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Issue 10 Winter 2012/13
www.twmsolicitors.com
New Partner in FamilyWe are delighted that
Lindsey Alexander
has joined us as a
Partner in the Family
& Matrimonial team,
working at the Epsom
office and serving clients
across inner and outer
London. Lindsey joins
TWM from City lawyers
Memery Crystal.
She has wide experience in all areas of family law, divorce,
matrimonial finance, cohabitation and private law children
work. Lindsey frequently advises in the preparing of Pre
Nuptial Agreements for both UK residents and non domiciled
individuals living and working in London. Like all of our
family solicitors, Lindsey is a member of Resolution, as well
as a practising collaborative lawyer with wide experience in
this form of alternate dispute resolution.
She is named as a Leading Lawyer in the Family
& Matrimonial category of the 2012 edition of the
Citywealth Leaders List, published by Citywealth, based
on recommendations from within the private wealth
management sector as well as their clients.
Commenting on Lindsey’s arrival, Head of Family Sarah
Cornes said. “That Lindsey has chosen TWM says a lot about
the high regard our Family & Matrimonial team is held in by
our peers. The team has grown significantly during 2012,
and we have maintained all of our independent directory
recommendations. With 11 solicitors, all qualified as
collaborative lawyers or mediators, the TWM team is one of
the largest and most experienced in the south east”.
TWM website gets a makeoverOur website has been updated. The design is cleaner
and hopefully more intuitive, with all relevant information
about a topic included on the page in view. The site
will be updated frequently as we add information, blogs
and expert views in those areas of interest to clients and
contacts. We would be pleased to receive any comments
you may have on the new site.
Lindsey Alexander
ChristmasIn support of Surrey Air Ambulance we will be sending
their e-christmas card and making a donation to the
charity in lieu of postage costs.
Our offices will be closed from 4pm on Friday 21 December 2012 reopening at 9am on Thursday 27 December 2012. For New Year, the office will close at
4pm on Monday 31 December 2012 and re-open at
9am on Wednesday 2 January 2013.
We would like to wish everyone a Merry Christmas and a
Happy New Year.
In search of Surrey’s Young SuperstarsTWM Solicitors together
with Haslemere Travel have
joined together to launch
the Surrey Young Superstars
Awards 2013, to spotlight the many achievements of young
people in the county.
The inaugural awards, to raise awareness of Surrey
Air Ambulance, and in association with Surrey Life
magazine and SATRO, will reward and showcase young
people’s efforts and honour them for their hard work and
achievements.
Surrey Young Superstars was launched at Haslemere
Educational Museum on 19 November. The awards
event for prize winners will take place on 1 May 2013 at
Guildford’s GLive. The award categories, include:
• CaringSuperstar
• VolunteeringSuperstar
• BusinessSuperstar
• SportingSuperstar
• FundraisingSuperstar(Group)
• FundraisingSuperstar(Individual)
• EcoSuperstar
If you would like to make a nomination for an award, the forms
and all necessary information is on the Surrey Life website.
Listen upTWM will be coming through your radio during the month
of January. Our New Year, New Priorities campaign breaks
on 7 January on both 96.4 Eagle and Radio Jacky. January
is the month when people tend to ear mark their ambitions
and aims for the year ahead. For some it might be moving
house, for others it might be getting personal or family affairs
in order. Our message is that TWM is here for whatever or
whenever we might be needed.
Re-joinersIt says something about the kind of law firm and
employer that TWM is when staff who had left return.
In recent months there have been two such instances.
Sarah Cornes who was at TWM for 17 years before
leaving in 2008 re-joined in June to head our family
team. We are also delighted to welcome back Michelle
Leggett who left in 2009 to bring up her young family.
Michelle will work as an associate in our Reigate office
privateclientteam,inplaceofWendyBosler,who
retires on 31 December. We thank Wendy for her
significant contribution to TWM and wish her a very
happy retirement!
Independent recognition for TWMChambers UK, a leading annual
independent guide to the legal market
has recently published its latest edition.
