Lupton atticus journal issue 5 aw lr

Issue 5Let’s look at briberyA heads up on the world of modern lawEnergising Yorkshire entrepreneursMaking the case for Insolvency PractitionersSocial enterprise never tasted so good

Energising Yorkshire

entrepreneurs

a lupton fawcett denison till periodical

The story of an amazing Yorkshire-based social enterprise

Lupton Atticus Journal issue 5_AW.indd 1 05/01/2016 17:11

Contents3. The changing face of Lupton

Fawcett Denison TillHow new appointments and new servicesare helping us grow.

4. Personal Profile: Andrew Lindsay A heads up on the world of modern law.

5. Bribery and global risk Our second look at bribery and corruptionand their implications for UK business.

6. Making the case forInsolvency Practitioners A look at how Insolvency Practitionerscan be an invaluable trusted partner,not just a last resort.

8. Business Advantage Scheme News of our exciting ‘entrepreneurship’collaboration with Leeds Beckett University.

10. HR support: too good to be true A warning about the misleading claims ofsome HR and Employment Law ‘specialists’.

12. Consumer rights: getting them right Staying within the law when it comes to providingyour customers with their consumer rights.

13. A social enterprise success story The story of an amazing Yorkshire-basedsocial enterprise and the involvement ofone of our directors.

14. Insolvency and company directors The roles, risks and responsibilities ofcompany directors when times are hard.

Welcome to the fifth edition of atticus. We’ve filled this issue with the latest news, advice, profiles and insights: essential reading for keeping your finger on the pulse and learning about exciting opportunities to improve the way you do business.

The main aim of atticus is to inform and entertain, but we also hope to give you an insight into Lupton Fawcett Denison Till, and some of our clients and contacts, along the way. We don’t intend this to be a technical publication, but we will keep you up to date with any changes and trends in the law that we think are interesting or relevant.

Finally, we fully expect to evolve and develop this journal over time to better reflect the kinds of articles that you would like to read, so please don’t hesitate to let us know what you think and to make any suggestions for future editions.

E-mail your thoughts to [email protected]

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Lupton Fawcett Denison Till

Yorkshire House, East Parade, Leeds, LS1 5BD

Leeds: T: 0113 280 2000 F: 0113 245 6782


Belgrave House, 47 Bank Street, Sheffield S1 2DR

Sheffield: T: 0114 276 6607 F: 0114 276 6608


Stamford House, Piccadilly, York, YO1 9PP

York: T: 01904 611411 F: 01904 646972

www.lf-dt.com

Kevin EmsleyChairman


At Lupton Fawcett Denison Till we continue

to develop our position as Yorkshire’s law firm

of choice for the region’s businesses and their

owners. In my introduction to the last edition, I reported

on our merger with York firm Denison Till and our view that

there’s a huge opportunity to better serve the need for legal

services for businesses and their owners in York and North

Yorkshire. Today, I’m delighted to say that our assessment

was correct, an achievement demonstrated by 35.5% growth

in our York office in the first twelve months since our

merger, and also by our expectation of exceeding

100% growth by the end of the current financial year.

The last edition also announced the first lateral hires

into our York office, since strengthened by a number

of appointments into our Private Client Department,

Commercial Property Department, Ecclesiastical and

Charity Law Department and our Construction team.

These include the appointment of Caroline Mockford

as a Director in the Ecclesiastical Department and Niamh

Batterton as a senior solicitor in Construction. We’ve also

grown our Sheffield office with the appointment of Rob

Cooke to head up Property Litigation and Joan Pettingill

in Employment Law.

In Leeds, things have been equally busy, and I’m delighted

to announce that we have been joined by Nick Bell. Nick

is a senior and highly-regarded banking lawyer, and he’ll

further strengthen each of our sector specialisms by offering

banking expertise and advice alongside our Corporate,

Property and Agricultural teams. Based in Leeds, Nick

and his team will operate across our three offices, bringing

additional depth and capacity to each offering.

Our Leeds office has also been joined by Jeremy Scott,

whose role is to build and reinforce our Regulatory team;

another important component within each of our sector

offerings, and here intended to meet the growing challenges

of our increasingly regulated commercial environment.

As always, we remain extremely keen to recruit more

first-class lawyers able to improve and broaden services

in each of our three offices. At the same time, we fully

understand that rather than seeing these offices colonised

from outside their area, those clients with particularly

strong links to York, Sheffield or Leeds are likely to prefer

their relationships to be led by lawyers from that particular

region: lawyers with a real understanding of the intricacies

and nuances of their marketplace. At the risk of turning

each of our clients and contacts into unpaid recruitment

consultants, I would urge you to encourage any first-class

lawyers that you hold in high regard – and who you believe

are held back in their current environment – to contact

either myself or your own preferred contact within the firm.

