Wait…have I been offered a Part 36 Offer?

Before we delve into the recent case of Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387 (TCC)….

What is a Part 36 offer?

Parties to a court proceeding will usually try their best to mitigate adverse costs consequences by making a well-thought settlement offer which complies with the Part 36 of the Civil Procedure Rules (“Part 36”). Such offers are commonly made on a ‘without prejudice, save as to costs basis’. Hence, such negotiations are usually privy to parties and the court will only be informed of such Part 36 offers when the matter of costs is being considered. Part 36 offers can be made by either party. Usually if parties agree to settle through a Part 36 offer, the claim is resolved save as to the matter on costs. However, if the offer is rejected, parties proceed to court and there may be adverse cost consequences that might arise from this.

Is your offer a valid Part 36 offer and does principal of estoppel play a role?

In the recent case of Essex v UBB, the high court held that an intended Part 36 offer is viewed as a valid offer. The judge went on to clarified that the principal of estoppel does not apply in the construction of a Part 36 offer. The judge also took into consideration the conduct of the Defendant throughout the proceeding when dealing with the issues in respect of costs and other matters which will not be covered in today’s article. We strongly recommend that you read the full judgment.

Background

Essex County Council (the “Claimant”) was successful at trial and was awarded damages approximately £9 million against UBB Waste (Essex) Limited (the “Defendant”). Following such success, the court proceeded to cost hearing and went on to consider the Part 36 offer made by the Claimant via email on the 7^th March 2019. The offer was sent at 4:54pm and therefore, under the Civil Procedural Rule (“CPR”), it was deemed to have been served on the following day. Although, the offer stated that it was valid “within 21 days of the date of this letter”, the Defendant argued that the Claimant’s offer was invalid because it did not comply with the Part 36 rule. The reason was because it had been deemed served on the 8^th March 2019 (the following day) as it was served passed 4:30pm. Therefore, the Claimant had failed to meet the requisite of 21-day relevant period for the Part 36 offer to be a valid one.

The Claimant argued that the Defendant was estopped from doing so (i.e. prevented from arguing that the Part 36 was invalid) as they have explicitly written to the Defendant requesting the Defendant to notify them in any event of the Part 36 offer was not compliant with Part 36 offer on its receipt.

Decision

Was it a valid Part 36 offer?

Pepperall J gave considerable guidance on construing Part 36 offers. He even revisited a formal case law Dutton v Minards [2015] EWCA Civ 984 that states the basic principal of “validate if possible”. The judge also went on to apply the reasoning in C v D by stating ‘’any ambiguity in an offer purporting to be a Part 36 offer should be construed so far as reasonable possible as complying with Part 36”. This simply means where there is a clear intention to make a Part 36 offer, it should be construed that the Part 36 offer will be a valid one. The judge considered that any non-compliance be considered de minimis (i.e. trifle error).

Principal of Estoppel

Principal of estoppel does not apply in the construction of Part 36. It is the responsibility of the offeror and his lawyer to ensure that the Part 36 offer was complaint with the law. Thus, preventing any reliance on the principal of estoppel.

Comments

This decision serves as a reminder that judges these days are departing from the “technical challenge” nature within the litigation environment. It highly encourages parties to consider settling out of court and would likely to uphold an intended Part 36 offer. We strongly encourage parties to use the designated form N242A to make Part 36 offers. This is to avoid the above scenario having an opponent arguing that the Part 36 offer was invalid.

As you can see from the case above, a valid Part 36 offer provides for a massive difference in costs consequence at the end of the cost hearing. The Claimant was awarded the following: indemnity costs; interest at the maximum 10% over base rate on both damages and costs; and an additional amount of £75,000.

Furthermore, please also bear in mind that the principal of estoppel clearly does not apply within the ambit of the construction of a Part 36 offer no matter how well it was worded. For instance, in this case, the Claimant could not rely on principal of estoppel even though the particular offer had included the following:

‘Should the Defendant require any clarification as to the terms of this Offer, or should the Defendant consider this Offer to be in any way defective or noncompliant with Part 36 of the CPR, please notify us by return and in any event within seven days of the date of this letter. Any failure to do so will be relied on by the Claimant to preclude the Defendant from attempting to avoid the adverse costs consequences of Part 36.’

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Eviction Ban Now Over, Igniting Fresh Worry For Renters – But What Options Are Available?

The ban on evictions, which gave renting tenants some much needed breathing room during the lockdown period, has now been lifted meaning proceedings will be going to court for the first time since March.

