Our lawyers are recommended in The Legal 500 United Kingdom 2018 editorial (listed below)

WEST MIDLANDS
Dispute resolution - Commercial litigation - Birmingham
- Dean Parnell
- Kamal Majevadia

Dispute resolution - Debt recovery
- Kamal Majevadia
- Hayley-Jo Lockley
- Gemma Parker

Finance - Insolvency and corporate recovery
- Leanne Schneider-Rose

Human resources - Employment
- Dean Parnell
- Samantha Glynn

Insurance - Clinical negligence - claimant
- Mike Sutton
- David Lydon
- Adam Hodson
-Stephen Jesson

Insurance - Personal injury - claimant
- Mike Sutton
- David Lydon
- Adam Hodson

Insurance - Professional negligence
- Sundeep Bilkhu

Private client - Contentious trusts and probate
- Kamal Majevadia (leading individual)
- Tracy Creed

Private client - Family - Birmingham
- Karen Moores
- Mauro Vinti

Private client - Personal tax, trusts and probate
-Tracy Creed ~
- Nicholas Bennett
- Ravinder Sandhu

Public sector - Health
- Dean Parnell
- Fahmida Ismail
- Tony Harris (Deceased)

Real estate - Commercial property - Birmingham
- Georgina Walsh
- Div Singh
- Fahmida Ismail

Real estate - Property litigation
- Sundeep Bilkhu
- Kamal Majevadia

Fantastic news Sydney Mitchell has won Law Firm of the Year in the 5-15 partners' category in the Birmingham Law Society Awards 2018. A great achievement!  Thank you to all the partners and staff who made this achievement possible.

Partners Fahmida Ismail, Sarah Archer, Kam Majevadia, Tracy Creed, Dean Parnell and Mauro Vinti accepted the award on the night presented by Emma Jesson and the category sponsored by Tony Rollason (Landmark Information Group).

Fahmida Ismail commented:

What an excellent result, recognising the hard work contributed by every single person in the firm in making us exceptional and being recognised by the Birmingham Law Society as Law Firm of the Year.

We are all extremely proud to continue to serve our clients to the highest standard.  Birmingham has such a lot to offer businesses and individuals and Awards like this just continue to show that we have great quality firms and people here in Birmingham.

Sydney Mitchell specialist teams include employment, commercial property, company and commercial services, litigation and insolvency. Private client teams include family law, residential property, dispute resolution and wills and probate, contentious probate, tax and trusts and personal injury.

Sydney Mitchell previously won this award in 2008, 2011, 2013, 2014, 2015 and it is a fantastic result that the firm has won the award in 2018.

Well done to all the winners in the Birmingham Law Society Awards 2018  - full list link attached

http://www.birminghamlawsociety.co.uk/2018winners

If you would like help on any legal matters, please call 0121 698 2200 or email enquiries@sydneymitchell.co.uk or fill in our online enquiry form

Architects, surveyors and other property professionals often refer to the ‘elevations’ of buildings – but what exactly does the word mean? In a guideline ruling, the Upper Tribunal (UT) has resolved that question in the context of a landlord and tenant dispute.

The case concerned a flat that was held under a 99-year lease which incorporated a covenant that forbade tenants from making any alteration to the elevation or external decoration of the property. After discovering that a window to the rear of the property had been replaced by a door, giving access to a flat roof, the landlord launched proceedings against the tenants, alleging that the covenant had been breached.

In ruling on the matter, the First-tier Tribunal (FTT) noted that the definition of the word ‘elevation’ had not been analysed since the Edwardian era. In following a legal precedent that was over 100 years old, however, it found that the word referred only to the front façade of the flat. There had therefore been no breach.

In upholding the landlord’s challenge to that ruling, however, the UT found that the FTT had placed too much reliance on the antique precedent. Elevation has different meanings in different contexts and is often qualified by the addition of ‘front’, ‘rear’ or ‘side’. The UT found that the word simply denotes the external vertical surfaces of a building generally, rather than referring to the front of the building only.

