Director's Friend

The Director’s Friend and a Statutory Demand – a testimonial received:

Directors Desk
The Director's Friend

This blog post features a testimonial from a director client who was served with a Statutory Demand by two purported creditors. The client was recommended to the Director’s Friend by their business adviser.

A Statutory Demand:

A Statutory Demand is served by a creditor. It demands that the person pay a sum of money within 21 days or apply to set aside the Statutory Demand within 18 days.  Otherwise that person could be served with a bankruptcy petition.  If they are made bankrupt their property and goods are taken away from them.  Therefore, it is a very serious matter for the person in that it is a very real threat of being made bankrupt.

A Statutory Demand can also be served upon a company.  How the company can respond is different as a company cannot apply to set aside a Statutory Demand.  Amongst the options a company has is to apply to court to restrain presentation of a winding up petition.  This should also be made within 21 days of service.

Details of the Statutory Demand:

The Statutory Demand was attempting to make the director client personally liable for debts of his company.

The Director’s Friend was able to help:

This is the testimonial for the advice of the Director’s Friend:

“I instructed Richard Cole (the Director’s Friend) in respect of a Statutory Demand that had been served upon me. I was extremely concerned and worried by receiving the Statutory Demand particularly as my first language is not English.  I was referred to Richard Cole who was able to take my instructions.  Richard Cole was able to file my application to set aside the Statutory Demand at court within 48 hours of receiving my initial instructions.

Negotiations were entered into with my purported creditors. The Statutory Demand was successfully set aside at Court on the basis that I disputed the same.  With Richard Cole’s timely advice, the Deputy Registrar awarded me 90% of my legal costs for making the application.

I was very pleased and impressed with the service that Richard Cole as the Director’s Friend provided to me and the result that he achieved for me. Richard Cole certainly is the Director’s Friend!  I would have no hesitation in recommending Richard Cole to you for insolvency / directors’ advice.”

RL – Oxfordshire.

The Statutory Demand was dismissed with costs awarded.

If you, someone you know or a company is served with a Statutory Demand then bearing in mind the short timescales to respond please contact the Director’s Friend for help.

As the Director’s Friend, I was very grateful to receive this testimonial. It demonstrates the approach (and speed) that the Director’s Friend takes with the experience and knowledge that the Director’s Friend can bring to bear for you in your corner.

My name is Richard Cole. I am an insolvency solicitor who formerly worked in the Insolvency Service carrying out director disqualification investigations.  I am now the Director’s Friend.  Why not contact me to discuss on +44(0) 1992 558 411.  The earlier that you speak with me the more that I can likely help.

Until the next time ...

The Director’s Friend


tug rope

Reports suggest Judge Rinder & Seth Cummings Split...

Recent media reports suggest Judge Rinder has separated from his husband, Seth Cummings after 11 years together.

Following changes in the law allowing same sex marriages, divorce is treated in the same way for same sex couples as for couples of the opposite sex. When issuing divorce proceedings in both cases, the petitioner must show the marriage has irretrievably broken down and must rely upon one of five facts; Adultery, Unreasonable Behaviour, 2 years separation with the other party’s consent, 5 years separation or desertion. It should be noted however, that the law remains the same in respect of Adultery; the petition must show the Respondent has had intercourse with another person of the opposite sex; it cannot be relied upon if the Respondent has had intercourse with a person of the same sex. It remains to be seen whether the law will be changed in that respect.  

Here at Breeze and Wyles Ltd we offer expert advice on divorce whether it is a same sex marriage or couples of the opposite sex. We also offer advice in respect of the dissolution of a civil partnership or separation advice. Our lawyers are highly trained in all aspects of divorce and separation including advice on finances and matters relating to children.

Call us to discuss further on 01992 558411


Signing a Surname

Does a periodic tenancy count as being repeatedly renewed/granted?

Signing Document
Signing Document

 

This was the subject of a decision in Walcott v Jones & Jones. Central London County Court, 15 November 2017

The tenants, who commenced a tenancy in 2007, argued that the Section 21 served was invalid because the Landlord had failed to adhere to the requirements of the Deregulation Act 2015. They argued that the oral monthly tenancy was a re-grant of the tenancy every month that each periodic tenancy was a re-grant of the tenancy and therefore the Landlord failed to comply with the Deregulation Act 2015 when serving the s21. The DDJ agreed in the first instance and the claim for possession was struck out.  Not surprisingly the Landlord appealed and the Appeal Judge held that a periodic tenancy for the purposes of Housing Act 1988 (as amended) did not amount to a ‘grant’ of a new tenancy . The tenancy merely continued. Parliament did not intend a ‘grant’ in such circumstances. The DDJ had erred in law and appeal allowed.