In England, Wales and Scotland, landlords must give six months’ notice of eviction, which has increased from two months before COVID-19 hit. Local authorities have said that eviction notices should only be issued unless deemed completely unavoidable.

What is eviction?

Eviction is the legal process a landlord will use when they want a tenant to leave their property.

If the landlord wishes to regain possession of a property either at the end of a fixed-term tenancy agreement, or during a tenancy with no fixed end date, they will usually issue a Section 21 notice. This Section 21 notice is sometimes referred to as a “no-fault eviction”, due to the landlord not having to give a reason for their decision to evict. It is the most common type of eviction.

On the other hand, where a tenant breaks the terms of their rental agreement, by not paying rent, being anti-social or causing damage to the property, the landlord can issue a Section 8 eviction notice. Landlords must specify which tenancy terms have been broken. If the tenants do not leave by the specified date, the landlord can apply to the court for a possession order.

A backlog of cases

Over the six month period covered by the ban a large backlog of cases has built up, which has been expected. The National Residential Landlord Association (NRLA) has stated private landlords would “work with their tenants to sustain tenancies wherever possible”, but ultimately defended the restart of evictions.

In terms of the courts, priority will be given to “serious cases”. This may involve tenants committing anti-social behaviour or domestic abuse within the properties.

The six month rule

As mentioned above, renters will have six months to leave the property after their landlord has issued a notice of eviction – as long as the notice was served after August 29.

There are some exceptions to this rule, where renters could face eviction within four weeks or less. Such issues such as fraudulent behaviour, rent arears of up to six months and violent conduct are all examples of such exceptions.

If the landlord issued the eviction notice before 26 March 2020 the time frame shortens to two months for the tenants to leave, and it is three months if the eviction notice was served between 26 March 2020 and 28 August 2020.

Advice to tenants

Firstly, if you are worried about eviction and want advice our team of lawyers are here to help, likewise if you are a landlord and want to know what rights you have in reclaiming your property.

From the tenants’ point of view, it is worth considering the following options:

You are entitled to your notice period – Landlords are obliged to give tenants notice before they can apply to court for a possession order. In most cases, this notice must now be at least six months in England, Wales and Scotland.

Get legal advice before giving up your home voluntarily even if eviction seems unavoidable. It is illegal for your landlord to:
harass you
lock you out of your home, even temporarily
make you leave without notice or a court order.

If you are struggling to pay rent, you should speak to your landlord and organise a repayment plan to pay off arrears if possible.

Gather evidence – it is good to have receipts of rent paid and documented communications with your landlord, such as emails, voice mails or text messages.

If you are on Universal Credit and unable to pay rent you may be able to get a discretionary housing payment from your local council.

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Why the need to consider making an application for pre-action disclosure?

Receipt of documents before legal action can be vital to understand the strength of a prospective claimant’s position, how to ultimately plead its case and to explore the likelihood of whether a settlement can be reached to ultimately reduce the litigation costs. It is also intended to assist prospective claimants who need the disclosure to determine whether to litigate at all.

Although a request could be made to the relevant party for the documents in question, it may be unlikely to result in voluntary surrender of the material sought, including for example because of confidentiality obligations owed or an unwillingness to incur costs associated with such disclosure. It is also of course a certain degree of an invasion of privacy.

Disclosure generally takes place after proceedings have commenced and the parties have filed directions questionnaires, this usually occurs during the case management stage. However, in some instances you may consider it necessary to obtain disclosure prior to the commencement of proceedings, eg, where:

there is a risk that a prospective defendant will destroy documents or materials before proceedings start

documents are required under pre-action protocols

a third party has documents which may be relevant to the dispute (a principle enunciated from the well-known case of Norwich Pharmacal Co. v Commissioners of Customs and Excise, generally known as Norwich Pharmacal orders)

you suspect fraudulent activity. Note: the court will only order pre-action disclosure in ‘exceptional’ cases where allegations of fraud are involved

Key authorities including Black v Sumitomo and Bermuda International, the court takes a two-stage approach when deciding whether to make such an order under Civil Procedure Rule 31.16(3):

(1) does it have jurisdiction i.e. the four conditions under CPR 31.16(3)(a), CPR 31.16(3)(b), CPR 31.16(3)(c) and CPR 31.16(3)(d) have been met and, if so;

(2) should it exercise its discretion to make the order.

The courts’ power to order disclosure before proceedings have started arises out of Section 33(2) of the Senior Courts Act 1981 or Section 52 of the County Courts Act 1984.

Court’s jurisdiction

The conditions and relevant tests to be met are:

CPR 31.16(3)(a) & (b) — The relevant test is that it is likely that the applicant and respondent will be parties to the proceedings if proceedings are issued. An applicant must also demonstrate that it has an arguable case.

