Frequently Asked Questions

Commercial Property

What are repairing obligations, schedules of condition and schedule of dilapidations?

When drafting a new lease it is important to ascertain from the outset which party is responsible for what repairs. Generally, there are two types of repairing obligations for tenants:

a)    A full repairing liability – where the tenant covenants to maintain and repair the whole building, including foundations and roofs, regardless of the condition at the start of the lease; and

b)    A limited repairing liability, usually by reference to a schedule of condition.

A schedule of condition shows the state of the premises at the date of the grant of a lease. This is important for a tenant who wishes to limit their repairing obligations to keeping the premises in the same state as at the grant of the lease, particularly as a covenant to ‘repair’ the premises would require the tenant to put the premises into repair (i.e. ensure the premises is in a better state at the end of the lease than the state it was at the time the lease was granted).

A schedule of dilapidations is simply a list of the tenant’s breaches of their repairing obligations. The tenant is obliged to carry out the works listed in the schedule or pay the landlord damages which equate to the cost of carrying out the works. A schedule served during the lease is called an ‘interim’ schedule and a schedule served within three years of expiry is called a ‘terminal’ schedule.

What can I do if my tenant still occupies my premises following the expiry of the lease?

The Landlord and Tenant Act 1954 (the “Act”) grants security of tenure to tenants of business premises, or ‘business tenancies’. Business tenancies are tenancies that fulfil a certain criteria outlined in the Act.

A business tenancy will not come to an end simply because the fixed term has expired (section 24 of the Act). If a landlord wishes to terminate the lease and the tenant is still in occupation, they must serve notice under section 25 of the Act. The notice must be served no less than 6 months and no more than 12 months before the termination date specified. If the landlord wishes to end their relationship with the tenant entirely then they must state in the notice that he will oppose any application by the tenant for a new tenancy, such opposition to have a statutory basis under section 30 of the Act.

What is an Authorised Guarantee Agreement (“AGA”)?

AGAs were introduced under the Landlord and Tenant (Convents) Act 1995 and apply only to the assignment of a ‘new’ lease (‘new’ leases are generally leases granted after 01 January 1996, save for certain exceptions). When a tenant assigns his interest in a lease he is released from the burden of his covenants. As such, a landlord may require the outgoing tenant to enter into an AGA pursuant to which the outgoing tenant ‘guarantees’ the incoming tenant’s performance of the covenants in the lease. A landlord is permitted to do this only when:

    1. his consent to assign the lease is required; and
    2. he makes the giving of the guarantee a condition of his consent.

An AGA will continue only whilst the incoming tenant is liable under the covenants of the lease.

What is stamp duty land tax (“SDLT”)?

SDLT is a mandatory tax payable by the purchaser following their acquisition of a property and in certain circumstances by the tenant on the grant of a lease. The amount of SDLT payable depends on whether you are purchasing a residential or non residential property, leasehold or freehold estate. For details of the current SDLT rates, please refer to the HMRC website.

What is the difference between a lease, a licence to occupy and a tenancy at will?

A lease is the grant of a right to the exclusive possession of land for a fixed period of time. The period of time must be less than that held by the landlord. The key factor in identifying a lease is whether exclusive possession has been granted. A person has exclusive possession if it can exercise the rights of the landlord and exclude both the landlord and third parties from the land (except to the extent that the landlord has reserved rights of entry, for example to carry out works).

A licence is simply permission for a licensee to do something on a licensor’s property. A licence it is a personal right or permission – the licensor does not have exclusive possession of the property.

A tenancy at will exists where a tenant occupies land with the permission of the landlord on the basis that the tenancy may be terminated by either party at any time.

 

What types of rent review clauses are there?

There are a number of ways in which rent can be varied during the term of a lease The most common rent review clauses are:

  1. Index linked – typically the RPI index is used. Rent will increase in line with increases of the RPI index;
  2. Fixed – This sort of clause is rare as it requires both parties to place trust that their fixed increases will be in line with the future economic climate; and
  3. Open Market – this type of clause requires the rent to be reviewed in accordance with changes in the property market.
    The aim of such a clause is to establish what a tenant in the open market would pay for the property if the premises were available.

