A number of recent cases have brought to light the need for businesses to ensure their terms and conditions are reviewed on a regular basis to ensure that they remain fit for purpose and provide the necessary protection if things go wrong.

For example, earlier this year the High Court held that the adverse change in economical market circumstances caused by the collapse of the financial markets, did not amount to an event of force majeure or frustration in contract law and, if a party wanted to get out of an unprofitable contract on the grounds of economic hardship, there needed to be an express agreement to that affect. As a result, the purchaser could not escape liability for payment of the balance due on a multi-million pound contract.

This illustrates the risk of relying on standard terms, which may not be fit for purpose, and the need to ensure that the contractual terms meet the requirements of the particular circumstances.

Even if the terms and conditions are appropriate, they are of absolutely no use whatsoever if they are not properly incorporated into the end contract. This again has been the subject of recent High Court consideration.

The case involved a “battle of the forms” where each party purported to rely on their own standard terms and conditions. On the facts, the Court held that neither party’s standard terms and conditions had been incorporated into the contract. As a result the contract between them was governed by and incorporated the implied terms of the Sale of Goods Act 1979. This meant that the supplier’s standard limitation of liability clause was rendered ineffective and the supplier faced unlimited liability.

These recent cases demonstrate that care needs to be taken when using standard terms and conditions to ensure that they are up-to-date, enforceable and appropriate for their intended use, and if a party wishes to rely on standard terms and conditions that they are properly incorporated into any contract at the outset.

It proposes to abolish the DRA and the statutory retirement procedures on October 1 2011. Transitional arrangements will begin on April 6 2011. Therefore employers giving notice of retirement after this date will no longer be able to rely on the DRA of 65.

The proposals are subject to a consultation, which will run until October 21 2010.

The key proposals are:

- Retirements under the DRA will cease completely on October 1 2011 and no new notices of intended retirement may be issued after April 6 2011

- Retirement dismissals will still be permissible after October 1 2011, but only if objectively justified

- Transitional arrangements will apply to retirements that have been notified before April 6 2011 to take effect before October 1 2011. Retirements notified before April 6 2011, but intended to take effect after October 1 2011, will not be valid (unless objectively justified)

- The statutory procedural requirements applicable to a retirement dismissal, will be abolished

As a result of this proposal to abolish the DRA of 65 and the existing statutory retirement procedure, employers need to keep their retirement policies under review.

While the law has not been changed as yet, it is necessary for employers to approach the issue of enforced retirement with renewed caution.

If you require advice in this area please contact Roger Spence on tel:01772 208072 email: roger.spence@harrison-drury.com

In my opinion, only three major matters need addressing – first, the smoking ban (which will never be changed) and, secondly, supermarkets selling alcohol at ridiculously low prices (which is outside the remit of the consultation and will be dealt with elsewhere). Third, the problem of underage sales is a major concern to licensees, the police and politicians alike. Something needs to be done but I’m not convinced that placing the burden almost entirely on the licence holder is the way forward.

The rest of the consultation paper would be better named “retinkering” the Licensing Act!

However, there are some good ideas, particularly making the local authority a responsible authority. Most (if not all) of the officers that I deal with at the licensing authority know what they are talking about and apply that knowledge tempered with true local knowledge. They know what is good for the whole area and for specific localities and it’s only proper they have some say in what conditions are necessary on any licence.

Contrary to this is involvement of local health bodies. It is proposed to make them a responsible authority and give them more involvement. Their views are important with regard to the whole area but will be very limited with regard to the majority of individual applications.

The paper acknowledges that “there are numerous instances of local businesses working with the police and others to reduce alcohol related harm whilst promoting their own interests” but offers no credit for this and suggests that fees globally be set “to reflect the costs of policing the late night economy” meaning good operators will pay as much as bad ones.

In theory, the proposal to “ensure that licensing authorities are given the freedom to respond to the needs of their local community in determining when premises can sell alcohol” is a good one but I fear election promises may be made more on political grounds than licensing ones – we are all human! There is also the fear that decisions will be made on a subjective basis as opposed to an objective one causing major inconstancies in differing locations.