We would relish the opportunity to explore whether or not

we might improve each other’s futures.

I very much hope that you enjoy this edition and would ask

that you don’t hesitate to let us know of any improvements

you’d like to see, or any particular issues you’d like to be

addressed in future editions.

It’s been an exciting period of growth for our firm, and that has brought benefits for our clients as well as good news for us.

We’re growing, and so is our expertise and service…

Richard Marshall

A Lupton Fawcett Denison Till Periodical. Issue 5 02/03


Why did you join LFDT?

It was the opportunity to create a corporate law

department that could be distinctive from its peers.

I joined from Denison Till in York about three years ago,

where I previously headed the Corporate Department for

a number of years, and which was extremely successful.

Upon joining LFDT, I became head of Corporate, and

quickly saw that in addition to our offices in Leeds and

Sheffield, we had the opportunity to merge with my

former colleagues in York, and create a unique offering

across the Yorkshire region. As a result of that merger,

we are the only commercial law firm with offices in Leeds,

Sheffield and York. So we really do cover the length and

breadth of Yorkshire.

How do you seek to differentiate LFDT from its

competitors?

In a service industry, we are here to service the client –

it is not the other way round. They are certainly not here

for our convenience! It’s a competitive world, so we need

to deliver value at every stage of every interaction with

clients. I always believe that the cost of our service should

be less than the benefit to our clients, and we should also

strive to exceed clients’ expectations every step of the

way. I want us to differentiate ourselves, by being pro-

active, to do a lot of our clients’ thinking for them and to

bring them ideas and suggestions before they have even

thought of them. I also believe that our mind-set should be

focussed around building a relationship and making our

clients’ businesses better, rather than merely earning a

fee. If we do the first of these two things right, the last one

will follow.

What is your proudest achievement for LFDT?

I like to see young people who work with me do well.

When they say, “I have learned such a lot on this

transaction”, it gives me a warm glow. I give people a

lot of responsibility early on, and I hope, if we have

recruited them correctly, they will swim rather than sink,

and add value to our business as well as to the businesses

of our clients.

I notice that a lot of lawyers are quite defensive

and hang on to their

relationships with clients

very carefully. I prefer to

let other people make good

relationships with clients

I introduce to the firm. I

don’t think “possessiveness”

is a good thing for either

clients or the individual

lawyers who work for them.

So, if I can help create

a collegiate atmosphere, so much the better.

It is also pleasing to see my department making

inroads into new sectors and specialisms. We have a

great opportunity at LFDT to become the leading

independent corporate and commercial law firm in

Yorkshire. If we continue to run that extra mile for clients

and deliver value as well as service, then I see no reason

why we cannot achieve it.

What single piece of advice would you give

to your clients in 2015?

I would say, “don’t give yourselves an excuse that you are

the victim of a fragile market”. There is always business

out there. If your competitors are doing better than you,

there is a reason for it. Keep asking yourselves difficult

questions all the time, such as: “How can we do this

better? What can we learn from our experiences? What is

happening in the marketplace? and How can we improve

the overall service to

our clients?”

I think it is also important

to be curious about

everything, to be restless,

to be prepared to be

disruptive and to take risks.

If you keep doing the same

thing, you will keep getting

the same results; you will

also be overtaken by your competitors before you have

even realised it.

I would like this firm to be known as an innovative

and creative one. We have a very long way to go, but

everything is possible.

Andrew Lindsay

We asked the Head of our Corporate Department, Andrew Lindsay, about joining the firm, his biggest achievements and some of his personal insights into the world of law firms and their clients. A key member of our team, Andrew is a highly respected legal advisor working with a wide range of businesses and organisations right across Yorkshire and the North of England.

A heads up on the world of modern law

If your competitors are doing better than you, there is a reason for it. Keep asking yourselves difficult questions all the time, such as: “How can we do this better?”


Psst… let’s look atbribery and global risk

Director of our Regulatory and Corporate Defence team, Jonathan Cripwell, considers global risk and its implications for UK business.

Almost four years after the Bribery Act 2010 came into force,

this is our second review of bribery and corruption within

UK business. Although awareness of economic crime and the

damage it causes is higher than ever, corruption still poses a

significant legal and commercial risk for corporations doing

business around the world.

The Bribery Act 2010 constituted a complete overhaul of previous

UK anti-bribery law, much of which dated back to the early 1900s.

Meanwhile, the US has led the way with unprecedented levels of anti-

corruption activity over recent years, enforced through the 1977 Foreign

Corrupt Practices Act (FCPA), which underpins US legislation in this area.

Operational risks

For many corporations, the risks relating to bribery and corrupt

commercial payments represent one of the most serious operational

threats. This isn’t just in terms

of the impact of regulatory

investigation, prosecution and

financial penalties, but also

because of the substantial risk of

damage to brand and reputation.

