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MAY
25

Commercial and Litigation Department; May 2017

london solicitorsTo all our commercial clients and prospective commercial clients,

April is always a busy month in the legal world, as Bills receive Royal Assent to become Acts of Parliament, and this year was no different as twenty new Acts came into force, making a total of thirty in 2017 so far. In addition, what would appear to be the last Spring budget for the foreseeable future has meant that both companies and individuals alike will no doubt be feeling the effects of these new socio-political/socio-economic changes fairly soon, and with an election just around the corner and Brexit negotiations becoming a “brutal reality” (according to The Economist), who knows what the future holds!

At Lewis Nedas Law we always strive to stay on top of our game, and now that some of these changes have started to come into effect, we thought that now would be the time to give a little snapshot of just some of the areas that we know about that might interest you. We’ve also thrown in some recent cases for good measure.

 

Employment

1) Statutory payments

From April 2017:

  1. Family; the weekly rate for statutory maternity, paternity and shared parental pay has increased to £140.98 from 2 April 2017 onwards.
  2. Statutory Sick Pay (SSP); has increased to £89.35.
  3. Statutory Redundancy Pay (SRP); For the purposes of calculating a redundancy payment (age, weekly pay, length of service), 'weekly pay' has increased to £489.00.

 

2) Employment Tribunal Cases

The Employment Appeal Tribunal has held that a second ACAS “early conciliation certificate” (EC) issued for the same matter as the first will not extend a claimant's time limit for instituting tribunal proceedings (Commissioners for HM Revenue and Customs v Serra Garau UKEAT/0348/16).

 

3) Employer requirements:

All organisations with a headcount of 250 or more must publish annual figures about its “gender pay gap”, which means the difference between the average earnings (including bonuses) of men and women.

In addition, The Pensions Regulator (TPR) has just issued a penalty of £40,000 against an employer for failing to comply with automatic enrolment. It is also threatening criminal prosecutions against employers and has started a “name and shame” campaign. Employers are therefore strongly advised to check their compliance in relation to pension schemes.

 

Corporate and Commercial

Commercial contracts

1) In Wood v Capita Insurance Services Limited, the Supreme Court has clarified the correct approach to be taken when interpreting commercial contracts and finding a balance between “textual analysis” and “commercial good sense” (as per the tests in Arnold v Britton and Sky v Kookmin Bank respectively).

The correct interpretation will depend on a range of factors, such as:

  1. words used in the contract;
  2. the context in which the words are used;
  3. business commercial sense.

The Supreme Court also added in its judgement that it is “not for the court to remedy a bad bargain” and that the tools for interpretation listed at a) - c) will be used depending on the facts of the case.

 

Corporate considerations

2.We posted an article last year about the PSC (Persons with Significant Control) regime affecting companies in the UK.  In light of the crackdown on organised financial crime, the Government has posted new information on the changes to be made in respect of UK money-laundering measures to help prevent money-laundering and terrorist financing.  The legislation, effective 26 June 2017, will change the current requirements concerning PSC information to be registered at Companies House and can be found here: https://www.gov.uk/government/news/changes-to-uk-anti-money-laundering-measures.

 

Judgements

3. In the High Court, only 35 judgments have been registered against consumers 2017, which is the lowest total number for a single quarter since records began. The average value of a High Court Judgment against a consumer also fell 44 percent year on year to £446,308. 

Comparatively, County Court judgments (CCJs) are on the rise, with 298,901 debt judgments registered against consumers in England and Wales in 2017 (an increase of 35%). This is the highest figure for a single quarter in over a decade. This means that, for every 1,000 consumers in the UK, 5.16 now have a CCJ against their name, as opposed to 3.85 in 2016.

Does this mean that consumers and businesses are not being deterred by rising court fees, or is there another reason for the dramatic change in these figures? Watch this space…

Source: The Registry Trust Limited

 

Professional Negligence and Litigation

Professionals: breathe a (small) sigh of relief when dealing with impulsive clients

1. In a classic example of the UK Legal System Hierarchy at work, the Supreme Court has upheld the Court of Appeal’s decision to overturn a lower court judge in BPE Solicitors and another (Respondents) v Hughes-Holland (in substitution for Gabriel) (Appellant) [2017] UKSC 21 on appeal from [2013] EWCA Civ 1513.  A link to the judgment can be found at the following address: https://www.supremecourt.uk/cases/docs/uksc-2014-0026a-press-summary.pdf.

