Seasons Greetings!

Dale and Co. Solicitors Lincoln will close for the festive season on Wednesday 23rd December at 5.15pm and re-open at 9.15am on Monday 4th January 2010.

We wish you all a very happy Christmas and a prosperous New Year.

Planning Error Proves Costly

Adding facilities to one’s home may raise the prospect of a more congenial lifestyle, but care must be taken when dealing with planning applications.

In a recent case, the owner of a dwelling built in 1995 decided, in 1998, to add a garage and a dormer window. The planning application was accompanied by a new (extended) site plan. Planning permission was granted but because there was no request for a change of use of the land, the planning approval did not, in law, increase the curtilege of the property.

Everything passed without comment until some time later, when a swimming pool and tennis court were built outside the original curtilege of the land. Unfortunately for the owner, the land outside the curtilege of the property was agricultural land and no application for change of use of the land had been granted. The council issued an enforcement notice, requiring the owner to return the land to use as agricultural land.

The owner of the house argued that the 1998 plan had increased the curtilege of the property, so use of land shown on the plan as being for residential purposes did not require permission for change of use.

The matter reached the Court of Appeal. The Court considered that planning permission for a new dwelling would contain an implied permission for a change of use if required. However, an extension to a dwelling does not necessarily do so. In this case, the 1998 permission related to a development which was shown to be within the plans contained with the original planning application. The swimming pool and tennis court, however, were outside the original curtilege of the land. The 1998 permission had not extended that and had not created any permission for change of use of the land.

Partner Note

Barnett v Secretary of State for Communities and Local Government [2009] WLR(D) 107.

Dale and Co. Solicitors Lincoln Legal Disclaimer

Latest Legal News from Dale and Co. Solicitors Lincoln

One of the first decisions of the new Supreme Court

One of the first decisions of the new Supreme Court (which last month replaced the House of Lords as the highest court in the land) will be a disappointment to many bank customers who suffered high levels of charges after they exceeded agreed overdraft limits.

The Court accepted the banks’ argument that the British tradition of free ‘in credit’ banking (rare elsewhere in the world) was only possible because of charges levied on those who go overdrawn.

The decision does not preclude the possibility that the Office of Fair Trading could challenge the fairness of other aspects of bank charges, but it does mean that tens of thousands of customers who had pending applications for refunds of charges will not now receive them.

For private customers who do not go overdrawn on their current accounts, the decision may well mean that free banking will continue.

Earlier this month, the banks announced a plan to phase out cheques: they already charge business customers up to 65p more for writing a cheque than paying a bill electronically.

Dale & Co. Solicitors Lincoln Disclaimer

Latest legal news from Dale and Co. Solicitors Lincoln

Divorce – Future Pension Not Taken Into Account

A recent, bitterly contested ‘big money’ divorce case shows how reluctant the courts are to upset financial settlements on the basis of contingencies and reinforces the point that bad behaviour is not a basis for changing the division of the assets.

It involved, as do so many high profile cases, a man who was successful in the City and his wife. The couple had lived together for five years before they married in 2003, but the marriage broke down in 2005. The couple had one child.

Both parties tried to keep secrets from the other. The husband failed to disclose that he would be the beneficiary of a ‘lucrative’ pension plan in 2023 and the wife failed to disclose that she had become pregnant by another man, with whom she had a relationship that could be described as cohabiting.

In late 2006, the husband was ordered to pay his wife £7,500 per month in maintenance and the family assets were apportioned. When she discovered that her husband was to benefit from the pension, the wife sought to obtain an increase in the maintenance payable for her and their child. The husband sought to resist her sharing in any wealth which he had created after their separation.

The outcome of the case was that the judge ordered some changes to the maintenance payments and the division of assets. However, the important points relate to the changes he could have made and did not.

With regard to the pension, he concluded that since it could not be touched before 2023, it would not in his view be fair to require the husband to share, in whatever proportion, the value of this fund with his ex-wife.

On the matter of the wife being deprived of a share in the post-separation earnings, the judge concluded that, ‘I do not accept that such contributions by a wife to the family after the end of the marital partnership can generally be said to warrant a conclusion that a proportion of the husband’s future income continues to be attributable to the wife’s domestic contribution and thus a fruit of the marital partnership’. He therefore denied the claim that she shouldshare in the increase in assets between their separation and divorce. Interestingly, he remitted for negotiation whether the revised maintenance payments should be set in Pounds Sterling or (as the wife now lives in Ireland) in Euros.

Neither was the judge swayed by the wife’s commencement of a new relationship nor was the possibility of financial support from her family, who are wealthy, a factor which affected his decision.