On top of that – and perhaps

more significantly for individual

employees – there is also a risk

of criminal prosecution for UK

nationals, not only here in the UK

but also in foreign jurisdictions where they have operated.

Organisations in specific markets engaged in procuring

government contracts are particularly at risk. These include defence,

construction, infrastructure and healthcare, where those organisations

might be competing for business. The dangers are even greater in

certain high-risk countries where bribery might historically have been

an integral part of how business is done. While the FCPA and UK Bribery

Act are just two examples of global anti-corruption legislation, other

national legislation in regions like China, Brazil, Canada and Europe aims

to achieve the same objective, imposing severe penalties on corporations

and individuals who resort to bribery.

The UK perspective

The UK Bribery Act came into force on 1 July 2011. Prosecutions here

have been relatively few compared to worldwide enforcement but it’s

abundantly clear that UK prosecutions will steadily rise. This will

happen as worldwide regulators and enforcement agencies increase their

efforts to clamp down on corporate and financial crime.

We can expect to see an increase in prosecutions of individuals in

positions of responsibility within multinational corporations, for example

those who have engaged in bribery both domestically and in foreign

countries where their business is conducted.

The global perspective

PwC’s 2014 Global Economic Crime Survey reported that economic crime

continues to be a major concern for organisations of all sizes, across all

regions and in virtually every sector:

“As our 2014 Global Economic Crime Survey reveals, the real story

is not so much that economic crime stubbornly persists. The real story is

that economic crime is threatening your business processes, eroding the

integrity of your employees, and tarnishing your reputation”

In the US, the FCPA is extensive in its territorial application.

Many international companies with formal ties to the US (which includes

a company that has securities registered in the US) fall within its scope,

and could potentially face prosecution by US enforcement authorities.

We have seen the Department of Justice (DOJ) and the Securities and

Exchange Commission (SEC) fighting corruption with unprecedented

levels of anti-corruption activity, increasing the number of investigations,

settlements and prosecutions. This culminated in 2014 with an eye-

watering $1.46 billion paid by 10 companies to resolve FCPA cases.

The main UK prosecutor for offences under the Bribery Act is

the Serious Fraud Office (SFO). Together, the SFO, DOJ, SEC and other

worldwide enforcement agencies are increasingly demonstrating their

willingness to cooperate and coordinate investigations across the globe.

They are also achieving global corporate settlements following actions

by the authorities in different jurisdictions.

Our perspective

As a firm, we are increasingly being asked to advise on the risks

relating to bribery, both in terms of prevention and risk management but

also at the ‘sharper end’, meaning the investigation and prosecution of

clients in the UK and abroad. More and more, we are seeing investigations

that have their origins in the US and which are then coordinated

with the SFO and other national enforcement agencies to investigate

under reciprocal bribery and corruption legislation. The result is

that multinational and individual employees are being prosecuted in

numerous different jurisdictions.

Bribery and corruption is a serious issue within the global

marketplace, and Lupton Fawcett Denison Till has a dedicated team who

can guide and advise you through the complex legislation. They can also

provide both commercial and practical advice on risk management.

In view of the often very urgent nature of these issues, we field

an emergency response team which can help you 24/7, for example by

advising, assisting and representing you in the event of a

dawn raid or similar corporate crisis. In circumstances like

this, immediate on-the-ground access to legal and practical

commercial advice can often avoid the potentially negative

– and possibly disastrous – consequences of dealing with

the authorities without representation. If you’d like to talk

about any of these services, please don’t hesitate to contact

Jonathan Cripwell on 01904 561410 or Jeremy Scott on 07971 520407.

04/05

Jonathan Cripwell

For many corporations, the risks relating to bribery and corrupt commercial payments represent one of the most serious operational threats.

A Lupton Fawcett Denison Till Periodical. Issue 5


There is often a stigma surrounding Insolvency

Practitioners and businesses who seek

insolvency advice. However, the facts tell a

different story. According to a 2010 report, the

UK insolvency industry assisted businesses with

a combined turnover of £363 billion and helped

to save two million jobs.

The UK is also rated as one of the best

insolvency regimes in the world, ranking

seventh out of 189 countries, by the

World Bank and International Finance

Corporation. The reality for many is that

calling for the advice and assistance

of an insolvency practitioner can in

many cases benefit and save a business.

However, the negative stigma of calling

for the advice of a qualified insolvency

practitioner continues to influence

companies in financial difficulty. As

a result, organisations often delay

seeking the advice they need and miss

opportunities, or seek advice from unregulated advisors. Both

of these actions can contribute to the failure of a business

that could otherwise have been saved.

How can advice help?

From helping you to deal with the loss of a major customer,

to managing cash flow problems, there are a number of ways

a qualified insolvency practitioner can assist your business.

