General Data Protection Regulation (GDPR) – Part 1

Dave Briggs October 19, 2017

In the first of a 3 part series, Krista Doidge explores the direct obligations placed on Data Processors by the new GDPR.

 

From 25 May 2018, the EU General Data Protection Regulation (“GDPR”) will replace all data protection legislation in EU member states (including the UK’s Data Protection Act 1998 (“DPA”) without the need for further national legislation.

GDPR CalendarUnder the GDPR, data controllers may only work with data processors that provide “sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of the GDPR and ensure the protection of the rights of the data subjects.” Therefore, it is imperative that data processors acknowledge GDPR and are actively taking steps to implement the changes.

One of the key changes in the GDPR is that data processors have direct obligations for the first time, resulting in direct enforcement measures (including serious penalties) if they do not comply.

Are you a data controller or a data processor?

Controller – means the person or organisation that decides how the data should be held and processed (e.g. the supplier of goods or services that is collecting customer data to use for sales and marketing).

Processor – means the person or organisation which processes personal data on behalf of the controller (e.g. a sub-contractor that complies reports or develops databases for the supplier).

Your main obligations as a data processor:

If you fall within the scope of the GDPR as a data processor, there are a number of key obligations under the GDPR a summary of which is:

1.    Assurance of compliance to the data controller 

The data processor must provide sufficient guarantees to implement appropriate technical and organisational measures to ensure processing meets the requirement of the GDPR and process personal data only in accordance with the data controller’s instructions.

2.    Restriction on sub-contracting

Data processors are required to obtain prior written consent from the controller to subcontract their activities. They are also required to inform the data controller of any new sub-processors, allowing the controller an opportunity to object. The lead data processor will need to reflect the main contractual responsibility in its sub processing agreements (i.e. to accept that it is responsible for the actions of its sub-processors) and will remain directly liable to the data controller for any failings or breaches by its sub-processors.

3.   Data processing agreements

While before GDPR it has still been the case that data processing agreements between data controllers and data processors have been mandatory, the contracts have often included only very basic obligations. Under the GDPR, the relationship between controller and processor needs to be regulated in greater detail with the GDPR explicitly stating for the first time which obligations need to be covered in a written data processing agreement. The agreement must cover:

  • the duration, nature and purpose of the processing
  • the types of data processed
  • the obligations and rights of the controller

These details must be relevant to the particular data processing agreement and not just a generic statement to cover all scenarios.

The agreement must expressly stipulate that the data processor explicitly agree to:

  • only act on the data controller’s documented instructions, unless EU or local law to which the data processor is subject, determines otherwise;
  • impose confidentiality obligations on all personnel involved in processing the relevant data by ensuring they have committed themselves to confidentiality or are bound by an appropriate statutory duty of confidentiality;
  • ensure the security of the personal data by implementing appropriate technical and organisational measures;
  • comply with stricter sub-processing rules (prior written approval is needed of the controller) and sub-processors must be appointed on the same terms as are set out in the contract between the data controller and the data processor. However, a general blanket approval of sub-processors will remain permissible as long as the controller is allowed to object to the appointment of specific sub-processors;
  • assist the data controller, where possible, with implementing measures to comply with the rights of data subjects;
  • assist the data controller in obtaining approval from the relevant Data Protection Authorities;
  • return or delete all personal data as requested by the controller after the end of services unless obliged to retain the data by law; and
  • make available to the data controller with all information necessary to demonstrate compliance with the GDPR and allow for and contribute to audits, including inspections.

The data processing agreement may be based on standard contractual clauses laid down by the European Commission or national supervisory authorities. There are none published for the UK at present.

4.    Demonstrating compliance and record keeping

A common theme of the GDPR is accountability and compliance. The data processor must maintain a record of all categories of processing activities. This must include details of the data controller and any other processors, the categories of processing carried out, details of any transfers or data exports, and a general description of technical and organisational security measures. There is a carve out to these obligations, where the data processor has fewer than 250 employees provided the processing does not pose a risk to the rights and freedoms of individuals, is not more than occasional and does not include special data (sensitive personal data).