In summary, the highest court in the land found that a professional advisor cannot be liable for a person’s poor commercial decisions.  We hope that this gives some reassurance to our professional clients!

 

 

Blog by Adam Creasey, Associate Solicitor.

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JUN
28

Corporate Offence of ‘Failure to Prevent’ to be Broadened

The Ministry of Justice has outlined plans to consult on expanding the criminal corporate offence of ‘failing to prevent’ beyond its current scope of bribery and more recently tax evasion, to include other economic activities amounting to criminal conduct.

Justice Minister, Dominic Raab said:

‘The government is finding new ways to tackle economic crime and we are taking a rigorous and robust approach to corporations that fail to prevent bribery or allow the tax evasion on their behalf.

We now want to carefully consider whether the evidence justifies any further extension of this model to other areas of economic crime so that large corporations are properly held to account.”

The consultation to be published this summer is seeking opinion on whether changes in the law could assist authorities in bringing those committing corporate offences to justice. At present, the police and other law enforcement agencies find it difficult to prosecute companies for accounting offences, money laundering and fraud under the current legal framework. The failure to prevent model will be introduced to compliment and work alongside the existing regulatory and legal framework. But how might the law work? This post looks at both the Bribery Act and the proposed tax evasion laws to assess how the laws might work, and what businesses can be doing to prepare for such changes.

Failure to Prevent Bribery

The prime example of the ‘failure to prevent’ corporate offence is in relation to bribery.

The Bribery Act 2010 creates a strict liability offence for failure to prevent bribery. An organisation will be held liable for the actions of any person carrying out services for the business, regardless of in what capacity they are carrying out these services. The broad drafting of the law means that it will catch contractors, agents and even subsidiary companies. In addition, where the organisational failures to prevent bribery arise out of the consent or actions of senior officers of the company, they may also be liable for an offence under the Act. Where an organisation is charged with an offence under the Bribery Act, the only defence to the charge is that the organisation had put in place adequate procedures to prevent it. Where an organisation has implements procedures to prevent bribery, it may be able to escape liability for bribery offences.

This aspect of the legislation has had a significant impact on commercial organisations as they now must ensure they have properly developed and implemented policies and procedures to prevent bribery. Organisations have also had to review the way in which the approach hospitality, gifts and donations so as not to be caught by the bribery legislation. Businesses and organisations may have to look at a number of their other policies and procedures if the scope of ‘failure to prevent’ is broadened, including looking at methods for preventing money laundering, fraud and accounting.

The Bribery Act has extra-territorial reach in that it catches actions of employees of overseas subsidiaries, agents or contractors of a UK company and the corruption itself does not need to take place on UK soil. Overseas companies may also be caught if they have a significant connection with the UK.

Failure to Prevent Tax Evasion

The statement comes just after the Prime Minister has announced that he will introduce a criminal offence applying to corporations who fail to prevent their staff from facilitating tax evasion.

The new criminal offence of “corporate failure to prevent tax evasion or the facilitation of tax evasion” is targeted at businesses. Although the obvious targets are banks, fiduciaries and professional services firms, it looks as if it will apply to all businesses. Going forward businesses will have to pay greater attention to the activities of their employees, contractors, suppliers and customers in relation to tax.

If, as seems likely, the tax offence applies in a similar way, companies and other businesses will also need to have robust procedures in place to prevent their employees, service providers, agents, and associates from engaging in or facilitating tax evasion. Depending on the scope of the offence this could be wide ranging. All business will have to determine how this might apply to them and implement bespoke policies and procedures.

Moreover, the penalties for individuals who seek to evade tax are to become tougher, and a strict liability offence is to be introduced. The Chief Secretary stated, “if you help someone to evade tax of £1m, you can expect to pay a penalty of £1m or more”.

Broadening Failure to Prevent

The proposals to broaden the failure to prevent doctrine to a number of different financial crimes could have important implications for all businesses. Businesses will need to look more closely at relationships with suppliers, contractors and employees as well as implementing new systems for the way goods and services are paid for in the course of business. This will also mean business will need to look at training staff and ensuring all employees fully understand their obligations under the law. It is anticipated that in a similar way to the Bribery Act, the only defence to failure to prevent will be to prove that adequate measures have been taken to prevent the offence taking place.