On initially meeting a client, my first thought is always “how

can I help?” As a qualified insolvency practitioner,

I look for the positive solutions in every set of circumstances

and ask myself how I can add value to a situation. Through

stimulating discussions with business owners as to the

challenges faced by their business, I am able to outline the

options available, with various solutions, to agree a way

forward. In many cases, this meeting is a real relief for owners

and directors enabling them to understand the position they

are in and the options available.. Naturally, ‘when’ a business

chooses to seek advice will dictate which options are

available, and as a rule, sooner is better. Waiting until the last

minute to seek professional advice can not only limit your

choices, but also reduce your business’s chances of recovery.

Recognising the warning signs

Any business can have a financial crisis and no business

is immune from the impact of a recession or many other

external challenges. What separates the survivors from

those that fail is that they often have a financial plan to

minimise the potential damage to their business and to

recover from any such damage.

The old adage of “failing to plan is planning to

fail” is particularly relevant today and quality financial

information is key to your preparations. Having accurate

data at your disposal can help you solve problems

before they arise, identify problems and seek timely

advice. While we appreciate the demands on business

owners, directors and management teams are already

high, the following checklist will assist you in assessing

whether you are doing the right things to monitor your

business, examining your ability to recognise weaknesses,

and reviewing your contingency plans:

• Do you have a business plan?

• Do you prepare and review regular management

accounts?

• Do you prepare and review annual cash flow forecasts?

• Do you review business costs and overheads as well

as turnover?

• Do you prepare and review aged debtor and

creditor lists?

• Do you and your fellow directors meet regularly to

review business performance?

• Do you set time aside to understand your

financial position?

Without these measures in place, your business

is unlikely to be in a position to identify and

act on future problems. It is also important to

watch for the warning signs that signify your

business is in trouble. These can include any of

the following scenarios:

• You have difficulty in paying your creditors on time

• Your outstanding debtors or potential bad debts

have increased

• You are facing increased pressure from creditors

for payment

• You are having difficulty paying HM Revenue and

Customs on time

• Creditors have commenced legal action

• Your overdraft is always up to its limit

• Your bank has returned cheques

• Your bank has asked that its facilities be reduced

• Your bank requests personal guarantees or requests

that they are increased

• Your bank requests additional security

(e.g. a legal charge against your property)

• You have difficulty in paying wages

• You are not drawing money from the business yourself

• You are using your own money to fund the business

If you are experiencing difficulties, it pays to act quickly and consult a licensed insolvency practitioner.

Insolvency Practitioners – We’re here to help!Seeking the advice of an Insolvency Practitioner is often seen as a ‘last resort’ for businesses facing financial difficulties. However, as Gareth Peckett of BHP Clough Corporate Solutions LLP explains, insolvency practitioners are far from the ‘grim reapers’ they are sometimes portrayed to be.


Gareth Peckett

06/07A Lupton Fawcett Denison Till Periodical. Issue 5

What to do if your business needs assistance?

If you are experiencing difficulties, it pays to act quickly

and consult a licensed insolvency practitioner. Calling in the

professionals at an early stage could mean the difference

between business failure and survival.

BHP Clough Corporate Solutions LLP offers free initial

consultations with one of our fully licensed insolvency

practitioners. All discussions and consultations are treated as

strictly private and confidential.

A case in point.

We were approached by the directors of a limited company

with 65 employees. The company services the construction

industry and had suffered setbacks in recent years, and as a

result, its facilities were reviewed by its bank and reduced to a

level that left the company unable to service its debts.

The company had subsequently fallen behind with

its payments, and found itself presented with a winding up

petition from HM Revenue and Customs and debts of

around £800,000.

We helped the company to negotiate with key

stakeholders, including the bank, secured lenders, HM

Revenue and Customs and trade creditors. We then established

proposals to facilitate a payment to creditors over a 5 year

period in full and final settlement of their debts.

A Company Voluntary Arrangement was agreed, which

allowed the company to retain its workforce. HM Revenue

and Customs ultimately withdrew its petition to wind up the

company, allowing the business to continue.

In the current period of economic uncertainty,

businesses in every sector face challenges. By

‘keeping a tight rein’ on your finances, planning

ahead and ignoring the stigma around seeking

advice, you can give your business the best possible

chance of staying on track.


There’s no doubt that ‘entrepreneurship’ is a

buzzword of the current era. Asked what their

ambitions are, many of today’s students reply that

they would like to have their own business or that

they see themselves as a ‘serial entrepreneur’,

when once professions like teaching, medicine

or law would have been more common.

A few figures on UK businesses

Let’s consider some interesting statistics. Here in the UK,

large businesses are classed as those with more than 250

employees, and they account for less than 0.1% of all business

enterprises. Meanwhile, more than 99% of all businesses

– 5.2 million in total – are classed as small and medium

sized enterprises, or so-called SMEs. If we break that down

still further, 96% of all businesses are what we call ‘micro-

businesses’: businesses employing just 0-9 employees.

