More success for HMRC and UK Border Force Litigation team

 

The Rogers & Norton HMRC and UK Border Force Litigation team were delighted to help with the restoration of a valuable bottle of whisky, valued at £50,000.

The goods were seized by UK Border Force at Heathrow Airport. We challenged the legality of the seizure and applied for restoration. On Review, it was accepted that the seizure as disproportionate and that the bottle had been passed through the family and had a sentimental value attached to it. We made a full submission that addressed legality (we considered the seizure was unlawful) and also submitted substantial grounds for restoration. Our client’s testimonial stated “I just wanted to thank you for all your effort in obtaining this result…… I really think that if it wasn’t for me finding you when I read one of your “case studies” online by pure chance, this dreadful episode in my life would have been much worse. I have learnt that dealing with Border Force is like seeking the Holy Grail in one of those Indiana Jones movies with all these traps set to make you fail. The only chance of success is to have an Indiana Jones like you! “

We are regularly contacted by individuals and companies who have had goods seized or detained by HM Revenue & Customs (HMRC) or the UK Border Agency and we have a high level of success in recovering the items. The team deals with the worldwide importation of goods to the UK, including the huge market from China, Europe, America and Mexico. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow. We are currently dealing with numerous issues relating to Nitrous Oxide, THC, and classification issues on imports from China. We can also advise on PPE issues relating to Duty and VAT.

We are experienced in Magistrates Court proceedings; First Tier Tax Tribunal; Court of Appeal; European Convention on Human Rights; Administrative Court and Injunctions and can assist with Tax, Duty and Vat claims and issues. Our team also specialise in investigations, interviews and matters relating to the Export Control Order 2008.

The ‘Use a Lasting Power of Attorney’ Service

For Lasting Powers of Attorneys (LPAs) registered in England and Wales on or after 17 July 2020, the government has released an online service called ‘Use a Lasting Power of Attorney’ which allows people or organisations to view a summary of the LPA online.

Once the LPA has been registered with the Office of the Public Guardian the donor and attorneys will be sent an activation key. Using the LPA reference and activation key which they will together be able to create an account on the ‘Use a Lasting Power of Attorney’ service through the Gov.UK website.

Through this account both the donor and attorneys can make an access code which they can provide to organisations such as banks and the DWP to view a summary of the LPA. This will save attorneys needing to take copies of the documents to individual institutions and should streamline the system going forward.

The Office of the Public Guardian plan to open up the service to LPAs registered earlier in 2020 and to some from 2019 in the future.

If you would like to know more about preparing and registering LPAs please contact us on 01603 675645 (Norwich) or 01953 458162 (Attleborough).

The excellent results keep coming for Mark and the Personal Injury team

 

23rd Dec 2020

Mark Hambling, Director in Rogers & Norton’s Personal Injury Department continues to achieve notable successes in the High Court, having recently agreed a substantial settlement in a fiercely contested liability and quantum claim, following an accident at work suffered by his client in 2015. The claim settled a matter of days before a hybrid High Court trial.

My client suffered serious injuries when working as a self-employed subcontractor for a main contractor who themselves were subcontracting to a further contractor whilst removing an evaporated coil of a large industrial freezer. To complicate matters further the site on which my client was working was managed by a separate company and the scaffolding, which was instrumental in my client’s injuries was installed by a separate scaffolding contractor. My clients injuries were such that in addition to the current pain, it was very likely his condition would deteriorate effect his long term earnings position.

As a result of the accident in November 2015 my client was thrown from a working platform whilst attached by a Lanyard to scaffolding which it was alleged by the scaffolders was never intended to provide a fixing point for fall protection, but which collapsed during the construction work. Between December 2015 and November 2018 the insurers for the contractor, subcontractor, site coordinator and scaffolders continued to challenge my client’s claim, continued to blame each other and made no offers in settlement whatsoever. Each Defendant denied liability but failed to appreciate the extent to which my client was the innocent party and on the balance probabilities likely to recover damages, as the only definite conclusion was that the failing identified in the evidence were not caused by my client. The case did not settle and given the strength of the evidence I had been able to put together, court proceedings were issued in the High Court. Despite these proceedings discussions did not take place between the Defendants and instead each Defendant continued to blame each other and fully defend the clients significant claim for damages. The case involved 5 parties and a substantial volume of documents as to the arrangements concerning the site management, the contractual arrangements between the contractors and subcontractors and the various risks assessments and method statements relating to the conduct of the task in the contract, during which my client sustained very significant injuries upon the scaffolding collapsing causing my client to be pulled from the working platform.

The case involved witness evidence from 13 witnesses and the Court proceedings were necessarily brought against all four Defendants, all of whom along with my client the Claimant served substantial documentary evidence.

The issue of proceedings and disclosure exercise within the proceedings did not bring the case to a conclusion, despite my efforts to continually indicate to each Defendant the good prospects of my client succeeding against at least one of the four Defendants and therefore recovering my clients costs of being forced to pursue all four Defendants.

