Continued 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 goods (Nitrous Oxide) worth more than three hundred thousand Euros for a company importing from Europe to be sold to legitimate users within the catering sector.

The seizure and significant consequences for the company at a challenging time of year to find a solution to the problems they had with HMRC. Unless restored, our client would not have recovered the monies it paid for the goods and its customers would have had claims for breach of contract. The future of our client was at risk. 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. It is illegal to supply or import for personal use, unless it can be proved to be destined for use in cream chargers for use in the catering industry. It was the UKBF’s case that the Goods imported were liable to forfeiture under the Customs and Excise Management Act 1979 (‘CEMA’), because they were in breach of a prohibition imposed by s.12 PSA 2016. They were also liable to be forfeited under the Psychoactive Substances Act 2016 (‘PSA’), as they could be consumed by any individual for their psychoactive effects; and the importation was not for an exempted activity. Our client’s evidence proved that the goods were for lawful use, and combined with our compelling arguments on financial hardship, the goods were restored.

We are currently pursuing other claims for damages against HMRC and UKBF, ranging from £50.000 to £6 million. Additionally we are challenging VAT and Duty Assessments from £30,000 to £1million.

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.

Lessons to Learn in Construction

Our construction team successfully defended an Adjudication brought against its contractor client for £350,000 by a subcontractor. The case was largely successful due to establishing through expert forensic evidence that a quotation for a fixed fee had not been received by email. In other cases in the past few months, issues ranged from the validity of Pay Less Notices and also payment terms.

This lack of clarity has led to adjudications which could have been avoided.

The Housing Grants Construction and Regeneration Act 1996 (“the Act”) brought in to force a clear procedure for procuring payment and objecting payment should the contract in place between the parties not provide its own mechanism. .

The procedure is as follows:

• The subcontractor applies for payment to the main contractor stating how much is due.
• 7 days later is the ‘Due Date’. This is not the date the money is paid but rather a legal term to start the next stages of the payment process and acts as a reference point in time for other processes. Importantly it is the point in time for which the dates of the Payment Notice, Pay Less Notice and Final Date for Payment are based on.
• 5 days after the Due Date the main contractor must issue a Payment Notice or a Pay Less Notice stating how much they intend to pay and showing the calculation that forms that valuation.
• 14 Days after the Payment Notice or Pay Less Notice is the Final Date for Payment. If the parties agree the value due the payment is made or; if they cannot agree the value the parties will refer the dispute to an Adjudicator.

The appointment of adjudicators and provisions for Pay Less Notices are governed by The Scheme for Construction Contracts (“the Scheme”)

On the face of it this process seems fairly simple but yet is the subject of many adjudications.

Two recent adjudications even concerned the same invoice.

The first issue was the subcontractor having a rather shambolic way of invoicing our Client. There were a number of administrative errors with the invoice and it was rescinded and re-issued with revised numbers. Furthermore two invoices were later sent with the same invoice number but for different amounts and it had been sent to our Client by two separate companies.

The subcontractor also maintained that the invoice was physically handed to our Client some months earlier but had no proof. Our client’s evidence was accepted.

The issue here is timing. The issuing of the Invoice is key to setting the timeframes for the rest of the payment procedure following the Act. If it is not known or agreed when the Application for Payment occurs then there is the potential for lengthy arguments to ensue regarding whether a Pay Less Notice has been issued in time or when the Final Date for the Payment is.

Following the Adjudicator finding in our client’s favour the subcontractor referred the issue to another Adjudication, this time submitting that the Payment Application was served on a different date.

In another Adjudication, we argued that a valid Pay Less Notice had been issued within the correct time frame. The consequences of issuing a Pay Less Notice out of time is that the main contractor is liable for whatever figure is on the Application for Payment. We argued that a valid Application for Payment had not been received until a certain date and as such relied on an email served on time as our Pay Less Notice.

If it is ambiguous as to when a payment application has been issued it will naturally be ambiguous as to if a Pay Less Notice has been served on time, it is in that ambiguity that costly and time consuming arguments thrive

The requirements under the Scheme for a Pay Less Notice to be valid are as follows:

• It must clearly state what value the main contractor believes is the correct amount due for the work carried out; and
• How they have calculated that figure.

There is no further guidance on format, the document does not have to state that it is a Pay Less Notice. It is easy to see how parties can attempt to rely on all sorts of documents as Pay Less Notices. Once again, these can lead to drawn out tedious arguments in adjudications as to what constitutes a valid Pay Less Notice.

Whenever drafting a Pay Less Notice, it is drafted with absolute clarity, clearly setting out the amount the issuing party intend to pay and how that figure was reached. The more detailed the calculation the better. Whilst is not a requirement under the Scheme it is good practice to mark the document as a Pay Less Notice, heading the email as Pay Less Notice and if sent under a cover letter, state clearly that a Pay Less Notice is being issued.

We are regularly advising on Construction Law and drafting the relevant documents such as Pay Less Notices, Referral Notices and other Adjudication documents. With the government’s current drive to ‘Build Back Better’ and focus on these types of projects we can only see more on the horizon. From drafting clear documents to avoid disputes and drafting the necessary documents as a result of disputes, we have knowledge and expertise in all aspects of Construction Law and offer well informed advice to all our construction industry clients.

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.