Between 2013 and 2014 the number of micro-businesses

increased by 7%, together employing nearly 8.3m people

with a combined turnover of £655 billion. Even though

small businesses make up 99% of all business in the UK,

they account for just 12% of firms engaged in international

trade. The European Commission’s SME Performance Review

describes the UK as having “a very competitive environment

for SMEs compared to other EU member states. With a

positive outlook with increases expected in the number of

SMEs, employment and value added”.

Overcoming challenges

Lupton Fawcett Denison Till is already the law firm of

choice for many SMEs, and for good reason. Our aim is to

help entrepreneurs increase the wealth generated by their

businesses and then help them to protect that wealth. Many

of our clients are recent start-ups, falling squarely within the

‘micro-business’ category. Of those, many are businesses

in the formative stages of their evolution, when money

is especially tight and when a single decision can have a

fundamental impact on how that business develops.

The UK Government recently trumpeted the passing of

the Small Business, Enterprise and Employment Act, designed

to make the UK the best place in the world to start and grow

a business. The Act is wide ranging, and it paves the way

for businesses to get improved access to finance, including

creating fairer provision for tied pub tenants and ending

exclusivity clauses in zero hour contracts. Forcing banks

to share credit data and improve access to finance for small

businesses has been a laudable move, but in reality we expect

the Act to have minimal impact on the majority of SMEs in

the UK. In our view, it is far more important for a young and

growing business to employ the right staff and identify the

right market for its goods or services. We also think it’s vital

that new businesses retain the best advisors: people who

understand how businesses work and invest the time it takes

to really get to know a business owner, their ambitions and

their preferred way of working.

How we’re helping Yorkshire’s entrepreneurs

Lupton Fawcett Denison Till have recently partnered with

Leeds Beckett University to provide six Business Advantage

Awards, offering a £5,000 package of legal and mentoring

support to each winning business. The winners come from

varied business sectors and will gain access to one-to-one

enterprise mentoring support from a solicitor with expertise

in the relevant field required by the business. Here, specialist

subject areas include IP protection, advice on business

structures, taxation, HR conditions and employment terms,

premises advice and regulatory compliance. Our firm also has

an extensive network of industry contacts and access to other

specialist expertise, all of which we’ll be making available to

the award winners.

The 2015 Business Advantage Scheme

Award winners are:

Achille Traore

Achille is Chief Executive at Leeds Digital Hub tenant

TopScreen Media, which specialises in providing technology

and consultancy to improve companies’ customer engagement.

The firm has recently won a major contract with New York’s

World Trade Centre to help create its digital strategy.

Emma Koczy

Psychology student Emma is the founder of Atlas Insight,

a business providing intelligent insight to some of the biggest

oil, gas, engineering and power companies across the globe.

Karl Lenton and Claire Shepherd

Karl and Claire run Safe Offender Healthcare (SAFE), which

supports organisations in the health, prison and social care

sectors by helping them develop strategies, improve services

and patient outcomes, and reduce deaths in custody. The

company is currently working with prison and social care

services, the NHS and various patient groups to rethink

environments for vulnerable people. It’s currently launching

a mobile treatment unit into the Prison Service.

Tom Martin

Tom is the founder of JetSoft, a company developing software

to change the way material test data is archived and analysed

in the aerospace industry.

Martin Woods

Martin is a Director at Leeds-based search engine optimisation

(SEO) consultancy, Subpixel – a team that helps businesses

to resolve issues affecting traffic from search engines. The

company is looking to launch a software product called

SpamFlag, designed to help people deal with Google penalties

and spam.

Tam Owen

Tam is a BA (Hons) International Business student who

recently launched his new company, Nutrition2go.

The business aims to provide healthy vending machines

using state of the art touchscreen technology.

Energising Yorkshire entrepreneursLupton Fawcett Denison Till’s Director Dan McCormack

looks at how our exciting Business Advantage Scheme is promoting

entrepreneurship and helping high-flying start-ups across the region.


08/09

The thinking behind Advantage

The idea for the Advantage Scheme came after the firm

heard about the Enterprise & Innovation Hub set up by

Leeds Beckett University. Over the past 10 years the Hub

has supported over 600 emerging businesses at a number

of affordable office locations across West Yorkshire. Award

winners will be mentored in conjunction with the University,

so they’ll receive advice, reasonably priced accommodation

and access to the business and professional networks of both

the University and Lupton Fawcett Denison Till.

Through this award scheme, Lupton Fawcett Denison

Till is helping support the next generation of high-flying

entrepreneurs, playing a vital part in creating the stars of the

future while supporting job creation and growth within the

local economy.