The case was listed for trial for 4 days starting on the 9th November 2020 and despite efforts by the Defendants to apply to adjourn the trial as a result of the Coronavirus pandemic, I was able to persuade the Judge that the case should continue and could be conducted safely in a hybrid manner, with witnesses giving evidence both in Court whilst socially distant and remotely by way of the Court’s video platform, a procedure regularly adopted over the last 7 months. Indeed, given the case was due to proceed in London and many witnesses for both sides of the dispute living in Norwich, our Willow Lane office was due to be set up as a remote video location for giving evidence via the court’s cloud video platform with appropriate PPE, sanitizer and full social distancing arrangements in place to allow the witnesses attendance to be timetabled to be given safely.

Shortly before the trial was due to start, the Defendants finally put forward a joint offer which after some negotiation led to my client recovering a substantial six-figure award in damages to compensate for the pain suffered and the likely long term consequences of his injuries. Additionally my client’s costs of pursuing all four Defendants will be paid by those Defendants against whom he has been successful and my client has no liability for any costs in respect of those Defendants who did not contribute towards the final settlement. In those circumstance an excellent outcome in respect of the claim but also the costs.

This was a case where the Defendants should have grasped the issues as regards the likelihood of my client winning his claim at a much earlier stage. I made every effort to draw to each Defendant’s attention the various deficiencies in their case and the level of my client’s damages and invited them to take a proportionate and cost-effective approach to the litigation to save costs. It was not until I was able to persuade the Court, despite objections from the Defendants, that the case should proceed as a hybrid trial, that the Defendants saw the strength of my client’s case. As a result of further negotiation and having maintained a strong stance on both liability and quantum throughout the litigation a very favourable settlement plus costs was negotiated for my client.

It was helpful and important to the case that the court were prepared to allow a hybrid trial with evidence being given in court and remotely. As a result of putting forward alternatives which allowed a safe trial with remote witnesses and social distancing in court to take place, the Defendants finally saw the prospects of my client’s case and entered in to sensible negotiations to achieve a resolution. It is however relevant that costs could have been significantly been saved if the Defendants had reacted to the inevitable outcome earlier, rather than being almost forced to the settlement by the presentation of the evidence and the trial options at the point the trial was listed.

I am delighted to obtain an excellent outcome for my client and grateful for the appreciation provided to my client at the end of the case. As he said to me, “you were confident the case would succeed, backed me all the way to trial, allowed me to understand and be confident in your advice and your tactics were spot on. I am so thankful for you and your teams hard work to obtain this excellent outcome”

Mark Hambling is a Director of the company’s Personal Injury Department, a Senior Litigator with the Association of Personal Injury Lawyers and a specialist at handling high value and complicated personal injury claims. Mark will consider cases on a No Win No Fee Agreement and is happy to offer an initial discussion as regards any claim without obligation and cost. Mark can be contacted on mbh@rogers-norton.co.uk and by telephone on 01603 666001.

Covid-19 Update from the Private Client Team

 In the Private Client team at Rogers & Norton we have adapted our working practices to ensure that you can continue to access our services throughout 2020 and will continue to do so as the situation with Covid develops.

We are contactable using our normal telephone numbers and email addresses supplied via our website and our main switchboard is continually manned. We will be happy to assist you with every private client need. We are pleased to note that throughout 2020 and both “lockdown” periods we have been able to offer our Wills and Last Power of Attorney services with our experienced staff. We note that anxiety levels are high with our clients and are more than happy to discuss individual needs and requirements with you to ensure that the delivery of our services are in the safest possible manner.

Where possible we are continuing to arrange telephone or video calls which have proven to be highly efficient as a source of taking instructions and then where possible will always see clients in a Covid-secure manner for the signing of documents.

We understand that telephone or video calls may not always be suitable in certain circumstances. We pride ourselves in adapting to each individual client and are able to use a dedicated meeting room which is isolated from the rest of the practice and is thoroughly sanitised after each use and ready for our clients.

Alternatively for signing Wills or Lasting Powers of Attorney we are also happy to attend you at your property without entering your property and whilst maintaining a safe distance to allow you to execute your Wills or Lasting Powers of Attorney.

We have been able to continue to advise clients in hospital and in care homes even with restricted access by working with the establishment to ensure all parties remain safe. We will continue to assist all our clients where possible and whilst maintaining the safety of both the client, their family and our staff.

Please contact us at our Norwich office on 01603 675645 or our Attleborough office on 01953 458162 where we can discuss any of yours or your family’s requirements.

Rogers & Norton would like to thank you for your support and understanding during this time.

Rogers and Norton Christmas donations

 As we cannot have a traditional office Christmas party this year we have decided that we will donate the cost of this and split between two local charities that provide essential support and care for the local community. All charities have had a very difficult year with the lack of events or support and we hope that by donating our office Christmas party funds, it will provide a little help.

