Category Archive: Dispute Resolution

COVID-19 vaccine passes and vaccination status checks – are you privacy compliant?

In addition to Government guidance and Covid-19 safety measures, business owners should consider whether its processing of Covid-19 pass information meets the requirements under the Data Protection Act 2018.

A visitor’s Covid-19 status constitutes health data, a type of special category of personal data under UK data protection laws. Compliance obligations around processing this type of personal data are more onerous, due to its inherent sensitivity, and a failure to comply with the 2018 Act could lead to sanctions issued by the ICO, the UK Regulator responsible for data protection matters.

For operators, where you do check or record people’s Covid-19 status, you must justify this in terms of what you collect, what you do with the information, how long you keep it for, and how you keep it secure, amongst other things. The Data Protection Act 2018 requires that you ensure the collection of visitors Covid-19 status is necessary, clear and transparent. What you do with this information should be set out in your Privacy Notice, statement or policy.

The same applies for those employees from whom you seek a vaccination status. An employee has the right to understand what information is held about them, and the easiest way to demonstrate this is with an Employee Privacy Notice. The processing of employee personal data must be fair and justifiable in all the circumstances and where you operate a business with a sizeable number of employees, you should carefully consider the purpose for retaining an employee’s vaccination status long-term.

Remember that the cornerstones of the 2018 Act are transparency and accountability, and that even where you are acting in line with government guidance, this must be demonstrated by your policy documents.

Article from our North East Leisure Supplement 2022, produced in conjunction with Sanderson Weatherall.

Louise Weatherhead Associate at Sintonslouise.weatherhead@sintons.co.uk or 0191 226 3699.

Enforcing a County Court Judgment – is not as simple as it may seem!

Pursuing a debt recovery claim may seem straight forward and in fact we find there are some elements of the Court system which encourages litigants in person.  For example, in using the Money Claims Online system (‘MCOL’).  However, obtaining and enforcing a County Court Judgment (otherwise known as a ‘CCJ’) is not always as simple as it may seem.

CCJ enforcement has been on the rise for several years and certainly post covid we have seen a marked increase but simply choosing the best enforcement option for you,  can be the difference between getting paid, or not getting paid.

A CCJ endorses a debt.  It is a document produced by the Court stating that the money is owed, and that it must be repaid. We must stress however that having a CCJ does not guarantee that the debt will be repaid.

Despite the request from the Court, when a CCJ is not repaid then a creditor must consider enforcement action and there are various options available to a creditor to enforce their CCJ.

Once a CCJ has been issued by the Court, the debtor needs to pay the CCJ within 30 days or it will be automatically entered on their credit file – irrespective of whether the debtor is an individual or a business.

If the debtor fails to repay the CCJ then enforcement action can begin.

Before choosing a CCJ enforcement option, there are several things that the creditor needs to consider. As we have already touched on earlier, obtaining a CCJ can be a straightforward process but enforcing it is rarely so simple.

A creditor needs to understand if the debtor has the financial means to pay the debt. This can mean by way of funds held in a bank account or goods and assets to cover what is owed or maybe, the debtor owns a property upon which the debt can be secured on.

If the debtor has no assets, no income and no property ownership, CCJ enforcement action may be fruitless. It is always important to remember that CCJ enforcement does not come with any guarantees.

If you believe that the debtor is heavily in debt then it may also be worth checking the insolvency register.  A quick search will tell you if a person has gone bankruptcy or signed an agreement to deal with their debts. The Government website is free to search – click here.

The main options available to a creditor for enforcing a CCJ are:

  • Bailiff or High Court Enforcement;
  • Charging Order;
  • Third Party Debt Order;  or
  • Attachment of earnings.

Bailiff or High Court Enforcement

Enforcement by way of a Bailiff or High Court Enforcement is by far the most popular and commonly heard used forms of enforcement.

This is where the debtors address is visited in order to obtain payment or seize goods to cover the value of the CCJ.

Presently debts under £600 can only be collected by County Court Bailiffs. A warrant of control can be applied for at the County Court which will then be passed to the Bailiff to execute.

If the debt is over £600 then the CCJ can be transferred up the High Court and a ‘Writ of control’ obtained. This allows a High Court Enforcement Officer to act on the creditor’s behalf.

The use of High Court Enforcement Officers is considered a more robust and quicker method when compared with County Court Bailiffs.

Charging Order

Payment of a CCJ can also be secured by applying to the Court for a charge order on the debtor’s property. This is not the quickest way for enforcing a CCJ but does at least secure the debt. It effectively transfers your debt from an unsecured,  to a secured debt but your debt will not be repaid until the property is sold.

In some circumstances a creditor may apply for an Order of Sale to force the debtor to sell the property. This is not always a straightforward exercise, and the court will consider various aspects and take into account the debtor’s circumstances before allowing such an Order.

Third Party Debt Orders

A very efficient way to enforce payment of a CCJ is to freeze a debtor’s bank account. This can be used for both unpaid Business CCJ’s and CCJs against individuals. This can allow for funds to be extracted from their bank account to pay the CCJ in full. This is a worthwhile method of CCJ Enforcement where the creditor has knowledge of the debtor’s bank account details and that there are adequate funds in the account.

Attachment of earnings (deduction from wages)

Attachment of earnings applications are only suitable for enforcing a CCJ against an individual. It allows for deductions to be made from a debtor’s wages in order to pay off the CCJ in instalments.

It is worth noting that debtors have a ‘protected earnings rate’ applied by the Court and are allowed to take home a minimum amount of their wages.  In addition, the creditor is responsible for informing the Court of the debtor’s employment details therefore if your debtor is known to jump from job to job then it can be quite time consuming and sometimes difficult to obtain their employment details.

As the debt is paid by instalments and sometimes the monthly payments are low, it is not the fastest method of enforcing a CCJ but, it is still effective.

Insolvency Proceedings for a CCJ

If it is clear that the either the business or an individual debtor does not have sufficient means to pay the CCJ then a last resort can be insolvency proceedings.

This is where an individual can be made bankrupt or a company forced into liquidation. The aim of insolvency proceedings is to liquidate all assets and pay off creditors debts. It can be a complex and timely exercise. Again, this comes with no guarantees and is reliant on the insolvency practitioner liquidating assets to be able to pay dividends to creditors.

It can be expensive and should only be used as a very last resort. Insolvency should not be used as a general method of enforcement and only when the creditor is absolutely sure that the debtor cannot pay their debts as they fall due.

And finally … always proceed with caution…..

Before any creditor sets out to enforce their CCJ, it is essential to do your homework before hand. If the debtor has absolutely no means of paying the debt then CCJ enforcement is not a viable option.

A CCJ will stay on a Debtors credit file for six years. You may at any time during that six year limitation period commence enforcement.  It could be that whilst at the present moment CCJ enforcement is not feasible, the debtors’ circumstances may change so it’s worth reviewing on a regular basis to check the debtor’s position.

If you have any queries about this article, please contact Allison Thompson on 0191 2267878.

ICO seeks to review data protection practices of senior civil servants handling sensitive information during the pandemic.

The ICO has called for a government review into the use of private emails and social media channels during the pandemic following concerns detailed in the ICO report “Behind the screens – maintaining government transparency and data security in the age of messaging apps”.

The report follows an investigation into the Department of Health and Social Care (DHSC) during the pandemic and concluded that there were shortcomings in the controls employed by the department in tracking data, within its systems and the increased use of messaging app and technologies like WhatsApp by Ministers and senior government officials. By utilising technologies in this way, these practices risked a data breach where important information was shared without the requisite security embedded in its systems.

The government are not alone here. Across the UK, many businesses and organisations have modified practices and stated polices to respond to business and operational needs during the pandemic. The UK GDPR requires organisations to map its data so that it can put in place organisational and technical measures to ensure information security. This is particularly challenging when it does not have visibility on the ways in which data is shared. This presents a real risk to the transparency and accountability principles underpinning the UK’s data protection legislation.

Businesses, public authorities and government need to recognise that a review of their current practices and calibration to align these with policies will be necessary, to ensure security of information and resilience to cyber threats going forward.

If you have any questions regarding this article, please feel free to contact Louise Weatherhead, a data protection lawyer, by email at Louise.weatherhead@sintons.co.uk, on Twitter @LNWdataprotect, or by telephone on 0191 2263699.

CPR Part 36 Offers – reminder from practice

We all know how useful a tool Part 36 Offers are in the thorny world of litigation. They really help parties focus their minds and tune into the reality of the severe costs consequences.

But in order to have effect, they need to be properly drafted and fully compliant. This reminder deals with the very basic requirements that a Part 36 Offer must be in writing and make clear that it is made pursuant to Part 36. This is what CPR 36.5 says :

Form and content of a Part 36 offer

36.5

(1) A Part 36 offer must—

(a) be in writing;

(b) make clear that it is made pursuant to Part 36;

[…]

In a very recent Fast Track case, the parties engaged in without prejudice communications. The matter was listed for trial on 11 May 2022. Let’s see what happened.

  1. A part 36 Offer was made by the Claimant on 9 May 2022 at 17:58 PM.
  2. The Part 36 offer dated 9 May 2022 was rejected by the Defendant the following morning, 10 May 2022, at 09:08 AM.
  3. At 14:05 PM on 10 May 2022 the Claimant send an email to the Defendant simply saying “further to our conversation, I can go to £10,000 to settle. Please respond by email”
  4. This offer made at 14:05 was accepted by email, by the Defendant, at 14:57 , the same email also seeking agreement on costs.
  5. Some discussion went on between the two solicitors as to what is the appropriate way to notify the court that the Claim has settled, which concluded at 15:58 with an email from the Defendant saying “ Here is a Part 36 Offer for £10,000” and attaching the same.
  6. The Claimant accepted the Defendant’s Part 36 offer at 16:17 on 10 May 2022.

The Claimant contacted the Court by email at 17:58 on 10 May 2022, by email, sending a statement of costs but no consent order. This was far too late. The matter came to trial on 11 May 2022, because the parties ran out of time to notify the Court, as the acceptance was past 4 PM.

They argued whether the Claimant should be entitled to recover the trial advocacy fee (all other costs having been agreed following acceptance) , given that the matter had settled the day before and there are no arguments on the merits. In arguing that the matter had settled before 4 PM, the Defendant sought to persuade the Judge that the actual settlement by acceptance of Part 36 Offer was achieved by the email sent at 14:05 by the Defendant accepting the Claimant’s offer (point 4 above).  This argument did not succeed.

The Court held that the Claimant’s  Offer accepted at 14:05 was not a valid Part 36 offer. While it was in writing , it did not make it clear that it was made pursuant to CPR 36. It lacked the very basic requirement of saying so. It did not matter that it was part of a chain of emails.

The Court further held that the only Part 36 Offer accepted in this case was the Defendant’s Offer made at 15:58 and accepted by the Claimant at 16:17. That was the offer that settled the case.

PD5B is very clear regarding the email communications with the Court and it provides as follows :

4.2 Where an e-mail, including any attachment, is sent pursuant to this practice direction and the e-mail is recorded by HMCTS e-mail software as received by the court at or after 4.00pm and before or at 11.59pm—

(a) the date of receipt of the e-mail will be deemed to be the next day the court office is open;

(b) the date of issue of any application will not be before that date; and

(c) any document attached to that e-mail will be treated as filed on that date.

The Court decided that the matter had in fact proceeded to trial  as the Part 36 offer was accepted after 4 PM the previous day, the court was informed on the day of the trial, the hearing went ahead, at least in part the issue of costs was disposed of at trial,  and ruled that the trial advocacy fee was recoverable from the Defendant.

So it is a very useful reminder that it doesn’t matter how beautifully drafted and reasonable the offers are, if they do not say they are made pursuant to Part 36, they simply are not.  It is a strict matter of form, rather than material content, that cannot be cured by the Court or anyone else. They do have value as offers, but they will not have the consequences of a valid Part 36 offer.

This particular case also reminds us how important time is, and that in reality  for the Courts the day ends at 4 PM. Had the parties reacted quicker, and had they had regard to PD5B section 4.2, there would have been a vacated trial and no trial Counsel fee to pay.

If you have any questions relating to this article or require any advice please contact Cristina Falzon, Associate in the Dispute Resolution team, on cristina.falzon@sintons.co.uk or 0191 226 7803.

Spotlight on The Renters’ Reform Bill…

The Government has published its long-awaited White Paper which they intend will bring about ‘a fairer private rented sector’.  The Paper promises tenants safety and security in their homes, and there is no doubt its’ changes will bring huge challenges for landlords too.

The piece of legislation has the potential to transform the way residential properties are currently let. The White Paper sets out the government’s long-term vision for the private rented sector and the plan includes such changes as:

  • Abolish Section 21 ‘no-fault’ evictions and introduce a simpler tenancy structure.
  • Apply the Decent Homes Standard to the private rented sector for the first time.
  • Introduce a new Property Portal to help landlords understand their obligations.
  • Introduce a housing ombudsman covering all private rental sector landlords and providing redress for Tenants.
  • Giving all tenants the right to request a pet in their home, which a landlord must consider and cannot unreasonably refuse.
  • Help the most vulnerable by outlawing blanket bans on landlords refusing to rent to families with children or those in receipt of benefits; and
  • Doubling notice periods for rent increases and giving tenants stronger powers to challenge them if they are unjustified

The Bill seeks to end the use of arbitrary rent review clauses, which will restrict tribunals from hiking up rent and enable tenants to be repaid rent for non-decent homes. This will allow tenants the ability to take their landlord to court to seek repayment of rent if their homes are of unacceptable standard

The Bill also proposes that all tenants to be moved onto a single system of periodic tenancies, meaning they can leave poor quality housing without remaining liable for the rent or move more easily when their circumstances change. A tenancy will only end if a tenant ends or a landlord has a valid reason, defined in law. However, the Bill does incorporate proposals to ensure responsible landlords can gain possession of their properties efficiently from anti-social tenants and can sell their properties when they need to.

By the introduction of this Bill the Government aims rebalance the rights and responsibilities of landlords and tenants.  They hope to drive up standards of rental accommodation so that everyone will know what is expected of them. As part of the bill, the government has also committed to improving court processes, which, we all hope will make processes simpler and easier to use for all concerned.

We can expect to see the Renters’ Reform Bill to be debated on and voted on before the Spring 2023 Parliamentary Session and we will be keeping a careful eye on these changes.

If you have any queries about this article please contact Angus Ashman on 0191 2267823 or Allison Thompson on 0191 2263719.

Cross-border data flows: new compliance requirements on transfers to Third Countries by UK businesses

There have been a number of changes over the last year or so relating to the free flow of personal data to and from the UK.

Last year, on the 28 June and following the UK’s exit from the European Union, the UK was awarded “adequacy” status by the European Commission. This was significant as it meant that, whilst the UK was no longer a member state of the EU, we could continue to send and receive personal data from EU member states without the requirement for additional safeguards (such as the inclusion of Standard Contractual Clauses or “SCCs” in our contracts). Companies were able to go about their business without the need to implement additional measures to demonstrate their compliance with the UK’s data protection legislation, and this was well-received by the business community, as one might expect.

It is important to note that the European Commission’s assessment of our adequacy to transfer and receive data from the EU remains under review and will be reassessed periodically. At this point, our UK GDPR is aligned with its EU GDPR counterpart. However, as new laws and guidance develop in the UK, this alignment may diverge which is why the European Commission wants to keep our adequacy status under review.  This will not happen overnight, but it will be something that UK businesses whose processing activities rely upon data transfers with the EU will want to bear in mind.

Building upon this adequacy decision, the UK regulator, the Information Commissioner’s Office, or “ICO”, has examined the data flow mechanism to and from the UK more generally and has updated its guidance on the use of SCCs as a transfer mechanism.  This has been entrenched in law, having been put before Parliament earlier this year.

Since the 21 March 2022, businesses are required to use either an Addendum to the SCCs or a separate International Data Transfer Agreement, or “IDTA”. This will be a requirement under Article 46 of the UK GDPR (the documents are issued under Section 119A of the Data Protection Act 2018) when making restricted transfers and which require more detailed information to be provided.  Some of the more notable details required by the IDTA are listed below:

  • The status of importer/exporter as data controller/data processor;
  • Any linked agreements (including sub-processors, master service agreements, etc.)
  • Where relevant, the onward transfers of personal data by importers to third parties;
  • IDTA review dates;
  • Security arrangements specific to processing activities;
  • Transfer risk assessment to be prepared identifying any specific risks and measures intended to mitigate such risks;
  • Additional protective and commercial clauses (such as indemnities);
  • Additional obligations on importer of personal data to make exporter aware of any local laws that may affect the transfer;
  • Obligation on exporter to carry out reasonable (ongoing) checks on importer’s ability to comply with the IDTA (or provide appropriate safeguards);
  • Rights of data subjects including new ones to provide individual with a copy of the IDTA on request;

Businesses already operating under the existing EU SCCs can continue to rely upon these documents for the time being – a long-stop date of 21.3.24 has been provided by the ICO, after which an IDTA or Addendum should be used. Those businesses who have acted in good faith to this point to negotiate contracts incorporating the existing SCCs can continue to use them if they are concluded by 21.9.22, but after this time a switch to the new IDTA/Addendum will be necessary. The good news is that the IDTA as a transfer tool looks to be a more straight forward and practical document than its SCC predecessor. It avoids legal vernacular and should prove an attractive substitute for most businesses operating cross-borders.

If you have any questions regarding this article, please feel free to contact Louise Weatherhead, a data protection lawyer, by email at louise.weatherhead@sintons.co.uk, on Twitter @LNWdataprotect, or by telephone on 0191 2263699.

Litigation – Risks and Rewards

The High Court handed down Judgment in Ed Sheeran’s copyright dispute on 5 April 2022, finding that he and his co-writers of the song “Shape of You” had not infringed the copyright of Sami Chokri and Ross O’Donoghue in their song “Oh Why”.

The case was unusual because Sheeran and his co-writers initiated the court proceedings by asking the court to declare that they had not infringed the Defendants’ copyright.

That strategy carries a significant level of risk. It is effectively an invite to the Defendants to issue a counterclaim for copyright infringement, which they might not otherwise pursue. We will never know whether Chokri and O’Donoghue would have gone to the trouble and expense of pursuing a money claim for copyright infringement if they were not forced to defend themselves. But they were, and they did.

The cost of the dispute will have been immense. Proceedings lasted from 2018 until March 2022, culminating in a trial lasting 11 days. Contrasting expert evidence from forensic musicologists was given by both sides. Both of the experts attended trial and were cross-examined. Both sides’ legal teams at trial were led by a QC. Sheeran’s barrister in particular is notable for having previously represented Placebo, Moby, Radiohead, Bob Geldof and the Duchess of Sussex.

Financial cost aside, Sheeran and his co-writers have spoken publicly about the drain they have felt on their creativity as a result of the proceedings.

Sheeran and his legal team would have been well aware of the risk of a counterclaim, and the potential cost of their intended tactics, before they instigated proceedings. Why, then, did they choose to take that step?

In fact, Sheeran issued proceedings in response to the Defendants asking the Performing Rights Society Limited (“PRS”) to credit them as co-writers of Shape of You, which had caused PRS to freeze royalty payments to Sheeran and the credited writers. Sheeran and his co-writers never confirmed the value of the frozen royalties, on the basis that they were only in court “to clear their names”, but the judgment suggests that it was at least £2.2m.

Faced with the apparent certainty of losing what the court described as “a substantial amount of money”, along with his valuable reputation as a songwriter, Sheeran’s strategy of asking the Court to declare that the Defendants had no right to be credited with helping to write Shape of You may have been a significant risk, but it was also a calculated one.

In the circumstances, it seems Sheeran and his co-writers correctly weighed the risks with the rewards. Sheeran’s reputation has been vindicated and a large sum of money will soon be released to the Claimants by PRS.

Litigation is expensive, time consuming and fraught with risk. However, in some circumstances it is unavoidable and is the correct course of action. The value of being properly advised and represented prior to and throughout court proceedings cannot be overstated.

If you have any questions relating to this article or require any advice please contact Robert Burn, Solicitor in the Dispute Resolution team, on robert.burn@sintons.co.uk or 0191 226 3800.

Sintons continues its expansion with the announcement of promotions

Law firm Sintons continues its expansion with the announcement of six promotions across the different areas of its business.

The promotions, involving two new partners, one senior associate and three associates, recognise the talent, commitment and dedication of the individuals concerned in their specialist fields of work.

Corporate lawyer Emma Pern and private client specialist Paul Collingwood have each been promoted to partner.

Both have been instrumental in the growth and development of their respective teams and in overseeing complex matters on behalf of clients from across the UK.

Sintons has also promoted residential conveyancing specialist Suzanne Dixon to senior associate and has named three new associates – private client solicitor Lauren Fraser, dispute resolution lawyer Adam Hutton and Neurotrauma specialist Nicki Waugh.

The two new Sintons’ partners spoke of their delight at their promotion.

“It feels great to be recognised for all my hard work, but I could not have done this without the support of everyone at Sintons, my clients and my contacts. I’m looking forward to this next stage in my career,” said Emma.

Paul said: “Being promoted to partner means a great deal to me, especially in a firm like Sintons. It is a great place to work and to progress within.

“I have been supported throughout my career here and I really look forward to the future and the different challenges that my promotion will bring.”

On becoming a senior associate, Suzanne said: “I’m so pleased and proud. It reflects my hard work and dedication, and the support that I’ve had from my supervisors and colleagues along the way.”

Sintons’ new associates also spoke of their pride at the recognition of their efforts.

“I am delighted to have been promoted to associate in the private client team said Lauren.

“The firm has been incredibly supportive of my professional development, and I’m thrilled to have the opportunity to be part of its growth, both regionally and nationally.”

Adam said: “This is a firm that is committed to investing in its employees to allow them to grow and progress in their careers.

“The dispute resolution department has an excellent reputation and I look forward to contributing to its growth and development whilst continuing to work with new and existing clients.”

Nicki added: “It means a lot to receive recognition for the work I do. I thank the firm for the support and encouragement they have given to me in achieving this goal.”

Christopher Welch, managing partner of Sintons, said: “We are lucky to have talented and committed people throughout Sintons. As an Investor in People we believe in nurturing and supporting all our people and encouraging them to achieve their full potential. It is a privilege each year to be able to reward the outstanding efforts we have seen with promotion.

“Emma and Paul have been with Sintons for a number of years and have excelled in their respective fields, becoming trusted advisors to clients from across the country and supporting them in some milestone moments in their lives. I am delighted to welcome them both as partners in the firm.

“Suzanne, Lauren, Adam and Nicki have all shown outstanding dedication to their clients and their roles, playing a key part in their growth and development of their respective teams.

“We wish them all the very best of luck as they continue to progress their careers at Sintons.”

The Commercial Rent (Coronavirus) Act 2022

We have provided a number of articles over recent months about the various temporary measures which were introduced by the Corporate Insolvency and Governance Act 2020, which aimed to help companies affected by the lockdown restrictions during the pandemic.

Most of these measures expired at the end of June and September 2021, except for restrictions on winding up companies, which were extended until 31 March 2022.

Today sees the end of this restriction which will not be extended and see the insolvency regime to return to its pre-pandemic process.

Many clients will be concerned about commercial rent debts which have accrued because of the pandemic.

A new law is now in place to help resolve certain remaining commercial rent debts accrued because of the pandemic.

The ‘Commercial Rent (Coronavirus) Act 2022’ received Royal Assent on the 24 March 2022. This introduces a legally binding arbitration process available for commercial landlords and tenants who have not already reached an agreement to deal with commercial rent debts. Its purposes is to resolve disputes about pandemic related rent debt and help the market return to normal as quickly as possible.

The law applies to commercial rent debts in respect of unpaid rent arrears relating to the ring-fenced period, of business tenants which:

  1. Were mandated to close their premises or business (in whole or in part, including with exceptions such as non-essential shops being allowed to open for collections) under regulations made under the Public Health (Control of Disease) Act 1984 during the COVID-19 pandemic; and
  2. Lease their premises under a business tenancy, as defined by Part II of the Landlord and Tenant Act 1954; that is, a tenancy under which premises are occupied by the tenant for business purposes (or business and other purposes)

The ‘Commercial Rent (Coronavirus) Act’ applies to England and Wales and for those tenancies that fall within scope of the Act and have failed to reach agreement, either party can apply for arbitration, as a backstop after negotiations have failed.

There is a strict window to apply for arbitration which is six months from the date legislation comes into force. Arbitrators may award a reduction of protected rent debt and/or time to pay, with a maximum period to repay of 24 months.  The legal arbitration process will be delivered by arbitrators appointed by approved arbitration bodies from a list of suitable and available arbitrators.

The new legislation provides for:

  1. A claim for a county court judgement or high court judgement, made between 10 November 2021 and commencement of the Bill and including debt within the scope of the Commercial Rent (Coronavirus) Bill, to be eligible for arbitration under the process in the Bill. The Bill will prevent issue of debt claims including ringfenced debt from commencement until the end of the arbitration application period or the arbitration process.
  2. A petition for bankruptcy relating to debts within the scope of the Commercial Rent (Coronavirus) Bill where the statutory demand or claim on which the petition is based was issued between the 10 November 2021 and commencement of the Bill will be effectively void, and any order made relying on such petitions would also be void. The Court will have power to restore the debtor to which the petition or order relates, to the position it was in immediately before the petition was presented. The Bill will prevent a landlord from petitioning for bankruptcy of a business tenant such as a sole trader, based on non-payment of a statutory demand relating to any ringfenced debt served on or after 10 November 2021 and before the Bill comes into force. It will also prevent a petition based on a judgment debt if the claim was issued in this period.

If you have any queries about the rent recoveries, please contact Allison Thompson on 0191 2263719 or in respect to any commercial landlord queries please contact Angus Ashman on 0191 2267878.

Agriculture and Estates offering continues to develop at Sintons

Specialists from across Sintons are helping to drive forward the firm’s specialist agriculture and estates team, which continues to grow its profile and case load across the North of England.

The team has built trust with rurally-based families and businesses over the course of generations, with Sintons’ presence in rural and farming communities spanning much of its 126-year history.

The firm’s legal expertise and outstanding client service has made it the legal advisor of choice for people across several generations of families and business ownership, and its presence continues to grow across the North of England on the strength of its reputation.

Bringing together expertise and leading lawyers from across a number of Sintons practice areas, the agriculture and estates team – headed by Tom Wills – has made significant gains in the past few years in particular.

The firm’s specialism is widely known and respected in what is a very niche area of law, where few firms are recognised as having the capability and knowledge to truly serve the unique needs of rural communities.

Bringing in expertise from a host of specialisms, Sintons offers bespoke support in family law, real estate, contentious and non-contentious private client work, dispute resolution, regulatory and business matters, and commercial work.

Key team members comprise Alan Dawson, the firm’s chairman who has been known for supporting rural families for over 40 years; Angus Ashman, Jay Balmer, Robert Burn, Paul Collingwood, Sophie Dodds, Cristina Falzon, Lauren Fraser, Elizabeth Gallagher, Louise Kelly, Paul Liddle, Amanda Maskery, Louise Masters, Emelie Rowell, Emma Saunders and Sam Watts.

“The capability of our team is there for all to see, and few other firms can come anywhere close to the decades of expertise, experience and reputation we have in our agriculture and estates offering,” says Tom Wills.

