Untangling the myths around TUPE Make sure your business is not left with costly liabilities
a lupton fawcett lee & priestley periodical
Issue 3 The cost of divorce The devil in the detail Building bridges Crowd Funding: the more the merrier Protecting the health of your wealth Business rates â€“ a two-way street? The secrets of smart IP
a lupton fawcett lee & priestley periodical
Strengthening our business and our offering Managing Director, Richard Marshall, explains our acquisition of long-established Leeds-based law firm, Lee & Priestley.
TUPE – untangling the myths We tackle the controversial TUPE regulations and dispel some of the myths.
News in brief The Patent Box tax explained and a look at the thorny subject of tax planning.
The cost of divorce How specialist legal advice can help protect your finances during a separation.
Business rates – a two-way street? Why the issue of business rates should be of interest to more than just Property Managers.
The devil in the detail Questioning your current agreement could see you enjoy a little tax relief.
Welcome to the third edition of atticus. Once more we have packed this issue with the latest industry insight and clear, impartial advice as we take a closer look at some of the biggest issues and opportunities facing your business today.
10. Building bridges Protect your interests and avoid expensive, lengthy conflicts before they happen. 12. Crowd Funding: the more the merrier Could the Crowd Funding phenomenon work for you? 13. Protecting the health of your wealth Introducing our new bespoke wealth management company, Leodis Wealth. 14. The argument in favour of NEDs Appointing a non-executive director (NED) could be the best decision your business ever makes. 15. The secrets of smart IP Our top 10 tips for good IP practice as well as the pitfalls to avoid. 15. The smart choice of legal partner Colin Horsley, Property Consultant at the Austin Reed Group, shares his experiences of working with Lupton Fawcett Lee & Priestley.
Lupton Fawcett Lee & Priestley Yorkshire House, East Parade, Leeds, LS1 5BD Leeds: T: 0113 280 2000 F: 0113 245 6782 Lupton Fawcett Lee & Priestley Velocity House, 3 Solly Street, Sheffield, S1 4DE Sheffield: T: 0114 276 6607 F: 0114 276 6608 Lupton Fawcett Lee & Priestley is the trading name of Lupton Fawcett LLP, a limited liability partnership, registered in England and Wales, with partnership number OC316270. The registered office is at Yorkshire House, East Parade, Leeds, LS1 5BD. A list of Members’ names is available on our website and open to inspection at our offices. Authorised and regulated by the Solicitors Regulation Authority. Please note that this publication contains general information and does not constitute advice on any specific matter. Whilst Lupton Fawcett Lee & Priestley endeavours to ensure that the content in this publication is accurate and up-to-date, nothing within this publication should be construed or regarded as legal advice. www.lf-lp.com
Lupton Fawcett Lee & Priestley atticus is printed on paper that uses only recycled fibre and wood from sustainably-farmed sources as well as being carbon balanced. Scan this code and it will direct you to the atticus web page, where you can download a PDF of the latest and previous editions or read them online. Standard text rates and data charges may apply. © 2013.
The main aim of atticus is to inform and entertain, but we also hope to give you an insight into Lupton Fawcett Lee & Priestley, and some of our clients and contacts, along the way. We don’t intend this to be a technical publication, but we will keep you up-to-date with any changes and trends in the law that we think are interesting or relevant. Finally, we fully expect to evolve and develop this journal over time to better reflect the kinds of articles that you would like to read, so please don’t hesitate to let us know what you think and to make any suggestions for future editions. E-mail your thoughts to firstname.lastname@example.org
Kevin Emsley Chairman
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
Strengthening our business and our offering Lupton Fawcett Lee & Priestley Managing Director, Richard Marshall, explains our acquisition of long-established Leeds-based law firm, Lee & Priestley, and how by joining forces we’re better positioned than ever before to help our clients meet the challenges they face.
In previous editions of atticus I have outlined our strategy to become the region’s mid-market law firm of choice, and our plans to do this by developing an offering equal to the sum of the parts found across the mid-market, all underpinned by quality and real value. We have been extremely busy since the last edition of atticus, culminating in our acquisition of the practice of Lee & Priestley, a long-established Leeds-based law firm with first class lawyers and clients. Lee & Priestley has a proud history of serving the Yorkshire corporate community and meeting the needs of its wealth-creating commercial clients with private wealth preservation services. The partners at Lee & Priestley recognised the almost insurmountable challenges facing smaller mid-market firms in the current financial and regulatory environment, and the need for a stronger platform from which to meet these. After lengthy discussions, the Lee & Priestley team recognised that their strategic objectives were very similar to our own and that joining forces would
strengthen and accelerate their ability to deliver what the market requires. In turn, the Directors of Lupton Fawcett saw that joining forces with Lee & Priestley would bring greater strength and depth in a number of areas, in particular Corporate Finance, services to the Health Care sector, Family and Child Care, Employment, Commercial Property and personal legal services, such as Trusts, Wills and Estates. It will also create opportunities to deliver areas of our own offering, such as Intellectual Property and Regulatory Law, to Lee & Priestley’s clients. The position is further enhanced by Lupton Fawcett being able to absorb Lee & Priestley’s partners and staff into our existing, well-controlled fixed-cost base, allowing us to continue delivering value for money to our mutual clients in a market where solicitors are increasingly struggling to do so. The two firms joined forces on 1 October 2012 through the acquisition of Lee & Priestley’s staff and partners by Lupton Fawcett LLP. Lupton Fawcett LLP now trades as Lupton Fawcett Lee & Priestley with the intention of consolidating the brand under the Lupton Fawcett banner once all of the stakeholders,
including clients, staff, our respective contacts and the wider marketplace have become familiar and comfortable with the move. The importance of absorbing all that our new colleagues have to offer, including how we can improve what and how we do what we do, is reflected in the appointment of James Richardson, Lee & Priestley’s former Managing Partner, to our Management Board and Strategy Board. James will ensure there are clear channels of communication throughout the organisation for us all to learn from each other and provide better services for better value. Whilst joining forces with Lee & Priestley enhances the offering across the firm, and both of our offices, there is no denying that we still have much to do in some areas of the region. Having taken a major step forward in Leeds and West Yorkshire, it is now our intention to focus our efforts on demonstrably developing our offering to Sheffield and South Yorkshire. We are currently targeting a number of senior and high profile lateral hires which I hope to be able to announce in the next edition of atticus!
Untangling the myths around TUPE Employment Law specialist, Paul Sands, considers the controversial TUPE regulations, tackles some of the common issues faced by businesses, and looks at the Government’s proposed reforms to the law.