Employment Law

Do you act for both employers and employees?

We advise and represent employers across both the public and commercial sectors. As conflicts of interest may therefore arise, we do not act for employees.

How do you structure your legal fees?

We charge for the time spent on your work, broken down into 6 minute units and based on an hourly rate.  However, we appreciate the benefit of knowing the likely cost of legal work from the outset, so where appropriate, we can agree a fixed fee for certain types of work.  We do not undertake work on a ‘no win, no fee’ basis.

What level of service can I expect from the Employment and HR Team?

We know how important it is for you to receive a swift response to your telephone calls, e-mails and letters and that you want to be kept informed on how your case or project is progressing.

Our service level standard is to respond (either personally or through a colleague) to all telephone messages/ emails on the same working day. We will always advise you in advance if the person handling your case or project is likely to be unavailable for more than one working day

When will I be invoiced?

We will usually send you an invoice every month so you can keep tabs on your expenditure and are not hit by a big bill at the end of the case or project we are doing for you.

Will my work be passed around lots of different people?

Our philosophy is to build relationships and to get to know your business so we can provide advice that best suits your needs. We aim to allocate your work to someone you know and trust. If, for any reason, they are unavailable you will be introduced to an alternative point of contact who will be fully appraised of your case and project.

Insolvency

I can’t afford to pay my debts – what do I do?

The first thing to do is to seek professional advice.  The Citizens Advice Bureau is a good start to obtain free, independent advice.  Depending on the level of debt and the level of any assets you have, it may be appropriate to consider bankruptcy, a debt relief order or an individual voluntary arrangement (“IVA”).

We can also offer advice as to the best way forward for your individual situation and, in the event that an IVA is appropriate, we can refer you to a reputable insolvency practitioner to make the necessary arrangements.

People have talked about liquidation – can I just strike off the company instead?

Many directors see striking off a company as an easy cost effective solution to address unwanted solvent companies as an alternative to more formal methods (e.g a Members’ Voluntary Liquidation).  However, what is a relatively simple procedure involving the completion of a form together with £10 fee can result in unanticipated consequences.  It is an offence to make an application when a company is ineligible for striking off (e.g. where, in the previous 3 months, it has: traded or otherwise carried on business; changed its name; or, disposed of property in the normal course of its business); failing to send the application to all relevant parties (including, but not limited to: members, creditors (including contingent creditors), directors, HMRC and employees); and not withdrawing the application for striking off if the company becomes ineligible.  Most of these offences attract a fine of up to £5,000 before a magistrates court or an unlimited fine before a jury.  However, in some circumstances where the directors deliberately conceal an application from interested parties, they may be liable not only to an unlimited fine but also to up to 7 years imprisonment.  Anyone convicted of any offence may also be disqualified from being a director for up to 15 years.

A disgruntled creditor may apply to restore the company to the register up to 6 years later and then issue a winding up petition.  Any appointed insolvency practitioner will have to investigate the conduct of the directors and consider why a formal winding up procedure was not put in place.

In addition, any assets of the company vest in the crown when it is struck off, and will not be available for distribution to shareholders.  So if it is discovered that there are monies in the bank account or a property in the company’s name, it will be necessary to incur the costs of restoring the company to the register to recover the same.

Someone owes me money – what do I do?

If you have been chasing for a debt that remains unpaid, there are various formal steps you can take to secure and seek repayment of monies owed.  These include issuing court proceedings to seek a judgment; obtaining a charging order over property, seeking an attachment of earnings order in respect of an individual; or sending bailiffs in to recover assets.

However, before you incur the expense of such formal proceedings, it may be that instructing solicitors to formally pursue the debt could result in recovery.

What is the difference between a voluntary and a compulsory liquidation?