Where there is a possible limitation issue with a prospective claim, there is no particular rule of law or practice as to how a court should deal with the question of limitation in an application for pre-action disclosure (Loches Capital Ltd v Goldman Sachs at para [88]). The court adopted the approach that where a claim is time-barred with no prospect of overcoming the limitation issue, this would be ‘a powerful, if not conclusive reason’ not to order pre-action disclosure. Where a potential limitation argument is not so strong that it is bound to succeed, it is unlikely to be a basis for the court to refuse an application for pre-action disclosure.

CPR 31.16(3)(c) provides that an order for pre-action disclosure may only be made where, if proceedings had started, the documents or classes of documents sought from the respondent would fall within the requirements of standard disclosure under CPR 31.6. It limits the scope of documents covered by pre-action disclosure to those documents which fall within the standard disclosure obligations of CPR 31.6. The court has excluded background documents or ‘train of enquiry’ documents from the scope of this section.

CPR 31.16(3)(d) provides that an order for pre-action disclosure may only be made where disclosure before proceedings is desirable to (i) dispose fairly of the anticipated proceedings, (ii) assist the dispute to be resolved without proceedings, or (iii) save costs.

There are several factors to consider, namely the extent of the documents sought; the necessity of the disclosure to establish whether the applicant has a claim; whether the possible claims are speculative in nature, whether the applicant already possesses sufficient material to strategize and plead a claim; whether the early disclosure will result in significant saving in costs; whether the disclosure sought would be extraordinarily burdensome; whether the parties are engaged in such hostility that it is unlikely any disclosure would assist the dispute from being resolved without proceedings; the extent to which information is known to only one of the parties ; and whether the disclosure of quantum documents are desirable to assist the dispute to be resolved without proceedings and to save costs.

Court’s discretion

Even if the jurisdictional threshold is met, pre-action disclosure will only be granted if the court then exercises its discretion in favour of the applicant. In exercising its discretion, the court will look at the facts of each case.

Several factors the court may take into account when exercising its discretion include the nature of the loss complained of; the clarity of the issues raised; the nature of the documents requested; the nature of the applicable pre-action protocol and the stage reached in that protocol process; the availability of the documents from other sources and the opportunity for making the claim without the disclosure being given pre-action; what special need for urgency there is in obtaining the documents at this pre-action stage.

Practical tip:

Pre-action disclosure is the exception and it is generally not easy to obtain an order. Applicant should produce a narrow and tightly drawn list of documents. The more determinative the documents are of the dispute in issues, the easier it will be for the court to grant the request.

Parties should try to agree before the hearing that some of the conditions are satisfied, this will save costs as it will limit the contentious issues before the court.

Lastly, consider whether you should redact any commercially sensitive information when responding to an application or complying with an order.

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Sky-high divorce rates part of the Coronavirus impact

The coronavirus pandemic has been difficult for everyone, but for marriages that were already in rough water the lockdown and restrictions brought in by the disease have been the final straw for many couples. Being on top of each other for a long period of time may have magnified issues that had been there all along, with increased money worries and stress, it is a recipe for marital breakdown.

Now that lockdown has been eased for a while, people are moving forwards with their divorce plans, looking into options, and seeking legal advice. Citizens Advice have revealed that divorce guidance searches online have steadily risen since April after a drop in visits when lockdown started, and are up by 25% compared to this time last year.

In response to this, we have prepared this article to give some useful information to anyone thinking about or going through a divorce at the moment.

Consider the timing

Clearly there are situations in which waiting is not an option. For example if there is any domestic violence going on in the relationship, or one partner is acting in a controlling way, the best thing to do is seek help immediately and get the divorce done with the help of legal advisors.

Usually it is common for couples to wait for certain events to pass before starting divorce proceedings, such as Christmas, birthdays or other big events. This is more the case for couples who have children, to avoid upsetting the little ones, but even if that is not the case some people will choose to wait to avoid disrupting other family members such as parents.

Ultimately, it is up to the couple to decide what is best but in our opinion it is not advisable to wait too long, as an unhappy marriage is not good for the couple’s mental health or that of the people closest to them. This is especially true if the lockdown period was tough, the best thing to do may be to move on and put the difficult period behind you.

Before you begin proceedings…

Some helpful things to help prepare yourself are as followed:

If you have children, discuss with your partner how and when you will tell them about your divorce. Different aged children will react differently but it is best if both parents are present at the time and the information is presented gently but clearly. It is important not to try to win favour of the children, but rather be balanced and calm without trying to blame the separation on one another. This will only cause confusion.