“For generations, we have been by the sides of families and businesses in rural and agricultural communities across the North of England, earning the trust of these clients so they stay with us over the course of many years. It is a privilege to be able to support them through hugely significant moments in the lives of individuals and families, and to be able to give our expert advice to benefit businesses.

“We continue to grow on the strength of our reputation and the outstanding legal and client service we deliver, and our instructions come from across the entire region, often involving matters of great complexity, which Sintons is well equipped to handle.

“The growth we have seen, and continue to see, is hugely positive and confirms the standing that Sintons has held for many years in this very specialist area of law.”

Proposed Changes to Insolvency Regulation

The Government has set out new proposals to reform and simplify regulation of the insolvency sector.  A new consultation is inviting views on creating a single regulator for Insolvency Practitioners and extending regulation to firms that offer insolvency services.

Key changes set out in the consultation include:

  • establishing a single independent regulator to sit within the Insolvency Service, replacing the current four Recognised Professional Bodies
  • extending regulation to firms that offer insolvency services, as the current regime only covers individual Insolvency Practitioners
  • create a public register of all individuals and firms that offer insolvency services
  • create a system of compensation and redress

It is believed that the proposed changes will help strengthen and modernise the regulatory regime which has been in place for over 30 years.

The reforms aim to ensure a robust and proportionate regulatory regime that enhances consistency, improves transparency and, importantly, will also regulate firms that offer insolvency services rather than just individual Insolvency Practitioners.

Regulation at firm level would see the insolvency sector brought into line with other sectors such as the legal profession.

The Insolvency Service is currently responsible for oversight of regulation of the Recognised Professional Bodies (‘RBPs), which are responsible for regulation of individual Insolvency Practitioners (‘IPs’). However, they found that the current framework is disproportionately complex, with 4 membership bodies and government all involved in regulating fewer than 1,600 individuals.

The Government suggests that this approach has led to weaknesses in the regulatory system as the market has evolved over recent decades. As well as a lack of regulation of firms undertaking insolvency work, the current system also lacks transparency and has inconsistencies, with different bodies making information available in different formats.

The Government is also proposing a public register that will clearly show all individuals and firms that are authorised to provide insolvency services, together with whether that individual or firm has previously been sanctioned by the regulator.

There is also a proposal to introduce a new mechanism allowing for the payment of compensation if it is found an IP or firm offering insolvency services has made a mistake and one of the parties involved have been adversely affected.

The consultation will run until midnight on 24th March 2022 and we will be monitoring the results and any changes which are subsequently enacted.

You can respond to the consultation and register your views here.

If you have any queries about this article, please contact Allison Thompson on 0191 2263719.

The Statements of Foreign Witnesses – the Backwards Solution

We live in an international environment. We are very fortunate in the UK to have the comfort that most people whom we interact with, regardless of their country of origin, speak English. It had perhaps made us a little spoilt. It has also caused, on occasion, issues with witness statements given by foreign nationals in English Court Proceedings. This article is the result of such a learning experience.

Let’s see briefly what the rules are.

CPR Practice Direction 32 governs the practicalities of preparing and relying on witness statements where the witness’ first language is not English. CPR PD32 paragraph 18.1 provides that the witness statement must be in the witness’ own words and in their own language. The process used to prepare the witness statement should also state if it has been through an interpreter.

In a recent case in the High Court, where we acted for the Claimant, we had a witness whose first language was Russian, but prepared their statement in English, sent it to us in English, and he signed the Statement of Truth in English. Indeed, he communicated with us in perfect English by email for months.

So, what’s the problem? We didn’t think there was one. No doubt there are millions of people whose first language isn’t English but are fluent enough to provide a witness statement in English.  The witness’ “own language” includes English as a second language, if the level of fluency, both in writing and in speech, as high enough. A person can have more than one “own language”. We have seen this countless times, especially in bilingual families.

However, when our trial was approaching, and he knew he was going to be attending the court for cross examination, our witness told us he requires an interpreter as he is not confident in his fluency. The witness had at no point prior to this expressed an issue with their English skills.

To clarify, our opponents were perfectly content to have the statement as served, in English, and to have the interpreter just for the cross-examination.

Suddenly, however, the question of compliance with CPR PD32 arose in this case, on the day of cross examination, in open court.

CPR PD32 provides that where a witness statement is in a foreign language, the party wishing to rely on it must have it translated and file the foreign language witness statement with the Court, and the translator must sign the original statement and must certify that the translation is accurate.

That is all good and clear, but no rule tells us what to do in the particular situation we faced, where we had a foreign witness, filing a statement in English, and not preparing a statement in his own language at all.

As it transpired, our witness did indeed prepare the statement himself, in English, in complete good faith, with the help of his English teacher and much assistance from Google translate. Which also helped him communicate with us in perfect English, thus we did not suspect for a moment that, in reality, he was not fluent in English at all.

There we were, in court, with the witness connected by video link from his country, with the interpreter ready, and with a statement in English that the witness needed help to read. It seemed hopeless for a minute or two, we thought we were going to lose the witness and we really didn’t want to.

The Rules do not cover this situation, and it is, therefore, a procedural gap. The Rules required a statement in Russian, translated into English, and both versions on file. What we had was an English statement, prepared by the witness himself, and nothing else. We were at an impasse, which the Court had to resolve. The Court decided that one way or another, there had to be two statements on file – one in Russian and one in English.

After much heated debate (as the other side saw an opportunity and sought to take it), we had to make an oral application in court for permission to rely on this witness and his statement.

The court held that the witness statement went to an important, but specific and discrete issue in the case. This meant that the cross examination of the witness, despite the language barrier, would not take up a significant amount of court time.

Prejudice would result to the Claimant if the witness’ evidence was not permitted to be relied upon as the evidence went to the heart of one of the Claimant’s issues.

The language skill of the witness was explored during written communications but the witness only made their concerns known regarding their oral skills shortly before the start of the trial. This was several weeks after the deadline for preparing witness statements had passed.

I must say the Court found a very ingenious and practical solution to this problem, which perhaps should be turned into the next CPR 32 update. It reflects the very essence of the overriding objective.

The Judge allowed the witness statement to be relied upon provided several conditions were met. The first was that the witness statement had to be translated from English, in its present form, into Russian; the second that the Russian statement be certified by the translator/interpreter and the statement of truth to be signed by the witness in Russian, and the third that the Russian statement be circulated to the Court and Defendant prior to the cross examination. That meant that all this needed to be done within 18 hours – by the next morning.

It was done with time to spare.

Applying the rules backwards, one may conclude.

It worked, and it was right that the Judge made this decision, after considering everything.

But it is best to not be in this position at all if one can help it. Therefore, we offer some guidance that we think will prove helpful. The procedural gap is still there, and there is no guarantee that the solution found by the judge in this case will be adopted by another judge. Our application could have been easily dismissed.

In an attempt to circumvent this procedural gap, there are several best practices that can be adopted when dealing with a witness whose first language is not English, whether that witness lives in the UK or abroad.

Assess the potential witness’ language at the start by speaking on the phone or by video conference, consider who is present and whether the witness is using a real-time translating service. Look out for signs such as basic sentences, slow speech, long pauses and generally broken English. Do not rely solely on written communications, as these can prove misleading.

If in any doubt at all, instruct the witness to NOT prepare his statement in English, but in his own language. Some witnesses will try to do it in English, to be helpful. It is not helpful unless the witness is completely fluent. If the witness later wants an interpreter, then clearly the witness is not fluent.

Once drafted, engage an interpreter from a properly accredited translator service to (1) translate and (2) certify that the translation is a true and accurate representation of the foreign language witness statement.

Engage an interpreter for a trial in ample time and give the interpreter a brief of the case, in particular if there are complex issues, topics or difficult party names to deal with to assist in the smooth running of the cross examination.

Basically, strict compliance with the Rules should keep you on the safe side. If however, you find yourself in the same situation as us due to a misleading witness, try the solution found in our case, just be sure to do all that we were ordered to do, before the day of the cross examination. In all likelihood, the backwards application will cure whatever perceived breach there may be.

If you have any questions relating to this article or require any advice please contact Cristina Falzon, Associate in the Dispute Resolution team, on cristina.falzon@sintons.co.uk or 0191 226 7803.

The impact of the Breathing Space on Possession Claims

The Debt Respite Scheme (Breathing Space) is now fairly familiar to most of us. In brief,  the Breathing Space prevents creditors, including landlords and mortgage lenders, from taking action against debtors who are not able to pay. There are 2 types of breathing space: a standard breathing space and a mental health crisis breathing space.

A standard Breathing Space gives debtors legal protections from creditor action for up to 60 days.

A mental health crisis Breathing Space is available to a debtor who is receiving mental health crisis treatment. If an Approved Mental Health Professional certifies a debtor is in mental health crisis treatment, they can apply for the mental health crisis Breathing Space, which lasts as long as the debtor’s mental health crisis treatment, plus 30 days (no matter how long the crisis treatment lasts). Therefore, indefinitely, potentially for the rest of the debtor’s life.

A debtor can have one standard Breathing Space a year, but there is no limit in relation to the mental health crisis Breathing Space.

That much is clear. What happens, however, to the claims for possession based on rent arears, which were issued prior to the tenant applying successfully for Breathing Space? And moreover, what happens to the enforcement of possession orders obtained prior to the tenant going into breathing space? That was not entirely clear, however it has become a little more so after having been faced with these situations in practice.

We learned first-hand, when acting for residential landlords, very recently.

  1. The first situation was the following. Acting for the Landlord, we served a Notice pursuant to Section 8 of the Housing Act 1988, requesting possession due to rent arears, which were very significant. In this particular case, they were actually more than 6 months. There were no problems with the service of the notice, and upon its expiry we duly issued a claim in the County Court at Newcastle upon Tyne. After the inevitable wait, the claim was listed for an attended final hearing on a day in January 2022.

We attended on the day and time of the hearing, suited and booted. The tenant was there, accompanied by a solicitor who provided an assistance service at the court for such cases, and of course we are grateful that this possibility exists for tenants who risk losing their homes. Exactly 10 minutes before going into the hearing, the tenant came and informed us that his application for Breathing Space (that we knew nothing about) had been successful and he has 60 days protection. He received confirmation of this shortly before the hearing and showed us the email.

This was something that we could not have foreseen. The creditors are not informed at all prior to the application being successful, their views are not sought. There had been no indication whatsoever that he would apply for Breathing Space. The email shown to us did not contain a list of the debts covered by the breathing space. So there was no way to tell whether the rent arears we in there. Unfortunately, it did not matter in the end.

When the time came, we were called to the Hearing Room, in front of the Judge. We made submissions, then the tenant waved his email and the case just stopped there. It was like a magic wand.

There was an argument to be had that a possession order could still have been made, but the enforcement stayed until the expiry of the 60 days of Breathing Space. After all, the rent arears being more than 2 months, we were dealing with a mandatory ground for possession. Furthermore, there was not  (still isn’t)  any prospect whatsoever of the tenant paying his rent. That argument was had and lost.

The hearing was adjourned to the next available date after the expiry of the 60 days Breathing Space. The Judge informed us openly that this was the first possession claim in front of him which was faced with this situation.  So we learned that Breathing Space trumps mandatory grounds for possession, and it’s not limited at enforcing court judgments, as it frustrates the court process in its entirety.

Will this tenant pay his arears to date, plus the two extra months of Breathing Space? In this particular case, there is no likelihood of that. So the result of the Breathing Space break will be an even higher debt for the tenant, and a landlord who is kept out of his property while his tenant lives there free of rent. Still, we are seeing it as a set-back, not a loss.

  1. The second situation we had was with a possession order obtained before an application for Breathing Space was even made by the tenant. However, an application was successfully made when actual enforcement by bailiffs was scheduled. Of course, the eviction got stopped in its tracks. Nothing is gained by the tenants, though, they still have to leave. If they do not vacate, it will be a matter of resuming enforcement.
  2. There is a third scenario. The tenant applied successfully for a Breathing Space in June 2021, due to expire at the end of August 2021. He did not tell the Landlord, who had already served a valid notice seeking possession for rent arears sometime in May 2021. The debt adviser didn’t tell the Landlord either. None the wiser, in complete good faith, the Landlord issued a possession claim in July 2021.

When the claim was served on the tenant, he wrote to the Court to say that he was in Breathing Space when the claim was issued, and the claim should be struck out. This was his only defence to the claim. By the time the claim popped back in the Court system to be listed, in January 2022, the Breathing Space had long expired. What will the Court do? That remains to be seen. If I may offer a personal view (informed of course by my previous experience), as the Breathing Space has the result of adjourning or staying a claim until the time expires, there is no reason for it to not proceed now, even if it was issued when the break was in place. I await with a degree of trepidation the decision on this. I will make sure to share what I learn.

The difficulty we faced in all these three situations was that the Breathing Space came out of the blue. No indication was given to the Creditors, no warning at all, not by the debtor and not by the debt adviser who dealt with the application.

It is impossible to predict that it will happen. I cannot think of a reason why the debt adviser who is dealing with the Breathing Space application should not notify the creditors that this was being pursued. After all, one assumes the debt adviser knows who the creditors are and how much they are owed, since it appears that the Breathing Space break applies to a certain list of debts contained in the debtor’s application. Which we have never seen actually, it wasn’t attached to any of the emails we were shown. Yet, creditors are not informed and this is anomalous.

In the meantime, we should warn our landlord clients, as a matter of course, that the tenants may (or may not) apply for Breathing Space and that they can be forced to allow the tenants to live in the properties for free for the rest of their lives (in a mental health crisis scenario for instance).

The only good news is that the Breathing Space only affects possessions which are sought based on rent arears or other monetary failures. It does not affect the possessions sought based on the grounds in section 21 of the Housing Act 1988, the so called “no fault evictions”. So if the Landlord has all the paperwork in order, and is not too fond of recovering rent arears, the way to go is by section 21 Notice, which will give them the property back, but will not deal with the money aspect. Even so, enforcement will potentially become an issue if tenants refuse to leave.

I suspect that such situations will become very frequent, which makes the Breathing Space scheme very successful indeed. The negative impact on the letting market however is going to be significant, and the extent of this impact is still to be ascertained.

For many Landlords, the rental income is something they rely on, month by month,  to support their families, and I have even seen some whose only income was the rent from a second house. We are seeing more and more Landlords who are reluctant to let their properties, as they are becoming more and more aware that they can in extreme cases lose the use of their properties indefinitely, while still having to, for instance, pay for building insurance, repairs, or mortgage.

The time is approaching when landlords will prefer to keep their properties empty, rather than have a stranger living in them for free and using lots of utilities – also for free. Potentially for many, many years.

At the moment, the Breathing Space Scheme seems to be a short-term solution that will create a long term housing crisis.

If you have any questions relating to this article or require any advice please contact Cristina Falzon, Associate in the Dispute Resolution team, on cristina.falzon@sintons.co.uk or 0191 226 7803.

Get your business finances off to the best start in 2022

One of the most time-consuming aspects of running a small business is chasing unpaid invoices.

Credit control is often regarded as a drain of time and resources when trying to run your business. It takes key personnel away from more important tasks and can be demoralising. However, not having strict credit control policies can seriously damage your cashflow and the wellbeing of your business.

Adopting good credit control policies be simpler than you might think. A quick review of how you tackle your credit control can help you identify weakness within your procedures in just a few minutes.

Here we give you some industry recognised handy tips to keep your businesses credit control in the best possible shape for 2022.

Monitor your ledger

This is not as time consuming as you may think. Just a quick 5 minutes every morning to review your sales ledger is an effective way of identifying which customers are near or have missed a payment deadline.

Speak to your customers

Maintaining personal relationships with customers and clients can help keep them aware of pending credit periods. It also helps you to manage them as a customer and can result in more business.

Update your invoice templates

Are your invoices providing all the key information to your customer? Ensure your invoice template clearly states your terms for payment, credit terms and payment methods etc…

Credit check customers

It is vital to credit check new customers but also be aware of existing customers getting into financial difficulties. A company’s credit status can change very quickly so it is imperative you do carry out regular credit score checks.

Set clear payment deadlines

If your business has an array of older unpaid invoices that have taken up way too much time, set a payment deadline. This will make it clear that you cannot simply act as a free overdraft for their business. This is the most important tip of all. Thousands of SME’s go to the wall every year by not taking positive steps to ensure they get paid.

Don’t wait to chase what you are owed!

As soon as the payment deadline is passed, commence recovery action without delay. Your debtor may continue to provide you with excuses for why their payment is late, but any delay in chasing your payments can impact successful recovery.

If you have any queries about debt recovery please contact Allison Thompson on 0191 2267878.

Disclosure Pilot – Applications under section 12.5 of PD51U

As we all know, this Practice Direction provides a pilot scheme for disclosure in the Business and Property Courts, and has been in force since 1 January 2019. A large number of cases are covered by it and the trajectory of disclosure under the Pilot has not been without issues.

On occasion parties will not comply with an order for Extended Disclosure on time, for various reasons. In this kind of situation, section 12.5 of PD51U sets out what needs to be done.

The text of the section is very clear:

12.5 A party may not without the permission of the court or agreement of the parties rely on any document in its control that it has not disclosed at the time required for Extended Disclosure (or within 60 days after the first case management conference in a case where there will be no Extended Disclosure). For the avoidance of doubt the party and its legal representatives remain under the duties under paragraph 3.1 (the Disclosure Duties) and 3.2 above.

So what test will the court apply when dealing with such Applications?

These Applications are of course made under section 12.5 of PD51U, rather than under CPR 3.9 (1) which sets out the procedure for applications for relief from sanctions.

It is now established that the test applied to applications for relief from sanctions under CPR 3.8 and  3.9 (1) is the so called “Denton Test”.

The Court of Appeal judgment in Denton v White [2014] EWCA Civ 906 set out a three‐stage approach for assessing applications for relief from sanctions under CPR 3.9(1):

  1. Identify and assess the seriousness or significance of the breach.
  2. Consider why the default occurred.
  3. Evaluate all the circumstances of the case so as to enable the court to deal justly with the application, including the need :

(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, PDs and orders

Since 2014 there has been a plethora of applications for relief from sanctions, which were all dealt with by the courts by applying the Denton Test.

The main difference between the regime applicable to the breaches under CPR 3.8 and those under PD51U is that the breaches of the PD51U can be cured by the parties’ agreement or consent. Once that’s achieved, the breach is gone, and the Court does not get involved, no application is necessary. Not even a consent order, it is all done between the parties. Only if agreement is absent, an application under section 12.5 becomes necessary.

There is no possibility of overcoming a breach under CPR 3.8 by the parties’ agreement or consent. This can only be cured by a successful application for relief from sanctions made under CPR 3.9. It is the exclusive prerogative of the courts to cure these breaches.

Therefore, the question is whether, due to the obvious difference between the applicable regime, the Denton Test will still apply to applications under s12.5 of PD51U, the same way it applies to applications under CPR 3.9. Indeed, even if an Application under section 12.5 of PD51U is made and proceeds to a hearing, the other party can still consent to it. The other party cannot consent however to an application made strictly under CPR 3.9.

We had the opportunity to deal with such applications, and we found that the answer is that the Denton Test still applies. This is because the PD provides for a sanction for non-compliance with the court order. Section 12.5 of PD51U clearly indicates that if a party can’t get the consent the other side, it can’t use the documents disclosed out of time.

Simply put, once the application is made under section 12.5 of PD51U, and gets in front of the judge, it is essentially an application for relief from sanctions and the decision will be whether relief is granted or not. Whereas if there had been compliance, a party could rely on the document, a party in default can only rely on the document if the court gives permission or the other party consents. The imposition of these conditions is a sanction. It is not less of a sanction because it can be overcome by the consent of the other party.

The fact that the default can be overcome by agreement of the parties, while it sets these applications under Section 12.5 of PD51U apart from the usual ones under CPR 3.9,  does not have the effect of taking it outside the relief from sanctions regime under the CPR.

As a reminder, CPR 3.8 provides that where a party has failed to comply with a rule, Practice Direction or order, any sanction for failure to comply imposed by the rule, Practice Direction or order has effect unless the party in default applies for and obtains relief from sanctions. And the test applied by the courts in dealing with these applications is the Denton Test.

If you have any questions relating to this article or require any advice please contact Cristina Falzon, Associate in the Dispute Resolution team, on cristina.falzon@sintons.co.uk or 0191 226 7803.

What you need to win a business and property dispute

Litigation and the expense and distraction it causes is something no sensible or well advised business or individual usually wants or seeks.

While the above is probably generally accepted, the reality is that disputes over business and property transactions occur every day. In light of this unfortunate reality those who are or may be involved in such disputes need to understand how Judges are trained to analyse the evidence in a business or property case, the decisions trial judges are therefore likely to make and to plan their strategies and preparations in a case accordingly.

The traditional and popular view of courts and trials is of witnesses being questioned and of their fallibility and, sometimes, their dishonesty being revealed in that way.   While this occurs, it is increasingly secondary to how the outcome of a case in the Business and Property Courts involving a factual dispute will actually be decided.

While it has been periodically referred to by the higher courts over the past half century, over the last 5 to 10 years senior judges and the Courts generally have been emphasising the central importance of the evidence and information to be obtained from documents created before and at the time of a transaction rather than the memories of witnesses, however honest, but whose recollections are unavoidably influenced by the failure of the relevant relationship or transaction and the resulting dispute.

The frequently referred to guidance of Mr Justice Leggatt, now Lord Leggatt, a Justice of the United Kingdom Supreme Court, in Gestmin SGPS S.A v Credit Suisse (UK) Limited of 2013 is that:

‘Evidence based on recollection

15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.

16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. …………………….

19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces………………

22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

23. It is in this way that I have approached the evidence in the present case.’

Whether Lord Leggatt was correct about the innate unreliability of otherwise honest witnesses’ memories in a commercial dispute is beyond the scope of this article and is, frankly, beside the point because the training of the judges who will decide such cases is now largely predicated on the basis that:

‘… the best approach for a judge to adopt in the trial of a commercial case is….to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.’

While a judge must still hear, understand and explain why they do or do not accept a witness’ evidence on a disputed factual issue, the emphasis when a Court is deciding a case is to forensically reconstruct what occurred (a) from the information available from the documents, electronic and printed, formal and informal, that were created before and at the time of the relevant transaction, and (b) on the most apparently logical factual version of events in the particular circumstances.

The evidence and questioning of witnesses rather than being the source of evidence in a case is now more the mechanism by which the relevant documents are examined by a Court and the likelihood or otherwise of what each side argues explored.

What businesses, individuals and their advisors therefore have to realise and seek to apply at an early stage in a case and in order to determine their best strategy is that whatever the strength of feeling and sense of wrong there will often be, where the two sides are putting forward conflicting versions of what was agreed or what occurred, a Court will look at and decide the case on what the formal and informal documents, be they the contents of professional advisors’ files, letters, emails, texts, WhatsApp or social media, at the time of the relevant events indicate happened and the overall logic and likelihood of each sides’ position.

If the documentary evidence and the overall logic does not support what a party to a case is saying occurred then all the honest, well meaning, and supportive witnesses there may be are unlikely to help, and businesspeople and their advisors need to decide their strategies in a case accordingly and based on such an understanding of how judges are trained to decide such cases.

While what is set out above may be said to be obvious, many expensive and time-consuming cases still occupy the Courts based on assertions, passionately held beliefs and vigorous denials of the contents of documents prepared long before controversy arose and the contents of which are perfectly understandable in the circumstances in which they were created.

In light of what needs to be understood to be judges’ approach to deciding cases, businesses and individuals who find themselves in such disputes as soon as a dispute begins to develop have to (a) identify where and on whose electronic hardware such historic documentary evidence is likely to be found, (b) ensure those documents are not deleted and are preserved in their original form, and (c) identify the search terms most likely to identify all the documents with information relevant to a dispute.  Such key steps and the evidence they will produce will help a party anticipate what is likely to happen at Court and so that they can decide their strategic approach to a dispute and, if there is no alternative to such a process, can result in success at trial.

Such steps are also crucial because parties to such disputes, often because the documentary evidence does not help them, will insinuate that their opponent has not properly searched for or disclosed all relevant documents or that even where, for example, an email relevant to the issues in its native format has been subsequently forwarded thereby losing the metadata of the original that the contents of the original but subsequently forwarded email have been altered in some way. The routine deletion of apparently obsolete historic data however innocent and however irrelevant it may in fact have been will also result in such accusations.

Such insinuations will multiply if there is a disorganised approach to preserving and searching for documents at the outset with the result that relevant and perhaps helpful documents may only be found and disclosed late in a case.

While it is expensive, the insinuation by an opponent that a party’s search for and disclosure of documents has been inadequate can be considerably reduced if independent consultants are tasked to forensically search identified persons’ IT hardware using appropriate search terms and identifying and thereby allowing for a timely explanation of any apparent gaps in such data.

The importance of finding, preserving, and acting on the information from the relevant historic documents in a dispute cannot be overemphasised.

Angus Ashman is a Partner in the Dispute Resolution department. You can contact Angus at angus.ashman@sintons.co.uk or 0191 226 7823.

The Commercial Rent (Coronavirus) Bill

On the 9 November 2021 The Commercial Rent (Coronavirus) Bill was published and received its first reading in the House of Commons.

It is the aim of Government that this new legislation will become law by no later than 25 March 2022 and its purpose is to determine the extent, if at all, to which landlords of commercial premises must (a) write off accrued financial arrears payable under the terms of business leases which were caused by the legally enforced closure of business premises during the Coronavirus pandemic, and/or (b) allow extended periods of time for the payment of such arrears.

On the same day as the proposed new legislation was published, the Government also published a new Code of Practice for commercial property relationships to replace the existing code and which, while voluntary, invites commercial landlords and tenants to reach agreement on Covid-19 financial arrears using the same principles as the new legislation will legally impose upon them following 25 March 2022 if agreement cannot be reached.

While the proposed new legislation has yet to complete the full legislative process, it is unlikely its basic terms and principles will be materially altered.

The key points of the new legislation are:

1. The legislation and the protection intended for commercial tenants relates only to a ‘protected rent debt,’ which is defined as being arrears of rent, service charge, insurance, VAT, and interest on late payments which are payable under a lease of business property and which were caused by the legally enforced Covid-19 pandemic public health closures of businesses in England during the period between 2pm on 21 March 2020 and 11.55pm on 18 July 2021. For businesses in Wales the protected period is between 21 March 2020 and 7 August 2021.

2. The legislation allows for arrears of protected rent debt to be (a) written off in whole or in part, (b) for additional time to pay such arrears up to a maximum of 24 months from the date of any decision, and (c) for contractual interest on the late payment of such arrears to be reduced, potentially to 0%. One or more of these remedies can be found to apply to the protected rent debt otherwise payable under a business tenancy.

3. Where landlords and tenants cannot agree upon how protected rent debt will be dealt with, Government approved bodies can be approached by either side to appoint a suitably qualified independent arbitrator to determine what, if any, relief there will be for a tenant with protected rent debts.

4. While the period may be extended by Government, any reference to arbitration of a dispute over a protected rent debt must be made by either the tenant or the landlord within at most 6 months of the new legislation becoming law. Tenants and their advisers will need to carefully monitor this deadline for seeking remedies in relation to protected rent debts.

