4myschools are at the Festival of Social Enterprise on Tuesday 11th Sept- looking to share the benefits of sustainable social enterprise locally for schools, teachers and children.
We are looking to find a franchisee to run their own values based businessfor Norfolk schools and teachers.
Speakers at the event include Nigel Kershaw CEO Big Issue, Cliff Prior CEO UnLtd, Sara Burgess the CIC Regulator.If there is anybody interested in Social Enterprise in Norfolk then this is the place to be.
We would be delighted to share our experience with anybody interested in making a difference through social enterprise.
Breakwater have formed a partnership with the American company, Aruba. Aruba Networks specialise in wireless technology including wireless LAN switching, remote networking and network management.
Aruba networks are a leading provider of next generation solutions for network access to the mobile markets. Breakwater recognised that more and more businesses need wireless capabilities to perform regular tasks and quickly identified Aruba as an ideal enterprise to form alliances with. Aruba successfully worked on many major projects including Heathrow, Terminal 5, where their technologies are now in full force. The solutions Aruba can offer dramatically lowers operational costs but greatly improves productively for remote workers, guest access and all of today’s mobile business professionals.
Who uses Aruba?
• Five of the world’s top engineering schools • More than 500 major retail chains worldwide • Three of the world’s largest software companies • Every major social networking company • Over 30 of the world’s largest stadiums and sports arenas • The most widely deployed wireless LAN by the U.S. military
Aruba are based in California, USA, but have operations globally. Breakwater are proud to be the only partner locally and are delighted to be able to offer the solutions to their customers.
Following a previous article by Jean Parkinson published in the Solicitors Journal which outlined the proposals to crackdown upon residential squatters, the bill has now been passed.
As of 1 September 2012 it will become a criminal offence to squat in a residential property, whether it is vacant or not, with those found guilty at risk of a maximum six month term of imprisonment, a fine of £5,000, or both.
Whilst many will argue that it places pressure and further stigma upon those who might be vulnerable and in need, the rights of homeowners have firmly been placed to the fore in providing them with a better set of armoury with which to protect their properties.
Ashton KCJ Solicitors is delighted to announce a number of new Associate appointments from within the firm.
Seven members of staff across a range of departments have been appointed as Associates, having successfully completed Ashton KCJ’s Development Programme. This involved a structured learning programme delivered by some of the UK’s best trainers, course work and 360 degree feedback.
Congratulations go to Sharon Allison and Julie Crossley from the Clinical Negligence team in Thetford, Sue Bailey and Elisabeth Sneade from the Family department in Norwich and Cambridge respectively, Ian Barnard in the Ipswich Commercial Property team, Tom Ranson from the Personal Injury team in Ipswich and Robert Tiffen, who works within the Dispute Resolution team in Norwich.
Ashton KCJ’s Chief Executive, Simon Smith says: “We are delighted to announce these appointments, which are richly deserved. They follow a number of commercial solicitor appointments and the acquisition of franchise specialists, John Chambers & Co earlier this year. This underscores the strength and growth of the firm as we approach the first anniversary of our merger in October.”
Employment solicitor Sam Greenhalgh reports on a recent decision of the Employment Appeal Tribunal (EAT), which considers when it is appropriate to identify a ‘pool’ from which employees are selected for redundancy.
The employer in this case, a golf club, decided to make its club steward redundant in order to save costs. The employer consulted with the employee and subsequently confirmed his redundancy following a number of meetings with him. His duties, which included the management of the bar area, were to be undertaken by other members of the catering and bar staff.
The employee brought a claim for unfair dismissal, which was upheld by an employment tribunal. The tribunal concluded that in making the club steward redundant, without considering whether to identify a pool of employees from which to select for redundancy, was not within the “range of reasonable responses” required for the dismissal to be fair.
The employer appealed to the EAT. The EAT confirmed that there is no requirement to identify a pool for selection in a redundancy situation, and it might be perfectly reasonable for the employer to consider a single employee for redundancy. The tribunal in this case had failed to consider whether, given the nature of his job as a club steward, it was reasonable for the employer not to consider identifying a wider pool of employees from which to select. The employer’s appeal was upheld and the case remitted for a rehearing.
Comment
There is no requirement to follow a selection process in a redundancy situation, in circumstances where an individual’s role is no longer required and they are the only person carrying out that role. Provided the employee is properly consulted with prior to confirming the redundancy, the dismissal will be fair. However, it might still be necessary as part of the consultation process to consider whether it is appropriate to ‘bump’ another employee, making them redundant instead in order to retain the services of the employee whose role is no longer required.