We are donating to St Martins Housing Trust. By donating to this charity we are directly helping people who are homeless or at risk of homelessness. This local charity is hugely important all year round for people needing support but we wanted to donate at Christmas to help provide this service at such a difficult time of year for so many. To find out more or to donate please visit their website here Home – St Martins (stmartinshousing.org.uk)

We are also donating to NANSA (formerly Norfolk and Norwich Scope Association) who provide specialist provision for people of all ages living with disabilities and complex behavioural, sensory or developmental needs. This money will, in particular, go towards speech coaching and training to facilitate communication for children with disabilities and special educational needs. To find out more or to donate please visit their website here www.nansa.org.uk

Wishing you all a Merry Christmas and a happy new year.

Further success for Mark Hambling and the Personal Injury team

 Mark Hambling, Director in the Personal Injury Department has not let the difficulties of lockdown and the 2020 Covid pandemic prevent him from achieving excellent results for his clients. He has recently concluded a run of High Court case of which the success below was the second in sequence of excellent results.

I was instructed to act for a mother and two children who sustained very significant injuries in a road traffic accident. The case was complicated by the fact that the mother and her two children were passengers in a vehicle being driven by the husband and father, when it was involved in a head-on collision before hitting a third car, causing all occupants to sustain serious injuries, and in the case of the mother significant life changing consequences.

The case was complicated by the insurers of the two vehicles colliding head on not being accepting liability or in the case of my clients claims, agreeing to deal with the claims and share the liability between them. As such, in the absence of independent witnesses to the actual impact the matter was ultimately to be determined on the basis of drivers evidence and more likely than not expensive forensic evidence to be obtained by both insurers. What was clear was that my clients were the innocent passengers in the accident, could not in any way be responsible for the accident and therefore they would recover against one or a combination of both of the insurers of the two vehicles colliding head on. Notwithstanding what was always the likely outcome I had to work hard in the initial stages of the case to convince each insurer to cooperate under the rehabilitation protocol and to fund early treatment in respect of the injuries sustained, to achieve the best possible outcome from the significant injuries and save costs. What I had hoped was an obvious benefit to either insurer of early treatment to reduce the clients suffering and save costs, was complicated by the feuding insurers who were focussed on their liability position and could not see the benefit of early treatment, sharing the costs and apportioning those costs between them once the issue of liability between the insurers was resolved. As a result it was inevitable given the issues, the insurers stance and the value of the case that High Court proceedings were required in respect of all claims, to secure interim payments and to fund much needed treatment and assistance.

My advice to my clients was to adopt a robust line on the value of the claim and to stand by the strong evidence on the injuries and financial losses obtained, despite the insurers trying their best to challenge the evidence, even by serving video surveillance which did no more than show the most seriously injured client doing her best to function and doing no more than the evidence accepted the client could do. Indeed this evidence ultimately supported the Claimants oral evidence on the effects of the injuries. Following settlement meetings and adopting a robust line in the face of insufficient offers that were made, by continuing to progress the case towards a final hearing, one insurer accepted liability and suitable settlement offers agreed before a trial on the liability issues was due to start.

The claim settled at very substantial figures in respect of all three Claimants shortly before the liability trial and has provided each Claimant with sums to reflect their injuries and secure their future treatment and earnings needs.

I was delighted to be able to resolve this case at settlement sums which will ensure each Claimant has received full compensation, and in the case of the most seriously injured, places them in a position to continue to fund their treatment and be compensated in respect of loss of income for the rest of their career. The case was progressed through lockdown and required many of the normal procedures to be varied to ensure the case continued and was not delayed by the Covid pandemic. For example, medical evidence was obtained by video links, meeting with barristers by MS Teams and court case management hearings undertaken remotely. The last 8 to 9 months has seen lawyers have to adapt and it is to the credit of the profession that we have all found ways to keep cases progressing and ensure we continue to achieve notable successes for such deserving clients, ensuring their case is not prejudiced by the pandemic..

In this case, by ensuring full evaluation of the injuries at an early stage a case plan could be put in place to obtain a full suite of medical evidence,making it difficult for the Defendants to cloud the evidence on both the cause of the injuries and the value of the claim. By obtaining the appropriate medical evidence a strong Part 36 offer to settle was made, allowing the negotiations to provide the Claimants with full compensation.

Following the settlement, my client sent me the most delightful thank you indicating “We just wanted to say a huge thank you for all your hard work on our cases and the excellent end result you achieved for us”

Mark Hambling is a Director of the company’s Personal Injury Department, a Senior Litigator with the Association of Personal Injury Lawyers and a specialist at handling high value and complicated personal injury claims. Mark will consider cases on a No Win No Fee Agreement and is happy to offer an initial discussion as regards any claim without obligation and cost. Mark can be contacted on mbh@rogers-norton.co.uk and by telephone on 01603 666001.

 

Video Will Signings

30th Nov 2020

The legislation in relation to Wills dates back to the 1800’s and therefore with Covid the normal process of signing Wills urgently had to be reviewed. The law requires a Will to be signed in the presence of two independent adult witnesses who are present at the signing. This has of course proven difficult this year with social distancing, lockdowns and shielding.

On 7 September 2020 the government relaxed the requirement for a testator to sign their Will in the “physical presence” of two independent adult witnesses meaning a Will can executed virtually.