Commentary regarding TWM’s services
were as follows:
Contentious Trusts & ProbateThe “experienced and wise” Guy Perkins leads the
contentious probate group at TWM Solicitors. “He is
able from the outset to identify the issues and potential
solutions,” comment clients.
Family / MatrimonialThis firm maintains a formidable practice representing
clients in high-value matrimonial finance cases, often
involving trusts and overseas assets. The firm is also
capable of handling Children Act matters.
Private ClientThis group increasingly wins recognition for its involvement
in complex private client matters. The team is skilled with
estate administration, inheritance tax planning and trust
restructuring. The bulk of the practice’s work in Guildford
is non-contentious, although it often involves multiple
jurisdictions. “The group works well, with all members
aware of the tactical decisions, objectives and progress,”
states a market commentator.
Real EstateThe real estate team at TWM is recommended by
clients for its service and value for money. The team is
also praised for its “creative thinking,” commerciality
and attention to detail. Clients include Asprey Homes,
Handelsbanken and Riseden.
Dispute Resolution - Funding litigation cases
Damages Based Agreements – (DBAs)These are commonly known as “contingency fee”
agreements, which are widely used in the USA. Lawyers in
this country have always been prohibited from entering into
suchagreements(otherthaninemploymenttribunals)but
they are now being promoted as an integral component of
litigation funding.
TheActwillallowtheuseofDBAsinallareasofcivil
litigation. Such an agreement between the client and his
lawyer will allow for the lawyer’s fee to be calculated as
a percentage of the amount of damages that the client
becomes entitled to as a result of a successful legal case.
There will be a 25% cap on the amount of damages,
excluding damages for future care and loss, that can be
takenasalawyer’sfeeunderaDBAinpersonalinjurycases,
and a cap of 50% on damages for all other cases under a
DBAincivillitigation.
Cost Protection in Personal Injury Claims: Qualified One-Way Cost Shifting (QOCS)
Under QOCS, if the claimant wins his action, the defendant pays
both sets of costs, but if he loses he will only pay the defendant’s
costs if he has, in relation to his claim, behaved unreasonably,
fraudulently,orhasfailedtobeatawithoutprejudice(Part36)
offer to settle made by the defendant. That is to say, he recovers
less at trial than he was offered by the defendant.
Other measures being introduced within the Act, or in parallel
with it:-
• Damagesforpain,sufferingandlossofamenity(general
damages)awardedinpersonalinjurycaseswillbe
increased by 10% over the amounts currently awarded
by Courts.
• Therewillbeanewruleonproportionality;thetestis
intended to control the cost of activity that is clearly
disproportionate to the value, complexity and importance
of the claim.
• Referralfeeswillbeprohibitedinpersonalinjurycases.
These are fees paid by lawyers to claims management
companies who pass clients to lawyers in return for a fee.
The Ministry of Justice says “These civil justice reforms will
restore a much needed sense of proportion and fairness to
the existing regime, not by denying access to justice, but
by returning fair balance to the system”. Only time will tell
whether the reforms will achieve this objective.
Guy Perkins – [email protected]
Lord Justice Jackson was commissioned by the Government
back in 2009 to undertake a review into the legal profession,
and, in particular, how solicitors and barristers charge their
clients, and the basis upon which costs can be recovered by a
successful party against an unsuccessful party in civil claims.
Following the publication of his report, the Government will
implement a significant number of his recommendations
in April 2013 through Part 2 of the somewhat curiously
named Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Belowaredetailsofsomeofthemoresignificantreforms
affecting legal costs and the funding of litigation.
Conditional Fee Agreements – (CFAs)
Known more commonly as “no win, no fee” agreements,
CFAs offered an attractive alternative to “pay-as-you-go”
funding of cases, particularly for those of limited means.
Under the existing model of CFA, the successful party can
recover from the unsuccessful party, not only their solicitor’s
standard costs, but in addition the success fee that they had
agreed with their solicitor and, if they had taken out “after the
event”insurance(ATE),thentheinsurancepremiumaswell.
