As a result, there is no doubt that before the event insurance will play a much more prominent role in litigation funding than previously, and all businesses would be well advised to undertake a proper risk assessment of their commercial operations as a matter of course to make sure that appropriate procedures are in place to manage that risk, including the availability of insurance.

In the absence of insurance, the option of the private retainer arrangement for payment of legal fees still remains. However those businesses that do not have the means to fund litigation on that basis will then have to consider the alternative funding arrangements that are now available.

The main point to note from the Jackson Reforms is that it is no longer possible to pass on the cost of alternative funding arrangements to the other side at the end of the litigation. Parties are now required to bear those costs themselves, whether under the revised form of Conditional Fee Agreements or the new contingency style Damages-Based Agreements introduced by the reforms. The effect will be to ultimately reduce the amount of damages that a party will receive if it is successful.

These new funding models have not yet been tested so it is not yet clear how they will work in practice but this uncertainty should not put businesses off seeking legal redress. Business owners still have a number of different options open to them. The main concern is to identify what is best for the client.

It is apparent even at this early stage that these arrangements have the potential to cause conflict between a party and its legal advisers, both during and at the end of a legal claim if the terms of the arrangement and the implications for the client have not been properly explained and agreed beforehand.

In our opinion it is therefore essential that the legal adviser undertakes a thorough review and assessment of all aspects of the case with the client at the outset. This will ensure the most appropriate funding option is identified to meet the client’s financial requirements and commercial objectives.

As with all business disputes we get involved with, our approach at Harrison Drury is precisely that. To sit down with the client at the beginning to determine exactly what their outcome objectives are, how the litigation is going to be funded, and what it is going to cost.

Only by doing this can we fully evaluate the merits and likely outcomes of a case and advise clients on the best course of action for pursuing, or defending, a commercial claim, including appropriate funding options.

We would therefore advise any business that is considering pursuing legal action to seek professional advice at an early stage so that they can make a fully informed decision before proceeding.

If you wish to know more about commercial litigation funding options, or any other commercial dispute matter, please contact me on 01772 258321 or Colin.Fenny@harrison-drury.com

All too often we come across cases where poorly drafted leases come back to bite the landlord when a dispute arises further down the line. Here are five of the most common errors made with commercial property leases.

1. Rent review clause

Something that should be in all long term commercial property leases is the rent review clause. Without it, a landlord is likely to get tied into a long-term lease without the ability to periodically increase rent to take account of inflation and other market forces. Again this must be properly worded to ensure it is enforceable and that the landlord does not make a loss on a property over a period of many years.

2. Repair and maintenance obligations

Another common dispute that arises relates to who is responsible for maintaining and repairing the property. As the tenant will have exclusive possession and use of either the whole of a property, or a specific part of it, the landlord will want the tenant to keep it in good repair and return it in repair at the end of the lease. However, if the lease does not explain this in the correct language it can lead to a lengthy and expensive court claim while the property continues to deteriorate in condition.

3. Forfeiture

If tenants fail to pay the rent or breach other obligations, commercial landlords are able to evict them without having to get a court order for possession of the property. However, the landlord’s right to forfeit should be expressly set out in the lease document. If this is not dealt with in the lease, it could result in expensive court proceedings while the landlord attempts to get the tenant out.

4. Security of tenure

Generally speaking, property law allows for a tenant to remain in the property and request a new lease once the old lease has come to an end. Of course, the landlord can still seek to avoid granting a new lease, but only on limited grounds by following a formal notice procedure which the tenant can object to. Again, this can result in lengthy proceedings while the court decides who is entitled to possession of the property. This can all be avoided at the outset if the landlord states that such security of tenure is not to be a condition of the lease. This involves a formal procedure which many landlords do not know how to carry out correctly without legal advice.

5. Legal fees and other costs

To protect against incurring unnecessary or unwarranted costs, commercial landlords are able to have it written into the lease that the tenant has to cover their legal and other costs on any consents or variations to the lease. A landlord can also stipulate that any bailiff’s fees can be recovered from the tenant if there’s an issue with rent arrears or the need for an eviction. However, a landlord is only entitled to these costs if the lease expressly provides for this. Again the wording must be watertight to enable costs to be recovered.

It is all too easy for property disputes to arise through poorly-drafted or missing clauses within the written lease. Landlords should always ensure that proper legal advice is sought before entering into any lease.