The government has published guidance on the new virtual execution of Wills which includes the following:

• The Will will not be valid until it has been signed by the testator and both witnesses;
• A live video link must be used, it cannot be a pre-recorded video;
• Both the testator and witnesses should confirm that they can see and understand what is happening;
• The witnesses must be able to clearly see, hear and identify the testator and that the document being signed is a Will;
• The witnesses must have clear vision of the testator signing;
• After the testator has signed, the Will should then be given to the two witnesses for them to sign via another live video link with the testator and this should ideally take place within 24 hours of the testator signing the Will;
• The testator must also have clear vision and audio of the witnesses signing the Will;
• Each video link should ideally be recorded and this saved in a secure location;
• Electronic signatures are not allowed, it must be signed in pen; and
• Counterparts are not permitted, the testator and witnesses should all sign the same original Will.

This change in law is to be unusually backdated to 31st January 2020, meaning that any Will virtually witnessed from that date will be a legally valid Will. This relaxation is only intended as a temporary measure and has a provisional end date of 31st January 2022.

The guidance does state that virtual execution of Wills should be an absolute last resort and that the traditional method should be used where it is possible and safe to do so.

There is a risk that as the Will will not be valid until it has been signed by the testator and the witnesses, that if a testator were to die before both witnesses were able to sign the Will, it would not be valid and the testator could die intestate if they do not have an existing Will or with a previous Will that no longer reflects their wishes.

Virtual execution of Wills should be a last resort and only after careful professional advice has been taken. We have found ways to adapt to taking Will instructions and to attend Will signings so we believe in the large majority of cases virtual execution of Wills should not be necessary.

However we are more than happy to discuss your individual requirements and circumstances to ensure that your Wills are prepared and executed in a sensible timeframe and in a Covid-secure method.

Should you wish to discuss your Wills further with us then please get in contact with our Norwich office on 01603 675645 or our Attleborough office on 01953 458162.

Money raised for Dementia UK

 Rogers & Norton are pleased to have finally been able to attend a cheque presentation to Dementia UK between lockdowns and whilst adhering to restrictions.

In 2019 our chosen charity was Dementia UK and in particular, Admiral Nurses in Norfolk. We carried out bake sales, dress down days and had our annual foot-golf charity day to help raise crucial funds for such a worthy cause. Rogers and Norton raised over £7,000 and, together with money raised by the Admiral Walk team, a cheque for £17,000 was presented to Dementia UK. This was overseen by the dementia ambassador pony Jack Brock!

Admiral Nurses provide specialist support to families affected by dementia. They work alongside people with dementia and their families: giving them one-to-one support, expert guidance and practical solutions. The expertise and experience an Admiral Nurse brings is a lifeline – it helps families to live more positively with dementia in the present and to face the challenges of tomorrow with more confidence and less fear.

We are incredibly proud to continue our support for Dementia UK and help fund Admiral Nurses in the local community. Rogers and Norton is a Dementia Friendly company and a member of Dementia Action Alliance.

Major Success for Rogers and Norton Specialist Personal Injury Team

 Mark Hambling, Director in the Rogers & Norton Personal Injury Department has successfully concluded a substantial claim for damages for client following a serious accident at work.

The claim was complicated as our client was a self-employed individual who had been contracted to undertake work at the premises of a customer who he was subcontracting to. This was not therefore a normal employer liability claim but as a result of the Personal Injury team’s experience and detailed knowledge of both the law in negligence and the extent to which this is aided and informed by statutory obligations, we have been able to recover substantial damages for our client against the company which the client had been contracted to undertake the work for.

In 2016, our client had been requested to attend at the premises of a contractor to undertake work which was required to be done at about 4 to 5 metres from ground level. On previous occasions the contractor had provided a scaffold tower for similar work, but on this occasion did not do so, claiming that the tower was not available as it was being used elsewhere on site. As an alternative an inappropriate ladder was provided. Unfortunately the ladder was not suitable for the job and whilst the work was being undertaken, the ladder slipped and our client fell to the floor sustaining a head injury and significant orthopaedic injuries. The consequences of these injuries caused him to suffer significant loss of earning and a long term compromise on his ability to continue to work in his chosen field of employment

The specialist team, headed by Mark, were able to advise our client at an early stage that he had a claim with good prospects of success but equally address the issue that, an experienced contractor who probably knew with hindsight that using a ladder was inappropriate, the case was likely to succeed with some finding to reflect the fact that to a degree our client was the author of his own misfortune. This is known as contributory negligence.

As a result of our experience and knowledge we were able to analyse the issues of the case early upon instruction and having been able to put together a detailed and thorough letter of claim, present an early and favourable Part 36 offer to settle the liability issue with a small finding of contributory negligence. The Part 36 offer created significant cost risks and as a result of submitting the letter of claim and the Part 36 offer in close proximity, the insurers agreed the liability issue leaving the value of the claim then to be resolved.

Having obtained the appropriate evidence from Orthopaedic, Neurological and Dental experts, we documented the significant claim for damages for pain, suffering and loss of amenity and could also establish a substantial claim for past and future loss of earning to age 70, our clients intended retirement age and future treatment costs.