5.    Ensuring appropriate security measures

Processors must have appropriate security measures and what’s appropriate is assessed in terms of a variety of factors including:

  • the sensitivity of the data
  • the risks to individuals associated with any security breach
  • the state of art
  • the cost of implementation
  • the nature of the processing in general

These measures might include pseudonymisation and encryption. Regular testing of the effectiveness of any security measures is also required where appropriate.

6.    Notification of breaches to the data controller

The GDPR now explicitly provides that data processors must notify data breaches to the data controller without “undue delay” after becoming aware of such breach. This aspect may require to be more detailed in the contract to establish precisely what is to be done in the event of a breach bearing in mind the controller’s obligations to the Information Commissioner’s Office (the Supervisory Authority in the UK) in this regard. By doing so, disputes between controllers and processors as to when delay may be “undue” can be avoided.

 7.   Codes of Conduct

The GDPR refers to approved Codes of Conduct as a means both to impose additional obligations on processors and for them to demonstrate compliance. Associations or bodies may submit Codes of Conduct for approval by Member States or at Commission level. Certification or seal programmes may also be used to demonstrate compliance with GDPR requirements. This introduces the potential for different standards across different industries and between Member States. We will have to wait and see how widely used they become and how useful they are.

8.    Data Protection Officer (DPO)

The concept of the mandatory Data Protection Officer (DPO) is new for Ireland and the United Kingdom but already exists in other parts of the EU. Both data controllers and data processors are required to appoint a DPO as follows:

  1. Where they are a public body or authority;
  2. Data processing requires regular monitoring of data subjects on a large scale; or
  3. Where the core activities or the processing involves large amounts of special (sensitive) data or data relating to criminal convictions or offences.

The DPO must have a degree of independence and is the contact point for any data processing compliance issues that arise under the GDPR. A processor may also appoint a DPO even if they don’t fall under one of the three categories above or may be required to do so under Member State specific laws. If the DPO is required or appointed anyway, their contact details must be published and communicated to the Supervisory Authority.

9.   Cross-border data transfers

Like the DPA before it, the GDPR imposes restrictions on the transfer of personal data outside the European Union, to third countries or international organisations, in order to ensure that the level of protection of individuals afforded by the GDPR is not undermined.

The GDPR allows for data transfers to countries whose legal regime is deemed by the European Commission to provide for an “adequate” level of personal data protection. In the absence of an adequacy decision, however, transfers are also allowed outside non-EU states under certain circumstances, such as by use of standard contractual clauses or binding corporate rules (BCRs). Derogations are also permitted under limited additional circumstances.

Keep your eyes peeled next week, when we will be publishing part 2 of Krista’s GDPR guidance. Part 2 will address the consequences of non-compliance with the GDPR and your potential liability as a data processor. If you have any queries or concerns in the meantime do not hesitate to contact us!

 

Krista DoidgeKrista joined the Commercial and Commercial Property Team as a Trainee Chartered Legal Executive in May 2017, working closely with Austin Blackburn and Christopher Stephens. Krista previously worked at a national commercial firm, gaining a broad variety of experience in different areas including commercial and corporate work for large national clients.

Email: kdoidge@nash.co.uk,  Telephone: 01752 827068

Charity Fall Ball a huge success!

Peter Ash September 25, 2017

On Friday 22 September, myself and 3 legal friends from local firms (Laura, Andrew and Carrie below) organised a Charity Fall Ball at the New Continental Hotel in Plymouth in aid of the Plymouth Parent Advocacy Project.

 

Fall BallThis is a fantastic organisation that provides invaluable support to parents with learning needs – particularly when the Local Authority are involved. For more information check out their website below.

http://www.plymouthhighburytrust.org.uk/advocacy/plymouth-parent-advocacy-project/

On a personal note I’ve had several cases which have involved co-working the case with their skilled advocates and I’ve found their support to be absolutely invaluable. Care Proceedings are a very difficult experience for all parents but for parents with learning needs they can seem particularly terrifying and incomprehensible. The PPAP support these parents and help give them a voice.