We will be pleased to hear from any micro-businesses

and start-ups that think they might deserve a future Business

Advantage Award. Those wishing to be considered on a

confidential basis should contact Dan McCormack via email

[email protected]


Dan McCormack


For those of you who don’t know, some HR and Employment Law consultancies offer fixed-fee employment support backed by an insurance product. The big selling point here is that as well as providing HR and Employment advice, these consultancies will also defend any employment claims brought against your business. Better still, if the consultancy loses your case, they will pay the compensation, not you.

Sounds impressive, doesn’t it?

Actually, we don’t think so, and we think you need to be aware of exactly what you are signing up for. Here’s a list of some key points to be aware of: • Most of these advisors are not legally qualified,

so they don’t have the necessary skills, experience and expertise to look after you properly. Also, advisors at these consultancies lack commercial awareness of what businesses are trying to achieve, and that’s another reason their support is likely to be inadequate or unsuitable.

• Consultancies like these typically use flowcharts to advise their clients, relying heavily on a scripted ‘one-size-fits-all’ approach to their client work. This means their advice may well be inappropriate for dealing with the very specific needs of your business.

• As the advisors are usually not legally qualified, their advice is not covered by legal privilege, which means that all of their communications with you are ‘disclosable’ during litigation. In other words, if one of your employees brings a claim against you,


Andy Gilchrist

Look out for some HR and Employment Law consultancies

Andy Gilchrist, a Director and Head of Employment here at Lupton Fawcett Denison Till, has a stark warning for anyone considering using the services of some so-called ‘specialist’ HR and Employment Law consultancies.he or she is entitled to see the advice

that you received from the advisors.

• It’s almost impossible to build a trusting and lasting relationship with an advisor, as you rarely meet them face-to-face, dealing instead with whoever picks up the phone (which is often a different person each time).

• Last but not least, as employment litigation has reduced by around 80% since the introduction of fees, there is much less need for an insurance-backed product.

As well as all of the points above, there’s a more fundamental reason why the advice of these consultancies is flawed from an employer’s point of view. What they don’t

tell their business clients is that they typically advise in an extremely conservative way: by this, I mean an employee friendly way rather than an employer friendly way. This means that there are very few, if any, claims. While on the face of it few claims sounds good to some businesses, there’s more to this than meets the eye. In reality, few claims simply means that the employer is not actually doing anything which may result in a claim. Or, in other words, the employer is in fact doing everything the employee wants.

A typical example of this situation – and how it works against employers – would be an under-performing employee or an employee with a bad attitude. Although the employer will usually want to resolve the problem quickly and in a cost-effective or ‘commercial’ way, these consultancies will generally advise the employer to go through an extremely lengthy and time consuming performance management process, and even then will be reluctant to advise to dismiss. An employer will have no option but to follow the consultancy’s advice, otherwise the consultancy won’t cover the cost of litigation.

Essentially, these HR and Employment Law consultancy services are exploiting employers’ nervousness of litigation and its costs in order to sell their product. The reality is that due to the introduction of the fee regime, there is very little litigation for businesses to worry about. On top of this, most cases settle relatively early on, so a large legal cost occurs only very rarely. If this sounds familiar, or if you’re about to embark on a ‘relationship’ with one of these types of consultancies, please talk to us first, as most of our clients spend less with us than they would do with these consultancies, and crucially they receive the advice and service they want.

10/11A Lupton Fawcett Denison Till Periodical. Issue 5

You need to be aware of exactly what you are signing up for.


The regulations are designed to protect

consumers who buy goods or services from your

business, and they cover sales in a wide range of

channels, including:

• sales by mail order

• sales over the phone

• online sales

• door-to-door sales

• in-store or over-the-counter sales

In-store sales:

If you sell goods or services in-store, you are

required to include the following information

at the point of sale:

• An accurate description of the goods or services sold,

which clearly outlines the characteristic of each.

• Your contact telephone number and address, and the total

price of the goods.

In addition to this, if goods are to be delivered, you must

meet the agreed delivery date within 30 days of the date of

the contract (unless another delivery period is agreed).

Sales via your website, by phone, through the post

and on the doorstep:

• You must advise your customer, in writing, that they have

a right to cancel the contract for a period of 14 days. If you

don’t inform your customers about their right to cancel,

the cancellation period will automatically be extended to

12 months.

You should note that these cancellation periods don’t

apply if you supply bespoke goods or perishable items.

• If you sell services, your customer has the right to cancel

the contract for those services. In these circumstances,

where you are authorised to commence the provision of

the services during the cancellation period, a customer

must be specifically advised that they will become liable

for your costs if you continue to provide services up to

the date of cancellation.

• You must also advise your customers if they are to be

responsible for paying the cost of returning unwanted

goods. Customers must actively indicate that they are

aware of these costs, or other additional costs, for example

by clicking on a button to acknowledge that the payment

will be due.

Under the regulations, failing to provide the customer with

the correct information is a criminal offence, so it pays to

ensure your retail practices are compliant.