A very substantial six-figure award in damages was recovered plus the client’s costs and was agreed shortly before the Court proceedings needed to be commenced.

Commenting on the case, Mark Hambling, Director in the company’s Personal Injury Department indicated as follows:

I remember the client coming to see me some time after the injuries had been sustained as his initial thoughts had been that it may be difficult to pursue his claim as he was a self-employed subcontractor. I was able to swiftly explain to him how the law will assist him, in particular having regard to the previous conduct of the contractor, the fact that my client was working at height and the element of control the contractor had over the work being undertaken. It was clear at an early stage from my investigation that given my client’s experience and the facts of the case, that a finding of contributory negligence was likely and an early Part 36 offer was able to swiftly deal with that issue, protecting my client’s position as regards to costs. This was a case where the insurers for the Defendant were extremely sensible and engaged in sensible settlement negotiations, saving the costs of issuing proceedings whilst also ensuring that my client recovered full compensation, save for the small percentage deduction to reflect contributory negligence.

My client was delighted with the outcome and told me shortly after settlement that I provided an excellent and professional service achieving an award far in excess of his expectations when he first consulted Rogers & Norton. I was delighted to note that he would not hesitate instructing my colleagues or I in the future should he ever require further legal advice or assistance.

Mark Hambling is a Director of the company’s Personal Injury Department, a Senior Litigator with the Association of Personal Injury Lawyers and a specialist at handling high value and complicated personal injury claims. Mark will consider cases on a No Win No Fee Agreement and is happy to offer an initial discussion as regards any claim without obligation and cost. Mark can be contacted on mbh@rogers-norton.co.uk and by telephone on 01603 666001.

Recovering your debts

 In the current climate as a result of the continuing public health emergency you may be having difficulty recovering money owed to you for the completion of a job. This can very often have a huge impact on a company’s cash flow and ability to continue to trade successfully.

In the event that you are unable to agree a solution with the debtor, it can be helpful to discuss the problem with a solicitor who has expertise in debt recovery.

Often it is as simple as writing a letter to the person who owes you money – this will tell them that legal action may be taken if they don’t pay the outstanding debt. The impact of receiving a letter from a Solicitor can often produce the quick results people desire, many debts are paid on receipt with no further enforcement action required.

Talking with a solicitor can also help define your case in legal terms and help identify further action that may be available to you in the event of non-payment of the outstanding debt.

A letter before action (LBA) is a formal letter that requests the payment of a debt to you or your business and warns of the imminent issue of a court claim.

A LBA sets out what is owed to you or your business from a debtor and provides a set time period, usually 7 days, in which to pay – it is an essential requirement of the debt recovery process.

Before issuing any legal proceedings, a letter before action must be sent or costs may be forfeited.

If your debtor is a sole trader (or individual), from 1 October 2017 you must adhere to the Pre Action Protocol for Debt Claims and are no longer able to send a standard Letter Before Action.

The changes revolve around increasing the amount of information shared between parties, to a sufficient enough level that the parties can understand each other’s position and come to an agreement without the need for court involvement.

Whilst many Solicitors will make a charge for a letter before action there are many occasions where we will normally produce the initial letter free of charge.

Our highly experienced and knowledgeable debt recovery team understand the need to respond quickly and decisively to secure payment of outstanding debt. The ability to offer a fast turn-around is vital to help clients secure payment of monies owing to them.

We understand that unpaid invoices can affect your business cash flow. Delayed payments can create issues with uncertainty over when, or if, you will get paid. Our debt recovery services are trusted by companies both large and small to recover their business debts.

We can advise on terms and conditions and interest claims, together with the enforcement action. Fees are agreed at the outset and our service is tailored to each client’s individual or business needs.

In a recent claim, a Mrs G provided us with instructions on morning of 17 June to pursue monies due and owing to her, an e-mail together with letter before action was sent on the same day as receipt of instructions and by close of business on 19 June, monies to settle the outstanding debt had been received and the claim was then concluded. The client was extremely grateful for the very fast turnaround and to be in receipt of funds so quickly.

Notice periods for seeking possession of most residential tenancies in England increased to six months

 

Following on from our recent update in relation to the extension of the stay on possession proceedings to 20th September 2020, the Coronavirus Act 2020 has, as anticipated, now been amended so as to extend the amount of notice of possession proceedings to be given to residential tenants in most cases.

Background

When the Coronavirus Act 2020 (“the 2020 Act”) came into force on 26 March 2020, notice periods in relation to possession proceedings for certain residential tenancies were extended, in most cases to three months. This amendment applied to any notices being served during the “Relevant Period”, which began on 26 March 2020 and was due to end on 30 September 2020.

The 2020 Act also contained provision for the Secretary of State (or, in the case of Wales, the Welsh Ministers) to extend the Relevant Period and to alter the three month notice period by way of further regulations.

The provisions of the 2020 Act relating to residential tenancies are contained in Schedule 29.

Secretary of State for Housing, Communities and Local Government, Robert Jenrick, indicated that the notice periods were going to be extended in relation to England (having already been extended in relation to Wales) when he announced the recent extension to the stay in proceedings.