Whilst this is great news for Landlords it is important to note that from October 2018 the Deregulation Act will apply to all assured shorthold tenancies no matter when and how they commenced.

Should you be facing a similar situation, feel free to contact our Landlord and Tenant team on 01992 558411 and they would be more than happy to assist you.


Director's Desk

THE DIRECTOR’S FRIEND BLOG - Breaches of Directors’ duties for health and safety offences can be costly!

Directors Desk
The Director's Friend

Breaches of Directors’ duties for health and safety offences can be costly!

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

 Introduction:

One area of law that impacts upon the duties of directors that appears overlooked is that of the personal liability and potential loss of liberty suffered by directors of companies in breach of The Health and Safety at Work Act 1974 (the “Act”).

The national regulator for work place health and safety is the Health and Safety Executive (“HSE”). Investigations and prosecutions of individuals for safety related breaches are increasing.  The fines imposed upon companies and individuals can be expensive.

Who can be prosecuted?

A wide range of entities and individuals can be prosecuted to include limited companies, individuals and directors or senior managers. Section 37 of the Act states:

“Offences by Bodies Corporate

(1) here an offence under any relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director (emphasis added), manager, secretary or other similar officer of the body corporate or a person who is purporting to act in such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly”

Case Summary of a prosecution by the HSE:

In a recent press release the HSE confirmed that a Rochdale based car repair company and its director were fined after failing to comply with Improvement Notices (“IN”) issued by the HSE.

Rochdale MOT Centre Limited (the “Company”) and its director a Nazar Hussain (the “Director”) failed to comply with three INs.  The INs required the thorough examination of three two-post vehicle lifts by specified dates in the IN.  These offences were considered by Manchester Magistrates Court on 10 June 2016.            

Section 33(1)(g) of the Act makes it an offence for a person:

...to contravene any requirement or prohibition imposed by an improvement notice or a prohibition notice...

The Company and the Director of the Company pleaded guilty to breaching this section of the Act. They were ordered to pay fines of £1,500.00 and £3,000.00 respectively. In addition, both defendants were ordered to pay the full prosecution costs in the sum of £15,609.14.

Comment by the HSE Inspector:

The HSE Inspector, Sarah Taylor said that:

This case highlights the impact of HSE’s work, ensuring duty holders are held to account for their failings and taking the appropriate action to ensure workers are safe.

 All workers have the right to return home from work safe and healthy, but the Company and Director (emphasis added) in this case placed employees at risk of harm by failing to address concerns raised by HSE Inspectors.

A Director Disqualification?

The Magistrates Court would likely have had a jurisdiction under Section 2 of the Company Director Disqualification Act 1986 to disqualify the Director upon conviction of the offence under the Act which may have resulted in a maximum period of director disqualification of up to 5 years.

It would appear fortunate for the Director that he was not also disqualified as a company director and therefore possibly barred from continuing to trade his business. Although there are other options available.

Comment:

It can be seen that the duties of directors can extend in to areas that directors of companies wouldn’t necessarily consider such as health and safety law at issue here. The Director’s Friend says that the well-advised director would be wise to consider their duties and obligations under the Act bearing in mind the potential personal liability and possible director disqualification action that can arise following a prosecution and conviction of that individual director personally.

A final thought:

Sometimes directors may have insurance policies that will likely cover defence legal costs for these kinds of actions. However, the Director’s Friend says that any fine imposed upon a company following a conviction certainly will not be.  As a general principle, it is against public policy to be able to insure against a criminal act.  Similarly, where a Court orders the defendant to pay the prosecution’s reasonable costs in bringing a case, these costs are rarely covered by business insurance and may have to be funded by the business/individual themselves.

So, it is even the case that if you have protected yourself by way of taking out an insurance policy that is not a panacea to pay off all or any liability that the company or you as a director may face under the Act.

What to do now:

If you are faced with:

  • Potential personal liability in your capacity as a director under the Act;
  • Director disqualification; and / or
  • All other forms of personal liability in your capacity as a director

then talk to me today on +44(0) 01992 558411.

 That is in order to protect your position without delay. The earlier that you speak with me the more than a can likely help.

I am a Hertfordshire/London based solicitor and a full member of both The Insolvency Lawyer’s Association and The Association of Business Recovery Professionals.

Until the next time ...

THE DIRECTOR’S FRIEND

 


banking

Stamp Duty relief for First time Buyers

Piggy Bank Budget savingsThe budget is out, with £15.3 billion new financial support for house building over the next five years and with the Government setting aside £1.2 billion to buy land and £2.7 billion for related infrastructure.  The Government announced plans to create five new so-called ‘garden’ towns, and there was a headline-grabbing cut in stamp duty for first time buyers.