For more advice on commercial property leases, or any other property law matter, please contact Owen McKenna on 01772 258321 or Owen.McKenna@harrison-drury.com  

The pair were married for three years and at the time of their divorce were both penniless New Age travellers.  It was some time later that Mr Vince launched an eco-company, which is now worth millions of pounds.

His wife launched a ‘financial remedy’ claim against Mr Vince in 2010, which he then countered by applying to have her claim struck out.  This was rejected by the High Court, so Mr Vince appealed.

The Court of Appeal recently ruled in favour of Mr Vince and threw out his wife’s claim stating the claim should not have been brought. It would be wrong to assume from this judgment that the wife’s case was thrown out just due to the length of time since their separation.  In a completely separate recent case, the court allowed a wife to proceeed with her claim some 19 years after divorce.

In Mr Vince’s case many other factors were in the judges’ minds, not least that every penny of the husband’s wealth had been made some years after they divorced. Although, his legal bill for defending his former wife’s claim was in the order of £70,000.

If he had been successful in this way during their marriage, then the situation could have been very different, especially if she could have proved that she had contributed to his success, either in time and support, or financially.

While this case does give some comfort to spouses who prosper after divorce, there is no substitute for getting your affairs in order at the time of separation or divorce, rather than leaving it as a matter of chance for the future.

If you would like to discuss this or any other family law matter, please contact Damian Baron on 01772 258321, or at damian.baron@harrison-drury.com

The legislation was twice rejected by the House of Lords and has only been approved after the government made significant concessions with a view to protecting prospective employee-shareholders.

It means that the new employment status could come into force in September this year as originally intended.

Rationale behind the new legislation and how it will work

Under the new rules, employee-shareholders will not have certain statutory employment rights – such as the right not to be unfairly dismissed – in return for shares in their employing company worth between £2,000 and £50,000. Any gains on these shares will be exempt from capital gains tax when sold.

The proposal was first announced by George Osborne in October 2012. He hailed it as a way of introducing flexibility for employers and encouraging employees to have a stake in the business for which they work, while at the same time providing them with a tax break. He hopes it will promote growth by encouraging businesses to hire new employees by reducing associated risks and administrative burdens.

However, the reaction from both employers and workers has been less than enthusiastic. Employees dislike the loss of some basic employment rights including: protection from unfair dismissal; the right to a redundancy payment; the right to request flexible working or time off for training; and a different regime for early return from maternity leave.

Criticism of the legislation

Entrepreneurs are concerned that significant employee shareholding could make management decisions more difficult. Similarly they may not wish to share the rewards of business growth with employees. More established businesses have focused on the potential difficulties of having staff with different employment rights and the impact on trust between employers and employees.

Some of the gloss has also been taken off the proposals with news that employees are not permitted to pay for the shares, so income tax and national insurance will be due on their value. On the flip side, if the business does badly, the employee may end up with valueless shares and no job – and no redundancy or unfair dismissal rights either.

There’s also the issue of share valuation and the complexities of setting the system up, particularly for smaller businesses and start-ups. It may only serve to increase administration.

The revised proposals

The legislation now requires that individuals receive a written statement with full details of both the employment rights they will not have and the rights and restrictions attaching to their shares, for example, dividends, voting, winding up, redemption, how different classes of shares are treated and transfer restrictions. There will also be a seven-day cooling-off period.

In addition, before entering into the contract, the individual must have advice from a ‘relevant independent adviser’, for example, a lawyer, a union, the Citizens Advice Bureau or a law centre. Furthermore, the employer has to pay the reasonable costs of that advice, whether or not the employee accepts the role, something that could again increase administration and costs.

It is not yet clear how many companies will want to take advantage of the new employee-shareholder status. Those that do implement it will need to navigate carefully around the statutory protections introduced at the last minute, as well as the intricacies of handling employment and shareholding rights.

For more advice on employee-shareholder contracts, or any other employment law matter, please contact Roger Spence on 01772 258321 or Roger.Spence@harrison-drury.com

The firm credits  its recent growth with its strong focus on the SME market where it advises on services including business protection, dispute resolution, employment law and commercial property.

The firm’s impressive financial growth in 2012 follows a 15 per cent increase in turnover in 2011. Six fee-earning staff have been recruited by the firm in the last 12-months.