In reaching this decision, the judge commented, ‘Sadly this has been an application, both during its gestation in documentation and its investigation in oral evidence, where both … have undoubtedly (and sometimes deliberately) reprocessed elements of the history for perceived tactical advantage’.

Says Georgia Corby, “Financial settlements on divorce depend on many factors, but the bad behaviour of one or both of the parties is seldom if ever one of them.”


Partner Note
G V G [2009] EWHC 494 (Fam).

Dale & Co. Solicitors Lincoln Disclaimer

Treasury Proposes New Construction Tax Regime

Hard on the heels of several cases dealing with whether builders on construction sites are employed or self-employed for employment law purposes, the Treasury has announced yet another review of the employment status of construction workers for tax purposes.

The review, only a few years after the system of taxation of workers in the building industry was overhauled, is designed to address the problem of ‘false self-employment’. This occurs when workers are treated as self-employed for Income Tax and National Insurance purposes despite the fact that the way in which the work is carried out on a day-to-day basis demonstrates that there is an employment relationship.

The Treasury’s proposals would treat all workers in the construction industry as employed except those who:

provide the plant and equipment required for the job that they have been engaged to carry out. This would not include normal ‘tradesman’s tools’, as these are traditionally supplied by tradesmen;
provide the material necessary to do the work; or
provide other workers to carry out the work under contract and are responsible for paying subcontractors.

The consultation closes on 12 October 2009 and can be viewed at http://www.hm-treasury.gov.uk/consult_false_selfemployment_construction.htm.


Dale & Co. Solicitors Lincoln Disclaimer

NICs on Dividends

It is often assumed that the mere payment of a sum by way of a dividend, rather than as salary or bonus, will avoid PAYE and National Insurance Contributions (NICs). In the case of PAYE, the tax treatment as payment of a dividend will override that applicable to payment as remuneration, so PAYE will not apply. This does not, however, mean that NICs are not payable.

In a recent case, a company which arranged for its employees to receive a bonus by way of a payment of £24.6 million into an offshore trust, which then paid them dividends, sought to persuade HM Revenue and Customs that neither PAYE nor NICs were payable as a result.

The case reached the Special Commissioners, who decide tax cases based on points of law. They concluded that the legislation which excludes dividends from being treated as remuneration for income tax purposes does not apply for the purposes of NICs. The Commissioners concluded that since the dividends derived from employment, they were therefore subject to NICs.

The facts of this case were based on the law as it applied in 2003. Subsequent to that, anti-avoidance legislation has been enacted with the result that it is now more difficult to make such schemes work. Indeed, in certain circumstances, an ill-thought out scheme could lead to a double charge to tax.

Partner Note

PA Holdings Ltd. and another v HMRC UKFTT 95 (2009).

Dale & Co. Solicitors Disclaimer

Stamp Duty and VAT changes

As of the 1st January 2010 :


Stamp Duty goes UP for many residential properties:

Up to £125,000.00 - Zero (no change)

£125,001.00 to £250,000.00 - 1% (increase from zero for many)

£250,001.00 to £500,000.00 - 3% (no change)

Over £500,000.00 - 4% (no change)

VAT goes UP 2.5 % to 17.5%

Dale & Co. Solicitors Lincoln Disclaimer

Court Takes Commonsense View of Delivery of Notice Clause

When a dispute arises under a contract and notices or other documents have to be delivered to the other side in the dispute, in order to avoid problems it is essential that these are delivered in accordance with the contract terms. This may seem obvious, but proceedings are quite frequently challenged on the basis that notices are incorrectly delivered and therefore invalid.

In a recent case involving a construction dispute, a claimant issued a notice referring the dispute to adjudication as provided by the contract. This was sent by post and, although incorrectly addressed, was received the next day. The defendant passed it on to its solicitor. The adjudicator found in the claimant’s favour and ordered the defendant to pay.

The defendant refused. The contract had specified that the notice of adjudication was to be delivered personally or by fax. The defendant argued that the adjudicator therefore had no jurisdiction over the dispute. The clause covering delivery also stated that it would be sufficient ‘to prove that personal delivery was made’.

The matter then went to court, where the claimant argued that as a matter of fact the defendant had received the notice, so the requirements of the delivery clause were satisfied. The court considered that the term ‘delivered personally’ meant that the notice was delivered by an appropriate individual representing the claimant to an appropriate individual representing the defendant. In the view of the court, the method of delivery did not matter. On the facts of the case, actual delivery to an appropriate person (the defendant’s solicitor) had occurred, so the delivery clause was satisfied.

