Contracts Frustrated by COVID-19

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As a result of the ongoing coronavirus pandemic issues may have, or will arise regarding the performance of contracts you may have entered into. Following the recent measures issued by the government a number of events or services have been unexpectedly cancelled. As a result of this a party may find it impossible to fulfil their obligation under the contract.

As a general rule, if performance of a contract becomes more difficult or even impossible, the party who fails to perform is liable in damages. Frustration is an exception to this rule.

In the case of Krell v Henry [1903] a situation occurred when King Edward VII fell ill with appendicitis two days before the celebrations that were to take place following his coronation. Many people had entered into contracts in advance of the celebrations, by hiring rooms to watch the procession, or boats to watch the accompanying naval review. The events were originally scheduled to take place in June of 1902, but had to be postponed until August 1902 (sound familiar to you at all?). When the celebrations were postponed, they argued that the contracts had been frustrated, and that they should not be liable for the sums they had agreed to pay. This and other cases later became known as the Coronation Cases.

What is Frustration?

Frustration is where the terms of a contract are brought to an end on the basis it is impossible to carry them out.

If a contract has been frustrated it is automatically discharged and the parties are no longer subject to their future obligations. The contract is brought to an end immediately and it is neither party’s fault. This means neither party can claim compensation even if the other party has not carried out their obligations under the contract.

When determining whether a contract has been frustrated the Courts will need to examine all the circumstance of the particular case in hand. In general terms, there are a number of conditions that must be met to determine if a contract has become frustrated.

At Adams Harrison we can advise you on contractual disputes, to include whether the contract has become frustrated, particularly in light of the current circumstances brought about by the coronavirus pandemic. Contact one of our offices to discuss how you can provide us with a copy of the contract you require advice about.

Grandparents:- Their Role, Rights And Responsibilities

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The role of grandparents continues to evolve and perhaps become increasingly more important. Almost two thirds of all grandparents look after their grandchildren regularly, often whilst parents are at work. A contributory factor is the cost of childcare which means there are many informal family arrangements.

The Children Act 1989 as amended requires grandparents to seek permission (leave) of the court to file a section 8 application. This creates a two stage procedure, except in some exceptional circumstances where a grandparent may make an immediate application.

A grandparent has no parental responsibility in law which means they cannot make major decisions such as about medical treatment, schooling and for travelling outside the UK which can present difficulties for grandparents caring for their grandchildren. In the case of Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114, Thorpe J suggested that trial judges should have greater appreciation for the contribution made by grandparents for the care of their grandchildren.

A large number of grandparents may sadly lose contact with their grandchildren when parents separate. The first step must always be to try to resolve issues within the family by agreement or through mediation.

Which court orders can grandparents apply for? The most likely court orders are a Special Guardianship Order (Section 115 of Adoption and Children Act 2002) or a Child Arrangements Order (Section 8 Children Act 1989 as amended).

  • A Special Guardianship Order lasts until a child is 18 unless changed by earlier court order. It enables the special guardian to have parental responsibility for the child and to take most decisions about the child without consulting the parent. Major decisions such as changing the child’s surname or taking them abroad for more than three months require agreement of the parents or the court’s permission. The child retains birth family links albeit that the parental responsibility of the parents is reduced.
  • A Child Arrangements Order can be granted to grandparents to confirm that the grandchild lives with them, provided they have the court’s permission to seek such an order or are exempt from doing so. A Child Arrangements Order granted to grandparent(s) can set out who the child lives with and how much time the child will spend with the parent(s) or other persons with parental responsibility.

Employment Law Changes – Are You Ready?

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From 6th April 2020 all new employees, but also workers/joiners to a company, will have the right to a written statement of terms on or before the first day of employment, whereas it is currently for employees only and within two months of employment starting. This change has been brought about by an amendment to the Employment Rights Act 1996 as a result of the introduction of The Employment Rights (Employment Particulars and Paid Annual Leave)(Amendment) Regulations 2018.

Do you know what needs to be included in a written statement of terms? It does not necessarily have to be a formal contract of employment but there is prescribed information that must be provided, much sooner than previously and now to workers as well as employees.

There is a right for employees and workers to bring Employment Tribunal claims if the organisation engaging them fails to do this.

The Government has said that the intention is to ensure that workers can access fair and decent work, that both employers and workers have clarity on the employment relationship, and that the enforcement system is fair and fit for purpose. Above all, the direction of travel is to protect vulnerable workers and improve workers’ understanding of their rights.

The best way to ensure compliance is to have a properly drafted contract of employment that is ready to pass to a worker or employee at the latest on the day they start work. If you ask us to prepare the contract we can include all the requirements and information that an employer is obliged to give. The new Regulations include additional information that must now be provided. For example, probationary period details and days of the week worked must be provided for those starting work after 6th April.

There is information that the Regulations state the employer can choose whether to put in the main written statement of terms (contract) or in “reasonably accessible document(s)” but the following information must be provided:-

  • Terms for absence due to incapacity and sickness and the position regarding sick pay.
  • The notice periods for termination.
  • Information relating to grievances and disciplinary.
  • Terms relating to pensions and pension schemes.