The New Regulations

The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (SI 2020/914) (“the Regulations”) came into force on 29th August 2020.

The Regulations apply in England only and make amendments to the 2020 Act. In particular, they:

• Extend the end of the Relevant Period until 31 March 2021 (regulation 1).
• Disapply certain parts of Schedule 29 to the 2020 Act so that where a landlord relies on particular grounds involving anti-social behaviour, the notice requirements have reverted to those in force before the 2020 Act was enacted (regulation 2).
• Increase the required notice periods for most residential possession notices, from three to six months, subject to several important exceptions (regulation 3).

Where the tenancy is a Rent Act 1977-protected or statutory tenancy, a secure, assured or assured shorthold tenancy (AST), the exceptions mean that the following notice periods apply:

• Four weeks, where at least six months’ rent is unpaid at the time the notice is served.
• Three months, where the grounds for eviction relate to the tenant’s immigration status or the tenancy is an assured tenancy or AST and possession is sought following the death of the former tenant.
• The notice period that applied before Schedule 29 to the 2020 Act came into force, where the grounds for eviction relate to anti-social behaviour, domestic violence or acquiring the tenancy as a result of a fraud.

For introductory and demoted tenancies, the exceptions set out a required notice period of four weeks in a case where the landlord seeks possession for reasons related to anti-social behaviour or domestic violence.

Amendments have been made to the prescribed form of notice under section 8 and section 21 of the Housing Act 1988 (“HA 1988”) and, for secure tenancies, to the notice of intention to seek possession. It is therefore important to ensure that you use the correct form of notice as failure to do so could result in the notice being deemed invalid.

For notices seeking possession under section 21 of the HA 1988, the period in which possession proceedings must be commenced under section 21(4D) has been extended from six to ten months from the date on which the notice was given.

Landlords who have already served a notice on their tenants before the Regulations came into force on 29th August 2020 will be relieved to hear that the amendments to the 2020 Act are not retrospective and so do not apply in relation to notices served before that date.

If you are a landlord or a tenant and would like further advice in relation to your legal rights please contact Elizabeth Gibson on 01603 675641 or at eg@rogers-norton.co.uk.

Further Extension to the Possession Stay

 In continuance of the government’s unprecedented package of measures to help ameliorate the economic effects of the Covid-19 pandemic, on 21st August 2020 the government announced that the possession stay, previously due to come to an end on 23rd August 2020, was to be extended to 20 September 2020.

The extension to stay has been effected by way of a further amendment to the Civil Procedure Rules 1998 (“the Rules”), which govern how civil cases in England and Wales (including possession claims) are dealt with by the Courts and the parties. The effect of the amendment is that all possession proceedings and all enforcement proceedings by way of writ or warrant of possession are stayed until 20th September 2020.

When a claim is stayed, this means that the Court cannot take any action in relation to it. For example, there will be no hearings and no orders, including possession orders, will be made (subject to a few exceptions set out in the Rules). Similarly, the stay on writs or warrants of possession means that where a possession order has already been made and has expired, bailiffs are unable to attend at properties to evict the tenants.

Concern has been expressed amongst landlords and members of the legal profession as to the resulting backlog of cases at County Courts across the country once the stay is lifted. In relation to this, Housing Secretary Robert Jenrick has stated that:

“When courts do resume eviction hearings they will carefully prioritise the most egregious cases, ensuring landlords are able to progress the most serious cases, such as those involving anti-social behaviour and other crimes, as well as where landlords have not received rent for over a year and would otherwise face unmanageable debts.”

It is not at this stage clear whether any further legislation or amendment to the Rules shall be introduced to effect this policy.

Interestingly, Robert Jenrick also announced, alongside the extension, that:

“The government also intends to give tenants greater protection from eviction over the winter by requiring landlords to provide tenants with 6 months’ notice in all bar those cases raising other serious issues such as those involving anti-social behaviour and domestic abuse perpetrators, until at least the end of March.”

It is not clear how or when this further measure will be introduced. The Coronavirus Act 2020, which came into force on 25th March 2020, has already had the effect of extending the notice period from 2 months to 3 months for Section 21 Notices and to 3 months (in most cases) for Section 8 Notices.

It remains to be seen what will happen to notices served since 25 March 2020 which provided 3 months’ notice as required by the amendments effected the Coronavirus Act 2020, whether the 6-month time limit for issuing proceedings from the date of serving a Section 21 Notices will be lifted or amended, and what grounds in schedule 2 of the Housing Act 1988 will be subject to the new notice period.

The past 5 months have shown that anything can change at very short notice, so landlords and tenants should stay alert to any future announcements.

The above changes do not mean that tenants are no longer required to pay rent, so if you are a tenant you should continue to pay the rent in accordance with your tenancy agreement. If you are unable to do so you should seek independent legal and/or financial advice and try to agree a payment plan with your landlord to minimise the arrears that build up and address those arrears once you are in a better financial position.