5. Neither a landlord nor a tenant can refer a dispute over a protected rent debt to arbitration unless they have first given the other side notice of their intention to do so and allowed up to 28 days for the other side to respond.

6. The reference to arbitration must include (i) the referring party’s proposals for how the protected rent debt should be dealt with, and (ii) their accompanying documentary and verified witness evidence to which the other party must respond with their own proposals and evidence within 14 days. The parties then have up to 28 days to put forward any revised proposals and further evidence.

7. While the dispute can be resolved by an arbitrator based on the written evidence and submissions alone, either side can request an oral hearing. Oral hearings will be held in public unless the parties agree that such hearings should be in private and must take place within 14 days of a request by a party for such a hearing.

8. Arbitrators must make their awards as soon as reasonably practicable after receiving each sides’ final proposals and evidence and within no more than 14 days of an oral hearing. The decisions of Arbitrators must be made public.

9. Unless in the circumstances of a particular case the arbitrator directs otherwise, the parties will (a) equally pay the appointed arbitrator’s fees and expenses, which the Government may seek to impose limits upon, and (b) will pay their own professional fees of the arbitration process.

10. An arbitrator can only make an award giving relief to a Tenant if their business is either ‘viable’ or would be viable if one or more of the remedies available was granted. Failed or failing businesses which cannot continue trading irrespective of any assistance they receive with a protected rent debt are not to be assisted by the legislation.

11. Arbitrators when deciding what, if any, remedy to grant to business tenants are required to make their decisions based on 2 principles, (a) that the purpose of any award is to preserve the viability of business tenants or to restore them to viability in so far as that allows a landlord to remain solvent, (that is, so that a landlord is able meet their debts as they become due), and (b) that tenants should pay the sums due under their leases in so far as this is consistent with preserving or restoring their viability.

12. Arbitrators when determining the application of the 2 principles will need to consider and the parties will need to provide evidence of their respective (i) assets and liabilities, (ii) of a tenant’s payment history, (iii) the impact of Covid-19 on the tenant’s business, (iv) any other leased property owned by a landlord, and (v) any other financial information an arbitrator considers relevant.

13. An Arbitrator will disregard anything done by either party to manipulate their financial position to improve their prospects of a favourable award, for example, excessive dividend payments, and will, when determining either a tenant’s viability or a landlord’s solvency, disregard their capacity to borrow money or to restructure their businesses.

14. Landlords cannot seek to legally enforce the payment of protected rent debt through the Court system, commercial rent arrears recovery (‘CRAR’), forfeiture of a lease, by using a tenant’s rent deposit, or through insolvency proceedings during ‘the moratorium period’ which is the later of 6 months from the date the legislation becomes law or the conclusion of the arbitration process in a case.

15. When the legislation becomes law, this protection from the legal enforcement of a protected rent debt will be considered to have applied as from 10 November 2021. Landlords who are using or have used court processes to obtain money judgments on protected rent debts and which remain unpaid will not be able to enforce these following the legislation coming into force and during the moratorium period.

The legislation is intended to create a rapid legal process for determining how the burden of Covid-19 related commercial rent arrears will be divided between landlords and tenants and to require the parties to put forward reasoned and evidenced arguments on what proposals will allow viable businesses to continue but at the same time maintaining landlord solvency.

While such terminology is not used in the legislation, the emphasis in the Code of Practice is on what is ‘affordable’ by both sides with account being taken of a tenant’s anticipated credit/debit balance sheet value, business performance since March 2020, assets, government assistance received (including loans and grants), and dividend payments to shareholders.

Only the determination of several such disputes within what is intended to be a public process is going to provide precise guidance as to how the arbitration process and Arbitrators will treat such protected rent debts and above all how the term ‘viable’ will be interpreted, the legislation and the Code of Practice deliberately declining to define such a term and leaving it to be decided on the facts of each case.

Landlords may seek to argue that provided a tenant’s business will remain solvent, that is, able to pay its debts as they become due, even if a tenant is required to pay all Covid-19 arrears owed, that the tenant’s business is viable and should therefore be forced to pay in full. Landlords will argue that large commercial business tenants with consequently more substantial reserves and resources should be forced by arbitrators to pay protected rent debts in full.

A viable business however is more than one that is basically solvent. A viable business is one that can maintain acceptable net profit margins in its market sector, can provide a competitive rate of return to its stakeholders, that is, employees and investors, can invest and diversify as opportunities arises, and accumulate and maintain reserves.

While the legislation specifically defines solvency it does not define viable, and that expression is likely to be determined to mean more than solvency. While the legislation only requires landlords to be kept solvent in such disputes, arbitrators are required to keep business tenants viable.

The period during which such disputes must be referred to arbitration in the absence of agreement is going to be relatively short and the referring party is going to need to give the other party prior notice and set out its proposals before the dispute can be referred to arbitration.

Landlords and Tenants, and particularly tenants need to be considering their financial evidence with their accounting and legal advisors sooner rather than later and ensuring that they will be able to put forward their reasoned and supported proposals as to why protected rent debts should be waived, paid over a period, and should not bear interest. Such proposals need to be based on financial evidence of what is affordable by them and taking account of how the expression ‘viable’ is likely to be interpreted and applied.

Landlords with real solvency issues will need to evidence these but even where their solvency is not jeopardised, Landlords, particularly those with large retail, hospitality and commercial portfolios, should be scrutinising and requiring disclosure of such tenants’ financial position and emphasising (a) such tenant’s pre-Covid-19 trading and financial histories, that returns to stakeholders cannot be expected to be fully maintained during a time of crisis, and the likely reserves available to such tenants, and (b) the second principle arbitrators must apply that business tenants should be made to pay their historic financial liabilities under leases in so far as this is consistent with maintaining their viability.

Angus Ashman is a Partner in our Dispute Resolution department at Sintons. You can contact Angus at angus.ashman@sintons.co.uk or on 0191 226 7823.

Sintons again recognised for capability across the board by Chambers 2022

Sintons has again been hailed as one of the leading law firms in the North of England in newly-released rankings from Chambers and Partners UK.

The firm, consistently praised for its strength and capability throughout the business, again wins recognition for its legal expertise, deep experience and first-rate levels of client service.

Practice areas across the business win recognition as leaders in their field, with healthcare again being confirmed as one of the key advisors nationally for its work with growing numbers of NHS Trusts, organisations, professionals and healthcare businesses across the UK.

Chambers and Partners 2022, published today, also highlights 17 of Sintons’ lawyers as being stand-out names in their specialism, many of whom are recognised in the legal marketplace as being leading figures regionally and nationally.

The rankings come only weeks after Sintons won similar praise across the board from Legal 500, which also recognised the wide-ranging expertise, legal capability and service excellence the firm delivers to its clients.

Both Chambers and Legal 500 are independent publications which assess and rank law firms and lawyers throughout the UK, based on interviews, examples of work, and client and peer testimonials.

“For over 125 years, Sintons has built a well-deserved reputation as a first-rate legal advisor delivering outstanding levels of service to its clients, and those values have remained at the heart of the firm since our foundation in 1896,” says managing partner Christopher Welch.

“That these key features are consistently highlighted by independent legal publications like Chambers and Partners, and recently Legal 500 too, is a huge endorsement of what we do here at Sintons. Businesses, families and individuals put their trust in us to deliver an outstanding legal and personal service and that is what we deliver.

“Chambers again confirms our strength across the whole Sintons business, with capability and talent running throughout the firm, and a shared commitment by everyone here to continue to build Sintons so it can be the best it can be. We are all delighted to again have our efforts recognised in this way.”

‘Notable strength’ in property litigation hailed by Legal 500

Property litigation has again been hailed as being a key strength at Sintons by Legal 500 2022, with its quality of legal advice and client service both winning praise.

The specialist department attracts work both regionally and nationally, with key client bases including public sector organisations and high net worth individuals.

Legal 500 points to its “notable strength” in both residential and commercial property disputes, spanning matters ranging from lease renewals, forfeiture and dilapidation claims, to contentious contractual and possession issues.

Partner Angus Ashman is hailed as “cerebral” – and associate Aimee Hubbard, who is again named as a rising star, both win praise for their work in this area. She is described as being “well prepared, focused and sensitive to what was needed to resolve the dispute efficiently and effectively”.

Partner Graeme Ritzema is noted as a specialist in healthcare matters, and is said to be a “key contact” for hospital trusts and primary care providers.

Christopher Welch, managing partner of Sintons, says: “For many years, we have been regarded as a go-to advisor in the very specialist field of property litigation, supporting clients from across the country to resolve matters efficiently and to secure the best possible result. This has been a significant area of development for us recently, and our reputation and profile in this area have both risen accordingly.

“It is very pleasing to see Legal 500 recognising the strength we have in the team and the outstanding legal and client service we deliver in each and every matter. Our people are key to what we do and Angus, Aimee and Graeme are all rightfully named as being specialists in their field, having built reputations regionally and nationally for their expertise.”

Sintons’ comprehensive debt offering wins Legal 500 praise

Sintonsdebt recovery team has won praise from Legal 500 2022 for its wide-ranging specialism and first-rate client service.

The team, led by Allison Thompson, was highlighted for its work on a wide range of contentious issues, including winding up petitions, overdue invoice and rent payment recovery claims, among others.

Over the past 18 months, the department has attracted widespread praise for its dedication to supporting businesses through the pandemic, offering an array of free online resources via Sintons’ COVID-19 portal to deliver advice and guidance to give clarity during the fast-developing situation for businesses.

Head of department Allison was praised for being “responsive, concise and knowledgeable” as well as for her “professional conduct and pragmatic approach”.

Partner Angus Ashman, named as a leading individual in the North of England, is also noted for his work in debt recovery.

“At Sintons we are very proud of our reputation in supporting businesses with every aspect of their running, debt recovery being a crucial aspect of that. During the pandemic, the successful recovery of debt has been absolutely vital to the function and often survival of many businesses, and we are very pleased that so many have turned to Sintons for support,” says Christopher Welch, managing partner of Sintons.

“We are very pleased with Legal 500’s praise of our team, and the recognition of the outstanding service Allison and her team deliver to our clients.”

Contentious wills and probate team hailed for expertise and client service

Sintons’ specialism in contentious wills and probate work has again been highlighted by Legal 500, winning praise for its ability to “cover every field with the best people for the job in hand”.

The team is hailed for its strength in areas including will administration and trust disputes, proprietary estoppel claims and Court of Protection cases, and is said to also be “comfortable handling more unusual cases” such as domicile disputes and will rectification applications.

Legal 500 2022 also praises the team’s close co-operation with other departments within Sintons, including dispute resolution, wills and probate, corporate, Court of Protection and agriculture and estates, which enables a first-rate service to be delivered to clients.

Head of practice Emma Saunders is again named as a rising star and is hailed for her “knowledge and reputation in the field and excellent judgement”.

Partner Angus Ashman and “conscientious, diligent and dedicated” solicitor Emelie Vardon are also named as being significant figures within the team.

Client testimonials quoted by Legal 500 point to Sintons’ expertise and outstanding service as being key factors in its offering.

‘They give you the confidence to know that they will deliver what is required,” said one.

Another stated: “Emma Saunders did a wonderful job during what was a very distressing time for me and my family. She was totally professional, transparent and extremely helpful throughout. I was particularly impressed with her enthusiasm, honesty and compassion towards our case.

“Our case was speedily resolved with upmost professionalism allowing it to be extremely cost effective. Emma Saunders is not only a top solicitor but such a lovely person.”

Christopher Welch, managing partner of Sintons, said: “We are regarded in the highest terms for our work in contentious wills and probate, an area of great specialism which also necessitates a bespoke and sensitive client service in what can often be distressing circumstances. Our team is known for its ability to deliver both to each and every client and we are very proud of that fact.”

Autumn Debt Summit 2021

Head of Debt Recovery Allison Thompson hosted our Autumn Debt Summit 2021, our guest speakers included Allison and;

Please click on the play button in the bottom left corner of the below video image to start viewing. The slides are also attached here, should you wish to follow them throughout.

Finally, we have included a podcast version should you wish to listen to the seminar again at your leisure, the link is also below.

‘Excellent’ dispute resolution team retains Band 1 ranking

The “excellent” dispute resolution team at Sintons has again won a top-tier ranking in Legal 500 2022, with key people throughout the department being highlighted for their outstanding capability.

The team of “exceptionally capable lawyers” wins praise for its “very good collaborative working and communication” and for its wide array of specialism in a very niche and complex area of law.

Legal 500 notes the department, rated in Band 1, acts for both companies and individuals and praises its work across professional negligence, contractual, trusts and estate disputes.

Partner Angus Ashman, renowned as one of the key names in dispute resolution regionally and beyond, is named as a leading individual in the North of England. Legal 500 particularly highlights his work in a number of significant property-related cases.

Hilary Waters, head of dispute resolution, is hailed as “splendid” and wins a ranking as a next generation partner. Her arrival at Sintons last year was hailed as bolstering the firm’s capability in indirect tax litigation.

Associate Aimee Hubbard is again named as a rising star, in recognition of her work and potential in dispute resolution work.

Partner Graeme Ritzema and Associate Cristina Falzon are also highlighted by Legal 500 for their role in Sintons’ sector-leading offering.

Clients, quoted in Legal 500, point to Sintons’ ability to “deliver focused advice from a ‘real world’ position, which only comes from experience. They are focused on providing the best client advice”.

Christopher Welch, managing partner of Sintons, says: “Our dispute resolution team is a huge asset to Sintons, with a highly experienced team of true experts in their field overseeing the most complex of dispute work from around the UK and overseas which most of our competitors could not handle. We are delighted they have again been recognised as operating at the highest possible level through another Band 1 ranking.

“Our people are central to the success of Sintons and huge talent and capability runs throughout dispute resolution. Angus is an outstanding lawyer and highly-respected name in this very specialist area, and we congratulate him on his leading individual status. Having been with us for just a year, Hilary is without doubt a first-rate addition to our offering, and under her leadership we are confident the team will continue to progress.”

Sintons once again wins praise from Legal 500 2022

Law firm Sintons has again maintained its reputation as one of the leading law firms in the North of England in newly-released rankings from Legal 500, winning plaudits for its strength and expertise across the firm.

Legal 500 2022, released today, renews its praise of Sintons and confirms them as being a go-to legal provider in the region in many key practice areas.

The independent publication – which ranks law firms and lawyers across the North, compiled as a result of examples of work, interviews and client and peer testimonials – names eight of Sintons’ lawyers as leading individuals, three as next generation partners and a further six as rising stars. One of its lawyers also secures the highly coveted accolade of being named in the Legal 500 Hall of Fame, in recognition of consistent achievement throughout their career.

The latest Legal 500 rankings add further to the long-standing reputation of Sintons – winner of five awards at the most recent Northern Law Awards, including overall Law Firm of the Year – as a leading player in the North of England, with national reach and capability in many of its departments.

The leading individuals at Sintons, as identified by Legal 500, are:

The next generation partners, as identified by Legal 500, are:

The lawyer named as member of the Legal 500 Hall of Fame is:

The rising stars at the firm are:

Christopher Welch, managing partner of Sintons, said: “We are very proud of the reputation we have built during our 125 year history as being a law firm which consistently offers legal excellence and an outstanding service to our clients, and for these two factors to again be recognised by Legal 500 as being a staple of Sintons’ offering is very pleasing.

We are delighted to maintain our position as one of the leading law firms in the North of England, with strength, capability and experience running throughout our practice areas.”

Temporary Insolvency Measures to end

The Government has announced that the temporary insolvency measures brought in during the Coronavirus Pandemic are to be phased out from 1 October 2021. The temporary insolvency measures, contained in the Corporate Insolvency and Governance Act 2020, are to be replaced by new legislation and new protections for businesses.

Companies in financial distress because of the pandemic have been protected from creditor action since June last year, through temporary measures in the Corporate Insolvency and Governance Act 2020.

This was to ensure that viable businesses affected by the restrictions on trading during the lockdown periods were not then forced into insolvency. Now, as the economy returns to normal trading conditions, the restrictions on creditor actions will be lifted.

However, new measures will be brought in to help smaller companies get back on their feet in an effort to give them more time to trade their way back to financial health before creditors can take action to wind them up.

The new legislation will:

  1. Protect businesses from creditors insisting on repayment of relatively small debts by temporarily raising the current debt threshold for a winding up petition to £10,000 or more.
  2.  Require creditors to seek proposals for payment from a debtor business, giving them 21 days for a response before they can proceed with winding up action.

We will see these measures in force until at least the 31 March 2022.

The protection from eviction for commercial tenants will continue until 31 March 2022. The government then intends to introduce a rent arbitration scheme to deal with rental debts which have arisen as a result of the pandemic. The Government announced:

‘Businesses should pay contractual rents where they are able to do so. However, the existing restrictions will remain on commercial landlords from presenting winding up petitions against limited companies to repay commercial rent arrears built up during the pandemic.

Continuing the restriction on winding up, in respect of commercial rent only, supports the announcement on 16 June that commercial tenants will continue to be protected from eviction until 31 March 2022, whilst the government implements a rent arbitration scheme to deal with commercial rent debts accrued during the pandemic’.

The changes will be brought into force in England by the ‘Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Schedule 10) Regulations 2021’ (SI 2021/1029), which comes into force on 29 September 2021 (under Corporate Insolvency and Governance Act 2020, ss 20(1)(a), 25(1)). Regulation 2, the main provision in these Regulations, substitutes into the Corporate Insolvency and Governance Act 2020 a new Schedule 10.

If you have any queries about the insolvency measures, please contact Allison Thompson on 0191 2263719 or in respect to any commercial landlord queries, please contact Aimee Hubbard on 0191 2263792.

Forfeiture post 30 June 2021 – the road to recovery?

The Coronavirus Act 2020 has imposed significant restrictions on landlords’ remedies for recovery of outstanding rents. Since 26 March 2020 any forfeiture of most business tenancies by proceedings or by peaceable re-entry on the grounds of non-payment of any sums due under the lease has been suspended. Consequently landlords have been unable to exercise a right to forfeit a lease based on non-payment of rent since 26 March 2020.

It seemed that the road to recovery of these outstanding sums including rent arrears could be in sight with the restraint imposed by the Coronavirus Act 2020 being due to expire on 30 June 2021.

However on 16 June 2021 the Government announced that it intends to extend the restrictions on rent-related forfeiture of business tenancies by 9 months to next year’s March quarter date, 25 March 2022. Although the statutory instrument extending the restrictions to 25 March 2022 could be negated by a vote in either House of Parliament, it seems unlikely.

In addition the Government intends to introduce an entirely new Act of Parliament to deal with the accrued rent arrears of businesses which had to shut during the pandemic. The new Act of Parliament will force landlords to waive some of the total amount or agree long-term repayment plans with their tenants. In default of such agreement it is intended that the new legislation will provide a binding arbitration process so that landlords and tenants can reach a formal agreement in relation to the rent arrears.

We will have to watch this space and await the detail of the draft Bill in order to fully understand the effect of these proposals on the recovery of rent arrears.

As the suspension only applies to forfeitures based on non-payment of rent, a landlord could still exercise a right of forfeiture based on any other grounds by way of peaceable re-entry where possible or by commencing proceedings for forfeiture of breaches other than for non-payment of rent or other sums due under a lease. However a landlord needs to be careful to ensure that force is not used against anyone present in the premises, that any eviction is carried out lawfully and that the correct procedure in terms of the service of a notice on the tenant is followed.

Aimee Hubbard is an Associate in our Dispute Resolution team at Sintons. To speak to Aimee about this topical matter, contact her on 0191 226 3792 or aimee.hubbard@sintons.co.uk.

ICO Children’s Code – Are you prepared?

The ICO’s Age Appropriate Design Code (commonly known as the Children’s Code), requires businesses to make necessary changes to their online products and services to meet the standards set out in their statutory code of practice. The expectation is that by 2 September 2021 businesses will have met the 15 standards.

The aim of the code is to ensure children’s personal data is protected online.

If a business fails to meet the standards, there is a potential for enforcement action, such as compulsory audits, processing bans and fines, not to mention reputational damage. Although the ICO have stated that they will take a measured and proportionate approach, the 12 month transitional period is almost over and the ICO will expect progress to have been made.

What should you be doing now?

The ICO does not expect all businesses to be fully compliant by September 2021, however, you will be expected to have at least:

  • Decided whether you are in scope

You must determine whether your online products and services are in scope. Are they relevant information society services likely to be accessed by children? If they are, you need to be taking steps to ensure compliance. Even where you believe they are not, you must document and evidence your decision. The ICO suggest user testing and surveys, market research and academic literature will all be helpful to support your decision.

  • Undertaken a Data Protection Impact Assessment (DPIA)

Where you are in scope, you should complete a DPIA. Annex D of the code has a template DPIA . You will need to map children’s data and age ranges, as well as the associated user journey. To assist with assessing risks and mitigations, the ICO have provided additional resources on their website which should be used to finalise your compliance plan.

  • Put a road map in place

Set out steps you have taken so far and a proposed timeline to gain full compliance. Take a risk-based approach to your compliance, prioritising areas of higher risk.

The ICO state that 1 in 5 internet users are children and the aim of the code is “to protect children within the digital world, not protect them from it”. Businesses must put the best interests of the child first and work from there. For many, this will be a new way of designing, innovating and creating online products and services that children are likely to use.

Sheila Ramshaw is an Associate in the Regulatory Services department at Sintons. To speak to Sheila about this or any other matter, contact her on 0191 226 3739 or Sheila.Ramshaw@sintons.co.uk.

This week is Farm Safety Week (19-23 July 2021)

The Health and Safety Executive (HSE) has set out a list of the hazards to lungs in the farming and agriculture sector.

Chest problems, and ultimately work-related (occupational) lung disease, may occur as a result of breathing in dust vapours or chemicals from:

  • harvesting or handling grain, or mixing animal feedstuffs
  • feeding animals
  • handling mouldy hay or bedding and waste products from animals or poultry
  • slurry, silage
  • welding fume
  • some veterinary medicines and disinfectants

Risks include being exposed to dusts, vapours or chemicals at work for just a short time that may cause unpleasant irritation or inflammation in the nose, throat or lungs.

Longer exposure may lead to more serious chest problems and lung diseases, including asthma, chronic bronchitis and farmer’s lung.

These symptoms can be short-lived at the time of a job, or they may get worse and last longer until they are almost always present. They can be set off by even small exposures to any substance to which you have become allergic, or sensitised.

Controlling the hazards, avoid breathing in harmful substances by:

  • using alternative, safer substances where possible
  • changing to low dust materials, e.g. granules or pellets
  • enclosing sources of dust or spray
  • vacuuming spillages instead of sweeping them up

Reduce the amount you breathe in by:

  • using local exhaust ventilation (LEV) e.g. when welding
  • using effective filters in tractor or vehicle cabs
  • maintaining filters to the manufacturer’s instructions
  • improving ventilation in buildings
  • wearing appropriate, effective respiratory protective equipment (RPE)

All masks and respirators must be CE marked.

For more information on personal protective equipment (PPE), go to the HSE website.

Sheila Ramshaw is an Associate in the Regulatory Services department at Sintons. To speak to Sheila about this or any other matter, contact her on 0191 226 3739 or Sheila.Ramshaw@sintons.co.uk.

Chambers hails Sintons’ private client team for high net worth expertise

The private client team at Sintons has again been hailed as one of the leading advisors in the North of England, with Chambers continuing to praise the department for its legal capability and commitment to the highest possible standard of client care.

The specialist wills, trusts and estates team acts for clients throughout the UK in matters including wills, trusts, probate, administration of estates and succession planning, and has a national reputation in both its contentious and non-contentious work.

In newly-released rankings, Chambers again rates the team highly for its work in high net worth matters, praising its client-centric approach and the legal excellence that runs throughout the private client team, which won team of the year in the most recent Northern Law Awards. The team has also increased its guide ranking from band 3 to band 2.

Paul Nickalls, partner and head of private client at Sintons, alongside Emma Saunders, partner and head of contentious probate, continue to be hailed as go-to experts in their specialist areas of law by Chambers.  Both are regularly independently recognised for their capability and are widely regarded as leading advisors in the North of England. Senior associate Paul Collingwood has also been named as an associate to watch.

Chambers carries out an annual, independent ranking of law firms and lawyers, assessing all aspects of their specialism and service, based on examples of work, testimonials and interviews with lawyers.

“We are rightly regarded as being a team at the very top of its game, with huge levels of experience and expertise alongside outstanding young lawyers whose dynamism and ability is helping us to plan for the future,” says Paul.

“We are proud of our reputation for excellence, which we have worked very hard to earn, and our absolute commitment remains to deliver an outstanding service to each and every client.  Independent endorsement, like this one from Chambers, serves to confirm the standing we have in the marketplace – both regionally and nationally – and is recognition of the expertise that the firm possesses in this area of law.

“We are regularly instructed in matters of the highest complexity and value, which is where our expertise comes to the fore and why we are often appointed ahead of other advisors in what is a very crowded marketplace.  We are very proud to be regarded in the highest of terms and to again receive such praise from Chambers.”

Notable Chambers comments:

Paul Nickalls leads the wills, trust and probate team at the firm, and is also responsible for its personal and family department. He is noted for his “significant technical expertise and depth of experience” in private client matters.

Emma Saunders is an expert in contentious probate and Court of Protection matters, including Inheritance Act (1975) claims and trust disputes. “I would highly recommend her,” says a barrister, adding: “She is intelligent, pragmatic and hugely technical.”

Paul Collingwood is a senior associate in the firm’s personal and family department. “I regard Paul as an excellent solicitor, as well as a very decent and caring individual,” says an interviewee. “Paul has impressed with his patience, diligence, professionalism and caring attitude,” states another, adding: “Paul is swift to respond and has always provided sound and independent advice.”

Government extends COVID ban on commercial evictions until March 2022

The government has today announced a further extension on the ban on commercial evictions which were introduced during the early part of the pandemic. The moratorium on commercial evictions were first introduced in April 2020 to help struggling businesses through the pandemic and were due to end on the 30 June 2021

In the wake of the government’s decision to push back “freedom day” from 21 June to 19 July,  Steve Barclay, chief secretary to the treasury, told the House of Commons today that the moratorium will be extended until 25 March 2022.

The measures which the Government have taken, aim to protect debtor companies against creditor action during a period when companies are continuing to be impacted financially by coronavirus. Restrictions on landlords using laws permitting them to recover rent arrears by selling a tenant’s goods will also continue.

This further extension has brought relief to businesses who have been unable to negotiate rent deferrals with landlords and feared being evicted from their properties once the protections were lifted but undoubtedly, this further extension will have significant ramifications for landlords.

Some landlords have raised concerns that the moratorium has allowed some businesses to escape paying rent whilst still making profits.  The government’s extension of the policy follows a call for evidence launched in the spring which looked at how best to replace or end the protections.

While it is currently speculation, whether the Government will also extend the temporary restrictions on winding-up petitions brought in under the Corporate Insolvency and Governance Act 2020 (“CIGA”) in April 2020 and which were also due to end at the end of June,  we think its highly likely the Government will also extend these measures in some way in a further attempt to prevent multiple insolvencies and business collapse and rather, urging creditors to agree repayment instalments with their debtors.