If you’d like to discuss your current

approach and policies with our experts,

please contact Darren Carter on: 0113 280 2087,

or email him at [email protected].

Senior Commercial Solicitor, Darren Carter, asks whether your consumer contracts are up to date, because you could be breaking the law if not. Under the Consumer Contracts (Information, Cancellation and Charges) Regulations 2013, retailers must offer consumers clear information at the point of sale, whether that’s in-store, online, on the doorstep or over the telephone.

The detail behind retail

Darren Carter


If you had predicted two years ago that by mid

2015 I’d have established a social enterprise that

involved running a café, I would have laughed.

If you’d said that its

two core principles

were to use only ‘waste’

food and to allow

customers to pay what

they wanted, then

I’d have thought you

had lost all sense! In

actual fact, you would

have been right on

both counts.

It was responding to an email in autumn 2013 that led me

to where I am now: part lawyer, part social entrepreneur. The

email came from Adam Smith, a young man determined to reduce

the amount of food that goes to waste. Then in Australia, Adam’s

initial email asked for advice on setting up a social enterprise. He

had – and still has – a desire to “really feed the world”, but he’d

been advised to start in his own backyard, Leeds. So, with advice

from me on the legal structure, Adam then established The Real

Junk Food Project (TRJFP) in December 2013. The first ‘Pay As

You Feel’ café opened in Armley shortly after.

I’ve been advising charities and other third sector

organisations – sometimes called social enterprises – for over 20

years now, acting as trustee of various organisations for many of

those years. I’ve provided my legal know-how and, in return, gained

practical experience of being a trustee – experience that helps

when advising.

Following the creation of the first café, what I hadn’t

expected was quite how quickly the idea would spread, through

West Yorkshire, the UK and even internationally. There are now

over 60 cafes running on these principles, as far afield as Berlin,

Israel and Cape Town. Each café or group of cafes is independent,

but they all sign up to an agreement committing them to

supporting the movement’s key concepts.

My role quickly evolved from being the legal advisor to

dealing with a whole range

of queries. Some issues were

legal, others practical,

as TRJFP began dealing with

national and international

media organisations,

political groups and large

corporates, primarily in the

food sector. Out of this came

the development of a charity

designed to promote and

support education in the field

of food waste – TEJFP Charitable Foundation – which I became

a trustee of.

Lupton Fawcett Denison Till has been very supportive from

the outset, taking a flexible and open approach to accepting my

continued role as a director of the firm on a part-time basis. This

support enabled me to develop The Shipley Food Project CIC

social enterprise and, in December 2014, open Saltaire Canteen:

a café in the World Heritage Site operating on the principles of

TRJFP. The Canteen now opens 6 days a week with 3 full-time

employees. Since opening, we’ve intercepted over 9 tonnes of

food that would otherwise have gone to waste. Our food currently

comes from wholesalers and a local market, and we recently won

the support of a major supermarket who are trialling working

with us. We use this food to serve meals at the Canteen as well as

produce hot meals for a food bank we run, a local job club, and for

a monthly dinner for 70 asylum seekers. Central to what we do

though, is to confound expectations of what ‘waste food’ actually

is. We have two fantastic chefs and many eager volunteers who

together, enable us to produce inventive, varied and flavoursome

food. A typical recent menu included butternut squash soup, lamb

moussaka, mushroom risotto, aloo gobi with spiced parsnip crisps

and chicken Caesar wraps, together with cake and excellent coffee.

There are parts of running a small business that involve

dealing with personnel, administration, tax and property issues

as well as specific matters relating to food supply and media. For

example, I hadn’t anticipated doing a last-minute live interview

on the main Russia Today TV channel! There have also been

issues specific to third sector organisations – like dealing with

volunteers and considering funding streams –which I’ve been able

to adapt and implement in my client work. One particular theme

is the concept of cross-subsidisation. A social enterprise needs to

generate an operating surplus to be viable long term, so parts of

such an organisation should produce funds that can then be used

to support parts not expected to generate income.

There are aspects of the business that are unique. We want

to radically change the levels of food waste and, by doing so,

expect to put ourselves out of business within about five years.

This is not a model I’ll be expecting other clients to adopt!

As for the future, through a joint venture with a Bradford-

based charity we’ve now obtained a licence to occupy a 5000sq

foot warehouse in central Bradford. From here we’ll receive a

greater volume of food from across the district, and using the

cross-subsidisation referred to above, we’ll be able to support a

whole series of similar Pay As You Feel cafes across Bradford. The

majority of these will be in areas of significant urban deprivation.

Involvement with the project has given me a rounder, more

hands-on experience of life as a start-up enterprise where I’ve

had to act effectively in various roles including in-house lawyer.

I really hope this widened perspective will be reflected when

advising others.

