Employment Tribunal Claims

Dave Briggs August 11, 2017

The current regime of fees charged for bringing Employment Tribunal claims was ruled unlawful by the Supreme Court on 26 July 2017. The Supreme Court’s reasoning is that the rule of law means people must have access to the courts unless Parliament has clearly said otherwise.

The Employment Tribunal fee scheme which Chris Grayling, then Lord Chancellor, imposed in July 2013 (with charges of up to £1200.00 for an unfair dismissal or discrimination claim) is therefore unlawful and has been since it was introduced. Prior to that there were no fees attached to issuing a claim in the tribunal.

For several days after the judgment, online claims were not possible while the system was updated, however it is up and running again and claims can now be made online free of charge.

The Supreme Court’s decision means that Employment Tribunal fees paid in the past should be repaid and we await the government’s announcement of how the refunds scheme will work. Successful challenger Unison anticipates that some £27 million has been paid in fees to date. It is not as simple as just repaying all the Claimants who have made a claim since July 2013 as often the tribunal ordered the employer to reimburse the fee to the Claimant (and of course there are numerous examples of where the employer failed to pay). It will get really complicated where fees were reflected in an amount paid by an employer to settle the claim.

There then is the question of whether a late claim (outside the strict time limits) brought now would be allowed to go ahead if the reason the Claimant hadn’t proceeded at the time was because the fees payable to the tribunal were too prohibitive – and how the Claimant would evidence that. And if the Employment Tribunal will not allow a late claim, could a Claimant sue the government for having imposed unlawful regulations which stopped him from claiming in time?

There may still be charges for bringing a claim in the Employment Tribunals in the future as the Supreme Court’s ruling is that the 2013 fee regime is unlawful not that any fees will be unlawful. So watch this space – but don’t hold your breath – for new regulations which bring in a more affordable and proportionate system which will not fetter access to justice but, with the headache of working out what that would be, Brexit and the risk of a further challenge to any new fees regime, I doubt that will be any time soon.

Employment Status – The Good Work Report (Taylor Report)

Jon Loney August 8, 2017

The UK has the fifth most efficient labour market in the world.  This is largely because of its flexibility; however, while flexibility may facilitate high rates of employment, it can lead to abuse if employment law does not keep up with changes in working practices.

Good Work ReportIn the UK, the unemployment rate is currently 4.7%, the lowest since 1975 and, at 74.8%, the employment rate is the highest since records began.  This is all good. Yet, if all the flexibility is provided by the workers, is it fair?

The Good Work Report thinks not and, in the main, we agree: there should be a balance in the power between employers and workers for a sustainable healthy economy.

The Good Work Report, published on 11 July 2017, runs to 115 pages and makes numerous recommendations.  However, we limit this blog to the question of employment status.  Currently we have employees, workers and the genuinely self-employed.

Workers have the following rights:

  • Protection against unlawful deduction from wages
  • Right to national minimum wage
  • Paid annual leave
  • Rest breaks
  • Limit on the maximum working week
  • Protection for making a protected disclosure (whistleblowing)
  • Protection from discrimination

In addition to the above rights, employees also have the following rights:

  • Various family friendly rights (including parental, maternity, paternity and shared parental leave, the right to request flexible working and unpaid time off for dependents).
  • Right not to be unfairly dismissed
  • Right to written particulars of employment
  • Right to statutory minimum notice periods
  • Right to a statutory redundancy payment

The genuinely self-employed have none of the above rights (apart from, in some cases, protection from discrimination).

The problem is that, in many cases, it is far from clear whether somebody who is carrying out work is either an employee, a worker or genuinely self-employed.

The Good Work Report recommends that there should continue to be three categories of person carrying out work – employees, dependent contractors (effectively workers) and independent contractors (the genuinely self-employed).  The Good Work Report recommends that the tests should become much clearer so that “if it looks and feels like employment, it should have the status and protection of employment”.

One of the recommendations is that employers should not be able to downgrade what looks like a worker to an independent contractor by having a right of substitution.  As the Report points out, an individual can have almost every aspect of their work controlled by a business, from rates of pay to disciplinary action, and still not be considered a worker if a genuine right to substitution exists.

The recommendation is that the Government should ensure that the absence of a requirement to perform work personally is not an automatic barrier to accessing basic employment rights. They also believe that the principle of control should be of greater importance when determining dependent contractor status.  Control should not be limited as it is now to essentially supervision of day to day activities:  if the reality is that the provider of the work practically controls the person doing it then they would at least be a worker.

We don’t think that changing the label of a worker to that of dependent contractor really adds very much to anything; however, we do believe that there would be great benefits to both employers and people who work if the distinctions between a worker and an employee and a worker and the genuinely self-employed were easily understood.

However, in our view, while it is very simple to say simplify it, it is going to be incredibly difficult to draft legislation that achieves this laudable objective.

Jon Loney is a specialist Employment Solicitor and Managing Partner at Nash & Co in Plymouth

Nash & Co takes Will Aid total past £7,000

Katie Gribbins June 15, 2017

We are delighted to announce that we’ve raised over £1,700 for charity as a result of taking part in the annual Will Aid campaign.

Our team raised the money by giving up their time to write wills for local people in return for a donation to charity.  This is the sixth year we’ve taken part in the scheme and we have raised a fantastic total of £7,448 for charity over that time.

Laura Shaw, a solicitor at the firm, said: “Our firm has once again embraced Will Aid with great enthusiasm.  We are able to provide a high level of service to the local community and clients are always very happy to donate to charity. Making a will means loved ones you leave behind know that you have given your affairs some thought.”