In this case, the claim to resist the notice was unsuccessful because the court took a commonsense approach to the clause. This need not necessarily have been the case. The matter would never have gone to court had the notice also been delivered by fax.


Partner Note
Primus Build Ltd. v Pompey Centre Ltd. and another [2009] EWHC 1487 (TCC).

Dale & Co. Solicitors Lincoln Disclaimer

Appeal Court Spells Out Sentencing Policy for Insider Dealing

Insider dealers can expect substantial jail terms following guidance issued by the Court of Appeal.

The advice was given during the summing up in the unsuccessful appeal of solicitor Christopher McQuoid against an eight-month prison sentence for his part in a deal resulting in an illegal profit of nearly £50,000.

Insider dealing is an offence under the Criminal Justice Act 1993 and carries a maximum jail term of seven years. The offence is committed when a person trades in or assists another person to trade in shares or other securities, with the benefit of access to information not at the time in the public domain.

The Appeal Court judges stated that the following factors should be taken into account when deciding the appropriate sentence:

1. The nature of the defendant’s employment or other involvement that put him in a position to take illegal advantage of inside information;

2. The circumstances in which the inside information came into the possession of the defendant and the use made of the information;

3. Whether the defendant behaved recklessly or acted deliberately and dishonestly;

4. The degree of planning and sophistication involved in this activity, as well as the period of unlawful trading and the number of individual trades;

5. Whether the defendant acted alone or with accomplices and, if so, the relative culpability of each party;

6. The amount of anticipated or intended financial benefit (or loss avoided) as well as the actual benefit (or loss avoided);

7. Although the absence of any identified victim should not normally be taken in mitigation, the impact, if any, where proved, on any individual victim should be taken into account; and

8. The impact of the offence on public confidence in the integrity of the market, taking into account the impact on public confidence of an offence committed jointly by more than one person trusted with confidential information.

Age and a guilty plea should also be taken into account, as should good character, although it should also be borne in mind that the individual of good character, by misusing the information, has breached the trust vested in him as a result of his good character.

In assessing sentence, full weight must be given, said the judges, to the impact on the appellant and his family, as well as the destruction of his professional reputation.

“This guidance shows how seriously the courts now take insider dealing,” says Richard Dale. “Substantial custodial sentences are likely to result from any such activity.”

Partner Note

Court of Appeal: R v McQuoid Criminal Division, 10 June 2009. See

http://business.timesonline.co.uk/tol/business/law/reports/article6555930.ece.

Dale and Co. Solicitors Lincoln Disclaimer

Supervision Failure Costs Council

A county council was found negligent when a pupil was injured during a break at school when he was hit by a rock thrown by another pupil.

The case turned on a simple point – was it sufficient (as was the case in this instance) to have only one supervisor overseeing 150 children?

The Court of Appeal found the council negligent, especially as one of the prime purposes of having the children supervised was to prevent dangerous activities or stop them if they occurred.

A recent survey of local councils revealed that in the year 2008-2009 almost £3 million was paid out in compensation to children hurt in accidents at school. This figure represents an increase of £1 million on the previous year.

Parents have a legitimate expectation that the schools their children attend will be safe places and if the school fails to take reasonable precautions to ensure this is so, they have the right to hold the council (or other body responsible) liable.

Partner Note

Palmer v Cornwall County Council [2009] EWCA Civ 456.

Dale & Co. Solicitors Lincoln Disclaimer

Duty of Care to Employees – Obvious Risks

Every employer owes a duty of care to its employees, but deciding who is responsible for an accident can be very difficult when the issue is whether warnings against risks should have been given or, if given, were adequate.

Employers often argue that employees are responsible for their own actions, but employers have a duty to warn employees of potential risks in the workplace, even if these are obvious. A recent case has confirmed that some risks are so obvious that warnings need not be given, for example where to argue a lack of awareness of the risk would be absurd. However, it is hard to distinguish between what would be deemed to be that obvious and what would not.

In the case in point, an employee turned a box upside down in order to reach material on a top shelf. The box slipped from underneath him, causing him to fall and sustain injury. The employee’s case failed both in the lower court and on appeal because the employer had specifically warned all employees that the use of boxes for this purpose was unsafe and had provided a safe alternative for reaching high items.

The Court of Appeal said that an employer is responsible for devising safe working methods and practices and, where they have issued a warning against a specific risk, they should not be held liable for an injury to an employee who ignored the warning. The judge commented that ‘some dangers are so obvious that no instruction is required’ but this would not have been the case in this instance. Had the employer not warned of the potential risks attached to using the box for this task, the argument that the employee was capable of appreciating the risk for himself would have been rejected.