A voluntary liquidation, which can be either a members’ voluntary liquidation or a creditors’ voluntary liquidation, is brought about by resolution of the company. A compulsory liquidation is brought about by a creditor issuing a petition and seeking an order of the court.

What restrictions are there on a director whose company has been involved in insolvency proceedings?

A director of a company that has entered into an Insolvency process can set up a new company or be appointed a director of an existing company, even carrying out the same line of business in the same industry. The only restriction relates to acting as a director of a company with the same or a similar name, although even this restriction can be lifted in the right circumstances with the proper involvement and assistance of professional advisers.

The only other issue is if the insolvency practitioner’s investigations reveal that the directors have acted improperly prior to the company’s insolvency.  An administrator or liquidator is obliged to send a report on each director of the company to [BIS], who can commence director disqualification proceedings in appropriate circumstances.

What will happen to my house if I am made bankrupt?

If you are made bankrupt and own (or partly own) a property, it will vest in your trustee in bankruptcy.  Your trustee is obliged to realise any equity in the property for the benefit of your creditors, and has three years to do so.  In the first instance, you and your friends and family will be given the option of buying your interest back.  If there is no equity in the property, then the Trustee may be willing to sell the interest back for a nominal value plus the costs of legal fees.  If there is equity in the property, then you will have to pay proper consideration.

If you are unable to finance the re-purchase of the interest in the property, then you will be asked to agree to a voluntary sale.  This will keep costs to a minimum (which will increase the likelihood of a surplus to be returned to you once your creditors have been paid).

In the event that you do not co-operate with your Trustee, then they may issue court proceedings seeking an order for possession and sale of your property, and instruct bailiffs to evict you in the event that you do not vacate your property voluntarily.

Given the above, it may be that an IVA is a more suitable option for you if you have a house with significant equity levels.

Litigation and Dispute Resolution

What is adjudication?

What does adjudication involve and what does it cost?

Apart from its rapid timescale, Adjudication is not dissimilar to other forms of dispute resolution. Each party must present its case to a tribunal.

Usually there will be no hearing and it is just the documents that the tribunal (in this case an adjudicator) will consider. The party that presents its case best will have the best chance of the tribunal understanding their case and, if they have the law on their side, applying the law to come to the correct outcome.

The cost of the adjudication depends on the nature of the dispute (ie what is in issue). It could be the difference in value of the whole final account and the right of the other party to deduct liquidated and ascertained damages, in which case the adjudication can involve significant preparation and presentation.

Adjudication may be about the non-payment of an interim application or whether there are defects in a building. It may concern the standard of professional services or design. Adjudications may concern millions of pounds or just a few thousand pounds. There may be complex issues of fact or law and sometimes expert evidence is required to prove delays or the existence defects or negligence.

The costs of adjudication vary. A range for adjudication can be from a few thousand pounds to many thousands of pounds depending upon what is in issue. To make it as cost effective as possible good preparation using a specialist team of lawyers, quantity surveyors and other experts is important.

Harrison Clark Rickerbys is different from many law firms in that in addition to specialist construction and engineering lawyers, it has also has in-house quantity surveyors who can assist with the preparation and evaluation of financial and other claims, and therefore provide a ‘one stop shop’.

We are on the Executive Committee of the Adjudication Society and partner Tim Willis chaired the Committee who were involved in responding to the Government consultation to amendments to the Construction Act.

Who bears the cost?

Each party must bear its own costs. That means you will always have to deduct the costs of the adjudication from what you recover but you will not be liable to pay the other party’s costs.

Who pays for the Adjudicator?

Both parties are liable to pay the adjudicator’s fees and expenses. At the end of the adjudication the adjudicator will allocate his fees and expenses and usually the loser will pay the majority if not all of the adjudicator’s fees and expenses. Adjudicator’s fees range from £120.00 to £300.00 per hour.

How do I force the other party to comply with the Adjudicator’s decision?