Will Aid campaign director Peter de Vena Franks said: “One in three people die in the UK without making a will, potentially leaving their family and friends nothing but confusion and costly legal battles.

“Will Aid is a wonderful opportunity to not just make a will, but do it with the help of a professional with the added bonus of helping nine charities in the UK at the same time.”

The scheme supports nine of the UK’s best-loved charities – ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF (Scotland) and Trocaire (N. Ireland).

Will Aid has raised more than £17 million since it launched more than 25 years ago.

G-Dig are the champions! (Nash Golf 2017)

Fiona Beckman May 5, 2017

The 7th Annual Nash & Co Golf Day has raised £2145 for St Luke’s Hospice.


Nash golf day 2017This year’s event took place on Friday 21st April on the rather challenging Nicklaus Signature Golf Course at St Mellion International Resort.  With a total of 60 golfers taking part on the day, a wide range of local businesses represented, and the weather exactly as ordered, the event was all set for success.

It was a tough day out on the course, with hats and ice-cold drinks playing a critical role for many teams. The eventual winners were G-Dig, who claimed a second plaque on the Nash Golf Day shield with a score of 77 points.  In second place, Natwest were hot on their heels with 76 points, followed closely by Thomas Westcott with 74.

The longest drive competition was won by Mark Champion (playing for Nash & Co), nearest the pin was won by Rich Rabin (playing for the Duke of Cornwall team) and nearest the pin in 2 by Giles Hutchings (PKF Francis Clark).

Nash & Co partners and staff were on hand to meet and greet the guests throughout the day and a post match meal allowed the competitors the chance to mingle and network. After the obligatory raffle, with prizes kindly donated by local businesses including St Mellion International Resort, United Building Systems, Modbury Massage Therapy, Hindhead Property and 5D Solutions (SW) Ltd.

Winning Team G-Dig

Winning Team G-Dig

David Moon, Golf Manager at St Mellion, conducted the prize giving presentation with St Luke’s corporate fundraiser Nicola Keen taking the opportunity to tell everyone a little more about the fantastic work that St Luke’s carries out.

Thank you to everyone who help make the day a great success!

With thanks to Our Hole Sponsors:


Print Copy Scan



Raffle prizes donated by:

Hindhead Property


United Building Systems

St Mellion INternational Resort

Modbury Massage Therapy






5D Solutions (SW) Ltd



A little (legal) advice goes a long way

Julian Summerhayes April 11, 2017

“It is not that I’m so smart. But I stay with the questions much longer.”

― Albert Einstein

lightbulb question adviceYes, it’s hackneyed, but in legal circles — commercial law or otherwise — a little advice goes a long way.

Indeed, for as long as I can remember, I’ve made it clear to every potential client that I’m only a phone call away.

Scrap those apocryphal stories about lawyers who charge you for thinking about your matter: these days, I’m as much inclined to tell clients where to look for the necessary advice, as I am to be formally instructed. Now, I know that might sound odd, but the truth is that when I talk about ‘adding value’ to a business, I’m deadly serious. There’s no point doing something that the putative client can do for themselves, or where all I’m doing is regurgitating something that’s available at the click of a mouse. Don’t misunderstand me. Where I think we need to be involved by dint of complexity, risk or knowledge, I’ll say so, but long gone are the days where we are the only ones imbued with the knowledge and expertise to undertake legal work.

If there’s a caveat to this tilt towards Do-It-Yourself law, it’s simply to make the point that you need to be wary of what you find on the world wide web. It’s not just that the law may be obsolete, it’s more likely the case that it doesn’t fit your business needs, and trying to adopt one thing for something entirely different is a bit like one of the Ugly Sisters in Cinderella trying to squeeze their foot into the glass slipper. In our case, though, by dint of our breadth of experience and expertise, we’re able to offer something bespoke and, more importantly, something that works. Yes, that’s it: we ensure that, save for the obvious toing and froing with the other side (when drafting an agreement), what we produce will work, at least for the foreseeable future.

So, if there’s a message to impart, it’s simply this: don’t be afraid to pick up a phone to us to make sure you’re headed in the right direction. We can’t guarantee to have the answer to every question, but we’re fairly sure (at least) we’ll be able to help rather than hinder what it is you wish to do.

Julian Summerhayes is a solicitor in the corporate team at Nash & Co, and can be contacted on 01752 664444

Has the business plan had its day?

Julian Summerhayes March 30, 2017

“Nothing happens until something moves.” ― Albert Einstein

Forgive the snake oil headline, but ask yourself, how many companies have a business plan and follow it?

Business PlanWhat’s a business plan?

Previously, it was a way of plotting the future. I say ‘plot’ because nothing’s certain, and, at best, it’s a road map of how the owners expected — fingers crossed — the business to look. But, at the risk of stating the obvious, save for the obligatory change (everything) regime and the regnant “Let’s grow this sucker”, only a set number of objectives could be followed; the rest are at the mercy of the market et al.

And I suppose that’s the point. It’s great to have something, but to call it a plan — particularly an all-seeing, all-knowing one — is a misnomer. At best, it’s a wish list.

Does that mean said business plans should be or have been consigned to the scrapheap? Yes…and no. Yes, in the sense that everything moves too fast to plot; and, no, in the sense that it’s better to have something, even if it feels a bit vague and light on detail.