What constitutes a sufficient warning is a grey area and is an issue of fact, not law, so previous case rulings provide little assistance as each case is judged on its own facts. In an unreported case, an employer was held to be liable for an injury sustained by an employee who had mopped a floor and then slipped on the wet surface she created. The employer argued that it was obvious that the floor would be wet immediately after mopping and that it needed to be dry mopped to be safe. This argument was rejected by the court, however.

It has been suggested that an employer is only under an obligation to warn employees of risks that fit within the broad remit of the employee’s job description. For example, if an employee were to put his fingers into an electrical socket, the employer would not be liable for the resulting injury as this was not a part of their ‘system of work’. In contrast, an employee who has been asked to rectify a paper jam in a photocopier should be warned of the risks. In some circumstances, an employer may decide to let experienced employees devise their own safe working practices in relation to certain tasks but, ultimately, it is the employer’s responsibility to assess and warn against workplace risks.

The best way to safeguard against potential claims is to warn against all potential risks, however obvious. Ensuring a full risk assessment of tasks is carried out and that all staff are trained properly is paramount.

Contact us for advice on commercial and business law.

Partner Note
Ammah v Kuehne & Nagel Logistics Ltd. [2009] EWCA Civ 11, [2009] All ER (D) 155 (Jan).


Dale & Co. Solicitors Lincoln Disclaimer

Ignoring Court Demands is Costly

In litigation, it is common for the court to order the production of documents from the parties to the case. Failing to comply with such orders is unwise, as the court has the power to strike out (i.e. refuse to hear) a case unless the documents are produced. It will issue an ‘unless order’, which in simple terms states that unless the requested material is produced, the case will be struck out.

There are several criteria the court will apply when considering an application for relief against an unless order. These include considering whether the administration of justice will be served, whether the failure to supply the requested information is intentional and the extent to which the person has complied with other requests, orders etc.

In a recent case, the ex-husband of a woman failed to comply with an order of the court to produce documents and information relating to a property dispute. He applied for relief against the unless order and the case reached the Court of Appeal. One of the arguments employed was that striking out his claim because of non-compliance with the order would breach his human rights under Article 6 of the European Convention on Human Rights. His appeal was rejected.

Says Richard Dale, “When disclosure of documents is required by the court, the demand must be treated seriously. Ultimately, failing to comply with the court’s rulings can result in your case simply being rejected.”


Partner Note
Momson v Azeez [2009] EWCA Civ 202.


Dale & Co. Solicitors Lincoln Disclaimer

Letting Agent’s Commission Terms Unfair

Unclear language in a letting agent’s standard terms and conditions has led to a contract being set aside by the High Court.

The case concerned the estate agent Foxtons, which provides a lettings service to private landlords under a standard form of agreement. The Office of Fair Trading (OFT) had applied to the Court for orders against Foxtons for what the OFT deemed to be unfair terms in agreements between the estate agents and various landlords. The terms in question related to renewal commissions.

Foxtons hoped to rely on regulations passed in 1999 relating to unfair terms in consumer contracts. These stipulate that where a term is in ‘plain intelligible language’, the assessment of fairness of a term shall not relate to the price or remuneration as against the goods or services supplied in exchange.

The Court held, however, that the relevant terms for renewal commission within the old version of Foxtons’ contract had not been drafted in plain and intelligible language and so the obligation to pay renewal commission under the relevant terms of the agreement did not escape a fairness test under the regulations.

As far as the actual fairness of the terms was concerned, the Court considered it unlikely that the typical private landlord would expect a repeat bill in year two of a letting and beyond unless the point was spelled out in some way. It was felt that Foxtons had not used a fair and adequate method of bringing the renewal commission clause to the attention of the landlords.

Under the circumstances, the renewal commission clauses of Foxtons’ old standard terms and conditions were held to be unfair.

“This case illustrates the importance of drafting agreements in clear and precise terms,” says Zoe Smith. “We can advise you on any property or contract matter.”


Partner Note
Office of Fair Trading v Foxtons Ltd. [2009] EWHC 1681 (Ch). See
http://business.timesonline.co.uk/tol/business/law/reports/article6730718.ece.

The Unfair Terms in Consumer Contracts Regulations 1999 can be found at http://www.opsi.gov.uk/si/si1999/19992083.htm.