If you have any queries about the temporary insolvency measures, please contact Allison Thompson on 0191 2263719 or in respect to any forfeiture/commercial landlord queries, please contact Aimee Hubbard on 0191 2263792.

Contentious probate specialist rejoins Sintons

The contentious probate offering at Sintons has been strengthened further with the addition of a highly-regarded specialist to the team.

Jonathan Grogan has a wealth of experience in dealing with contentious probate and trust disputes, as well as Court of Protection disputes, and has acted for individuals, charities and professional trustees across the UK during his career.

Having previously been part of Sintons’ private client team to develop his advisory and non-contentious capability, his dual specialism of contentious and non-contentious work adds further to the law firm’s expertise and offering to clients.

Associate Jonathan – hailed by Legal 500 as being “able to plot his way through complex, multi-faceted issues with clarity” – is also a full member of the Association of Contentious Trust and Probate Specialists (ACTAPS) at the firm, regarded as endorsement of expertise in this niche area of law.

He is also a full member of the Society of Trust and Estate Practitioners (STEP), another sought-after endorsement for private client work which is awarded after a rigorous assessment process.

The team, led by partner Emma Saunders, has grown significantly in the past few years, with instructions now coming from across the UK and Sintons being tasked with handling highly complex, high value disputes.

“The growth of the contentious probate team has been significant in the recent past, with Sintons now being regarded as a leading name in this very specialist area of work in the North of England,” says Jonathan, also an associate lecturer at Northumbria University.

“I am very pleased to be part of it and to have the opportunity to re-join Sintons. My previous work here will be invaluable in helping to inform how best to analyse a case and deal with the various technical issues that feature in trust and probate disputes, and that can only be of benefit to the firm and, crucially, our clients.”

Emma Saunders, regularly hailed as one of the leading contentious trust and probate specialists by Legal 500 and Chambers alike, says: “We are delighted that Jonathan has become part of the team. Our contentious trust and probate offering has grown very strongly nationally, and we are very proud of the reputation we continue to build for our legal expertise alongside the quality of client service.

“Adding someone of Jonathan’s experience and expertise, which brings in both contentious and non-contentious experience, enhances our capability even further. We look forward to working alongside him to help take our ambitions forward further still.”

High Court confirms the test for Testamentary Capacity

In the recent appeal decision in Clitheroe v Bond [2021] EWHC 1102 (Ch), the court have confirmed that the test of testamentary capacity remains that which was laid out in the historic case of Banks v Goodfellow (1870).

In Clitheroe v Bond, the daughter of the deceased (Susan Bond) had disputed the validity of her mother’s last two wills on the basis that the deceased lacked testamentary capacity due to a continuing affective disorder, manifested by depression and insane delusions regarding Mrs Bond. The original trial judge agreed and overturned the two wills for a lack of testamentary capacity. This resulted in the deceased’s son, John Clitheroe, appealing on several grounds. The first of these was the basis of the test applied to determine testamentary capacity.

Testamentary capacity has for a long period been based on the test set out in Banks v Goodfellow from 1870. This outlines that, at the time of creating the will, a testator must:

  • Understand the nature of making a will and its effects;
  • Understand the extent of the property they are disposing of under the will;
  • Be aware of the persons for whom they would usually be expected to provide (even if they choose not to); and
  • Be free from any disorder or delusion of the mind that would influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

A number of cases, including James v James [2018] EWHC 43 (Ch) and Walker v Badmin [2014] EWHC 71 (Ch), have considered whether the introduction of the Mental Capacity Act 2005 affected this test of testamentary capacity. However, the Banks v Goodfellow test remained applicable following the conclusion of these cases. Indeed, at the original hearing in Clitheroe v Bond in 2020 both sides had agreed to proceed on the basis that Banks v Goodfellow was the correct legal test.

In the Clitheroe v Bond appeal, although Mrs Justice Falk found that it would not be in the interests of justice to permit an appeal on the argument that the Mental Capacity Act 2005 has overridden the Banks v Goodfellow test, she chose to set out her reasons for concluding that such a ground would have failed in any event.

Mrs Justice Falk stated that the question of whether a will is valid is not in her view addressed by the Mental Capacity Act 2005 and is not one of the purposes for which the Act was made.  She found that the Banks v Goodfellow test has not been overridden by the Mental Capacity Act and that there is no sufficiently good reason to depart from the well-established case law.

Mr Clitheroe also appealed relating to the test for delusions applied by the original trial judge. Mrs Justice Falk commented on the correct application for the test for delusions, finding that it is not clear from previous case law that, as an absolute rule, a delusion can only exist if it is shown that it was impossible to reason the individual out of the belief. Instead, she noted that this is one way of demonstrating that it amounts to a delusion. She explained the correct test is that the delusions are irrational and fixed in nature.

However, Mrs Justice Falk adjourned the appeal in relation to the test for delusions for a period of three months to allow for the parties to consider the judgment and opinions as given and determine if an agreement between the parties can be reached without the need for a further hearing.

Will disputes and other estate disputes require the expertise of a specialist contentious probate solicitor. If you would like to discuss a potential will dispute, then please contact Emma Saunders on 0191 226 3293 or at emma.saunders@sintons.co.uk.

Breathing Space: The Debt Respite Scheme – 4th May 2021

The implementation of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 will begin on the 4th May 2021.

Breathing spaces will provide someone in problem debt the right to legal protections from creditor action and enforcement. In this article, we aim to provide you with a brief overview of the new scheme and when a debtor is eligible to apply.

There are two defined types of breathing space:

  • a standard breathing space; and
  • a mental health crisis breathing space.

Debtors can only access a breathing space by seeking debt advice from a debt adviser. The definition of a debt adviser is quite specific and is referred to as either a debt advice provider who is authorised by the Financial Conduct Authority (FCA) to offer debt counselling or a local authority (where they provide debt advice to residents).

There is no guarantee an application will be granted.  Although all applications must be considered the debt adviser may well decide a breathing space is not appropriate for a debtor and advise a more appropriate debt solution for them.

The application process which will be used by debt advisers is an electronic service which will be maintained by the Insolvency Service.  The Insolvency Service will notify the creditors if their debtor has applied.  The Insolvency Service will also maintain a private register of people whose debts are in a breathing space and the date a breathing space ended or was cancelled.

A Standard Breathing Space:

A standard breathing space is available to any debtor in financial difficulty. It provides the debtor legal protections from creditor action for up to 60 days. The protections include pausing most enforcement action and contact from creditors and freezing most interest and charges on their debts.

Usually, a standard breathing space will automatically end 60 days after it starts. The electronic service will automatically update the breathing space register and send a notification to all creditors and their agents, if there are any.

The breathing space can be cancelled earlier than 60 days if:

  • the debtor goes into a debt solution before the 60 days is over.
  • the debtor does not meet their obligations.
  • their adviser decides to, after the midway review or after a creditor asks for a review

Eligibility

There are specific eligibility criteria and before a debt adviser can start the breathing space, they must confirm that the debtor is eligible and meets all the conditions. These are that the debtor must:

  • be an individual
  • owe a qualifying debt to a creditor
  • live or usually reside in England or Wales
  • not have a debt relief order (DRO), an individual voluntary arrangement (IVA), an interim order, or be an undischarged bankrupt at the time they apply
  • not already have a breathing space or have had a standard breathing space in the last 12 months at the time they apply

The debt adviser must also be satisfied that the debtor also meets both of the following conditions:

  • the debtor cannot, or is unlikely to be able to, repay all or some of their debt
  • a breathing space is appropriate for the debtor.

What happens after a standard breathing space has ended?

After a standard breathing space has ended, the debts that were in the breathing space are still owing. They have not been written off or reduced and must still be dealt with. The purpose of the breathing space was to give the debtor the time and space to deal with their problem debt, with help from a debt adviser.

Once creditors have been notified of the end of the breathing space, they can:

  • start applying interest, fees, penalties, and charges to their debt from the date of the end of the breathing space.
  • take any action to enforce their debt, including contacting the debtor.
  • resume or commence legal proceedings against the debtor regarding the debt

Creditors cannot take or resurrect enforcement action if the debtor has already entered a debt solution, such as a debt relief order or bankruptcy. Neither can they take action if the debtor has made a formal arrangement with their creditors to deal with their debt, such as an individual voluntary arrangement.

At the end of a breathing space, creditors cannot ask for payment from the debtor for interest, fees, penalties, and charges that have accrued, or would have accrued, during the breathing space, unless a court has allowed this.

A Mental Health Crisis Breathing Space:

A mental health crisis breathing space is only available to a debtor who is receiving mental health crisis treatment. If an Approved Mental Health Professional (AMHP) certifies a debtor is in mental health crisis treatment, the debtor or someone acting on their behalf may request a mental health crisis breathing space. The mental health crisis breathing space has some stronger protections than the standard breathing space. It lasts as long as the debtor’s mental health crisis treatment, plus 30 days (no matter how long the crisis treatment lasts).

A mental health crisis breathing space lasts for as long as the client is receiving mental health crisis treatment, and another 30 days after that. The breathing space can be cancelled earlier than this if:

  • the adviser considers that the evidence form received included inaccurate, misleading, or fraudulent information.
  • the adviser decides to, after a creditor asks for a review.
  • the debtor asks their adviser to.

Applying for a Mental Health Crisis Breathing Space

The debtor must provide evidence to their debt adviser from an Approved Mental Health Professional (AMHP) that the debtor is receiving mental health crisis treatment to enable them to start a mental health crisis breathing space.

In addition to the debtor, the following people can apply to a debt adviser on behalf of a debtor for a mental health crisis breathing space:

  • any debtor receiving mental health crisis treatment
  • the debtor’s carer
  • Approved Mental Health Professionals
  • care co-ordinators appointed for the debtor
  • mental health nurses
  • social workers
  • independent mental health advocates or mental capacity advocates appointed for the debtor
  • a debtor’s representative

Eligibility

The debtor must still meet the same criteria and conditions for a standard breathing space, but they must also be receiving mental health crisis treatment at the time that an application is made. A debtor who has had a standard or mental health crisis breathing space in the last 12 months may be eligible for a mental health crisis breathing space.

There is no limit to how many times a debtor can enter a mental health crisis breathing space.

What happens after a mental health crisis breathing space has ended?

Once the mental health crisis breathing space is finished, creditors can start to take action again, just as they can after a standard breathing space ends. The debtor might need another period of protection from creditor enforcement action and help in dealing with their debt. In these cases, the debtor can take debt advice, and apply for a standard breathing space. A debt adviser will consider if they are eligible and it is appropriate for them.

Qualifying debts (in both cases)

Qualifying debts are any sum of money owed to you from the debtor, therefore most debts are likely to be qualifying debts, which include:

  • credit cards
  • personal loans
  • utility bill arrears
  • mortgage or rent arrears

Government debts like tax and benefit debts are all likely to qualify unless they are included in the list of excluded debts.

Qualifying debts can include any debt that the debtor had before the Breathing Space legislation came into force on 4 May 2021.

New debts incurred during a breathing space are not qualifying debts. Neither are new arrears on a secured debt that arises during a breathing space.

Are there any debts which can be excluded from a breathing space?

All personal debts and liabilities are qualifying debts, except for

  • secured debts (like mortgages, hire purchase or conditional sale agreements).
  • debts incurred from fraud or fraudulent breach of trust.
  • liabilities to pay fines imposed by a court for an offence.
  • obligations from a confiscation order
  • child maintenance or obligations under an order made in family court proceedings
  • a crisis or budgeting loan from the social fund
  • student loans
  • damages they need to pay for death or personal injury caused to someone else
  • advance payments of Universal Credit
  • council tax liabilities have not yet fallen due.

While some business debts also qualify for the breathing space, they do not qualify if the debt only relates to the business (not the debtor personally) and the debtor is VAT registered, or the debtor is a partner in a business with someone else.

An eligible non-domestic rates debt (or business rates) is a qualifying debt if all instalments for that financial year have fallen due and have not been paid. If a debtor has been served with a ‘further notice’, the remaining liability for that financial year is a qualifying debt.

What happens if I have a jointly owed debt?

The new legislation makes provision for joint debts to be included in a breathing space, even if only one person applies for a breathing space. The joint debt would become a breathing space debt, and you must apply the enforcement action to the other person (or people) who owe that debt to you. You are still able to charge the interest or fees to the other debtors, and the breathing space does not affect the other debtor’s debts and liabilities in their own names.

Can I pursue my debtor’s guarantor?

While guarantor loans can be included in a breathing space, the protections do not extend to the guarantor. The guarantor must apply for their own breathing space, if they are eligible.

What happens if I already have a court judgment or order?

Unless a court or tribunal has provided you with specific permission to continue, then the court or tribunal must make sure that any action or proceedings to enforce a court order or judgment concerning a breathing space debt, does not progress until the breathing space ends.

During a breathing space, a court must not:

  • hold a hearing.
  • make or serve an order or warrant, writ of control, writ of execution or judgment summons.
  • instruct an enforcement agent to serve an order, warrant, writ of control, writ, execution, or judgment summons.

The breathing space does not stop the court or tribunal from sending notices or correspondence to the debtor about legal actions or proceedings.

The debtor should be made aware by their adviser that existing legal proceedings might continue after the breathing space ends. The debtor should also be made aware if a time limit for a creditor’s enforcement steps or new legal claims related to a breathing space debt run out during the breathing space, that time limit is extended by another 8 weeks after the breathing space ends.

What happens if I have already commenced enforcement action:

Once a breathing space has started, neither a creditor nor anyone acting on behalf of a creditor can take any enforcement actions against the debtor.

Using a High Court Enforcement as an example; during a breathing space, an enforcement agent must not:

  • give notice to the debtor about taking control of goods.
  • visit the debtor’s home or business to take control of goods.
  • take control of goods.
  • sell goods belonging to the debtor, unless the enforcement agent took them before the breathing space started.
  • serve notice seeking possession of a property let to the debtor based on rent arrears due up to the start of the breathing space or take possession of a property let to a debtor after serving notice prior to the start of a breathing space
  • contact the debtor to discuss the enforcing a breathing space debt.

If an enforcement agent has taken control of any goods by removing them and securing them elsewhere before a breathing space started, the goods may be sold during the breathing space and the costs of the sale deducted from the proceeds. However, fees accrued during the breathing space for storage of those goods cannot be charged either during the breathing space, or after it ends.

Can I contact my debtor during a breathing space?

Generally, during a breathing space, you (or any agents you have instructed) must not contact a debtor about any collection or enforcement action for a breathing space debt. This includes asking them to pay or starting or continuing any legal action.

You, or any agent, can only contact the debtor in very specific circumstances, which include:

  • about anything not related to the breathing space debt, like ongoing liabilities or an excluded debt;
  • if the debtor asks you to talk about a breathing space debt or a debt solution;
  • to respond to a query or complaint the debtor sent you;
  • about any action or legal proceedings the court or tribunal have allowed.

Even in these circumstances, any communication you send to the debtor should be kept to an absolute minimum and should be very carefully.

During the breathing space, you can contact the debtor’s debt adviser about the debt you are owed, or to discuss a debt solution.

What happens if I do not comply with the breathing space?

There are serious consequences for anyone not applying all the breathing space protections for a debtor after you’re notified about a breathing space.

Any action you take is null and void and you may be liable for the debtor’s costs.

The debtor can complain to their debt adviser, who will contact you to remind you of your obligations. The debtor can also complain directly to you, using your complaint procedure. This might include referring their complaint to any external ombudsman, oversight body or regulatory body.

If you still do not meet your obligations, the debt adviser can tell the Insolvency Service who will remind you of your obligations.

If you have any queries about the new breathing space measures, please contact Allison Thompson on 0191 2263719 or allison.thompson@sintons.co.uk.

Meet our Team – Sheila Ramshaw

Sheila Ramshaw

What is your role at Sintons and how long have you been with the firm? 

I have been with the firm for 17 months and am an associate in the regulatory and compliance team.

Tell us about your career to date…

I began my career in law with a training contract with a criminal defence solicitor in York. I completed my police station representation qualification and duty solicitor exams and represented clients at Magistrates’ Courts on a daily basis. I worked in the prison law department and assisted prisoners with parole hearings and adjudications. After a five year daily drive to York from Newcastle, I moved to Hartlepool, still working in crime, then moved to Newcastle in the role of regulatory with a firm in the city. Pre-GDPR so much of my work was privacy policies, staff training for companies and assisting companies with their applications to become FCA registered.

Can you tell us about your department and the work it does

The regulatory and compliance team at Sintons has a longstanding reputation as being a leader in its field, advising businesses around the North East and beyond for many years. We advise clients across public, private and third party sectors on regulatory compliance and provide training to firms on new legislation within their sector. We draft and assist with policies, risk assessments and procedures for health and safety, anti-money laundering, data protection, fraud and tax evasion. We assist with FCA matters and change of permissions as well as CQC matters. We have a good reputation in defending cases against Local Authorities. The team can conduct full on-site audits of all compliance processes for firms regulated by FCA, ICO, CQC or HSE, including internal processes. Additionally, we can represent clients at interview under caution, criminal courts and first tier tribunals

What have been your personal career highlights to date?

Winning cases. Quite often the regulatory body can be unfair in their proceedings and clients need a helping hand so they do not feel intimidated when facing them in court.

Sintons enjoys a first-rate reputation regionally and nationally for its work. What is it like to work here?

I can say with no doubt whatsoever, Sintons is the best law firm I have worked for. It is a pleasure to work for a firm that not only takes great pride in the service it provides to all clients, but is genuinely interested in the wellbeing of all its colleagues.

And finally, tell us about your interests outside work…

When not in lockdown, I enjoy cycling, regular gym workouts, spinning classes, sunny holidays abroad and eating out. While on lockdown, cooking and keeping in regular contact with my family via a WhatsApp group chat.

* Sheila Ramshaw is an associate in the regulatory and compliance team at Sintons. To speak to Sheila, please contact her on sheila.ramshaw@sintons.co.uk or 0191 226 3739.

 

The Government further extends emergency legislation to protect businesses until the 30 June 2021

In an announcement on 25 March 2021, the Government further extended the temporary suspension of insolvency and other measures which are aimed at protecting businesses during the coronavirus pandemic.

The original measures introduced in 2020 saw an extension to the 31 March 2021 and now, we see a further extension to the 30 June 2021.

The measures that have been extended include:

  • statutory demands served between 1 March 2020 and 30 June 2021 may not be used to form the basis of a winding up petition;
  • winding up petitions cannot be presented between 27 April 2020 and 30 June 2021, unless it can be established that the insolvency is unrelated to the coronavirus pandemic; and
  • the moratorium preventing forfeiture of commercial leases due to the non-payment of rent has also been extended until 30 June 2021.

The measures which the Government have taken, aim to protect debtor companies against creditor action during a period when companies are continuing to be impacted financially by coronavirus.

By way of example,  this means creditors cannot rely on statutory demands to bring winding-up petitions and are prohibited from filing winding up petitions where the company’s inability to pay its debts is due to coronavirus.

This does not in itself prohibit the presentation of a winding up petition, but the petition will need to the reviewed by the Court and if the Court is satisfied that the inability of the business to pay the creditor relates to coronavirus, then the petition will be void.

A further breathing space is provided to business tenants by the extension of the moratorium preventing landlords from forfeiting commercial leases based on rent arrears which will last until 30 June 2021. The moratorium over forfeiture was due to expire on 31 March however this is also now further extended. The Government hoped that this additional time would allow tenants the opportunity to reach arrangements with their landlords over rents which would then enable businesses to continue to operate. Many landlords now find themselves with fewer options at their disposal to force payment of rents whilst this moratorium remains in place.

These latest extensions are in keeping with the other temporary measures which were extended last Autumn, including a relaxation of the personal liability that may be imposed upon directors for wrongful trading.  Whilst taking all these steps, the Government hopes to help viable businesses continue to operate through the pandemic, it raises some important questions around whether this is the ‘final extension’ and whether this is protecting good businesses or just delaying the inevitable collapse of some businesses who may be sleepwalking into financial ruin.

While it is currently speculation, the issue must be whether, on the eventual final extension of the moratorium, Government will be forced to introduce additional forms of protection by way of statute in order to lessen the impact on debtors and to prevent multiple insolvencies and business collapse, for example, requiring rather than, as at present, urging creditors to agree repayment instalments.

If you have any queries about the temporary insolvency measures please contact Allison Thompson on 0191 2263719 or in respect to any forfeiture/commercial landlord queries please contact Aimee Hubbard on 0191 2263792.

Understanding debt recovery podcasts launched

Questions around the process of recovering debts will be answered in a new podcast series launched by specialists at Sintons.

In such times of economic turbulence, many businesses and individuals have sought to collect debts to help them weather the current climate, but the actual process of recovering what is owed is an area which is frequently misunderstood.

To help bring clarity to the topic, Allison Thompson, head of debt recovery at Sintons, will be recording a series of Q&A podcasts, where she offers the benefits of her experience and expertise to those looking to collect a debt.

From what constitutes a debt, through to the methods of recovering it, Allison will discuss each area in depth so businesses and individuals know what lies ahead.

The debt recovery Q&A series follows the success of a similar feature with Sintons’ specialist personal injury team, where Phil Davison, head of general personal injury, answers an array of pertinent questions about the process of making a claim.

It builds on Sintons’ fast-growing use of podcasts as a means to connect with those who need advice, particularly during the COVID-19 pandemic when in-person events are not possible, although people need advice more than ever.

“The process of debt recovery is something that is unknown to many people, as it is something they have never had to become involved in,” says Allison.

“However, during the pandemic, there has been a very significant rise in the numbers of people and businesses wanting to recover what is owed to them – in such times as these, that debt could be the difference between them surviving or not.

“We are absolutely committed to securing the best result for our client, and will do everything we can to make the process as efficient and quick as possible.

“Through our Q&A series, we will offer accessible advice on all aspects of the process, so clients go into it with their eyes open in the full knowledge of what may lie ahead.”

Defamation in Practice – Lessons from Summerfield Browne v Waymouth

Negative online reviews can be devastating to businesses. Consumers have the right to leave reviews, both positive and negative, but there is a fine line between expressing a negative opinion and making a defamatory comment. The High Court’s decision in Summerfield Browne v Waymouth on 18 January 2021, in which the Defendant was ordered to pay damages of £25,000, will be heralded as a triumph for business owners, but the practical consequences should not be overlooked.

The Dispute

This was a claim in defamation, brought by a firm of solicitors against a former client. The Defendant had instructed the Claimant to provide advice regarding the enforcement of a Court Order, for which he was charged a fixed fee of £200. Unhappy with the advice he was given, the Defendant left a negative review on the Claimant’s Trustpilot page. That review included the phrase “A total waste of money another scam solicitor”, to which the Claimant took exception.

The Claimant argued that the words used meant that the Claimant had acted fraudulently or had in some way been dishonest. The Claimant further argued that such allegations were untrue and had caused it serious financial harm.

The Defendant argued that his review was his honest opinion, published in the public interest, and truthful. The Defendant also argued that his comment did not cause serious financial harm to the Claimant.

The Court’s Decision

At a hearing in the summer of 2020 the Court found that:

  • The words used by the Defendant (notably “scam”) had the plain meaning that the Claimant is dishonest and fraudulent;
  • The Defendant’s allegations were factual and could not be dressed as an opinion, so it did not matter whether the Defendant honestly believed that the Claimant had scammed him;
  • The Defendant could not have believed that he was acting in the public interest, in large part because he had offered to remove his review if the Claimant gave him a refund, so he could not rely on the defence of public interest; and
  • The Claimant could not rely on the defence of truth in the absence of any evidence supporting his allegations.

The Defendant was given additional time to amend his Defence to address the issue of serious financial harm. He failed to do so and the Defence was struck out.

The Claimant sought damages and an injunction as remedies, which were determined at the hearing on 18 January 2021. The Court found that:

  • The Claimant had not proven its claim for special damages of £300 per day, noting that no accounting evidence was provided;
  • There had been serious financial harm due to a drop in enquiries to the firm after the review was published, and that general damages in the sum of £25,000 would be adequate to reflect the seriousness of the defamation, the financial loss and for the purposes of vindication;
  • The Defendant should be required to remove the review and be restrained from republishing it by a permanent injunction;
  • Trustpilot should be required to remove the review on the basis that the Defendant was unlikely to comply with the injunction; and
  • The Defendant should pay the Claimant’s costs.

Lessons

Before drawing any conclusions from this Judgment, it must be stressed that the Defendant did not engage with these proceedings in any meaningful way. We may never know if the outcome would have been different if he had been professionally represented, complied with the Court’s directions, submitted evidence and attended the hearing.

Nevertheless, it is a clear statement of intent that the Courts will not tolerate the use of consumer review sites as weapons. Importantly, the defence of honest opinion is effectively removed when allegations of wrongdoing are made by a reviewer, and those who offer to remove their reviews in return for some recompense are unlikely to be allowed to rely on the defence of public interest. As such, reviewers are at significant financial risk if any allegations of wrongdoing cannot be substantiated.

It is also important to note the practical consequences of this case. The injunction requiring the removal of the review and preventing further publication by the Defendant has done little to suppress the defamatory remarks from public view. Although the offending review appears to have been removed from Trustpilot, it has now been published alongside the Claimant’s name in the national press and a number of online articles like this one.

In addition, since the Judgment was handed down and particularly since it became national news, the Claimant’s Trustpilot page has been bombarded with one-star reviews from people who openly admit they have never been clients of the firm. Although Trustpilot has frozen the page to prevent further comments, a Trustpilot statement is now pinned to the page that condemns “the use of legal action to silence consumer’s freedom of speech”, and “extreme measures against a consumer voicing their genuine opinion.” It remains to be seen whether this matter has truly concluded.

This case shows that recourse is available to businesses dealing with defamatory reviews, but it is important to step back and consider the bigger picture before taking action. That may involve co-operation between a number of professionals with expertise in public relations, social media, and search engine optimisation, as well as the law.

Robert Burn is a Solicitor in the dispute resolution team at Sintons. To speak to Robert further on this topic, contact him on 0191 226 3800 or robert.burn@sintons.co.uk.

Are you falling foul of Late payments?

There has been much in the news recently about businesses experiencing problems with late payments, reflecting the financial pressures many companies are under. It’s been reported that a great deal of companies have reported late payment as a growing source of difficulty. Given the problems cited by some businesses we thought it was timely to remind you of your statutory rights under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended by various subsequent regulations) (“the Act”).

Late Payment of Commercial Debts

Under the Act, unpaid suppliers of goods and/or services have a statutory right to claim interest on overdue debts as well as compensation for late payment.

Until the Act, interest on overdue debts could only be claimed where the contract specifically allowed for it or where the supplier sued for payment through the courts, save for a few limited exceptions.

The effect of the Act is to imply certain terms into contracts covered by the Act entitling creditors to interest automatically from the date payment fell due, until payment is made, with a set rate of interest of 8% above base rate and in addition to an amount referred to as compensation.  A creditor has a right to charge collection charges once an account is overdue on each and every invoice. Compensation is set at fixed rates depending on the level of the debt:

  • For debts up to £999.99, £40 is recoverable;
  • For debts from £1,000 to £9,999.99, £70 is recoverable; and
  • For debts over £10,000, £100 is recoverable.

Whilst interest is payable on the principal debt, it is not payable on the compensation amounts.

In some circumstances, it is also possible to recover ‘reasonable’ debt recovery costs, which exceed the fixed sum.