If a number of employees carry out similar duties, then it will be more appropriate to identify a pool of employees from which to select for redundancy.
Steeles Law Head of Real Estate Michael Fahy and Trainee Solicitor Laura Tanguay consider the High Court decision of Kettel v Bloomfield [2012] EWCA 1422 (Ch) on the right to use car parking spaces and the landlord’s ability to reallocate spaces.
The Claimants in this case held leasehold interests in eight flats in a development known as City Walk. Each lease granted the tenant the right to park in a designated parking space.
The freehold owner of City Walk obtained planning permission to build a new housing block; the location of which would be in the same spot as the parking spaces. The landlord therefore wrote to each tenant to explain that their parking spaces were being reallocated and promptly fenced off the area.
The tenants did not consent to their parking spaces being moved and sought an injunction to restrain the landlord.
Type of ‘right’
The first question considered by the court was the nature of the right granted. Did the parking spaces form part of the property demised by the lease, or did the tenants merely have easements to use the spaces? The distinction was important as the extent of the rights granted determined the extent of the landlord’s limitation in developing the land. If the spaces formed part of the demise, the landlord would be prevented from building on them or even in the airspace above them.
The court held that the terms of the lease did not amount to a demise of the car parking spaces.
The case law on whether or not a right to park a car can exist as an easement is far from clear. The rule established in the case of Batchelor v Marlow [2003] 4 All ER 78 stated that a right to park a car could not be an easement if it left the servient owner without any ‘reasonable use’ of his land. However, the subsequent decision of Moncrieff v Jamieson [2008] 4 All ER 752 criticised the ‘reasonable use’ test and held that the correct test should be whether the servient owner retains “possession and control” of the land subject to the reasonable exercise of the easement.
However, the court in this case confirmed that it was obliged to apply the ‘reasonable use’ test as set out in Batchelor. It was held that the rights did not deprive the landlord of all reasonable use of the land – the landlord could cross the space, enter the space to maintain or resurface it, lay conducting media under the space and install overhead projections such as wires. The rights were therefore upheld as easements.
Movement of the spaces
None of the leases expressly stated that the landlord could move the spaces and the court held that no such right could be implied. The court looked to the case of Greenwhich NHS Trust v London & Quadrant Housing Association [1998] 1 WLR 1749 in confirming that the landlord could not unilaterally extinguish an easement by providing an equivalent easement.
Remedy
The landlord argued that damages were an appropriate remedy as the loss was, in his opinion, trivial given that the tenants would be given spaces new only yards away. However, because the landlord had not made the offer of new spaces in a way that would be binding, the court held that it had sought to escape the burden of the rights granted and consequently allowed the injunction.
Practical solutions
If a tenant has a right to park in a designated parking space there is no right to reallocate the space, even if the new space is only a short distance away and equally as convenient. The safest course of action is to grant parking rights in relation to spaces ‘designated by the landlord from time to time’
Norwich firm of solicitors, Leathes Prior, have sponsored Jack Coxall, a teenager from Frettenham, for his sponsored 130-mile bike ride on 1 & 2 September 2012 from Norwich to Great Ormond Street Hospital. Jack suffered serious injuries to his pancreas and spleen in December 2009 and was in Great Ormond Street Hospital for six weeks. As a result of ongoing complications he is now unable to pursue his preferred career in the army and missed a substantial amount of school.
Dave Richards, the personal injury solicitor at Leathes Prior acting for Jack, is particularly impressed that he has come so far. “Jack really has made exceptional progress since I took on his case. I would not have believed that he would go on to do a 130-mile bike ride when I first heard about what happened, but it really is a credit to him and to Great Ormond Street Hospital, and it’s great that he’s decided to give back like this”.
Whilst Jack was lying in Great Ormond Street Hospital, he said to himself that once he recovered he would raise money for the hospital itself, as a way of giving something back. He has since endured a long recovery process but is now confident that he can complete the journey.
His mother, Samantha Coxall, is naturally very nervous for Jack, but at the same time has expressed how proud she is of him, after everything he has been through.
Steeles Law is pleased to announce that the firm is exhibiting at the popular Diss on View business event, presented by Diss Business Forum (DBF) and Hales Group Ltd once again this year.
Steeles Law is pleased to announce that the firm is exhibiting at the popular Diss on View business event, presented by Diss Business Forum (DBF) and Hales Group Ltd once again this year.