Dale & Co. Solicitors Lincoln Disclaimer

Non-Disclosure Does Affect Settlement

The Court of Appeal has taken the unusual step of considering an appeal in a matrimonial case which was settled by agreement before the appeal was heard.

In the High Court, the ex-wife of a wealthy man had failed to obtain an ‘uplift’ to her original settlement. She based her argument on the fact that at the time the settlement was being negotiated, her husband had not disclosed that he was in negotiation for a new position that would make him materially better off. Had he done so, she would not have agreed to the financial settlement. The District Judge had ruled that disclosure of the husband’s true expected future income would not have affected the settlement awarded.

The Court of Appeal decided to examine the facts of the case because it considered that the original judgment raised difficulties for practitioners. It concluded that had there been full and frank disclosure of the imminence of the new contract of employment, it was inconceivable that the wife would not have raised her sights. In the Court’s view, it was also inconceivable that, had it been disclosed, the District Judge would have rejected the information as irrelevant.

Accordingly, the District Judge was wrong to conclude that a full and frank disclosure would have made no difference to the settlement.

Says Richard Dale, “It is a relief that the Court of Appeal has reversed the earlier decision as the principle that both sides must make a full and frank disclosure of their financial positions when making a settlement on divorce must be right in principle and had the decision of the District Judge been left to stand, it would have encouraged a culture of non-disclosure.”


Partner Note
Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412. See
http://www.familylawweek.co.uk/site.aspx?i=ed35696.


Dale & Co. Solicitors Lincoln Disclaimer

Get Ready for Compulsory Pensions

The Pensions Act 2008 contains provisions which will make it compulsory (from 2012) for an employer to enrol qualifying workers aged between 22 and the state pension age who earn more than a de minimus amount (currently set at £5,035 per annum) into a pension scheme and to make contributions to the scheme.

The employer will be required to contribute a minimum of 3 per cent of salary and the employee will be required to contribute a minimum of 4 per cent of salary, up to a maximum of (currently) £3,600 per annum.

There will be substantial fines for failure to comply with the new regulations. Clearly, there are likely to be many changes to the provisions between now and the planned implementation date of 2012, but this is a good time to start thinking through the potential impact of the new regime on your business.


Partner Note
The Pensions Act 2008 can be found at
http://www.opsi.gov.uk/acts/acts2008/ukpga_20080030_en_1.


Dale & Co. Solicitors Lincoln Disclaimer

Lasting Powers of Attorney

Our new Guide for Lasting Powers of Attorney is now available.

Contact us for your free copy!

Blow for Charities as Tax Man Moves Goalposts

Charities which acquire buildings face an unexpected blow following the announcement by HM Revenue and Customs (HMRC) that a concession relating to property used for charitable purposes is to be altered. The announcement came out of the blue, with no prior consultation having been held.

Currently, a charity pays no VAT on the acquisition or construction of a new building if it is 90 per cent used for charitable purposes. In practice, this means that charities can let part of their premises to defray costs and not suffer a VAT penalty. However, from 1 January 2010, the proportion of the property which must be used for charitable purposes to qualify for the concessionary treatment will rise to 95 per cent.

HMRC claim that the change will affect few charities and will lead to no increase in the tax take, which rather begs the question as to why it was thought necessary in the first place. HMRC are being subjected to heavy lobbying by representatives of charities, which are already struggling with the effect of the recession on donations. Do not be at all surprised if the Chancellor announces a U-turn in the autumn pre-budget statement. However, if this does not occur, charities considering building or acquiring properties should consider the implications of HMRC’s announcement.

Partner Note Reported in ICAEW Faculty Taxwire 463, 7 July 2009. See also http://www.hmrc.gov.uk/briefs/vat/brief3909.htm and http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageImport_ShowContent&propertyType=document&columns=1&id=HMCE_PROD1_029657.

Dale & Co. Solicitors Lincoln Disclaimer

Avoiding Payment by Bankruptcy Plan Fails

A husband who had himself declared bankrupt in order to avoid making a financial settlement to his ex-wife recently found his plan stymied by the court.

The man had many business interests and had purchased a substantial house through an Isle of Man company. When his wife issued a petition for divorce proceedings in 2006, she obtained freezing orders to prevent him from dissipating his assets. He then petitioned to be made bankrupt, claiming debts of £191,000. A few days before the bankruptcy petition was lodged with the court, he transferred the only issued share in the company to a third party, in breach of the freezing order. He was subsequently made bankrupt, but the order was not ‘sealed’.

The bankruptcy order was opposed by his ex-wife on two grounds. Firstly, that the judge could change his mind about granting the bankruptcy petition before it was sealed and secondly that a bankruptcy order can be annulled on the petition of a debtor.