Talk to your support network, there is no point in suffering in silence. Speak with friends and family about what you are going through, or if you know someone who has been through a divorce themselves, ask for any suggestions they may have to make things easier for yourself and your family. There may be something you have overlooked, or something they wish they had done but did not which they can let you in on.

Have a look at properties that could be suitable to move into after the divorce. It is best to be prepared and getting an early idea of what is available is a smart move.

Start thinking about your own financial position and weigh up your options in terms of how you might split assets with your partner.

Avoid the courts if possible

Here at Lisa’s Law we always want what is best for our clients, and we believe that going to court can lead some unnecessary costs and stress for couples and their families. It is important to remember you will not get financial aid for legal services unless you are divorcing an abusive partner, in the eyes of the law. There are some things that can be agreed on to avoid going to court.

Children:

You and your ex-partner can usually avoid going to court hearings if you agree on:

where the children will live

how much time they will spend with each parent

how you will financially support your children

You can use a solicitor if you want to make your agreement legally binding and can agree on child maintenance at the same time or separately.

Here at Lisa’s Law, we have a vast amount of experience in this area and our team of lawyers will give you thorough guidance towards a desirable solution.

Splitting assets

We cover various options regarding the splitting of assets in our article Splitting assets in a divorce – How does it work?, but here are some key points to remember:

Here are some of the main factors that will be taken into account by us as your solicitors, and by the Court:

When the asset was purchased or accumulated.

Whether the asset considered has been treated by the couple as part of their matrimonial assets

Income and earning capacity, property and other financial resources that each spouse has or is likely to have in the near future.

The financial needs and responsibilities which each spouse has or is likely to have in the foreseeable future.

The ages of each spouse.

The duration of the marriage.

Any physical or mental disability of either spouse.

Roles in the marriage or civil partnership, for example if one person was the main earner while the other acted as primary care giver.

Splitting property

Firstly, you can decide to simply sell the home and both of you move out. The money that both get from this could be put towards buying yourselves a new home each, if you can afford to do this. This is usually the easiest option.

Another simple option, if it can be agreed upon, is one person buying the other out of the property. This can be a good route if one person really wants to stay in the same location, while the other wants to seek pastures new.

Thirdly, it is possible transfer part of the value of the property from one partner to the other as part of the financial settlement. The partner who gave up a share of their ownership rights would keep a stake or ‘interest’ in the home, receiving a percentage of its value when the property is sold.

Have questions? We are here for you!

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COVID Secure Search Order Issued For Disgruntled Gas Company

Covid 19 has disrupted people’s life to a great extent. The government has issued strict social distancing guidance and threatens that any one in breach of it will face serious penalties. Court rooms and legal proceedings are no exception to this.

In such context, many hearings have become virtual. The Ministry of Justice issued its guidance Working safely during COVID-19: enforcement agents (bailiffs) on 21^st August 2020 to instruct how bailiffs should work safely when enforcing judgments. Then how should interim orders like search orders be carried out without breaching the social distance rules? This issue has recently been put forward to High Court judge Mr Justice Fordham.

The case, Calor Gas Ltd v Chorley Bottle Gas Ltd and others [2020] EWHC 2426 (QB), boils down to the fact that Calor Gas suspected Chorley Bottle Gas Ltd of refilling containers incorrectly. They believed Chorley Bottle Gas were simply filling up gas canisters in a back garden without taking proper steps to ensure safety or the level of quality that they had expected and been promised. As part of their business agreement, Chorley Bottle Gas are obliged to collect empty gas containers from Calor Gas, refill them safely and in line with official guidelines, then return them.

To further be in line with COVID regulations the hearing itself was conducted via a BT conference call, something that has been common for the majority of 2020.

What is a search order?

A search order is a form of court order that requires a respondent to allow the applicant’s solicitors or representatives to enter the respondent’s premises and to search for and remove all items included within the order.

Generally, the purpose of a search order is to collect and preserve evidence or property which is (or may be) the subject of an action, or point of interest within an on-going case.

How was this search order made COVID secure?

Firstly, due to the coronavirus pandemic and the complications that come with it, Calor Gas sought a restricted search order that was limited to the business section of the property (the living quarters were off limits) and the exterior areas of the premises. These are the areas in which the alleged breaches were suspected to be carried out.

Mr Justice Fordham laid out the following rules which, only if they were followed directly, would allow the search order to go ahead:

all members of the search party to have a temperature test before entering the premises

nobody present inside the premises can be going through the shielding process

social distancing measures must be taken (not being within 1m of each other where possible)

hand sanitiser, gloves and masks must be worn by all who enter the premises

What do we think?