If you have ever been involved with the sale or purchase of a business, or are a service provider tendering for contracts, it is likely that you will have experience of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). It is safe to say that TUPE has outperformed most other UK legislation in generating confusion and contentious disputes. TUPE derives from European laws, which require the UK to implement its own domestic laws to protect employees’ employment when their employer changes. Examples include when their current employer decides to sell his business and move on (a business transfer) or when the contract on which the employees are working is taken away from their current employer and passed on to a new contractor (a service provision change). However, since TUPE was introduced, it has been widely criticised as being overly bureaucratic and too generous in its provisions, which go way beyond its European ancestor. The UK’s “gold-plated” version of the European law has been said to be a significant burden on UK businesses, especially those that frequently tender for service contracts. However, all may be about to change! In late 2011, the Government placed TUPE under review to see how it could be improved. In doing so it announced a Call for Evidence, through which businesses, unions and academics (to name a few) put forward their opinions on the effectiveness and defects of TUPE. Then on 17 January 2013, after digesting the nation’s views, the Government finally announced its proposed changes to the regulations. In this article we examine some of the more common issues faced by businesses, and address some TUPE-related myths. We also consider how these issues might be resolved, if at all, should the Government’s proposals materialise.
Service Provision Changes (‘SPC’) As mentioned, in addition to the sale of a business, TUPE also applies where there is an SPC. A common example is cleaning services. Some businesses employ their own cleaners but then decide to outsource the cleaning duties to a separate company. On the other hand, some businesses that already engage the services of an outside cleaning company may decide to use a different service provider or, to try and cut costs even further, do it themselves. All of these situations currently amount to an SPC under TUPE. This however is a step beyond what is required under the European laws, and so this has arguably been the most extreme case of “gold-plating” within TUPE. Now, in a radical change of heart, the Government has decided to remove entirely the parts that relate to SPCs. Incidentally, this will not result in SPCs being removed from the TUPE regime; however, it will become more difficult to identify whether or not TUPE does apply to an SPC under the proposed new legislation. Unfortunately, this level of ambiguity is likely to result in a greater number of disputes between service providers engaged in tender processes. Under the current TUPE regime, incumbent contractors will feel somewhat confident that if they lose a contract they will at least be able to offload a number of employees with it, thereby avoiding the alternative of redundancy costs. This may not be the case following the proposed changes, which could put existing contractors in a position where they are stripped of their contract and left with the liability for their employees. Any employers that are currently in a tender process, or envisage being in a tender process, will need to bear these new laws in mind when evaluating their bidding. The Government is proposing a lead-in period for this particular change which means it could be between one and five years before this comes into effect. However, contractors who are involved in tendering for new contracts now would be well advised to ensure that bids and contracts deal specifically
with the issue of TUPE, and provide protection for the contractor in the event that the law changes before the end of the contract term.
Harmonising terms and conditions following a TUPE transfer One of the most commonly asked TUPE questions is whether or not the transferee (the buyer of the business or the incoming contractor) can amend the transferring employees’ terms and conditions after the transfer to match those of their existing workforce, so that everyone is on the same terms and conditions. After all, this would make perfect business sense and make life a whole lot easier in terms of the administration required. Under the current TUPE this process of harmonisation is by no means easy. Whether or not an employer is permitted to make changes to employees’ working conditions under the current regulations will depend on the type of change being made. TUPE envisages three types of changes, namely; 1. changes which are unconnected to the TUPE transfer - these are allowed (subject to them being reasonable); 2. changes which are connected to the transfer - these will usually be void, and therefore unenforceable, except where there is an ETO reason for the change (see below); and 3. changes where there is an insolvency situation - these are allowed, subject to certain conditions being fulfilled. Changes which are connected to the transfer may be permitted if they are for an “economic, technical or organisational reason entailing changes in the workforce” (otherwise known as an ETO reason). However, ETO reasons are interpreted narrowly, which in practice means that employers can only rely on them in very limited circumstances. It is also irrelevant whether or not an employee agrees to any proposed changes. TUPE still says the change will be void unless one of the exceptions applies! However, within the Government’s proposed changes is the introduction of a new clause that will allow the employer and employee to agree any changes that could have been agreed if the transfer had not taken place. This does not entirely resolve the problem, because changes proposed where the transfer is the reason for the change will still be prohibited – this is still the case under European legislation and the Government is not allowed to introduce UK legislation that contradicts the European directive. This means that harmonisation of contracts will still not be allowed, as the reason for the harmonisation is the transfer itself.
Who is liable, the transferor or the transferee? Under TUPE, the basic rule is that all “rights, powers, duties and liabilities” relating to the employees transfer from the transferor (the seller or outgoing contractor) to the transferee (the buyer or incoming contractor) at the time of the transfer. Whilst the transferee benefits from a rapid injection of manpower, it also takes on the liabilities that come with them. This means that if the transferor breaches an employee’s contract before the transfer, the transferee becomes liable for that breach after the transfer. This is assuming that the employee does not object to transferring to the buyer before the transfer takes place. Where an employee does object to his employment transferring, his employment is treated as terminated with both the seller and buyer. In that event, neither employer is liable for the termination. However, where it starts to get a little tricky is when the employee’s objection is in response to proposed changes by the transferee to the employee’s working conditions that are to his material detriment. Under these circumstances the employee is entitled to object to the transfer and treat himself
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
as having been dismissed. Further, in these circumstances the employee will be automatically treated as having been unfairly dismissed by the transferor. For example, consider the circumstances where an employee has a mobility clause in his contract allowing his employer to relocate him to different sites. The transferee informs the employee that following the transfer he proposes to change his place of work 50 miles from his current site. As there is a mobility clause in the contract, this change would not be a breach of his contract. Even so, the transferee’s proposal would still amount to a change to his working conditions, which would allow the employee to resign and treat himself as unfairly dismissed. This potential risk is made worse in circumstances of an SPC, where the transferor cannot prevent the transfer from going ahead and is therefore stuck with the effect of the transferee’s proposed changes. Under the Government’s new legislation this issue will be partially improved. Unless the proposed change by the transferee also amounts to a fundamental breach of contract, any objections and subsequent resignations by employees are unlikely to give rise to unfair dismissal claims. Using the same example above, under the new statutory regime the employee would not be entitled to claim unfair dismissal, and his compensation would likely be limited only to his notice pay. However, where the proposed substantial and detrimental change would also amount to a serious breach of the employee’s contract the transferor would still be liable for any unfair dismissal claims. Whilst this is not ideal, the Government’s hands are somewhat tied as these are the minimum rights that the European law requires the UK to implement.
Dispelling the myth of TUPE and assignment We often hear businesses say that “the employee spends more than 50% of his time on the business which is transferring, therefore he must transfer under TUPE”. This is a common misunderstanding. Whilst there are no proposed changes on this point, it is still worth mentioning given the level of confusion that has been created around this issue. Whether or not an employee transfers under TUPE with a contract part of a business has little to do with the amount of time he spends on that contract. The correct question is whether that employee is part of an organised grouping of employees which has been put together with the specific purpose of servicing a particular contract or business. This was put squarely into context in the recent case of Seawell Ltd v Ceva (Freight) UK Ltd, where an employee who spent 100% of his time working on a contract was found not to be assigned to that contract. The employee in this case just happened to spend all of his time working on a particular contract at the time of the transfer. However, his employer had never consciously assigned him to that contract, and as such was not necessarily bound to it. In contrast, it is quite possible that an employee who is specifically employed to service two parts of the business, with a 70/30 split of his time, would transfer under TUPE if the part of the business which takes up 70% of his time is sold.