We would like to invite all clients and contacts in the Diss area to come and visit us at stand number 7 at the exhibition, which will take place on Friday 14 September, 1.30 – 5.00pm at the Park Hotel, Diss.
Visitors can also book in to attend a networking brunch from 11.30am – 1.30pm before Richard Bacon, MP for South Norfolk and Graham Minshull, Diss Town Mayor open the event at 1.30pm. At the end of the day, there’s another opportunity to combine business with pleasure at a Cocktail Workshop from 5.30pm.
Details of the day and booking forms for both networking events can be found on the DBF website www.dbf.org.uk.
Survival Systems International UK (SSI) has completed the refurbishment of three 50-man lifeboat capsules from the Global Sante Fe Galaxy rig at its UK base at Great Yarmouth.
All three were transported together by road from Scotland to be worked on simultaneously in Norfolk while the North Sea rig was being revamped in the Nigg fabrication yard on the Cromarty Firth.
“We were delighted to be given the work by Transocean, the world’s largest drilling contractor, and even happier to report that we finished on schedule within a tight deadline,” said Andy Dickson, SSI UK’s operations manager.
“It’s meant the workshop has been particularly busy with all three capsules being worked on alongside another major contract.”
Every component from each of the capsules was thoroughly checked through SSI’s ‘traffic light’ assessment – green for OK, yellow for potential refurbishment and red for replacement. Safety testing was also incorporated into the six-week project.
“It was ideal for us to get the job as the capsules were all built by our parent company in the United States so we were very familiar with their design, equipment and layout,” said Andy.
The GSF Galaxy, a harsh environment deepwater jack-up platform, is undergoing a three-month refurbishment, the first oil rig for nine years at the Nigg yard.
Steeles Law Head of Real Estate Michael Fahy and Trainee Solicitor Laura Tanguay consider the High Court decision of E.ON UK plc v Gilesports Ltd [2012] EWHC 2172 (Ch) on landlord’s consent for assignment.
Introduction
This case is a useful illustration of how not to assign a lease. We outline the facts of this case and review what can happen when a tenant assigns its sublease to another party without first obtaining the immediate landlord’s proper consent.
Consent to Assign
It is typical for a lease to provide (as this sublease did) that an assignment may only be completed with the landlord’s prior written consent, such consent usually taking the form of a Licence to Assign. A tenant must therefore make an application to its landlord for it to consider. Under section 1(3) of the Landlord and Tenant Act 1988, landlords must consider and respond to a tenant’s request within a reasonable time frame, and, if consent is refused, provide the tenant with the reasons for such refusal in writing.
The Facts
In this case, an application for the landlord’s consent had been sent via email, which was not in accordance with the terms of the sublease which incorporated section 196 of the Law of Property Act 1925 (as amended by the Recorded Delivery Service Act 1962) for the service of notices (i.e. that notices must be left at the landlord’s last known place of business or sent by Recorded Delivery). The landlord did not respond to the request and so no consent was received by the tenant. Despite this, 11 days after submitting its request, the tenant completed the assignment of the sublease. As consent had not been given, the landlord sought to recover rent from the tenant post assignment. In court, the tenant argued that the landlord had unreasonably delayed in giving consent and it should therefore be deemed to have consented.
Judgment
It was held that service of the tenant’s request by email was not sufficient to trigger the landlord’s statutory duty to consider the application under section 1(3) LTA 1988. The application should have been served in accordance with the provisions of the sublease. Even if service by email had been sufficient, the court stated that 11 days was too short a period to hold that the landlord had been unreasonably in its delay. Unfortunately for the tenant, the bad news did not end there; as the assignment was never registered with the Land Registry (in breach of covenant) and so by virtue of section 7 LRA 2002, the assignment of the sublease became void and reverted back to the tenant. As such, the tenant was still the current tenant (and not the ‘former tenant’) for the purposes of the section 17 notice for rent demanded under LTCA 1995, and therefore, its liability for rent arrears was not limited by this section.
Leading East of England law firm Birketts LLP are pleased to announce that Matthew Gowen has joined the firm as a consultant within the firm’s Corporate Criminal Defence team.
Matthew is a practising barrister with 18 Red Lion Court, London, having been called to the Bar in 1992. He will continue with his practice in chambers in addition to working with the firm with immediate effect.
He appears frequently as a leading junior both for the defence and the Crown in serious criminal cases and has also advised on and appeared in cases of regulatory crime, including health & safety and environmental matters. He is a Grade 4 Advocate (the highest rank) for the Crown Prosecution Service.