The government’s Growth Accelerator scheme provides tailored support for businesses committed to achieving growth of 20 per cent year on year.

John Chesworth, managing partner of Harrison Drury, said: “At a time of great flux for the legal sector, we’ve been very clear about what our target market is and also determined in our commitment to offering our clients value for money.

“For example, our HD Anytime and HR Compass products have focused on giving business owners and entrepreneurs a fixed fee legal service and we’ve also invested heavily in expertise. We will continue to innovate in the way we provide legal services as we seek out further growth opportunities.

“Growth Accelerator has a genuine desire to help high growth businesses like ours and we’re pleased to be on board.”

Hayley Huddart, Growth Manager for Lancashire at Growth Accelerator, said: “Harrison Drury is an ambitious company with strong growth potential and we will be working closely with John and the senior management team to help the firm realise that growth.”

Harrison Drury has 34 staff including 21 fee earners. The firm launched its Kendal office in January 2013 as part of its ambitious growth plans. In 2011 the firm launched HD Anytime, becoming one of the first firms in the region to offer a fixed fee legal service aimed at the SME market.

Growth Accelerator businesses are offered personalised business support from a network of business experts in the areas of commercial innovation, business development, access to finance and developing leadership skills.

Mr Scott Young, a property dealer, was ordered by the court to serve a six month prison term for failing to provide details of his finances and for failing to adequately explain the disappearance of his wealth during his divorce proceedings. He had repeatedly failed to provide information and documentation that was required and he was found to be in contempt of court.

The judge said that a prison sentence was ordered as a fine or suspended sentence would not be a sufficient penalty in this case.

In all divorce cases in which the courts are required to resolve financial matters, both parties must provide details of their financial circumstances. This is done by completing a ‘Financial Statement’ for the court.

The court also requires the parties to provide documentation to support what they say in relation to their finances. The documentation and information which is required includes:-

- Bank or building society statements for the last 12 months in respect of all accounts held

- 3 months’ payslips and most recent P60

- Pension statements, including confirmation of the current value of each pension held

- Recent mortgage statements in respect of all properties owned

- Documentation in respect of all ISAs, bonds, shares, endowment policies and other investments held

- Business accounts

- Details of monthly outgoings

Once the Financial Statement is completed both parties’ solicitors are able to raise questions regarding the documentation provided. They will ask for clarification if any of the information is unclear or if they believe something has been omitted.

The court will then order the parties to reply to these questions and, if they fail to do so, they could be found to be in contempt and could face a prison sentence.

It is therefore vital that all parties in divorce cases are aware of the need to produce this information and to provide a full account of their financial circumstances to the court.

If you would like to discuss this or any other family law matter, please contact Janine Hutson on 01772 258321, or at janine.hutson@harrison-drury.com

Harrison Drury has launched a mobile version of its website to make it easier for clients to keep in touch with their solicitor on the go.

The mobile version launches automatically when people visit the Harrison Drury website on iPhone and Android mobile devices.

It means visitors can view contact details, get more information on legal services, and access all of the firm’s latest news and blogs at the correct screen size, removing the need to navigate through the main website.

John Chesworth, managing partner, said: “We want to make it as easy as possible for our clients and other visitors to our website to get the information they need quickly and our mobile site enables them to do this.”

Those using the mobile site on iPhone can also download a HD logo to access the website at the touch of a button.

Step one

A divorce petition will be prepared, together with a ‘Statement of Arrangements for Children’ (if you have children). This will be submitted to the court along with the appropriate fee (currently £340.00).

Step two

The court will send a copy of the divorce documentation to the respondent and confirm to the petitioner’s solicitor that they have sent the documentation.

Step three

The respondent’s solicitor must then complete and return their ‘Acknowledgement of Service’ form. This gives them the opportunity to confirm whether or not they intend to defend the divorce and whether they agree to be responsible for some, or all of the costs of the divorce.

Step four

The court will then send a copy of the Acknowledgement of Service form to the petitioner’s solicitor.

Step five

The petitioner’s solicitor may then apply for a date for ‘Decree Nisi’, the document which tells you your divorce is almost complete, to be pronounced. They do so by preparing a ‘Statement in Support’ of the petitioner’s application for Decree Nisi. This will be signed by the petitioner and submitted to the court.

