Whistleblowers perform a public service and the consequences of penalising them for their activities can be severe. In one case, two police officers who were removed from undercover duties after they made repeated and serious complaints about the management of their unit were awarded a six-figure sum in compensation.

Both officers, one of whom had almost 20 years' experience, were moved to civilian desk jobs shortly after lodging their complaints. Their employer argued that one of them had been transferred due to his social links to a corrupt officer. The other was said to have been moved after he decorated himself with a small tattoo that made him unsuitable for undercover work.

However, an Employment Tribunal (ET) found that their complaints had materially influenced the decision to transfer them. They had been subjected to detrimental treatment for whistleblowing. They were between them awarded £41,800 for the injury caused to their feelings. Together with interest, and compensation for almost 2,500 hours of lost overtime, their total awards exceeded £100,000.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

If you take appointments as a Receiver or make such appointments then this seminar will be of interest to you!

Speakers - Sydney Mitchell Receivers' Event

Our Senior Partner Div Singh will be opening the Event introducing our speakers:

  • Leanne Schneider-Rose, Partner, Restructuring & Recoveries department

  • Sundeep Bilkhu, Solicitor, Property Litigation

Key Objectives

The objectives of this seminar include -

  • How to appoint a Receiver and how to ensure that you have been properly appointed

  • Steps to be taken following an appointment

  • Powers of a Receiver

  • Duties of a Receiver

  • Dealing with moveable assets and animals on or at the property

  • Issues with tenants

You are invited to join us after the seminar for a light buffet and refreshments and the opportunity to speak to the team and ask any questions.

This is a FREE event. Please book now to avoid disappointment as places fill up quickly.

We very much look forward to seeing you there.

SYDNEY MITCHELL LLP

click here to book ...

 

It is in the nature of contract adjudicators’ work that they cannot please everyone and often have to make decisions that are contrary to the interests of those responsible for paying their fees. Exactly that happened in one High Court case that raised issues of particular interest to debt recovery specialists.

A builder who had been embroiled in a number of disputes with property owners who had employed him objected when the adjudicator ordered him to pay a little under £300,000. The builder’s challenge to the award, on grounds of delay and apparent bias, was rejected by a judge. The builder was ordered to pay £11,721 – that being his half share of the adjudicator’s fees – to the employers, who had initiated the adjudication. On their receipt of that sum, they passed it on to the adjudicator.

Given the delay in him receiving his fee, the adjudicator launched proceedings against the builder under the Late Payment of Commercial Debts (Interest) Act 1998. Despite the low value of the claim, the matter was transferred to the High Court due to the difficulty and novelty of the issues raised.

In upholding the claim, the Court found that, by his conduct, the builder had agreed to pay his share of the adjudicator’s fees. The contract was on the terms contended for by the adjudicator and the builder had enjoyed no right to cancel it. It had been entered into by the builder in his business capacity and was thus a commercial transaction within the meaning of the Act.

In the circumstances, the builder was ordered to pay interest of £283.88 and £100 by way of fixed statutory compensation in respect of late payment. The adjudicator was also entitled to recover his debt recovery costs of £1,469.50. The builder was required to pay any VAT due on those sums.

For advice please contact Hayley-Jo Lockley on 0121 698 2200, email h.lockley@sydneymitchell.co.uk.

Many thousands of holiday homes are subject to planning restrictions that forbid their occupation all the year round or as principal residences. Such rules are sometimes taken with a pinch of salt by their owners, but a Court of Appeal ruling showed that they must be taken seriously.

The case concerned a number of properties that lay within a country park. They were subject to a planning condition requiring that they be used for holiday purposes only and must not be occupied as a person’s sole or main residence. All or most of the residents had signed licence agreements that reflected the condition’s terms.

A number of occupants had, however, started to live in their properties full time. The local authority issued enforcement notices that forbade such use and an appeal by residents to a government planning inspector was later dismissed. Retrospective planning permission was also refused and their judicial review challenge to the inspector’s decision was struck out by a judge.