The house was sold, yielding a surplus of £1 million which was paid into court. The company which had owned the property was then put into liquidation, with an alleged debt due to another company exceeding £1 million. The ex-wife claimed that the debt due to the second company was a sham and that her ex-husband had organised his affairs to ensure there was no money with which to make a financial settlement.

The ability of the ex-wife to obtain a settlement depended on getting her ex-husband’s bankruptcy order annulled. In order to do that, it had to be shown that he was capable of paying his debts at the time the order was made.

The application to annul the order was successful. Inevitably, the matter ended up in the Court of Appeal, which, after lengthy consideration, concluded that the husband was able to pay his debts when he was made bankrupt.

By this decision, the Court has sent out a warning to those who seek to avoid their liabilities through financial manipulations.

Concerned about arranging your Financial Settlement on Divorce? Contact the Dale and Co. Solicitors Lincoln Family Law Department.

Partner Note

Paulin v Paulin and Cativo Limited (In Liquidation) [2009] EWCA Civ 221. See

http://www.bailii.org/ew/cases/EWCA/Civ/2009/221.html.

Dale & Co. Solicitors Lincoln Disclaimer

Court Finds Hole in Polo Argument

Ownership of land is often fettered with obligations and, in some circumstances, the obligation can be to permit someone else to extract something from the land. In legal terminology, this is called a profit-à-prendre and one of the most common of these is the right to graze animals.

Where such a right exists, the owner of the land cannot prevent the right being exercised. Recently, the High Court had to consider such a case. A farm which reared polo ponies sought to re-establish the right to graze them over a piece of adjacent land owned by someone else. The right was to graze the ponies from evening until morning for eight months of the year. The farm sought to register the right at the Land Registry. The application was opposed by the landowners.

The landowners had fenced off a part of the land which was being used to keep chickens and a pig. A deputy adjudicator at the Land Registry ruled that the farm had no right to graze its ponies on the land. The owners of the farm appealed against the decision, which led to the matter being heard in the High Court.

After complex arguments, the judge decided that the initial decision had been made on the wrong grounds and that, in principle, a right to profit-à-prendre had been established. The case was remitted back to the adjudicator for reconsideration.

The issue arose initially because the owners of the land, which they had bought in 1994, appeared not to be aware of the existence of the legal right to graze the ponies. The result was a court case over a right that, in financial terms, is almost valueless.

It is important when buying any property to ensure that rights others may have over the land are fully explored and their implications considered. Our property professionals can help you ensure you do not have any nasty surprises after you have purchased a property. Contact the Dale & Co. Solicitors Lincoln Conveyancing team for advice.


Partner Note
Polo Woods Foundation v Shelton-Agar [2009] EWHC 1361 (Ch). See
http://www.bailii.org/ew/cases/EWHC/Ch/2009/1361.html.

Dale & Co. Solicitors Lincoln Disclaimer

Subcontractor Fails to Avoid Liability

When a contractor and an employer are in dispute over something which has been done by a subcontractor, it is quite common for the contractor to try to ‘keep the peace’ by settling the claim with the employer and to then seek recompense from the subcontractor.

In a recent case, a defect in the sprinkler system in an office block caused damage which led to a claim for over £5 million against the contractor who had the contract for installation of the system. The sprinklers were installed by a subcontractor. The contractor settled the claim for £2.72 million and claimed that sum from the subcontractor.

The subcontractor disputed the claim, arguing that there were good defences against it and that the settlement reached was unreasonable.

The court rejected the subcontractor’s argument, holding that the defect was the fault of the subcontractor and the contractor had reached a reasonable settlement with the claimant and was therefore entitled to seek restitution from the subcontractor.

Subcontractors who are on notice that their work could give rise to a ‘second-hand’ liability may wish to consider at an early stage their strategy with regard to the proceedings, especially if they have a good defence against any claim and/or they think the contractor will be a weak negotiator.

Contact Richard Dale for advice on Commercial Law Matters.


Partner Note
Siemens Building Technologies FE Ltd. v Supershield Ltd. [2009] EWHC 927 (TCC).

Estate Property – HMRC Recommend Three Valuations

HM Revenue and Customs (HMRC) have recently been hosting conferences for the professions on Inheritance Tax (IHT) and one of the issues that has been at the forefront of concern for practitioners is the problem of IHT liabilities on properties, the values of which have fallen significantly since the owner died.

