We are delighted to announce the appointment of Theresa Grech to our Legal 500–rated company commercial department.

Theresa trained at Davies and Partners and joined Bristol-based law firm Lyons Davidson upon qualifying in 1997. She became a partner in its corporate team in 2008.

Theresa has wide experience in advising clients on business start-ups, mergers & acquisitions, reconstructions and joint ventures, corporate finance, structures and governance. She has a particular interest in e-commerce, information technology and internet related issues, and handles data protection and intellectual property matters.

She will help lead the firm’s drive to develop its intellectual property, information technology and e-commerce services as well as its more traditional corporate and business related advisory work.

Paul Symes-Thompson, head of company commercial, comments:

“I am delighted to welcome Theresa to our team. She brings us strength and versatility as she is very experienced across a wide range of commercial law matters but also provides expertise in intellectual property and information technology law.

“With her arrival, and the recent appointment in April of solicitor Patrick Peake to the department, we are well placed to service clients throughout the South West and beyond.”

Theresa Grech, commenting on her role, said:

“I am very pleased to be joining a leading law firm, and an expanding team, which has a reputation for its commercial and corporate expertise and practical commercial approach.

“I particularly look forward to developing the intellectual property practice of Willans using the experience I have gained at a major Bristol law firm.”

We are supporting Cheltenham Animal Shelter by helping them raise much needed funds through a purrfect will campaign.

Running from Monday 3 to Friday 28 June the scheme encourages people to make a basic will or update an existing will free of charge. People are instead invited to make a donation to the shelter to help the charity continue with its much needed rescue and rehoming work throughout Gloucestershire.  

Ruth Baker our wills trust and probate head of department comments: “Having your will drawn up professionally can offer you peace of mind that everything is left in order after you die. An up-to-date will is essential to ensure those you love are provided for on your death, if you die without one families can suffer deprivation, delay and distress.”

Suggested donations are £40 for a codicil (amendment to your existing will), £90 for a basic single will or £135 for a pair of basic mirror wills (ie husband and wife).

Deb Barron of Cheltenham Animal Shelter said: “The shelter cares for more than 1,000 unwanted, stray and abandoned dogs, cats and small animals each year. It costs us around £500,000 to feed, shelter, vaccinate and rehome these unwanted pets and this figure is increasing with the cost of living and the growing number of animals needing care. Please help us by participating in our purrfect will scheme.”

“We are very grateful to Willans solicitors for helping in this worthy campaign by providing the wills, probate & trusts team’s time free of charge.”

For more information or to book an appointment, please call Miranda Hawkes on 01242 514000 or email miranda.hawkes@willans.co.uk, mentioning the Cheltenham Animal Shelter’s purffect will campaign.

This week sees the High Court hearing Henning Berg’s claim against his former club, Blackburn Rovers, for unpaid wages. It follows Michael Appleton’s sacking from his position as manager of the same club last week, after just 67 days in the job. Berg enjoyed a similar fate prior to Appleton, having been sacked in December after 57 days in charge. Blackburn have now had five managers this season alone.

Appleton was sacked by a man he had never met, and without the knowledge of the club's managing director, Derek Shaw. During his 67 days at Ewood Park, Appleton did not exchange a single word with global advisor Shebby Singh until last Tuesday morning, the day he discovered he was no longer required.

The woes of premiership football managers provide constant fodder for the tabloid media. However this particular sorry tale raises a couple of interesting legal points as well. 

Even though Singh is not a statutory director of the club, he would have had ‘ostensible authority’ in Appleton’s eyes to dismiss him, even though the managing director was unaware. By giving Singh the status of ‘global advisor’, the club gave him the ability to commit it to legal obligations. Many companies give senior managers a ‘director’ job title even though they are not legally registered as such at Companies House. By doing so, they give those staff the ability to create legal obligations which can be relied upon by third parties. Those individuals might also inherit the personal legal obligations which are carried by statutory directors.

Neither Berg nor Appleton would have been able to sue the club for unfair dismissal, due to their short period of tenure, even though they were both fired without any prior warning or due process. Berg’s only recourse was to try and recover the unpaid wages which were due to him. Since last April, employees only acquire unfair dismissal protection after two years’ employment. Blackburn has been able to take advantage of this, but has suffered the consequences in terms of adverse publicity.

We welcomed more than 100 clients and contacts to a drinks and canapés reception at Hotel du Vin in Parabola Road, Cheltenham.

The event gave the local business community the opportunity to meet our new partners Nigel Whittaker and Matthew Clayton and associate Alasdair Garbutt, as well as catch up with existing members of our commercial departments. Nigel and Matthew are both recognised as leading individuals by independent UK legal directories.