In dismissing one resident’s appeal against the latter decision, the Court rejected arguments that the handling of the case had been procedurally unfair. The inspector had carefully considered all the issues, including the human right of residents to respect for their homes. Permission to introduce fresh evidence was also refused.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Making or changing your will in advanced old age is a positive invitation to disputes after you are gone, and that is one good reason why you should not put off seeing a solicitor. A case concerning a 90-year-old woman who made her will nine days before her death illustrates the point.

By her will, the old lady left the entirety of her £150,000 estate to her son and nothing at all to her daughter. In challenging the document’s validity, the daughter argued that her brother had coerced or intimidated their mother into signing it.

In rejecting those claims, however, a judge noted that witnesses had described the pensioner as a feisty and strong-willed woman who knew her own mind. The will writer who drafted the document had testified that she was emphatic that her daughter should not be amongst her beneficiaries.

The daughter did not claim that her mother lacked the mental capacity to make a valid will and her allegation that her brother had brought undue influence to bear was without foundation. The facts of the case emerged as the High Court rejected the daughter’s appeal against the judge’s ruling. The Court could find no fault in the judge’s assessment of the law or the factual evidence.

For advice for Wills Trusts and Probate matters contact Tracy Creed 0121 746 3320, email t.creed@sydneymitchell.co.uk

To what extent can civil servants stand in the shoes of their ministerial masters and make decisions on their behalf? The High Court tackled that issue in an important test case concerning the criminal prosecution of an employer who was accused of making 84 warehouse staff redundant without informing Central Government.

By Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the employer was obliged to notify the Secretary of State for Business, Innovation and Skills of any proposal to make 20 or more employees redundant. Criminal proceedings were instituted against him on the basis that he had failed to do so and his arguments that the prosecution was a nullity were rejected by a judge.

The decision to prosecute was taken by a civil servant on behalf of the minister. It was not a matter of agency or delegation, but one of devolution of the decision-making role to the official as the alter ego of the minister. The employer submitted that, on a true construction of TULRCA, the decision could only lawfully have been taken by the minister in person or by a suitably qualified official to whom he had specifically delegated the power to initiate proceedings.

In dismissing his appeal, however, the Court noted that the functions given to ministers are so multifarious that they cannot possibly attend to them all personally. The wording of TULRCA – which required the relevant decision to be taken only by or with the consent of the Secretary of State – was sufficiently broad to enable civil servants to take such decisions with the minister’s specific consent.

The Court certified that the case had raised an issue of general public importance, but left it to the Supreme Court to decide whether or not to hear any further appeal by the employer.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

The law frowns on unreasonable contractual terms contained within standard terms of business – but what exactly does the latter phrase mean? The Court of Appeal considered that issue in an important test case that will be required reading for anyone involved in the lending industry.

A consortium of three banks had lent $150 million to a company engaged in an oil production programme in Nigeria. The company defaulted and, following litigation, it no longer disputed its obligation to repay the loan in full. An associated company and an individual who had each guaranteed repayment of the loan also accepted that they were liable to make repayment.

The company and the guarantors, however, had put forward counterclaims against the banks, said to be worth $1 billion, and sought to set those claims off against the debt. The banks pointed to an exclusion clause in the loan agreement that stated that sums repayable would be calculated without any deduction in respect of set-offs or counterclaims.

It was submitted by the company and the guarantors that the exclusion clause was of no effect by virtue of Section 3 of the Unfair Contract Terms Act 1977. Section 3 provides that, where contractors deal with consumers on standard terms of business, the former cannot rely upon such terms to exclude or restrict liability in respect of any failure to perform their contractual obligations. Such terms also cannot be used to justify contractors rendering a contractual performance substantially different from that which is reasonably expected of them.

The company's and the guarantors’ arguments in respect of Section 3 fell on fallow ground, however, after a judge found that the relevant exclusion clause was not a standard term of business. Summary judgment was entered against them for the entire sum owing.

In dismissing their challenge to that ruling, the Court noted that the exclusion clause in question had been recommended by the Loan Market Association and was in common use in the industry. There was no evidence that the banks habitually refused to negotiate specific terms with borrowers and, in the instant case, detailed negotiations had in fact taken place. In those circumstances, it was impossible to say that the terms ultimately agreed were the banks’ standard terms of business and Section 3 could thus not be relied upon.