Employee Liability information One of the more helpful provisions of the current TUPE, is that which relates to the duty of the transferor to provide the transferee with certain prescribed information about the employees before the transfer. This helps to create more transparency between the transferee and transferor. It is a little surprising therefore that the Government now proposes to remove that provision. But what will that mean for employers?
Presently under TUPE, the transferor is required to provide to the transferee, at least 14 days before the transfer, the following information; 1. the identity and age of the employees; 2. their employment particulars; 3. details of any grievance or disciplinary procedures taken within the last two years; 4. details of any court or tribunal cases, claims or actions brought by employees within the last two years (or that may be brought by the employees); and 5. details of any collective agreements. Parts 3 and 4 in particular can be very helpful to a transferee as they enable it to assess any potential liabilities that it will adopt under TUPE. If the transferor fails to provide this information, the transferee is entitled to bring a claim in the Employment Tribunal. The level of compensation in these types of claims is a minimum of £500 per employee, and can be considerably more. However, under the Government’s proposed changes the above rules are to be repealed. Instead, the Government will largely leave it to the parties’ discretion as to what information is to be provided prior to the transfer, and when that information is to be provided. Further, only information which is necessary to enable the transferor and transferee to properly consult with employees must be disclosed. Failure to comply with this will result in the transferor and transferee sharing the liability for any failure to consult with employees. Whilst it is expected that this will allow greater flexibility for the transferor and transferee, it will also leave the transferee somewhat blindfolded to potential risks. For example, the transferor will no longer be duty-bound to provide details of potential claims that will become the transferee’s responsibility, as that information is not necessary to enable the transferee to consult with employees. This will pose greater risks for businesses tendering for service contracts, where the transferee is unlikely to have any contractual rights against the transferor. The Government will be issuing guidance as to the types of information that should be provided by the transferor, and so it is hoped that this may prevent any arguments between transferee and transferor.
Watch this space
Whether or not an employer is permitted to make changes to employees’ working conditions will depend on its reasons for making those changes.
Of course the Government’s proposals are indeed just that, “proposals”. As such they have not yet been approved into our laws. Businesses will need to keep a keen eye on these proposed changes, especially those relating to service provision changes which, if removed, could leave employers with a hefty, and unexpected, redundancy bill. The issues which are highlighted above are just some of those which we, and our clients, have encountered over the years, and there are a number of other changes being proposed which have not been covered under this article. If any businesses are concerned about falling into an expensive TUPE trap, we are here to help you avoid those pitfalls. If you have experienced problems, or need help with any aspect of TUPE, please contact us on 0113 280 2000 (Leeds) or 0114 276 6607 (Sheffield). A member of our Employment Team will be happy to talk through your situation and ensure that you remain TUPE compliant and reduce or avoid liabilities.
News in brief Lifting the lid on The Patent The thorny subject Box tax of tax planning You may have heard about the 10% tax on profits from patents – the so called ‘Patent Box’. This is a significant development and it is important to understand what it means for your business: 1. Although still a proposal, it is being given serious consideration for 2013. 2. The 10% tax rate looks likely to happen so it is worth talking with your tax advisor to understand the implications for your business. 3. The reduced tax applies to profits from patents, so it would be prudent to review your strategy for obtaining patents. The Government has stated that: “The Patent Box will allow companies to elect to apply a 10 per cent rate of corporation tax from 1 April 2013 to all profits attributable to qualifying intellectual property (IP). “Qualifying IP includes patents granted by the UK Intellectual Property Office (‘IPO’) and the European Patent Office (‘EPO’), as well as supplementary protection certificates, regulatory data protection and plant variety rights.” The tax will apply to existing and new IP, as well as bought IP, as long as the owner has further developed it or the product it relates to. The legislation also outlines a structured approach to calculating the profits from qualifying IP. This tax break offers a real reason to invest in patents and our experts can help you understand the process and obtain patents on your behalf. You can read more about the Patent Box at: www.hmrc.gov.uk/budget2012/tiin-0726.pdf or contact John Sykes on 0113 280 2113 or email@example.com to discuss this further.
Following the recent furore surrounding tax avoidance, focusing on celebrities and multinationals such as Starbucks and Vodafone, we take a closer look at how some people are taking tax advice to the limit. Tax planning ranges from the simple and innocuous (paying into an ISA or pension scheme) to the convoluted and artificial ‘tax avoidance’ (the K2 type scheme). It is important to distinguish these from tax evasion, which involves dishonesty by not declaring taxable income and is a criminal offence. News articles have frequently referred to certain tax planning arrangements as “legal” in order to make it clear that they are not tax evasion. Successive Governments have tried to prevent the K2 type planning whilst still allowing people flexibility in how they structure their tax affairs. The difficulty comes in defining what constitutes ‘acceptable’ tax planning and what is ‘tax avoidance’. Changes to tax laws have helped prevent specific types of planning, but fall short of creating a blanket of legislation against tax avoidance. We’ve also seen the courts become increasingly inclined to find against tax avoidance schemes, with judges adopting a looser interpretation of the rules. Tax avoidance schemes now rarely succeed before the tax courts. The tough economic climate has put the undesirability of tax avoidance in the spotlight, with Jimmy Carr and Take That just two of the celebrity examples highlighted. In the case of Starbucks, many individuals actually urged a boycott. Reputational risk is therefore now a huge issue that must not be overlooked. A major development on the horizon is in the shape of a general anti-abuse rule, which is due to come
into force on 1 April 2013. The rule will apply to tax structuring which cannot be regarded as a reasonable course of action in relation to the relevant tax rules. In deciding whether it can be regarded as such, HMRC, the courts and a specially-established advisory panel will look at factors such as the artificiality of the arrangements and whether the tax treatment significantly differs from the economic substance of the arrangements. This is likely to catch contrived arrangements such as the K2 scheme, but unlikely to catch some of the international tax planning which has been under the spotlight recently. The latter is better addressed through a tougher application of existing tax legislation, such as the transfer pricing rules. Those who have implemented tax planning which is challenged should check the accuracy of any advice or representations made by their advisors or scheme promoters. If there were inaccuracies there may be legal recourse against the advisor or scheme promoter. In a recent court decision (Horner v Allison), an individual who implemented an unsuccessful tax planning scheme was able to claim damages against an individual for fraudulent misrepresentation as to elements of the scheme and her degree of experience. For expert advice on tax planning and the right approach for you and your business, contact Melanie List on 0113 280 2065 or firstname.lastname@example.org.