On his appointment, Matthew said: “I am delighted to be joining Birketts LLP as a consultant. The firm’s sharp strategic focus and its commitment to building and developing its high-quality Corporate Criminal Defence team provides an appealing mix of challenge and opportunity at this stage of my career. I am looking forward to working with the team to develop the firm’s presence and capabilities.”
Laura Thomas, head of the Corporate Criminal Defence team at Birketts, added “We are delighted Matthew will be working with us. Matthew brings over 20 years of experience to the firm and a barrister of his calibre and reputation will help us to continue building and developing our Corporate Criminal Defence practice. His knowledge and experience on a wide range of criminal and regulatory cases will support our significant work in this market. Matthew’s engagement follows our recent appointment of Frank Sykes, ex-HSE Principal Inspector who joined the team as a consultant in May and is already significantly benefitting both existing and new clients with his expertise. There are exciting times ahead for the team!”
Steeles Law Head of Real Estate Michael Fahy and Trainee Solicitor Laura Tanguay consider the Court of Appeal decision of Ener-G Holdings plc v Hormell [2012] EWCA Civ 1059 (31 July 2012) on personal service and ‘permissive’ drafting.
In this case, the Court of Appeal considered an appeal by Ener-G Holdings Plc (“Ener-G”) of the decision of the court of first instance which found that Ener-G’s £2 million claim for breach of warranty was time barred.
Key clauses
The two key clauses in the agreement between the two parties stated:
1. Ener-G must give written notice of any breach of warranty claim to Mr Hormell (the Respondent) by ‘the second anniversary of completion’ (i.e. by 2 April 2010);
2. Proceedings in respect of that claim must be issued and served not later than twelve months after the date of that notice; and
3. Any such notice ‘may be served by delivering it personally or by sending it by pre-paid recorded delivery’.
The facts
Ener-G served its notice for breach of warranty on Mr Hormell in two different ways. First, a process server attended Mr Hormell’s home address on 30 March 2010 to personally serve the notice. Because no one was home at the time, the process server left the envelope in the front porch on a table. Later that afternoon, Mr Hormell found the envelope, opened it, and read the notice. Later that day, a second notice was sent to Mr Hormell by recorded delivery which was deemed received on 1 April 2010.
Ener-G commenced court proceedings in respect of the claim on 29 March 2011. The claim was served by means of personal service and was deemed served on 31 March 2011. Therefore, if the notice delivered by the process server on 30 March 2010 was found to be properly served, Ener-G’s claim was time barred as it would not have been served on Mr Hormell within 12 months of the notice. If, on the other hand, the notice delivered by the process service was found not to be properly served, then the clock for serving the claim would not have started running until 1 April 2010 – meaning that Ener-G’s claim was not time barred.
‘Delivering it personally’
Ener-G argued that ‘delivering it personally’ required that the notice be handed personally to the intended recipient. As this did not happen, the notice delivered by the process server and left on the table was invalid. Mr Hormell contended that it was enough for the notice to have been left at the property (albeit not handed to him in person) and so the notice should be upheld as valid. The Court of Appeal upheld the decision of the court of first instance and ruled that ‘delivering it personally’ required the notice to be handed to Mr Hormell personally, and the actions of the process server did not satisfy this requirement.
Permissive rather than exclusive
However, the wording of the clause in this agreement stated that the parties ‘may’ serve the notice by delivering it personally or by sending it by pre-paid recorded delivery. This wording was permissive rather than exclusive, referring to “may” rather than “must” or “shall”, and therefore Ener-G were free to use any method of service and were not limited to the two methods specified. Accordingly, the actions of the process server did in fact constitute good service for the purposes of the agreement and consequently Ener-G’s claim was time barred. The decision of the Court was split 2:1, with Lord Justice Longmore’s dissenting view “that it is counter-intuitive to conclude, when the parties have taken the trouble to spell out [how a notice can be served] that a notice can be served … in any other way the deliverer of the notices chooses.”
Practical guidance
1. Do not leave the service of important documents to the last minute where time is of the essence. Lord Justice Gross commented by saying, “I fear that by leaving service until so late in the day, the Appellant has been the author of its own misfortune.”
2. Be aware that ‘personal service/delivery’ means service to the addressee in person and not just delivery to the addressee’s premises.
3. Avoid using permissive words such as ‘may’ in an agreement if what is really intended is that the parties shall or must do something.