Step six

The district judge will then consider the application for Decree Nisi. If they are satisfied that the petitioner is entitled to a divorce, the court will send a ‘Certificate of Entitlement to Decree’ to the solicitors acting for the petitioner and the respondent. The Certificate of Entitlement to Decree will include the date of the Decree Nisi hearing.

It is not necessary for either party to attend the Decree Nisi hearing as Decree Nisi is pronounced automatically.

Step seven

The petitioner must then wait six weeks and one day before instructing their solicitor to apply for their ‘Decree Absolute’ to be pronounced. Once this application is made, it will be considered by the court and Decree Absolute is typically pronounced within the next 7-14 days. The parties are then divorced.

A typical divorce will take between four to five months from start to finish.

If you would like to discuss this or any other family law matter, please contact Janine Hutson on 01772 258321, or at janine.hutson@harrison-drury.com

The sentencing last week of a civil engineering firm and one of its directors following the death of an employee is a stark reminder of the need for businesses to guarantee the safety of those working from height.

Peter Halligan died when he fell 15 metres through an open manhole into an empty water storage tank at Sutton Hall Farm in August 2008. Peter and a colleague had been constructing brick manhole chambers above the 7.5 metre wide circular tank which had been installed to collect flood water.

A HSE investigation found they had not been given sufficient information or a risk assessment for the job, and were not given any advice about working above the storage tank by their employer.

Liverpool Crown Court heard how Peter Stuart, a director of Galt Civil Engineering Ltd, Mr Halligan’s employer, had visited the site the day before the accident and witnessed employees working over the exposed openings in the tank, but took no action to put safety measures in place.

Galt Civil Engineering Ltd, which is in administration, and Peter Stuart pleaded guilty to breaching the Health and Safety at Work etc Act 1974 by failing to ensure the safety of workers. Galt Civil Engineering Ltd, of Manchester Road in Wilmslow, received a nominal fine of £50 and was ordered to pay prosecution costs of £24,974. Peter Stuart, of Delph Lane in Chorley, was fined £30,000 with no costs.

Falls from height are the biggest cause of workplace deaths in the construction industry and, as the HSE pointed out in the above case, there were several ways the work could have been carried out safely, such as using a harness, installing a guardrail around the opening, or providing temporary covers. However, none of these were provided.

This case shows how health and safety when working at height doesn’t just affect work being carried out at the top of buildings. The Work at Height Regulations 2005 apply to all work at height where there is a risk of a fall to cause personal injury.

It is also worth noting the personal liability of up to £30,000 for breaches of the regulations and the threat of enforcement action against personal assets, such as residential property.

The regulations place duties on employers, the self-employed, and any person who controls the work of others, such as facilities managers or building owners who may contract others to work at height. Simply put, while there are responsibilities from employee to employer, Regulation 6(3) stipulates that an employer must do all that is reasonably practicable to prevent anyone falling.

Employers should ensure that they have all relevant risk assessments in place, particularly if working at height is an obvious issue, and also seek prompt legal advice as soon as possible whenever an investigation is instigated by the HSE.

For more information on this or any other health and safety legal matters, please contact me on 01772 888400 or David.Edwards@harrison-drury.com

A dispute arose after the client was asked by another firm of solicitors to recover an employment tribunal award worth £19,518.47 from a North West firm.

The company involved then issued court proceedings against both Andrew Wilson & Co High Court Enforcement and the solicitors who had instructed them to collect the debt.

Harrison Drury successfully applied for summary judgement against this.  This is a procedure by which a party may dispose of a claim without it going to trial.

In this case, it was argued that the client had not exceeded its authority in acting upon the instructions it was given, and that in any event the company had not experienced a real and substantial grievance.

The case highlights the wide protection available to High Court Enforcement Officers and the potential implications of bringing claims against them.

James Robbins, solicitor at Harrison Drury said: “Our objective was to bring this litigation against our client to an end as quickly as possible. The case demonstrates that summary judgment can be a useful tool in the appropriate circumstances to promote the swift resolution of cases.

“It not only avoids long running litigation and mounting costs, but also minimises the impact on a defendant’s reputation, which was particularly important in this case.”

For more information, or to find out more about summary judgments or any other aspect of legal disputes call James Robbins on 01772 258321.