Sexting - Flirty Gertie or Dirty Bertie?

horny devil

Sexting – harmless fun or adultery?! Depends who you ask and its not just confined to stars of our favourite soaps! Whether you are the sextor or the sextee this can be a deal breaker in a marriage. Perhaps it is just harmless fun but to your spouse it may be the ultimate betrayal! What then if you decide the marriage is over and you want to divorce; is it adultery? The answer is no unless it is accompanied by sexual intercourse with a person of the opposite sex. What then is the recourse to the spouse who feels betrayed? – they are able to proceed with a divorce citing the behaviour of the other as unreasonable. Everyone’s tolerance is different but the majority may find that sexting someone other than your spouse is unreasonable.

If you have found yourself in Dyer circumstances then our specialist team of solicitors are able to offer you sympathetic and straight forward advice in relation to your options. Contact us by calling 01992 558411 or alternatively complete our online enquiry form.

Olive McCarthy MCIArb–(Director and Head of Family Department) – Olive joined the firm in 2000 and was appointed as a Partner and Head of the Family Law Department in the old firm in 2004. Olive has had panel accreditation with the Law Society as a Family Law Specialist since 2003 and has been a Collaborative Lawyer since early 2009.  She is also accredited with the Chartered Institute of Arbitrators as a Family Law Arbitrator since early 2013, a prestigious accolade that few have achieved in the UK.

Olive specialises in dealing with complex finance cases, particularly high net worth cases.

 

 

 

 

 


The Directors' Friend: – Facing Personal Liability for 'Wrongful Trading' - Call for 'Robin Hood'

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

In order to obtain an order from the court that a director is personally liable for wrongful trading under section 214 of the Insolvency Act 1986 (the ‘Act’) the Liquidator or Administrator have to not only prove the elements of wrongful trading, but they must demonstrate how the wrongful trading caused an increase in the company’s net deficiency. That is its losses.

That is the company should objectively have been placed into Liquidation at X date. It was not. The net deficiency has increased as a consequence – by how much? No evidence = no personal liability.

SECTION 214

In summary, this is claim for personal liability against a director of a company. The claim is made up of the following:

  • The company is insolvent and is in Liquidation or Administration;
  • A person has been a director of that company at any time; and
  • At some time before the commencement of the winding up of the company, that person knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation or entering insolvent administration.

The court, on the application of the Liquidator, may declare that that person is to be liable to make such contribution (if any) to the company’s assets as the court thinks proper.

The court shall not make a declaration if that person took every step with a view to minimising the potential loss to the company’s creditors as they ought to have taken.

That takes into account:

  1. the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and
  2. the general knowledge, skill and experience that that director has.

BACKGROUND

A recent appeal case heard by David Foxton QC on appeal from Registrar Jones (Brooks and another (Joint Liquidators of Robin Hood Centre plc (In Liquidation) v Armstrong and another [2016] EWHC 2893 (Ch)) the directors successfully appealed the amount of compensation payable by them.

The Registrar in the earlier decision had held that the directors had been guilty of wrongful trading; that the net deficiency of the company had on the evidence increased and that as a consequence the directors had to contribute £35,000.00 to the company’s assets.

That was in circumstances where the directors were facing a claim in a sum in excess of £700,000.00.

The directors were faced with a number of dates on which it was claimed that they knew or ought to have known that the company was facing insolvent liquidation. The Registrar found that the directors had that knowledge on one date, but were not wrong to continue to trade until a later date. That was because up to that later date the directors were taking steps to minimise further losses to creditors.

FINDINGS

Essentially, the Liquidators were found on the facts to have failed to make out their case that there had been an increase in the net deficiency (losses) of the company during the period of wrongful trading. This is fundamental irrespective of losses caused to individual creditors.

No increase in the net deficiency = no case.

COMMENT

Following this decision, it shows that a Liquidator or Administrator must show that the wrongful trading alleged actually caused losses to creditors of the company.

From a director’s perspective, it shows that there are risks when you are a director of a company that is or maybe trading insolvently to you personally. However, with the early and right advice this can be mitigated or even perhaps with the assistance of Robin Hood defeated…

I understand, however, that the Liquidators have applied for permission to appeal this decision – watch this space.

WRONGFUL TRADING AND DIRECTOR DISQUALIFICATION

The well-advised director will also be mindful of the risk in section 10 of the Company Directors Disqualification Act 1986 that states:

‘(1)       Where the court makes a declaration under section 213 or 214 of the Insolvency Act 1986 that a person is liable to make a contribution to a company’s assets, then, whether or not an application for such an order is made by any person (emphasis added), the court may, if it thinks fit, also make a disqualification order against the person to whom the declaration relates.

(2)        The maximum period of disqualification under this section is 15 years.’

The directors of the company were perhaps fortunate that the Registrar chose not to also exercise the jurisdiction to disqualify the directors from acting for a period of time.

WHAT TO DO NOW

If you are faced with insolvency issues with your company, a wrongful trading claim for personal liability or director disqualification proceedings please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time...

THE DIRECTORS FRIEND


New Telephone System

In order to improve the service that we provide to clients and callers, a new telephone system is due to be installed at Breeze and Wyles during the week commencing 20th February 2017.

There is likely to be a short interruption to telephone services at some stage early that week whilst the work is completed to change over to the new system. Please be patient with us whilst the new system is being installed. The new system will enable us to greatly enhance our call handling services to all our clients so we hope you will bear with us while the installation takes place,

Thank You


Government Consultation suggests that you should review your Debt Procedures!!