It’s been an exciting and surprising 18 months since that

first email but I’m confident that in another 18 months we’ll be

significantly further on in our quest to “really feed the world”.

12/13

Social enterprise never tasted so goodDuncan Milwain is a Lupton Fawcett Denison Till Director and head of our Charities and Social Enterprises Group (CSEG). Here, he gives us a fascinating glimpse into his professional and personal involvement with a groundbreaking social enterprise transforming wasted food into much-needed (and mouthwatering) meals.

I’ve provided my legal know-how and, in return, gained practical experience of being a trustee – experience that helps when advising.



Plotting the right route for company directors

One aspect of the financial difficulty that a company may face, and which can be often overlooked, is the duty of directors in such situations and the legal implications of them taking one particular course of action over another.


Being in the eye of a financial storm is a difficult and

stressful position for any director to be in. It is therefore

of crucial importance to adopt a rational approach to all

matters and to carefully explore the legal and commercial

implications of taking certain decisions.

The period in question prior to the failure of a

company is often referred to as the “twilight period”.

This is the period of time ending with formal insolvency

proceedings, during which

transactions entered into

by a company, or decisions

made by directors, are

vulnerable to subsequent

attack by an insolvency

practitioner. These

decisions may also give

rise to personal liability

on the part of the directors and/or others involved in the

management of the company.

Under normal circumstances, a director has a

statutory duty to act in a way he considers, in good

faith, would be most likely to promote the success of

the company for the benefit of its members as a whole.

However, it is during the period when a company is

insolvent that this duty is displaced and at that moment,

directors must exercise their powers and discharge their

duties in line with the interests of creditors of the company.

Apart from the statutory penalties of wrongful

trading and fraudulent trading, directors can also be caught

out in numerous ways, including: fraud in anticipation of

winding up transactions, defrauding creditors, falsification

of books and records, destruction of books and records,

falsification of representations to creditors, misfeasance

and breach of fiduciary duties to the company and

creditors as a whole.

Furthermore, during this period of time, incurring further

credit in the company’s name will be subject to substantial

scrutiny, once formal insolvency proceedings have

commenced. If incurring that credit doesn’t worsen or

prejudice the interests of the creditors of the company

as a whole, then generally speaking that may not be

subsequently impeachable. However, careful consideration

needs to be applied to each decision.

It is against this

backdrop that directors

owe it to themselves to

take prompt and sound

advice in relation to all the

legal aspects arising from a

company facing insolvency.

In fact, failure to seek

guidance may easily land

directors in a far worse situation. The director who takes

sound professional advice and minutes his reasons for

taking a particular course of action will find himself in

good stead should his actions be subsequently challenged

post insolvency.

Needless to say, it is not only formally appointed

directors who can be subject to these considerations.

De facto and shadow directors, i.e. those who act as

directors in everything but name are equally liable to

attract the attention of an insolvency practitioner

following a formal insolvency.

Another consideration for directors of insolvent

companies is the potential for disqualification for acts

undertaken in the ‘twilight zone’. If the director’s conduct

has been such that it is in the public interest that he or

she should be disqualified, then the Secretary of State can

make an application to court seeking a disqualification

order. Alternatively, they may invite the director to offer an

undertaking not to act as such for an agreed period of time.

Interestingly, in a move to modernise and strengthen

the directors disqualification regime, there have been

some recent amendments to the Company Directors

Disqualification Act 1986. One of the new, and most

notable, provisions is that the Secretary of State can not

only seek an order from the court banning a director from

acting as such, but also for a compensation order to be

made against the director. A director may also be required

to give an undertaking to the same effect i.e. that a sum of

money is paid for the benefit of a certain creditor or class of

creditors, or to make a general contribution to the assets of

the company.

Rogue directors in the past have seen

disqualification orders as an occupational hazard.

However, now that the compensation provisions are

to be enacted, the Secretary of State has a further

set of teeth to deal with poor conduct on the part

of directors.

The provisions of the Small Business

Enterprise and Employment Act 2015 in relation

to the Company Directors Disqualification Act

are in force and the regulations determining

the operation of compensation orders and

undertakings have been in operation from

1 October 2015.

The new rules only apply to conduct after

this date, so the new regime will take some time

to bite, however we feel that directors of failed

companies will be facing a harsher regime than

hitherto. This regulatory change should certainly

make directors reconsider their conduct

and action.

James Richardson

14/15

Failure to seek guidance may easily land directors in a far worse situation.



Our businessstrategy is simple.We help ourclients succeed.

Business is never as usual at Lupton Fawcett Denison Till – it’s the result of our unique approach to client relationships. We are prepared to think in an untraditional way, and advise you as though we were advising our own business. It’s a culture that’s helped us form solid partnerships with businesses all over the country. We call it The Law of Advantage.

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Documents

Lupton atticus journal issue 5 aw lr