Stamp duty is currently paid on property purchases over £125,000, with a ‘slice’ tax where buyers pay at the relevant rate for each band, rather than a flat rate across the whole amount.  With immediate effect, stamp duty is abolished for first-time buyers on properties worth up to £300,000, or on the first £300,000 of a property worth up to £500,000.

Property law expert and Solicitor Johanna Withams based in our Bishop’s Stortford office said: “The change in stamp duty has caught most of the attention.  It’s certainly a move that will be welcomed by first time buyers, but does add yet more complexity to the application of this particular tax, where we already have different rates for second home owners and landlords.

“Buyers need to read the small print before rushing out to make an offer, as there are clear distinctions on who is eligible. It will not apply if any property has been owned at any previous time, whether here or anywhere else in the world, and it must be the only or main home for the buyer.  In a joint purchase, everyone would need to qualify as a first-time buyer.  Buyers will need to check out the detail with their solicitor, and the benefit must be claimed when the Stamp Duty Land Tax return is made to HMRC during the purchase process.”

If you have any questions, or wish to discuss your potential purchase through with us, please give us a call at any of our offices based in Bishop’s Stortford, Hertford and Enfield. 01279 715555, 01992 558411 or 0208 366 6411

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Reference:

https://www.gov.uk/government/speeches/autumn-budget-2017-philip-hammonds-speech

https://www.gov.uk/government/publications/autumn-budget-2017-documents


Beware the Expiring Lease

Signing Document
Lease Extension

I have noticed a huge increase in enquiries for lease extensions as Mortgage companies are becoming increasingly nervous about lending on shorter leases.  The less years to run on your lease the more expensive the premium to extend. Delaying could end up costing you thousands of pounds more.

 

What are your options?

You can extend your lease on a voluntary basis with your landlord or alternatively if your Landlord is unwilling to agree to a lease extension you can make a claim under the Leasehold Reform Housing & Urban Development Act 1993 (“the statutory route”)

If your landlord is willing you will need to agree a price and the terms which could include  an increased ground rent or other terms for agreeing to extend the lease.

If you use the statutory route, 90 years will be added to the remaining term and ground rent will be reduced to zero.  However in order to use the statutory route you have to satisfy certain criteria, one of which is that you have been the registered proprietor of the property for at least two years.

It is important in both cases to obtain a lease extension valuation by an experienced Surveyor to make sure that you are not paying too much or you are agreeing to terms that may be detrimental and unattractive to a prospective buyer.

What else do I need to think about?

If you use the statutory method you are required to pay your landlord’s reasonable legal and valuation costs.  If you are agreeing a lease extension with your Landlord it is likely that they will still want their costs paid by you as part of the agreement.

If you use the statutory route and you are unable to reach an agreement with the Landlord you are able to apply to the First Tier Tribunal (Property Chamber) for a determination of the premium and also the Landlord costs if you think that these are unreasonable.

Need more information?

Please ring Rita Wright for further information or even a chat to discuss your options on 01992 558411 Rita.Wright@BreezeandWyles.co.uk


Director's Desk

THE DIRECTOR’S FRIEND BLOG - No ‘Wrongful Trading’ here

Directors Desk
The Director's Friend

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

The case:

 This is a discussion about a recent case decided in the Chancery Division of the High Court – (1) Nicholas William Nicholson and (2) Stratford Edward Hamilton (As Joint Liquidators of Main Realisations Limited) and (1) Thomas Geoffrey Fielding and others a judgment by Deputy Registrar Prentis (it would appear unreported).

Summary

 In summary, prior to Mainland Car Deliveries Limited (In Liquidation) (the ‘Company’) being placed into Administration is was alleged by the subsequently appointed joint Liquidators of the Company that the three directors of the Company had caused the Company to wrongfully trade and that they were liable to personally contribute over £2.12M to the assets of the Company. The Deputy Registrar appeared to be less than impressed with the Liquidators evidence and dismissed the application.

Section 214 of the Insolvency Act 1986 (the ‘Act’)

In the Director’s Friend earlier blog this section of the Act was explained.

In summary, the issues that the Court considers includes:

  • Whether the directors of the Company should have known or ought to have concluded that from a date that there was no reasonable prospect that the Company would avoid entering into insolvent liquidation (i.e. not that the Company is insolvent);
  • The focus is on the individual director’s conduct;
  • The maximum loss that the Court can take into account is the loss to the Company (not to creditors) as a result of the liquidation being delayed (net deficiency);
  • How far there is a sufficient connection between the increase in net deficiency and the factors which made the directors decision that the Company should trade on wrongful; then
  • What would be a fair order as between the various Respondents.