The Act will abolish the recovery of success fees and ATE
insurance premiums from the losing party. People will still be
able to use CFAs but will have to pay their lawyer’s success
fee and any ATE premium themselves. There are limited
exceptions in respect of ATE insurance premiums relating to
expert’s reports obtained in clinical negligence cases.
Whereas before there was no statutory cap on the percentage
of success fees recoverable, the Act will impose a 25% cap
on success fees in personal injury cases.
Employment - Employment rights for shares - A fair swap?
Theywillalsoloserightstostatutoryredundancypay;to
requestflexibleworking;andtorequesttraining.
Rather curiously, any employee shareholder returning
early from maternity or paternity leave will have to give 16
weeks’ notice.
Comment
The proposals have met with a mixed reception, with many
commentators remaining sceptical. Only a “very small
number” of respondents to the consultation welcomed the
new status and expect to utilise it. It is hoped that matters
will become clearer as the legislation makes its way through
Parliament, but grey areas remain:
• Willthecomplexityofthelegalandtaxrulesbeoff-putting
to the small and medium sized businesses at which
the scheme is aimed? There will be no requirement for
compulsory independent legal advice for individuals
considering employee shareholder status.
• Acceptanceofthecontract,byanewjoiner,isvoluntary.
However, they may have little choice if they want the job!
• Willthelossofunfairdismissalrightsleadtoanincrease
in employee shareholders’ remaining claims, such as
discrimination and automatically unfair dismissal?
• Existingemployeeswillbeabletoremainontheirexisting,
traditional contracts if they choose. How will the creation of
a mixed workforce impact on employee relations between
those with and without full employment rights?
• HowusefulistheCGTexemption,giventhecurrent
£10,600 annual allowance that already exists?
• TheGovernmentsuggeststhat“incertaincircumstances”
an employer could buy back shares at less than market
value(maybewhereanemployeewasdismissed).Thus,
an individual who considers himself to have been unfairly
dismissed could not claim compensation nor receive the
full value of the shares which were meant to compensate
him for the loss of this right.
Further details are expected in the New Year, before the
new changes are implemented as part of the Growth and
InfrastructureBillinApril2013.Itremainstobeseenhowthe
concerns will be ironed out and how popular the new status
will be once introduced.
Clare Chappell – [email protected]
The last 2 years have seen a raft of proposals and
consultations designed to reform employment law. The
latest of these is the consultation on implementing employee
shareholder status. Initially called ‘employee owner’ status, it
was changed soon after the consultancy period closed. This
wasbornoutofthe‘NuttallReview’(designedtopromoteand
facilitateemployeeownership).
The key proposals are:
• Anewstatusof‘employeeshareholder’willbecreated;
• Anindividualjoiningafirmasanemployeeshareholder
will be issued with fully paid up shares worth at least
£2,000;and
• Inreturn,theemployeeshareholderwillforfeitcertain
statutory employment rights.
The offer will be available for new joiners and acceptance will
be voluntary. Existing employees could also choose to accept
an offer of a new contract.
Shares
It seems that the shares will be valued at their restricted
market value. Employers will be free to put restrictions on the
shares(egrestrictionsondividendsorvotingrights).Valuation
methods could also impact on the taxability of the shares.
Ultimately, employee shareholders could be getting less than
they expect.
It is likely that employers will require employee shareholders to
forfeit their shares on termination of employment. The buy-
backmechanismforthisistobesimplified(throughchanges
totheCompaniesAct2006)buttherearestillissues,not
least that the forfeiture conditions are to be left to contractual
agreement between the parties. How harsh can an employer
make the forfeiture conditions without unreasonably restricting
the value of the shares?
The good news is that any capital gain made by the employee
shareholder will be exempt from CGT, although the value of the
shares for CGT purposes will be capped at £50,000. However,
the normal rules for Income Tax and NI Contributions will apply.
Employment rights
Employee shareholders will lose their entitlement to claim
unfair dismissal, unless it is for one of the automatically
unfair reasons, such as whistle-blowing or raising health
and safety issues.
