Keebles PR - July 28 – August 24

Keebles in the Media Spotlight: July 28 – August 24

Bring Your Own Device – do the risks outweigh the benefits?

By Barry Warne, head of employment law at Keebles

The healthcare sector continues to witness an unprecedented increase in the use of mobile devices which bring a myriad of benefits including flexibility, workflow efficiencies and cost savings.

But with these advantages come significant risks and concerns about privacy and security.

The medical arena has confidentiality at its heart. Data protection and keeping patient information safe is a fundamental part of what practices strive to get right.

They treat the integrity of their data very seriously by investing time and money in firewalls, password protection and anti-virus software along with maintenance arrangements to keep security measures updated.

Personal devices are unlikely to have this level of protection, which could lead to sensitive information falling into the wrong hands. If this occurs, employers could find themselves in breach of data protection laws unless can demonstrate that they have made reasonable attempts to keep the information secure – such as having robust remote working security protocols or automated defence mechanisms in place. The privacy factors have been further heightened by the introduction of the General Data Protection Regulation (GDPR) on May 25 this year which has added a layer of complexity onto the issue of Bring Your Own Device (BYOD).

Under GDPR, practices are required to draw up ‘privacy notices’ setting out clearly and comprehensively what data is collected, how and where it is stored - and who is able to access it.

Where information is downloaded onto personal devices, this will need to be fully explained and documented. Penalties for serious breaches can be up to €20 million or 4% of annual turnover – not to mention the reputational damage. Another potential downside to BYOD is falling productivity. There is a clear temptation for staff using their own devices in company time to be distracted by personal messages and notifications unless contracts of employment are explicit about what constitutes acceptable BYOD use.

BYOD can likewise lead to a company’s valuable IP being stored on an employee’s personal device – a potential risk if that person leaves or is dismissed.

The law is clear that company data on a personal device belongs to the practice and, in most circumstances, the copyright for work generated by an employee will also rest with the company.

Even so, it pays to have clear policies relating to the compulsory deletion of data, or an electronic solution installed such as a remote device management system that can automatically wipe a device’s data.

In extreme circumstances an employer can resort to taking out an injunction to compel the return of its data.

Having a watertight policy ensures employees know that actions, which include giving their colleagues access to secure information or sharing passwords, are prohibited. This evolving area, driven by technological advancements, brings a minefield of potential risks. If in doubt take professional legal advice.

PM Legal Services shortlisted in Niche Law Category of Yorkshire Legal Awards

Niche Law Award ARC Pensions Law Harrogate Family Law Hawkswell Kilvington PM Legal Services Rahman Ravelli Roche Legal Spectrum Solicitors Torque Law

Yorkshire Post Legal Q & A

James Alger is a senior associate in Keebles’ commercial property department

What’s the biggest development you’ve seen in the legal world during your career? A much wider development, Brexit will lead to an unprecedented level of legal and economic changes within most legal sectors. Some sectors are likely to experience a boom from the additional advice required by clients needing to react to legal changes and others (in particular us transactional lawyers) may face uncertain times depending on the extent of any economic downturn after we leave the EU. What law would you like to see changed? More of a system – a thorough review of the business rates regime in England. The decline in the traditional high street due to the increased presence of online retail over the past 20 years has left many towns and city centres with swathes of empty retail properties. Smaller independent retailers are often put off by sky high business rates. The present regime also deters speculative investment in vacant premises. I would like to see councils taking a more flexible approach and recognising the need to balance the prosperity of towns and city centres against the need to raise valuable funds from business rates - perhaps easier said than done in the current era of austerity. What is the most exciting work you’ve ever done? Assisting with the day-to-day running of a flooring company that went into administration during a previous in-house role with insolvency practitioners. The experience was a real eye opener into the daily and often unforeseen challenges facing a trading manufacturing business. Who in the legal world do you most admire? I am married to a solicitor (!) and, outside of my own front door, there are too many to mention. However, I’d like to give an honourable mention to my inspiring colleague Al Birch who has recently completed 40 years as a qualified solicitor. Anyone who chalks up a milestone like that in their profession deserves huge respect – especially in today’s constantly evolving and ever more frantically paced world of law. What advice would you give someone starting out in the profession? Be open minded about where you want your career to take you. As a student and even at the early stages of training its easy to think you want to specialise into a certain area of law but don’t discount anything until you’ve tried it. I never for a minute thought I’d want to practice property whilst almost nodding off in land law lectures at university!

