The most high profile of these divorce cases, and the one which has given the clearest indication yet that pre-nups will be recognised as enforceable, is the Radmacher case.

In this case, German paper industry heiress Karin Radmacher won the right to protect her fortune, and hundreds of millions of pounds controlled by her family, out of the hands of her former husband after the Supreme Court ruled that the pre nuptial agreement was binding.

The judges agreed that in the right case a prenuptial agreement could have decisive or compelling weight. Lord Phillips, the president of the Supreme Court, said the courts would still have the discretion to waive any pre- or postnuptial agreement, especially when it was unfair to any children of the marriage.

So, while it’s probably not the most romantic way to start a new relationship, it may be wise for someone in your position, whose earnings and assets are likely to be significantly higher than your partner’s, to consult specialist legal advice before you get married.

Hopefully it would be a conversation that would become irrelevant with a long and happy marriage, but if you’re determined to protect your wealth in the event of a separation and divorce, a pre-nuptial agreement may well be a wise move.

For more advice on pre-nuptial agreements, or any other divorce or family issues, contact Shena Baron on 01772 258321.

January 16 was officially labelled Blue Monday (supposedly the most miserable day of the year) and it certainly felt like that as two leading economic forecasters, the Item Club and Centre for Economics and Business Research, gave downbeat predictions for economic growth. What’s the point?

The former went as far to say as it believed we were already in a ‘technical recession’ with GDP shrinking in the final quarter of 2011 and likely to contract again in the first three months of this year. Well thanks for ruining the mood.

While these organisations are well within their right to analyse the data, part of me can’t help wishing they would hold off giving their opinions until the official figures are released and we know the real picture.

While I would not wish to be accused of burying my head in the sand, it sometimes feels as though these forecasts are taken too seriously, only causing more fear and hesitation among the business community.

As a dealmaker involved in advising business owners on mergers and acquisitions, I have seen firsthand how this can affect confidence with deals sometimes being put on hold as a result.

Giving entrepreneurs the certainty to invest in businesses, creating an environment where business owners feel comfortable to pass their business on, and where buyers are positive about completing acquisitions, is the key to stimulating growth.

In reality, we are getting deals done and I have advised on a good number of business acquisitions and disposals in the last 12-months. If we could also persuade those who are sitting on the fence, due to their uncertainty of what the future holds, then I’m convinced growth can happen more quickly.

There are a lot more reasons to be optimistic than the forecasters would have us believe, and my advice would be that if something feels right, it’s better to go with your instincts than allow economic predictions to create unreasonable, and often irrational, doubt.

In short, let’s all try to get that positivity back we had at the beginning of January.

David Filmer is head of the mergers and acquisitions team at Harrison Drury Solicitors in Preston. Contact David on 01772 258321.

Three high profile break-ups at the beginning of January have once again demonstrated how the Christmas and New Year period almost always heralds an increase in the number of people filing for divorce.

A busy week or two at home with the family and in-laws can often act as a pre-cursor to relationship breakdown, perhaps because the greater amount of time spent together can cause conflicts to boil over, or just because a period of reflection away from the distractions of work can convince people it’s time to go their separate ways.

This time around singer Katy Perry and comedian Russell Brand have become the ‘cover stars’ of the New Year break-up season, after Brand’s lawyers filed divorce papers after 14 months of marriage.

Opera star Katherine Jenkins and TV presenter Gethin Jones also announced they are splitting up. The pair weren’t married but had been in a relationship for four years.

Meanwhile, lingerie tycoon Michelle Mone announced the breakdown of her 19-year marriage between Christmas and New Year.

Complicating factors in a divorce

All of these break-ups are interesting for a number of reasons, not just because of their timing in January.

For it’s likely that all three women earn significantly more than the men in the relationship, which goes against the traditional view of women looking to get an even share of their husband’s estate.

In the case of Perry and Brand there’s also the reported matter of there being no pre-nuptial agreement, which are allowed under US law, with some commentators speculating that Brand could be entitled to huge lump sum in a 50-50 split of the couple’s earnings.

In Mone’s case, she and her husband have three children. When children are involved this throws up a number of other issues, such as custody, childcare payments and visiting rights.

Jenkins and Jones would appear to have the less problematic break-up, but co-habiting couples who split still have their own problems to sort out in terms of property and finances.