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
The costst of Andrea Dyer, Head of Family and Divorce Services at Lupton Fawcett Lee & Priestley, explains the importance of seeking specialist legal advice to protect your finances during a separation.
For anyone in the process of, or considering a divorce, the issue of how to divide your finances can be both sensitive and contentious. When trying to reach a financial settlement you may choose to negotiate directly with the other party, attend family mediation, engage in the collaborative law process, take part in traditional solicitor-based negotiations, or even begin court proceedings. However you decide to seek a resolution, the following factors, as set out in section 25 of the Matrimonial Causes Act 1973, should be taken into account: • Income, earning capacity, property and other financial resources which either party has or is likely to have in the foreseeable future. • The financial needs or responsibilities that either party might have or is likely to have in the foreseeable future. • The standard of living enjoyed by the parties prior to the marital breakdown. • The age of each party and the duration of the marriage. • Any physical or mental disability of either party. • Contributions which each party has made or is likely to make in the foreseeable future to the welfare of the family. • The conduct of the parties if, in the court’s opinion, it would be wrong to disregard it. • Any loss of benefit under pensions. • Any other relevant circumstances. In cases where children are involved, their welfare will always be at the forefront of considerations, but some or all of the above factors may be relevant. When parties seek a binding and enforceable agreement by asking the court to make an order to reflect the terms of any agreement reached, it is worth noting that the court can and does refuse orders which it thinks are not fair to one or both parties. Courts do not simply rubber-stamp applications for consent orders.
What is fair? The definition of ‘fair’ largely depends on the parties’ individual circumstances and is influenced by recent case law in addition to the statutory criteria previously stated. The starting point set out in the famous case of White v White in 2001 is an equal division, but there are many reasons to move away from this precedent. For example, one party may earn more than the other; there may be minor dependent children whose primary home is with one party; or there may be issues such as inherited assets and premarital acquired wealth and contributions to take into account. It is also important to understand the powers that the court has in divorce cases. It can, for instance, order properties to be sold or transferred to the other party, or one party to have a deferred charge type arrangement over the property. It can also make orders in relation to income, such as spousal and child maintenance and pension provision. Judges in such cases have a great deal of discretion as the law is based not just on the statutory components of the Matrimonial Causes Act 1973, but a whole host of case law which is constantly evolving and filtering down from the High Court, the Court of Appeal and the Supreme Court. Parties sometimes don’t realise that there should be an unequal division of capital based on their own financial circumstances. For instance, one or both parties may have business or family trust interests, or other investments, to be valued and considered. There is also the common misconception that all pensions are the same and it is as simple as adding the values together and dividing by two. This thinking fails to take into account the fact that one person may have a final salary scheme and the other may have a money purchase scheme, which further highlights the importance of seeking specialist advice.
The Law Commission is currently looking into two discrete issues of financial relief: • The extent to which one party should be required to meet the other’s needs after the relationship has ended. • How non-matrimonial property (i.e. property acquired by a party prior to the marriage or civil partnership or received by gift or inheritance) should be treated on divorce or dissolution.
The report is expected shortly and it is not yet known whether it will lead to legislation changes.
How Lupton Fawcett Lee & Priestley can help If you are faced with financial issues following marital breakdown, it is worth seeking independent legal advice before getting involved in meaningful settlement discussions or reaching formal agreement with the other party. These are considerations which can have an enormous effect and impact on the rest of your life. Lupton Fawcett Lee & Priestley’s Family and Divorce specialists offer a wide range of family law services. We are vastly experienced in dealing with financial matters associated with relationship breakdown, particularly those involving high net worth assets, and we will ensure you get a fair deal. Find out more by calling Andrea Dyer at our Leeds office on 0113 280 2090.
The definition of ‘fair’ largely depends on the parties’ individual circumstances.
Local property taxation in the form of business rates represent a significant cost to businesses, and contributes around £24 billion annually to the Exchequer. In a recent PwC survey of the Total Tax Contribution of the top 100 UK companies, business rates accounted for 15% of their annual tax contribution, and were the third largest tax after Corporation Tax and employers’ NIC. For smaller companies, rates are typically the second largest tax after Corporation Tax. This is why it surprises me that when my advice is sought about business rates it is usually the Property Manager rather than the Finance Director or Tax Manager asking the questions. Rates are a tax and I would urge finance and tax specialists to take a far greater interest.
Understanding backdated bills The ‘two taxing bodies’ system has disadvantages for ratepayers who are pushed from one to the other whilst trying to avoid the traps lying in wait for them. With most taxes, once HMRC has assessed the tax due and this is paid, that is generally the end of the matter. Rating is unique because the VOA can change the rateable value retrospectively or value unassessed properties at any point within the current 5-year rating cycle which began on 1 April 2010. The rules are complex and a valuation “limitation” rule can be invoked by the ratepayer in the right circumstances. Where a Local Authority levies a backdated demand, study this carefully before paying. There is actually a wealth of case law, culminating in the North Somerset case, that dictates a backdated rates bill may not be legally due or payable.
A tax on occupation The origin of rates can be found in the Poor Relief Act of 1601 and began as a tax on the value of occupation of land. Rates are also a fairly arbitrary tax, and the general impression is that there is no way to reduce the charge other than by the usual rateable value appeal – but there are other avenues to explore. Rates are unusual in that they rely on two taxing bodies. HMRC use the Valuation Office Agency (VOA) to set the basis for the tax by allocating a ‘Rateable Value’ to a property. The Local Authority then demand and collect the rates, as well as determine reliefs and exemptions. When targeting business rates cost reduction, the level of this Rateable Value is often the first port of call through discussions with the VOA. But the system also allows for discussion with the other party to levying the tax – the Local Authority. Within the Local Government Finance Act a number of mechanisms exist that allow the Local Authority to reduce, remit or remove rates in certain circumstances. Charitable, non-profit-making organisations, sports clubs or ratepayers suffering hardship have long been able to secure reductions in rates liability. Additionally, from 1 April this year, the Government has granted Local Authorities the power to create their own local discounts. It remains to be seen how or if these new powers will be used. One of the least-publicised reliefs is for where a property is in partial use for a short time. When combined with a special rule that enables inactive machinery or office equipment to be ignored, this relief can be very valuable in a wide range of circumstances.
Business rates – a two-way street?
Cost reduction and cash recoveries are more relevant than ever before, and property costs are a major burden for many businesses. Phil Vernon, Rating Specialist at PwC, shares his thoughts on why the issues of business rates should be of interest to more than just Property Managers.
The rules behind empty rates In 2007, the previous Government decided to reform the rating system by extending the scope of rate charges on empty properties. Since 1966 there has been a steady move towards empty rates, but the changes that took effect on 1 April 2008 introduced a 100% empty rate charge on empty industrial properties after a 6-month initial rate-free period, and after 3 months on offices and shops.