If the other party does not comply with the adjudicator’s decision there is a special fast procedure for the court to enforce the decision. The court will enforce a decision in almost all circumstances even if the adjudicator has got the facts or the law wrong (hence adjudication is often referred to as rough justice where speed and certainty take precedence over getting the best answer). It takes less than 6 weeks to get an order from the court and you will recover the costs of enforcing the decision unless the court finds that the decision is invalid.

How will I know if I can enforce the decision or if I can challenge it?

If we have conducted the adjudication we will seek to advise you of risks as to the enforceability of the decision and manage the process so you achieve a successful outcome. An adjudicator may however step outside the bounds of his authority and render the decision unenforceable and no one can prevent that. We will know whether the Adjudicator has done that or is threatening to do that and seek to get things back on track.

If someone else has conducted the adjudication we can review the decision and advise whether it is enforceable. Sadly we sometimes review what others have done and can see that mistakes have been made in the conduct or preparation for the adjudication and the decision is worthless and the costs spent in the adjudication and fees paid to the adjudicator are wasted. If things have been done correctly we can swiftly issue proceeding to enforce the decision.

If you are seeking to challenge an adjudicator’s decision we can also quickly review it with you to see whether there is any basis for challenge.

As advocates with in-house quantity surveyors we can provide a seamless service preparing and presenting cases for adjudication and enforcing or challenging their decisions in court.

How do I know if I can use adjudication to resolve my dispute?

Adjudication can be used by agreement either if you agree in your contract to adjudicate or if you agree after the dispute has arisen. In most cases adjudication is used in the construction industry, as the right to adjudicate is automatically incorporated by law into construction contracts which concern construction operations.

This can include main contracts, sub-contracts and consultants appointments, but not supply only contracts. There are other exceptions. If you have any doubt then you can raise that with us and we can advise you.

Do I have to adjudicate?

In some standard forms of contract adjudication is a pre-condition to going to court or arbitration. If the contract does not make it a pre-condition then you can adjudicate, if you wish, once a dispute has arisen. If the other party ignores the adjudication, then the adjudicator makes his decision based on the case presented to him within the bounds of his authority. That means you should get the decision in your favour and the other party then has to seek to challenge that in the courts or comply.

I have part prepared my final account – how do I know how to get it ready for adjudication?

The final account process is usually done by the client’s quantity surveyor in anticipation of discussion or negotiation of the account in order to reach agreement. If agreement is not reached then the only option may be to get an adjudicator to decide the value of the account. The adjudicator cannot be involved until the dispute has crystallised and he will decide on the information placed before him. Remember he has no knowledge of the project. We and our in-house quantity surveyors can work with you so that the account is ready for presentation to an adjudicator and we can ensure that the procedural steps have been followed. We can review what has been done and advise on next steps or conduct the adjudication for you.

I have not been paid, do I have to adjudicate?

In many cases, for contracts entered into after October 2011, if a party does not pay, you have a good basis for suspending all or part the work (provided you give the right notice), and also using aggressive tactics such as a statutory demand or the threat of issuing a winding up petition.

Alternatively you can issue Court proceedings if there is a dispute as to why you have not been paid, or you could adjudicate.

We can advise you as to the best option.

Partnerships

What can I do about a partner in our partnership business acting in bad faith? We have no partnership agreement in place.

Firstly, as there is no partnership agreement in place you have been operating a partnership ‘at will’ governed by the Partnership Act 1890 (the “Act”).

The good news is that partners have an implied duty to each other of honesty and good faith. There is also a statutory duty under s30 of the Act not to compete with the business of the partnership and in the event that partner does make a profit from a competing business, s30 states that such profits are to be paid to the partnership.

However, the bad news is that without a partnership agreement, the only remedy available to you is dissolution of the partnership which means the business would be wound up and the assets divided up. This I suspect is not your desired outcome. If A has set up in competition to the business, he would almost certainly at some point in the near future issue yourself and B with a retirement notice under s26 of the Act, or with a dissolution notice as he is entitled to do so under s32 of the Act. A dissolution notice will automatically have the effect of winding up the business. The court retains the discretion to award what is known as a ‘Syers v Syers’ order – i.e. that the remaining partners can ‘buy out’ the partner threatening dissolution and carry on the business. However, this has not been applied for some time and would involve taking the matter to court, incurring substantial costs.