What to do if you’re considering a divorce?

What these events do show us is that break-ups can be a messy and painful experience, no matter who you are.

If you’re in a similar situation and considering a separation or divorce now that the New Year has begun, what you need is someone who can give you specialist advice.

By speaking to a family solicitor at an early stage you will be able to get advice on what your options are so you can decide on the best solution for your circumstances.

Before discussing court proceedings, your solicitor can give you advice on the alternatives for resolving children and financial issues, such as the method of mediation.

Despite the fact that the law can have the effect of heightening tensions between you, there are ways of minimising conflict to ensure that your divorce is dealt with quickly and cost effectively while preserving relations to ensure effective communication and co-operation.

For further information on any family law issue, please contact Shena Baron on 01772 258321.

Harrison Drury has helped a security firm challenge the compensation culture with a successful defence against a personal injury claim.

In the case we represented an established and reputable company which provides professional door staff to entertainment venues in the North West.

Our client was sued for compensation by the claimant, a solicitor in a personal injury firm no less, who alleged she had been knocked down and injured by one of our client’s door staff at a city centre bar in Liverpool while she was on an evening out.

The door staff and the manager of the bar who were working on the night in question had no knowledge of the incident. We investigated the claim thoroughly and were looking to find a credible alternative explanation to put to the judge at trial that showed that if the incident had occurred, it did not involve our client.

We carried out a site inspection at the bar on a Saturday evening to try and recreate the conditions in which the incident was said to have taken place.

We then challenged the claimant’s evidence on the identity of the doorman she alleged had collided with her. When the matter came to trial her case was that her ‘assailant’ was a man dressed in a typical doorman’s uniform of black.

However, at the time of the incident, our client’s door staff had in fact been required by the local licensing police to wear bright yellow high-visibility jackets on duty, which was at odds with her evidence. Our client won the case and the judge dismissed her claim ordering her to pay a substantial contribution to our client’s legal costs.

The claimant had a no win no fee agreement with her solicitors which meant that had she won, she would have been entitled to double her legal costs against our client on top of her compensation.

In such circumstances, many clients would have felt under pressure to settle the claim, especially as the claimant was herself a personal injury lawyer.

Our client felt it was a victim of the compensation culture and wanted to defend the claim. This proved to be a wise course of action in light of the evidence we were able to put to the judge, which clearly exonerated our client and somewhat discredited the claimant.

For more information on Harrison Drury’s litigation services, please contact Amanda Webster on 01772 258321.

Employers should beware of tough new anti-bribery laws when giving or receiving corporate gifts this Christmas.

The Bribery Act affects everyone from global businesses to individuals, prompting the Royal Mail’s recent warning to postal workers to refuse Christmas gifts worth more than £30.

Roger Spence, head of Employment law at Preston-based Harrison Drury Solicitors, commented: “This will be the first festive season to be affected by the Act, which makes it illegal to offer or receive bribes, and to fail to prevent bribery.

“Christmas is high season for corporate hospitality and giving. Despite the downturn, some businesses might be tempted to splash out to keep key customers on board, and a number of grey areas make this a risky undertaking.”

Ministry of Justice guidelines say corporate gifts that are ‘reasonable and proportionate’ will not lead to problems, but no cash levels have been stipulated. This means companies must decide for themselves on ‘appropriate standards’.

Roger Spence continued: “Clearly giving away a foreign holiday would be overstepping the mark, while sending someone a logoed memory stick would be fine. However, a case of champagne or an expensive Christmas hamper might cause problems.

“One of the main issues for businesses is to ensure they have an adequate anti-bribery procedure in place that all employees and sub-contractors should follow. An adequate procedure will represent a defence if the company is charged with failing to prevent bribery.”

Roger Spence added: “Regardless of the size of your business it is important to comply with the new rules by carrying out a risk assessment and introducing anti-bribery procedures.”

For more information on The Bribery Act, or any other employment law issue, please contact Roger Spence on 01772 258321.

A Deed of Variation (sometimes called a Deed of Family Arrangement) enables the beneficiaries of a deceased person’s estate to alter the distribution of the estate.

A Deed of Variation (DOV) can be used by one beneficiary to redirect their share of the estate or by all of the beneficiaries jointly to alter the distribution of the entire estate.