Empty rate mitigation With empty rates becoming a real problem to many owners, there has been a lot of focus on these tax charges. There are legitimate ways to remove the empty rate burden, such as by agreeing shorter term lettings. A new occupier, providing they stay in occupation for more than 6 weeks, has the double advantage of a new rate-free period being generated once they vacate the property. For older buildings, the VOA has a statutory presumption that a building is in good repair, and they are not always persuaded that a property in poor condition should be removed from rating. As a result, the Local Authority would seek to continue to levy the rate charges. However, there are a number of empty rate exemptions available, dependent on the physical state of the property, and these can be explored by rating advisors.
Get creative to avoid the rates burden Some owners have turned to creative methods to remove the rate liability. For example, short-term funded lettings under licence to a charity have the potential to remove a large part of the rates burden. Properties owned by companies in insolvency proceedings are exempt from rates if proper procedures are put in place, but some sham schemes have been devised. However, Local Authorities and the Government are becoming more aware of these schemes, with Local Authorities beginning to refuse rate reliefs and a number of cases due before the High Court, which could spell an end to some of these avoidance strategies. Recent announcements from the Charities Commission and the Insolvency Service have also made it clear that charity trustees and insolvency practitioners involved in outright avoidance would be subject to sanctions. The moral of all of this is that wider consideration should be given to business rates, and when navigating the various routes to reductions, there are numerous two-way streets and the odd dead end. In all rating matters, professional advisors are there to point the way. Always look for a member of either RICS or the IRRV who will operate within their codes of practice to get the best solution for your business.
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
The devil in the detail
If you feel held to ransom by your business rates, our Director of Commercial Property and Development Work, Russell Davidson, looks at ways to enjoy a little tax relief by questioning your current agreement.
Many landlords and business owners simply accept the terms of their business rates, but with some thought and careful drafting there are a number of practical steps you can take to deliver significant benefits.
Do not be afraid to question the VOA. The evidence of a prolonged letting campaign, plus a surveyor’s opinion that there is no market for that particular property in that particular area, forms a powerful case in arguing against a rates assessment on a building. Remember that VOA employees are extremely stretched, so include in your submission details of any marketing campaigns you have undertaken and photographs showing the state of the property. There is no duty on a property owner or occupier to keep a building in pristine repair so the VOA is obliged to assess the property as it is on the date of valuation.
Clarifying your lease burden A tenant, not wishing to renew their lease, might move out during or towards the end of the lease. As the landlord, you might then find the nil rate period has expired. One way to prevent this happening is to include within the lease a provision that the tenant should reimburse you for this loss if they move out prematurely. The rateable value of commercial premises is assessed by the Valuation Office Agency (VOA). It often works to historic figures and it is important to know that the original information submitted when your premises was first assessed may be old. Both tenants and landlords should also keep an eye on the rental values of comparable premises in their areas, and lodge an appeal against the rateable value of any property that appears over-rented. When submitting rateable value information to the VOA, make it clear exactly what services are and are not included in the rent. If a number of landlord services are included, this implies that the element of the rent attributable to occupation is less than the headline sum, so make sure it is the true occupation cost that the VOA take into account.
Property and business acquisitions Always ensure the acquisition document clearly states who is responsible for business rates. If you are selling or letting a property and the buyer or tenant is late in completing, does the contract make it clear that they are obliged to pick up the rates liability for the period of non-occupation? If not, then the seller or landlord is liable. Similarly, if your agreement allows for early occupation by the buyer or tenant – in advance of completing the disposal or letting – is it clear who pays the rates? Business rates liability falls on the party in effective occupation and control of the premises. So, suppose you sell a property but want to store goods in it temporarily or share its use for a short period with the new owner – again, does that count as occupation and control for the purposes of the rates liability? These are just some of the questions that the expert team at Lupton Fawcett Lee & Priestley can answer for you.
Steer clear of questionable advisors
In the current letting climate it is common to offer long rent-free periods and landlord inducements such as fit-outs and other services. Again, the value of these should be assessed. If the VOA has focused only on the headline rent, it can be argued that a substantial rent-free period or other inducement has not been taken into account when assessing the true rateable value of the premises.
Lots of firms offer to reduce business rates liabilities and do so on a “no win no fee” basis. Treat these companies with caution and be sure to check the small print as some charge for each year of saving, which can add up to much more than would be the case for a surveyor paid on a normal time spent basis. Using a reputable surveyor will save you money in the long run as most will agree a fixed fee for trying to get a rates reduction, which may include an uplift if they secure a certain saving.
Dealing with difficult to let properties
Agreeing a deal with the VOA
Even before Gordon Brown increased the empty rates burden from 50% to 100% of the rateable value, owners of hard to let properties were stripping roofs off and doing other work to make premises uninhabitable in order to reduce the rateable value to nil. Both the VOA and Local Authorities are wise to such actions and are now much more reluctant to remove premises from the valuation list. This is where the opinion of a reputable valuer can help; areas change as does taste in buildings, and some properties may indeed be incapable of attracting an occupier. Even squatters are more choosy than they used to be!
If you lodge an appeal with the VOA you may receive a call offering to do a deal rather than pursue a valuation tribunal. Preparing a tribunal involves a lot of work which they would rather avoid where possible. These deals are usually done over the phone with calls often recorded. Be sure to get your facts straight in advance as once you have done the deal you will be held to it. If you want to take control of the business rates you pay, and explore ways of managing your properties more intelligently, call Russell Davidson on 0113 280 2138 or email email@example.com.
Calculate the cost of tenant incentives
contracts could be referred to adjudication, but it now also encompasses oral contracts. Nevertheless, it remains good practice for the terms of contract to be documented in writing.
Seeking an expert opinion
Claire Moss from our Building and Construction team takes a look at the impact disputes can have on your business, and outlines how Lupton Fawcett Lee & Priestley can work to protect your interests and avoid expensive, lengthy conflicts before they happen.
Many factors can impact on cash flow, including poor management, a downturn in revenue and an increase in expenses. In the construction and building industry, disputes between employers, contractors and sub-contractors can be a primary cause of cash flow problems. For that reason, it makes good business sense to avoid conflicts during construction-related projects and quickly and efficiently resolve any disputes that do arise. Whilst no-one enters into a contract with the intention of getting into a dispute, it is still important, prior to entering into a construction contract, to consider ways of minimising the chances of conflict both during and at the end of a project.
• Set out on what basis an extension of time for completing the works will be granted, and the procedure for doing this. • Set out what, if any, damages can be claimed in the event that the works are not completed on time and no extension has been granted. • Set out the procedure to follow in the event that the contract has to be amended e.g. to allow for a change in the scope of the works. • Contain an entire agreement clause, which prevents the parties from relying on any statements or representations other than those expressly set out within the contract. • State what procedures can be used in the event that a dispute cannot be avoided.