However, all this misses the point; namely, whether you opt for a business plan or something that lives in your head, whilst you run the business without the mantra “Ready. Fire. Aim” (cf. the usual malaise that’s predicated on ready…ready…ready), then, frankly, no amount of planning will get you anywhere. In fact, we can debate the point all you like, but strategy’s always trumped by execution. I mean you can have the best damn strategy in the world — it always looks amazing on paper — but without an engaged workforce who are willing to roll up their sleeves and Just Do It, then you’ll forever remain in stasis, i.e. going backwards.

Julian Summerhayes is a solicitor in the corporate team at Nash & Co, and can be contacted on 01752 664444

Swimming in a sea of Brexit

Julian Summerhayes March 28, 2017

Hardly a day goes by without a mention of the dreaded ‘B’ word — “For heaven’s sake, don’t they know we’ve got a business to run!”

sea of brexit

And yes, I’ve heard it mentioned that it will be a bonanza for lawyers, but we’re in the same position as you when it comes to keeping the lights on.

The thing is, with any future-gazing, it’s nigh on impossible to predict what will happen (on our exit from Europe). Sure, it keeps the pundits in work and makes for endless dinner-table conversation but, the truth is, we don’t know what lies around the corner any more than you.

However, there are a few general points to make about Brexit:

  • Despite the rhetoric, withdrawal is going to be lengthy, complex and an uncertain process. Ipso facto, when you’ve 28 of anything it’s never going to be a smooth process.
  • Some of the EU members will be more inclined to do a deal; others might do everything in their power to prevent one being done (no names at this stage!).
  • There will be many detailed technical issues to consider. Not all of them will be legal in scope but given we’ve been part of the EU for the best part of 40 years, you can’t expect any divorce to be easy.
  • As a business, you’re already adept at dealing with change. This will be no different, save that it will affect a significantly bigger portion of your business at one time; namely, trade, employment practices, regulation, passporting regimes and other mutual forms of recognition or qualifications and standards.
  • You will also need to consider free movement of capital, data protection rules, competition and consumer policy, research and development, energy policy, environmental laws, agriculture and fisheries, and regional aid.
  • Of less direct impact, but also of importance, will be the implications for criminal and civil judicial co-operation and foreign and defence policy.

It may be too early to start planning the detail for your business, but, from a legal perspective, all you can do is continue to abide by the current legal regime and if and when things change, it will require not just the obligatory change of terms, but the necessary training, implementation and strategic planning.

And we’ll be here to help you every step of the way.

For more information, please contact Austin Blackburn, Tim Jackman, or another member of the corporate team on 01752 664444



The Case of the Will that Turned Up…

Michael Shiers March 23, 2017

Following on from the recent Supreme Court decision dealing with claims by estranged adult children, another interesting case has come out of the High Court this week.

rediscovered Will

Miss D lived with Mr H for over 40 years in Mr H’s house.  They never married and Mr H died in 2008.  No Will could be found and so, under the rules of intestacy, Miss D as a cohabitee received nothing.  Mr H’s estate passed to a number of other family members.  Unsurprisingly Miss D made an application to the Court for an order that the intestacy rules did not make reasonable financial provision for her.  Those proceedings were sensibly compromised on the basis that Miss D could have a life interest in the property and a lump sum of £25,000 for its maintenance.

This enabled Miss D to live in the house for the rest of her life which she did, until she died in 2014.

This is where the case gets interesting because, after Miss D died, the family found a Will for Mr H in Redisvwhich he had actually left the house to Miss D and not only that but had also left her a life interest in another property.

The recent case was therefore brought by the beneficiaries under Miss D’s Will.  They argued that the proceeds of sale of the house previously owned by Mr H should come to them as the whole application to the court which had been settled in 2011 was unnecessary because there was actually a Will which had left the property to Miss D.

The Judge decided that essentially the Settlement Agreement which had been formed in 2011 was void because the parties were working on a mistaken basis that there was no Will.  This was a fundamental mistake which undermined the Settlement Agreement.  The proceeds from the sale of the property were therefore distributed to the Appellants in the case in accordance with Miss D’s Will.

The case underlines the importance of making a Will and making sure that someone knows you have made it!  Investing a few hundred pounds to have a professionally drawn Will can save thousands of pounds in the long run.

Mike Shiers is a Solicitor and Partner (Non-LLP Member) at Nash & Co in Plymouth

The Life of a Commercial Lawyer

Julian Summerhayes March 22, 2017

“I dream my painting and I paint my dream.” ― Vincent Van Gogh

You don’t need me to tell you that change hangs heavy in the air. Indeed, as someone remarked at a recent business breakfast, “…change is more rapid now than at any time in my career”.

From your perspective, qua business owner, manager or investor, that probably adds as much interest as it does concern: just when you’ve think you’ve got things sorted, the landscape suddenly changes, and you feel like you’re starting all over again.

commercial lawyer

But what of law or, rather, the practice of commercial law?

Well, let’s define what we mean, given its broad import.

Commercial law is defined by Wikipedia as:

“…business law or corporate law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. It is often considered to be a branch of civil law and deals with issues of both private law and public law.”

So, it’s business focused? Yes, but it can arise in a family context, particularly with partnerships and sole traders who are looking to expand. It often, or nearly always, has a sales component, and, as I often say to my clients, it’s a little bit like insurance; namely, it’s as much about risk prevention as it is exploitation – think intellectual property (IP) rights, e.g. trade marks, patents and copyright.

It’s heavy sometimes on the law – particularly (previously) where EU rights were at stake – and can be hard to grasp where the concept or idea that’s under discussion is novel.  But, in many ways, common sense informs the landscape. In other words, you can see what you want to achieve or need to do, but you’re not sure how far you need to go, unless compelled by the other side, to instruct lawyers to do something that may already exist by dint of your day to day conduct.