Hollow victory for graham mills in supreme court ruling?

The landmark ruling – that divorced surveyor Graham Mills should not be forced to keep coughing up increased maintenance payments resulting from his ex-wife’s bad financial decisions – reinforces the need for ‘clean break’ orders.

The Supreme Court overturned the Court of Appeal’s decision to increase Maria Mills’ monthly maintenance payments from £1,100 to £1,441 after she fell into debt.

Mrs Mills’ circumstances resulted from her making poor investment choices with the £230k financial settlement her former spouse gave her when they divorced back in 2002.

While the headlines of this high-profile case put the emphasis on an “end to meal ticket for life” for spousal payments, the reality is that Mr Mills is still inextricably tied into paying what is called a joint lives order. Widely considered to be the most onerous maintenance order, it obliges him to continue giving Maria Mills £1,100 a month until she remarries, he or she dies – or the court makes a further order ending the payments. The case initially escalated after the surveyor’s circumstances had changed and he applied to the court, over a decade after the settlement, to end the payments. In retaliation, his ex-wife fought to have them increased. The case can be seen as part of an overall move towards clean break orders, so that the more advantaged party may pay more capital for a clean break. The court, for many years had had a duty to consider the possibility of a clean break in each case but sometimes there is not sufficient capital funds to pay to the less advantaged party to achieve this. Such an order prevents both parties from making future and further financial claims of any kind against each other. There is an overall trend in court judgements over the last few years, that wives should maximise their own income capacity – even when spousal maintenance is paid. Following the ruling, the lawyers for both Mr and Mrs Mills suggest further negotiations will be needed to look at capitalising maintenance – a means of helping to achieve a clean break even when there is a joint lives maintenance order.

It is a matter of interest perhaps that in Scotland spouses are only maintained for a maximum number of years. This may soon be regarded as a favourable option for England and Wales.

Whatever the wider outcome, the cost of litigating this case in the highest courts in the land will have resulted in heavy financial and emotional costs for a warring couple whose marriage ended sixteen years ago.

Keebles acts in holiday park operator’s £25m investment

Yorkshire’s Keebles has acted in a £25 million investment for UK holiday park operator Coppergreen as the business continues to pursue its growth strategy.

Coppergreen has doubled the size of its portfolio with the acquisition Kenwick Park Golf Hotel and Spa and Lodge Park in Lincolnshire and Clumber Park in Nottinghamshire.

The British Growth Fund (BGF) has invested a further £10 million of growth capital while HSBC has provided £15.3 million towards these purchases and general group capital expenditure.

Coppergreen Chief Executive David Copley said: “The acquisition of Kenwick Park and Clumber Park are fantastic additions to the group and fit perfectly with our mission to provide visitors with quality accommodation in some of the most beautiful settings in the UK.” BGF’s Barry Jackson, who sits on the board of Coppergreen, said: “Led by David and Donna, Coppergreen’s expansion has progressed well since our initial investment and we’re delighted to support the acquisition of the two additional parks and further investment in the current portfolio, with this new investment. “The team has developed a model and offering that really resonates with visitors, providing strong potential for further growth.” Creating 120 new jobs, the Clumber Park development – located next to a National Trust country park – has been granted planning permission for 129 lodges and facilities will include a shop, gym, swimming pool, restaurant and reception.

Kenwick Park, situated in the heart of the Lincolnshire Wolds, has 90 self-catering lodges and a 34-room hotel and spa.

Chris Alsop, HSBC Relationship Director, added: “I have worked with Coppergreen’s dynamic management team for ten years and this marks a new and exciting chapter for them, HSBC and for the UK lodge holiday market which continues to grow in popularity.

“Coppergreen’s offering is of the highest standard and their success is well deserved. Keebles’ expertise ensured the deal progressed smoothly and on time.”

Paul Trudgill, managing partner of Keebles and James Burdekin, an associate in the firm’s corporate and commercial team advised HSBC on the £15.3 million loan facility and on the transactions it funded. He said: “The funding and acquisitions further boost the growth and achievements of Coppergreen which owns and operates Woodland Lakes in North Yorkshire and Piperdam Golf & Leisure Resort in Scotland. We wish David and the management team continued success.”

What constitutes unreasonable behaviour in divorce?

The case of Tini Owens – who lost her bitter battle to be freed of her loveless marriage – is the first one based on the grounds for divorce to go before the Supreme Court.