Contact our Financial/White Collar Crime Lawyers in Central London, North London

The team at Lewis Nedas are among the UK’s most experienced criminal lawyers, who have been advising on the law as it applies to clients operating in financial services for many years. If you need a legal team who is acutely aware of the requirements imposed on you and your business, and who can provide practical solutions to satisfy regulatory concerns, contact the financial regulatory defence team at Lewis Nedas.

To speak to one of our solicitors, please telephone us on 020 3131 0867 or complete our online enquiry form.

With offices in Camden and Fleet Street, we represent and advise businesses in Central London, West London, North London and across the UK.

 

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MAY
30

Lewis Nedas Law Commercial Department Goes Live!

shaking hands 1Welcome to the Lewis Nedas Law Commercial and Litigation Department Blog. Our goal is to keep you informed about recent legislative changes that may affect you or your business by giving you free, regular, cutting edge updates on this web page. We will also be posting about our recent successes, professional legal opinion, developing case law and other newsworthy items on a frequent basis. We feel that a Blog is a great opportunity to invite our readers and our existing clients to pose us with topics for discussion so that the Blog is as interactive as possible. Please note that for confidentiality reasons we will not be able to give any specific legal advice to you or someone you know on this public forum, but if you do have such a query please do not hesitate to get in touch with one of our commercial lawyers who will be happy to help you.

Our first topic is one that has been raised in several recent company transactions that we have been working on and so we felt we could shed some light on this complex area or encourage you to contact us for further advice.

Company Law Update – People with Significant Control

If you’re a business owner or a company director, you’ve probably heard about the new administrative changes affecting UK companies, SEs and LLPs from 6 April 2016. The most significant of these is almost certainly the requirement to keep a “Register of People with Significant Control” (and not forgetting the obligation to file a “Confirmation Statement” once a year, which replaces the obligation to file an “Annual Return” as of next month). If you do have the unenviable task of dealing with such matters yourself, you will no doubt have noticed that there is ample (and by that I mean no less than seven handbooks and hundreds of pages!) guidance on the government’s website to steer you through this complicated area of company law, and a quick Google search of the letters “PSC” reveals a multitude of websites, from laypeople to lawyers, offering fairly comprehensive advice. As such, it is not the purpose of this blog to recite this guidance chapter and verse, or to condense it into a handy how-to guide when so much information is readily available.

No, the purpose of this blog is to inform our readers that, as is the case ninety-nine per cent of the time when a new law is implemented, some confusion and some moderate debate is taking place in commercial circles as to how the rules should be interpreted. For instance, the government has published new guidance as recently as 13 May 2016 (see https://www.gov.uk/government/publications/guidance-to-the-people-with-significant-control-requirements-for-companies-and-limited-liability-partnerships) to help business owners through this legal minefield and we have also been reading other blog posts from law firms on websites such as Lexology which are potentially very confusing to a lay person. Given that the sanctions for non-compliance will be of a criminal nature (as are the sanctions for failure to keep most company information up to date), we understand (and indeed we have experienced) that many people will see this as an administrative headache that distracts them from focussing on their aspirations of running a successful business. The types of queries we hear regularly are:

  •  What is a PSC Register?
  •  How do I identify a person with significant control?
  •  How and to what extent should I contact these people?
  •  What information must I enter on to the Register?
  •  How and when do I need to enter information on to the central public register at Companies House?
  •  How often must I review the information contained on the Register?
  •  Where must the Register be kept and for how long?
  •  What restrictions can be imposed on people who refuse to respond to requests for PSC information?
  •  Where can I find further guidance on this subject and are there any updates available?

As you can see, this is an extensive list of questions that we have already had from our existing clients and we are sure there will be more on this topic until such time as the new legislation has had time to bed in.

If you are at all concerned about the new legislation and whether it affects your business, or if you would like to speak to our team about your corporate and commercial needs generally, please contact us by emailing our enquiries line and we guarantee someone will come back to you within 24 hours.

Adam Creasey

Lewis Nedas Law

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