protecting yourself from cyber threats - guildford solicitors · twm solicitors’ contentious...
TRANSCRIPT
ISSUE 27: SPRING 2017
www.twmsolicitors.com
Crime is an unfortunate fact of life, and every day we take sensible precautions to mitigate our risk of falling victim to crime - for example, by locking and alarming our homes and our cars, not to mention avoiding dubious places after dark.
However, many people and businesses aren’t aware of the need to apply the same attitudes to their identities and their online security - the consequences of an attack can be severe. Legal transactions such as house purchases, probate cases and business transactions, which involve solicitors, have increasingly become a target for cyber attacks in recent years. Some high profile cases have been hitting the headlines where significant sums of money belonging to both clients and solicitors were lost to online fraudsters, causing significant financial losses and reputational damage.
At TWM Solicitors we adopt rigorous processes to protect our clients’ data, intellectual property and other legal information in an effort to ensure that you don’t become a victim of fraud.
Protecting yourself from cyber threats
Some simple tips include:
• Update your computer, tablet or phone with the latest software releases regularly
• Use complex and unique passwords for each account (e.g. a combination of letters and numbers, upper and lower case)
• Log out of any personal accounts (email, social media, banking and other secure websites) when accessing these using a public computer or device
• Install Anti-Virus and Anti-Malware software
• Sign up for an online cyber course (we recommend https://cybersecuritycourse.co/)
Please note we will never email you part way through a transaction asking you to transfer money to another bank, our bank account details are listed in our terms and conditions and have not changed in many years. If you are in any doubt, please contact your solicitor.
www.twmsolicitors.com
costly litigation which can cause further friction amongst beneficiaries in an already fraught situation. Mediation can also, unlike protracted litigation, stop the matter being dragged out for longer than necessary, enabling family members to benefit more quickly from certainty and closure.
Conversely, mediation can also assist when family relations have broken down to the point where members of the family really do not want to see one another any more. At mediation, parties generally sit in their own private rooms with their legal teams and the mediator ‘commutes’ between them. This means that the parties never actually meet at the mediation, and in turn ensures that there is no need to endure the uncomfortable ‘evil eyes’ that are so often seen in the court room.
TWM Solicitors’ Contentious Trusts and Probate team have promoted many successful mediations, with the settlements benefiting both parties. If any of the above strikes a chord with you, or you have any queries or concerns about your own situation arising out of this article, please contact Guy Perkins, James Acres or Candy Stockton who will be happy to assist you.
DISPUTE RESOLUTION Call the mediator
When someone has died and the content of his or her Will comes to light, it can feel to those who are grieving like a statement of the deceased’s love and affection for them. When a child, sibling, spouse or other family member is excluded from a Will, any reasoning the testator may have had for that decision is all too often lost, which can leave the disappointed beneficiary feeling resentful.
When a person becomes aware that they have been excluded from, or left less than they might have expected in a Will, their feelings of inadequacy or of being unloved can appear to others to be attributable to greed. People feel guilty that they are even thinking about contesting the Will of a deceased loved one, but it is not greedy to want to feel equal to your siblings, or loved by your late spouse; nor is it unreasonable to want to investigate any suspicious circumstances surrounding the preparation and execution of a Will which seems irrational or unfair.
At TWM Solicitors we are passionate advocates of mediation in order to settle the family disputes which can arise in these circumstances. We find that mediation can help to uphold relationships that would have broken down had the case gone to court. Mediation helps maintain the estate’s assets better than engaging in emotional and financially
PRIVATE CLIENT Focus on Advance Decisions
Have you considered what medical treatment you would want to receive in the future if, at that time, you lacked the necessary understanding to decide? Although a very sensitive topic, this is something that we should all consider.
It is possible to make certain healthcare decisions in advance by signing a document known as an “Advance Decision” (formerly known as a “Living Will”). Your Advance Decision can make a legally binding statement which refuses your consent to specified medical treatments in the future, should you have lost the capacity to refuse consent to them.
It is important to bear in mind that it is not possible to make a legally binding request that you should receive a certain treatment in the future – just as a person with capacity cannot insist that they should receive a particular treatment. However, an Advance Decision can still be used to record your wishes about which treatments you would like to receive and these views can be taken into account by the healthcare professional providing your care.
Since October 2007, for an Advance Decision to be valid, it has to comply with the statutory requirements set out in the Mental Capacity Act 2005. For example, for your Advance
Decision to validly refuse consent to life sustaining treatment, it must be made in writing and signed by you in the presence of a witness. It must also contain an explicit statement that you intend the Advance Decision to apply in a situation when your life is at risk.