Mrs Owens’ failure to persuade a Family Court judge that her husband, Hugh Owens, had behaved in a way with which it was unreasonable to expect her to have to live with, has resulted in her remaining trapped in a union which appears to have broken down in 2015 when she moved out of the marital home. This case centred on what is deemed to be behaviour which the petitioner cannot be expected to live with. This ground for divorce is one of the two most commonly named grounds for divorce, the other being adultery, which can be difficult to prove.

The remaining three grounds are desertion for 2 years, 2 years’ separation with consent from an ex-spouse, or 5 years’ separation without the need for consent.

Tini Owens’ petition for a divorce was hotly contested by her husband. Her petition was dismissed by a Family Court judge who said her allegations about her husband’s behaviour were “flimsy”.

This decision was upheld by The Court of Appeal who said Mrs Owens had failed to establish that the behaviour was such that she could not reasonably live with and thus she could not prove that her marriage had irretrievably broken down. This view was upheld by the highest court in the land, although the five Supreme Court Lords and Ladies of appeal ruled against her appeal “with reluctance”. In the vast majority of contested divorces, petitioners like Mrs Owens are granted a divorce. The litmus test is for Family Court judges to determine what can the petitioner in question be reasonably expected to live with. The result can vary because different judges might have different views about what the petitioner could put up with. Petitioners frequently walk a tightrope between submitting a petition which will be accepted by the Judge, without sending the other party spiralling into depths of despair. In my extensive experience, I have seen petitions granted for reasons which included a wife disliking the way her husband put their dirty plates on the floor for the dog to lick, dislike of the number of cats the wife had, and other relatively minor issues. Equally, some petitioners could make very serious allegations, which they decide not to put forward as they don’t wish their children ever to know about the behaviour in question. Mrs Owens’ case has accelerated the campaign by Resolution, an organisation that represents 6,500 lawyers working in family law, which threw its weight behind Mrs Owen’s case with a view to changing the law. Resolution is calling on the Government to modernise our outdated 1973 Matrimonial Causes Act and introduce “no fault” divorce. This would enable couples to end their marriages without either person being held at fault. This would dispense with petitioners listing what is, or is not in Mrs Owens’ case, regarded as “unreasonable behaviour”. In the last four decades, the world and its myriad of relationship types, has moved on – yet our legislation remains entrenched in a time far removed from today’s society. Mrs Owens, who had been married for 39 years, will no doubt reflect on this as the clock counts down to 2020, when she can finally obtain a divorce following 5 years’ separation and is free to move on with her life.

Tips and traps when sourcing from overseas suppliers

By Giles Searby, partner in the Litigation and Dispute Resolution team at Keebles

Sourcing suppliers and materials from aboard has never been easier. Integrated global communications and massive improvements to electronic trading platforms have made shopping internationally the first port of call for many UK businesses. The advantages are there for all to see. Lower manufacturing costs in many regions often means reduced unit prices, not to mention other economic benefits such as the availability of world class technology, different manufacturing processes and proximity to raw materials.

However, there are also disadvantages, risks and areas where expert advice is advised to help traders avoid falling foul of the law.

Firstly, it’s never safe to assume that the same rules will apply overseas as in the UK, particularly when dealing with countries outside the European Union (EU). In addition to the obvious issue of language barriers, differences can include areas such as varying import or export restrictions at either end of the transaction, different technical or industrial standards or unstable economic and political climates. Another key consideration is the cost of getting goods from A to B. Very early in the process, buyers should be asking themselves who is bearing the cost of transporting supplies and the cost implications of any insurance cover that might be required. Many of the answers to these questions will come from the judicious use of the ‘Incoterms rules’. These internationally agreed templates have become an essential part of the daily language of trade. They should be incorporated in contracts for the sale of goods worldwide and provide an agreed set of regulations and guidance to importers, exporters, lawyers, transporters and insurers. Where import charges are an issue, Incoterms will determine who pays for them and will put in place a framework to ensure correct tariff codes are used for goods, minimising the risk of potential customs clearance problems. Another question businesses should be asking themselves when considering a supply agreement is whether they need a quality certificate or a certificate of source/country of origin? These are critical documents and could have a significant affect import charges or prohibitions.

For full article please email Simon Gorman.

PM Legal Services shortlisting Property Week

Professional Services Team of the Year Adiuvo BDO BNP Paribas Real Estate Client Finance Brady Solicitors Data Energy Management Services Deacon Earl Kendrick Gerald Eve Harris Associates

Herbert Smith Freehills JM2 Support Services PM Legal Services

Yorkshire Post Property Matters Q & A

Charlotte Harris is a senior associate in Keebles’ commercial property team

What are the prospects for the property sector in Yorkshire?

