see a marked increase in potential fines which, along with strict deadlines which attach to certain obligations under the GDPR relating to reporting breaches and responding to SARs, is likely to surprise small business owners. Under the DPA, a data controller or data processor can be fined up to £500,000 in respect of any breach. Fines under the GDPR however will be based on a two-tier system with businesses being fined up to either 2% of worldwide turnover or 10 million euros (whichever is the greatest) or 4% of worldwide turnover or 20 million euros (whichever is the greatest). The level of fine will depend on the nature of the breach.
  • The GDPR will give individuals the right to ask businesses to delete their personal data in certain circumstances, for example asking a search engine provider to remove results that are outdated or irrelevant. This is known as the right to erasure or the right to be forgotten. However, it is not currently clear how this right will work in practice as it could present significant difficulties for some businesses.

How can small businesses prepare?

The first thing businesses need to be doing is disseminating information about the GDPR among their senior decision makers. It is essential people are aware of the key changes in advance of the new regime which may mean providing additional training where necessary.

In brief, businesses should:

  • Audit and document the personal data they currently hold, making a note of where it came from and who they currently share the information with.
  • Review their current privacy notices. The GDPR requires businesses to include certain additional information in their notices including, for example, the data subjects' right to complain to the Information Commissioners Office (ICO). The ICO has published a Code of Practice which sets out the new requirements.
  • If a business relies on consent, they should review how they obtain and record that consent. Under the new regime businesses will need to be able to demonstrate that consent has been freely given which will require them to produce clear records.
  • Consider how they will report any data breaches to ensure they meet the strict 72-hour deadline. Businesses should think about putting in place a clear notification procedure so individuals within the organisation know how to report any breach.
  • Depending on their size and administrative resource, businesses should consider appointing a specialised Data Protection Officer to take responsibility for compliance and circulate the message with the rest of the business. In some circumstances, this will be mandatory.
  • In terms of SARs, the GDPR vastly decreases the amount of time organisations have to respond. In view of this, businesses should review their processes now to ensure they will be able to respond to requests within the new one month timeframe.
  • Consider whether it is even necessary to process personal data. If so, consider anonymising the data reducing the businesses exposure to the GDPR.

With less than a year to go, it's crucial that all businesses begin to take a proactive approach in preparing for the forthcoming GDPR, now.

Failure to pay enhanced shared parental pay - an act of discrimination?

Failure to pay enhanced shared parental pay - an act of discrimination?

The Shared Parental Leave regulations came in to effect in April 2015 and are designed to give parents the freedom to share up to 50 weeks leave and 37 weeks' pay.

The Regulations do not require employers who offer enhanced maternity packages to match those for anyone taking shared parental leave. Notwithstanding that however, there has been some uncertainty about whether an employer's failure to do so could amount to an act of direct or indirect discrimination against men.

The Tribunal has recently had to grapple with this issue in Ali v Capita Customer Management Limited.

Facts of the case

Mr Ali's employment transferred to Capita from Telefonica in 2013 as part of a TUPE transfer. In February 2016 his daughter was born. He took two weeks paid paternity leave immediately following the birth. He notified his manager during his paternity leave that his wife had been diagnosed with post-natal depression. He returned to work after his paternity leave but subsequently made a request to take time off to care for his daughter as his wife had been advised by her doctor to return to work for health reasons. Mr Ali was told by Capita that whilst he would be eligible for shared parental leave he would only receive statutory shared parental pay.

Mr Ali challenged the decision on the basis he was aware that female employees who transferred to Capita from Telefonica at the same time as him were entitled to 14 weeks' basic pay followed by 25 weeks statutory maternity pay. He raised a formal grievance alleging sex discrimination. His grievance was rejected by Capita and he subsequently issued proceedings in the employment tribunal for direct and indirect sex discrimination and victimisation.