The Act applies to debts arising under most contracts for the sale of goods and/or supply of services made between businesses. Certain types of contracts, such as a consumer credit agreement are excluded.

Aims of the legislation

The Act aims to provide both a deterrent to late payers as well as adequate compensation to a creditor which should accurately reflect the cost of funding the additional credit.

When does interest begin to accrue?

Under the Act, the date from which interest begins to accrue depends on when the contract was made and, whether the contract specifies an agreed payment date. If the payment date is specified, interest generally accrues from the day after the agreed payment date. If the payment date is not specified then in respect to contracts made on or after 14 May 2013, interest starts to accrue from 30 days after the latest delivery of goods, or invoice.

It is possible to delay the start date for contracts made on or after 14 May 2013. Parties can delay the date from which interest will accrue, for example by agreeing a late payment date or adding an acceptance procedure. However, the parties’ ability to delay the start of interest is limited.

Can parties contract out of the Act?

It is possible to vary the entitlement provisions in the Act by the terms of the contract, for example by providing a later payment date or a lower interest rate. However, the contract must still provide a “substantial contractual remedy for the late payment” and if it does not a court will imply the terms of the Act. A remedy is “substantial” if it provides sufficient compensation for late payment, is fair and reasonable as against the statutory right, and serves to deter late payment. The courts will have regard to all of the relevant circumstances at the time the terms were agreed, including such matters as the importance of commercial certainty, the strength of the parties’ bargaining positions, whether the term was imposed on the other party and any inducements given to agree the term.

The courts are able to reduce or disallow part or all of the interest payable to the supplier under the Act if the interests of justice so require, having regard to the supplier’s conduct.

International reach

If the contract has an international element (e.g. it is governed by foreign law or will be performed in a foreign jurisdiction) specific rules apply to determine whether the Act will apply to that contract.

Brexit

Brexit has had no direct effect on the Act as the Act preceded the EU directives that it implements.  Although the UK will be free to amend the Act to depart from those directives, this is unlikely to be a priority for the UK Government.

Know your statutory rights

Businesses of all sizes should ensure they understand the implications of the Act. As a Creditor, you should be aware of your entitlement under the Act. Debtor companies should consider reviewing their payment procedures and terms of business to avoid falling foul of the payment requirements.

* For advice on this or any other debt-related matter, please contact Allison Thompson, head of debt recovery at Sintons, on allison.thompson@sintons.co.uk or 0191 226 3719.

‘We’re proud to have helped make Sintons the firm it is’

As Sintons celebrates its 125th anniversary, some of its team share their thoughts and experiences of being part of the firm and playing their role in its growth. From those who have been at Sintons for over 30 years to those who have joined more recently, here they discuss what makes the firm stand out in the competitive legal marketplace, while also being a great place to work.

Amanda Maskery, partner and head of NHS healthcare

“I have been at Sintons now for nearly 20 years and during that time I have progressed from trainee to partner level and more recently to head of our fast-growing NHS Healthcare team. Many of my clients have been with Sintons for years and grown with me and I think a large part of that is because we have built such strong and trusting relationships with them.

The firm has grown significantly since I first started working here – it has doubled in size.  However, the same culture, values and traditions are still imbedded which means whilst the firm changed in size, it still embraces the supportive nurturing culture you only find at Sintons which cascades from the top down.

As I began life as a trainee at Sintons, it’s fantastic to be able to support others in progressing and achieving their goals. We have a strong team and great dynamic and that is evident to our young lawyers who bring with them a refreshing approach to the Sintons culture.”

Leah Greenwell, solicitor apprentice

“Starting my career, it was important to find a firm with local roots and a reputation for providing high quality training. The first-class levels of service Sintons provide is testament to the standard of training they deliver, and there was no question which firm I wanted my career to start in.

Sintons have always focused on ensuring that my development is put first and have laid the foundations for a successful career as a solicitor. Being a full service firm has given me the opportunity to experience all areas of law and has exposed me to a variety of high value and complex work. I look forward to what the future holds for me at Sintons.

Although the marketplace is competitive, Sintons longstanding history and their presence, both locally and nationally, will always place them at the forefront.”

Anne Smith, secretary

“I started at Sintons in 1986 and this year in November will have been here for 35 years.

I still remember my first day like it was yesterday. Everyone was so friendly and welcoming, and it is still like that today – almost like a second family to me.

“I have mainly worked in private client and worked for lots of fee earners and partners. In 2000 I started working for Steve Freeman who then went on to become a Partner and Head of the Private Client Department. I have now worked for him for 21 years this year and I can honestly say it has been a pleasure and an honour to work for such a lovely man – we have a great working relationship. I also work with the rest of the Family Department and work for such lovely fee earners.

I am also very proud to say that my daughter Emma also works for Sintons in the Conveyancing Department and she also loves her job and the team she works with.

I have seen many changes over the years but one thing remains constant – Sintons is a great place to work. I have made lifelong friends here and they will remain so.”

Emelie Vardon, solicitor

“Sintons’ heritage was very important to me when choosing to join Sintons. I came here as a trainee solicitor in 2017 and making the right choice for my future career was crucial. Knowing Sintons’ reputation and history, I couldn’t have made a better decision.

This is such a great place to work with a warm and welcoming environment. Following the completion of my training contract in 2019, I joined our developing Wills, Trusts and Estate Disputes team. Under Emma Saunders’ excellent leadership and support, my first year as a qualified solicitor has been excellent groundwork for my future career in this specialist area of law.

As a full-service law firm, I consider that Sintons is well-placed in the competitive market.”

Mark Dobbin, partner and head of real estate

“I joined Sintons as a trainee in September 1997. At the time the firm consisted of about 80-90 people. We were operating from an office in Portland Terrace in Jesmond, it was like a rabbit warren for a new starter as it was multiple old terraced houses converted and joined on different floors.

The main changes have been the massive growth in size and expertise, plus multiple office moves until finally landing at the Cube. When I qualified in 1999 myself and the partner at the time (Andrew Walker) were the Sintons commercial property department. Since then we have grown significantly.

Sintons has always been and remains a great place to work, we have an excellent team in Real Estate and will continue to succeed because of the efforts of our staff.”

Pippa Aitken, senior associate

“Sintons was much smaller when I joined in 1998. It was a friendly, family firm renowned for its reputation in private client and personal injury work. There was no dedicated corporate and commercial department.

“I was the only trainee and was sent on all sorts of weird and wonderful jobs – witnessing wills, attending infant settlements and the odd trip to the bank for the accounts department!

Sintons has become a lot more sophisticated in its working procedures and there is a much faster pace of life with emails being the most popular form of communication. I have seen some great lawyers leave and some great lawyers arrive but everyone soon seems to inherit the ‘old’ Sintons sense of fun, respect and teamwork.

Sintons is in a great place going forward. Virtual working has opened up some great opportunities to spread our wings and engage with clients even better than before.”

Sarah Smith, partner and head of licensing

“The firm has almost doubled in size since I started in  2005. The range of services offered by the firm has expanded quite significantly since then too, making the firm much more attractive to commercial clients.

When I first came to Sintons, I headed up the department with Lucy Winskell (now chair of NELEP and Pro Vice-Chancellor of Northumbria University). Since her departure I have headed it up myself. In spite of that, the department has grown in its client base and the amount of work we deal with on an annual basis.

With the growth in size and services we continue to see, I think Sintons are very well placed in the market to take advantage of opportunities going forward.”

Astrid Stevenson, secretary

“I joined Sintons on 21 October, 1997, and will have been here for 25 years this year.

I think when I started there were only about 80 people working at Sintons. We were based in Portland Terrace then moved to Osborne Terrace. We didn’t have open plan working like we have now, we had little rooms with approximately 3 secretaries in each room. I shared a room with Anne Smith from the first day I arrived and we have been firm friends ever since. Fee earners all had their own office. Basically, it was like a rabbit warren.

The staffing levels were very much smaller then, as I say about 80 staff then and now we have more than double that number. The computer system (Word Perfect 5.1) and equipment were top of the range for the time, and I think that has carried on until this day, our IT department have the latest of everything and are basically top notch.

Since I started 25 years ago, the firm has changed and has always moved forward with the times.  When I started there were no female partners. Hilary Parker and Karen Simms became the first, which was a very welcome breakthrough for Sintons.

We were like one big happy family with lots of social events, which thankfully still happen to this day, keeping the ethos of Sintons going.

I think if I didn’t enjoy working here I wouldn’t be celebrating my 25th years this year at Sintons. I’ve worked for the head of dispute resolution Angus Ashman for 24 of those years, and I think we work well together because we work as a team.

This is a very nice place to work, the people are all friendly and If anyone needs help with anything there is always someone there to help. I always think we are only as good as the tools we work with and I must say Sintons do provide all the best equipment and people and it makes the job so much easier if you have things like that in place.”

Sintons’ development – reflections from the Chairman

Sintons’ chairman, Alan Dawson, is one of the firm’s longest-serving people, having joined in 1980. Here, he shares his thoughts on some of the biggest changes and advances he has seen in the past 41 years.

Technology

When I joined in 1980, we used manual typewriters, although thankfully electric typewriters had recently become available. There were no screens at that time, but over the years we added one-line screens to the typewriters, then that went up to three or four lines. It was the early 1990s before we introduced computers.

There were no colour photocopiers so all of the plans we copied were in black and white. We would have to go over them with coloured pens to make them the same as the original.

The introduction of fax in the 80s was a game changer, everything before then was done by Telex or telegram if we needed ‘instant’ communication. The only problem was that due to the paper fax machines used at that time, the print would fade – we’d go back to the file six months later and the sheet would be completely blank! We had to remember to photocopy the fax when they came in for use in our records.

With property completions, all bank-to-bank transfers involved getting an actual cheque from the bank, and then going to the office of the other solicitor in the transaction to inspect the deeds and then complete the deal. Fridays, the traditional completion day, were often spent going between solicitors’ offices in Newcastle.

When mobile phones were introduced, we had one mobile for the firm to use, we didn’t have one each. It was one of the brick-like phones with a huge battery, but it was a huge novelty.

Thankfully things have moved on hugely, and Sintons now has a first-rate technology and IT infrastructure, which enables us to offer a very efficient service to our clients while keeping their data fully secure.

Size of the firm

Back in 1980, we had about 36 people – now we have around 170.

We really started to grow from the mid to late 90s, and in 1998 we moved our offices from Portland Terrace in Jesmond to bigger premises in Osborne Terrace, which comprised three and a half houses next to each other with an overspill office further down the road. We imagined that would give us room to grow for the next 15 years – but within the next two or three years, it was already too small.

We came to The Cube in 2004 and at first didn’t use the top floor of our four-floor building, although within the next couple of years we had expanded into there.

Over the years, we have added many outstanding lawyers to our team, both through recruitment from other firms as well as training young people-in house. Our commitment to supporting aspiring lawyers through their training contract has been unfaltering – I joined as an articled clerk (or trainee, as it’s now known) and have progressed through the ranks.

As the firm has grown then so too has our back-office and support functions developed. We didn’t have the infrastructure we have now, so no HR, IT or marketing department.

Our accounts system was all manual, the cashier had to write everything by hand. There was one card per client, so if you had to borrow it, then they couldn’t make any more entries for that client until you returned it.

Our HR function was our office manager, who kept a record of who was off and the reasons for their absence – reading it now, some of the reasons are quite amusing!

Law firms weren’t allowed to advertise at all until the late 1980s, so the only kind of marketing we could do was through the Yellow Pages. Now, we operate at the very forefront of the sector, adopting digital way before many of our competitors, and that early investment is helping us to stay ahead in the marketplace.

Practice areas

In the 1980s when I joined, Sintons had a very significant insurance litigation practice which acted for four or five of the major national insurers. The revenue from that area of the business probably accounted for two thirds of our entire income. However, in the early 1990s, we recognised that reliance on a few large clients or a particular work stream was not the best way to develop the firm and could make us vulnerable. We therefore made concerted efforts to radically change our business model and to further grow the other practice areas we had operated in for many years, including private client, corporate and commercial and real estate, and they proved to be areas of strong development for us. They continue to be key areas of the business for us and will be central to our ongoing progress as a firm.

We also moved into claimant personal injury work, which really took off in the late 90s and early 2000s. More recently, we have developed our national reputation as specialists in catastrophic and serious personal injury work with a thriving specialist neurotrauma department which handles life-changing brain and spinal cord injury work.

National reach

In the early days, we were more of a regional firm with clients mainly across the North East, and some in the wider North. Occasionally, clients moved to elsewhere in England which helped us to reach out nationally on a small scale, but we didn’t have much of a national reach.

However, as we grew as a firm, we started to work on a more national basis and now on an international basis as well. The improvement of technology was also an important factor in enabling us to communicate with people wherever they were by phone or fax, but more recently by mobile phone, email or even video calling which has proved so important during the pandemic.

Through our efforts to grow individual areas of the business – which in many instances have demonstrated substantial growth over the course of a number of years, underpinned by the hard work of our people – we have been able to add outstanding new lawyers to the team, whether they have moved to Sintons from elsewhere or have been trained in-house.

Now, we have a number of areas of the business which are regarded in the highest terms nationally, including our healthcare team, which has grown its presence over the past 10 to 15 years to become a national leader in its field.

We continue to receive growing numbers of instructions from across the UK and wider afield in almost all areas of the business, as our capability and reputation as a firm builds further still.

Building on our heritage to create a strong future

1896 marked a year of historic new beginnings and breakthroughs.

The year that saw the first modern Olympic Games held in Athens;

The introduction of the X-ray;

The development of the first Ford vehicle, the Quadricycle.

And in such a landmark year as 1896, with events taking place which went on to change history, it is fitting that this was the year when Sintons was founded and the foundations laid for the firm that it would become.

Having been founded as Sutton Cheshire & Thompson on February 8, 1896, to serve the people of Newcastle, the firm then merged with John H. Sintons & Co in 1971 – later becoming Sintons – and has grown into one of the leading law firms in the North of England, acting for ever-increasing numbers of business and private clients both regionally and across the UK.

Over the past 125 years, Sintons has developed a reputation for the quality of its advice, and crucially, the deep and trusting relationships it builds with its clients borne out of the outstanding service it delivers to them.

There are so many momentous events and developments which have taken place over such a long period of time and the world has changed, and continues to change, beyond recognition.

However, throughout that period Sintons has been working alongside individuals, families, businesses and organisations for 125 years, adapting and changing to meet new challenges and will continue to do so for the years to come.

As a law firm for changing times, Sintons continues to evolve, as it has done since 1896, to ensure it stays at the forefront of the legal market and in the best possible position to deliver excellence to its clients.

“Over the past 125 years, we have continually shown we are innovators, we are leaders. We have never been afraid to take bold decisions,” says Christopher Welch, managing partner of Sintons.

“A great example of this is when we invested in our head office, The Cube, in 2004. We were moving to an area of the city which was largely undeveloped and were, largely, surrounded by the old Scottish and Newcastle plant. Looking around us now, this is a thriving, fast-growing and sought-after area, which is the site of huge investment from both business and academia. We had the foresight to buy into these brave future plans and the ambition to want to become part of it.

“In these changing times, we will continue to evolve and develop, as we have done throughout our history, to ensure that at all times we are delivering the very best service to all our clients while also building and investing in the firm from within.

“We have stood the test of time for 125 years and are committed to ensuring Sintons maintains the reputation and presence that has been built so carefully into the future.”

For Christopher, who joined Sintons in 2003, the main differentiator between Sintons and its competitors is its unfaltering commitment to clients.

While continuing to attract new clients nationally, the firm is rightly proud of its longstanding client base, which includes many who have been with Sintons through multiple generations of their family or business ownership.

“The firm’s absolute priority from day one has been our clients and ensuring they receive the highest standards of legal and personal service. Our reputation is built on those foundations, which were laid by our previous generations of Sintons’ lawyers, and is one we are proud to continue to develop further,” says Christopher.

“At Sintons, we care about what we do, how we do it and we never forget that the clients we are working with are depending on us for, often, some of the most momentous decisions of their lives. As a firm, we recognise both the privilege and the responsibility that goes with this, it is fundamental to how we work and to our values as a business.

“Our clients are the front, back and centre of everything we do. We’ve been there for them whenever they’ve needed us for 125 years and that will continue to be the case as we move forward.”

And building further on its reputation for leading the way in the legal marketplace, Sintons continues to innovate to stand out from the crowd.

Having carried out a full rebrand in early 2020, to give the firm a fresh yet timeless identity, Sintons continues to invest in its future.

“Our rebrand was a significant step for the firm,” says Christopher. “Our branding represents the firm that we are; bold, innovative and providing clear and confident advice to our clients – a firm that stands out from the crowd.

“The use of technology to better serve our clients has always been an essential part of our growth strategy. Our founding partners would be aghast at the thought that we were able to have virtually all our colleagues working remotely – with some as far away as the Cayman Islands and Texas – without any impact on client service.

“By investing heavily in our website and online presence, we have created a resource which is available to clients wherever they are in the UK or indeed the world, giving them immediate access to information and support in ways which weren’t available before.

“The legal sector isn’t always the first to embrace change, but we are rightfully proud of the reputation we have built for standing out in that respect. For 125 years, we have taken bold moves, we have never shied away from making investment to equip the business for the long-term, and we have shown foresight and innovation to make the firm what it is today.

“This is a landmark anniversary for us, and in uncertain times, the investment we have made for many years in our infrastructure, development of our people and strategic recruitment means we remain confident in our future and the service we can continue to provide to our clients and to the regional community of which we are a fundamental part.

“These truly are changing times – but with 125 years behind us then we must be doing something right!  We know that our business will continue to evolve, with further investments in technology and infrastructure changing how and where we work. However, as we move forward, what is clear is that Sintons will always be right there, by the side of our clients, as we have been since 1896.”

Law firm Sintons is marking its 125th anniversary

Since its foundation in 1896, Sintons has grown to become one of the leading law firms in the North of England with a client base which extends across the whole UK.

It has become known as a key advisor to businesses and individuals acting on major, complex matters, regionally, nationally and internationally.

In many of its practice areas, including business, healthcare, private client and neurotrauma, Sintons is regarded as one of the UK’s leading specialist advisors.

Sintons has built a well-deserved reputation for delivering expert legal advice and outstanding service to every client, which is at the heart of the trusting and long-lasting relationships it has built during the past 125 years.

Testament to the quality of service provided is the fact that many of the firm’s clients have been with Sintons for decades, with the firm routinely being trusted to advise multiple generations of families and business owners.

Now, in its 125th year, and despite the ongoing challenges being presented by the COVID-19 pandemic, Sintons remains confident in its future as the firm continues to develop and grow.

The firm can trace its roots back to the formation of Sutton Cheshire & Thompson on February 8, 1896, which merged with John H. Sinton & Co in 1971 to become Sinton & Co, and later Sintons.

The expansion of the amalgamated firm has seen it move offices a number of times in order to house its growing number of employees, moving from Portland Terrace in Jesmond to bigger premises in Osborne Terrace which were soon outgrown, resulting in the relocation in 2004 to its current purpose-built home, The Cube, opposite St James’ Park in Newcastle. A second site was added with the opening of a consulting office in York two years ago to help the firm service its increasing demand for work from around Yorkshire.

The move in 2004 acted as a springboard in the development of Sintons, with many people not having realised how big the firm had grown and heralded a period of strong growth across the firm as a whole, with legal talent continually added to build its expertise and capability further still.

This has been backed by continued investment in its IT infrastructure, digital offering and people, to ensure Sintons is well positioned for the future.

“We are very proud of the reputation we have built over the past 125 years, which has seen us become known on a national scale as a law firm of the highest capability which is absolutely dedicated to its clients,” says Christopher Welch, managing partner of Sintons.

“We have never been afraid to be leaders and to take bold decisions, which have frequently put us at the very forefront of the legal sector. We were, for example, building our online presence and digital business development platforms way ahead of our competitors and long before it was something that was embraced widely within the legal sector.

“Going forward, we are in a strong position, having built on the heritage and legacy of Sintons over the past 125 years to create a law firm with a national reach, regarded in the highest terms for the quality of both our legal and personal client service.

“This is a very significant milestone for us as a business, and while we reach it during some of the most challenging economic conditions in the country’s history, we remain confident in the future of Sintons.”

FCA v Arch Insurance (UK) Ltd and Others – The Business Interruption Insurance Test Case

Since the first introduction of lockdown measures by the UK Government on 23 March 2020, many businesses have been forced to close. Those with the benefit of Business Interruption Insurance Cover (BII) have sought to rely on it, only for many insurers to decline their claims on the basis that the policy does not cover events arising from the Covid-19 pandemic.

Sintons has been advising businesses who have faced such issues with their insurance policies. We may be able to assist your business if you have had an insurance claim declined.

The uncertainty in this area led the Financial Conduct Authority (FCA) to begin test case proceedings on behalf of policyholders against (and with the agreement of) eight insurance companies in June 2020. The aim of the test case was to clarify whether 21 sample policy wordings provide BII arising from Covid-19 and the public health measures taken by the UK Government in response to it.

The High Court handed down its Judgment on 15 September 2020. Various aspects of that Judgment were appealed to the Supreme Court and the Judgment on the appeal was handed down on 15 January 2021.

It is important to note that the extent to which losses arising from Covid-19 are covered by BII is highly dependent upon the wording of the individual policy. There is no universal answer and policyholders should seek legal advice if they are unsure of their position.

The key issues in dispute related to:

  • Clauses that provided cover in the event that an occurrence of a prescribed class of disease was identified within a prescribed distance from the insured business (Disease Clauses);
  • Clauses that provided cover in the event that a public authority imposed restrictions preventing access to or use of the insured business premises following an insured event (Denial of Access Clauses);
  • Clauses that provided for the valuation of any insured losses to be based on trends and other circumstances that would have affected the business regardless of the insured event (Trends Clauses); and
  • The 2010 High Court decision in Orient-Express Hotels Ltd v Assicurazioni Generali SpA (Orient-Express), which related to a BII claim arising from hurricane damage to a hotel in New Orleans.

Disease Clauses

The High Court held that most of the Disease Clauses in question provided BII as long as there was at least one instance of Covid-19 within the distance from the insured business defined in the policy. It also held that indemnity was not necessarily limited to losses arising only from instances of Covid-19 within that defined distance.

This was appealed by the insurers but, although the Supreme Court disagreed with the High Court’s technical reasoning, it reached the same practical conclusion.

Denial of Access Clauses

The High Court held that where a policy provided BII in the event of the insured business being closed due to “restrictions imposed by a public authority”, such restrictions were required to be legally enforceable to trigger BII.

The Supreme Court disagreed, giving the example that the Prime Minister’s instruction on 20 March 2020 for certain businesses to close that night was not immediately enshrined in law, but was nevertheless a restriction imposed by a public authority. However, the Supreme Court noted that where a policy provided BII in the event of an “enforced closure of an Insured Location”, that policy was not triggered by advice, social distancing and instructions to stay at home.

The High Court held, and the Supreme Court agreed, that restrictions did not need to be imposed specifically upon the insured person or property in order to trigger BII. It was sufficient that restrictions were imposed preventing the wider public from accessing the business.

The High Court also held that BII was only triggered in the event of a complete inability to access the insured business. However, the Supreme Court disagreed with that and ruled that it was sufficient for a part of the insured business or business premises to be inaccessible, although it accepted that losses would be reduced where some part of the business could continue to operate.

Trends Clauses

The High Court held that Trends Clauses operate only in the calculation of insured losses, rather than in the scope of the indemnity available. As such, if BII is triggered by Covid-19, the calculation of the insured losses cannot then be limited by the existence of a downward trend in the economy also caused by Covid-19. It also held that the purpose of Trends Clauses is to put the insured business into the position it would have been in had the insured event not occurred.

By slightly different reasoning, the Supreme Court agreed with that ruling.

Orient-Express

The decision in 2010 was that the policy taken out in relation to a hotel that was damaged by hurricanes Katrina and Rita did not provide any BII for losses incurred as a result of damage to the wider New Orleans region, on the basis that such losses would have been suffered even if the hotel itself had not been damaged. The insurers relied on this as a notable part of their defence.

The High Court found that the present case was sufficiently different from Orient-Express that it was not bound to follow it. The Supreme Court went further and overruled Orient-Express, declaring that it had been incorrectly decided.

Conclusion

In summary, the Supreme Court’s ruling is a victory for policyholders. However, the wording of the policy is key to the outcome of any insurance claim and insurers are now likely to be very careful about the words used in policies containing BII.

If you have a dispute regarding your BII policy and you would like legal advice, contact our Commercial Dispute Resolution team.

How far do rights of personal representatives to medical records go?

Medical records can be crucial to disputed estate matters. For example, will challenges often involve a dispute about whether the deceased held testamentary capacity to make a will. Medical records can be critical as evidence to support or defend the claim. However, after the deceased has died only certain individuals have the right to obtain copies.

Section 3(1)(f) of the Access to Health Records Act 1990 (“the 1990 Act”) allows the deceased’s personal representatives and any person who may have a claim arising out of their death to apply for access to the deceased’s health records. However, authorities can restrict the disclosure of certain records if they consider that it is not relevant to claims arising out of the deceased’s death under section 5(4) of the 1990 Act.

The case of Re AB [2020] demonstrates how far the rights of personal representatives extend, in an unusual context. Five or so years prior to the deceased’s death, he made arrangements for a fertility clinic to freeze and store his sperm. AB, the deceased’s personal representative, requested copies of all records relating to the storage and use of the sperm and/or any embryos created using the sperm. It is unclear why the records were required.

The fertility clinic declined to provide copies of the requested information on the basis of maintaining confidentiality unless there was a clear duty of disclosure. The issue was whether the limitation under section 5(4) of the 1990 Act could be relied upon by the clinic to prevent disclosure of information irrelevant to a claim arising out of the patient’s death, where the request came from a personal representative. AB applied to the High Court for consideration of the issue and an order requiring the clinic to disclose the relevant records.

Sir Andrew McFarlane P in the High Court held it was lawful for personal representatives to apply for medical records under the 1990 Act and that such right was not limited to circumstances where there is a claim arising out of the deceased’s death. He found that a deceased’s personal representative and a person who may have a claim arising out of the deceased’s death to request health records under section 3(1)(f) are two distinct categories of individuals. The right of a personal representative is not confined to where there is a claim arising out of the deceased’s death. Section 5(4) which curtails the disclosure of health records only applies to those seeking to make a claim arising out of the deceased’s death.

It was concluded that the personal representative’s application for disclosure of records was valid. Therefore, the clinic holding the requested records was obliged to disclose them to the personal representative, although information relating to or provided by third parties should be redacted.

If you have been prevented from obtaining a deceased person’s medical records and you fall into either of the above categories, please contact us. Our contentious probate team are experienced specialists in obtaining the necessary information to support your investigation of a potential claim.

Forged wills

Forged or fraudulent wills are an issue in the contentious probate world. A forged will is often signed in the testator’s name without their knowledge or consent and presented as their last wishes. Usually this would benefit the person committing the forgery.

It can be difficult to obtain sufficient evidence to satisfy the court that forgery has taken place. By its very nature it is a serious allegation to make. Until recently, the burden of proof (i.e. the obligation to prove the assertion made) was on the person making the allegation that the will was a forgery. However, the recent case of Face v Cunningham has changed this.