Buoyant – as reflected by the ongoing demand for industrial space and investment demand for commercial property. There will understandably be an element of caution and aversion to high risk investments because of Brexit. Our commercial property department has never been busier which also reinforces the wealth of opportunities in the region.

What is your favourite building in the region and why?

KRYNKL in Sheffield’s Kelham Island is a really innovative building being made entirely out of shipping containers. I love how quirky it is - and the fact that it has a roof top bar adds to its appeal too!. The transformation of Kelham Island in general has been exciting to see. Our firm acted has acted in relation to various projects in the Kelham area including developments known as Dunfields, Bento and Krynkl. It’s also great that the regeneration of the former industrial island is recognised on a national level with the area being voted one of the coolest places in the country by TravelSupermarket’s Hip Hangout Neighbourhood Index in 2017. You can feel the buzz and energy when you go there. There is a perception (not just in this region) that the property industry is a “boys club”. It would be great to see an increased number of women chose to enter the different sectors within the property and construction industry. Whom do you most admire in property in Yorkshire? Surely you can’t expect me to pick one?! I am lucky to work with some fantastic clients and firms within the property and construction industry in Yorkshire. We have a strong property team at Keebles - one of the biggest in the region at 23-strong and continuing to expand - who I genuinely enjoy working with. The projects we are commissioned for are varied and interesting and based across Yorkshire and beyond. If you could change one thing to improve the property industry in this region, what would it be?

What is the best project you have been involved in?

I am part of a dedicated healthcare team at Keebles. One of the best projects we have been involved with in this sector was a multi-million refinance of 16 care homes by a major care home operator. It was a complex matter due to the number of parties and properties involved and it needed to be completed within a tight timescale. Everyone worked hard together to deliver the project on time and it enabled our client to move ahead with plans to acquire and develop new facilities. I’m a self-confessed title nerd and this project involved loads of title reports!

When is an insurance premium 'reasonable incurred'?

We are grateful to Cassandra Zanelli, Partner at PM Legal Services, and Paul Robertson, Managing Director of Midway Insurance Services for providing this article.

In a landlord and tenant relationship, if there is one issue that is more likely than any other to polarise the views of landlords and leaseholders, it’s insurance.

This polarisation leads to the often-asked question: “When is an insurance premium ‘reasonably incurred’? The tension this issue invariably creates has led to a raft of litigation focusing on the question of when an insurance premium is reasonably incurred. What’s been decided to date There are a number of cases decided by the Courts and Tribunals on this thorny issue. In no particular order (other than chronological), the following are important points to note. In Havenridge [1] : “Where a lease contained an obligation on the Landlord to ensure the premises “in some insurance office of repute”, and an obligation on the Tenants to pay “by way of further and additional rent or yearly or other sums as the Lessor shall from time to time properly expend or pay to an insurance company in respect of, or for insuring and keeping insured the premises”, it was held that: (2) There was no implied term that the premium recoverable from the Tenant should be fair and reasonable; (3) The Landlord could not recover in excess of the premium which he had paid and agreed to pay in the ordinary course of business; (4) The fact that the Landlord might have been able to obtain a lower premium elsewhere was not relevant; he was not obliged to shop around; and (5) It was sufficient for the Landlord to show either that the premium was representative of the market rate, or that the insurance contract was negotiated at arms’ length and in the market place” [2] A similar approach was followed in Berrycroft [3] . In Williams v Suffolk Borough Council [4] the Court held that a landlord was not obliged when calculating the service charge payable by its leaseholders in respect of insurance to deduct the commission it had obtained from its insurer. The charge was, therefore, reasonably incurred. In Forcelux [5] the Lease required the Landlord to insure the building. The leaseholders disputed the premiums on the basis they were excessive. The landlord had insured the whole of its property portfolio under a single policy, which it acknowledged could cause the premiums payable to be “significantly higher” for owner occupiers. In that case, the Court was satisfied from the evidence given by the landlord that the block policy was competitively obtained in accordance with market rates, and therefore that the costs of the premiums were reasonably incurred. (1) “Properly” did not mean “reasonably”;

For full article please email Simon Gorman.

Choice Magazine

Michele Wightman is on the panel of experts

For full article please email Simon Gorman.

RTM: change in the air?