Similarly, if you are a landlord you should maintain contact with your tenant and if the rent is in arrears discuss with the tenant the cause of those arrears and how they might be addressed. It is also important to note that the extension of the stay does not prevent you from serving a Section 8 or 21 Notice or issuing proceedings. It just means that if you issue proceedings they will be stayed automatically. It also does not affect the validity of any possession order that has already been made; you will just need to wait until after the stay is lifted before you are able to have the tenants evicted.

If you are a landlord or a tenant and would like further advice please contact Elizabeth Gibson at eg@rogers-norton.co.uk or on 01603 675641.

Litigation Team Secures Dismissal of a Winding-Up Petition

The litigation team has recently secured the dismissal of a winding-up petition for almost £180,000 that had been issued against a company.

Under s. 122 of the Insolvency Act 1986 (“the Act”), a company may be wound up by the Court if, amongst other reasons, it is unable to pay its debts. s. 123 of the Act defines what is meant by “unable to pay its debts” and this definition includes where a company has been served with a Statutory Demand “requiring the company to pay the sum so due and the company has for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor”. This is what had happened in this case.

Under s. 125 of the Act, “on hearing a winding-up petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make an interim order, or any other order that it thinks fit”.

The debt claimed was disputed on substantial grounds and this dispute is currently ongoing. The company’s position was therefore that it was not appropriate to make a winding-up order at this stage as it was able to pay its debts; the debt had simply not been paid because the company disputed that it was due.

It was of particular importance in this case that the petition was dismissed rather than the case being adjourned, because the company was in the process of securing finance for a development project. The lender would not release the funds whilst there was an outstanding petition registered against the company and the matter needed to be dealt with urgently as there was a very limited time for which the lender was willing to keep the funds available for the company.

After negotiations with the creditor we were able to persuade them to agree to the dismissal of the petition at this stage. However, the lender required evidence that the petition had actually been dismissed by an order of the Court, their reasoning being that even if the parties had signed a consent order, the Court could for whatever reason decline to endorse it.

We made an application to the County Court dealing with the petition for the consent order that had been agreed to be approved. However, in light of the current pandemic Courts are working at limited capacity and prioritising cases that they consider to be urgent. The Court was therefore unable to confirm whether they would be in a position to seal the order before the lender’s deadline. We were therefore required to make an urgent application to the High Court for the case to be transferred up to that Court and for an order to be made in the terms that had been agreed. Counsel was instructed to proceed with this on a Friday afternoon, the following Monday we were advised that the order had been approved by an Insolvency and Companies Court Judge and we had the sealed order the following day. This enabled the company to proceed with its funding.

We are able to advise on insolvency procedures for both companies and individuals, whether you are a creditor looking to recover monies owed to you or a debtor who is being pursued. Please contact Peter Hastings or myself (Elizabeth Gibson) in the Dispute Resolution team at Rogers & Norton for further information.

Litigation Team Success for Irish Company against UK Border Force

The Rogers & Norton HMRC and UK Border Force Litigation team were delighted to help with the restoration of goods worth more than one hundred thousand pounds for a company exporting goods via the UK to Eastern Europe.

The items were seized shortly after Christmas and created significant consequences for the company at a challenging time of year to find a solution to the problems they had with HMRC. The goods were destined for companies in Eastern Europe and unless restored, meant that our client would be in breach of contract should it not fulfil the order, with a risk to the company’s future We secured the restoration on making a detailed submission at Review.

Our specialist team that deal with HM Revenue and Customs (HMRC) claims, in particular relating to the detention of goods, seizure of goods, understood the need to react quickly to get the goods restored, as the effect on cash flow together with the potential impact on jobs, would be problematic for any company.

We are currently pursuing a claim for damages for the unlawful seizure of goods, with the damages exceeding £1,000,000 and also challenging numerous seizures, assessments of Duty and VAT and requests for security payments. We have a wide experience in dealing with detentions, stoppages and the seizure of goods by UK Border Force.

The team deals with the worldwide importation of goods to the UK, including the huge market from China, Europe, America and Mexico. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow.

We are experienced in Magistrates Court proceedings; First Tier Tax Tribunal; Court of Appeal; European Convention on Human Rights; Administrative Court and Injunctions and can assist with Tax, Coding and Duty and Vat claims and issues.

Busy construction team

It’s been a busy few months for the construction team despite Lockdown.

We have yet another example of how vitally important the use of a Pay Less notice is in the building industry, having recovered a substantial sum of money for a contractor and also succeeding for a sub-contractor as the main contractor had failed to issue a valid Pay Less Notice pursuant to Section 111 Housing Grants, Construction and Regeneration Act 1996 due to one not being served.

We are currently acting on the recovering of a final contract on a 4 year project with a build cost of £12,500,000 and on a dispute over a defective roof for a shopping complex. In addition, we are dealing with various claims for breaches of contract in relation to design and naturally advising on delays arising from Covid 19 and Force Majeure and Frustration issues.

Our skilled and experienced Litigation team have a wide depth of knowledge relating to the construction industry – if you are experiencing issues with enforcing a contract or any construction and building claims, you can contact us on 01603 675639 or at ph@rogers-norton.co.uk.