Family & Matrimonial - Popping the question: Are pre-nuptial agreements now binding?
The Court is likely to consider it fair to hold couples to an
Agreement provided:
• TheAgreementissignedatleast21daysbeforethe
wedding;
• Therewasnoduress,fraudormisrepresentation.
• TheAgreementisnotmanifestlyunfair;
• Bothspousesreceivedindependentlegaladvicebefore
enteringintotheAgreement;
• Bothspousesprovideddisclosureoftheirassetsand
income.
In addition, Pre-Nuptial Agreements cannot prejudice the
financial provision to be made for any children of the family
on divorce. It is therefore recommended that Pre-Nuptial
Agreements do not deal with financial provision for the
children.
Since the landmark case of Radmacher, the Courts have
continued to refine the law, and in the 2011 case of Z -v- Z
the Court accepted that the wife had full understanding
of the implications of the Agreement, even though she
had no independent legal advice and there had been no
disclosure of the parties’ assets. Although the Court held
that the wife should be bound, in deciding the division
of the assets the Court awarded the wife more to take
account of her needs.
A Pre-Nuptial Agreement should be particularly considered if
one or other party:
• Hasbeenmarriedbefore;
• Hassignificantwealth;
• Haschildrenandseekstoprotecttheirinheritance.
Law Commission
Pre-nuptial Agreements are likely to continue to receive
press, government and Court attention in the coming
years. The Law Commission is currently considering the
status of Pre-Nuptial Agreements under English law and is
due to report on its proposal for reform in late 2013. If the
Commission follow the trend started by the Court Pre-Nuptial
Agreements may become legally binding.
Case law in this area is continuing to develop but it is largely
case specific, and specialist legal advice tailored to a client’s
individual needs is essential.
Lindsey Alexander – [email protected]
Pre-Nuptial Agreements can regulate the distribution of
assets in the event of marriage breakdown rather than
leaving the decision to the Court, or to the parties to try
and reach an agreement at a difficult and emotional time
should the marriage break down.
Often couples acknowledge it is fair that where one party
has generated or acquired wealth before the marriage
that it is not necessarily to be shared in the event of
divorce. A Pre-Nuptial Agreement properly prepared with
the benefit of legal advice can be extremely persuasive
although they are not however currently legally
enforceable.
Radmacher v Granatino was a decision of the Supreme
Court(thehighestappealcourt)in2010.MrGranatino
had married a wealthy German heiress Katrin Radmacher
and had entered into a Pre-nuptial Agreement which
protected her substantial interests in the family business.
He was bound by the Pre-nuptial Agreement and as
a consequence was awarded a £5.5m house which
he can continue to occupy with the children and a
lump sum capitalising his maintenance needs whilst
the children are in his care. In the Judgment it was
ruled that “The Court should give effect to a Nuptial
Agreement that is entered into freely by each party with
the full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the
parties to their agreement”.
Commercial Property - Green deal cashback scheme to include landlords
Company Formations - Cheap may not always be cheerful
In order to encourage take-up, the Department of Energy
andClimateChange(DECC)hasnowannouncedthatwith
effect from 28 January 2013, homeowners will be eligible
for cashback of up to 50% of the householder’s contribution
to costs. The government has set aside £125 million for the
cashback scheme which will be available on a ‘first-come
first-served’ basis for households in England and Wales. The
cashback rates that apply to different energy saving measures
are published on the DECC website.
In addition to owner-occupiers and tenants in privately
rentedorsocialhousing,theBritishPropertyFederationhas
confirmed(inconsultationwithDECC)thatthecashback
will also be available to private and social landlords paying
installation costs, up to certain limits. Landlords will be able
to claim cashback either where they pay for improvements
up front, or where Green Deal financing is used where the
landlord is the bill payer. Landlords can also claim cashback
on multiple properties, provided the amount claimed does not
exceed state aid limits.
Adrian Price – [email protected]
experienced in company law and company formations. We are
experienced in company formations, and as a full service legal
firm, we can also advise on related issues, such as employment
contracts or Wills.