On 23rd December last year, the government announced that they will discuss new measures to protect consumers from unknown debt claims. The upcoming consultation will consider how to  protect consumers against unsuspected debts or unknown claims, but also allowing appropriate redress for companies that are owed money. The government has highlighted that both consumers and companies should take steps to ensure that the information they have is up to date to help circumvent this issue. The government has also advised that a public advice campaign will be launched sometime this year to provide straightforward guidance to consumers on ‘how to communicate accurate address information, find out about outstanding claims and how to challenge erroneous claims.’

The government website states that the consultation will look at ways to:

  • better protect consumers who are sent mail to inaccurate addresses
  • verify addresses again before a claim is sent
  • protect people’s credit scores from being damaged if they resolve outstanding debts quickly
  • consider how modern communication could notify people of outstanding debts
  • assess the role of parking companies and examine how drivers are informed of fines

Although this is a positive step by the government, as it aims to improve the current system and ensure consumers are more knowledgeable surrounding their debts, it can mean more responsibility on our commercial clients when chasing after bad debts. Sharon Matchwick, from our business services team, comments that:

‘more diligence is required on the part of commercial companies to ensure that they are sure they are sending their Letters before Action (LBA) and issuing claims against the right people’.

In the first instance, this can mean more chance of your debts being repaid and more quickly by LBA, claims being issued correctly first time round and less chance of them being challenged for being erroneously brought. However, this also effectively means companies having to set aside more time to satisfy themselves of who their debtor is in the first place. Breeze and Wyles has the expertise to advise you and the systems in place to carry out initial checks against debtors which can save you valuable time and money in the long run.


Reuse of a Prohibited Company Name by a Director leaves the Director caught in an expensive web!!

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

Following a prosecution for breach of section 216 of the Insolvency Act 1986 (the ‘Act’) (re-use of a prohibited company name by a director) with confiscation proceedings following the Court of Appeal recently concluded that:

  • a confiscation order can be made against an individual who is convicted for trading under a prohibited name / style; and
  • the court is entitled to hold that the total turnover (not just the net profit) for the entire period of trading under that name is recoverable.

SECTION 216

In summary, this is where a director of a company reuses the same or a similar name to a company that has entered into insolvent liquidation, so as to suggest an association.  This name is known as a “prohibited name”. This can include any name registered at Companies House, a trading or other name.

BACKGROUND

A recent Court of Appeal decision R v Neuberg [2016] EWCA Crim 1927 handed down by Lord Thomas of Cwmgiedd, CJ considered the law of confiscation following a successful prosecution against an individual for breach of section 216.

The appeal was as a result of a reference by the Criminal Cases Review Commission (‘CCRC’).

The Appellant was a director of company Watergate Services Limited trading as ‘Neuberg Metal Spinners’ (the ‘Company’) which went into liquidation on 19 November 2001.

By the time that the Company was placed into liquidation the Appellant was trading in her own name as ‘Neuberg Metal Spinners’.

After 19 November 2001, it was not lawful for the Appellant to use the name of "Neuberg Metal Spinners" but she continued to use that style until 14 June 2002.

The Appellant was charged with trading under a prohibited style, namely "Neuberg Metal Spinners", without the leave of the court, between 19 November 2001 and 14 June 2002 contrary to section 216 of the Act.  She pleaded guilty to that offence on 12 November 2004.

She was given a community sentence and disqualified from being a company director for five years.

Further, a formal Order for confiscation was made on 12 April 2006. The benefit was the turnover of the Appellants trading in the sum of £288,948. The realisable assets were £100,000.  The Order was made in the amount of £100,000.  The judge fixed the term of imprisonment in default at two years and ordered the appellant to pay £7,500 towards the cost of the prosecution.

The Appellant paid £100,000 as ordered.

FINDINGS

It was found by the Court of Appeal that:

  • the criminal activity was carrying on the business in the prohibited name;
  • it was clear that the Appellant carried on the business under a prohibited name;
  • it was the carrying on of that business under that name that gave her a significant benefit;
  • For present purposes, it was sufficient to say that, as the court held in 2007, the judge was unquestionably correct in calculating the benefit by reference to the turnover; and
  • On the basis of the information (a lack of financial analysis of the accounts) put before the Court, that there was nothing from which the Court could infer that the amount of the confiscation order in the sum of £100,000 was in any way disproportionate.

The Court observed that attempting to conduct an exercise in ascertaining the financial position of this business more than 14 years previously was one that would have been fraught with difficulty.

The Court therefore rejected the appeal and stated that it was a matter of some regret that the reference was made to the Court (by the CCRC) without a more careful analysis of the basis on which the reference was to proceed.

COMMENT

Following this decision, any director or other convicted of this offence could be ordered to pay a sum equal to the total turnover for the entire period of illegal trading. This would be in addition to any fine or prison sentence handed down as a punitive element.

The director could also be disqualified from acting as a company for a period of time.

In addition, again that director / individual could also find themselves personally liable to repay the creditors of the business under section 217 of the Act, although possibly not in the case under discussion. So, heavy sanctions!

WHAT TO DO NOW

If you are faced with a claim for personal liability or a prosecution under these sections please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

There are options that are outside the scope of this article to avoid the draconian consequences under this law, but the well-advised director must move swiftly to protect their position.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time...

THE DIRECTORS FRIEND