We agree that safety must always be a top priority and that during the coronavirus pandemic the appropriate precautions must be taken during a search order, or any other type of legal proceeding. We approve of the choice to hold the hearing via a BT conference call and respect the judges’ decision to have the search order only take place within the parameters of strict rules and guidelines.

Search orders can be an integral part of a case, so we appreciate the need for them in certain situations, but this does not mean there are not risks associated with them. Our advice would be to anyone who has a search order launched against them is to seek out legal advice to ensure appropriate measures will be taken. If necessary, the party concerned can apply for the search order to be varied or with certain conditions attached, especially with COVID-19 still very much a factor in life.

That being said, it is not realistic to completely rely on the pandemic as a deterrent for a search order to take place. These orders are serious and must be treated as such – which further heightens the need for legal advice if one is to take place.

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Do Not Ignore Restrictive Covenants!

Written by Felix Otouke.

The word covenant derives its root from Latin word ‘convenire’. Meaning “come together”, agree, unite or be suitable.

A restrictive covenant is a promise that prohibits us from doing something. Therefore, in the context of an owner or occupier of a piece of land, it is a promise not to do something on his or her land. It is a restriction on the use of the land. Restrictive covenants do not only bind on those who agreed to them but they may run with the land. They bind on future owners or occupier of the land. A restrictive covenant is only valid if it gives some benefit to an adjoining piece of land. The intention may be to keep the character of the neighbourhood residential.

Some examples of restrictive covenants are; restriction not to build or erect any new structure whatsoever on the land; restriction to build only one dwelling on the land or restriction of access over the land.

It is important to bear in mind that there are risks or consequences when we choose to ignore restrictive covenants. It may lead to breach of the restrictive covenant. Hence, ensue Court proceedings should the beneficiary of the restrictive covenant object to the breach.

If you are an owner or occupier of a piece of land with restrictive covenants and you want to carry out development that are likely to breach the restrictive covenants do not just ignore the restrictive covenants rather seek specialist legal advice. Thus, our conveyancing team can assist you with specialist advice should you need such assistance.

A case study

In the decision of the Court of Appeal in Alexander Devine Children’s Cancer Trust v Millgate Development Ltd and others [2018] EWCA CIV 2679 (Millgate and others), developers were reminded of the risks of ignoring restrictive covenants in the course of carrying out development.

The brief facts of the case are that in 2012 the Trust was gifted a portion of agricultural land by Mr Smith for development of hospice for children to live out their remaining days in peace. In 2013, Millgate acquired some land for developing a 75 unit residential site with a planning required to provide 13 off-site affordable housing units. Millgate designated land neighbouring that of the Trust’s has a restrictive covenants agreed in the 1970’s which stated “no building structure or other erection of whatsoever nature shall be built, erected or placed on Millgate’s land.” In 2014, works began. When Mr Smith became aware of the development, he raised objection on behalf of the Trust. He asked the work to stop in recognition of the restrictive covenant. However, Millgate acting on legal advice continued with the work. Millgate applied for discharge of the covenant to the land Tribunal. The Trust opposed Millgate’s application based on the Trust’s land ownership and the harm directly caused to their intended hospice.

The Tribunal found in favour of Millgate in the public interest argument, on the basis of the economic and public benefit provided and the Trust compensated for nuisance.

The Trust appealed the decision. On 28^th November 2018, The Court of Appeal heard the case and was very critical of Millgate’s behaviour. The Court found in favour of the Trust on grounds that the Tribunal had erred in law, public interest to ensure and uphold the rule of law and breach of property right.

Hence, the takeaway lesson is, it is important not to just ignore restrictive covenants. Seek specialist legal advice in order to assist you identify the risks, weigh the risks and how to resolve them.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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Employment Law Focus: In the eyes of the law, dismissal based on hearsay is unacceptable – even in serious circumstances!

It is reasonable for employers to want their employees to have clean criminal records for a variety of reasons, one major reason being the reputation of the business or institution they are responsible for. However, in the eyes of the law any dismissal made in response to an employee being at risk of having committed a crime is seen as unfair. Just because the possibility of the crime is there, does not give the employer the right to sack the accused before the proper processes have been completed. The employer must arrive at a decision based on the facts, applying the balance of probabilities, as to whether the misconduct really occurred.