Face v Cunningham relates to the estate of the late Donald Face, who died in 2017. The deceased’s daughter, Rebeca applied to the court to propound (i.e. put forward for probate) an alleged lost will, dated shortly before the deceased’s death. The original will could not be located and only a photocopy was available. This missing will appointed Rebeca as the executor and major beneficiary of the estate, with gifts of £5,000 to the children of the deceased’s other children, Richard and Rowena.

Rowena alleged that the will was a forgery and that Rebeca had conspired with the two witnesses to the will who claimed to have witnessed Mr Face’s signature. In response, Rebeca argued that the burden of proof was on the defendants (Rowena and Richard) to establish that the will was a forgery in accordance with previous court decisions.

In usual circumstances the person propounding a will must establish that the will satisfies the requirements of the Wills Act 1837. This includes that the will:

  1. Was in writing
  2. Was signed by the testator who intended to give effect to the will and
  3. Was signed in the presence of two witnesses present at the time, who then sign the will, or acknowledge their signature in the presence of the testator.

HHJ Hodge QC considered that in addition to these formal requirements, the burden of proving that the will is not a forgery must lie with the person seeking to propound the will. He considered this to be part of the requirement of proving that the will was duly executed by the deceased and also duly witnessed, as required by the Wills Act 1837.

The court found that evidence within Mr Face’s journals did not suggest that Mr Face ever made a will and the terms of the will contained language used by Rebeca and not Mr Face. There were also discrepancies in how Mr Face referred to Rowena in the will, Mr Face’s intentions to provide for Richard and the distance Mr Face allegedly travelled to execute the will.

The judge went one step further and directed that a transcript of the judgement was to be referred to the Crown Prosecution Service in respect of potential criminal proceedings. This demonstrates the serious implications of Rebeca’s actions in seeking to rely on a forged will.

The court considered that the claim to propound the forged will was totally without merit and it was dismissed. The estate was to be distributed in accordance with the intestacy rules. This meant that Rebeca was still entitled to one third of the estate. However, due to Rebeca’s conduct, she was ordered to pay the defendants’ costs on the indemnity basis (those that are reasonable but do not have to be proportionate). The court commented that these costs should be recoverable from Rebeca’s share of the estate, which will reduce what she received from the estate.

People hoping to rely on a forged will should consider this case to be a stark warning, not just on the risk of being ordered to pay the significant costs of the other parties in a civil dispute, but also the risk of being criminally prosecuted. This important decision should assist those seeking to dispute a forged will by placing the burden of proof on the person seeking to rely on such a will. However, allegations of a forgery are very serious and should not be made lightly.

Always seek legal advice from a specialist Contentious Probate practitioner who can advise on the merits of pursuing or defending claims involving forged wills. Other grounds may be available to challenge a will, such as the testator lacking knowledge and approval of the terms of the will, if there is insufficient evidence available regarding the forgery. Our team are always available if you would like to discuss the specific circumstances of your case.

Contentious Probate – News from the front online seminar

Sintons’ Contentious Probate team and 5 Stone Buildings invite you to watch their complimentary seminar looking at recent will disputes cases, the remote witnessing of wills, the costs of litigation friends and issues to consider in the settlement of contentious probate claims.

Please click on the play button in the bottom left corner of the below video image to start viewing.

We have also included a podcast version should you wish to listen to the conference again at your leisure, the link is also below.

We relocated and started new jobs during the pandemic

Solicitors Adam Hutton and Sophie Moore were both eagerly anticipating their respective moves to the North East to join Sintons when the country was plunged into COVID-19 lockdown. Here, they discuss their experiences of joining the law firm during such unprecedented times, and how Teams replaced the tea room as the forum for meeting colleagues

Relocating from elsewhere in the country and starting a new job can be a daunting proposition in any circumstances – let alone doing so during the COVID-19 pandemic.

But for Adam Hutton and Sophie Moore, two solicitors who moved to Sintons during the past few months, that was the reality they faced.

Adam, a dispute resolution solicitor, relocated from Bristol, and Court of Protection specialist Sophie returned to the region from London – and as both accepted their positions at Sintons before the pandemic hit the country, expectations at that time very much differed from what they encountered.

“Back in January 2020 I had met three of my future colleagues through the interview process and upon accepting the job I was very much looking forward to meeting everyone else and beginning my career at Sintons,” recalls Sophie, who joined in April.

“I was excited to meet clients, attend networking events and to see what my new desk was like. Little did I know that fast forward three months and I would be clearing the spare bedroom at my parents’ house to create a practical workspace, attending remote IT inductions and stretching my IT skills in order to set up a second computer screen.”

Adam faced a similar experience, having started his Sintons career in June.

“I knew that I was joining prior to the lockdown and had initially expected to be walking through the office and having the opportunity to meet various colleagues face to face,” he says

“However, after completing some formalities in the office under social distancing measures, and meeting my new team remotely via video link, I was returning home after a couple of hours to begin my induction.”

Whilst the traditional ‘Sintons’ warm welcome’ – on which the firm prides itself – may not have been possible, Sintons’ sector-leading use of virtual means ensured Sophie and Adam quickly became part of the team.

“I am used to remote training sessions but not when normally you would be in the office in the designated training room,” says Adam.

“I must say though, as it was very well organised, I do not feel that I missed out on anything I would have done if it was provided in the office.

“The remoteness of the training has very much set the tone for my time since joining Sintons, what has often been coined as the ‘New Normal’. Whilst we can go into the office and I have been in on occasions, working from home has started to feel more normal then I ever expected it would.

“The personnel and technology that Sintons have available do not make it feel like you are on your own and I often have meetings with colleagues via video link and phone. Albeit the days of popping to a colleague’s desk for a quick chat about the weekend seem like a distant memory and a thing of the past, at lease in the immediate future.”

Sophie’s experience of settling in remotely was similarly positive.

“It became clear during my first few weeks of working remotely that those around me were committed to making sure that I was able to settle in and feel part of the wider Sintons team,” she says.

“Microsoft Teams became my lifeline to colleagues who were always happy to assist. “How are you getting on? Let me know if you need anything,” was just one of the many messages I received from colleagues who I would be working closely with but would not meet in person for many weeks, or months.”

And as well as enabling its people to feel part of a team remotely, Sintons remained absolutely committed to its clients during the lockdown period, using a raft of virtual technology-based means of communication to ensure service was uninterrupted.

Adam says: “Whilst Sintons have adapted, so have our clients, many of whom will have had remote meetings rather than coming into the office. They can take comfort in knowing that Sintons has fully adapted to the pandemic in these challenging times and, as ever, are in an excellent position for providing the level of service for which we are known.”

“I have been given the tools to allow me to work effectively from home and to play my part in making sure that even though we are in very strange times we can continue to deliver an excellent service to our clients,” adds Sophie.

Contentious probate event to be held online

A number of key issues within the field of contentious probate will be explored during an online seminar later this month.

The event will look at recent will dispute cases, the remote witnessing of wills, the costs of litigation friends and issues to consider in the settlement of contentious probate claims.

Inspired by recent trends within this specialist area of law, and the implications of the continuing COVID-19 pandemic, experts will share their insights and advice on a number of topics.

Emma Saunders, senior associate at Sintons, and three specialist barristers from leading London-based Chambers 5 Stone Buildings – Ruth Hughes, Edward Hewitt and Mathew Roper – will lead the event.

Organised by Sintons and 5 Stone Buildings, the seminar will be held via Zoom on November 25.

The event comes only shortly after Emma – a full member of the Association of Contentious Trusts and Probate Specialists (ACTAPS) and an affiliate member of STEP – was again confirmed as a leading specialist advisor in contentious probate work in the North of England by both Legal 500 and Chambers.

Hailed as a rising star by Legal 500, Emma was hailed as being “excellent” in recognition of her outstanding legal advice and client service. Chambers, which again named her as an associate to watch, said Emma is “wonderful”.

“Contentious probate work is a very specialised area and in which we have seen a lot of significant recent developments, and expect to see more in light of the ongoing implications of the COVID-19 pandemic,” says Emma.

“Working alongside Five Stone Buildings, we will examine the changing world of will making following the introduction of the remote witnessing of wills and consider the impact of the current pandemic on settling claims through mediation. Having collectively worked in this field of law for many years, handling the most complex of claims on a national basis, my fellow speakers and I can share our experiences and support our fellow professionals in how to best deal with current and likely challenges and developments.”

* Contentious Probate – News from the Front will be held on Wednesday, November 25, from 12pm to 1pm. It will be held via Zoom and details will be sent upon registration. To register for the seminar, please contact Peter Jennings on peter.jennings@sintons.co.uk or 0191 226 7907.

Securing the best outcome

Recently confirmed by Legal 500 as one of the leading advisors in its field in the North of England, the specialist commercial dispute resolution team at Sintons is known for its strong capabilities and outstanding personal client service.

Sintons’ Commercial Dispute Resolution team – named in Band 1 of Legal 500, the highest ranking possible – is widely regarded as a go-to advisor for commercial dispute work with clients locally and across the UK.

Led by Angus Ashman, alongside partners Graeme Ritzema and Hilary Waters – a recent appointment from KPMG who specialises in tax litigation – the team of senior and junior lawyers has years of collective experience of successfully handling the most complex and challenging of matters, fighting hard on behalf of their clients to secure the very best outcome for them.

“Our department revolves around the fundamental values of offering an outstanding service to every client.”

Each matter, from the most straightforward of cases to complex, long-running disputes, is handled with Sintons’ unique offering of the highest quality of legal advice coupled with the levels of client service which sees many businesses and individuals return to the firm time and again.

This was independently confirmed by Legal 500, which praised the team for its expertise across the board.

It hailed its “particular strength” in commercial contracts and warranty claims, professional negligence and financial services litigation, and highlighted its strong presence in healthcare and its relationships with NHS Trusts, Clinical Commissioning Groups (CCGs), care providers and pharmacies.

Its skill in mediation was highlighted, in which Legal 500 said Sintons was praised by clients for handling matters with “a level of heightened competency, depth of knowledge, and tactically very well played.”

The Legal 500 assesses the strengths of law firms in over 150 jurisdictions, with rankings based on client feedback, submissions from law firms and interviews with leading private practice lawyers

Property litigation was also singled out as one of Sintons’ strengths, with associate Aimee Hubbard being named as a rising star in this specialist area.

“Our department revolves around the fundamental values of offering an outstanding service to every client – the very highest standards and quality of legal advice, which we have the experience and expertise to offer, as well as gaining the trust of the client through giving them a first-rate service,” says Angus.

“We have many clients who continue to instruct us over the course of several decades as they know that whenever they have an issue which needs to be resolved in an efficient and timely manner, they can come to us for the support they need.”

Angus notes: “Our department continues to develop, with the vast experience of the partners combining with the great talent of our younger lawyers to create a team which has terrific strength and capability. The recent addition of Hilary to our team at a senior level and with her background in commercial litigation alongside her specialism in tax litigation, shows we continue to progress with ambition and confidence, with our clients continuing to be at the centre of everything we do.”

Dispute specialist named as Rising Star

As a highly-experienced dispute resolution lawyer, Aimee Hubbard has recently been hailed as one of the rising stars in the North of England for her work in the specialist area of property litigation.

Aimee, an associate at Sintons, has advised on a broad range of disputes for individuals and clients since her qualification in 2005, resolving matters for both public and private sector clients.

She is also a specialist advisor in commercial disputes, including contractual and professional negligence, and her growing reputation in the field of property disputes has earned her recognition from Legal 500 2021.

Aimee has been named as a Rising Star by the independent legal publication, which hailed her “clear, concise and knowledgeable” approach.

She is part of Sintons’ specialist dispute resolution team, a leading name in dispute resolution regionally and nationally, which was awarded a band one ranking by Legal 500 2021 – the highest possible rating – and was named as Dispute Resolution Team of the Year at the Northern Law Awards 2019.

Angus Ashman, head of dispute resolution at Sintons, said: “Since Aimee joined us in 2017, she has established herself as a key player in our team. She is deeply committed to her clients and to securing the best outcome for them, and advises with clarity and confidence, which is a valuable attribute when clients often face an uncertain situation. Her work in dispute resolution, and in the highly specialist area of property work, is of the highest standard and we are very pleased to see this rewarded with Rising Star recognition by Legal 500.

“Our dispute resolution team works nationally, handling matters of the highest complexity and value, and we are known as highly capable advisors in our field. The experience and expertise we have in our team is second to none in our region, and our recent band one recognition by Legal 500 confirms that. This ranking, alongside Aimee’s Rising Star rating, gives yet more independent endorsement of the quality of what we do and the outstanding service we consistently give to our clients.”

Why do you need a specialist Contentious Probate Solicitor?

Contentious probate covers a variety of disputes that can arise after someone’s death and is a niche area of law. It sits between non-contentious probate (such as the drafting of wills, trusts management and estate administration) and civil litigation. So why should you seek legal advice from a specialist contentious probate solicitor?

Generally, solicitors working in civil litigation deal with commercial and property disputes. They may not be alive to the personal and sensitive nature of issues that can arise in contentious probate, which often involves grieving relatives, strained relationships and high emotions. There are also specific quirks in contentious probate law that more generalist litigators may not be aware of. By contrast, most non-contentious wills and probate lawyers do not have the necessary knowledge and experience of pre-action processes and court litigation and may be less confident in handling disputes. This can sometimes lead to a barrister being instructed to advise, at additional cost to the client, which could have been avoided at that stage of a claim.

Contentious probate disputes can involve a wide range of different issues that require knowledge of the rules in civil litigation but also the principles involved in wills, trusts and probate. Such cases, amongst many others, include will challenges, claims under the Inheritance (Provision for Family and Dependants) Act 1975, disputes in estate administration (such as the removal of executors) and proprietary estoppel claims.

These disputes need to be considered with great care due to their sensitive nature. Many of our clients’ cases involve personal and emotional issues, often concerning individuals who have lost mental capacity. This can lead to challenging disputes between family members which require careful negotiation to resolve.

Our specialist team of contentious probate lawyers have the necessary expertise and knowledge to handle these disputes delicately whilst providing a comprehensive and cost-effective service.

Decisions made at the beginning of a dispute can have a huge impact on the way matters unfold as a claim progresses. Therefore, you should seek advice from a specialist contentious probate solicitor from the outset who can assist on all aspects of the case, from start to finish.

It may be that obtaining an objective view from a specialist solicitor can help to focus or narrow the issues in a protracted dispute. With expertise in this field, our contentious probate team are often able to help to limit the stress, time and costs of parties becoming embroiled in contentious probate litigation.

If you find yourself involved in an estate dispute or are needing specialist assistance in a complex matter, please contact us to discuss your dispute in more detail.

Top-ranked dispute resolution team hailed for deep capability

The fast-growing dispute resolution team at Sintons has continued its strong progress by securing a top ranking in Legal 500 2021, acknowledging its position as one of the leading specialists of its kind in the North of England. 

The team, which has acted in matters across the UK for many years, has built a reputation as a key name in dispute resolution on a national basis. Regularly, it is appointed to act in the most complex of cases, and is known for its capability in resolving such matters.

Its strength has now been acknowledged with a band one ranking in Legal 500 2021. The independent guide hails the team’s “particular strength” in commercial contracts and warranty claims, professional negligence and financial services, and praises its capability in advising healthcare sector clients.

Practice head Angus Ashman and partner Graeme Ritzema, both long-standing key names in dispute resolution work, are both recommended by Legal 500 in recognition of their capability in handling the most complex matters.

Sintons is also hailed for its work in the specialist field of property litigation, with associate Aimee Hubbard being named as a rising star for her work in this area.

The dispute resolution team has seen strong growth in recent times, with work coming from across the UK and new clients coming to Sintons continually. The team has recently added another partner, Hilary Waters, to help build further on its progress.

Christopher Welch, managing partner at Sintons, said: “Our dispute resolution team has seen strong levels of growth, based on the outstanding reputation of the department and the work of those working within it to achieve that.

“We have supported many businesses and individuals in securing resolution to their matters, particularly over the past few months amidst the extreme turbulence we have seen in business and the wider economy, and our combination of legal excellence and an outstanding client service run throughout everything we do.

“The award of a band one ranking is due recognition of the capability and expertise we have here in our dispute resolution team, and of the unrivalled service we provide to each and every client.”

Leading commercial disputes specialist joins Sintons as partner

A leading commercial disputes lawyer has joined Sintons as a partner.

Hilary Waters, a specialist in tax disputes with over 20 years’ experience, joins Sintons from KPMG.

During her career, she has built a reputation for supporting clients with a variety of complex tax disputes as both advisor and advocate, as well as commercial litigation and regulatory matters.

Hilary becomes the 30th partner in Sintons and the latest senior addition to the firm’s fast-growing dispute resolution team, which is renowned regionally and nationally for its capability and expertise.

She has extensive experience of advising on a wide range of tax issues for both individual clients and groups of taxpayers, including the formation and management of litigation funding groups. She has experience in litigating matters at all levels of the UK Courts and Tribunals, from the First-tier Tribunal to the Supreme Court, as well as referrals to the European Court of Justice.

Her clients include FTSE 100 companies to SMEs in a wide range of sectors, including retail, leisure, pharmaceutical, manufacturing, tech, property, universities and sports clubs.

Angus Ashman, head of the dispute resolution team, said: “We are delighted to welcome a lawyer of the calibre and experience of Hilary. During her career, she has become known as a leading name in her field, handling commercial disputes of the highest complexity on behalf of major businesses and fighting hard to secure the very best outcome for her clients. Her absolute commitment to achieving excellence is an ideal fit for our approach at Sintons.

“As a team, we are known for setting and achieving the highest standards and continue to be appointed regionally and nationally in matters by both new and existing clients. Our ongoing growth is testament to the quality of our legal advice and client service, which is what continues to make Sintons stand out in the marketplace. We are confident Hilary will help us to achieve even greater successes as a team and look forward to working with her to make that happen.”

Crucial caveats in contentious probate

With an influx of estate disputes on the horizon due to the Covid-19 pandemic, it is important to remember key preliminary steps at the outset. You may not have heard of a ‘caveat’ and why it is so important to have one. Here we address some of the frequently asked questions about caveats.

What is a caveat and why do I need one?

In the majority of cases, a grant of probate (or grant of letters of administration if there is no will) is required to administer and distribute a deceased person’s estate. When you have a claim arising out of someone’s death, you will need time to consider and investigate the issues. You should seek assistance from a solicitor that specialises in estate disputes.

A caveat temporarily prevents a grant of probate from being obtained in a deceased person’s estate for six months. This allows you time to digest what has happened and seek legal advice without worrying that the estate assets will be distributed.

A caveat should only be used in certain circumstances. You should not use a caveat if you have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as this will be considered an abuse of process. The most common reasons for entering a caveat include:

  • Concerns about the validity of the deceased’s will;
  • A belief that the personal representatives are incorrectly applying for the grant of probate; or
  • A belief that the person applying for the grant of probate is not an appropriate person to administer the estate.

When and how should I apply for a caveat?

You can only apply for a caveat before the grant of probate is issued. If you do not act quickly, the personal representatives may obtain a grant to administer and distribute the estate. The more time that passes, the more difficult it may be to recover any assets that might be involved in your claim.

You can apply for the caveat yourself, by post or online. Alternatively, you can instruct a solicitor to do it for you. There is a minimal fee to enter a caveat. This has recently been reduced from £20 to £3.

I live in another country can I still apply for a caveat?

To be eligible to apply for a caveat, you must be 18 years old. You also need to have a home address in England and Wales.

If you live abroad, you can instruct a solicitor in England and Wales to enter a caveat on your behalf.

How do I renew a caveat?

You can renew a caveat within the last month before its expiry. This must be done by post and cannot currently be renewed online. You will also need to pay a further fee and the caveat will remain in place for another six months.

What should I do if I am a personal representative and cannot obtain a grant of probate because of a caveat?

Personal representatives can challenge a caveat by issuing a ‘warning’. The person who applied for the caveat will need to provide reasons why the caveat should remain in place. To do this, they must enter an ‘appearance’ within a short time limit to the Leeds District Probate Registry, otherwise the caveat will be removed.

If an appearance is submitted, then the caveat becomes permanent. The caveat cannot be removed without an agreement between the parties or involvement of the court.

There may be important tactical considerations to be had at this stage and you should seek legal advice to help guide you through the process.

How can you help me?

Our specialist team can advise you on all aspects of estate disputes, including whether a caveat is required and appropriate. We can enter it on your behalf so that if it is warned off, any correspondence comes direct to our firm to deal with. This is beneficial when trying to comply with the short time scales.

We act for both those pursuing claims against an estate and personal representatives faced with defending such claims. Please do not hesitate to contact us to discuss the specific circumstances of your case.

Sintons shares expertise at contentious probate event

Contentious probate and the potential for will challenges and claims against estates will be examined at an upcoming online event.

Probate – Perils and Pitfalls brings together leading experts in this specialist area of law, and advises on how best to deal with a claim being brought.

Emma Saunders, senior associate at Sintons and a nationally-renowned advisor in contentious probate, will be one of the speakers, and will deliver a presentation around wills and how fellow lawyers can protect their clients and their firm when drafting wills.

His Honour Judge Kramer will deliver an overview on the topic of basic probate for beginners, and Stephanie Jarron, from Enterprise Chambers, will advise on Proprietary Estoppel claims specifically with regard to farmers.

The Zoom event, organised by the Newcastle Business and Property Courts Forum, will be held on October 12.

“Contentious probate work is a very specialised area, particularly in the North East of England, and this event brings together some of the most experienced advisors we have in this region, to share knowledge and best practice between our peers,” said Emma Saunders.

“When a claim is made against a will, this can be a very distressing process for those involved. It is our job to conclude these matters in as quick a timeframe as is possible, while putting our clients first at every turn and proceeding sensitively yet decisively to ensure their upset is not compounded.

“Having worked in this field of law for many years, handling the most complex of claims on a national basis, my fellow speakers and I can share our experiences and support our fellow professionals in how to best deal with such challenges.”

The event will be held on Monday, October 12, from 5pm. It is free of charge but prior registration is required. To register your attendance, visit https://tinyurl.com/y4qpeg3o

What I’ve Learnt: David Summerhayes

David Summerhayes is one of the leading commercial litigators in the North, acting for global brands, FTSE 100 companies and fast-growth SMEs in complex and high-value dispute claims. A partner at Newcastle law firm Sintons, David is also well-known for his work in defamation and privacy.

My first training partner taught me to always be interested in my clients. At every opportunity, find out what they do, why they do it and what they want to do next. If you can do this successfully, the legal advice you give is really business advice, and far more valuable for it.

Be optimistic and open to opportunity. Lawyers are trained to identify the things that can go wrong for clients and it is all too easy to become risk-averse with your own business. This approach is something I’ve adopted relatively recently. If you think you have a good idea, go for it.

The one quality that runs through all my successful clients is drive and the willingness to carry on when others would stop. This translates into hard work and the attention to detail that produces a competitive edge.

As a litigator involved in disputes, it is crucial to have a calm head in a crisis, an understanding of strategy, and resilience. Lawyers also need attention to detail, an understanding of human nature and creativity in solving problems. It’s a broad skill set.

Building trust is paramount. Aside from a lawyer’s professional and regulatory obligations, clients need to be 100 per cent confident they can tell you anything and everything.

When starting a business, find a good mentor, speak to like-minded individuals and gather as much relevant information as possible. You will want your business to offer something different and to stand out, of course, but innovation doesn’t necessarily mean starting everything from scratch. It can be pulling together accepted ideas in a way no one else has thought of yet.

Review your policies and procedures on a regular basis. It is probably not necessary to have a full suite of bespoke documents from day one, but a lot of disputes arise because contracts are entered into without proper attention. The risk/reward dynamic changes as a business grows, as it takes on more employees and as order values increase. The key is to identify the point at which spending a little time and money documenting things properly will pay dividends.

Cultivate a team mentality and identify a common goal. Everyone should be pulling in the same direction, working to their strengths, and celebrating success. If each team member understands and genuinely appreciates how the others contribute, they will motivate each other. It doesn’t always work that way, because that’s life sometimes, but you have to try.

As Warren Buffet says, ‘It takes 20 years to build a reputation and five minutes to ruin it’. I regularly advise owner-managed businesses, national brands, and global corporations on matters of reputation and the same fundamental principles apply to all businesses. In this social media era, everyone is a publisher and reputations are susceptible to attack across many platforms. Whether allegations are right or wrong, you will be judged on how you act and how you respond.

Recovering debts amid the coronavirus pandemic

Allison Thompson, head of debt recovery at Sintons, shares her top tips for collecting debt during unprecedented times.

Even before lockdown hit the UK on March 23, the economic conditions had been difficult for some time. Against a backdrop of many months of Brexit negotiations and updates, now we faced yet more challenges for business as countless were forced to scale back or shut down completely.

Chancellor Rishi Sunak announced various steps and measures which have been taken to support and minimise the financial effects of the coronavirus on UK businesses, but despite this, many will undoubtedly face financial hardship and possible collapse.

These are exceptional, unprecedented times and we are frequently asked whether it is appropriate for a business to continue to collect their debts in the ‘normal’ fashion.

It is likely to be the case that some businesses will be unable to repay their debts in full at the moment, but it is vital that companies take the necessary steps to shield their cash flow, sooner rather than later, and businesses should not be discouraged from acting as they usually would.

The global economy has slowed down and we may be heading for an economic recession. Cases of debt recovery may increase, but sadly with that, insolvent debtors will also increase. It  is vitally important to take the necessary steps to get to the front of the queue of creditors.

Here are some of Sintons’ top tips:

Attempt to resolve any disputes as soon as possible: It will save everyone time and money in the long run. There is a chance that your debtor will still have some reserves to pay you now, rather than in a few months.

Demand a written payment plan: Your credit control process is important and especially now during the current coronavirus situation. Ask your debtor to send you a proposal on how they intend to pay. If you then find yourself in the unfortunate position of having to consider using the legal route to recover the debt, it helps to have an acknowledgment of the debt.

Stay in touch: Financial developments in the past few weeks have been so rapid that the creditworthiness of many businesses have completely changed. It is therefore important that you remain in contact with your debtor, and carefully monitor your debtor’s situation on a daily or weekly basis.

Consider demanding additional securities: If your debtor is unable to meet its payment agreement, it is worth investigating whether they can provide you with securities. A guarantee from the director or board of directors, or even
a form of security from a third-party, may be possible.

Force majeure: Your customers may seek to rely on a force majeure clause in the contract to evade payment. Coronavirus is undoubtedly presenting businesses with unique and new challenges, however debtors are not able to rely on a force majeure clause as a matter of right, and it is important that you seek legal advice when confronted with this from your customer.

Contact Allison at allison.thompson@sintons.co.uk or 0191 226 3719.

Potential challenges post death

Succession planning is important for a number of reasons, including a consideration of tax efficiencies. It is also important to consider whether there is a risk of any dispute arising after your death regarding your estate and, if so, how this risk might be reduced.

In England and Wales a person can leave their estate to who they like. However, if this creates a disgruntled or disappointed party then a lengthy and costly dispute could arise. In this article we consider what might be done in order to avoid this. The most common types of dispute after a person’s death are:

  1. Challenges to the validity of a will;
  2. Claims under the Inheritance (Provision for Family and Dependants) Act 1975;
  3. Proprietary Estoppel claims; and
  4. Administration disputes.