In relation to his direct discrimination claim, Mr Ali accepted that there was a material difference in circumstances between himself and a hypothetical female employee during the first 2 weeks of compulsory maternity leave. In this regard he recognised that this time is unique to women as it relates to a mother's biological and physiological condition and recovery following childbirth. Following that 2 week period however he did not accept that a women should be afforded any special treatment on the basis both men and women will be performing the same role from that point onwards i.e. caring for a newborn baby. In view of this he argued that he should be entitled to the same pay as a woman would receive in that situation i.e. full pay for 12 weeks. He wanted to take 12 weeks off to look after his daughter but he was deterred from doing so because he would only receive statutory pay and not full pay for that leave.

Capita argued that Mr Ali could not compare himself to a female transferred Telefonica employee because he has not given birth and therefore is not entitled to maternity leave or pay. They also argued that the right to 14 weeks full pay whilst on maternity leave was special treatment in connection with childbirth and therefore should be reserved exclusively for women to ensure they were not disadvantaged by giving birth or taking maternity leave.

Decision of the Tribunal

The Tribunal upheld Mr Ali's claim of direct sex discrimination. They were satisfied that he could compare his treatment with a hypothetical female comparator after the two week period of compulsory leave. Having done so, Capita's decision to only pay him statutory pay for the 12 week period rather than full pay amounted to an act of direct sex discrimination.

The Tribunal rejected Capita's argument that women ought to receive special treatment for the full 14 week period and made it clear that any special treatment connected with childbirth should be limited to the 2 weeks after birth.

Mr Ali's claim of indirect discrimination was rejected by the Tribunal on the basis it relied on Telefonica's maternity policy which by definition was not gender neutral. As such, they could not consider an indirect discrimination complaint.


At first glance the decision in Ali is likely to worry employers who offer enhanced maternity pay packages to female employees. Do these employers now need to mirror those arrangements for individuals taking shared parental leave and pay? The answer at the moment is probably not as this is only a first instance decision and is therefore not binding on other tribunals. We understand Capita are looking to appeal the decision and therefore it would be sensible to await the outcome of any appeal before taking any decisive action. If the decision is upheld however then it would have potentially far reaching consequences for employers who would have to review their current arrangements to minimise the risk of any potential discrimination complaints.

Russell Brown featured today on Lawyer Monthly

Russell Brown featured today on Lawyer Monthly

As negotiations are underway, are we looking towards a soft Brexit or a hard Brexit? How will each pan out for various UK sectors? How will they impact the pound and the economy? How will small businesses be affected? And though we've already seen a glimpse via the proposed bills in the Queen's speech, what will our new laws look like?

Russell Brown, partner and head of employment, comments:

While it could be argued that the recent election result diminishes the likelihood of a hard Brexit, the reality is that the Government is holding its cards very close to its chest. We will only really start to get an idea of how things will progress now that negotiations with Europe have started; and let's not forget these could last for up to two years.

Last week's proposals regarding EU citizens being allowed to remain in the UK is the first tangible sign of there being some attempt to negotiate a soft Brexit, by which I mean a willingness to retain some formal links with the continent. From an employment lawyer's perspective, there was a clear statement by all parties during the election that employment rights derived from the EU will effectively remain untouched. This leaves the door open to continued trading links with Europe, in the same way that it applies to EEA nations and Switzerland.

One of the main issues is going to be the so-called Brexit bill. This has such a major significance for both parties that it is likely to impact on all other aspects of the negotiations, particularly where liability is likely to lie in relation to long term commitments, such as pensions and loan guarantees, and the EU's claims that we should continue to pay into the Brussels budget for two years after our departure from Europe.

What will the future hold for business? While many small companies perceive a reduction in red tape, those who manufacture and export to Europe will be concerned about the potential loss of access to the single market. There are also concerns about the impact of Brexit on lenders; given that access to finance is vital to growing businesses, this will be of particular concern if interest rates rise. If we face inflation due to a lowering value of the pound, banks may raise interest rates which could lead to creating negative equity for property owners. A decrease in property values will also be a concern to many, meaning they put future acquisitions and associated job offers on hold.