Nigel Whittaker and Alasdair Garbutt, both of whom previously worked at Charles Russell’s Cheltenham office, have joined our commercial property team, bringing expertise in freehold and leasehold property transactions. They act for a wide range of business clients, working with investors on the acquisition and disposal of high value commercial premises as well as for commercial occupiers and landlords including training providers, recruitment companies and public house operators. Nigel, assisted by Alasdair, has overseen the national expansion of retail shops for Sue Ryder, Scope, Shelter, Macmillan Cancer Support and other leading charities. 

City-trained lawyer Matthew Clayton, formerly head of department at Rickerbys, joined in March to head up our employment department. Matthew has worked with clients ranging from multi-national companies to owner-managed businesses and brings 16 years’ of HR and employment law expertise. 

The evening was well received and kindly supported by Gloucestershire Media and lifestyle magazine Cotswold Style. 

Commenting on the event, managing partner Margaret Austen said: 

“The arrival of two new partners is a significant event for Willans. We thought it would be a good idea to provide an opportunity for the business community, our clients and contacts, to meet our new lawyers as well as to catch up with the existing team.

“We are delighted to have appointed such high calibre legal professionals to our firm and pleased that the evening was such a success.”

To view more images of the evening please visit South West Business' image gallery http://www.southwestbusiness.co.uk/galleries/

Managing partner Margaret Austen with Willans newest team members - partner Matthew Clayton (left), associate Alasdair Garbutt and partner Nigel Whittaker (far right)

Chris Scott of Tayabali-Tomlin Ltd, Matt Daily of Clydesdale Bank, Susie Wynne of Willans, Aynsley Damery of Tayabali-Tomlin Ltd and Simon Pennels of Peace Pennels

Kevan Blackadder of Gloucestershire Media, Bridget Redmond of Willans, Jane Bradly of Painswick Rococco Garden Trust

Adrian Hocking of Albright Patents LLP, Gavin Baldwin of Trinity House Paintings Limited and Paul Gordon of Willans

Casey Mann of Miles Mann, Paul Symes-Thompson of Willans, Andy Willetts of HSBC, Sophie Widdicombe of Miles Mann and Felicity McClintock of Willans

Frank Smith of Willans, Simon Noyes-Lewis of Noyes Lewis Commercial Property and Chun F. Kong of The Mayflower Restaurant

Matthew Clayton, Alasdair Garbutt, Nigel Whittaker and Jonathan Mills of Willans

Amanda McFeely of Moog Inc, Julia Bassett of Barnett Waddingham LLP, Sylvia Bullock of Gloucestershire College and Sarah Armstrong of Cirrus Business Solutions

Pamela Cadbury & Michael Bull from BPC Partners with Margaret Austen of Willans 

Patrick Brooke of the Honourable Company of Gloucestershire and Nick Richardson of Willans

Felicity McClintock of Willans and Di Pitts of Svenska Handelsbanken

Sue Illman of Illman Young Landscape Design Ltd, Jane Bradly of Painswick Rococco Garden Trust and Laurence Lucas of Willans

Willans newest team members - associate Alasdair Garbutt, partners Nigel Whittaker and Matthew Clayton

Nick Richardson of Willans and John Timmins of South West Safety Management Ltd

In the 2013 Budget George Osborne announced that, following recommendations made in the Dilnot Report, he has decided to increase the amount of capital that an elderly person can possess before they become liable for settling the social care element of nursing home accommodation. These changes will not, however, come into effect until 2017.

At the current time an individual is considered to be ‘self-funding’ if their assets exceed £23,250. With nursing homes charging an average of £900 per week, it does not take long for an elderly person’s lifetime savings to reduce to £23,250.

Once the magical £23,250 limit is reached (and it should be noted that a claim must be lodged with the funding authorities several months prior to the balance of savings actually dropping to this level as it can take many months to process a claim for funding), a sliding scale of charging is implemented until the elderly person’s savings have reduced to £14,250 when that person will finally become fully funded by the State. The health authority then becomes responsible for nursing care and the local council for social care.

However, most elderly care home residents qualify for nursing care long before becoming eligible for social care funding, as this is based on medical need. A resident can be fully funded with regard to medical costs while being responsible for paying all of their social care costs. Social care includes the obvious items such as assistance with personal care (washing, dressing, eating) as well as the provision of accommodation generally, light, heat and power etc.

The 2013 Budget has amended the levels at which full funding for elderly care becomes available so enabling the elderly to retain more of their lifetime savings which can then be passed to their children or wider families under the terms of their will. From 2017 therefore, assistance with care home fees will be available once an individual’s savings reaches £118,000. Fees will continue to be paid on a sliding scale until the level of capital drops to £72,000 at which point the elderly person will become fully funded. This represents an increase of £57,750 and can only be seen as a considerable improvement on the current position.