If yourself and B are satisfied that you have enough evidence to suggest A is setting up in competition with the partnership business, it is important to act fast. Without proceeding towards litigation, there are two options available to you as I see it:

  • Ask if A would be amenable to exiting the partnership peacefully through entering into a deed of retirement and offering him payment for his share of the partnership. Although A may have behaved in an unscrupulous manner thus far, he may be willing to leave peacefully if he can get his share of the partnership and avoid costly litigation. Again, it is important to seek legal advice here as an agreement would need to be drawn up to state that A has received his share, otherwise there is a risk that A may claim a share of the profits after dissolution. There may also be other implications to consider, such as equality legislation, if applicable in the circumstances.
  • Dissolve the partnership and divide the assets – issue the dissolution notice before A does. Once the partnership has been dissolved, yourself and B can continue to run a partnership business, however, this will need to be handled with caution. As mentioned above, you need to be wary of A claiming a share of the profits if you continue to operate the business. In order to prevent this, the ‘old’ partnership business firstly needs to be wound up and profits distributed. If you wish to continue using the same business name, you will need to seek further advice as this will form part of the goodwill of the business, which B may argue holds some monetary value. This option is less attractive than the first given that the original partnership business has to effectively ‘shut down’.

In both of the above scenarios we would strongly recommend seeking legal advice as soon as possible. Trying to negotiate either of the above without the correct advice is unadvisable and runs the risk of prejudicing your position if the matter ever proceeded towards litigation.

Prior to approaching A with either of the above options we would also recommend considering the following:

  •  Has A been ordering products in the name of the partnership business that relate to his new venture? If so, the costs of such products should be deducted from his share of the partnership assets on dissolution;
  • Speak to your existing suppliers (and follow up with notice in writing) to inform them that A does not have the requisite authority to order supplies on behalf of the partnership business. State that if products are supplied which are ordered by A, that the partnership business is not liable for payment of invoices relating to such orders;
  • Conduct an inventory of stock and assets. Ensure that all equipment is accounted for such as laptops, mobile phones etc which will assist when dividing the assets;
  • Review existing contracts with customers and suppliers right down to mobile phone contracts, broadband supply etc – check how such contracts can be assigned or terminated (possibly dividing up the costs of termination across the three partners). Also consider any contracts with customers, are any of the partners named as ‘key personnel’? In such cases you may need to address how to manage the continuation of the contract.

Lessons to be learned:

The existence of a partnership agreement provides all partners with further options in this type of situation. The most compelling reason for entering into an agreement is that if any partner breaches the agreement, this invariably gives the remaining partners the right to make a claim for breach of contract, or if appropriate, seek an injunction to prevent a partner from taking some form of action (e.g. approaching customers of the business). A well drafted partnership agreement would usually contain provisions including a power to expel a partner (usually by majority vote), non-compete provisions, post termination restrictive covenants and will be tailored to address concerns relevant to that particular partnership.

Additionally, entering into a partnership agreement does not necessarily mean that you will always be fully protected. As the partnership changes, the partnership agreement may also need to change to reflect the new structure and/or incoming partners may need to sign a deed of adherence so that they are also bound by the provisions of the partnership agreement.

If you are currently entering into a situation which may develop into a partnership dispute, or you are operating a partnership at will and wish to look at entering into a partnership agreement, please contact Robert Capper on 01905 744814 or email rcapper@hcrlaw.com for an initial, no obligation discussion on the options available to you.

 Harrison Clark offers specialist advice to partnerships in the following areas: 

  • Partnership disputes;
  • Preparation and review of partnership agreements;
  • Changes to the partnership/restructuring;
  • Sale and acquisition of property;
  • Leases;
  • Debt Recovery;
  • Advice on contracts;
  • General commercial advice;
  •  Formation of limited liability partnerships and preparation of members’ agreements

 

Personal Injury

How long do I have to make a claim for my accident?