Will challenges

Challenges to the validity of a will are most often brought by those who expect to be included as a beneficiary in that will, but are not (such as an estranged child) and who would receive more from the estate under an earlier will, or by the laws of intestacy. Will challenges are generally brought on the basis that the person making the will either lacked the testamentary capacity to do so, did not know or approve the contents of the will, or was unduly influenced into making it. In the current Covid-19 pandemic other concerns have been raised about people making homemade wills, or executing (signing) wills without the assistance of a solicitor, which could lead to such wills not being valid.

Involving a solicitor in the preparation and execution of your will can help to address these potential challenges. You may be advised to obtain a medical report from your GP or other medical professional which can be used at to fend off any challenge on the grounds of mental capacity. Further, if your solicitor can demonstrate that they explained the clauses of the will to you, whether in writing or person (or both) this can assist in showing knowledge and approval of the will. With regards to undue influence your solicitor may ask to see you alone, without any of the beneficiaries present. Again, a later confirmation of this can be used in defence of any will made. If you are making a will while in self-isolation a solicitor can help guide you to do this properly, particularly in relation to appropriate witnesses and executing the will.

Inheritance (Provision for Family and Dependants) Act 1975 claims

Inheritance Act claims are for reasonable financial provision from a person’s estate. They can be brought by spouses, former spouses, cohabiting partners, children, someone treated as a child of the family (such as a step-child) or by dependants “maintained by the deceased”. In order to reduce the risk of such a claim on your estate you need to consider carefully who you are providing for in your will, and just as importantly, who you are not. If you are giving financial assistance to someone you need to take advice about the contents of your will. You also need to keep your will under review and, if your personal circumstances change, seek advice from a solicitor about how to address this.

Proprietary Estoppel claims

The type of estate dispute most commonly associated with farming families is proprietary estoppel claims. If you make a promise to someone that they will receive property and that person reasonably relies on that promise to their detriment, they may seek to claim on your estate if the promise is not fulfilled. One example could be a child working on the family farm for reduced pay due to assurances that they will inherit the farm on the death of their parents. A later fall out could lead to the farm being left to someone else. In this instance a court may order that the farm passes to the claimant. Each case turns on its own facts.

For these reasons it is important to be open about any promises made. You may wish to sit down with your family and discuss your intentions. You should take legal advice about the necessary steps needed to put any plans into action, such as partnership agreements or declarations of trust.

Administration disputes

Often disputes can arise in the administration of an estate after someone’s death. It could be between the personal representatives appointed, between the personal representatives and beneficiaries, or between beneficiaries themselves. There could be a disagreement about the assets in the estate, whether there have been any lifetime gifts or whether assets have been correctly valued. For these reasons it assists if you keep a record of your assets and any lifetime gifts made.

You should consider carefully who to appoint as executor when making a will. If you do not make a will then the right to administer your estate will fall in accordance with court rules, so could be your spouse or children. If there is a risk of a dispute arising after your death you may want to consider the appointment of an independent third party, such as a solicitor, who can remain neutral when dealing with the estate. Sintons have the Sintons Trust Corporation who can also be appointed as an independent personal representative or trustee.

The importance of seeking advice

Estate disputes appear to be on the rise, but that does not mean that certain steps can’t be taken to try and avoid them, as indicated above. It is important to seek advice and be open with your solicitor about your own personal circumstances, so that they can best advise you about how to deal with any potential issues that could arise after your death. It is easy to put this off and hope that everything will be okay when you are gone. However, the costs of taking advice during your lifetime will be significantly lower than those incurred by your intended beneficiaries at a later date, should a dispute arise. It is better for all concerned to seek to address any possible issues during your lifetime.

Post Purchase Property Disputes

With the easing of the Government restrictions the property market is back in operation. Individuals and organisations can now view properties and proceed with purchases once more.

This serves as a timely reminder that issues can arise from purchasing a property, many of which are not discovered until months or even years after completion. The good news is that there are often legal remedies available and Sintons can advise you of your options and whether you have a worthwhile claim to pursue.

Below is an overview of some of the potential issues that could affect you post purchase of a property.

Misrepresentation

The seller of a property is obliged to complete honestly and accurately the Property Information Form (TA6), and answer any questions put to them to assist the buyer with the purchase of the property. Questions such as whether a property complies with building regulations, whether a property has ever flooded and whether there have been any disputes with neighbouring properties, to name a few. If you find that the seller has provided any information or answers that are not true, it can dramatically alter your enjoyment of your property and you may be able to sue them for misrepresentation. This could involve rescinding the contract and being put back into the position before it was made or alternatively recovering damages.

Surveyor Negligence

A prudent buyer will often arrange to have a survey completed on a property before committing to a purchase. This provides them with peace of mind and an understanding on whether there are any issues with the property that will affect their decision continue with the purchase. Serious issues that are discovered may result in the buyer seeking to renegotiate the purchase price or even walking away from the transaction altogether. This is only possible if the buyer has been provided with the relevant information and where a surveyor has missed something they ought to have brought to your attention, they may have been negligent. If you discover any issues with the property that you were not notified of within any report, you may be able to sue your surveyor for negligence and recover damages.

Solicitor Negligence

Solicitors help guide buyers through the property transaction. Part of their role is to advise the buyer of any issues that may affect the property they are purchasing. Many properties have titles which contain covenants or easements that could affect how the property and land can be used. This can include rights other people have over the property or onerous obligations that might be imposed upon the buyer. It is important that the implications of issues such as these are notified to the buyer to aid in the decision-making process. If you find that your property is adversely affected and your solicitors have failed to inform you, it may be possible to sue them for negligence and recover damages.

The above is not an exhaustive list but provides examples of the types of issues you may experience after purchasing a property. If you have relied upon a representation of a seller that was not true or if you have been let down by a professional, it is important you seek legal advice to understand your options. For further information or assistance please contact Adam Hutton or a member of the Dispute Resolution Team to see how we can help.

Protection of Intellectual Property Rights after Brexit

Intellectual Property (“IP”) is one of the most valuable assets a business can have. In many cases this value translates into millions of pounds in profit, but also in high amounts of money spent to develop, protect and defend this asset. One thing is certain: the more we look after these rights and protect them, the more rewards we collect. Navigating this area of law requires skill and knowledge, and Brexit will present some challenges , if not traps, for the unaware. Significant changes are afoot and will take effect, quite literally, over night, while we welcome the new year on 1 January 2021.

Let’s take a brief look at Trade Marks. Broadly speaking, currently an EU Trade Mark is protected in the UK, as is in all the EU countries, without having to separately register in UK. The same is true for the other categories of rights. Now we find ourselves in what is called a “transition period”, which is the result of a tremendous amount of work and negotiations behind the scenes.

Status quo has been maintained during the transition period, which will end, according to the latest news, on 31 December 2020. The date is called “IP completion day”. The new year will bring a new regime.

What happens after the IP completion day?

The intention is, of course, to have a smooth transition from IP completion day. How many times did we hear this noble intention? Every little time changes occur. The reality may well prove very different. We have to analyse the position from two perspectives : (1) UK rights in the new EU, and (2) EU rights in the new UK.

As for the first perspective, in a nutshell, Brexit has no direct impact on IP rights that subsist, or are registered, as UK rights, such as UK registered Trade Marks (the same goes for UK design right and copyright). Nor does it affect the application to UK rights of the international agreements that underpin the protection of IP rights. That sounds wonderful, doesn’t it?

However, the position in respect of  the second perspective, that of unitary EU IP rights that are enforceable throughout the EU (from 1 January 2021 excluding the UK) is very different. Registered EU Trade Marks (and Community Registered Designs) will no longer cover the UK. The good news is that, part of the “smooth transition” process is that the UK will automatically create new comparable UK Trade Marks and registered designs, if all relevant criteria are met.

The time of registration or emergence of right is essential and can mean the difference between having protection in UK or not. I will explain this below.

Holders of registered EU Trade Marks (EUTMs), Community designs (RCDs) and Community plant variety rights registered or granted before the end of the transition period will automatically become holders of comparable IP rights in the UK.

Holders of unregistered Community design rights and sui generis database rights arising before the end of the transition period will be accorded an equivalent UK right with the same term of protection as the EU right.

This has significant practical consequences, if we consider, for instance, that to obtain registration of an EU Trade Mark takes 5 months if there is no opposition. For the registration to be finalised before 1 January 2021, the application has to be made by the end of July 2020. Time is getting very tight for those who wish to benefit from these provisions.

Applicants for EUTMs, RCDs and Community plant variety rights that have not reached registration by the end of the transition period will have a grace period of nine months to apply for equivalent rights in the UK, taking advantage of the same filing, priority and (for trade marks) seniority dates. Therefore rights-holder must at this stage consider filing UK trade mark applications and claiming priority for those EU trade mark applications that were pending on Brexit day.

Very helpful  registration procedures will be put in place, ensuring that the registration, grant and protection of comparable UK rights (these are, as set out before, those which are already registered in EU before the end of the transition period) will be carried out free of charge by the UK authorities, using the data available in the registries of EUIPO (European Union Intellectual Property Office), the Community Plant Variety Office and the European Commission (which those offices will provide). Right-holders will not have to carry out any administrative procedures or make any applications. Such right-holders will not have to have a UK correspondence address until the end of a three-year period from IP completion day.

Renewal fees will still have to be paid as normal, and it will continue to be possible to surrender rights in the usual way under UK law.

We are reassured by the UK IPO that  there will be no disruption to services or changes to the UK IP system during this transition period. The IPO will convert almost 1.4 million EU trade marks and 700,000 EU designs to comparable UK rights at the end of the transition period. These will come into effect on 1 January 2021.

We should not expect, however, smooth sailing all the time (I dare say that all of the above, complicated as it is,  by comparison to other changes, qualifies as smooth sailing) . There are areas in which the EU’s and UK’s IP laws could start to diverge, for instance the recently adopted Digital Copyright Directive – which the UK government has stated it has no plans to implement, and the coming changes to Copyright Law from 2021. Moreover, the EUIPO has confirmed that after Brexit it will disregard UK Trade Marks and other rights that have been relied on in oppositions filed before Brexit.

The new reality will be that, at the end of all these grace periods, we will face two separate systems with very different sets of rules. Those considering doing it without legal advice to save costs will be on a very dangerous and expensive path.

We can assist companies and individuals who wish to protect their IP rights with making the most of the transition period procedures, and also in the new regime.

Whether you are a UK based business or individual, a European one, or from anywhere else in  the world, our dedicated specialist team is here to help.

For any Intellectual Property queries, registrations and advice please contact Cristina Falzon or Karen Simms at Sintons.

Very professional’ private client team praised for high value work by Chambers

Sintons has again been independently confirmed as one of the leading advisors to private clients in the North of England, with Chambers hailing the firm’s work in high value cases.

The specialist wills, trusts and estates team acts for clients throughout the UK on matters including probate, administration of estates and succession planning, and has also become a leading advisor in contentious cases.

In newly-released rankings, Chambers again rates the team – named private client team of the year at the Northern Law Awards 2019 – among the best in the region and praises its “very professional and efficient” approach.

Two of the team’s senior lawyers – department head Paul Nickalls and contentious specialist Emma Saunders – are named as notable practitioners in the in advising high net worth individuals.

Paul – regularly named as one of the leading lawyers in the North – wins praise for his handling of matters including wills, estate administration and inheritance tax planning in cases where significant assets are involved.

“Wonderful” senior associate Emma, a leading advisor in contentious probate and trust work nationally, is hailed for her “sensible and pragmatic” advice in often very difficult situations.

“I have found Emma to be very understanding, transparent and committed to my case. She is very good at explaining the law and looking at alternative ways to deal with the issues,” said one independent testimonial.

Chambers is an annual independent ranking of law firms and lawyers, assessing all aspects of their specialism and service, based on examples of work, testimonials and interviews with lawyers

Paul Nickalls said: “Our team is rightly recognised on a regular basis as being one of the leading advisors in our field in the North of England and we are delighted to receive this latest independent endorsement from Chambers. We work extremely hard to achieve this kind of recognition and are committed to delivering legal excellence and an outstanding service to every client.

“We handle a lot of cases of great complexity and significant value and that is where our expertise comes to the fore. We have significant capability within our team and are recommended on a national basis on the strength of the service we provide. We are very proud to be regarded in the highest of terms and to again receive such great independent endorsement.”

Dealing with elusive executors

Being a personal representative of a deceased person’s estate is often not an easy task. Personal representatives have to comply with their legal duties and communicate with creditors, debtors and beneficiaries. Failing to act properly can have serious consequences as demonstrated in the case of Frejek v Frejek [2020] where a warrant was issued for the personal representative’s arrest.

A personal representative is an executor who is a person named as such in a will, or an administrator who applies to deal with an estate when there is no will (known as intestacy). Personal representatives are entrusted with the responsibility to carry out the deceased’s wishes, protect the estate and distribute it to the correct beneficiaries. They should act impartially, diligently and honestly. The duties of an executor are set out in Section 25 of the Administration of Estates Act 1925.

Most estates will require a grant in order to administer and distribute the estate. When an executor applies for a grant of probate, or an administrator applies for a grant of letters of administration, they must confirm a legal statement which includes confirmation that:

  1. They are applying on the basis of the last will of the Deceased;
  2. They will collect the whole estate;
  3. Keep full details of the estate; and
  4. Keep a full account of how the estate has been distributed.

Many disputes arise where personal representatives delay in the estate administration, do not keep the beneficiaries informed of progress or there is a disagreement about the assets in the estate. The court has a variety of powers that they can use to ensure that progress is made with the estate administration. These include ordering a personal representative to obtain a grant of probate should they fail to do so, order an inventory and account of the estate to be produced, or in serious cases the removal of a personal representative.

The case of Frejek is a stark warning to personal representatives of the court’s powers where personal representatives fail to carry out their duties. In this case, Brenda Frejek died on 10 April 2009. The deceased had three children. Stephen Frejek, one of the sons, obtained a grant of probate after his mother’s death. Despite the deceased’s other children being beneficiaries of the will and entitled to an account of the estate assets, Stephen failed to keep them informed of the progress, even after the sale of the deceased’s property.

Over 8 years later, the deceased’s other son, Andrew, applied to the court for Stephen to be removed as executor and for Andrew to be appointed as personal representative in his place. Stephen failed to acknowledge service of the claim or engage with the court proceedings and therefore the order was granted without any opposition.

After eighteen months, Andrew obtained an order requiring Stephen to transfer all papers and funds of the estate to Andrew along with an inventory of the estate assets. After numerous unsuccessful attempts to serve the order on Stephen personally and an extension of time given for Stephen to respond to the court, it was eventually served on him by post. The order required Stephen to provide within 28 days:

  • up-to-date estate accounts;
  • the completion statement of the deceased’s property sale;
  • the original grant of probate; and
  • an inventory of the estate assets.

Despite this, Stephen breached the order. Andrew made a committal application for an order that Stephen be sent to prison for contempt of court and again Stephen failed to respond to the court proceedings. The judge considered it appropriate to continue with the matter in Stephen’s absence and held that Stephen was in contempt of court for failing to comply with his obligations set out by the court. A bench warrant was issued for Stephen’s arrest, with him to be brought to the court for sentencing.

This case may be an extreme example but highlights the common issues that can arise in with the administration of estates. Our Contentious Probate team’s expertise means that many of our cases involving difficult personal representatives or beneficiaries, are resolved without the court’s involvement.

Business Interruption Insurance Disputes

If like many businesses you have been financially affected by Covid-19 pandemic, it is reasonable to assume that you have checked your insurance policies to see if Business Interruption Insurance cover might respond.

The introduction of the lockdown on 23 March 2020 and the measures imposed by the Government, such as limiting customers and restricting how a business can operate, meant that businesses have had to adapt to survive.

However, with the forced closures some businesses have not been able to operate at all. Many have sought to rely upon their Business Interruption Insurance, only to discover whilst trying to make a claim, their insurer has declined it stating the policy does not cover Covid-19.

Sintons have been advising businesses who have faced similar issues on their insurance policies.  We can assist your business if you are in doubt about your policy wording.

In response to the number of potential claims, the Financial Conduct Authority (FCA) has commenced test case proceedings in the High Court to seek clarity on the interpretation of various forms of business interruption policy wording. An eight-day hearing will commence on 20 July 2020 with the insurers’ Defences and Reply to be filed beforehand. The FCA mandates that all financial services and products must treat their customers fairly and due to the ambiguity and interpretation being adopting in the wording of some policies, this action serves to make sure this happens.

It is not yet known how far any Judgment against the insurers might be applied to alternative policies due to the specific wordings that have been chosen to be part of the test case. However, the FCA have made it clear that not all policies will be affected by the outcome of the test case; particularly those that only have basic cover for business interruption as a consequence of property damage.

Instead, the key areas that will feature are clauses concerning notifiable diseases and the proximity to a premises, denial and prevention of access in addition to government restrictions. There are also important questions to be asked about causation and what must be the cause of the loss (if there is one) to the business to allow a policy to respond. Furthermore, any Judgment could be appealed with some anticipating this will be heard in the Supreme Court for the final determination.

These remain difficult times and the effects of Covid-19 can still be seen with businesses hoping the outcome of the test case will be favourable in respect of their policies. As that outcome is potentially months away, many businesses simply cannot afford to wait. Businesses should be engaging with their insurer now to assess where they stand and ensure that they do not fall foul of any policy notification requirements.

If your business has been affected by Covid-19 and you would like further information about Business Interruption Insurance or if find yourself in a potential dispute, please contact Adam Hutton or a member of the Dispute Resolution Team to see how we can help.

Will disputes

Senior Associate Emma Saunders and Solicitor Emelie Vardon from the Contentious Probate department at Sintons have recorded a series of four podcasts. Today’s edition concentrates on will disputes.

Click on the icon below to listen to the podcast.

 

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 5

Ask the Experts weekly Q&A from Sintons’ Employment Team – episode 5 – with Keith Land and Ailsa Hobson.

These sessions have come about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also been giving some thought as to what work may look like following the relaxation of the current restrictions.

So, In order to give you an opportunity to share in some of that wisdom, the team have opened themselves up to these Q&A sessions which are going to last until the end of May. During these short, bite sized sessions, members of the employment team will answer three questions, although it will actually be four today, (either COVID-19 related or not) that you haven’t either quite got to the bottom of or that your employees persistently ask you.

Please click on the image below to watch the session.

Relief from forfeiture in inheritance cases

Under the Forfeiture Act 1982, a person who unlawfully kills another is prevented from inheriting any of the deceased’s estate. Many would expect this to be the case. The Court does however have a discretion to waive forfeiture. Two cases in 2020 concluded it would be unjust for the forfeiture rule to apply. This allowed the claimants in both cases to inherit from their late husbands’ estates when they had caused their deaths.

In Amos v Mancini and others [2020] a 74 year old woman, Sandra Amos, was allowed to inherit from her husband’s estate after her careless driving caused his death. Mrs Amos and her husband were travelling from Wales to Canterbury to attend a funeral. After Mr Amos became unwell, they turned home, became lost and were driving for 10 hours. Mrs Amos failed to brake when approaching queuing traffic, at a time when it was raining and getting dark. Mr Amos was killed in the collision from multiple traumatic injuries.

Mrs Amos pleaded guilty to causing death by careless driving. Mr Amos’ will left his estate to Mrs Amos with gifts to their children from previous marriages and a grandchild if she did not survive him. Mrs Amos was also due to inherit the deceased’s share of their jointly owned matrimonial home by the law of survivorship. Mrs Amos’ application for relief from forfeiture under the Forfeiture Act 1982 was challenged by Beverly Mancini, Mr Amos’ daughter.

The Court held that the forfeiture rule applied in cases of causing death by dangerous driving. However, the Court has discretion to waive Mrs Amos’ forfeiture of her inheritance. HHJ Jarman considered Mrs Amos’ guilty plea at the first opportunity, the tragic circumstances of the accident and that two of the beneficiaries had not contested the claim relevant to the case. For the forfeiture rule to apply would be unjust and disproportionate to Mrs Amos’ accountability and so she was granted relief from forfeiture and entitled to her inheritance from Mr Amos’ estate.

This case was shortly followed by another tragedy involving an application for relief from forfeiture in Challen v Challen [2020]. In 2011 Sally Challen was found guilty of murdering her husband after suffering from years of domestic abuse. Mr Challen died intestate which ordinarily would mean Mrs Challen would inherit his estate. Mrs Challen’s murder conviction was quashed and the case retried where she later pleaded guilty to manslaughter.

Mrs Challen was subject to years of coercive control from her husband whose behaviour was described as “contemptuous, belittling, aggressive or violent”. After attempting to divorce her husband, Mrs Challen was manipulated by the deceased into a reconciliation on the terms of a post nuptial agreement including provision that Mrs Challen would stop smoking and hand over the house if they divorced. It was understood that Mr Challen had no intention to reconcile with Mrs Challen and was having an affair. On learning of his deception, Mrs Challen repeatedly struck the deceased on the back of the head with a hammer, killed him and attempted to take her own life.

In the criminal retrial, the judge commented on Mrs Challen’s abnormal psychiatric state, and how she was trapped and manipulated by the deceased which aided to reduce the offence from murder to manslaughter by reason of diminished responsibility. The extraordinary, tragic circumstances, deceased’s coercive control and Mrs Challen’s mental state led to the decision by HHJ Matthews that the forfeiture rule should be waived in this case. Therefore, Mrs Challen is now entitled to inherit her late husband’s estate.

HHJ Matthews’ warning in Challen made it clear that simply suffering from coercive control does not automatically result in the forfeiture rule being disapplied. All cases are fact specific and must be decided on their own merits. This something that everyone ought to be mindful of when considering the circumstances of relief from forfeiture applications.

As specialists in inheritance matters, our Contentious Probate team have the experience and expertise to advise on relief from forfeiture.

Interest on overdue invoices

Allison Thompson, Head of Debt Recovery at Sintons recorded a podcast that concentrates on ‘interest on overdue invoices’.

Click on the icon below to listen to the podcast.

The inheritance act: a guide for claimants

Senior Associate Emma Saunders and Solicitor Emelie Vardon from the Contentious Probate department at Sintons have recorded a series of four podcasts. Today’s edition concentrates on the inheritance act: a guide for claimants.

Click on the icon below to listen to the podcast.

Ask the Experts weekly Q&A from Sintons’ Employment Team – episode 4

Ask the Experts weekly Q&A from Sintons’ Employment Team – episode 4 – with Keith Land and Ailsa Hobson.

These sessions have come about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also been giving some thought as to what work may look like following the relaxation of the current restrictions.

So, In order to give you an opportunity to share in some of that wisdom, the team have opened themselves up to these Q&A sessions which are going to last until the end of May. During these short, bite sized sessions, members of the employment team will answer three questions, although it will actually be four today, (either COVID-19 related or not) that you haven’t either quite got to the bottom of or that your employees persistently ask you.

Please click on the image below to watch the session.

Sintons’ Employment Seminar – Managing the End of Furlough

Sintons’ Employment team, in partnership with Reed HR, have recorded the following complimentary online employment law seminar.

This seminar focuses on how to manage the end of furlough & potential restructuring.

Please click on the play button in the bottom left corner of the below image to start viewing.

To follow the full size slides the team are using throughout the presentation, please click here prior to commencing watching.

 

Sintons lawyer appointed as Deputy District Judge

A lawyer from Sintons has secured a prestigious appointment to the Judiciary.

Cristina Falzon has been appointed a Deputy District Judge on the North Eastern Circuit by the Lord Chief Justice, which will see her overseeing cases in courts across the region.

Cristina, a highly-rated dispute resolution solicitor, passed the stringent selection process at the first time of application and will take up her new role later in the year.

She will continue to be part of Sintons’ fast-growing dispute resolution team, which was named dispute resolution team of the year at the Northern Law Awards 2019, where Cristina and her colleagues handle cases of the highest complexity on behalf of clients across the UK.

The selection process for new judicial appointments is notoriously difficult, with Cristina completing a series of assessments, including online exams, a selection day, mock hearings and an interview, all carried out prior to the COVID-19 lockdown. She is now undertaking training in preparation for her to take up her Deputy District Judge role in the coming months.

Cristina said: “To become a member of the judiciary is something I have always wanted to do, although I confess I am still in awe I actually made it first time. I was geared up to try at least a few times until I made it, but am delighted to have been appointed at my first time of applying for such a prestigious position.

“I will be able to combine my new role with my work at Sintons, and will continue to handle my client work as usual. We are a very busy and fast-growing team and it is a great environment to be part of. I am grateful to Sintons for their support with this and I very much look forward to carrying out my Deputy District Judge role in the near future.”

Mark Quigley, managing partner of Sintons, said: “This appointment is a great honour for Cristina and testament to her ability and talent – you do not become a judge unless there is a high degree of confidence on the part of the Lord Chief Justice that the individual in question is worthy of the role.

“Cristina is an excellent lawyer and we see first-hand the capability she has in her specialist field of work, and the commitment she shows to her clients and colleagues alike. We are all delighted her hard work has seen her achieve such a prestigious appointment, as well as fulfilling a long-held personal goal. Our congratulations go to Cristina and we wish her luck with her new role.”

Ask the Experts weekly Q&A with Sintons’ Employment Team – episode 1

Ask the Experts weekly Q&A from Sintons’ Employment Team – episode 1  – with Keith Land and Ailsa Hobson.

These sessions have come about due to the employment team here at Sintons having been inundated with COVID-19 and furlough questions following the introduction of the Coronavirus Job Retention Scheme and the ever changing government guidance.

The team has also been giving some thought as to what work may look like following the relaxation of the current restrictions.

So, In order to give you an opportunity to share in some of that wisdom, the team have opened themselves up to these Q&A sessions which are going to last until the end of May. During these short, bite sized sessions, members of the employment team will answer three questions, although it will actually be four today, (either COVID-19 related or not) that you haven’t either quite got to the bottom of or that your employees persistently ask you.

Please click the image below to listen.

COVID-19 Q&A | Sintons | Dispute Resolution

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

We will bring you a question and answer per day for the next few weeks.

Q – I am a residential landlord with nuisance tenants. Is it true I cannot evict them at this time due to the Government protection afforded to tenants?

A – Yes, and no. The Coronavirus Act 2020, which came into force on 26 March, has implications for private, residential landlords.

The usual process for possession of residential property from tenants begins with the landlord serving a notice to quit on the tenant, either under section 8 or section 21 Housing Act 1988. Ordinarily, service of such a notice marks the beginning of a notice period that can range from two weeks to two months, depending on the grounds upon which the landlord relies for recovering possession, after which the tenant must vacate the property or the landlord may apply to Court for a Possession Order. Applications for possession must be made within six months of a section 21 notice or 12 months of a section 8 notice, or the landlord must restart the process.

The new legislation does not prevent landlords from serving notices to quit on tenants. However, all the statutory notice periods for notices to quit that are served from 26 March 2020 until at least 30 September 2020 (there is scope to lengthen this period if necessary) have been extended to three months. This extended notice period applies irrespective of the grounds upon which the landlord seeks possession. The notice periods given by any notices to quit that were served before 26 March 2020 remain unaffected.