Read the full article on Lawyer Monthly

Why does it take so long to complete a property purchase?

Why does it take so long to complete a property purchase?

The process of buying a property generally takes weeks and not days because there will almost always be a variety of different variables and details involved that need to be carefully addressed by solicitors.

For anyone buying a new property all this can be frustrating but solicitors have an obligation to ensure that all the relevant transactions involved are handled properly and in a way that doesn't lead to legal headaches for their clients further down the line.

The process of buying a house, the legal side of which is called conveyancing, typically takes between 6 and 8 weeks in the UK. But for anyone eager for the process to complete it may well seem like a whole lot longer.

So, why does conveyancing take so long? Here's our look at some of the potential reasons why a property purchase may be delayed.

Sellers delaying surveys

Any offer of a mortgage deal given to a potential buyer of a property is contingent on the valuation of the property. Sometimes the process of carrying out this survey is delayed by the selling party and that can put the whole transaction on hold.

In many cases, a buyer will wish to have the property they're intending to buy surveyed thoroughly via a full-scale building survey so that they can be more confident of knowing exactly what they're buying. This process doesn't usually take long but if the seller doesn't make the necessary arrangements quickly enough then this can delay the progress of whatever deal is in the offing.

Long chains can leave everyone waiting

In a situation whereby a chain of residential property transactions develops and they become effectively interlocking, suddenly there is potential for even the smallest of hold ups anywhere in the chain to significantly hinder the progress of every other deal in the chain. One can only go as fast as the slowest party in the chain.

Your seller's solicitor could be slow to reply

Conveyancing generally involves two sets of solicitors communicating with one another about the details of a potential deal. Usually solicitors acting on behalf of a buyer will contact the solicitors representing the relevant seller to make a variety of enquiries. Response times in these scenarios vary and delays are not uncommon.

Third party documents can take time to retrieve

There can be various reasons why your solicitor, if you're intending to buy a particular property, will need to track down relevant legal documents from third parties before they can proceed any further on your behalf. This might be in relation to planning permissions, for example, or because the property involved is leasehold and information is required of the freeholder. All this can take time, increase costs and hold up the process of completing a purchase.

All which means that when you ask your conveyancing solicitor how long your property buying process might take - the truth is that they won't really know until they tackle all the issues involved and overcome whatever potential hold ups they find along the way.

One thing we can assure you is that all the conveyancing staff at Glaisyers are committed to completing matters as speedily and efficiently as possible.

Stamp Duty Land Tax (SDLT) Avoidance Schemes

Stamp Duty Land Tax (SDLT) Avoidance Schemes

Stamp Duty Land Tax (SDLT) Avoidance Schemes have returned to the headlines recently following the sanctioning of a Surrey law firm for its involvement in the avoidance scheme.

The implication often is that they are available to everybody, that most people make use of them and thus avoid paying Stamp Duty land Tax. Nothing could be further from the truth.

If you are a non-UK domiciliaries worth millions buying a property for multi-millions then one or more of these schemes may be something you are prepared to go along with.

In our experience, and we have been advising many clients buying for over £1m, the conclusion has been that they are not worth it. The purpose of this little note is not to go into the ins and outs of how the schemes work but to simply point out that they are verging on tax evasion which is illegal, rather than tax avoidance, which isn't. Not only that but if you are buying a property and obtaining a mortgage, your mortgagee i.e. the Bank or Building Society lending you the money, will flatly refuse to do so if you are trying to avoid paying legitimate taxes to the Revenue. If you look at the major Banks who have been bailed
out by the Government this is entirely understandable.