Get your agreement in writing
When disputes arise
To secure a job it can be tempting to ignore the hassle of paperwork and proceed on a simple handshake or ‘gentleman’s agreement’. This is risky, as if a dispute does arise there is no written contract to refer back to. You could then find yourself in a position where a court or third party resolves your dispute based on whose witness evidence they prefer, regardless of whether that reflects the initial agreement. To avoid such a scenario, all parties should take the time to agree, document and sign terms at the outset. This doesn’t have to be complicated or expensive, but it is worth getting professional advice. A well-drafted contract should:
There are a number of ways in which construction and building disputes can be resolved, and it is not always necessary to resort to the courts. The most appropriate method will vary from contract to contract, and all parties should consult with their legal advisors about the various options before entering into the contract. If a resolution cannot be reached by way of discussions or negotiations between the parties, then the two main alternatives to commencing court proceedings are adjudication and arbitration.
• Be clear about the identity of the parties entering into the contract. • Be specific about the scope of the work, and reference where possible the plans and specifications. • Set out in full the responsibilities of each party. • Be clear about the payment terms and dates.
Keeping cash flowing Adjudication was introduced as a way of quickly resolving construction and building disputes and protecting cash flow whilst the project is ongoing. Usually concluded within 28 days of being referred, the adjudicator’s decision is binding unless and until the dispute is closed through litigation, arbitration or agreement. This ensures that the project can continue with minimum impact on cash flow. Until recently, only disputes arising out of written
Arbitration is more formal than adjudication and more flexible than litigating a dispute through the courts. It is often preferred to litigation as all parties are bound by confidentiality, which does not apply in court proceedings. The arbitrator is often someone with a construction background, which can be reassuring if the dispute is of a technical nature. The parties can refer, within the construction and building contract, to a specific arbitrator; or an organisation such as the Chartered Institute of Arbitrators will appoint one if asked. As the arbitrator’s decision is final and binding it can be considered as more certain than adjudication. The main disadvantage of arbitration over adjudication is that it is far more time; consuming and expensive.
Letting the courts decide The very last resort is to go down a litigation route, which means letting the courts rule on your dispute. This can be costly and time-consuming. In most cases it is therefore clearly beneficial to pursue alternative dispute resolution processes rather than litigating through the courts.
Other methods of dispute resolution Other options for resolving construction and building disputes without recourse to the courts include: Expert Determination – where an expert who is familiar with the technical issues disputed is jointly appointed by all sides to determine the dispute between them, often on the basis of written submissions only. The decision is then legally binding. Early Neutral Evaluation – a non-binding process in which an independent third party, appointed by all sides, gives a non-binding assessment of the merits of any claim. Mediation – where an independent third party will assist all sides with negotiating their own binding settlement. If the parties work together prior to entering into a contract, to ensure that it is as comprehensive as possible, then the chances of ending up in a dispute with one another should be minimised. In the event, however, that a dispute cannot be avoided, both parties should seek legal advice about the dispute and the options for resolving it at the earliest opportunity. This should ensure that there is as little disruption to the cash flow cycle as possible – something which is more important than ever before.
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
Crowd Funding: the more the merrier With lending from banks hard to come by, individuals are pooling resources to fund everything from businesses to creative projects. Andrew Lindsay, Head of Corporate Finance at Lupton Fawcett Lee & Priestley, and a Director of the Leeds, York & North Yorkshire Chamber of Commerce, looks at the Crowd Funding phenomenon and asks, could it work for you?
Crowd Funding is all about collective lending and investing, and where the banks have stepped out, individuals are stepping in. The concept originated in the USA as a way for people to group together and pool their money to fund what were initially creative projects, such as films and theatre productions. The idea originally focused on the giving of nonfinancial rewards, such as tickets to a project’s premier in return for finance, which was a way to get around the investor protection regulations. It has now evolved significantly. In the UK, a share offering by a private limited company is governed by the Financial Services and Markets Act 2000 which, on the grounds of consumer protection, greatly restricts the type of individual a company can promote or offer shares to. Crowd Funding, however, has bowled the regulator something of a ‘googly’ in both the USA and the UK. Businesses are now using novel fundraising methods to navigate their way through financial services regulations, which were designed to prevent this sort of unregulated activity from occurring. Increasingly, crowd funders are devising schemes and utilising loopholes that
allow a company to offer its shares to the world at large, and this is greatly increasing the chances of a new venture achieving its funding objectives. Individuals are coming together online to fund a company in return for the possibility of some reward. Investors ‘bid’ on normal commercial terms, in return for either a shareholding or a loan. The company then typically considers the various offers and accepts those which it finds most favourable.
The Crowd Funding options There are several models of Crowd Funding. The first utilises donations, the second debt finance, and the third equity finance.
Donations model – This model sidesteps financial regulations by offering gifts instead of equity/debt in return for funding. Funders provide money to a company or to fund a project, either for no return or in return for some form of nonfinancial reward. The gift could be a bespoke recognition in the product, or a meeting with the creators, etc. This model is largely used in the creative sector and laid the foundations for the other variations that followed. Lending model – This method has proved increasingly popular and provides businesses with an alternative to traditional bank lending. It allows funders to provide money by way of a loan with a requirement that it is repaid with interest. The funders can propose at what interest rate the loan is repaid, and the company seeking finance can then choose to accept the loans that it deems most suitable. To fit in with the current regime, the loans must not involve the provision of consumer credit. Securities model – As a general rule, under the Financial Services and Markets Act 2000: ‘a person must not, in the course of business, communicate an invitation or inducement to engage in “investment activity”’. This creates a position whereby a private limited company cannot approach the public at large to seek investment in return for an equity stake. Companies can now, in the
main, approach ‘high net worth individuals’ and ‘sophisticated investors’, where investor protection regulation is less onerous; but, by only approaching these types of individuals, the market for raising finance is potentially reduced. There have been two main approaches used to get around the restrictions of the current regulatory regime:
1. Where FSA authorisation is required It is possible to get FSA authorisation to arrange deals in units through a collective investment scheme. This model makes use of an exemption under the current regime by only promoting to individual investors who are deemed adequately knowledgeable about the risks. Due to the nature of the selection process involved with this model, the number of potential investors may be limited when compared with the model below.
2. Where FSA authorisation is not required This model relies on certain exemptions and loopholes contained within the UK regulatory regime that allow a company to approach the public at large for investment in return for an equity stake. The company using this model does not require FSA authorisation, but the Crowd Funding platform must be approved by a person authorised by the FSA. The FSA did not envisage the emergence of Crowd Funding and the regulatory regime does not sit particularly comfortably with it. It is likely that UK regulation will be introduced at some point in the near future to ensure a regulated marketplace for this activity, and to provide adequate investor protection. One course of action for Parliament would be to follow the USA and its implementation of the “Jumpstart Our Business Startups Act” (the “JOBS Act”) to further deregulate this type of investment activity in the UK.