Before deciding whether you wish to put an Advance Decision in place, you may wish to discuss your options with your doctor or other healthcare professional as they will be able to guide you on the potential treatments available. Our experienced Private Client team can help you to draft an Advance Decision which complies with all of the statutory requirements and expresses your wishes in the clearest possible terms.
Further, if you already have a Lasting Power of Attorney for Health and Welfare, or you intend to put one in place, expert legal advice will be essential to make sure that the two documents work together as you intend.
Melanie Kirk: [email protected]
Fiona Wright: [email protected]
We are hosting a series of seminars on the subject of Residence Nil Rate Band. Please visit www.twmsolicitors.com/events for further information.
read more...
read more...
FAMILY Focus on the children
Taking the decision to divorce or separate is not an easy one and this is never truer than when children are involved. Trying to work out the family arrangements following the breakdown of a relationship is difficult with parties trying to balance financial, practical and emotional aspects. Through it all, the children must be at the centre.
The policy of the Court is now one of non-intervention and parents, following divorce or separation, are left to make their own arrangements for their children. Making an application to Court is very much the last resort when parties cannot reach agreement either through their own discussion, with the aid of solicitors or in mediation. The Court will only make an order if it considers it is in the best interests of the child to do so.
The Court has the power to make a Child Arrangements Order setting out with whom a child is to live and when they will spend time or otherwise have contact with a person. The order can name one or two people as persons with whom the children will live specifying the time that the child will live in
each household. This means that a child may live with both parents in their respective households following separation but the time in those households need not be equal.
There is no formula to say how much time a child should spend with the other parent or how the child’s time should be divided between their parents’ respective households. This approach can make it difficult for parents to know how to proceed, but the benefit is that the arrangements made can and will be bespoke to your family.
It is important to realise that there should be an element of flexibility to any agreement reached or Order made by the Court to allow for one-off family occasions, a change in circumstances and the child’s needs changing as they grow up. The key for all concerned is finding a way to co-parent going forward.
Caroline Keeley: [email protected]
Taking the decision to divorce or separate is not an easy one and this is never truer than when children are involved.
read more...
www.twmsolicitors.com
of the business. This could be diminished as a result of stylists leaving and Ms Gibson-Forbes’ reputation in the local area, which might attract customers, even if she was not working in the salon.
The decision is encouraging to buyers in corporate transactions as the court has shown its averseness to interfere with commercial contracts that have been negotiated freely. Companies are reminded however to be aware of the factors the court will look at to determine if restrictive covenants are unenforceable.
BUSINESS LAWRestrictive covenants in commercial contracts
The High Court has found that two year non-poaching and non-compete clauses in a share purchase agreement were enforceable. In (Rush Hair Ltd v Gibson-Forbes & Anor) Ms Gibson-Forbes entered into covenants with hair salon Rush when selling the business. She was restricted from poaching certain named individuals and from competing with Rush’s business within a two mile radius. Ms Gibson-Forbes then incorporated a new company that opened a hair salon in Windsor.
Although Ms Gibson-Forbes attempted to argue that the non-poaching clause restricted her in a personal capacity and not her newly incorporated company, the court found that the clause was ambiguous and therefore interpreted it as poaching individuals on either her own behalf or as agent. This stresses the importance of drafting covenants that are clear and unambiguous from the outset.
When drafting restrictive covenants, it is important to consider:
• What does the covenant mean?
• Is there a legitimate business interest requiring protection?
• Does the covenant go no further than is reasonably necessary to protect that legitimate business interest?
When considering the legitimate interests that may be protected, the court will approach a commercial context differently to an employment scenario. For instance, it may be legitimate for a buyer to provide protection against all competition from a seller, which would be more likely to be unenforceable in an employment context.
However, a court will not always uphold an agreement reached between a buyer and a seller: a covenant will still be unenforceable, even in a commercial context, if it goes beyond what is reasonably necessary to protect the legitimate business interest. The court referred to Rush’s legitimate interest of protecting the goodwill
Charlotte Donald: [email protected]
A great deal going on...
Julian Sampson: [email protected]
DEAL NEWSReal Estate Finance
Purchase of The Masons Arms
TWM advised the borrower in connection with all aspects of their acquisition, including obtaining
finance from Assetz Capital.