Cassandra Zanelli looks at a recent case that could signal a new approach to RTM in advance of the Law Commission review

In July, the Law Commission announced that it is to review the provisions of the Commonhold and Leasehold Reform Act 2002 that give leaseholders the statutory right to assume the management functions in relation to their building. The terms of reference haven’t yet been published but the Government has asked the Law Commission to see if RTM can be made simpler, quicker and more flexible. I’m delighted to be participating in the Law Commission’s forthcoming roundtable event to examine how this can be achieved and consultation papers will be published later this year and. At present, leaseholders will only qualify for the right to manage subject to meeting certain criteria and by following the correct process. The procedure that must be followed is prescriptive and property lawyers always advise that any deviation from the process is likely to be fatal to the success of their fledgling claim. At least that was always the case until last year’s decision of the Court of Appeal in Elim Court RTM Company Limited v Avon Freeholds Limited. In this particular case , the Court of Appeal considered the consequences of a failure by the right to manage company to comply with the statutory requirements - and the decision was quite surprising. The appeal in Elim Court turned on three points. The notice inviting participation failed to meet the requirements of the legislation because it said that the Articles of Association would be available for inspection on Monday, Tuesday and Wednesday with no mention of being available for inspection on either Saturday or Sunday as required by the Act. This failure was referred to as the “Saturday/Sunday issue”. The second failure gave rise to the so called “intermediate landlord” issue, because the RTM company had failed to serve a claim notice on an intermediate landlord of one of the flats. The third “signature of the claim notice” issue related to the signing off of the notice. An individual had signed the document as “RTMF secretarial, company secretary”, but the company secretary was itself a company, giving rise to the landlord’s argument that it was not clear that the notice had been signed by or on behalf of the RTM company. Cass this was confusing so have changed aligned with the below http://www.leaseholdreformnews.com/elim-court-rtm-company-limited-v-avon-freeholds-limited-2017-ewca-civ-89/ Given how pernickety the Courts and Tribunals have been in adhering to the mandatory requirements laid down by the Act, the Court of Appeal was expected to hold that these failures to follow the rules invalidated the right to manage claim. However, that was not the decision reached by the Court. On the Saturday/Sunday Issue, the Court agreed that the RTM company had departed from the requirements under the Act and agreed that there was no justification for this, but nonetheless found that the failure to comply precisely with the requirements did not invalidate the notice as a whole. On the Intermediate Landlord issue, the Court found that the RTM Company’s failure to serve a claim notice on an intermediate landlord of a single flat did not invalidate the claim either.

On the Signature of the Claim Notice issue, the Court of Appeal was in complete agreement with both the LVT and Upper Tribunal that the corporate signature had not invalidated the claim notices.

Comment was made that where a provision could be interpreted two different ways, the preferred interpretation is the one which concludes that the notice is valid. So does this decision signal a more generous approach to the statutory requirements of RTM companies than has previously been the case? What is clear, and what was commented on at the end of the judgment by Lewison LJ is that the procedure for the acquisition of the right to manage is in dire need of simplification. It is hoped the forthcoming review may simplify the processes and procedures, giving greater clarity for the benefit of both landlords and RTM companies, and reducing the ever present threat of technical challenges. Only time will tell and the outcome of the consultation will no doubt be of interest to everyone involved in the RTM process.

Radio Sheffield

Michele Wightman appeared live on BBC Radio Sheffield with Paulette Edwards to answer listeners’ questions on wills, probate and Power of Attorney. Michele will next appear on Radio Sheffield on October 11. Vanessa Fox will again be interviewed by Paulette Edwards and respond to listeners’ queries and concerns on family law issues on September 18.

Trio of new appointments for law firm’s private client team

Keebles’ private client department is further expanding with the appointment of two associates and a paralegal.

Associate Louise Rudkin, based at the firm’s Doncaster office, is experienced in estate planning and has previously worked for employers including The Crown Prosecution Service and Sheffield City Council. Fellow associate, Natalie Sheldon, who is also adept in the administration of deceased estates and Lasting Powers of Attorney, joins the team in Sheffield and paralegal Catherine Connelly is based in Leeds. Michele Wightman, who heads the private client department, said: “Louise, Natalie and Catherine bring a wealth of valuable experience. They join us at an important period in the development of our department which is commissioned by clients across Yorkshire and beyond.”

Keebles, which has offices in Sheffield, Doncaster and Leeds, has made 20 new appointments this year across its commercial and private client departments

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