We are still waiting for a final total but we think we raised over £5,000 for a really worthwhile cause.  There’s already talk about making this an annual event so … watch this space!

Cohabitation Agreements

Eleanor Barber September 15, 2017

Whilst it may not sound overly romantic, unmarried homeowners planning to let a partner move in, either at the time of purchase or at any later stage, should always enter into a professionally drafted cohabitation agreement.

Such an agreement can not only regulate the property’s occupation, but more importantly, will expressly record the intentions of the parties about future ownership. In the absence of such an express agreement, it may be possible for the non legal owner to succesfully claim an interest in the property at a later stage. Claims of this nature are increasing in frequency, and the easiest way to avoid them,  and the ensuing expensive litigation, is through an express cohabitation agreement.

At Nash & Co, our expert family law team can fully advise you and prepare a bespoke cohabitation agreement designed to meet your specific needs and circumstances.

 

Eleanor Barber Cohabitation AgreementsEleanor joined the Nash Family Law Team in December 2015.  She has over 10 years family law expertise including prenuptial agreements, relationship breakdown, cohabited agreements and disputes, financial settlements and all matters relating to children.

Eleanor has been a full member of the Law Society’s Children Panel since 2010 and is also a member of Resolution which encourages cases to be pursued and resolved in a non antagonistic manner.

“Please pass on our thanks to Eleanor for her fabulous representation of Terry, and the fantastic outcome. We all appreciate her hard work and thoroughness. Everyone is delighted.”
-Mrs H

Eleanor can be contacted on 01752 827026 or emailed at ebarber@nash.co.uk

Cyber Security Policies

Julian Summerhayes September 14, 2017

The importance of cyber security means that it must be a board room issue says the Information Commissioner, Elizabeth Denham.

Information Commissioner Cyber SecurityInformation Commissioner Elizabeth Denham has spoken about the need for boards of directors to engage in their cyber security policies at the latest CBI Cyber Security Conference. She told the conference that the Information Commissioner’s Office (ICO) was committed to working with government and the National Cyber Security Centre to provide more certainty, assurance, and guidance to businesses for legislation. Denham believes the incoming Data Protection Act should serve as an opportunity for businesses to focus on data protection and data security.

Denham said reforms to data protection law are long overdue, ‘but now they are here, they will provide the best incentive for companies to get security right’.

She argues: ‘Gone are the days where data security was an IT issue, where data protection was a backroom function.’

Instead, Denham believes boards of directors must understand the new obligations under the impending Bill and the need to invest in safeguards to build and retain customer trust.

The link to the speech can be found here.

Damages for breach of contract

Julian Summerhayes September 12, 2017

The general law principle is that common law damages are compensatory in nature. In a claim for breach of contract, the damages should be such as to place the claimant (the injured party) in the position it would have been in if the contract had been performed.

So far so good.

Breach of ContractThe value – which you’ll often hear described as ‘quantum’ – of any claim for breach of contract should reflect the value of the contractual bargain of which the claimant has been deprived as a result of the defendant’s breach. In a commercial contract, the value of such damages is usually measured by reference to the additional amount of money the claimant would require to achieve the financial value of the expected contractual benefit, e.g. lost profits or cost of reinstatement. There is another basis, namely where a claimant elects to claim damages against the defendant by reference to expenditure incurred in reliance on the defendant’s promise.

The other factor to bear in mind is that most companies — not all, unfortunately! — will seek to rely on their standard terms and conditions. Without going off piste too much, those terms will normally contain a whole host of provisions dealing with the product or service being provided but more especially, particularly in high value contracts, will spell out what happens when things go wrong, including what can/cannot be claim and if any claim for damages is capped in any way. (Normally it’s the defendant who’s more interested in this latter provision, for obvious reasons.)

In the recent and local case of The Royal Devon and Exeter NHS Foundation Trust v ATOS IT Services UK Ltd the High Court was asked to decide a number of preliminary issues in a claim for breach of contract (by the Trust) arising from the supply of IT services.