For any further advice, please contact Kamal Majevadia 0121 746 3300 email, k.majevadia@sydneymitchell.co.uk or fill in our online enquiry form.

The potential liabilities of freeholders under the Defective Premises Act 1972 came under the spotlight in a Court of Appeal test case, arising from a tragic accident in which a tourist on honeymoon was fatally injured in a fall down stairs.

The tourist was staying at a London flat when he fell. His widow subsequently sued the freeholder, the tenant under a 125-year head lease and the under-lessee. She challenged a judge’s decision to grant summary judgment to the freeholder on the basis that her claim against it had no real prospect of success.

In ruling on the matter, the Court noted that, under the head lease, the primary duty to repair and maintain the property fell upon the tenant. However, the freeholder retained the right to notify the tenant of any defaults and, if necessary, to enter the property and to carry out works at the tenant’s expense.

The tenant had replaced the property’s staircase in the 1980s and it was assumed for the purposes of the litigation that the freeholder had consented to those works. The new staircase did not comply with building regulations, in that it was too steep and either did not have a handrail or the handrail had later been removed.

The widow’s lawyers submitted as follows:

  • The removal of the original staircase amounted to a breach of covenant;
  • That breach had not been remedied by the installation of the non-compliant staircase; and
  • The existence of the freeholder’s right to enter the property to rectify that breach gave rise to a duty under the Act that was owed to the widow.

In dismissing her appeal, however, the Court found that those arguments did not take account of the scheme of the head lease as a whole. On the basis that the freeholder had consented to the alterations, it could not plausibly be argued that the removal of the old staircase amounted to a breach of the lease. The freeholder’s right to enter the property in order to ensure installation of a compliant staircase had thus not been triggered.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Judges are on the alert to ensure that debtors receive a fair hearing at every stage of insolvency proceedings. In one case that proved the point, the High Court granted a businessman a fresh opportunity to seek an annulment of his bankruptcy.

A company to whom the businessman owed a £10 million judgment debt issued a bankruptcy petition against him. He argued that, by virtue of Section 256 of the Insolvency Act 1986, the English courts had no jurisdiction to consider the matter. That was on the basis that he was neither domiciled nor ordinarily resident in England and did not have his centre of main interests here.

In disputing those arguments, the company pointed out, amongst other things, that the businessman had been personally served in London with a statutory demand for the sum due. A bankruptcy order was granted against him and his bid to have that order annulled was rejected by a judge.

In upholding his appeal against the latter decision, however, the Court noted that the judge had failed to read or consider new material that the businessman had sought to put before her in support of his jurisdictional arguments. Her determination had thus been infected by a serious irregularity and the businessman had not received a fair hearing. In the circumstances, his annulment application was sent back for fresh consideration by a different judge.

For help and advice please contact Leanne Schneider-Rose on 0121 698 2200, email l.schneider-rose@sydneymitchell.co.uk or fill in our online enquiry form.

Ignoring debt problems is simply not an option and a delay in seeking professional advice can have disastrous consequences. In one case that proved the point, a man was made bankrupt having lost the opportunity to challenge a demand for payment of more than £11,000 in Council Tax arrears.

The man denied that he owed the debt on the basis that he had been abroad and not in occupation of the relevant property for much of the period to which the tax bills related. He denied having received letters from the local authority and all knowledge of liability orders that had been made against him by magistrates.

He was in due course served with a statutory demand but, rather than seeking professional help, he did nothing for about three months as the council set bankruptcy proceedings in train. He ended up representing himself before a judge and was declared bankrupt after being refused an adjournment.

In dismissing his appeal against that decision, the High Court rejected arguments that the judge should have delayed the case so that he could challenge the liability orders before the Valuation Tribunal. Given his prolonged inactivity, the judge was entitled to conclude that he had no bona fide intention to make such a challenge.

For help and advice please contact Gemma Parker on 0121 698 2200, email g.parker@sydneymitchell.co.uk or fill in our online enquiry form.

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