Of course, it goes without saying that the Web has opened up many more avenues for information gathering, and the reason I say that isn’t to call in aid the usual hackneyed lines, “A little knowledge is a dangerous thing”, but merely to point out that what might have been obscure or out of sight previously – think of all the extant legislation, e.g. The Sale of Goods Act 1979 – is now easily accessible.

What then is the role of the commercial lawyer? In short, to bring clarity and focus to a complex commercial world and add value by advising and, where necessary, preparing an agreement (or several) that gives certainty in growing and protecting the business. Sorry, that’s a bit verbose; but, in essence, it’s a ‘peace of mind’ purchase as well as necessity, i.e. where you’re compelled by the other side to do something.
Take something quite mundane but very important, namely trading terms. One of the things we constantly see is the non-introduction of terms into trading – this applies to multi-million pound companies as much to sole traders – leaving one side at risk of: (a) not being paid timeously; and (b) losing out if, heaven forbid, the parties cannot resolve an issue. Even where terms exist – and they’re nearly always out of date – they’re often delivered too late. This then raises the spectre of said terms never having been incorporated and you’re thrown back to some implied term such as course of dealing or industry norms.

Like any business, you’ve no wish to spend money unwisely but, and it’s an important but, in the same way you undertake regular maintenance to your property, fixtures & fittings and cars/vans, you should, at least once a year, reflect on the previous year and consider any issues where clarity and execution would have improved profit, your customer relationships and the mitigation of risk. Oh sure, you might not immediately reach for the latest set of trading terms, or analyse your supply or distribution agreements but it’s likely that they’ll have featured somewhere in the mix, even if it was as minor as chasing down an unpaid invoice.

You could go further and think about the latest sales push where, no doubt, there will be lots of strategic and tactical discussions about “What’s next?”. But, don’t forget, in amongst all the meetings to consider brand protection and exploitation. Trade marks are an obvious place to start but equally you might want to consider confidentiality or trade secrets that if allowed to leave the company – by omission or commission! – could have devastating consequences for the business.

So, back to the ‘life’ of a commercial lawyer: it’s varied, challenging but exciting in the sense that what we do can and should add value to the business over the long term. If nothing else, working with our corporate brethren – the buyers and sellers of business – we know they’re always very happy to see on due diligence a bible that includes the Bells and Whistles of commercial law housekeeping, meaning everything from trading terms, to employment contracts, to IP to commercially sensitive material.

If you’re interested in finding out more about how we can help you develop your business through the application of commercial law, then we’re very happy to sit down with you on a non-commitment basis and see how we can help.

For more information, please contact Austin Blackburn, Tim Jackman, or another member of the corporate team on 01752 664444

Ilott Case highlights the importance of proper planning

Laura Shaw

A recent Supreme Court decision in the Ilott Case reaffirms the importance of having a Will.

last will and testamentThe Case was originally brought after Mrs Ilott’s mother, Mrs Jackson, died in 2004.   Under Mrs Jackson’s Will she left most of her estate, which was just under £500,000, to three charities at the exclusion of her daughter, Janet Ilott.

Janet Ilott brought a claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 which allows certain groups of people to bring a claim against an estate if they feel the Will does not make “reasonable financial provision” for them.  The original Court decision was to grant the daughter a gift of £50,000 from her mother’s estate with the rest passing under the terms of her Will.    However, on application to the Court of Appeal this was increased to £163,000.

This Appeal raised significant concern that Wills were being substantially changed by the Court against the deceased’s wishes. However, the Supreme Court has now reversed the decision back to the initial settlement of £50,000, reiterating again the importance of having a Will prepared.

In the Case, correspondence and communication with the Solicitor in which Mrs Jackson highlighted why she didn’t want her daughter to be included, was raised with the Court.   It is felt that this evidence assisted the Court in reaching its decision and possibly reducing the amount the daughter would receive.

The Case does highlight the fact that we should all consider our Wills and those that we want to benefit.  It is particularly important where there is a complex family situation, for example a close relative such as a Partner or child that you would not want to benefit.  Taking professional advice early ensures that you can take all the steps possible to allow your wishes to be followed, and take advice on how to mitigate the risk of any claims being brought against your estate.

For example, it is very important to explain in writing the reasons why you have not included a beneficiary because, by the very nature of when this claim will be brought, you will not be there to argue your side.

We can also look at options to make provisions for a beneficiary but protect the funds for future generations.  For example, allowing a spouse to live in a property but protecting that property so that when they pass away it is guaranteed to go back to your children.

Actions like this can greatly reduce the likelihood of a claim, which also reduces the substantial potential costs of litigation in an estate which can be costly for all sides.

To discuss your situation or for more information on the options available to you, please contact me or one of my Private Client colleagues, on 01752 664444.

Laura Shaw is a solicitor in the Wills Trusts and Probate department at Nash & Co.

Commercial law: more than the sum of its parts

Julian Summerhayes March 16, 2017

“The three great essentials to achieve anything worthwhile are, first, hard work; second, stick-to-itiveness; third, common sense.” ― Thomas A. Edison

(Commercial) law is law: it’s a set of principles, rules and obligations which are designed to help and, yes, sometimes hinder you from…running a business (and a million and one other things).

lightbulb greater than the sumAs lawyers, we’re well aware that some clients would prefer it if they didn’t have to abide strictly to the law. It’s not that they’re law-breakers but ‘doing the deal’ is paramount, and jumping innumerable and often soul-sapping hurdles isn’t what business is about.