A simple example, if you are buying a property at £1.2m you will have to pay £63,750 in SDLT. A significant amount of money. If you go along with one of the schemes you might on paper save 50% of that. The other 50% you will pay in fees. There are no guarantees that the scheme will work and you may have to wait up to 6 years before you can sleep soundly at night. At any
time within those 6 years you can and probably will be the subject of a Revenue investigation. If the Revenue take you to Court you would have to fund the litigation. This could be really expensive and is not for the faint hearted.

If you lose you will end up having to pay the original £63,750 you should have paid, a penalty of the same amount i.e. another £63,750 and interest. You also face the prospect of the costs of the exercise and possibly criminal proceedings. Bearing in mind that you will then have paid £31,875 to the clever so and so's who devised the scheme, now long gone, and you will
bitterly regret that you ever bothered to do it.

For more information or a no obligation chat contact our Conveyancing Team.

Court of Appeal gives clarity on modern day "equity of exoneration"

Court of Appeal gives clarity on modern day "equity of exoneration"

In the first case in over 100 years, the Court of Appeal has provided clarity on the proper approach to the equity of exoneration in the context of a “modern” co-habiting couple.

The legal concept "equity of exoneration" typically applies in respect of co-owners of a property - commonly family homes. It arises where one co-owner uses that property to secure a debt for their sole benefit. The other co-owner may be entitled to a charge over the other owners interest in the property, to the extent that debts are paid out of their own share.

The case of Armstrong v Onyearu [2017] EWCA Civ 268 is the first case to be heard by the Court of Appeal in 100 years (since Paget v Paget [1898] 1 Ch 470.) The Court has clarified the proper approach to the equity of exoneration in the context of a “modern” co-habiting couple and effect of the non-bankrupt spouse receiving an indirect, as opposed to a direct benefit from such borrowings.

Mr and Mrs Onyearu are a married couple and Mr Onyearu was the sole registered proprietor of the matrimonial home. Prior to his bankruptcy Mr Onyearu took out a secured loan against the property which he used to meet his business liabilities he incurred as a sole practicing solicitor. On an application brought by the Trustee for sale of the property Mrs Onyearu obtained from the court a declaration that they jointly owned the beneficial interest in the property.

The charge in relation to the business borrowings exhausted Mr Onyearu's beneficial interest in the property. The issue before the Court of Appeal was whether Mrs Onyearu received a direct or indirect benefit from her husband's business borrowings that would entitle Mr Onyearu's Trustee in Bankruptcy to draw on Mrs Onyearu's share of the property to equally discharge her husband's business borrowings from her beneficial interest in the property.

The Trustee in Bankruptcy brought the appeal on the basis that Mr and Mrs Onyearu were a co-habiting couple, the loan taken out by Mr Onyearu indirectly benefited Mrs Onyearu in that the secured loan not only allowed her husband's business to continue it enabled her husband to continue contributing to the mortgage repayments.

The evidence before the court was that Mr and Mrs Onyearu had not operated as a single unit financially; they had kept their finances separate and shared the family expenses. The Court of Appeal dismissed the Trustee's application finding that an indirect benefit of the type relied on was far from certain to accrue. Furthermore, the benefit was too remote and incapable of valuation. If Mrs Onyearu was unable to rely on the equity of exoneration she would not just be paying her share of the expenses but also her husband's and this did not accord with the notions of equity.


Armstrong v Onyearu provides a useful review of the equity of exoneration principle and although it has not been properly considered by the Court of Appeal since 1898, it does appear alive and well.

Whether the equity is available to the non-bankrupt spouse will turn on the individual facts of each case. A full investigation into how the family operate their finances must be undertaken by the practitioner. Is the Bankrupt the sole source of income for the family? If not, how much does the non-bankrupt spouse contribute? Do the parties operate as a single unit financially or are their finances kept separate and the family expenses shared?

Carrying out a full investigation and answering such questions will assist practitioners to evaluate a non-bankrupt spouse's claim. A view can then be taken by the practitioner whether it is right, in all of the circumstances of the case, to recalculate the parties' respective beneficial interest in the jointly owned family home.