The Judge undertook a thorough review of the terms and conditions of the contract — which did not escape some judicial criticism for their contradictory and unhelpful drafting — but in essence, she was asked to determine the extent to which the Trust could claim damages for breach of contract for wasted costs notwithstanding an exclusion clause that appeared to negate such a claim. She was also asked to decide if a limitation of liability clause was effective, which would reduce the claim from the c.£7M being claimed.

In both instances, the Judge decided that a claim for damages for breach of contract, amounting to wasted expenditure incurred in reliance on the anticipated performance of the contract, was not a claim for loss of profits and was therefore not excluded under the contract. However, a provision capping the defendant’s liability was valid and enforceable.

Points to note

  1. Every company should have terms of business and wherever possible seek to rely on their terms rather than the party they’re contracting with. An annual review should be the bare minimum and that is particularly the case with the likely impact of BREXIT.
  2. It pays to seek professional advice about any existing terms or new terms that are needed. Whilst it’s tempting to revert to the Web (for inspiration!), you could find yourself on the end of an expensive claim if you rely on someone else’s terms and conditions.
  3. What can or cannot be claimed should be considered carefully. Likewise the enforceability of any exclusion clause. The situation is different in a business to consumer transaction but where it’s business to business, there is greater freedom to limit loss.
  4. The investment in new terms represents a very modest investment when compared to the benefits.
  5. Having a comprehensive set of terms is as important if not more so that the money you invest in your brand. They need not be complex or turgid and any supplier worth their salt would want to know they’re dealing with a company that has well drafted and effective terms — for both sides’ benefit — rather than leaving things to chance.

If you would like more information on this topic, please contact Julian Summerhayes on 01752 827013 or by email jsummerhayes@nash.co.uk

 

Julian Summerhayes, solicitor, is part of the firm’s corporate and commercial team acting for entrepreneurs, owner-managed businesses (OMBs) and investors.

As a former commercial litigation lawyer and now commercial specialist, Julian brings vast experience to the world of business, particularly around start-ups, web or design-led business, the creative sector, digital and manufacturing. His expertise covers the full gamut of trading terms, licence and distribution agreements, franchising, online sales, agency, outsourcing agreements as well preserving and safeguarding of IP rights. He also has a particular interest in sports law working with governing bodies, clubs, elite athletes, brands and agencies with a particular emphasis on the cycling sector (all disciplines).

See Julian’s profile here.

What are Mutual Wills and do I need one?

David Cornelius September 8, 2017

The recent Case of Legg -v- Burton has brought to light the issue of Mutual Wills.

Mutual Wills are usually prepared by couples and when doing so they are making a declaration that neither of them will change that Will without the others permission, which means the Wills cannot be altered after one of them dies.

Mutual WillsIn the Case of Legg -v- Burton a couple prepared Wills in 2000 which basically left their property to each other and, when something happened to both, to their two daughters.

The father died in 2001 and in the following years the mother made more than a dozen further Wills up to her death in 2016.  Unfortunately, during that period her relationship with her daughters had deteriorated and when she passed away her last Will left a larger share of the estate to the grandchildren rather than the daughters.

It was claimed that when the original Wills had been prepared in 2000, the parents had expressly agreed with each other that they were “set in stone” and therefore should still be honoured.

After some deliberation, the Court agreed that the Wills were made mutually and therefore the mother was unable to change her Will after the death of the father.    Therefore the 2000 Wills were honoured with the daughters receiving a larger share of the estate.

One point highlighted by this Case was the high level of evidence required to prove that the Wills were mutual.  In this situation, there were attendance notes from the Solicitor from 2000 and both daughters were present when the Wills were signed.

There are differing views on the fairness of this Judgment.  Some feel that as the parents had agreed that their joint property should pass to their daughters, this should be honoured.  Others felt that although this may be right for the father’s share of the property, is it correct that the mother was also bound to leave her half of the property to her daughters when she decided after her husband had passed away that she did not wish to.

There was also the cost of bringing a Case like this and the potential family issues that can arise.

Rather than relying on the option of Mutual Wills is there another way that the parents could have achieved the same result?

The simple answer is yes.