Before you think we’re going to tell you how can avoid or negate your obligations, we can say unequivocally that that’s not our role – nor, we hope, that of any other solicitor or legal provider.

What is it?

To support; to mentor; to facilitate; and a whole bunch more. That doesn’t mean we’re here to tell you want you want to hear, but we genuinely see our role as trusted advisors in the broadest sense of the word. We certainly don’t stand on the touchline shouting orders but, instead, we’re just as likely to be down in the weeds, trying to understand your objective and looking for a creative solution to what are often seemingly straightforward deals but rarely turn out that way. Also, much like the abiding dull but necessary insurance policy — which you know you need but rarely consult unless and in the event of another ‘incident’ — we’re able to help tweak or revise your terms and conditions, develop a legal framework for your online presence/business and make sure you do things in a way that mitigates risk. If this sounds a bit black and white, we’re well aware, being in the service sector, that delivering an amazing client experience is paramount but these little (legal) extras can sometimes make the difference between you getting the work, or, on occasion, being on the end of a serious complaint or claim without any meaningful way of defending yourself.

If this sounds like a naked attempt to ‘pitch you’, then we make no apologies for our less than subtle approach. From our experience, what we’re offering – commercial law services – is not something that owners or managers consider as their first port of call, but we’d hope, if you did pick up a phone, you might be surprised with how commercial we are – both on the law and in adding value to your business.

For more information, please contact Austin Blackburn, Tim Jackman, or another member of the corporate team on 01752 664444

Dramatic rise in Probate fees

David Cornelius February 28, 2017

Following a consultation, the Government has recently announced a dramatic rise in Probate fees, which are payable when somebody dies. Probate fees are in addition to any inheritance tax that will need to be paid.

probate fees

After somebody dies, in order to be able to access their assets, a document called a Grant of Probate is required. Currently, the Probate fee is £155.

The Government has announced that later this year they will be increasing these fees on a sliding scale, dependent on the value of the estate. The scale of the fees are set out in the Table below: –

Value of estate (before inheritance tax) Probate Fee
Up to £50,000 or exempt from requiring a Grant of Probate £0
Exceeds £50,000 but does not exceed £300,000 £300
Exceeds £300,000 but does not exceed £500,000 £1,000
Exceeds £500,000 but does not exceed £1m £4,000
Exceeds £1m but does not exceed £1.6m £8,000
Exceeds £1.6m but does not exceed £2m £12,000
Above £2m £20,000

There has been criticism of the legislation as a “back door taxation,” as the fee does not reflect the actual cost of processing the Probate application.

There is also concern that these increases will affect estates that are not subject to inheritance tax, for example, when a husband or wife dies and leaves everything to their spouse.

There are ways to mitigate the potential fees, for example by altering the ownership of properties between spouses or the use of Trusts. However, the best solution will vary depending on individual circumstances.

If you would like to review how these changes will affect you or require more information, please contact David Cornelius on 01752 664444 or by email dcornelius@nash.co.uk

Forming Construction Contracts

admin November 17, 2016

Why is it so important to get a construction contract right from the start?


It is often the case that parties to a construction project will initially agree the broad term in a letter of intent, with the intention that a formal JCT (Joint Contracts Tribunal) Contract will be entered into at some point.

It is equally common for works to start before that formal construction contract is signed by both parties, which is exactly what happened in the recently decided case of Spartafield Ltd v. Penten Group Ltd.


The background of this matter was that the agreement was entered into in July 2013 and the contractor took possession of the premises in September 2013. The relationship broke down and there was a disagreement over whether a proper contract was entered into and therefore what the specific terms of the agreement were.

When this type of situation arises, the Court will need to decide:

1. Whether the works were subject to the terms of the letter of intent;
2. Whether the terms of the JCT contract were agreed between the parties;
3. If the JCT contract was agreed, when it took effect.

As it was common ground between the parties that works had started under the letter of intent, it had the effect of being legally binding. This point could not be argued in any event as its content was written in a formal way and it was signed by both parties. The question then was: for which period of works did it apply?

In order to work out what terms were applicable, the Court used a previous authority to distinguish between terms that were critical to the formation of the contract and those which were not intended to be a precondition to a concluded and legally binding agreement.

The Spartafield v Penten ruling makes it clear that execution of a hard copy contract is not required in order for it to be binding. The court pointed out that the question is whether the essential terms for a contract have been agreed, irrespective of there not being a total agreement in a formal written format.

It was therefore held that the JCT contract had been agreed but took effect prior to certain issues being finalised; more particularly collateral warranties.

This case demonstrates and reinforces the need to ensure that the full and proper terms of a construction contract have been agreed before works take place and if that doesn’t happen, a full signed JCT contract is executed as soon as possible.

Read more about avoiding construction disputes in my previous blog: http://www.nash.co.uk/top-tips-for-avoiding-construction-disputes/

If anything in this blog post affects you then please contact me for advice:  Michael Clark, Nash & Co Solicitors LLP, 01752 827127

Victory for Lang Town & Country! (Nash Golf 2016)

Ian Veater October 5, 2016

The 6th Annual Nash & Co Golf Day has raised £2000 for St Luke’s Hospice.

Nash flag with St Luke's logoThis year’s event, which had been originally scheduled for April but unfortunately had to be postponed because of the weather, finally took place on Thursday 15th September at China Fleet Golf club. The turnout was excellent, with a total of 73 golfers taking part on the day, and a wide range of local businesses represented.

The team competition was a very close run affair and only 2 points separated the top five teams. The eventual winners were Lang Town & Country, who amassed an impressive 93 points, only just snatching victory from the runners up Francis Clark on countback.  The third place went to G-Dig on 92 points.