If you require any legal advice in relation to bankruptcy or insolvency, our experts are on hand to speak to you.

Property market asking prices 'fell in June for the first time since 2009'

Property market asking prices 'fell in June for the first time since 2009'

Average asking prices for residential properties fell during June of this year for the first time since 2009.

June is usually a month in which property buying activity increases across the UK but a variety of different dynamics have apparently dampened the market in recent weeks, according to the property website Rightmove.

Concerns around political uncertainty, inflationary pressures and a restraining of wage growth across the country are understood to have contributed to a relative lack of activity in the residential property market.

Rightmove's latest figures relate to activity in the weeks prior to the general election on June 8th and apparently showed a drop of 0.4 per cent in average asking prices nationwide in early June.

The same figure for May increased by 1.2 per cent and asking prices haven't fallen in the month of June since 2009, during what was a particularly turbulent time for the UK's housing markets.

“The price of property coming to the market had increased in June in every year since 2009, so buyers' confidence has clearly been affected by inflation outstripping their pay packets and current political events,” said Rightmove director Miles Shipside in a statement.

The UK's headline rate of inflation increased to 2.9 per cent in May, which put that figure at a new four-year high, with households increasingly seeing their personal finances squeezed and their potential spending power diminished as a result.

Despite the nationwide average asking price for residential properties having fallen during June, prices in most parts of England and Wales were actually found to be still rising.

The numbers for the country as a whole from Rightmove are down due to particularly sharp declines in asking prices in London, where there was a 2.4 per cent fall in June, and in other parts of central and south east England.

Potentially worrying indicators emerged from the Bank of England's monetary policy committee (MPC) in recent days, with several of its members having voted in June to introduce a rise in the base rate of interest.

A majority of MPC members voted to maintain the cost of borrowing at its current historic low but, with three members voting for an increase, their vote on the subject this month was the closest it has been since 2007.

FAQs - Wills

FAQs - Wills

Why do I need a Will?

If you don't have a Will, most of your assets will pass under the intestacy rules. This means that you have no choice in how they will be distributed when you die. The intestacy rules do not allow cohabitees to inherit automatically. If you are separated but not divorced your spouse might still inherit so that the person that you most want to leave your money to could get nothing, and the person who you wanted out of your life could get everything. Making a Will is a way of ensuring that the people you love are still taken care of, even when you're not longer around to do it.

What are the intestacy rules?

These rules govern the distribution of a deceased's estate, if they died without making a Will. Depending on the size of the estate, the assets might pass to a surviving spouse or civil partner. If the estate is over a certain value, there will be some distribution to children too.

If there is no surviving spouse or civil partner but the deceased left children, the estate will be distributed between them, subject to certain conditions.

If the deceased left no children the money will pass to blood relatives, starting with parents, siblings, grandparents, then uncles or aunts. Eventually, if no living relatives can be found the assets will pass to the state. See our “Guide to

Probate” for more detailed guidance on distribution without a Will.

No consideration will be given to a co-habitee under the intestacy rules, no matter how long they have lived with the deceased. This is why it is so important to leave a Will; make sure your assets go where you want them to, be it to a co-habitee, friend or charity.

I've seen the term “Legacy” used in a friend's Will. What does this mean?

A legacy is a specific gift left within a Will to a person or charity. The gift is usually an amount of money or personal items.

What is meant by the residue of an estate?

Once any funeral costs, taxes, other debts, legacies and the costs of administering your estate have been paid, the remaining assets are referred to as the residue of your estate.

What is a mirror Will and is this different to a mutual Will?

A mirror Will is a Will which reflects the terms of another person's Will. They are commonly used by spouses, civil partners, cohabitees and business partners. The difference between a mirror Will and a mutual Will is that a person with a mirror Will is free to change the terms at any time. However, a mutual Will cannot generally be changed without the agreement of both people, so when the first person dies the surviving person cannot change their own will.