Could Crowd Funding work for you? Lupton Fawcett Lee & Priestley has recently been involved in advising on a number of Crowd Funding projects and the level of interest generated is steadily increasing. If Crowd Funding is of interest to you or your business, you can draw on our extensive knowledge in this area. To discuss this further contact Andrew Lindsay on 0113 280 2025 or andrew firstname.lastname@example.org.
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
Created with the modern financial environment in mind
Protecting the health of your wealth
A service for whatever your circumstances require
We have recently launched a new bespoke wealth management company, Leodis Wealth LLP, to offer all our clients the financial planning and management needed in today’s challenging economic climate.
Currently, the services offered by Leodis Wealth include portfolio and cash management, general financial planning, and a personal taxation service for clients who need help completing their annual return. Typically, clients will seek our advice when they have savings, a windfall or an inheritance to invest, or existing investments which need reviewing in light of changing market conditions. They may have pension arrangements which are unclear or perhaps not right for them, or they may need more general advice on their overall financial affairs and plans to ensure they are complementary and understandable. To make sure our clients always have access to the best advice around we also work closely with Lupton Fawcett Lee & Priestley’s Wills and Trust team, trusted third parties who provide specialist help, and any other professional advisors they might want us to liaise with on their behalf.
Many firms in the financial services sector will have had to make significant changes to their business models to meet the new regulatory requirements which came into force this year. Commission-based advice has had to be replaced by fee-based arrangements – we have always been fee-based, so there has been no change or disruption in how we work. In addition, we have never focused on selling products, believing instead that our clients’ interests are best served by providing a bespoke service that is right for their circumstances and requirements. Their hopes, plans, attitudes and preferences are at the heart of what we do, and we strive to ensure that a close, long-term working relationship is established with the aim of realising their goals.
Sound financial planning has never been so important Previously the Asset Management department of Lupton Fawcett Lee & Priestley had been offering wealth management services to private clients. This was established in the late 1980s, and although providing financial services was somewhat unusual for solicitors, we have always felt that our clients – including those using our corporate services – are in essence ‘private clients’, with the businesses they own and manage being the vehicles for creating, maintaining and growing their personal and family wealth. We see these services as a natural extension to the others that we offer, in particular those of our Trusts, Wills and Estates department.
In the current economic environment it is vital to have a well-thoughtthrough financial plan in place. Prior to the economic crisis of 2008 investors could choose between the safety of cash savings – which would produce modest returns – and riskier stock market investments which had the potential to generate higher returns. The property market was also a popular choice for investors’ funds, with price rises fuelled by the seemingly endless supplies of cheap money from the banks. However, the world is a very different place today. Interest rates on cash savings have plummeted, and there are real concerns about the safety and strength of many banks, including those high street institutions which previously were regarded as …well, as safe as houses. All of this highlights the need for the kind of expert support that Leodis Wealth can offer.
A fresh approach to wealth management Leodis Wealth is a bespoke wealth management company that incorporates the activities and personnel of our Asset Management department. We believe this independent, dedicated business is the best way to meet the growing need for wealth management services. It also creates a clear distinction in our operations to meet regulatory demands. The Leodis Wealth team provides the comprehensive advice we are known for, and we’ll continually explore ways of enhancing the service we offer you – be that through new activities or the recruitment of specialists with new skills and ideas.
The smart money is with Leodis Wealth We would be delighted to help with your investment and general financial planning, and our industry expertise and unbiased advice across a range of wealth management services will ensure that you get the best deal possible. An initial meeting costs nothing more than your time, and if you would like to talk about what we can do for you, call Paul Smith of Leodis Wealth on 0113 280 2121 or email email@example.com. Alternatively you can visit the Leodis Wealth website: www.leodiswealth.com.
The argument in favour of NEDs Professional legal advice, whilst extremely important, may not offer a total solution for business growth and improved performance. Kevan Watson, Head of Marketing and Communications at NED Connections, explains why the addition of a non-executive director (NED) can be the best decision many SMEs ever make.
“Experience, talent, leadership and key skills, particularly at director level, have never been so crucial to business growth, and in some cases survival.” That is the view of Kevan Watson of NED Connections, a unique organisation that connects non-executive directors with SMEs. The NED Connections service complements those provided by other professionals, such as lawyers, accountants, insurers and venture capitalists. Whilst these professionals offer business advice in their specific field, their clients may benefit from the next tier of support that a non-executive director can bring. Keen to see them prosper, some professional services providers have even helped their clients tap into this valuable resource.
Objectivity, creativity and invaluable experience Increasing pressure on SMEs and owner-managed organisations can lead to some business needs being neglected, and this is compounded by the misconception that recruiting at board level is simply too expensive. That’s where a non-executive director comes in. As defined by the Institute of Directors, a NED is a person who is not an employee of the company and usually works part-time. NEDs have the same legal duties, responsibilities and potential liabilities as executive directors, but they can bring a different perspective to the role. NEDs are usually chosen for their breadth of experience, relatively high calibre and personal qualities. They can make a creative contribution by providing objective criticism, and focus on board matters without straying into executive direction. They may also have some specialist knowledge that will help the board with valuable insights. Above all else, they bring a degree of objectivity to boardroom discussions by virtue of their independence.
Not just for big businesses
Historically, NEDs have been associated with large corporates where the need for objective guidance and corporate governance is in great demand. However, the SME sector also needs the support and fresh thinking offered by bringing experienced and talented non-executive directors to their boards. One such company, full-service design and marketing agency Magpie Communications, did just that. The communications agency, which specialises in youth and student campaigns, had arrived at a point where it was either invest and expand or remain a niche provider with a modest, but healthy, turnover. The business partners had sought advice about mentoring and coaching,
and after meeting NED Connections they realised they could recruit a NED with sector-specific experience for around the same cost as a junior designer. They decided to take the bold step of bringing a NED on board. Non-exec’, Jules Caton, former MD of a marketing agency with 240 employees, was selected as the perfect match. Magpie director, Ged Savva, said, “We believe we had reached a point where a high-calibre NED with marketing, design, brand and business experience would help us achieve our goals.” Those goals were challenged by the incoming NED, who initially concentrated on restructuring the financial strategy of the company, which in turn redefined Magpie’s business plan. A strategy session helped extend the boundaries set by Magpie through thoughtful questioning and constructive criticism, and with the company encouraged to look beyond its current sectors, it is already seeing growth in new areas. Board meetings are now more structured and the NED is in regular contact offering business advice – even adding creative input which resulted in a major new client win. “It is a brave move for such a young organisation to engage a NED but it reflects their mature business approach,” Jules Caton said. Other business owners and leaders appear to agree.