The number of claims submitted by employees has increased 56% from the previous year. Admittedly a large part of this increase is accounted for by the rise in multiple claims (i.e. where more than one employee is suing the employer), up 90% from the previous year. Individual claims were up 14% from the previous year. This has resulted in an increased backlog of cases.

The most common types of claim in the Employment Tribunal were for unfair dismissal, unauthorised deductions from wages and breach of contract all of which increased in number from the previous year. Notably, claims for failure to inform and consult on redundancy were down by 65% from the previous year.

Of all the claims brought by employees, 32% were withdrawn by the employee, 31% were settled through Acas and nearly 13% were successful at tribunal.  These figures are nearly the same as for the previous year.  The report does not include information about awards and costs.

The increased number of claims doubtless reflects the fact many employers have shed staff during tough economic times.  It also shows employees are increasingly aware of their rights and are prepared to sue their employers.  As such it has never been more important for employers to ensure they have robust HR policies and procedures and take early advice in the event a claim is threatened by an employee.

If you would like any further information please contact Roger Spence on 01772 208072.

- Make your holiday plans early to avoid clashes.
- Communicate with your former partner to put your children’s needs first. Co-operate with each other and ensure clarity of arrangements, preferably in writing.
- Be open and honest as to your holiday destination – provide details of flights, accommodation, contact details etc. It provides security not only for the children but also for the other parent.
- Do not ask the children to choose. As adults you need to take the responsibility of making decisions.
- Do however allow the children to express their views as to how they want to spend their summer holidays. When you have made the decision, explain it so they know what’s going to happen.
- Do make sure the children have the opportunity to spend time with their friends over the holidays.

By adopting these simple tips, your holidays will hopefully be a happy occasion for both parents and their children.

Harrison Drury LLP was launched in 2008 by Gregory Gardner-Boyes and Andy Herricks and worked in conjunction with Harrison Drury & Co Ltd with an agreement to use the Harrison Drury name.

John Chesworth, managing partner of Harrison Drury, said: “Harrison Drury’s Blackburn operation (Harrison Drury LLP) was a stand alone business wholly owned by Gregory and Andy. They had an agreement with us to use the Harrison Drury name. As a result of their decision to break away from the Harrison Drury brand and launch a new identity, Harrison Drury will no longer have an official presence in Blackburn but will still continue to serve the Pennine Lancashire market from Preston. We wish them all the best for the future.”

Lancashire-based law firm Harrison Drury has expanded its commercial and property litigation department after appointing a new specialist solicitor.

Colin Fenny has joined the firm as an associate where he will act for owner-managed businesses and larger commercial organisations at the firm’s offices in Preston and Garstang.

The 34-year-old joined from Brabners Chaffe Street’s Preston office where he worked in a similar role for almost six years.

Colin, who is originally from Newcastle but now lives in Southport, said: “Harrison Drury is a well-respected firm and I am looking forward to the challenge of developing the commercial and property litigation team, bringing new clients on board and helping to maintain the firm’s growth.”

The father-of-two graduated in law and accountancy from Manchester University before spending six years at Royal Mail Group Plc Legal Services where he trained and qualified as a solicitor in its commercial litigation department.

Colin, who also plays for New Victoria Cricket Club in his spare time, has extensive experience of acting on behalf of both claimants and defendants in a wide range of high value and complex commercial cases including breach of contract and negligence claims, partnership and shareholder disputes, and construction, intellectual property and insolvency claims. He also acts for both landlords and tenants on commercial property matters as well as on a wide variety of real property disputes ranging from adverse possession to boundary disputes.

John Chesworth, Harrison Drury’s managing partner, added: “Colin’s appointment is the latest in a long line of new staff to join Harrison Drury who will increase our specialist offering to clients and enhance our high quality service.

“He brings a wealth of experience in commercial and property litigation and I’m sure he will become an invaluable advisor to our clients.”