Can anybody witness my Will?

A Will has to be witnessed by two independent people aged over 18. This means that for the Will to be valid, it cannot be witnessed by a person to inherit under it as a beneficiary. There are no conditions as to the professions of any witnesses or the length of time that they have known you.

What is an Executor?

An Executor is the person named in a Will who will deal with the possessions, money and property of the deceased and ensure that they are distributed in accordance with the person's wishes. The Executor has legal responsibility for administering the estate correctly. It is common for an Executor who was a friend or family member of the deceased to seek the assistance of a solicitor when administering an estate.

Can I appoint somebody specific to look after my children if I die?

Within a Will, it is possible to name a Guardian/Guardians to look after children under the age of 18, should both parents die before their children reach this age. Subject to the willingness of the proposed Guardians and safeguards put in place by social services, these nominations will be usually allow the guardians to look after the children.

Where is the best place to keep my Will?

A Will can be stored anywhere as long as the Executors named within it know where it is. If we have helped you to draft your Will then we will store it free of charge in our secure storage facility until it is required. If another solicitor has been involved in drafting the Will, check with them whether they provide this facility.

Q. Can I change my Will if I want to?

Yes. If there is a simple addition or amendment that needs making to a Will, this can be done by way of a Codicil, which is a simple document that will be read along with the Will after you die. In some circumstances though, it is easier to redraft the Will completely, which can be done, as long as the new Will contains a clause revoking any wills you have made in the past. If you want to change your Will, call us to discuss your options.

Why would I need to use a Solicitor to draft my Will when I could write it myself or use one of the templates available from the supermarket?

A Will can be drafted by anybody but it is important to remember that a Will is always subject to challenge. A template or an online form can't tell you if you have made a mistake, or give you advice about claims other people could make against your estate.

There are several ways that a Will could be contested: a badly drafted clause can be open to interpretation and the person who wrote the will is not going to be around to help solve any arguments; somebody who has been left out of the Will could argue that it was made under duress by the actual beneficiary; and worst of all, one slight drafting error or a mistake when it is signed could lead to the Will being completely invalid. By using a Solicitor you get the benefit of advice and expertise when the will is prepared. Spending a little bit of extra money now could save your loved ones limitless time and expense in the future.

Proprietary Estoppel Explained

Proprietary estoppel is a principle in law, where one person claims that they have been promised property and have put themselves at a disadvantage in expectation, but ultimately have not received what they claim they were promised. This is best explained by way of case authorities. One of the more famous cases is that of Davies & Anor v Davies [2016] EXCA Civ 463 which provided some guidance in relation to the courts view of claims based on proprietary estoppel.

The case involved a family who run a farming business. Representations were made to the daughter to the effect that she would inherit the family business. Throughout the years the family, like many others had disagreements and the intentions of the parties varied. The case was brought by the daughter to seek a stake in the business and the assets. She had placed reliance on the representations made by her parents and the reliance on these representations had led to detriment.

The judge at first instance held that the daughter had, as a result of her parents' representations, formed a number of different expectations. At times she understood that she would inherit the farm and business and, for a period of some years, she believed that she had already been made a partner in the business.

In relation to the question of detrimental reliance, the trial judge found that this was not a case in which the daughter "positioned her whole life on the basis of her parents' assurances". The judge identified two broad strands in the detriment that she had suffered:

  1. working for long hours on the farm without full payment; and
  2. the loss of the career (with shorter hours and better pay) that she would have had, had she not worked on the farm.

In the first instance the court was satisfied that the daughter had a case and £1.3 million was awarded. The decision was appealed to The Court of Appeal and the award was reduced to £500,000.

The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity (b) reliance by the claimant on that assurance and (c) detriment to the claimant in consequence of his reasonable reliance.

In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant's assurances against any countervailing benefits he enjoyed in consequence of that reliance.

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