Contact the Dale and Co. Solicitors Lincoln Wills and Probate Department

There is a procedure for obtaining a refund of IHT overpaid when a property is sold for less than the probate value, but HMRC’s view is that a mere fall in the value of a property is not enough to warrant an adjustment to the IHT return. They advise that ‘Where the value of real or leasehold property has been accepted as returned, or agreed through negotiations, and tax has been paid and accepted based on that value, then that valuation is final. The valuation can only be re-opened if it can be shown that:

• information affecting the value of the property, that was available at the time of the valuation, was not taken into account; or
• new information affecting the value of the property has come to light, and that information would reasonably have been available at the time of the original valuation.’

Where an uplift in a property valuation is required, then penalties can be levied if the original IHT valuation is too low. In this case, HMRC comment that ‘Whilst each case is dependent upon its own facts, if instructions for the valuation of a property are given on the correct basis, i.e. as a hypothetical sale in the open market under normal market conditions, and marketed properly with no discounts for a quick sale or the time of year etc., then any uplift in value that is agreed is unlikely to attract a penalty.’

The feeling amongst many participants at the conference was that to demonstrate compliance with this approach can be demonstrated, three valuations from different estate agents are preferable, or a valuation to RICS (Royal Institution of Chartered Surveyors) standards if a definitive figure is required. Whilst this will go a long way to demonstrate that the liable persons exercised reasonable care, the most important questions for HMRC are on the actual steps that were taken:

• Was professional advice sought?
• Were instructions given on the correct basis?
• Was the valuer’s attention drawn to particular features of the property (such as development potential)?
• Was anything unusual about the valuation questioned?

The answers to these questions will help demonstrate whether reasonable care was taken or not.

Says Richard Dale, “HMRC’s approach will cause concern to executors who, whilst wishing to be diligent in the performance of their role as executor, may find it difficult to find the funds or time necessary to obtain three valuations.”

Partner Note

Source – HMRC Inheritance Tax and Trusts Newsletter, August 2009. See

http://www.hmrc.gov.uk/cto/newsletter-aug09.htm

Thinking about writing your Will?

Our free guide to Planning your Will can help. Find it here on the Dale & Co. Solicitors Lincoln Website

Dale & Co. Solicitors Lincoln have a new look

Dale and Co. Solicitors Lincoln have a new look company leaflet.

Please feel free to drop into our office to pick up a copy or two .

We hope you like the new design! (you can let us know in the comments section)

John Cleese's Financial Settlement is finally concluded.

After divorcing last year, it has taken months for John Cleese to agree a financial settlement with ex wife, Alyce Faye Eichelberger Cleese. While agreeing the settlement, the court reduced payments made by Cleese to his former spouse in a move that has prompted other wealthy divorcees to reassess their interim payments.

Contact Dale and Co. Solicitors Lincoln Family Law team for advice on complicated divorces.

You can read the full Times Online article here..
http://women.timesonline.co.uk/tol/life_and_style/women/celebrity/article6800290.ece?token=null&offset=0&page=1

The next Philosophy Café will take place on 26th September 2009

Enjoy a lively discussion and a sparkling Saturday morning with the Philosophy Café.

The Philosophy Cafe will take place at 10.00am until 12.00 noon at the Café Portico in the Terrace, LN2 1BD (next to The Collection). Click here for a map.

This month’s topic is ‘What is life for?’ with our popular lecturer Brian Thompson.

The sessions include an introduction, discussion in small groups and comments from Brian Thompson.

Tickets (£5.00, including refreshments) are only available in advance, from Dale and Co. Solicitors. Please email mainreception@dale-law.co.uk to reserve your tickets!

For information about the Philosophy Cafe by email, sign up for the Philosophy Cafe newsletter

Congratulations to Katherine Schimmel, B.A. Hons, who qualified as a Solicitor on 15th July 2009 .

Katherine studied at the Universities of York and Westminster before commencing her training contract with Dale and Co.

She now works in the areas of Mental Health Law and Wills and Probate.

'Katherine is dedicated, thorough and has a very good relationship with clients. We congratulate her on qualifying.' said Richard Dale

High Court ruling in favour of landlords

As Foxtons Estate Agents amend their terms and conditions after the court ruled that they were unfair to landlords, Richard Dale solicitor of Dale and Co. Solicitors in Lincoln says "always read terms and conditions and make sure you fully understand them"


To read the full Times Online story, click here

Landmark financial settlement gives weight to pre-nuptial agreements.

German heiress, Katrin Radmacher, has won a court of appeal case that upholds her pre-nuptial agreement.