Currently 40 per cent IHT is paid on an estate over £325,000. However, there is no tax payable when an estate is left to a spouse or civil partner and on the death of the surviving spouse or civil partner any unused IHT allowance can be claimed.  Therefore, for a married couple or registered civil partners the allowance is £650,000 before 40 per cent tax becomes payable.

For example, if we look at Mr & Mrs Smith.  Mr Smith dies and his estate consists of the following assets:

- Interest in house £200,000
- Bank accounts and investments £50,000
- Ferrari £120,000 
- Total estate passing to Mrs Smith is £370,000. 

There is no tax payable because his estate is passing to his spouse.

Mrs Smith dies a few years later and her estate is valued at £645,000. There will be no IHT payable.

Prior to the election the conservatives were saying that they would raise the IHT threshold to one million pounds, but the new coalition Government has indicated that Chancellor George Osborne will be leaving it as it is in his emergency budget on June 22^.

Harrison Drury’s commercial property team is recruiting.

2-3 years PQE; previous experience with a regional firm an advantage; competitive salary and flexible benefits.

Chance to part of one of Lancashire’s emerging commercial property teams.

Please send details to owen.mckenna@harrison-drury.com

1. It’s the law 

A tenancy for a period of three years or over has to be made by deed, so if you have verbally agreed a five year term, the tenant could potentially walk liability free at any time if you have not entered into a formal lease made by deed. 

2. Protection  

If you want to ensure you are able to get the property back from the tenant at the end of the lease term it is essential you have a written lease. If the lease is a periodic lease, that is, it runs from month to month or year to year, or is for a fixed term of over 12 months, it will be protected by the provisions of the Landlord and Tenant Act 1954.  

This protection restricts the rights of the landlord to get the property back at the end of the lease term, and also allows the tenant to apply for a new lease which the landlord can only object to on specific grounds. The landlord and tenant can agree that this protection does not apply, but they must follow a procedure which requires there to be a lease in writing. 

3. Insurance, Repairs and decoration

In most commercial leases the obligation to insure, repair and redecorate is placed upon the tenant. The extent of the obligation is up for negotiation, but at the very least a tenant should be made liable to pay for the buildings insurance on the property, keep the property in at least as good a state as it was at the start of the lease, making good any damage including that through wear and tear, and to decorate the property before handing it back. This will make it much easier for you when seeking to re-let the property, and if the tenant has failed to comply with its repairing and redecorating obligations at the end of the lease term, you can claim against the tenant for the loss suffered, which is usually the cost of carrying out the repairs and decoration.

 If there is no written lease the tenant has no obligation to contribute towards insurance or do anything to the premises, other than to avoid deliberate damage.  In this situation you will be out of pocket for the insurance premium and may find yourself with a steep clean up and decorating bill before you can re-let.

4. Use 

The only way you can restrict what the tenant does in your property is to have limitations in your written lease regarding what the tenant can an cannot do on the property.  This can prevent the tenant doing something on the property which may be a nuisance to you or your other tenants, and could depress rental values on your other properties or stigmatise the property they are occupying.

5. Termination 

A properly drafted commercial lease will have a provision that the landlord can get his property back if the rent is a specified number of days late, usually somewhere between 7 and 28 days. It also should state that where there has been any other breach of the lease terms, or the tenant has become insolvent, the landlord has a right to terminate the lease. This powerful remedy is known as the forfeiture clause, and only exists if it has been properly agreed, and it will be difficult to argue it has been agreed unless it is contained within a written lease.

If there is no forfeiture provision, the landlord would have to go to court and argue that there has been a fundamental breach of contract entitling the landlord to break the tenancy, but this is by no means certain to succeed.  An express forfeiture provision is essential to the proper management of commercial property.

The above are clear illustrations of the need to have a properly drafted commercial lease.  The cost of getting the lease properly drafted will be saved many times over if there is a dispute with the tenant, and in relation to costs, the lease usually provides that the tenant should be responsible for the landlord’s management costs associated with the property itself.