In the circumstances, the UT granted the landlord a declaration under Section 168(4) of the Commonhold and Leasehold Reform Act 2002 that the installation of the door amounted to an alteration in the flat’s rear elevation and thus breached the covenant. No other relief was sought.

For help and advice please contact Sundeep Bilkhu on 0808 166 8827 or email s.bilkhu@sydneymitchell.co.uk

January

On 7 January 2019 the Court of Appeal will hear the appeal in BMC Software Ltd v Shaikh, considering whether an employer's breach of the implied sex equality clause could constitute constructive dismissal.

Later in January, the Court of Appeal will hear the appeal in Agoreyo v London Borough of Lambeth, in which it will consider whether the suspension of a teacher accused of having used unreasonable force against children, purportedly to allow a fair investigation to take place, constituted a repudiatory breach of contract.

On 21 and 22 January 2019, the Supreme Court will hear the appeal in Tillman v Egon Zehnder Ltd, in which the Court of Appeal found a six-month non-compete restrictive covenant to be invalid. The restriction, which sought to prevent a former employee from being concerned or interested in any competing business, was deemed impermissibly wide because the phrase "interested in" included holding one share in a publicly quoted company. This will be the first case involving construction of an employment restrictive covenant to be decided by the Supreme Court (or the House of Lords) in over a century.

February

Chief Constable of Norfolk v Coffey, which will be heard by the Court of Appeal, is the first case to directly address the issue of direct discrimination based on perceived disability under the Equality Act 2010.

The Court of Appeal will hear the appeal in Bamieh v Foreign and Commonwealth Office, following the EAT's ruling that an employment tribunal had territorial jurisdiction to hear whistleblowing claims brought by an employee of the Foreign and Commonwealth Office against two colleagues regarding alleged events which took place while all three were on secondment to an EU Mission in Kosovo.

April

The Court of Appeal will hear the appeal in Kocur v Angard Staffing Solutions Ltd, in which it will consider the interpretation of regulation 5(1) of the Agency Workers Regulations 2010 which gives agency workers "the same basic working and employment conditions" as permanent employees after 12 weeks.

X v Y (a case about the retraction of legal advice privilege where there is a strong unambiguous case of injustice) is expected to be heard by the Court of Appeal on 2 October 2019. In this case the email suggested “cloaking” discrimination in a redundancy exercise.   

Finally, we can expect the Supreme Court to hear the appeal in Uber BV and others v Aslam, in which the Court of Appeal recently held, by majority, that Uber drivers are workers. The Court of Appeal gave Uber permission to appeal.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

Sometimes loans made to companies do come with the stipulation that the directors of the company provide a personal guarantee for the sum outstanding to the lender in the event that the company is unable to repay the loan.

When a company was placed into administration in 2016, with considerable losses anticipated an investor who had lent the company $2 million presented a statutory demand against the director who had given a personal guarantee. The director applied to set aside that statutory demand.

Unusually, the director did not dispute the validity of the guarantee itself. His argument was that it should not be enforced. The first reason was that he claimed the lender had, in effect, acted in bad faith and in a way that contributed to the failure of the company. It was alleged that, by persuading the investors not to pursue a restructuring of the company's finances but instead forcing it into administration, he had helped to precipitate the default. This was evidenced by emails exchanged between the lender, the company and its backers in the period before it went into administration. It was argued that the restructuring was a 'fairly available alternative' to administration. After trading in administration for a short period the company was sold to a new company owned by former investors, including the lender who had the personal guarantee.

The second argument was similar, and was that the lender had, by bringing about the administration, participated in an 'unlawful means conspiracy' against the company, leaving the lender liable for damages to the company and thereby to the director as guarantor of the loan.

The decision of the High Court turned on the conclusion that the administration of the company was a reasonable action to take and the lender's actions were not the pivotal factor in that decision being taken.  Therefore in this instance the lender’s actions were not criticised and the application to set aside the statutory demand was dismissed.

For advice on any insolvency matter or your legal rights and responsibilities as a director, contact Leanne Schneider-Rose on 0121 698 2200 or by email l.schneider-rose@sydneymitchell.co.uk.  Taking advice at an early stage where your company is or might be insolvent, in particular where you have given personal guarantees, can often make all the difference and save incurring substantial legal costs in the long term.