TWM advised the lender in relation to a £500,000 development loan for a property developer
in Reading, Berkshire.
Real Estate Finance Bridging loan for
property developer
When considering the legitimate interests that
may be protected, the court will approach a commercial
context differently to an employment scenario.
read more...
LENDINGWhat does it mean if I am asked to give a Personal Guarantee? One of the main benefits of operating your business as a limited liability company is to protect you personally: a company exists as a separate legal entity. As such, the company enters into contracts in its own name (rather than you having to sign on the dotted line yourself as the business owner) and, if something were to go wrong, then any claims would be properly made against the company instead of the business owner(s). Why then, when seeking loan funding for your business, is it highly likely that a lender will ask you as the business owner/director to provide a ‘personal guarantee’?
When you provide a personal guarantee, you allow a lender to pursue you personally if the business can’t repay its loan. Depending on the loan agreement signed by your business, and the guarantee signed by you, this can mean different things but you might have given the lender permission to take assets that you own, such as your family home or car. Furthermore it is also likely that the lender will be entitled to take legal action against you, which would damage your personal credit and could make it difficult to borrow in the future, not to mention make it more difficult for you to find employment, buy insurances or rent a place to live.
When businesses borrow money, particularly start-up and SME businesses, lenders more often than not require a personal guarantee from the business owner or other key individuals in the business. Ideally, the business would borrow on its own without involving anybody’s personal assets, but sometimes that’s not an option. Lenders always evaluate borrowers to
predict whether or not they’ll repay and for a start-up or young business that has limited information to provide, particularly if it has not borrowed before, it is too risky for lenders because the business probably doesn’t have a credit history of its own.
When lenders can’t make a decision based on the business’ historical information, they may still lend albeit at an extremely high interest rate. In order to reduce the risk to the lender, and therefore achieve a lower interest rate, borrowers will be required to offer the lender sufficient security. Such security may include a legal charge over the business property, a debenture over all of the other assets of the business or a personal guarantee by the business owner.
A personal guarantee allows a business to borrow by the business owner putting his or her personal finances on the line and even if the business is incorporated to limit personal liability, the business owners who provide a guarantee become personally tied to the loan. Lenders want to be able to recoup their money no matter what happens to your business and quite often with new businesses they will ask the question: why should they take a risk if you as a business owner are not willing to put skin in the game.
Often, providing a personal guarantee is the only means of obtaining a business loan. It is therefore important you understand that such a guarantee will pierce the veil of limited liability of having incorporated and that you seek early advice as to how your new found liability can be managed.
David Powell: [email protected]
TAXATIONMaking Tax Digital - an update
On 31 January 2017, HMRC published the outcome of its seven consultation documents on Making Tax Digital. One, “Transforming the tax system through the better use of information”, confirms that from April this year HMRC will update tax codes in-year to minimise the chance of under or over-payments of tax by using the information supplied to them by employers and pension providers.
This improvement will not help people who owe tax that cannot be included in a tax code, but where possible, people will be taken out of Self-Assessment and will receive a “Simple Assessment” instead. As with all things from HMRC, the onus will be on the taxpayer to check that coding notices and tax calculations are correct.
Both changes will only apply to people whose income details are held by HMRC such as occupational and state pensions and employment income but for anyone whose employment income fluctuates, or who has more than one source of income, it should mean that tax deductions are more accurate.
From 2018 HMRC intends to include “third party” information in real-time, starting with bank and building society interest.
This will not affect most people as the Personal Savings Allowance covers the first £1,000 (£500 for higher-rate taxpayers) of interest received, it will be interesting to see how accurate the matching of income to individuals proves to be.
Trusts
When it comes to modernising the tax system, Trusts are left looking like the poor relation. Not only were they left out of the new Savings and Dividend Allowance regime, but I have yet to spot any mention in the Making Tax Digital information or consultations. HMRC’s “Making Tax Digital Roadmap” promises a fully digital tax system by 2020, where all taxpayers will be able to use their digital tax accounts to see a single up-to-date and easy-to-follow overview of their tax affairs. When it comes to Trusts (and large Estates in Administration) the Roadmap promises to be more of a lay-by and I suspect the old-fashioned form-filling will be with us for a good few years yet.
Stephanie Sharpe: [email protected]
read more...
read more...
www.twmsolicitors.com
freehold” situations this is usually the names of the lessees of the flats, or in the name of a company with each leaseholder having a share in that company.
There are advantages and disadvantages in either of these arrangements.