The longest drive competition was won by Ben Thorne from Brewin Dolphin, and nearest the pin was won by Jon Holwill.

Nash & Co partners and staff were on hand to meet and greet the guests throughout the day and a post match meal allowed the competitors the chance to mingle and network. After the obligatory raffle, with prizes kindly donated by local businesses including Hindhead Property, The Duke of Cornwall, WeDoGolfMortgages 4 Plymouth and China Feet Golf Club, Ian Veater, Partner at Nash & Co, conducted the prize giving presentation with St Luke’s corporate fundraiser Nicola Keen taking the opportunity to tell everyone a little more about the fantastic work that St Luke’s carries out.

golf day winners

Winning Team: Lang Town & Country

Ian said “I would particularly like to thank all of those who supported the event, especially after the original date was postponed, by either entering a team, playing on the day, sponsoring a hole, or donating a raffle prize.  Without your involvement the event would not continue to be the success it has become.” Ian also thanked the China Fleet Club for hosting the Golf Day so professionally for the third year running, as well as the Nash & Co staff, expertly led by Katie Gribbins, who worked so hard behind the scenes and on the day to ensure the event ran smoothly.

Special thanks to Imagine Office supplies, who were unable to make the rescheduled date, but generously donated their team fee for the benefit of St Luke’s Hospice.

Next year’s Charity Golf Day is already in the planning stages – so keep your calendar clear for Friday 21 April 2017, and watch this space for more details soon.

With thanks to Our Hole Sponsors:




Imagine Office Supplies



Lang Town & Country



Print Copy Scan








Raffle prizes donated by:

We Do Golf


Mortgages 4 Plymouth


Hindhead Property
Duke of Cornwall


China Fleet

National Minimum Wage from 1 October 2016

Karen Bussell September 28, 2016

minimum wage

A quick reference table for the National Minimum Wage from 1 October 2016

National Minimum Wage – hourly
Workers aged 21 and over £6.95
Workers aged 18-20 £5.55
Workers ages 16-17 £4.00
Apprentices under 19, and in first year of the apprenticeship £3.40
NB Workers aged 25 and over – National Living Wage remains at £7.20 per hour

More information on the minimum Wage is available here.


Karen Bussell is a Partner and Employment Law Specialist at Nash & Co Solicitors in Plymouth

Apprenticeship Changes – Consultation period

Karen Bussell August 16, 2016

The Government is consulting on its proposals for changes to the Apprenticeship scheme so get online and have your say – until 5 September.

apprenticeship scheme consultation

The proposals are that:

  • Employers who do not need to pay the Apprenticeship levy (those whose payroll is less than £3million per annum), and those who do but are without sufficient funds, can apply to co-invest with the Government to pay for an Apprenticeship. The Government will pay 90% and the employer will pay 10%.
  • Employers will receive a £1,000 incentive for employing a 16-18 year old apprentice. The training provider will also receive £1,000 for providing Apprenticeship training to a 16-18 year old.
  • Employers with fewer than 50 employees will have the cost of an Apprenticeship funded by the Government if the apprentice is 16-18, a young care leaver or is a young person with an Education and Health plan.
  • The Government is committing to fully funding the costs of level 2 English and maths training where needed in an Apprenticeship.
  • Employers will be able to use levy funds to retrain existing employees in an Apprenticeship, as long as it is significantly different from their previous qualifications.

The Government is consulting on these proposals until 5 September and you can have your say online. The funding proposals will be issued in October.

Karen Bussell is a Partner and Employment Law Specialist at Nash & Co Solicitors in Plymouth

Prosecution for personal data breach

Karen Bussell

An employee has been successfully prosecuted for sending details of 957 clients to his personal email address before leaving to work for a rival company.

personal data breachThe email contained commercially sensitive information including personal data such as contact details and the purchase history of customers.

The Information Commissioner’s Office prosecuted him under section 55 of the Data Protection Act 1998.

The employee pleaded guilty to unlawfully obtaining personal data, the employee was fined £300 and ordered to pay a victim surcharge of £30 and £405.98 in costs.

Karen Bussell is a Partner and Employment Law Specialist at Nash & Co Solicitors in Plymouth

Illegal working legislation update

Karen Bussell August 15, 2016

New legislation has toughened up on illegal working.

illegal workingFrom 12 July 2016 it has become a criminal offence for a person to work when he or she reasonably believes that their immigration status prevents them from doing so.

And employers of illegal workers could be convicted if they had reasonable cause to believe that the employee’s immigration status was a bar to them working. This supercedes the previous offence of knowingly employing an illegal migrant. A prison sentence of up to five years as well as a fine could be imposed. In some circumstances, the business could be closed down for up to 48 hours.

It is therefore of paramount importance to check, not just at the start of employment but on an ongoing basis, that your workers have the right to work in the UK. You should also keep good records of your checks and ensure that those within your business who are involved in recruiting people know what to check, how to record that and understand the penalty for getting this wrong.

Karen Bussell is a Partner and Employment Law Specialist at Nash & Co Solicitors in Plymouth

Sporting estate fined for health and safety breach

Christopher Stephens August 10, 2016

A Sporting and country estate has been fined £2,250 following a conviction for health and safety breach.

estateA 61 year old employee of the Danby Estate was acting as a flanker, to funnel grouse towards the line of guns and stop birds flying out of the side of the drive, when he was hit by shotgun pellets. The shooting started before he had reached his position and put his safety glasses on. He was blinded in one eye as a result of the incident.