Some things employers should consider when debating dismissal

Rather than heading straight for an automatic dismissal, employers should consider some of the following options:

whether they as the employer should warn, and consult with, the employee about the reason for considering dismissal

arrange a meeting between the employer and employee (and a representative if the employee chooses), before the decision to dismiss is taken. This gives the employee the chance to explain themselves and to express their views

assess whether there are any alternatives to outright dismissal

if the dismissal takes place, consider whether the employee should be given the right to appeal (with any such appeal being heard, if possible, by a manager who was not involved at the dismissal stage).

An extreme case study

To give an example of this predicament, we can turn to a case study from real life. This case is called K v L (UKEATS/0014/18/JW). The facts of the case are as follows:

In this case, Claimant K is a teacher. He was found to have indecent images of children on his computer, the images had been put together using a programme similar to Photoshop (known as pseudo-images).

K had worked at the same school for 20 years and previously had no blemishes on his record. After telling his employers about the case against him, he was suspended from work.

K explained that his son and his son’s friends also had access to the computer and it could have been them. He was taken to court, but the case against him was dropped. Still, due to concerns surrounding the reputation of the school, K was dismissed, even though the school’s Head of Service held that there was insufficient material upon which to conclude that the claimant was responsible for downloading the images.

K went on to claim unfair dismissal, but the employment tribunal rejected the claimant’s claim and held that the dismissal was fair in the circumstances.

K went on to the Employment Appeal Tribunal (EAT) on the grounds that the school had not given him the notice that he was at risk of being dismissed on the grounds of reputational damage and that he could not be dismissed on the basis that he might have committed the offence. The employer had to be satisfied on the balance of probabilities that he had committed the offence.

What did the EAT decide?

The tribunal believes that K’s dismissal was not handled properly, as they were not clear on the exact grounds they were dismissing K. There was insufficient evidence to prove that K had committed the offence. On the balance of probability, it was unlawful to dismiss him on this ground.

Reputational concerns can be treated as separate to the original case; however, in that case, the employer school must give notice to K of the ground upon which dismissal may be sought. The notice must be expressed clearly. K should be able to understand the allegation the school makes.

In these circumstances, the dismissal was unfair in that it relied on a ground of dismissal that was absent from the complaint and for which there was insufficient notice.

The decision went back to the Head of Services decision that there was not enough evidence to prove K was responsible for the indecent images, but decided to dismiss him anyway. This was seen as unfair.

Clearly, reputational damage was an important concern for the school given the nature of the charge and their responsibility towards children, but the intensity of the reputational damage lessened when it was indicated that there was no plan to prosecute K.

The full case can be read here.

What do we think?

This case is indeed of an extreme nature due to the abhorrent nature of the accusation, and the setting of a school. It goes to show that in law there are always many intertwined components that must be explored for the best decision to be made. Of course, everyone must have a fair chance to contest any decision made against them – but on the other hand employers have a responsibility to protect the reputation of their establishments for the good of all the other employees. However, in such situation, any dismissal will have to follow the correct procedure and on the correct ground. Otherwise, it is likely to be held as unlawful and unfair.

Have questions? We are here for you!

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Huge changes to immigration rules set to pave way for EEA students coming to the UK!

There have been some major changes to the UK’s immigration rules today, including an introduction of the Student and Child Student rules for the Points Based Immigration System which will replace the Tier 4 (General) and Tier 4 (Child) routes. There is also altered rules for English Language provision and some new guidance on the financial options available to students and the Academic Technology Approval Scheme.

Student and Child Student Routes

In a statement related to these new routes the Home Office have said:

“International students play a key part in the government’s agenda to unleash the UK’s potential now that we have left the EU. They make important contributions economically, academically, and financially.”

In keeping with the statement, some big changes are being brought in which we hope will make it easier for more international students to come to the UK and flourish.

The Student and Child Student routes will replace the Tier 4 (General) and Tier 4 (Child) routes in the Immigration Rules and there are some key differences to take note of. It is also important to remember that all references to Students or Child Students in the new rules must be read as including people who currently hold leave as Tier 4 Migrants.

Same treatment for all:

EEA nationals will be required to meet the same requirements to study within the UK as non-EEA nationals and will need to apply under the Student rules.

More chance to switch permission/extend leave to remain:

There will be more leeway when it comes to switching permissions and switching between routes within the Points Based Immigration System. Under the old Tier 4 routes, students and children had to meet specific sponsorship requirements to apply for further leave in country. Under the Student and Child Student routes, applicants will be able to apply for further permission to stay in the UK to study under Student Routes, unless they last held leave as a visitor; a short-term student; or were granted outside the immigration rules. It is also worth to note that if the applicant has last held leave as a Parent of a Child Student, a Seasonal Worker, or a Domestic Worker in a Private Household, will not be allowed to submit an in-country application.