They could have created in the Wills, a Life Interest Trust for their respective halves of the property.  This would have meant that when the father passed away, the mother could live in the property for the rest of her life or move property, but he would have guaranteed that when she died his half of the property would go to his daughters. The other benefit of the Trust is that it would have still allowed the mother to decide where her half of the property would go.   These trusts work particularly well with second marriages.

Although Mutual Wills may seem like a good idea, they can be difficult and expensive to enforce, the surviving spouse may try to defeat them by giving assets away in their lifetime and can lead to family breakdowns.

Therefore, it is important that clients take professional advice, understand the risks and have the situation tailored to their circumstances.

If you would like more information on this topic, please contact David Cornelius on 01752 827076 or by email dcornelius@nash.co.uk

 

David CorneliusDavid Cornelius is a Partner, and Leader of the Wills, Trust and Probate Team. He joined Nash in January 2015 after 12 years with a major Regional and National Law firm.

David enjoys providing bespoke, clear and simple advice to individuals on how to best provide for themselves and their families in the most practical and tax efficient manner. In particular, he has experience of advising land owners and entrepreneurs of the most inheritance tax-efficient way to structure their affairs.

David has a substantive knowledge of, and can advise on, a wide range of areas including Wills, Trust establishment, Estate Administration and Lasting Powers of Attorney.

See David’s profile here

Tribunal Decision Successfully Argued

Karen Bussell August 24, 2017

It has started.

Employment Judge Wright, sitting in Southampton – part of the Bristol circuit which includes Devon and Cornwall – has ruled that a Claimant could bring a late discrimination claim after she successfully argued that time should be extended because she could not bring the claim due to the fee payable.

This follows the Supreme Court ruling late last month that Employment Tribunal Employment Tribunalfees imposed in July 2013 were unlawful.

The former Tesco employee originally lodged a claim of disability and age discrimination but her application for help with fees was unsuccessful and she was required to pay an issue fee. Her claim was rejected when she failed to do so.

Tesco argued that the tribunal should reject the Claimant’s second application however her barrister maintained that all decisions made under the 2013 Fees Order – including the rejection of her first claim – were unlawful and that to accept a second claim now would satisfy the ‘just and equitable’ requirement for an extension to the time limit and so should be allowed. EJ Wright agreed.

Last week the tribunals president ordered that any applications to reinstate claims must be stayed but in this case the Claimant made a fresh claim.

Parental Responsibility – taking your child abroad

Kirstin Sibley August 18, 2017

The summer holidays are in full swing! The suitcases are packed and the flights are booked. As exciting as family holidays are, they are not always smooth sailing. Many separated parents ask whether they can take their child abroad on holiday. The answer is yes, provided they have permission from everyone who has parental responsibility for that child.

 

Parental Responsibility

Parental responsibility is “all the rights, duties, powers, responsibilities and authority that by law a parent of a child has in relation to the child and his property”. It is worth noting that parental responsibility is not always automatically acquired and if you don’t have parental responsibility your permission to take the child on holiday is not required.

If your former partner has parental responsibility and refuses to give you permission to take the child away on holiday, it is open to you to apply to the Family Court for a Specific Issue Order. A Specific Issue Order will be made when an issue arises in the exercise of parental responsibility. If the Court grants an Order allowing you to take the child away on holiday then you may do so.

If there is a Child Arrangement Order in place stating the child has residence with you (formerly known as a “residence order”) then you may remove the child from the country for a period of up to 4 weeks for the purposes of a holiday without requiring separate consent from the other holders of parental responsibility.

Should you have a query about whether you have parental responsibility or what rights you have, we have specialists at Nash & Co to answer your enquiry. Please ring on 01758 548324 to arrange an appointment with one of our specialists.

On a separate but related note, beware of airports denying passage to adults who have a different surname to the travelling child.

Airports have been known to adopt a very strict approach in requiring proof of the parental relationship to the travelling child, or a letter from the absent parent with permission to travel. If you have a different surname to your child make sure you take proof that you are the parent (e.g. a birth certificate) and/or you have a letter of permission from the absent parent. Parents being turned away from the airport is not unheard of!

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:

Smarta

Print Copy Scan

handelsbanken

 


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