At TWM Solicitors we are transparent about fees relating to
companyformations.Ourstandardchargeis£250plusVAT.This
fee includes the Companies House fee, and for this service you
get peace of mind that a law firm is dealing with your company
formation, in a professional manner and ensuring that obligations
as to the formation itself are being complied with. This fee also
includesalltheextrasyouwouldexpect;statutoryregisterswritten
up(electronicand/orhardcopy),hardcopycompanybooks,first
board minutes, and either model articles, or bespoke articles of
association(forpropertymanagement/residentscompaniesonly).
We can also act as company secretary to remove the burden
of day to day filing and statutory obligations from the company
directors(though,notethatdirectorsthemselvesarestill
responsible for ensuring that statutory obligations are complied
with,andfilingsmade),aswellasactingasregisteredoffice,for
an annual fee.
Amy Rees – [email protected]
Further to the recent launch of the ‘The Green Deal’, the
coalition’s flagship initiative to improve the energy efficiency of
buildingsinGreatBritain,thegovernmenthasnowannounced
a Green Deal Cashback Scheme to incentivise homeowners and
residential landlords and tenants to make use of the scheme.
The Green Deal was included as part of the Energy Act 2011,
and came into force on 1 October 2012. The primary aim of
the scheme is to allow homeowners to make energy efficiency
improvements to their properties now by removing the up-front
costs of such measures and allowing them to be repaid over
time via the property’s energy bills.
Once improvement measures have been agreed with an
approvedGreenDealProvider(essentiallyenergycompanies,
withhighstreetnamesexpectedtoparticipateintime),
householders will enter into a Green Deal Plan with that provider,
and the improvements will be made to the property. The cost of
the installation will then be recovered over time via the electricity
bill for the property, creating a ‘pay as you save’ mechanism,
on the basis that the measures taken will eventually pay for
themselves by the savings made on energy bills.
Type company formations into any internet search engine and
you will find providers offering this service for what appears a
knock-down rate, sometimes as low as £50.
The small print of such formation agents can state that the
feeadvertisedisexclusiveofVAT,CompaniesHouse,and
any other professional fees, so that £50 formation is now
probably closer to £70. Many providers offer different levels
ofservices;youmaynotbegettingmuchforyourbasic
“£50” fee. Mistakes can be made, articles of association can
be poorly drafted, and in the long run, that cheap formation
you purchased could end up costing you more than you had
bargained for.
Formation agents normally do not provide advice on whether
the chosen structure of the company is appropriate for the use
intended;theysimplyformthecompanyyouadvisethemof
and do not ensure it is completely suitable for your needs. Most
formation agents do not tend to offer a bespoke service tailored
to the client’s needs, and keep their charges low by assuming
one size will fit all.
Perhaps worryingly, company formation agents are not required
to be regulated, and in some instances may not be qualified or
Residential Property - Chancel repair liability
Wills & Probate - Cross-border problems
• Obtaininsurancecoverwhichwhileaffordableformost
dwellings can become prohibitively expensive if the land
beingacquiredisoverfiveacres.Bewarethoughpolicy
detailsvarybetweenproviders;or
• Thepurchaserto“buyout”theliability.Thisisentirelyat
the Church’s discretion.
The future of CRL will become clearer and easier after 2013.
With effect from 13 October 2013 CRL will only bind new owners
of registered land if it has been protected by an entry on the
title to the property at the Land Registry. Where a piece of land
is unregistered and is subject to CRL, that liability will continue
even after the 13th October 2013 so long as the property
remains unregistered. This puts the onus on the Parochial
Church Councils to identify all affected land and register their
interests before that date. It is important to highlight the fact that
only a purchaser after 2013 will take the property without liability
- existing owners of land will remain liable.
Jonathan Potter - [email protected]
Thus a Regulation which aimed to simplify things has merely
created a different set of problems.
The personal circumstances and needs of each individual
client must be taken into account, and a specifically tailored
solution found for each. Please seek advice from any of
our Private Client solicitors who will, if necessary, involve a
memberofourspecialistCross-Borderteam.