The judgment

The Deputy Registrar went through the detail of the evidence in some detail to consider whether or not there was any wrongful trading (paragraphs 54 to 96 of the judgment).

At paragraph 97 the Deputy Registrar found:

The hallmark of the Company’s correspondence with HMRC is that of ongoing detailed consideration of its position, entirely consistent with the evidence of Mr Fielding and Mr Tait that the directors were constantly monitoring and discussing the situation. They were doing so backed by exemplary management accounts prepared by Mr Tait, and they were taking tough decisions: laying off staff, laying up trucks.

 98. All this was against a background of an uncertain financial world, oscillating fuel prices, and an industry entering a significant downturn of uncertain duration. The evidence is that the directors were doing their best to take account of those, and they cannot be criticised for not predicting their full effect.

At paragraph 105 the Deputy Registrar was mindful of the fact that HMRC (a large creditor) ‘… was willing even in early 2009, after multiple failures of the Company to meet its promises, to enter into a further time to pay agreement.

The Deputy Registrar’s observations

The Deputy Registrar did not appear impressed that a deficiency account had not been prepared by the joint Liquidators (per paragraph 112) nor was an explanation provided as to why not.

In addition, he observed at paragraph 112:

I am left without any real clue as to what losses would have been incurred anyway consequent on an earlier liquidation.

The Deputy Registrar was also less than impressed (at paragraph 113):

Next, it seems to me that to rely now without qualification on the statement of affairs in the administration, prepared more than 7 years ago, is utterly inappropriate. Quantum is not an assessment of a notional figure. It is in this context assessment of the loss to the Company caused by ongoing trading.

Perhaps unsurprisingly the application was dismissed.

The Director’s Friend comments

This is another application for wrongful trading that has failed due to a lack of the required evidence being put forward by the Liquidators. The Court did not appear impressed in this case with that lack.

The Director's Friend says that from the perspective of the directors it would appear fortunate that there was enough contemporaneous evidence in the Company’s correspondence with HMRC to explain the position. The directors were constantly monitoring and discussing the situation backed up by the exemplary management accounts prepared by one of the directors. The situation that the Company found itself in was not found to be the fault of the directors.

Finally, there is no reference to possible consequent director disqualification for participation in wrongful trading, however, with this type of claim there is always a risk of being subject to director disqualification as well. Please see the Director's Friend earlier blog for more details.

What to do now

If you are faced with:

  • worrying insolvency issues with your company;
  • a claim against you for wrongful trading or perhaps misfeasance; and / or
  • director disqualification

then please talk to me today on +44 (0)1992 558411.  That is in order to protect your position without delay.  The earlier that you speak with me the more that I can likely help.

I am a Hertfordshire / London based solicitor and a full member both the Insolvency Lawyers Association and the Association of Business Recovery Professionals.

Until the next time...

THE DIRECTOR’S FRIEND


Lawnet Sheep

Lawnet Challenge 10/06/2017 – The Great Washout!

Lawnet Ch2Hard to believe it in the current heat we're experiencing, but a couple of weekends ago, some employees of ours took part in a yearly Lawnet Challenge and encountered some rather wet weather! Peter Jones, our Business Development Manager has written up their story:

"This year, 11 adventurous (by which I mean crazy) representatives of Breeze & Wyles and Breezeplus+ Legal Services ventured up to the Lake District to take part in the annual Lawnet Challenge.

Around 2pm we were off! What a start! The sun was shining, the songs were playing on the radio and the banter was quick and fast between the passengers of the different cars... Our small convoy of 3 were zooming up the M11 with the intention of going via the M6 Toll road.

Clearly the banter was too much as one car continued down the M11 and missed the turning for the A14 which meant they had to go the A1/M route... Our convoy was down to 2 cars! We should have realised this might have been a sign for the rest of the weekend...

Saturday Morning:

We all woke up to glorious RAIN! It would seem, unlike the rest of the country, this little area of the world would have solid rain for the whole day with gusts of winds up on top of the mountain ranges as strong as 50-60mph. I had a sudden realisation (and I’m sure others did too), that this is called a challenge for a reason and it wasn’t just a jolly walk in some lovely countryside with a nice pub at the end of it. Clearly, my training and carb re-loading, wasn’t quite as good an idea as I thought.