Appointing loved ones as executors of your will may seem the natural thing to do, but there are very good reasons why it is often wiser to appoint professionals. A case in point concerned two sisters who fell out bitterly after one of them arranged for their father’s burial in the back garden of his home.

The father left his estate equally to his daughters and appointed both of them as his executors. Following his death, aged 80, the older sister and her son arranged for his remains to be buried in his garden with due dignity. The younger sister objected that this had been done without consulting her and that her sibling had also refused to inform her of the exact location of the grave.

The unusual circumstances of the burial contributed to a deterioration in the sisters’ relationship. Although it was eventually agreed that their father should be exhumed and laid to rest in a churchyard beside his wife, the siblings continued to disagree as to how that should be achieved. They also failed to see eye-to-eye in respect of the administration of the estate and, in particular, the sale of their father’s home.

After the younger sister launched proceedings, the High Court found that her older sibling had misconducted herself in her role as executor. It was expedient and necessary to remove her from that office. Given the strength of bad feeling between the siblings, the Court also directed the younger sister’s removal and the siblings’ replacement as executors by two independent and experienced lawyers.

For help and advice on matters such as this please contact Samantha Hughes on 0808 166 8827 or email s.hughes@sydneymitchell.co.uk

In this article, we have attempted to highlight the key developments coming up in 2019 and beyond.   If you want to keep up to date with the latest developments, then sign up to our newsletter here.

This year is expected to be an eventful year in the world of employment law. Brexit will no doubt continue to dominate the press, a number of legislative measures will be coming into force, we will no doubt hear details of forthcoming employment law reforms, and the courts are set to hear a number of interesting appeals.

So, brace yourselves, the hot topics to look out for in 2019 are as follows:

Employment law reform: The Good Work Plan

On 17 December 2018, the government published the Good Work Plan (“the Plan”), which sets out what it described as "the biggest package of workplace reforms for over 20 years". The Plan builds on the government’s response to the Taylor Review recommendations in February 2018, outlines an intention to improve working conditions for agency workers, zero-hour workers and other atypical workers.  Many of the measures do not yet have specific timescales, but those measures for which legislation has already been published, are mostly due to come into force in April 2020.

These measures include a right for workers to request a more stable and predictable contract, an increase in the period required to break continuity of employment from one week to four weeks, a ban on deductions from staff tips and unsurprisingly a commitment to improve the clarity of the employment status tests, accepting the Taylor Review's recommendation that differences between the status tests in employment law and tax law should be reduced to a minimum to avoid any contradiction or confusion.

In the Agency Workers Regulations 2010, the government intends to repeal the "Swedish derogation" which excludes agency workers from the right to equal pay with comparable directly employed employees if they have an employment contract which guarantees pay between assignments.  This will also amend the Employment Rights Act 1996 to extend the right to a written statement of terms to workers and expand the information which must be provided in these statements.

The plan also proposes new measures which are designed to improve enforcement, by naming and shaming those employers who fail to pay tribunal awards on time as well as significantly increased financial penalties for employers who commit an "aggravated breach" of employment rights.

Increased financial penalties for employers: The draft Employment Rights (Miscellaneous Amendments) Regulations 2019

These are due to come into force on 6 April 2019 and are set to quadruple the maximum penalty for an aggravated breach of employment law from £5,000 to £20,000. Eventually, they will also extend to all workers the right to a written statement of terms and make it easier for employees to request to set up information and consultation arrangements, although these measures will take effect in April 2020.

CEO pay the big out: The Companies (Miscellaneous Reporting) Regulations 2018

This came into force on 1 January and bring in mandatory reporting of the ratio between CEO pay and average staff pay for companies with 250 or more employees, along with other corporate governance changes, all of which will be effective for accounting periods beginning on or after 1 January 2019 (and so the first pay ratio reports will be published in 2020). The measures include the obligation to prepare an annual statement of engagement with employees for companies with 250 or more employees (including details of any information and consultation arrangements, and how directors have had regard to employee interests).

