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.

Commercial Landlord remedies during Covid-19

Many landlords are trying to find ways to work with their tenants during this time by offering concessions to reduce the risk of vacant properties and tenant insolvency. However where this is not an option, either due to the persistent default of an agreement or a tenant’s is refusing to communicate with their landlord the Government has issued guidance under the Coronavirus Act 2020 as to what a commercial landlord can and cannot do.

Forfeiture/Re-entry/Possession:

Forfeiture for commercial tenants has been suspended until at least 30 June 2020.

Commercial landlords can however seek a right of re-entry or forfeiture for other breaches of a lease.

Any existing possession orders are extended and the tenant does not need to give up possession before 30 June 2020 (this could be extended)

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Winding-up Petitions:

Any applications made from 27 April 2020 will be reviewed by the court and if the tenant is unable to pay due to Covid-19 then the petition will not go any further, if the tenant is unable to pay for another reason the petition will continue but will be postponed until a later date not yet set.

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Commercial Rent Arrears Recovery

This is still available but has been changed and the tenant must now owe at least 90 days arrears, this is intended to allow tenants flexibility with their finances during this time.

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Statutory Demands

No statutory demand can be served on a tenants until at least 30 June 2020, however demands for payment can still be made against Guarantors and potentially the original or previous tenants as this is not prohibited under the act.

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Rent Deposits

Depending upon the terms of the rent deposit, the landlord may be able to draw on this to receive payment of rent.

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The aim of the above measures is to encourage landlords and tenants to communicate and come up with a suitable resolution where they are able to do so.

If you are a commercial landlord or a tenant facing issues, please contact us for advice.

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Contacts

Commercial Property

Richard Etheridge 01603 675627

Bruce Faulkner 01603 675608

Litigation and Insolvency

Peter Hastings 01603 675639

Debt Recovery

Maria Taylor 01603 675613

The Abused

Working with victims of abuse has always been a fulfilling part of my job as a solicitor. Being able to help victims of abuse escape their abuser and set them on the path to empowered recovery is in itself empowering. I recently had the pleasure of working with a victim of abuse who appeared in the Channel 5 documentary ‘The Abused,’ as we sought to protect her upon her ex-husband’s release from prison.

Many of us still don’t fully recognise patterns of abuse and men especially can fall victim to abuse that they can’t identify. Below is a list of types of abusive behaviours and if you answer yes to some or all of them then you might be in an abusive relationship.

Emotional abuse

• Does your partner belittle or put you down? Often they can suggest to you and other that they are ‘joking’ but it isn’t an isolated joke it’s continual.
• Do they blame you for their actions or for arguments?
• Downplaying their actions suggesting you are ‘ridiculous,’ ‘dramatic,’ ‘mental.’
• Isolate you from family and friends. Perhaps prioritise their family and friends over yours, suggest that your family or friends are ‘boring,’ ‘don’t like them,’ or that your priority should be ‘them’ and not ‘running around after others’.
• Requiring constant attention and punishing you if you are unable to provide it.
• Accuse you or flirting, having affairs, looking for attention from others.
• Controlling money – determining how money is spent, spending money that causes debt or asking you to obtain credit on their behalf or loan them money.
• Threaten to kill or harm themselves.
• Refusing to accept your boundaries or the word ‘no’, harassing you until you do things their way.
• Destroy your things, stand over you or invade your personal space.

Physical abuse

• Slapping, hitting or punching you
• Pushing or shoving you
• Biting or kicking you
• Burn you
• Choke or hold you down
• Throw things at you

Sexual abuse

• Touch you in a way you don’t want to be touched or pressure you into sexual acts
• Make continual or unreasonable demands for sex and dominate you during sex in a way that hurts you

Forcing your partner to have sex when they don’t want to is rape. It isn’t persistence paying off.

How to escape

• In an emergency always call 999
• Contact Leeway 0300 5610 077 or Refuge 0808 2000 247 they may be able to offer you a safe haven
• Call us or email us and ask for advice 01603 666001 or matrimonial@rogers-norton.co.uk. We can help with domestic abuse injunctions, orders with regards to children, divorce and financial orders. We have payment plans and discounted rates to help you. We have helped hundreds of people escape abusive relationships in a way and at a pace that is right for them. We are here to listen, help and support you.

Furlough for Employers

Putting employees on furlough means they are required to cease all work for at least 3 weeks this includes working from home. They are kept on payroll and will receive at least 80% of their usual gross salary up to a cap of £2,500 a month under the Coronavirus Job Retention Scheme (the Scheme). You can choose to pay the remaining 20%.

Who does it cover?

• The Scheme only covers employees registered on the PAYE payroll on or before 19 March 2020, it includes those who work part time and zero hour contracts.
• Directors can be furloughed and receive 80% of their salary as long as they are registered on the PAYE payroll, whilst they are restricted from undertaking work for the company they are allowed to carry out any statutory duties.
• If an employee is current maternity, paternity or adoption leave they cannot be furloughed until that leave has ended.

Calculating 80%

• For those employees that are full time or part time you will take their actual salary before tax as of 28 February 2020 to calculate what their 80% payment should be.
• For any employee on a zero hours or flexible hours contract if they have been with you for a full 12 months you can claim the higher of either: the same month’s earnings from the previous year or average monthly earnings from the 2019-20 tax year. If they have been with you for less than 12 months you can claim for their average monthly earnings since they started with you.
• If your employees’ salaries are usually commission based, you can claim 80% of compulsory commission, it will however be based on commission from past sales.
• It is important to note that any employees who are also shareholders will only receive 80% of their salary that is paid through PAYE, it does not include any dividends that would be taken to supplement their salary.
• ACAS and HMRC have issued guidance that employees should be paid 100% for any holiday taken during furlough, HMRC have said however that this is under review and could change.

How do I claim?

• The government portal is now live and the Scheme has been extended to run until June 30 2020 and could be extended again.
• Salaries for furloughed staff can be backdated to 1^st March 2020. Employers must pay the 80% and then claim it back using the portal.
• The Scheme is a grant not a loan and will cover the associated Employer’s National Insurance and minimum employer’s automatic enrolment pension.

Choosing Employees

• When choosing which employees to furlough, ensure any decisions are fair and non-discriminatory.
• Discuss with each employee proposed to be furloughed what this means for them e.g. they cannot undertake any work for you , it will be for a minimum of 3 weeks and whether you are going to pay the Scheme covered 80% or more of their salary.
• If an employee does not consent to be furloughed you can choose to make that employee redundant.
• Once an employee has agreed to be furloughed you must keep a written record of that agreement for 5 years, we are able to assist with this, and can provide you with an agreement suitable for you.

Important points to note:

• Furloughed employees can seek temporary employment elsewhere during their furlough period, check your employment contracts to see if your permission is required and make your employees aware of this.
• Holiday entitlement will continue to accrue during any furlough period, up 4 weeks of unused leave can be carried into the next 2 years.
• You must keep a written record of every employee’s agreement to be furloughed and we can assist with this.
• Being furloughed can be an upsetting time for some employees, so keep in regular contact with them and send out regular updates.

We are here for you during this challenging time, we understand the pressures a lot of businesses and employers are currently facing, if you need assistance on any business or employment matter such as a furlough agreement please contact:

Richard Etheridge on 01603 675627 or rwje@rogers-norton.co.uk.

Or in the alternative

Phil Kerridge on 01603 675671 or pnk@rogers-norton.co.uk.