Nigel Harding – [email protected]
The media has widely reported the story of 30 households
intheCotswoldvillageofBroadwaywhoareunhappyatthe
prospect of being forced to pay for the upkeep of the local
St Eadburgha’s church.
The prospect of paying a charge dates back to the time of
HenryVII,whentractsoflandownedbythechurchweresold
off to private individuals. A liability to repair the Chancel of
the Church passed with the land, known as a Chancel Repair
Liability(CRL).Theremaybeasmanyas5,200parishes
where there is land which might be subject to a CRL.
Establishing if a CRL applies to a particular property is
difficult since there is no single register. For those people
purchasing a property, conveyancing solicitors will establish
whether or not a Parish in general might have land which is
subject to a CRL, but for those wanting greater certainty, the
options are:
• Amoredetailedsearch(£300-£400)whichcantake
sometime;
There have always been problems where someone owns assets
inmorethanonecountry.UndertheConflictofLawsRules(CLR)
of English law, it is quite possible to have more than one system
of laws applying to one’s estate, depending on one’s personal
circumstances and the country where the assets are situated.
ThenewEuropeanSuccessionRegulation(BrusselsIV),
which is in the process of coming into force, aimed to simplify
the situation in Europe so that only one set of laws would
apply to an estate. However, the UK, Eire and Denmark have
alloptedout,andBrusselsIVdoesnotapplyhere.
If a testator, who is a UK national owning assets in a
European country, says nothing in his Will then English law
(asthelawofhishabitualresidence)withallitsCLRwillstill
apply in that European country and we still have more than
one system of law involved.
However, if the same person opts, under his Will, for English
law(asthelawofhisnationality)toapplythentheEuropean
country will disregard the English CLR and apply English law
no matter what our CLR say.
The position is equally complicated if a foreign national,
habitually resident in England, wishes to make a Will here.
Ourrulesastodomicile(whichisnotthesameashabitual
residence)mustbetakenintoconsideration.
Golf Clubs to the Fore!We were pleased to have the opportunity to share our
knowledge and expertise advising golf clubs at a recent
meeting of Surrey Golf Union. We work or have worked with
nearly20clubs(bothmembers’andproprietary)onprojects
ranging from small scale property disputes to the sale and
purchase of Clubs.
We were hosted by Effingham Golf Club and talks covered
topics including:
• Equality
• Incorporation
• CommunityAmateurSportsClubs(CASC)
• Redundancy
• Issuesaroundland
• Telecomsmasts
• NatureoflegalrelationshipswithClubsuppliers
Notes of the talks are available from the golf club page on our
website, alternatively please contact Anne Fowler, Peter
Stevens or Patrick Stewart.
Jacky and Sarah qualify as MediatorsJackyButtandSarahBostockhavebothrecentlyqualified
as mediators, meaning that all of the solicitors in our family
and matrimonial team are either mediators or collaborative
lawyers. Congratulations to both.
NewsandViewsisTWMSolicitors’quarterlynewsletterforclients and contacts. The articles included in this publication are necessarily brief and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.
TWM Solicitors is a full service law firm. It is the second largest firm based in Surrey and its approach centres on achieving success for its clients.
If we can help with a legal issue, please do not hesitate to contact one of our team:
Cranleigh-RichardBland01483273515Epsom - John Sandford-Pike 01372 729555Guildford - Adrian O’Loughlin 01483 752700Leatherhead - Mark Stevenson 01372 374148Reigate - Demelza Patricio 01737 221212Wimbledon - Peter Lambert 020 8946 6454
For further information about TWM Solicitors, please visit our web site: www.twmsolicitors.com
@twmsolicitors
Support from all quarters for MovemberOur male staff were keen once again to take part in
Movember to raise the profile of men’s health issues. This
year, however, the fairer sex decided that they wanted to
chip in, as the photograph shows. Comparing the efforts
of the men and the women, we came down on the side of
the girls, by a whisker! Go to uk.movember.com for further
details.