Bringing a fresh perspective to your business Some, who already act as non-executive directors or have NEDs on their boards, argue that SMEs have been largely ignored where non-executive directors are concerned. Margaret Wood MBE is the owner of ICW (UK) Ltd in Wakefield. She employed a non-executive director and claims that without a NED her specialist glass panel manufacturing business might not have survived. “In any business you can become very insular. As owner and managing director of a business I needed someone to challenge me, make me think about what I was doing and plan the way forward”, she said. Some NEDs are chosen because they have a specific skill lacking on a board, whilst others have the industry experience and contacts a business needs. This makes the matching of candidates with organisations a careful process. Equally, it is not just a case of bringing in friends or somebody who may have been a senior executive in a big company, but who has no empathy with the requirements of a growing SME. In Margaret Wood’s view, “the key thing is finding the right fit of person for your board.” For those organisations that do find the right individual the benefits can be significant, not to mention cost-effective. As Margaret concludes, “finding the right person as a NED brought me a huge return on investment.” To watch Margaret Wood’s account of her NED experience, plus comments from other business leaders, visit www.nedconnections.com. For further details on NED Connections contact Gillian Johnson on 0330 1000 961 or firstname.lastname@example.org.
A Lupton Fawcett Lee & Priestley Periodical. Issue 3
The secrets of smart IP John Sykes, our Head of Intellectual Property and Commercial Law, shares his top 10 tips for good IP practice, and points out some of the common pitfalls to avoid.
Basic checks save money! Start-up businesses can save a lot of time, money and trouble by carrying out basic checks on their proposed trading, product or service names before putting them into use. A free search of the UK Trade Mark Registry website www.ipo.gov.uk will tell you if your chosen name (or similar) has been registered as a trade mark or if an application to register it has been made. This site also contains a good overview of intellectual property rights and regulations.
Knowing your potential market can avoid litigation
Keep records to protect your unregistered rights When it comes to copyright works, always include the © notice and date on which your work was originally created, and post yourself a copy of the original, dated, signed work and keep it somewhere safe.
Don’t forget design right protection Design rights can be obtained for designs that are ‘novel’ and have ‘individual character’. Sometimes a design right registration can be obtained for your trade marks, which can give you an additional monopoly right for the outward appearance of the design.
Make sure you complete your trade mark searches before printing up stationery and corporate identity, to avoid infringing an existing trade mark. Reprints and the potential legal implications can be extremely costly, especially during the start-up phase of a business.
Make more money from your design work
Make protective domain registrations where possible
Maximise the income from your IP assets
Register your web domain name as soon as you can. The process is relatively cheap so it is also worthwhile considering registering similar words or abbreviations. This prevents rival companies registering domain names that use variations of your business name, which can mislead customers and threaten the reputation of your business.
Certain design rights may exist automatically without the need for registration, but you can still acquire a licence fee if a third party wishes to use your design.
Maximise your legal protection Protect yourself by registering your trade marks. You can make money by doing this as you are not only entitled to costs and damages if someone infringes your rights, you can also grant licences to third parties for future use.
Know what legal rights you have and use them effectively Make sure you use the ™ and ® notices correctly on all your brand names. Some rights exist “for free”, such as copyright and common law rights for trade marks, so you should use the © and ™ notices wherever your copyright works and trade marks are reproduced. If you have registered your trade mark you can also use the ® notice.
As with trade marks and copyrights, a design right not only prevents other people from using your design, but also allows you to sell or license the design to third parties.
A word of warning about patents and secrets If you disclose your idea for an invention without asking the other party to sign a confidentiality agreement, you could lose the right to get patent protection. The same is true if you work on your invention in a publicly-accessible place – which would include your garden shed.
Let us help protect what is yours When you have invested your time and money into developing an idea, it is only right you get to enjoy its success. To do this you need the right expert advice to protect your intellectual property. Speak with John Sykes and his team of IP specialists at Lupton Fawcett Lee & Priestley before you share your idea with anyone, and they can talk you through getting the IP protection your idea deserves. Contact John on 0113 280 2113 or email@example.com.
Get free publicity by making sure your licence agreements require licensees to print on all your products, or their labels, the words “used under licence from [your company name]”.
The smart choice of legal partner Colin Horsley, Property Consultant at the Austin Reed Group, shares his experiences of working with Lupton Fawcett Lee & Priestley and highlights how we deliver real value to his business. You’ve been working with Lupton Fawcett Lee & Priestley since 2010. What was the original problem or challenge on which you engaged with them? Initially we were looking for a legal partner who could demonstrate an understanding of our business and the challenges we face. Finding someone who ticked these boxes was harder than it sounds, and we tried a number of firms in London and Yorkshire with little joy. I became aware of Lupton Fawcett Lee & Priestley and their strong reputation when a Director with whom we had a long-standing relationship joined the firm. This was the catalyst for us to begin working together, and we have not looked back since. They have proved time and time again their ability to understand our business and support us in a number of ways across our entire operation. What business areas do they support you in today? We draw on Lupton Fawcett Lee & Priestley’s expertise in all areas of property law, including acquisitions, disposals, litigation and commercial matters. I am also aware of their strong intellectual property offering, but to date we have had no opportunity to tap into this. There is one project in particular that springs to mind and highlights how they used a range of specialisms to deliver the right solution for us. The lease assignation of our prestigious Regent Street store to Superdry, and the way that they managed this complicated process, was very impressive. They not only handled the assigning of our lease with the landlord and head landlord involved, and helped us lease back some of the space, but also took care of a number of other issues. We were delighted by their efficiency and professionalism throughout the process. What differentiates Lupton Fawcett Lee & Priestley from their competitors? I would say it is their entire approach that sets them apart. They have a very good understanding of our business and what makes us tick, and they take a holistic view of how we operate. Nothing is too much trouble and they go about their work in a way that puts you at ease. Here in the UK, we tend to seek legal advice when we have business or legal problems, rather than avoiding problems in the first place. What’s your opinion of this approach, and have you benefited from ‘The Law of Advantage’ that Lupton Fawcett Lee & Priestley claim to put on your side? As a business it is always best to know where you stand legally, and it is reassuring to know that Lupton Fawcett Lee & Priestley is there to provide that advice from the outset. In the past, other firms have struggled to deliver the same level of clarity and insight, and I think this is because they lack the commercial acumen that Lupton Fawcett Lee & Priestley possess. To me, it is this peace of mind knowing that we have the right partner by our side that gives us ‘The Law of Advantage’.
To some it’s about the company they attract To us it’s about the company we keep
Business is never as usual at Lupton Fawcett Lee & Priestley – it is the result of our unique approach to client relationships. We are prepared to think in an untraditional way, and advise you as though we were advising our own business. It is a culture that has helped us form solid partnerships with Chairmen and MDs all over the country. We call it the Law of Advantage. www.lf-lp.com