Ethnicity pay gap reporting

On 11 October 2018, the government launched a consultation on mandatory ethnicity pay gap reporting. The consultation seeks employers' views on issues such as reporting methods and closes on 11 January 2019.

Employment status tests

Given the government's commitment in the Good Work Plan to improve the clarity of the employment status tests, including the potential harmonisation of the position under employment and tax law, we can expect to see further developments in this area in 2019.

Itemised payslips

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 (SI 2018/529) is due to come into force on 6 April 2019. This legislation introduces a right for all workers to be provided with an itemised pay statement and the ability to enforce this right at an employment tribunal.

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 (SI 2018/147) is set to come into force on the same day and will require itemised payslips to contain the number of hours paid for where a worker is paid hourly.

National minimum wage

On 17 December 2018, the government launched a consultation seeking views on whether certain aspects of the national minimum wage (“NMW”) legislation should be amended to ensure that they do not inadvertently penalise employers. The consultation focuses on the complex rules on "salaried hours work" (one of four types of work in the National Minimum Wage Regulations 2015 (SI 2015/621) under which employers can average out pay over a calculation year for NMW purposes) and whether they effectively prevent exploitation of workers. The government is also seeking views on the impact of the NMW rules on salary sacrifice schemes, in particular whether employers are withdrawing schemes from low-paid workers in order to avoid non-compliance with the NMW. The consultation closes on 1 March 2019.

Brexit

The Prime Minister had announced that the vote in the House of Commons on the withdrawal agreement and political declaration would now take place in the week commencing 14 January 2019. It is therefore difficult to predict with any certainty the final terms on which the UK will leave the EU, and whether this will take place on 29 March 2019.

Potential developments to look out for:

Non-disclosure agreements

An inquiry was launched into the use of non-disclosure agreements (commonly known as NDAs) in harassment and discrimination cases.

New statutory code of practice on sexual harassment

The Equality and Human Rights Commission have been asked to develop a statutory code of practice on sexual harassment. It is suggested that observing this code will help employers demonstrate that they have taken reasonable steps to prevent sexual harassment from taking place in the work place.

Employment tribunal reforms

The Law Commission launched a consultation on employment tribunal reform. The consultation has sought views on issues such as whether the three-month time limit for most employment tribunal claims should be changed as well as some provisional such as increasing the employment tribunal's £25,000 limit for contract claims. The consultation closes on 11 January 2019.

Reintroduction of employment tribunal fees?

Whilst no timeframe has been suggested, the Ministry of Justice has noted that the Supreme Court judgment in R (on the application of Unison) v Lord Chancellor leaves open the possibility of a new scheme which would strike a balance between increasing employment tribunal funding and safeguarding the delivery of justice. In November 2018 it was suggested in evidence given to the House of Commons Justice Committee that a new fee regime was in development.

Tips and service charges

The government has announced plans for new legislation to prevent employers from keeping tips and service charges intended for workers. No specific timescale has been given, but the government has said that the changes will be introduced at "the earliest opportunity". These plans were reiterated in the government's Good Work Plan published in December 2018.

Grandparental leave

Despite government announcements of plans to extend shared parental leave and pay to working grandparents by 2018, further development is still awaited.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

Clinical negligence in the first hours and days of a newborn baby’s life can lead to a lifetime of disability. However, a case in which a six-year-old boy won eight-figure damages from the NHS shows that specialist lawyers are always there to ensure that lessons are learned and just compensation paid.

The much-wanted boy was born following a surrogate pregnancy. After his delivery, however, medical staff failed to notice that his blood sugar had fallen to dangerously low levels. By the time he was appropriately treated, he had suffered brain damage which means he is unlikely to develop mentally beyond the level of a five- or six-year-old. Despite his disabilities, he is expected to live well into his 60s and the costs of his care in the decades to come will be immense.