Because of the conditions that we were faced with, the organisers and guides decided that the original mapped out routes would not be possible. They would take us up an easier route first to see how the weather turns out, and then take us a more challenging route should we be able to.Lawnet Sheep

At this early stage, the rain was coming down, but it wasn’t as bad as we thought it would be. It was continuous, but rather pleasant to walk in. Spirits were up and conversation aplenty. Soon the terrain got a little steeper and the group started to stretch out a bit. The rain continued, making it harder to hear each other talking due to the hoods getting in the way and the rain drumming down. Things were getting wetter and heads were dropping to concentrate on the terrain and where we were placing our feet, it was easy to lose your footing and slip!

We then went further up the range and ended up at a little walkers shack about halfway up towards Helvellyn (or somewhere near there... it all looked the same at this stage).

A few members of our team had to go back down to the hostel as they had reached the limits of their kit and were soaked through. The rest of us went further up towards the Helvellyn reservoir.

By 11.30 however, all the groups guides re-convened to decide what to do next. By this stage, the rain and wind had whipped up even more and everyone’s waterproof kit was no longer waterproof. It was at this stage, with boots filling with water, that we as a team decided it was time to head back. The weather was only going to get worse and the winds were already blowing some of group members off their feet.

The journey back down was just as tough as going up, nut with greater impact on the knees. Rocks were treacherously wet and what were small trickles of water on the track on the way up, were now turning into streams running down the mountains, even the sheep were looking dishevelled!

Eventually, we got back to the hostel, wrung out our socks and hung all our wet clothes in their “drying” room. A warm shower, lunch and some naps meant we were all back to ourselves again in the late afternoon, although even then our legs were getting sore and it was difficult to stand up after sitting down for any amount of time.

Hard to think we had only done half of the allotted walk, I was not looking forward to the drive back!

Thankfully, my fears were not founded. We woke up and had a hearty breakfast before waddling out to the cars like we were in a Western and “Saddling up” to head back home.

All in all, it was a great experience and we are already looking forward to next years challenge!"

By Peter Jones, BDM for Breeze & Wyles Solicitors Ltd


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


Firm bolsters its Property and Insolvency Litigation Practice

Breeze & Wyles is pleased to announce that it has bolstered its Insolvency and Property Litigation offering with the hire of Janina Lamb and Richard Cole, along with the qualification of our latest Solicitor from our Solicitors training program, Bradley Ali.

new-employees(From left to right: Richard Cole, Brendan O'Brien, Bradley Ali and Janina Lamb)

Janina joins Breeze & Wyles from a City practice dealing with litigation and will be working with Rita Wright, our resident expert in continuing to build the property litigation business.

Janina has a background in industry having worked as in-house Counsel with some of the largest property management companies in the country, and previously worked in Local Government within the largest Borough in London and private practice. Janina is motivated to resolve matters as quickly as possible with a commercial view and brings with her a wealth of experience in Property Litigation, Landlord and Tenant, Property Management, Leases and Tenancies, general Litigation, and Debt Recovery.

Richard joins the firm from a niche insolvency and litigation practice in Birmingham to develop our commercial litigation and insolvency practice.

Richard started his career at the Insolvency Service (see: https://www.gov.uk/government/organisations/insolvency-service) investigating companies that had been placed into a formal insolvency process with a view to understanding why the company had become insolvent. That was with the objective of disqualifying the company director(s) from acting in the management of a company again for a period time due to identified misconduct.

Upon qualification as a solicitor at a niche firm in Birmingham Richard practised a broad range of insolvency law and commercial litigation to include becoming a ‘game keeper turned poacher’ in defending applications brought by the Secretary of State for director disqualification. Richard has in excess of 15 years’ insolvency law and commercial litigation experience to offer.

Richard looks forward to developing his practice with Breeze & Wyles to include protecting company director’s interests.

Brad started his legal career at the Breeze & Wyles working in residential property and has since gained a wide range of experience training in all the areas of the firm’s practice before qualifying as a commercial property solicitor.

Before Brad embarked on his legal career he completed a degree in Biomedical Sciences and incorporates his meticulous scientific approach into the services he offers to his clients who include private and commercial clients such as property investors, management companies, trustees and lenders.

The work Brad currently undertakes generally relates to acquisitions and disposals of commercial property, options, pre-emptions and overage agreements, various dealings with leasehold land including residential lease extensions. Brad also provides corporate support on commercial finance and security for SMEs and Lenders.

Brad is planning to further develop his experience by expanding into Insolvency, Tax and Planning and site development.

Managing Director and Head of Business Services Brendan O’Brien said: “The expansion of the team by the addition of Richard and Janina at the same time as Bradley Ali joining our Commercial property team will reinvigorate our offering, re-focussing it on the challenges that lie ahead for many of our clients. I wish Richard, Janina and Bradley all the best as they begin their journey with Breeze & Wyles.”