In the majority of cases you have 3 years from the date of your accident in which to make your claim.  However there are exceptions for certain types of claim or special circumstances.  Claims involving the Criminal Injuries Compensation Authority are limited to 2 years from the date of the criminal offence and claims on behalf of a child can be made up until their 21st birthday.  You need to seek legal advice regarding your claim well in advance of these time limits.  We can advise you exactly how long you have to make your claim.

How long will a claim take?

This will vary depending on the type of accident you have had and the complexity of your case.   An average timescale for the completion of a claim is 9 months.

How much will I receive in compensation?

You will recover compensation for the pain and suffering you have experienced as a result of your injury.  The amount of compensation you receive will depend on the severity of those injuries.

You will also recover compensation for any financial losses you have suffered as a consequence of your injuries, such as the cost of prescriptions or loss of earnings.

Will I have to attend court?

It is unlikely that you will have to attend court.  Many cases are settled without the need to commence court proceedings and if court proceedings are necessary the majority of claims are settled before the claim reaches the court hearing stage.

Will I need to see a doctor?

You will be asked to attend an appointment with a medical professional.  The professional will be an expert in their field and suitably qualified to report on your injuries.

Probate

Can I challenge a will?

1) Time limits

Generally, the time limits for contesting a will (probate) vary depending on the type of claim, and are governed under the Limitation Act 1980. You should seek expert help as soon as you think you may wish to dispute a will.

As a general guide:

Inheritance Act claims for maintenance; 6 months from the grant of probate

Beneficiaries making a claim against an Estate; 12 years from the date of death

Fraud; In the majority of cases there will not be a time limit for making the claim.

 

2) Grounds

There are a number of grounds on which a will can be contested. The most commonly contested grounds are:

 

An Invalid will; this may be because the will was not signed, or witnessed or because the deceased lacked the capacity to make a will. Other common reasons may include if the deceased was coerced or bullied into signing the will. Please note that this may include simple changes to the terms of a will, not necessarily re-writing a will. If a court finds a will to be invalid it has the power to set it aside.

An Ineffective will; if the court finds that the will as read does not reflect the deceased’s true intentions, the court may enforce prior agreements made in whole or in part. For example, if a brother has promised his property to his sister, who has taken up residence in his home, knowing that she will one day inherit it, but the will was not changed to reflect the brother’s promises, the court may decide to uphold the promise over the will itself.

The Inheritance Act; if the will does not provide for everyone that it should a claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975. Note that if there is no will, you may still be able to claim under what are termed the Intestacy Rules. Former spouses, civil partners, children and dependants all have the right to apply. If you think that this may apply to your claim, please follow the ‘Inheritance Act Questionnaire’ link from our website which you may find useful to gather all the relevant information.

Can I put my home into trust to protect it from care home fees?

This is a very hotly debated area of law.  There are a number of reasons for and against putting your property into trust. It is important to consider the risks involved and it is not something which you should enter into lightly.

Do I need to make a Lasting Power of Attorney?

Our advice is that a Lasting Power of Attorney (LPA) is just as an important document as a Will.  Whilst most people write a Will setting out how they wish for their affairs to be dealt with once they have passed away the vast majority of people do not put in place an LPA which will appoint an Attorney to act on their behalf if mental capacity is lost.

I think my grandfather has lost his mental capacity, can I deal with his affairs?

The first thing to do is check whether your grandfather has made an Enduring Power or Attorney or Lasting Power of Attorney. If he has then this will name the attorneys which he has appointed to deal with his affairs should he lack the mental capacity to do so himself.

If there is no such power of attorney, then someone needs to be appointed as his Deputy. This is done by making an application to the Court of Protection.

If I have a Will, do I need a Lasting Power of Attorney?

Wills and Lasting Powers of Attorney are completely distinct. Lasting Powers of Attorney can only be used during a person’s lifetime and the powers conferred by them cease upon the donor’s death. Wills on the other hand only come into effect on the death of the individual. Wills and Lasting Powers of Attorney are never effectual at the same time.