No time limit on studying

The eight-year time limit on studying courses at postgraduate level has been removed. There is no longer a limit on the time that an individual can spend studying postgraduate courses.

Privileges after one year

Applicants who apply for permission to stay in the UK will not be required to provide evidence of maintenance funds when they have spent longer than one year in the UK on their current visa.

Dealing with language in a simplified way

New simplified rules are introduced surrounding English language proficiency, but currently these new rules only apply to the Student and Child Student routes. It is likely that the changes will apply to several routes in the coming months.

Once is enough

Applicants only need to prove the required level of English language to the Home Office once. This is a positive and logical step and will save a lot of time, both for the student and the Home Office workers.

Qualifications = evidence

Applicants who have gained GCSE/A Level or Scottish Highers in English while at school in the UK can rely on this to prove their English language ability.

Maintenance and finance updates

More trust where it is due

There will no longer be a requirement that applicants who have met the maintenance requirement on their current route have to meet it again if they have been supporting themselves in the UK for more than a year.

More options

Applicants will be able to rely on electronic bank statements as part of their evidence, and applicants will be permitted to show they meet maintenance requirements by relying on a wider range of accounts. Funds may be held in any form of personal bank or building society account (including current, deposit, savings, pension from which the funds can be withdrawn or investment account) provided the account allows the funds to be accessed immediately.

Exemption from the Academic Technology Approval Scheme

The Academic Technology Approval Scheme (ATAS) requires certain international students who are subject to UK immigration control, who are intending to study at postgraduate level in certain academic subjects, usually of the scientific variety. The complete list can be found from page 21 of this document.

As part of the changes to the immigration rules, the list of countries students can come from who are exempt from having to complete the ATAS has been extended. The current list is as followed:

Australia
Austria
Belgium
Bulgaria
Canada
Croatia
Republic of Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Iceland
Ireland
Italy
Japan
Latvia
Liechtenstein
Lithuania
Luxembourg
Malta
Netherlands
New Zealand
Norway
Poland
Portugal
Romania
Singapore
Slovakia
Slovenia
South Korea
Spain
Sweden
Switzerland
United States of America

What do we think about these changes?

As we said at the start of this article, we enjoy seeing global talent come to the UK to study and eventually work and settle here. It is great for the country in many ways, culturally and financially. These changes do seem mainly positive, and should have little or no effect on students currently in the UK or who were planning to apply under the routes.

However for EEA students, this means that they will no longer be able to enter the UK on the basis of Free Movement and will have to apply for a visa prior to entering the UK. For sponsoring institutions, for example UK universities, their recruitment practices will also need to be amended to incorporate EEA students into their processes.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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Digital Identity in the UK – What does the future hold?

Six new principles have been developed to boost secure use of digital identity and strengthen digital identity policy in the UK.

Mark Warman, Digital Infrastructure Minister has said:

“We want to make it easier for people to prove their identity securely online, so transactions can become even quicker – it has the potential to add billions to our economy.”

What are the six new principles?

According to the Government guidance, available here, the new principles are as followed:

The six principles are:

1) Privacy – When personal data is accessed people will have confidence that there are measures in place to ensure their confidentiality and privacy; for instance, a supermarket checking a shopper’s age, a lawyer overseeing the sale of a house or someone applying to take out a loan.

2) Transparency – When an individual’s identity data is accessed when using digital identity products they must be able to understand by who, why and when; for example, being able to see how your bank uses your data through digital identity solutions.

3) Inclusivity – People who want or need a digital identity should be able to obtain one; for example, not having documentation such as a passport or driving licence should not be a barrier to not having a digital identity.

4) Interoperability – Setting technical and operating standards for use across the UK’s economy to enable international and domestic interoperability.

5) Proportionality – User needs and other considerations such as privacy and security will be balanced so digital identity can be used with confidence across the economy.

6) Good governance – Digital identity standards will be linked to government policy and law. Any future regulation will be clear, coherent and align with the government’s wider strategic approach to digital regulation. For example, firms verifying your identity will need to comply with laws around how they access and store data.

Why is this happening?

We are living in a digital age, and digitisation is only going to become more widespread as time goes on. More and more, people are having to prove who they are when attempting to use services, whether it is purchasing an age-restricted item or booking a hotel – we have all experienced it. Now, the government plans to update existing laws on identity checking to enable digital identity to be used as widely as possible, and the six steps listed above will be a formulate part of that.