Freeholds held in individual names can sometimes be difficult to transfer because the co-freeholders have fallen out or one cannot be found. “Share of freehold” can be a poisoned chalice in these circumstances.
Alternatively, the freehold can be held in the name of a company, and in this case, when a leaseholder sells his/her flat, it is a simple matter to transfer the share to the buyer. The ownership of the freehold remains the same at the Land Registry.
The big advantage in buying a “share of freehold” is that all the co-owners of the freehold have the same goal – to maintain the value of their properties. As there is no third party involved, they will have control over how the property is managed and can arrange this in the most cost effective way.
How can we help?
Our residential property department is very experienced in advising on leases, and always happy to provide initial advice without obligation.
RESIDENTIAL PROPERTYShare of freehold – two questions to ask
Estate agents often offer a flat for sale with “share of freehold” to entice buyers who understandably think this is better than buying a property which is only a leasehold.
The first question to ask is “How long is the lease?”
The freehold deals with the whole of the building, but with a flat, the critical aspect is how long is the lease of the flat in question? The leasehold is the legal interest which has value. It is the lease which is bought and sold, and most importantly, it is the leasehold interest which provides security to a mortgage lender.
For technical reasons, buyers should be wary of a lease which has less than 85 years left to run.
The second question to ask is “Who owns the freehold?”
Freeholds can be owned in individual names, and in “share of
EMPLOYMENTStress at work
Does the fact that an employee is signed off work with stress for a prolonged period of time automatically render them disabled within the meaning of the Equality Act 2010 (“the EqA”)? If so, this has serious practical consequences for employers keen to avoid claims of disability discrimination.
The Employment Appeal Tribunal (“EAT”) recently provided some useful guidance on the issue in the case of Herry v Dudley Metropolitan Borough Council.
The facts
The employee in this case, D, was signed off work for several months with sick notes citing ‘stress and anxiety’, ‘work related stress’ and ‘stress at work’. The medical reports stated that “the behaviour of certain individuals [is] what is stopping [the employee] from returning to work…and causing him stress.” They also referred to “management issues…which are causing stress.”
The EAT considered whether D was disabled within the meaning of the EqA. The EqA broadly defines disability as a physical or mental impairment which has a substantial and long term adverse effect on the individual’s ability to carry out normal day to day activities.
The decision
The EAT held that D was not disabled within the meaning of the EqA.
They referred to a previous decision (J v DLA Piper) which highlighted an important distinction between a ‘clinical condition’ and a ‘reaction to adverse circumstances’. Although both may claim to be ‘depressed’, the law differentiates between 1) the employee with clinical depression and 2) the employee who is unwilling to return to work until an issue had been resolved to their satisfaction, but who otherwise suffers little or no effect on normal day to day activities. The first employee is undoubtedly suffering from a mental impairment within the meaning of the EqA, the second is not.
Helle Jacobsen: [email protected]
read more...
with the new valuation list taking over from 1 April 2017.
As a result, if the rateable value of particular premises is set to increase, the landlord will want to serve its relevant notice before 1 April 2017 to ensure that it is only liable for the lower rate of compensation. Conversely, the tenant of the same premises would want to delay service of any notice until after 1 April 2017 so it can recover the higher rate of compensation.
Of course, the rateable values of some properties are due to decrease on 1 April 2017, in which case the opposite will apply.
As such, both landlords and tenants will want to check the new rateable value of any premises that are set for lease renewal within the next year and think carefully about the timing of any notice under the Act, if they wish to take advantage of this rare event.
COMMERCIAL PROPERTYEffect of business rate revaluation on lease renewal
On 1 April 2017, business rates will be revalued for the first time since 2010. This will potentially have a significant impact on landlords and tenants of business premises who are set to terminate (or try to renew) their tenancies under the Landlord and Tenant Act 1954.
Where a landlord wishes to terminate a lease under the Act and successfully does so on one of the “no fault” grounds (e.g. where the landlord intends to redevelop or occupy the premises itself ), compensation is payable by the landlord to the tenant.
The amount of compensation is calculated using the rateable value of the premises, either being 1x the rateable value where occupation by the tenant (or its predecessor) has been less than 14 years, or 2x for any longer period.
Importantly, the relevant date for ascertaining the rateable value is that of the relevant landlord’s notice under the Act. The current valuation list only remains in force until 31 March 2017,
Simon Burdett-Dixon: [email protected]
It should be remembered that work related issues can result in real mental impairment, especially for those susceptible to depression and anxiety. However, as has been demonstrated by this decision, an employee who is signed off work with stress for a prolonged period of time should not automatically be rendered disabled; medical evidence should be scrutinised to see whether a genuine mental impairment exists.