We are also experience in drafting and advising on construction contracts including JCT contracts, and also Adjudication, Arbitration, Mediation and Expert Determination.

Success for Rogers and Norton’s Contentious Probate Team

22nd Jun 2020

It is sad that a dispute can arise following the death of a loved one. We are handling increasing levels of litigation in this area.

A recent case saw our clients, brothers of the deceased, subjected to a claim for the entire estate by a party who alleged that she was a long term partner and that she and the deceased planned to marry. It was her case that she was left without reasonable financial provision from what was a sizeable estate.

On this occasion the contentious probate team were able to defeat the claim under The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act“), and having scrutinised the evidence including bank records and social media postings.

Rogers & Norton’s contentious probate team have the knowledge and expertise to handle disputes of all levels and size. They combine the skills and talents of the private client team with the experience of the litigation team, to ensure the client achieves the best expert advice and outcome.

Covid 19: Injunction Granted on the basis of the Corporate Governance and Insolvency Bill

On 2 June 2020 in the case of Re: A Company (injunction to restrain presentation of petition [2020] EWHC 1406 (Ch), the High Court granted an injunction to restrain the presentation of a winding up petition on the basis of prospective changes to the Insolvency Act 1986 to be made by the Corporate Insolvency and Governance Bill (“the Bill”).

Background

The Bill was published by the Government on 20 May 2020. If passed in its current form, the Bill will, amongst other changes to the insolvency regime, enact short-term restrictions on the presentation of debt-based winding up petitions against companies. These restrictions are in response to the current coronavirus pandemic and are intended to bring some respite for companies currently struggling to pay their debts.

The restrictions on presenting debt-based winding up petitions provide that:

• No winding-up petitions are to be presented on or after 27 April 2020 if they rely upon statutory demands served between 1 March 2020 and 30 June 2020 (or one month after the Bill comes into force, whichever is the later).
• No winding-up petitions are to be presented between 27 April 2020 and 30 June 2020 (or one month after the Bill comes into force, whichever is the later) unless the creditor has reasonable grounds for believing that:
• coronavirus has not had a financial effect on the company; or
• that the company would have become unable to pay its debts even if coronavirus had not had a financial effect on the company.
• The Court may order the winding-up of a company only if it is satisfied that the relevant ground relied upon would have applied even if coronavirus had not had a financial effect on the company.

The Bill is expected to become law by the end of this month, although in its current form the restrictions on presenting winding-up petitions are retrospective, to be regarded as coming into force on 27^th April 2020.

The Bill also contains provisions for voiding winding-up orders made before it comes into force but which would not have been made had it been in force at the time.

Facts of the Case

The application was an urgent application by a company, “D”, to restrain the presentation of a winding up petition. D was a high street retailer and was a tenant of a retail unit owned by its landlord, “C”.

C had filed a winding-up petition in relation to unpaid rent and service charges which had recently fallen due under the lease. However, C did not pay the Court fee, so the petition had not been “presented”. On 15 April 2020, C had served a statutory demand in relation to these arrears.

In correspondence between the parties’ Solicitors, C had refused to give an undertaking not to present the petition. D therefore applied for an injunction to restrain the presentation of the petition on various grounds. The Court invited counsel for D to concentrate on a single ground, namely the significance of the Bill, and this was the sole ground on which the order was made.

Outcome

The Court granted the injunction sought by D, taking into account the intended policy behind the Bill. It also observed that even if presented, the petition was highly unlikely to be heard before the Bill is enacted. Accordingly, at any future hearing of the petition, the Court would have to apply the tests set out above.

The Court was provided with evidence as to the effects the coronavirus had had on the finances of D and concluded that there was a strong case that coronavirus had had a financial effect on the company and that the facts on which the petition was based would not have arisen if coronavirus had not had such an effect.

Comment

Although the Bill has not yet formally become law, the above case illustrates that the Courts will likely still apply its provisions when faced with a petition presented on or after 27^th April 2020 or an application to restrain the presentation of such a petition. This will therefore be a strong disincentive for creditors to present winding-up petitions before the restrictions contained in the Bill are lifted. The voiding of any winding-up order made between 27^th April 2020 and the coming into force of the Bill further strengthens this disincentive.

The wording of the Bill suggests that the onus will be on a creditor to show that coronavirus has not had a financial effect on a company or that the facts giving rise to the petition would have arisen in any event. However, should you find yourself in the position of having to seek an injunction to restrain the presentation of a winding-up petition or to oppose a petition that has been presented, it is important that you obtain as much evidence as possible to demonstrate the effect that coronavirus has had on your company and that the circumstances resulting in the presentation or threatened presentation of the petition would not have arisen if coronavirus had not had a financial effect on the company.

It is also notable that the Court must be satisfied that “coronavirus” did not have a financial effect on the company. This term is potentially very broad; it does not appear to be limited to the national lockdown and could therefore include more far-reaching effects of the virus, such as global supply issues.

At Rogers & Norton we have wide experience of representing both creditors and debtors in insolvency proceedings. If you are being pursued for a debt or are a creditor looking to recover money owing to you please contact the Dispute Resolution department to discuss your options further.