'Whilst pre-nuptial agreements are still not legally binding in themselves, they are becoming increasingly effective if prepared properly and with the correct advice. Courts will now tend to consider them as evidence of the parties' intentions prior to the marriage taking place and may uphold them if they deem it to be appropriate.' said Georgia Corby, Family Law Solicitor at Dale and Co. Solicitors Lincoln.

For the full Times Online story, click here -

http://business.timesonline.co.uk/tol/business/law/article6622633.ece?token=null&offset=12&page=2

Road works on Beaumont Fee

Road works are planned from 6th July until 31st August 2009 on Beaumont Fee and West Parade.

Read the Lincolnshire Echo's information about the roadworks here.

Georgia Corby - Dale and Co. Solicitors New Director

Solicitor Mrs. Georgia Corby, 40, has been made a Director of Dale & Co Solicitors. Her promotion includes managing further departments in the firm in addition to heading the family department.

Her appointment sees a new era in the practice which was set up 22 years ago by Richard Dale, and incorporated last year to allow for further development.

Mrs Corby joined the firm in 2006 and specialises in Family Law including complex financial settlements.

“Georgia’s broad legal background, her focus and application make her an outstanding colleague who will allow the firm to develop”, said Richard Dale.

“The growth and strength of the Family Law Team is testament to her abilities”, he added.

Dale & Co was set up in 1986 in Lincoln. It now occupies three properties in Beaumont Fee and offers a full range of legal services.

Contact Dale and Co. Solicitors to find out how Georgia could help you.

Georgia Corby now has Resolution membership

Georgia Corby, Director and Family Law Solicitor at Dale and Co. Solicitors, has now become a member of Resolution.

Resolution is an organisation for lawyers who resolve disputes in a constructive, non-confrontational way. It also sets out a code of practice which outlines good practice for Family Law lawyers; clients can be assured that their Family matters will be dealt with in accordance with Resolutions ethos and code of practice.

Find out more about Resolution.

Contact us for Family Law advice.

June Philosophy Cafe

The Philosophy Cafe on the 20th June has unfortunately been cancelled.

We will be running the event again at a later date, please keep checking here or sign up to the newsletter for further information.

We apologies for any inconvenience. If you have purchased tickets, please return them to their place of purchase for a full refund.

Philosophy Cafe - June event

The next Philosophy Café will take place on 20th June. It will be at 10.00am until 12.00 noon at the Café Portico in the Terrace, LN2 1BD (next to The Collection).

Enjoy a lively discussion and a sparkling Saturday morning with the Philosophy Café.

This month’s topic is ‘What is life for?’ with our popular lecturer Brian Thompson.




The sessions include an introductory speech and debates in small groups, exploring the topic in detail with guidance from Mr. Thompson.

Tickets are £5.00 available in advance from Dale and Co. Solicitors, 11 Beaumont Fee Lincoln. Cafe Portico is also selling tickets, so take the opportunity to call in and see what a lovely venue it is - and to try their cakes!

Ticket price includes refreshments.

For information about the Philosophy Cafe by email, sign up for the Philosophy Cafe newsletter

Dale and Co. presents the Philosophy Cafe...

Dale and Co. Solicitors presents the Philosophy Café

The Healthy Hub hosted this year’s Philosophy Café as part of the Lincoln Book Festival on Saturday 16^th May.

The event was a huge success, with popular tutor Brian Thompson leading the discussion on ‘What makes a ‘Good’ Education’.

With participants enjoying refreshments and a good chat around the topic, the morning offered a lively, thought provoking debate.

If you would like updates on the Philosophy Café, please join our mailing list. We hope to make it a monthly event. If you join the mailing list we will send you occasional updates on upcoming events, topics and speakers.

Were you at the Philosophy Café? Would you like to attend events in the future? Please leave any comments, ideas for topics or speakers or anything else you would like to share on the Blog discussion board!

To find out about other Dale and Co. Solicitors events, visit our website.

Race for Life Success!

The Dale and Co. Solicitors Race for Life team completed the 5km race at Waddington on 17^th May. Despite the horrendous weather, all of the team completed the race in under an hour and we would like to congratulate them on their achievement!

Keep an eye on the Blog to find out how much they raised for Cancer Research UK!

Welcome to Dale and Co. Solicitors Blog!

Hello!

Welcome to the Dale and Co. Solicitors Blog!

You will be able to read fresh information from Dale and Co. here - staff, services, news and comments.

Please let us know if you would like a blog post on any particular topic and feel free to leave your comments.

For further information about us, please visit the Dale and Co. Solicitors Website.

Happy reading!