These changes apply regardless of whether the notice to quit is to be served for reasons related to Coronavirus.

The Act does not prohibit landlords from starting possession proceedings. However, the Master of the Rolls has agreed with the Lord Chancellor that all new and ongoing housing possession proceedings will be suspended from 27 March 2020 for an initial period of 90 days. The suspension period may be extended if necessary.

In practice, this means that landlords can still apply for Possession Orders after the expiry of the relevant notice period, but those applications will not be allowed to reach a stage in which the tenant can be evicted until at least 25 June 2020.

Housing possession proceedings that started before the Act came into force and those relating to housing occupied under a licence will also be suspended. It is not clear how this will affect the enforcement of Possession Orders that have already been granted, but there may be practical difficulties for bailiffs to maintain social distancing while carrying out such enforcement.

* For advice on this or any other dispute matter, please contact David Summerhayes, partner in the specialist dispute resolution team at Sintons, on david.summerhayes@sintons.co.uk or 0191 226 3717.

COVID-19 Q&A | Sintons | Banking & Finance

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

We will bring you a question and answer per day for the next few weeks.

Q – My business has a loan from a bank with regular repayments being made. I am worried that in the current economic circumstances, the business won’t be able to make the repayments. What should I do?

A – Find a copy of your loan agreement and review the document. If you don’t have a copy, ask your bank for one or, if a solicitor acted on your behalf, ask them for a copy of the signed document.

Speak to your banker and explain the problems the business is currently facing so that they can work with you to discuss the options available.

Loan agreements contain many different terms and it will probably not just be the repayment obligations that need to be reviewed. Other clauses which the business may have problems complying with are:

Financial Covenants – these are financial calculations which are calculated on a regular basis (monthly/quarterly depending on the terms of your loan agreement). If cash flow in the business has dramatically reduced and you have a financial covenant that monitors cash flow you will need to speak to your bank about an immediate or future covenant breach.

Loan to Value – the value of any property you own which has been provided to the bank as security against the amount of your debt. This is an ongoing covenant and one which in the current climate is likely to be breached with property values falling.

Undertakings – statements that are repeated on set dates in accordance with the loan agreement. These statements, subject to the exact wording, have to be “true and correct” when made and repeated. It may be that some of the statement are no longer true and correct in the current climate.

Material Adverse Effect or Material Adverse Change (MAC) – MAC provisions typically allow for a lender to call an event of default in situations where the borrower’s position is substantially deteriorated from the date that they entered into the loan agreement. The provisions tend to be heavily negotiated so it is important you understand the MAC clause applicable to your business. From our discussions with all the major banks the clear feeling is, for these lenders, not to rely on MAC clauses but work together with their customers however all borrowers should be mindful of these clauses if the time comes when your lender can no longer continue to support the business.

Cessation of Trading – the majority of loan agreements contain an event of default if the borrower ceases or threatens to cease trading. If you have had to do so as a result of the Governments instructions you will need to discuss this with the bank.

Abandonment – if your loan is to finance a development it is likely to contain a clause whereby an event of default occurs if the development is abandoned for more than a set period of days. The earlier you discuss matters with your lender generally speaking the more favourable they will be to working with you and the business.

Tenant Breaches – if your loan agreement is dependent upon rent from tenants you will need to look carefully at the covenants regarding the income from these tenants not just in terms of financial covenants but also if the loan agreement contains any clauses regarding key tenants and their own financial status, occupancy levels, tenant breaches.

The above are just some of the clauses that are most likely to be relevant and ones which you will need to discuss with your bank. We can help you to identify the relevant clauses, discuss the same with your bank and propose amendments or temporary waivers to ensure your business remains viable and functioning during the pandemic and thereafter.

Possession of residential property – an update

The Coronavirus Act 2020 received Royal Assent on 25 March 2020 and came into force on 26 March 2020. This legislation is wide ranging and this article focuses on how it affects private, residential landlords.

The usual process for possession of residential property from tenants begins with the landlord serving a “notice to quit” on the tenant, either under section 8 or section 21 Housing Act 1988. Ordinarily, service of such a notice marks the beginning of a notice period that can range from two weeks to two months, depending on the grounds upon which the landlord relies for recovering possession, after which the tenant must vacate the property or the landlord may apply to Court for a Possession Order. Applications for possession must be made within 6 months of a section 21 notice or 12 months of a section 8 notice, or the landlord must restart the process.

For more information about the normal procedure for recovering possession please see our guide to obtaining possession.

Notices to Quit

The new legislation does not prevent landlords from serving notices to quit on tenants. However, all the statutory notice periods for notices to quit that are served from 26 March 2020 until at least 30 September 2020 (there is scope to lengthen this period if necessary) have been extended to three months. This extended notice period applies irrespective of the grounds upon which the landlord seeks possession.

However, the notice periods given by any notices to quit that were served before 26 March 2020 remain unaffected.

The prescribed forms for notices to quit have been updated on the gov.uk website (Form 6A for a section 8 notice or Form 3 for a section 21 notice) and the new versions must be used until at least 30 September 2020.

These changes apply regardless of whether the notice to quit is to be served for reasons related to coronavirus.

Possession Orders

The Act does not prohibit landlords from starting possession proceedings. However, the Master of the Rolls has agreed with the Lord Chancellor that all new and ongoing housing possession proceedings will be suspended from 27 March 2020 for an initial period of 90 days. The suspension period may be extended if necessary.

In practice, this means that landlords can still apply for Possession Orders after the expiry of the relevant notice period, but those applications will not be allowed to reach a stage in which the tenant can be evicted until at least 25 June 2020. Housing possession proceedings that started before the Act came into force and those relating to housing occupied under a licence will also be suspended. It is not clear how this will affect the enforcement of Possession Orders that have already been granted, but there may be practical difficulties for bailiffs to maintain social distancing while carrying out such enforcement.

Time Limits for Issuing Applications for Possession Orders

The Act does not affect the existing time limits for starting possession proceedings after serving a notice to quit. If that time limit is due to expire while the Act is in force, landlords are likely to be faced with the following choice:

  • Issue proceedings that will be immediately suspended;
  • Give the tenant a new notice period of three months by serving a new notice to quit; or
  • Wait until the Act is no longer in force then give the tenant a new notice period of between two weeks and two months, depending on the grounds upon which the landlord seeks possession.

Which of the above options is best will depend on a number of variables, including when the landlord must make the decision and whether the suspension of possession proceedings, and the time in which the Coronavirus Act remains in force, are likely to be extended.

Rent

If the tenant remains in occupation after the relevant notice has been served, even if the notice period has expired, rent will continue to accrue and become due pursuant to the terms of the lease (or pursuant to a statutory periodic tenancy if the tenant does not vacate the property after the lease term ends). After the property has been returned to the landlord, or after the Coronavirus Act ceases to be in force, landlords and tenants will be expected to co-operate to establish an affordable repayment plan in relation to any overdue rent.

In order to alleviate the impact non-payment of rent is likely to have on landlords, the government and the FCA have suggested that lenders offer a three-month “mortgage payment holiday” to buy-to-let mortgages. This has not been written into law, but many lenders have committed to honouring the suggestion and landlords should discuss any financial difficulties they face with their lenders.

Conclusion

Residential landlords seeking possession of their property can take action but should be prepared for lengthy delays.

The process of obtaining possession may be started, but a notice period of three months must be given before the tenant is required to leave. Where notice to quit has already been served and the notice period has expired, possession proceedings may be issued in Court, but no Possession Order will be given until at least 25 June 2020. Those time periods are liable to be extended.

However, rent will continue to accrue and fall due while the tenant occupies the property, and financial assistance should be available to landlords from their lenders.

Possession of Residential Property – 25/3/2020

The “Coronavirus Bill” is currently making its way through Parliament and is expected to be enacted in the coming days.

One of the functions of this emergency legislation is to prevent the eviction of tenants from social and privately rented accommodation during the Covid-19 outbreak by suspending evictions and preventing residential landlords from issuing any new Court proceedings for the possession of property.

The legislation is drafted to allow landlords to serve section 8 or section 21 notices on tenants in the usual way (please see our guide to obtaining possession for more information) but with changes to the statutory notice periods before possession proceedings can be brought. The usual notice periods that must be allowed before bringing possession proceedings in relation to such notices vary from two weeks to two months, depending on the grounds upon which the landlord relies for recovering possession. However, these are to be extended to three months for any and all section 8 or section 21 notices that are served from the day after the law is passed until at least 30 September 2020, irrespective of the reason for the notice.

It is not clear at this stage how the government intends to achieve its stated aim to suspend all evictions for three months, as the draft legislation does not appear to directly affect the enforceability of those notices that have already been served. However, a number of impending possession hearings have already been proactively adjourned by the Court until at least late June 2020, despite the proposed legislation not yet being in force, on the basis that the government has made its intentions clear.

Rent will continue to accrue and become due pursuant to the terms of the lease (or pursuant to a statutory periodic tenancy if the lease term ends but the tenant does not vacate the property) if the tenants remain in occupation after the relevant notice has been served. After the property has been returned to the landlord, or after the emergency legislation ceases to apply, landlords and tenants will be expected to co-operate to establish an affordable repayment plan in relation to any overdue rent.

In order to alleviate the impact this is likely to have on landlords, a three-month “mortgage payment holiday” is expected to be extended to buy-to-let mortgages. It is not clear whether this will be written into law or if lenders will be given non-binding “guidance”.

Further detail regarding this rapidly changing area of law will be provided as it becomes available.

Possession of Residential Property – Important Coronavirus Update

The Government has announced that its “Emergency Coronavirus Bill” will prevent the eviction of tenants from social and privately rented accommodation during the Covid-19 outbreak.

Emergency legislation is expected to be enacted in the coming days that will suspend evictions and prevent residential landlords from issuing any new Court proceedings for the possession of property. The suspension is expected to last at least three months but may be extended to suit the circumstances.

How the legislation will affect landlords ability to serve section 8 or section 21 notices on tenants or whether it will affect the status of those notices that have already been served, is yet to be seen. However, it is clear that such notices will not be capable of enforcement through Court proceedings until at least the last week of June.

While rent will continue to accrue and become due pursuant to the terms of the lease (or pursuant to a statutory periodic tenancy if the lease term ends but the tenant does not vacate the property) while the tenants remain in occupation, tenants cannot be evicted for failing to pay such rent, or for any other reason, during the period the legislation remains in force. Once the legislation is lifted, landlords and tenants will be expected to co-operate to establish an affordable repayment plan in relation to any overdue rent.

In order to alleviate the impact this is likely to have on landlords, the legislation is also expected to provide for a three-month “mortgage payment holiday” to be extended to buy-to-let mortgages.

Further detail regarding this rapidly changing area of law will be provided as it becomes available. For a broader insight into the usual process for obtaining possession of property, please see our website.

Meet the Private Client Team with Emelie Vardon

What is your role in the private client team and how long have you been at Sintons?

I am a solicitor at Sintons specialising in contentious wills, trusts and estate matters, in addition to disputed Court of Protection issues. I have been at Sintons for over 2 years, after completing my training contract at the firm and qualifying as a solicitor in September 2019.

Tell us about your career to date…

I completed my MLaw (Exempting) Degree at Northumbria University, incorporating the Legal Practice Course, graduating in July 2017 with first-class honours. I commenced my training contract at Sintons in September 2017 and over the course of 2 years, I undertook 6 months in each of Private Client, dealing with personal and family matters, Employment, Real Estate and Contentious Probate (where I have now qualified).

What attracted you to Sintons?

Despite originating from outside of the North East, I was already aware of Sintons’ excellent reputation, not only in relation to its diverse areas of work, including its private client team, but also for its trainee solicitor programme. I knew training at Sintons would provide me with the greatest start to my legal career and ensure I was well-equipped with the knowledge and experience required to start my journey as a qualified Solicitor.

What does your role involve?

As part of our growing contentious probate team, I advise on disputes concerning a deceased’s estate which often involves will challenges, Inheritance Act claims and the administration of the estate. I also work closely with our private client team to ensure our clients receive comprehensive advice on both non-contentious and contentious matters that may arise on their death. I often work alongside the dispute resolution team due to the litigious nature of our work, our expertise overlaps which assists in a full service to clients to ensure things are dealt with effectively.

In connection with my work, I am also studying on the specialist Association of Contentious Trust and Probate Specialist (ACTAPS) course to develop my expertise in this field from the outset of my career.

What have been your personal highlights to date?

My appointment as a qualified solicitor specialising in contentious trusts and probate matters is a personal highlight and one of my biggest achievements to date after working within the team for the final part of my training. I am lucky to have secured a permanent role at Sintons where I get to work alongside outstanding lawyers such as Emma Saunders, who is known for her strong and growing reputation in this field (Legal 500 2019) and the Northern Law Awards 2019 private client and dispute resolution teams of the year.

The private client team is one of the most highly-rated in the North of England. What are the advantages of being part of it?

Having spent six months of my training contract in non-contentious private client and a further six months in contentious private client matters, I could not have chosen a better team in which to qualify, both in terms of expertise and general team dynamic. I am consistently challenged to aid my development and I have been involved in a variety of complex matters from the early stages of my career.

How does Sintons differ from other firms you have worked in?

Everyone at Sintons is very welcoming and having trained at the firm, I have had the opportunity to get to know and work with all staff right up to partner level. This has really helped upon my qualification, particularly with internal referrals as I already know who specialises in which area of law. I do feel appreciated at Sintons for my contribution to work but also in promoting the firm and our CSR activities, which makes it all worthwhile.

What are your interests outside of work?

Outside of work, I am a music enthusiast and enjoy playing the flute, piano and saxophone and being part of a choir. I also spend a lot of my time out with my cocker spaniel, discovering some of the wonderful places the North East has to offer.

Meet the Private Client Team with Emma Saunders

What is your role in the private client team and how long have you been at Sintons?

I joined Sintons 2 years ago to head up the contentious trusts and probate team. I assist clients who find themselves in the midst of a dispute about a deceased person’s estate. It may be there are concerns about the validity of the deceased’s will, or about the provision that has (or has not) been made for somebody on the deceased’s death. Quite often I help clients who are unhappy with the way an estate is being dealt with, such as a lack of information or accounts. I also advise on disputes in the Court of Protection relating to the assets of those people who have lost the capacity to manage their own financial affairs, and who have, or need, an attorney or deputy assisting them.

Tell us about your career to date…

I studied Economics and Social Policy at Newcastle University and worked in the public and voluntary sectors at the start of my career. I undertook some advice work and through this decided that I wanted to become a solicitor. I completed the law conversion course and LPC at Northumbria before doing my legal training at a firm in London. On qualification as a solicitor I specialised in trust and estate disputes, along with Court of Protection matters. I practiced law in London for a number of years before relocating to Newcastle in 2017 and starting at Sintons.

What attracted you to Sintons?

I was attracted to Sintons because the firm was keen to offer a contentious probate specialism to increase the breadth of the firm’s offering to clients and demonstrated a strong commitment to building such a legal practice. I knew the firm had a strong and highly regarded private client team who would support me in developing this growing business area. I felt that Sintons as a firm was really “on the up” and I wanted to be a part of that development.

What does your role involve?

My role involves advising clients on a range of issues related to the estates and finances of those who have died, or who have lost capacity. I deal with a wide variety of different legal issues and no two cases are the same. Many of my clients’ cases are resolved through negotiation or mediation, while others require the involvement of the court. It is my role to guide and support clients through the litigation process. Many of my clients are distressed and grieving so, along with more traditional legal advice, a lot of time is spent listening to clients and helping them deal with the complex emotions that estate disputes can cause.

What have been your personal highlights to date?

One recent personal highlight has been resolving a complex will dispute and Inheritance Act claim for a vulnerable client at a mediation this year. It meant that a court hearing could be avoided, thereby reducing the costs and stress for the client. The settlement achieved will have a positive and lasting impact on the client for the rest of his life. I was also pleased to have been included in the Chambers High Net Worth legal directory as one of only 7 solicitors in the North East and Yorkshire recommended for private wealth disputes work, along with inclusion in the recent Legal 500 directory as a “rising star”.

The private client team is one of the most highly-rated in the North of England. What are the advantages of being part of it?

One of the main advantages of being part of our team is that the people involved are knowledgeable, supportive and keen to do the best for clients, but are also fun to work with! We have a range of expertise within the team, and the wider firm, which means we can tap into specialist areas to provide a comprehensive and cost-effective service to clients.

How does Sintons differ from other firms you have worked in?

Sintons is an incredibly friendly place to work and the firm is committed to retaining that ethos. The firm reward staff through fun treats such as a visit from the ice-cream van in the summer or the pancake van on Shrove Tuesday. Sintons is able to offer a fantastic range of services to clients while at the same time not being a firm in which you feel lost by the sheer volume of people.

25 years too late for Inheritance Act claim (or not!)

The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) allows certain individuals to bring a claim for reasonable financial provision from a deceased’s estate. Such claims must be issued within 6 months from the date of the grant of probate. Otherwise, claimants need to apply to the court for permission to bring the claim out of time, with good reasons to explain the delay. Traditionally, it was accepted that only relatively short periods of delay will be permitted unless the court considers there to be exceptional circumstances.

In 2019, two cases involving claims under the 1975 Act, Cowan v Foreman [2019] and Bhusate v Patel and others [2019], caused consternation amongst contentious probate lawyers. Mr Justice Mostyn, at first instance in Cowan, refused permission to allow a 1975 Act claim to be brought 17 months out of time. This was followed by the decision of Chief Master Marsh in Bhusate, to grant permission for a claim to be pursued after nearly twenty-five years’ delay.

Decisions in both cases were subject to appeal. In Cowan, the Court of Appeal allowed the claimant permission to commence her 1975 Act claim out of time based on Mostyn J’s failure to consider all the relevant factors or have proper regard to all the circumstances of the case, as required under the 1975 Act. The appeal in Bhusate, heard in the High Court in December 2019, has failed and was dismissed.

In the case of Bhusate, Mr Bhusate died without a will (intestate) on 28 April 1990 which meant that his estate was divided between his wife and his children. Mrs Bhusate, born in India, speaks and understands very limited English. Together they had one child. Mr Bhusate had five children from his first marriage, who had considerable ill-feeling towards Mrs Bhusate.

Mrs Bhusate and one of her stepdaughters, Mangala, took out a grant of letters of administration on 12 August 1991 which recorded the net value of the estate at £137,449.70. At the time of his death, the property was valued at £135,000 and in order for Mrs Bhusate to receive her share, the property needed to be sold. It was put on the market in 1990, however, it failed to sell and no further steps were taken by any involved to administer the estate. At the date of the first judgment, the value of the property was in the region of £850,000. Mrs Bhusate continued to live in the property with her son, despite it remaining registered in the sole name of her deceased husband.

In September 2018, the claimant, Mrs Bhusate, came before the court with claims relating to her interest in the property and for payment of the statutory legacy (plus interest at 6% per annum) she was entitled to upon Mr Bhusate’s death. The claims were struck out. Her claim concerning her statutory legacy was statute barred and no longer enforceable. Mrs Bhusate and Mangala were also removed as administrators of the estate.

This left Mrs Bhusate without any inheritance from her husband’s estate and no interest in the property in which she resided. Her only remaining course of action was under the 1975 Act for reasonable financial provision, for which she required the court’s permission to bring a claim 25 years out of time. Given the first instance decision in Cowan, the expectation was that permission would be refused.

However, the Chief Master granted her permission following the guidance in the case of Berger v Berger [2014], on the basis that the merits of her claim were strong and the delay was due to the difficult relationship between Mrs Bhusate and her stepchildren, which prevented any agreement in the sale price of the property. The court was of the view that the stepchildren had obstructed the sale of the property and did nothing to break the impasse and without permission, Mrs Bhusate would have no other remedy and would be left homeless.

The stepchildren appealed the decision, arguing, amongst other things, that the Chief Master erred in applying the principles from the Berger case by taking into account irrelevant matters, in concluding that the merits of Mrs Bhusate’s claim were strong and deciding that the 25 year delay was adequately explained. Further, another recent case of Begum v Ahmed [2019] was highlighted, that allowed a claim less than 2 years out of time, in which the delay was described as lengthy and significant.

In deciding to grant permission for a claim under the 1975 Act out of time, the court has wide, ‘unfettered’ discretion. On appeal, the court is limited to a review of the discretion exercised or law applied by the first instance court. Mr Edwin Johnson QC dismissed the appeal. He concluded that the Chief Master did not err in his decision or take into account irrelevant matters, particularly in deciding that the claim met the threshold required for an arguable case, in analysing the evidence to consider the merits of the claim, or that the delay had been adequately explained. The Chief Master’s analysis was held to be ‘thorough and legitimate, and did not involve any errors of law’.

It is important to note that all decisions are fact specific and in particular, Bhusate, is clearly an unusual case and the period of delay ‘very exceptional’. All claimants should be wary of the limitation period and ensure that claims under the 1975 Act are made promptly.

If you are considering an Inheritance Act claim please contact our specialist Contentious Probate team to discuss it. Emma Saunders is a Senior Associate specialising in these matters and can be contacted on 0191 226 3293 or at emma.saunders@sintons.co.uk.

Contentious trust and probate team hailed as a “go-to practice” by Legal 500 2019

The specialist contentious trust and probate team at Sintons has won praise from Legal 500 2019 for its outstanding capability and client service.

The team is singled out as a “go-to practice” in disputes as well as for having a full member of the Association of Contentious Trust and Probate SpecialistsEmma Saunders – who wins plaudits for her work.

The team is routinely instructed on a national basis to act in complex disputes, and is hailed for its expertise in a range of matters including Inheritance Act claims, administration disputes and Court of Protection disputes, as well as for being “committed to its clients – they don’t see them as fees but as people”.

Angus Ashman, head of the team, is highlighted for his long-standing reputation in this field, with senior associate Emma Saunders again being named as a rising star of the legal world.

Emma, hailed as a “particular expert” in contentious probate, is praised for her “measured and robust” approach with “honesty, transparency and commitment to her clients”.

Mark Quigley, managing partner of Sintons, said: “Alongside the strength of our wills, trusts and probate team, we have an outstanding specialist contentious department which is building a reputation nationally for its capability. Angus and Emma are two of the leading names in this area in the North and probably beyond, and they are making strong gains in this area of work across the UK. It is very pleasing that this has been recognised by Legal 500 2019 with another very strong ranking and further praise for the work of this growing department.”

Dispute resolution team rated highly by Legal 500 2019

The dispute resolution team at Sintons has been hailed by Legal 500 2019 for its strength and expertise.

The specialist department was praised for its capability in both commercial and property litigation, with Legal 500 saying it is “noted for its partner-led advice”.

Angus Ashman, head of the dispute resolution team – which won team of the year at the Northern Law Awards 2019 – wins particular praise for his work and for the lead role he plays in many complex matters. He is hailed for being “professional, prompt with his responses and helpful when the going gets a little tense”.

Its work handling disputes in specialist sectors including healthcare, property and highway infrastructure, combined with an array of national clients, wins Sintons a high ranking in Legal 500 2019.

Other key members of the team, including partner Graeme Ritzema and associate Aimee Hubbard, are also highlighted for their work.

The department has seen strong levels of growth in the recent past, with new work won across the UK and a number of key new additions being made to add further strength to the team.

Mark Quigley, managing partner of Sintons, said: “Our specialist dispute resolution team has seen particularly strong growth in the recent past, adding to the longstanding reputation we have in this area, and its work is rightly reflected in these new Legal 500 rankings. Angus Ashman leads a very strong team, and he himself is a nationally known and respected name in this field, and we continue to add new capability to the department as it continues to grow.

“This endorsement from Legal 500 adds to the recent success at the Northern Law Awards in demonstrating that our dispute resolution team is indeed one of the leaders in its field in the North of England.”

Trainee solicitor qualifies into dispute resolution team

A young lawyer has secured a role at Sintons haven successfully completed her training contract and being rewarded with a position in the firm’s award-winning dispute resolution team.

Emelie Vardon, who has been a trainee at Sintons for the past two years, has now completed her studies and training to become a solicitor in the firm.

She spent the final part of her training contract within Sintons’ dispute resolution team – named dispute resolution team of the year at the Northern Law Awards 2019 – and has now been given a permanent role within the department, in recognition of her efforts and capability.

Emelie will specialise in contentious probate work, a fast-growing area of business for Sintons, with the team regularly being instructed in the most complex of matters across the UK. She will work closely with senior associate Emma Saunders, who is regularly cited as one of the leading names in the North of England to work in this niche area of law, to help grow the department further.

Emelie said: “Sintons has been a superb place to complete my training as a solicitor. I have worked alongside outstanding lawyers who have really supported my development, and I am delighted to have secured a permanent position within the firm. I specialised in dispute resolution in the final stages of my training so am particularly pleased to qualify into that department. Sintons handles work from across the UK, and has a very strong reputation for its ability to handle the most complex matters, and I have already learnt a huge amount. I look forward to continuing to develop my knowledge and capability in this area.”

Angus Ashman, head of the dispute resolution team at Sintons, said: “We have been very impressed with the contribution Emelie has made during her time with us as a trainee and are pleased to reward that by appointing her as a solicitor in the team. We have seen very significant levels of growth in the recent past, with continuing new instructions coming in from across the UK, and we are pleased to add someone of Emelie’s calibre to the department as we push on with our growth.”

The Pre-Action protocol for debt claims and a Letter Before Action to an Individual

Whether you, as a business, or your solicitor are sending a Letter Before Action or a Letter Before Claim to an individual or sole trader, compliance must be had to the Pre-Action protocol for debt claims. You can review the Protocol here.

If this Pre-Action protocol is not followed this can be detrimental to any future claim as the Court may impose sanctions on any party that fails to comply. Note that the Pre-Action protocol does not apply to business to business debts unless the debtor is a sole trader.

The protocol aims to promote early communication between the parties, enable the parties to resolve the dispute in a cost-effective way without the need for court proceedings and encourages the parties to act reasonably and in a proportionate manner.

The Letter Before Action must include the following information:

  • The amount of the debt
  • Whether interest or other charges are accruing
  • Where the debt arises from an oral agreement:
    • Who made the agreement;
    • What was agreed;
    • When and where the agreement was made.
  • Where the debt arises from a written agreement:
    • The date of the agreement;
    • The parties to the agreement.
  • Where the debt has been assigned, the details of the original debt and creditor, when it was assigned and to whom it was assigned.
  • If regular instalments are currently being offered by or on behalf of the debtor, or are being paid, an explanation as to why the offer or current instalments being paid are not acceptable and the reason why a court claim is being considered.
  • Details of how the debt can be paid
  • Details of how to proceed if the debtor wishes to discuss payment options
  • The address to which the completed Reply form should be sent

The following documents must be included with the Letter Before Action:

  • Up to date statement of account for the debt including details of any interest and other additional charges added;
  • A copy of the agreement made with the debtor.
  • A copy of the Information and Reply form which can be found at Annex 1 to the Debt Protocol
  • A financial statement form which is provided at Annex 2

An individual and sole trader must be given 30 days to respond to the Letter Before Action. If they do not reply within this time frame, then you may proceed with a county court claim.

Interest can be added to the debt from the date it became due to the date of the Letter Before Action. Unless the interest is defined within the contract that you have with the debtor, then this is in accordance with s69 County Courts Act 1984 at the statutory interest rate of 8%.