An investigation by the Health and Safety Executive (HSE) found that the estate had not carried out an effective risk assessment or taken simple precautions to prevent this type of incident.

The Trustees of the Danby Moor Settlement pleaded guilty to breaching section 3(1) of the Health and Safety at Work etc. Act 1974 and were fined £2,250 and ordered to pay £4,486.72 prosecution costs to the HSE by Scarborough magistrates’ court.

The definitive guideline for health and safety offences applies to all cases sentenced on or after 1 February 2016.

The full story is available on the HSE website.

Christopher Stephens is a Partner in the firm’s Commercial Property team, with a particular interest and specialism in farming law and renewable energy.

country estate2

BREXIT – What does it mean for UK Agriculture?

Christopher Stephens July 21, 2016

Nash partner, Christopher Stephens, examines what an EU exit means for UK agriculture

The Brexit die has been cast.

After months of speculation we now know that the UK population has placed a majority vote to leave the EU. The future face of the post-Brexit world is still unclear and so the purpose of this article is to analyse certain themes which have relevance to UK farmers and agri-business


1. Withdrawal Procedure and Timetable

Article 50 of the Treaty on European Union sets the procedure and timetable for Brexit. The UK must formally notify the European Council of its decision to withdraw from the EU.

Once notification is given the UK has two years to negotiate a withdrawal agreement with the EU. Any extension of the two-year negotiation period requires unanimous agreement of all 27 member states.

During the negotiation period, the UK remains a member of the EU and EU obligations, such as the CAP requirements, will continue.

 2. Common Agricultural Policy (CAP) Financial Support

In 2014 UK farmers received 54% of their income via direct support – this is provided by the Basic Payment Scheme.

The common consensus is that that exit from the EU would mean exit from the CAP and its subsidy and regulatory regimes. CAP is the single largest part of the UK’s EU costs (almost 40%) and so there would be a significant saving but would the UK government respect this in equal measure in the future?

This seems unlikely. In the past, government positions on CAP reform have indicated that the UK government is unlikely to want to match the current levels of subsidy and/or that they need to see more ‘public advantage’ in return, such as environmental protection.

The quantity and type of future support is not clear but this would need to be substantial as EU farm subsidies currently make up around 50% to 60% of farm income. In their NFU September 2015 report the NFU stated that:

‘Many farmers would prefer to farm without financial support from the EU.  However, the reality is that currently many farmers do not make fair returns from the market. As a result the CAP supplements the failure of agricultural markets to deliver a fair level of income for farmers.  It helps farmers deal with market volatility and ensures a degree of resilience to shocks‘.

Outside the CAP the UK would potentially be able to devise a simpler support system, introduce innovations in farming policy, reduce farming regulation and orientate farming policy more closely to UK priorities. This might mean that a replacement agricultural policy includes:

    • a reduction in the level of direct payments;
    • an increased emphasis on rural development payments; and
    • payments under current agri-environment schemes are likely to continue to be made for the duration of their contractual terms.

Clearly there is likely to be a political tension as between applying the £18.9 billion saving we would make by withdrawing from the EU towards investment in the NHS, schools, affordable housing, etc versus the demands of the UK farming community and so a lower level of support seems likely.

A reduction of these support payments would arguably not be sufficiently off-set by advantages that can be derived from bilateral trade deals or relaxed regulation. The livestock sector, mixed farms and field crop farms are all heavily dependent on direct support payments for their income.

The government has not given any firm indication of the level of future support. Elizabeth Truss, Secretary of State for Environment, Food and Rural Affairs has stated that:

“There clearly needs to be a system of agricultural support and British Farming must remain profitable and competitive.”

“Equally, DEFRA will continue to ensure the right policies are in place for a cleaner, healthier environment.”

Finally, it is worth mentioning that implementation of CAP in the UK is a devolved matter and differs between England and Wales, meaning that when considering any replacement structures the Welsh Assembly will also need to be consulted and approve the format. In a recent report prepared by The Worshipful Company of Farmers’ the authors note that there is generally a higher degree of dependence on CAP payments in Wales than in England, so different regional views will be an important factor in the debate over post-Brexit agricultural policy.

3. Agri-Environment Schemes

It would be surprising if new national policies did not make significant provision for agri-environment schemes. The UK was a pioneer of such schemes and they are well established mechanisms to promote environmental policy objectives.

However, it is possible that the funds for agri-environment measures could be reduced, perhaps substantially. Some commentators warn that Brexit is likely to lead to less financial support for environmentally sensitive farming and a more market-led approach.

On the 25th April 2016, the Tenant Farmers Association issued a draft agricultural policy for the UK to adopt following a Brexit vote. This suggests retaining the current UK Agriculture budget of £3bn but re-allocating this as to £1 billion to a new agri-environment and rural development scheme, £1 billion to a new farming business resiliance fund and £1 billion to marketing, research and development and other supply chain initiatives.

Post-Brexit, the source of funding for agri-environment agreements, entered into before Brexit is unclear. Some commentators have suggested that EU funding might be withdrawn if no transitional arrangements are agreed, with Natural England responsible for funding agreements in England until the contractual terms of such agreements expire. Agreement-holders may therefore want to check the terms of their agri-environment agreements to identify the circumstances under which Natural England has the ability to terminate or vary them.

4. Trade

In the event of a UK departure from the EU there is the potential for greater deregulation and innovation.

If the UK is not able to secure a bilateral trade deal with the EU the UK would have to apply the WTO’s global rules on trade – these require that countries trade fairly with each other and that current tariff levels are not dramatically altered.