Also, people have their identity stolen frequently, especially when it comes to the digital realm, in fact digital fraud has risen by 32% over the last 5 years. As part of this plan, the government will develop legislation for protection relating to digital identity, add much needed clarity on rights for individuals, and offer support is something were to go wrong. There will also be consultations on the privacy and technical standards for administering and processing secure digital identities.

It could also be said that a final push towards this decision was the fact that 2.6 million people have made a claim for the Self-Employment Income Support Scheme online since its launch on 13 May 2020, and 1.4 million of those applicants had no prior digital identity credentials and needing to pass through HMRC’s identity verification service. Moving into the future, the government are keen for everyone in the UK to have an easily accessible digital identity to streamline these types of processes.

What do we think?

As we have said before, we are not afraid of stepping into the digital age – in fact we welcome it. The main thing is that people’s data is used fairly and transparently. We have no issue with digital identity as long as it is used with the persons consent. If it helps speed up government processes, we are all for it.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

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lisaslaw@web

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Competition and Markets Authority has 4 major property developers in its crosshairs!

Four of the UK’s largest housing developers could face legal action after the Competition and Markets Authority (CMA) revealed it has initiated action over the way leasehold homes were sold.

The developers in question are:

Barratt Developments

Countryside Properties

Persimmon Homes

Taylor Wimpey

The CMA claims that it has unearthed evidence of potentially unfair terms concerning ground rents in leasehold contracts and potential mis-selling. It is concerned that leasehold homeowners may have been unfairly treated by developers after being given misleading information.

What are they investigating?

According to the Governments report, available here, the CMA are looking into the following:

Mis-selling

Ground rents: developers failing to explain clearly exactly what ground rent is, whether it increases over time, when increases will occur and by how much.

Availability of freehold: people being misled about the availability of freehold properties. For example, the CMA found evidence that some people were told properties on an estate would only be sold as leasehold homes, when they were in fact later sold as freeholds to other buyers.

Cost of the freehold: people being misled about the cost of converting their leasehold to freehold ownership. When buying their home, the CMA found evidence that some people were told the freehold would cost only a small sum, but later down the line the price had increased by thousands of pounds with little to no warning.

Unfair sales tactics: developers using unfair sales tactics – such as unnecessarily short deadlines to complete purchases – to secure a deal, meaning people could feel pressured and rushed into buying properties that they may not have purchased had they been given more time.

Unfair contract terms – ground rents

The use of unfair contract terms that mean homeowners have to pay escalating ground rents, which in some cases can double every 10 years. This increase is built into contracts, meaning people can also struggle to sell their homes and find themselves trapped.

Issues with Retail Price Index (RPI)

Ground rent increases based on the Retail Price Index (RPI) are also a point of interest for CMA. RPI is used to measure price inflation and the CMA is concerned about the fairness of escalating ground rent according to RPI. They suspect that the potential inflation is not always effectively explained by developers when exploring RPI-based ground rent with prospective homeowners. This can lead to people paying a lot more than they originally expected, which is clearly wrong if they have been assured this would not be the case.

Written warnings

The CMA have written to Barratt, Countryside, Persimmon, and Taylor Wimpey outlining its concerns and requiring information.

Possible outcomes of this action include legal commitments from the developers to change the way they conduct business, or if it comes to it, the CMA could take firms to court. All four housing developers are said to have confirmed they will co-operate with the investigation.

As well as the enforcement action, the CMA is also sending letters to a number of other developers, encouraging them to review their practices to make sure they are treating consumers fairly and complying with the law.

Andrea Coscelli, CMA Chief Executive, said:

“It is unacceptable for housing developers to mislead or take advantage of homebuyers. That’s why we’ve launched today’s enforcement action.

Everyone involved in selling leasehold homes should take note: if our investigation demonstrates that there has been mis-selling or unfair contract terms, these will not be tolerated.”

People wishing to provide further evidence regarding the companies named can get in touch via email: leasehold@cma.gov.uk. The CMA is interested in hearing information on either leasehold houses and/or flats, referred to above as leasehold homes.

For further information people can contact the CMA press office via press@cma.gov.uk or on 020 3738 6460.

What do we think?

Deceiving and intentionally misleading others should never be tolerated. We pride ourselves on being totally upfront with our clients when it comes to pricing, information and anything else, so we expect other businesses to act the same way.

Getting on the property ladder is one of the hardest things to achieve in life for most people, so to trick anyone in any way, or to give information that will only turn out to be untrue in the end is unforgivable. Of course, this is an on-going investigation so we will not jump to any conclusions, but we hope that at the end of it some more positive policies might be put in place and more genuine support be given to potential homeowners.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download.

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

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