The DOV must be completed within two years of the date of death and all of the beneficiaries who wish to vary the distribution of their gifts must be over the age of eighteen years and of sound mind.

If any of the beneficiaries are aged under the age of eighteen years it may still be possible to complete a DOV but an application will have to be made to the court for consent.

When a DOV has been entered into it is treated as though the deceased person made the gift in their Will for Inheritance Tax and Capital Gains Tax purposes.

Why you might want to consider a Deed of Variation:

• Reducing the Inheritance Tax payable, for example, by redirecting some of the estate to charity or the surviving spouse, as any gifts to charity or spouses are exempt from Inheritance tax.

• Inheritance Tax planning for the beneficiaries. If any of the beneficiaries will already have a liability to Inheritance Tax upon their deaths they may elect to pass their share of the estate to their children (either outright or into trust).

• To give effect to the wishes of the deceased. Sometimes people’s wishes change after they have made a Will and they may not have had time to alter it.  The beneficiaries could give effect to those wishes by drawing up a DOV.

• If there is an unequal division of the estate a DOV could be used to balance the shares given to a brother and sister, for example, so that they each receive the same share of the estate.

• To incorporate a trust to protect a disabled beneficiary.

Although DOVs can be an extremely useful tool, they should never be relied upon as a way of estate planning. There is no guarantee that the effectiveness of DOVs won’t be reduced or even removed by a government in the future.

For more information on a deed of variation, or any other wills, probate and estates matter, please contact Rachel Conroy on 01772 258321.

The ownership and right to use intellectual property is an increasingly important consideration as businesses seek to gain a competitive edge.

Where a product is protected by intellectual property, this can assist when trying to take it to market and to exploit it commercially.

However, where value is involved, disputes can all too often occur as to who actually owns the intellectual property in any such item, and without clear documentation put in place in advance, it is all too easy to end up in costly litigation to try to determine the rightful owner.

Many such problems can occur around the area of copyright. Copyright is a right which occurs automatically when anybody creates something, whether that is a book, a work of art, a piece of music, or computer software. Once an idea is set down and crystallised, copyright arises, and it is this automatic nature which can lead to dispute.

The first owner

The primary starting position is that the person who actually creates the work, usually referred to as ‘the author’, is the first owner of the copyright in that work. So if I write a song on my own at home, then I own the copyright in that song. There are, however, some exceptions to this rule.

Employees

As a general rule, where an employee creates something in the course of his employment, then unless there is an agreement to the contrary, the copyright in that work belongs not to the employee, but his employer. So for example, the content of this blog, while written by me actually belongs to Harrison Drury Solicitors as my employer.

Joint Ownership

Where two or more people create something, then the copyright may be jointly owned. So, if a band writes a song, then conceivably the copyright in that song is jointly owned by all of the members of the band who contributed to it. Note, however, that if the singer wrote the lyrics and the guitarist wrote the music, then separate copyright in each would arise, and vest in the individual band member.

Commissioned Works

A major source of potential dispute is where work is commissioned by a third party, for example, where a company commissions a designer to create a logo for it. On the face of it, the copyright in the logo belongs to the designer as ‘the author’. However it would seem unfair for that designer to then seek to prevent the company from using a logo which it has commissioned for its own branding.

In reality, what tends to happen is that the ‘legal’ ownership vests with the ‘author’, but the ‘beneficial’ ownership vests with the company. Note, however, that this is not always the case, and each matter should be viewed on its merits.

In order to seek to prevent these sorts of disputes arising, a contract should be put in place prior to any work being carried out which clearly defines who will own the work once it has been completed. The costs of such a contract will be significantly less than the costs of litigation to determine ownership after the event, with the added benefit that each party knows where they stand from the outset.

For more information on intellectual property, or any other business protection matter, please contact us on 01772 258321.

A recent commercial dispute I was involved with demonstrates the value of being prepared to pursue a claim and not to be put off by repeated denials and delaying tactics from the other side, especially when it comes to dealing with insurers

The case involved water damage to a commercial property in Lancashire, which was caused by preparatory work on a neighbouring building site.

Our client purchased a former railway tunnel which he was intended to use for storage, which began taking water when a housing developer removed the topsoil from nearby land to begin work on new housing.