The boy’s family took legal advice and launched proceedings against the NHS trust that ran the hospital. A settlement of his claim was negotiated on the basis of 92.5 per cent liability. The trust agreed to pay the boy a £6.25 million lump sum, plus index-linked and tax-free annual payments to cover the costs of his care for life. Those payments will start at £91,250 a year and rise in steps to £145,000 a year when he reaches the age of 21. The settlement, which was approved by the High Court, has an overall capitalised value of about £17 million.

For help and advice on matters such as this please contact Adam Hodson on 0808 166 8827 or email a.hodson@sydneymitchell.co.uk

Family inheritance disputes can be witheringly sad and it is absolutely essential to seek independent legal advice to ensure that peace prevails after you are gone. In one case, a man’s death, leaving a £16 million fortune, raised the curtain on years of venomous dispute between his two children.

The man’s will was as simple as could be, in that it left his estate equally between his son and daughter. However, by a previous will, the daughter had been left her share only for her lifetime. That would have meant that, on her death, her inheritance would have passed to her brother or, if he did not survive her, his children.

Following the man’s death, aged 92, his son launched proceedings, claiming that he lacked knowledge and approval of the contents of the later will at the time of its execution. He argued that the earlier document was his last true will.

In rejecting those arguments, however, the High Court found that the son had lost all sense of perspective about the case, to which he had devoted himself full time for three years. He had persuaded himself, contrary to the evidence, that his sister and his mother had engaged in a conspiracy to overcome his father’s free will.

There was nothing remarkable or suspicious about the man’s decision to make an equal and outright division of his estate between his children, and the Court had no hesitation in concluding that he was fully aware of the nature and effect of the document he was signing.

For advice please contact Kamal Majevadia 0121 746 3300, email k.majevadia@sydneymitchell.co.uk and for Wills Trusts and Probate matters contact Tracy Creed 0121 746 3320, email t.creed@sydneymitchell.co.uk.

A woman who suffered a complete loss of fertility following a hospitals’ failure to detect cancer has been successful in claiming the costs of surrogacy in California, establishing a new legal precedent which could mean women in similar situations can still raise families using international surrogates.

In the case of XX v Whittington Hospital NHS Trust, the hospital admitted negligence in failing to detect signs of cancer in smear tests and biopsies from between 2008 to 2013. The woman, Mrs X, went on to develop cervical cancer and following chemo-radiotherapy treatment, she suffered a complete loss of fertility and severe radiation damage to her bladder, bowel and vagina.

In 2013, Ms X underwent a cycle of ovarian stimulation and egg harvest which resulted in twelve eggs being harvested and cryopreserved. Ms X and her partner had very much desired to have children and therefore decided to have their own biological children - either by way of commercial surrogacy carried out in California or non-commercial surrogacy in the United Kingdom. 

Though lawful in the State of California, commercial surrogacy is illegal in the UK. Non-commercial surrogacy is permitted in this country, but only reasonable expenses may be paid to the surrogate mother, and under the law, the surrogate mother is the legal mother of the child and can refuse to give the child to the intending parents. In order to obtain parental status, the intending parents must apply to an English court for a “parental order” after the birth, of which there is no guarantee it would be successful. In California, however, commercial surrogacy agreements are binding on the parties (the surrogate mother, on one hand, and the intending parents, on the other). The intending parents can obtain a pre-birth order from a Californian court to confirm their legal status as parents of the expected child.

Mrs X claimed for the compensation for her injuries, as well as costs of Californian surrogacy. Although she was unsuccessful initially at trial, she successfully appealed to the Court of Appeal who unanimously allowed her appeal, and awarded her the costs of commercial surrogacy which would be agreed between the parties (estimated between £155,000 and £558,000), as well as £150,000 for her pain, suffering and loss of amenities.

Adam Hodson, clinical negligence solicitor with Sydney Mitchell, said, “This is an important case and clearly establishes the right for women to claim for costs of surrogacy which, although legal abroad, are unlawful in England and Wales. It means that the courts have expressly recognised that where a woman suffers a loss of fertility caused by a defendants’ negligence, she can expect to be properly compensated to ensure that she can still have the possibility of raising a family in the future.”

For help and advice please contact Adam Hodson on 0808 166 8827 or email a.hodson@sydneymitchell.co.uk