For further advice please contact Ruth Baker on 01242 514000.

Proposals for a new type of employee ownership were announced by the chancellor, George Osborne last October, which would see employees exchanging some of their employment rights in return for shares in their employer company.

The government has now published its response to a consultation paper on the chancellor’s proposal which, despite a lukewarm reception from the business community, will see legislation brought in.

The Department of Business, Innovation and Skills (BIS) undertook the consultation which revealed concerns on the part of both employees and employers. Employees fear the loss of employment rights that flow from the new status, and possible coercion by employers to adopt that status.

Some commentators think the legislation is a back door implementation of Adrian Beecroft’s recommendations (in his report of October 2011) to remove unfair dismissal rights so as to make it easier to dismiss underperforming employees. However, these proposals are also fraught with difficulty for employers. Several respondents raised the issue of an increased risk of dismissal and discrimination claims, while others noted the complexity and cost for businesses of operating the new employee owner status. Employers also raised the need for all parties to be given clear guidance and advice to enable them to make use of employee owner status without requiring extensive professional assistance.

In response, the government plans to reorganise its guidance for businesses as well as individuals. One suggestion is the change of name to ‘employee shareholder’, which is thought to be less confusing. It has also been announced that the shares are to be fully paid up while some of the proposed employment rights which can be exchanged have been modified.

As employment status is already a truly complex issue, particularly with recent cases involving LLP partners, it seems peculiar for a new status to be added into the mix. Although businesses seem unlikely to enter into the employee shareholder scheme in droves, employment tribunals are likely to have to grapple with a new field of potential disputes once the legislation is passed this year.

In these economic times, commercial landlords are under increasing pressure from tenants to ensure that service charge costs are kept to a minimum, but there is a hidden danger.

Landlords need to shop around and decide whether it is cheaper for them to provide the services themselves or to outsource the provision of those services to external companies. Those who have outsourced services may consider switching to new service providers in order to get a better rate.

Although it may seem odd to talk about employment regulations in the context of service charges on buildings, landlords need to remember that TUPE regulations apply where staff have been employed to provide those services (eg security guards and cleaners). Otherwise, landlords and their service providers may be hit with unexpected claims and redundancy pay-outs.

The TUPE regulations apply whether the individuals are employed directly by the landlord, or by the management company to whom the services have been out-sourced. In practice, this means that where the landlord has up until now provided the services itself and employed staff to do so, following out-sourcing to an external service provider, the employees will transfer to the new provider. If the landlord then chooses, after a couple of years, to switch the services contract to a second company, those same employees will transfer to the new company. This is because although the company providing the services has changed, the ultimate client who has contracted to receive the services remains the same (ie the landlord).

There is, however, an exception to this rule. Last year the Court of Appeal confirmed that where there is a simultaneous change in the service provider and the client (ie the landlord), then TUPE regulations will not apply. In other words, if a building is sold to a new owner who decides to change the company providing the services then the employees will stay with the old service company, rather than transferring to the newly appointed company.

The importance of this ruling is that it clarifies who bears the burden of any potential redundancy costs. Where an investor acquires a property and changes the out-sourced service company, this is likely to result in additional redundancy costs for the outgoing contractors and the seller of the property who appointed those contractors.

Great care should be taken to find the right balance between a clause which protects your position and one which may be struck down as a penalty clause.

A penalty clause is usually described as one which provides for the payment of a sum of money on breach, where the sum is unconscionable in comparison to the amount which would have been a genuine pre-estimate of the loss suffered by the innocent party as a result of the breach.

It has long been held that a clause which imposes an obligation on a party to pay ‘extravagant or unconscionable’ compensation for breach of contract may be deemed to be a ‘penalty clause’ and therefore unenforceable. Similarly, a restraint of trade clause in a share purchase agreement will be unenforceable to the extent that it goes beyond what is reasonable to protect the interests of the purchaser.

A recent case - Cavendish Square Holdings BVand Another v El Makdessi - has upheld a clause in a share purchase agreement which said that no further instalments of the purchase price would be payable if the vendor breached one of his restrictive covenants. This clause was not considered to be a penalty as there was, on the facts of the case, commercial justification for the provision based on the substantial loss of goodwill arising from the breach. The terms of the share purchase agreement had been negotiated on a level playing field.

The High Court held that the restrictive covenant imposed on the vendor, which was expressed to last for no less than eight and a half years, was not an unreasonable restraint of trade. It was justified in this case as the vendor would be a formidable competitor and the buyer had paid very substantial consideration for the goodwill in the business. Again, the court took account of the fact that the deal had been negotiated on a level playing field and it was held that the restrictions were reasonable in all of the circumstances.