My father has died, how do I deal with his estate?

The first thing that you would need to do is check if your father made a Will. This is likely to be held with his solicitor. Depending on the size of your father’s estate you may need to apply for a Grant. This will enable his estate to be administered in accordance with his will or if there is no will then in  accordance with the intestacy rules.

Will my spouse get everything if I die?

If you do not have a Will then your estate will be administered in accordance with the Intestacy Rules.  The Intestacy Rules set out what happens to a person’s estate when there is no Will.

Deceased leaves a surviving spouse, no children

The Spouse will receive everything. If there are no children but close relatives, then they may also benefit.

Deceased leaves a surviving spouse and children

The Spouse will receive a fixed amount and if there are surplus funds then these will be held on trust for the children.

If you are unmarried then intestacy rules do not apply and you risk dying leaving nothing to your partner. The only way which you can have full control of who benefits from your estate when you die, is if you make a Will.

Rural Land and Business

How do I protect my land from having a public right of way claimed over it?

Regular use by the public of an informal path may result in it being recognised as an official public right of way. Whilst landowners may be able to produce evidence that they have not dedicated the path as a public right of way by taking steps to prevent the general public from using it (by, for example, challenging users or erecting signs), it is often difficult to prove this at a later date.

Section 31(6) of the Highways Act 1980 provides a mechanism for landowners to acknowledge the existence of certain public rights of way across their land and to prevent new public rights of way being created following use of the route by members of the public, usually for a period of twenty years or more. This gives landowners a way of protecting their property, while still allowing a degree of permissive public access.

Under Section 31(6), the landowner needs to deposit with their Local Authority a map, statement and statutory declaration showing which public rights of way they recognise over their land, if any, and also stating that they do not intend to dedicate any new public rights of way.

The statutory declaration needs to be renewed every ten years, stating that no new public rights of way have been dedicated or acknowledging any new public rights of way which have been dedicated.

It is important to understand that the protection of Section 31(6) applies from the date of the statutory declaration. It will not prevent an application (to claim a public right of way) from succeeding if it can be shown there has been unchallenged public use over a period of 20 years leading up to the date when the deposit was first made. Despite these limitations, Section 31(6) provides a valuable line of defence for landowners.

For more information please contact Ian Goodwin on 01432 349663 or email igoodwin@hcrlaw.com.

What can the dairy sector expect from the recently agreed voluntary code of practice for the industry?

After a very turbulent period for the dairy industry, the recently agreed voluntary code of practice for the dairy sector is designed to oversee contracts between dairy famers and milk buyers.

The code stipulates:

  •  Dairy farmers must receive at least 30 days’ notice of a price change or a change to any of their other contractual terms. Retrospective price adjustments are no longer acceptable.
  • Where the milk buyer exercises its discretion to change a farmer’s price or other contractual terms, the farmer can terminate the contract on three months’ notice if he/she disagrees with the change.
  • Dairy farmers will have the ability to supply more than one buyer, where their primary milk buyer seeks to cap their production.
  • The right to automatic contractual release for dairy farmers from insolvent milk buyers.
  • A review process, after 12 months, to consider all aspects of the code.

In addition, dairy farmers will also be able to collaborate to form producer organisations that can negotiate contracts terms collectively, including the price of raw milk. The volume of milk that a producer organisation can negotiate is limited to 3.5% of EU production and to 33% of the national production of the Member State involved.

Under the newly approved voluntary code, it is likely that most existing contracts will have to be amended. As a result, milk buyers will need to review their contracts to make sure they are compliant with the code. Dairy farmers should also be putting pressure on their milk buyers to review these contracts.

The Government has indicated that if the voluntary code fails to deliver the measures intended then it will strongly consider the possibility of introducing legislation into dairy contracts.

It is therefore hoped that the new code will bring substantial improvements to current dairy contracts.

For more information please contact Ian Goodwin on 01432 349663 or email: igoodwin@hcrlaw.com.