Applying this to the facts of the case, the EAT considered that D was not disabled within the meaning of the EqA. D was unhappily reacting to what he perceived as unfair treatment of him at work but there was no evidence that his normal day to day activities were affected in any way. The EAT was clear that the Tribunal was not bound to find that D had a disability purely because he had been signed off with stress for a long period of time.
What does this mean for employers?
When employers are faced with an employee who is signed off work with stress, thought needs to be given as to whether the individual has a condition which qualifies as a disability.
Patrick Stewart: [email protected]
read more...
read more...
TWM were very proud to support ReadingZone again this year. This week-long festival in schools around Dorking, Reigate and Crawley took place in February. More than 3,000
school children were given the opportunity to meet with authors to talk about their books, their creative writing and, for some authors, their illustrations. Georgina Denny and Demelza Patricio from TWM went along to one of the ReadingZone events at St Martins School in Dorking to meet Rob Biddulph, bestselling and award-winning author of Odd Dog Out and Grrrrr! Rob took the children through his own personal journey of how he became a successful author and what inspired him to write his books. The children were invited to join in with lots of sounds, have a go at their own drawings and share their thoughts on some of the characters which Rob illustrated for them during the event. A real treat and thank you to Caroline Horn and Diane Mayall from ReadingZone and everyone at St Martins for allowing us to be part of such a wonderful and worthwhile programme.
Pictured (L to R): Demelza Patricio, Diane Mayall, Rob Biddulph and Caroline Horn
News and Views is TWM’s quarterly newsletter for clients and contacts. The articles included in this publication are necessarily brief, and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.
TWM Solicitors is a full service law firm. Our nine office network covers Surrey, SW and Central London. Our approach centres on achieving success for our clients.
If we can help with a legal issue, please do not hesitate to contact one of our team:
Cranleigh Victoria Adams 01483 273515
Epsom Anne Fowler 01372 729555
Guildford Matthew Truelove 01483 752700
Leatherhead Mark Stevenson 01372 374148
London (Chelsea) Peter Lambert 020 3826 0135
London (Fulham) Helle Jacobsen 020 7736 6277
London (Mayfair) Jamie Berry 0330 555 4950
Reigate Demelza Patricio 01737 221212
Wimbledon Eileen Barry 020 8946 6454
For further information about TWM Solicitors, please visit our website: www.twmsolicitors.com
@twmsolicitors
www.twmsolicitors.com
CRANLEIGH EPSOM GUILDFORD LEATHERHEAD REIGATE WIMBLEDONLONDON (MAYFAIR)LONDON (CHELSEA) LONDON (FULHAM)
The Fulham Connection
Tell us a bit about you and your practice area
I am a Partner at TWM Solicitors and work at the Fulham office, located just off Wandsworth Bridge Road, having previously been a Partner at Jacobsen & Co Solicitors, which merged with TWM in May 2016.
I have been a solicitor for over 18 years and specialise in residential property work, mainly acting on sales and purchases of properties in London, but also throughout England and Wales, and also acting on lease extensions for both landlords and tenants.
What do you enjoy most about what you do?
Undoubtedly, my clients! Over the years, I have been fortunate to have acted for, and continue to act for, many great clients, many of whom I now count as close friends and are even coming to my wedding this summer! I also love meeting and getting to know new clients.
Moving house plays such an integral part of a person’s life and to be a part of the buying and selling process is not only challenging but very rewarding.
My colleagues also assist in making my job fun as I work within a dynamic hard-working but friendly office. We are a close-knit team, so if one of us is out of the office, there is always someone else who can assist our clients with any query which cannot await the solicitor’s return.
What do your clients value most about you?
I would like to think that my clients see me as always being approachable and accessible, and reasonable in taking a pragmatic approach to their transactions. Too often, lawyers are viewed as being “stuffy” and “difficult” – and especially “difficult to contact.”
I very often see clients out of office hours, and at locations nearer to their homes or places of work which I know is much appreciated – though I view it as part of the client care.
An understanding of the law is a given, but it is also important to communicate such concepts and information to clients so as to be understandable to the layman.
ReadingZone 2017
ADRIAN HANSFORD, residential property partner at TWM Solicitors in Fulham explains about the strength of relationships with his clients.
ADRIAN [email protected]