The leaking water caused a major nuisance to my client’s business and caused significant damage to the property. We therefore submitted a claim to the developer for £75,000 to compensate the client for both the damage caused and the cost of remedial works to fix the problem.

The housing developer’s insurer initially refused to accept liability, seeking to pass the blame onto a subcontractor whose insurers also refused to take the blame. This then lead to a period of prolonged correspondence in which insurers placed numerous hurdles in the way of our client, essentially as a means of avoiding responsibility for the claim.

At the time it would have been easy for the client simply to give up and walk away, or to become embroiled in expensive litigation. However, through perseverance and no little detailed legal analysis and argument, we were able to persuade insurers on the strength of the evidence that the case was overwhelming. We managed to reach a settlement of £50,000 in damages without the need to pursue the case through the courts, which was a huge relief to the client, saving him a significant sum in legal costs.

As a general rule, insurers will often look for ways to avoid accepting liability in commercial disputes and paying out damages in the early stages, which can mean that claims are either abandoned or not pursued because of the costs of litigation. The lesson here is that if you believe you have a good claim, seek professional legal advice and be prepared to persevere.

For more information on this matter, or any other litigation and dispute resolution matters, please contact Colin Fenny on 01772 258321.

Harrison Drury’s property law team has advised business rescue and recovery specialist Leonard Curtis on its lease of new premises in Lancashire.

The Bury-headquartered firm has opened an office at South Rings Office Village, a newly-built flagship office development at Bamber Bridge, near Preston.

The firm has taken a 1,400 sq ft unit on a 10-year lease at South Rings, which has been built by Roundhouse Properties.

The expansion takes the number of Leonard Curtis offices to nine. It also has offices in Manchester, London, Birmingham and Bristol and employs more than 150 staff.

Owen McKenna, who led the property team at Harrison Drury, said: “Leonard Curtis is a long-established firm that has helped steer many business owners away from danger, as well as assisting creditors and professionals with debt and financial problems. This move will allow the firm to serve the whole of Lancashire and beyond due to South Rings’ location at a key interchange between three North West motorways.”

The new Lancashire office is being led by newly-appointed director Mark Delaney and existing director Mark Colman.

Mark Delaney said: “In these difficult financial times, more and more small businesses are struggling with debt, Crown arrears and cashflow problems. The convenient and central location of our new Preston office will make our services more accessible to companies based not only in Lancashire, but also in Merseyside and Cumbria.”

Seeing one of your former employees set up a business in direct competition to yours can be a frustrating experience and one that is damaging to your interests.

If your business isn’t protected by adequate restrictive covenants, it can be disconcerting when that former employee begins approaching your clients with phone calls and e-mails, schmoozing them at networking events, even trying to entice your staff members to join their new venture.

All businesses can protect their legitimate business interests by using employment contracts to bar key employees from dealing with or soliciting work from customers and suppliers for a period of time.

Drafting restrictions on a bespoke basis

When recruiting key members of staff who will soon have a close working relationship with your customers and suppliers, it is crucially important to ensure restrictive covenants are added to their employment contracts. An audit of your existing key employees is also advisable to ensure they too are covered.

However, the mistake many companies make is using wording that is too generic. It is vitally important that such restrictions are drafted on a bespoke basis to avoid the risk of the courts determining they are too broad to be enforceable.

For example, it is unlikely that a wide geographical area will be justified and, as a general rule, a restriction for more than 6-12 months will also be difficult to defend.

Types of restrictive covenant

The standard types of restrictions which can be used by employers are:

- Non-competition covenants – restrictions on the former employee working in similar employment for a competitor;

- Non-solicitation covenants – which prevent poaching of clients, customers or suppliers of the former employer;

- Non-dealing covenants – which prevent a former employee from dealing with former clients, customers or suppliers, regardless of which party approached the other;

- Non-poaching covenants – which prevent an employee poaching former colleague.

By taking this cost-effective action, a business will gain a set period when it can focus on strengthening relationships with customers or suppliers.

Not only will restrictive covenants give some protection against employees who go on to start a direct competitor, it can also make it more problematic for existing rivals to poach employees who have an intricate knowledge of your business systems and processes.

For more information on restrictive covenants, or any other employment law matters, please contact Roger Spence on 01772 258321.