If our producers wish to export to the EU they will have to comply with the EU marketing standards in order to access the single market. For example, Norway has a very close relationship with the EU but they are required to implement all the relevant EU environmental, food safety and veterinary legislation.

Overall the UK is a net importer of food products, which makes us unusual when compared with many other EU countries. We import nearly twice as many food products as we export.

Obviously continued involvement with the single market preserves UK farming’s ability to trade freely. Some 97% of our lamb, 92% of our beef and 67% of our grain exports (worth £1.41 billion) end up in EU markets. There is a serious risk that if these markets are restricted or trade is made more expensive that our livestock and field crop UK production markets will be significantly harmed and that prices will rise for UK nationals. Currently the fall in sterling is having an upward effect on wheat prices and aiding livestock exports, although this may of course be a temporary effect.

Trade inside the EU borders is not subject to duty. However, the EU’s ‘Common External Tariff’ on agricultural produce protects prices. The tariff is common to all EU countries but the rates differ from product to product depending on what they are and where they have come from. It is not possible at this stage to predict the level of duties that our exporters would face when exporting to the EU if the UK left.

This is because the UK would have to negotiate a new agreement defining the arrangements for its withdrawal and in its future trade relationship with the EU. There is some protection offered by the World Trade Organisation (WTO) rules, under which a third of global business is conducted and which require countries to trade fairly with each other.

In the case of Brexit, the EU (without the UK) and the UK would each have to present a new schedule of tariffs to the WTO members for approval by unanimity. The new tariffs would have to preserve existing trade flows and in practice it seems likely that the WTO would not allow any tariff increase.

Various existing arrangements are in place as themselves to EU membership already, such as the European Free Trade Association (EFTA) and the European Economic Area (EEA) although these agreements do not cover the agricultural sector and so offer little protection to UK farming.

5. Freedom of Movement and availability of Labour

The UK relies heavily on migrant labour in the agricultural sector. In Cornwall, for example, there are large numbers of foreign workers engaged in brassica and potato farming.

The free movement of people is one of the four fundamental freedoms of the EU. Many of the crops produced in the UK are seasonal, but the domestic workforce has a preference for permanent employment.

It seems dangerous to consider a labour market in which the agricultural sectors ability to recruit non-UK born workers is compromised as a result of any changes to the free movement of labour as this would seriously damage many farming and agri-business ventures. It seems likely that some form of ‘seasonal worker’ scheme would be necessary in a post-Brexit world.

Official figures from the office for National Statistics tell us that in 2014, there were 34,000 non-UK born workers employed in the agricultural sector. However, the survey did not cover workers living in a communal establishment or temporary foreign workers who are in the UK for just a few months. The true picture is likely to be higher than this.

The availability of unskilled and semi-skilled migrant labour after Brexit will depend partly upon the outcome of trade negotiations with the EU and the UK’s ability to impose restrictions on the free movement of people, such as eligibility requirements to obtain work visas.

6. Rural Development Programmes

Without CAP funding and an EU approved Rural Development Programme (RDP), it is not clear how much support would be prioritised and dedicated to rural areas.

AT present, the RDP programmes in the UK support the rural economy with priority dedicated to tourism, rural broadband and small to medium sized enterprises (SME’s) – with little required by way of additional Government funding.

This would need to be incorporated within any new UK budgets for rural support and given the make-up of the referendum vote the established Treasury view suggests that direct support payments should be seen as transitional compensation, which is phased out over a reasonable adjustment period, with the residual core of agricultural policy focussing on rural development matters.

Policy objectives could include improving agricultural productivity and marketing, purchasing public environmental services from farmers, supporting rural infrastructure and encouraging economic diversification.

7. Rural Business

The EU currently supports rural businesses, communities and the environment. On exiting the EU the UK would need to decide:

  1. whether the rural economy will continue to receive the current level of support from either the CAP or UK Government through to the end of 2020 to respect the commitments made for the current CAP period (2014/2020); and
  2. how the UK Government will develop a structure of support for farming, other rural businesses and the environment.

In 2013 the EU provided £3.87 billion of support for the rural economy in the UK. The Country Landowners Association (CLA) estimates that this support resulted in a £10 billion contribution to the UK economy, including more than 350,000 jobs and £3.5 billion in taxation revenue to the Treasury.

This revenue helps to provide a decent wage for the farming community but without continued UK government support farmers and agri-business would simply not be able to meet these costs from available resources.


Given that the WTO, EFTA and EEA trade agreements do not cover the agricultural sector, UK farmers will be concerned that a future British agricultural policy is not as generous.

Whilst most farmers would agree that the sector should become less reliant on public support, pressure on global commodity prices has meant that market forces are unable to deliver sustainable incomes. Interestingly the international picture is varied. Countries like Norway and Switzerland support their farmers more than the EU (58.4%, 56.5% and 18% respectively) whilst the United States, Brazil and New Zealand are less supportive than the EU (9.8%, 4.4% and 0.9% respectively).

Arguably, therefore, this means that if the current status quo is to be preserved the farming and agri-food sector would need to receive deeper funding from the UK Government than it currently receives from the EU. Given the cash demands of a large national health service, stretched public sector services and the requirement for a house building revolution, it seems unlikely that a UK Government would subsidise agriculture on the scale operated under the CAP. Time will tell but agriculture will need to be seen as an industry of strategic national importance if it is to thrive through the next phase of reformation of the UK political landscape.

Christopher Stephens is a Partner in the firm’s Commercial Property team, with a particular interest and specialism in farming law and renewable energy.