Even if there is not a legal requirement to contain certain information in the written statement of terms it may be advisable to have additional terms to protect your business, for example post termination restrictions.

Contact us to arrange an appointment with Jenny Carpenter, specialist employment solicitor and partner to discuss your requirements.

Where There’s A Will There’s A Relative!

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Making a Will is a wise and important thing to do. You will have peace of mind knowing that your estate (that is, everything you own) will pass to your chosen beneficiaries.

Without a Will, your estate could pass to relatives you have not seen for years.

However, some people chose not to include a member of family in their Will. This may be a child or sibling and could be for a number of reasons, for example, a falling out or estrangement and even though most people would like to think that the relative would not try to contest the Will, there is always a risk that the relative could claim under the Inheritance (Provision for Family and Dependants) Act 1975 and if this happens then dealing with your estate can be lengthy, complex and expensive.

If you have a reason for leaving a relative out of your Will then we strongly recommend that you leave a personal letter with your Will explaining the reason why you have not included this particular person (or persons). You will not be around to explain why and a personal letter would help against any potential claim.

Warning about new housing estates, management charges and administration fees.

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Buying a property on a new estate? Be wary of the estate management charges and administration fees.

If you are considering purchasing a property on a newly built estate, you should carefully consider the estate management fees being charged by managing agents for maintaining communal facilities and areas on the estate as well as administration fees for providing information to buyer’s when you sell the property. This area of housing is currently unregulated and in many cases disproportionate or unreasonable fees are being charged to property owners.

More frequently, developments are being built where roads, footpaths and communal areas and facilities remain private. This arrangement is agreed between the developer and the local authority and, as all responsibility and costs for maintenance of these areas sit with the developer and not the local authority, this benefits the developer in obtaining the grant of planning permission for their developments. The developer employs a managing agent to carry out the repairs and maintenance to communal areas and facilities on the estate and the costs of this are recouped from all of the property owners.

Whilst the importance of the communal areas and facilities being maintained is acknowledged, the issue appears to be that property owners have little involvement in deciding which contractors undertake the work, the extent of the work undertaken or is required and that there is little incentive for the managing agents to keep the costs of the work to a minimum. Currently, property owners have little or no recourse if they are unhappy with the level of the estate management charge being demanded from them.

Similarly, when a property on an estate which has privately maintained areas is sold, typically the buyer’s solicitor will ask for information about the estate management charges, what areas or functions they cover and for any registration requirements of the managing agents for acknowledging the transfer of property ownership. More often than not, managing agents are charging excessively high administration fees for providing this, often, standard information. As the buyer’s solicitor needs to know this information, sellers are finding themselves feeling forced to pay it.

Below is a list of questions you may wish to ask when looking at properties on a newly built estate so that you can make a better informed decision whether you want to buy there:

  • What communal areas and facilities are on the estate and whether or not these are or will be adopted?
  • Whether a managing agent has been appointed or is intended to be appointed?
  • What will the managing agent be responsible for?
  • What are the likely costs for each property owner?
  • Is it anticipated these costs will rise significantly?
  • What costs do the managing agents charge for providing a ‘sales pack’ when a property on the estate is sold?

The Freehold Properties (Management Charges and Shared Facilities) Bill was proposed to introduce a cap on estate management fees and allow property owners the opportunity to self-manage communal areas as resident groups; however, the bill did not successfully pass through Parliament and so this issue remains unregulated.

What can a landlord do where a former tenant’s belongings are left at the premises?

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It is question that I am often asked and can cause landlords more difficulties and time having already, on some occasions, gone through the difficult procedure in getting a tenant to leave their premises in the first place.

Landlords are often faced with the issue of how to deal with belongings left behind by their former tenants at the end of their tenancies. The risk to the landlord of disposing of items of obvious rubbish may be small, especially where a tenant has vacated voluntarily at the end of the term or surrender their tenancy. There may, however, be a greater risk in either of the following situations:

  • Where larger or more valuable items are left behind.
  • Where the landlord has forfeited a lease or enforced a possession order.

A tenant is generally obliged to remove their goods from the premises at the end of the term. A lease or tenancy agreement will often expressly oblige the tenant to remove any goods at the end of the term. Some leases will also clarify what the landlord can do with any goods that may be left on the premises at the end of the term.

If goods are left on the premises once the lease has come to an end, however it ends, the items remain the former tenant’s property. The exception to this is where the former tenant has abandoned his/her belongings. In the absence of express terms in a lease, the landlord is left with the problem of deciding what to do with these.

If the tenant has moved out and abandoned the goods, the landlord will usually be free to deal with those goods as it sees fit. If the former tenant has not abandoned the goods, however, the retention and sale or disposal of the goods by the landlord may give the tenant grounds for bringing a claim against the landlord.

A useful tool for the landlord to use is to serve a notice under the Torts (Interference with Goods) Act 1977 (“TIGA”). This imposes an obligation to collect the goods on the owner by giving notice and gives the person in possession the right to sell the goods if they are not collected.

The content of a notice would include that the goods are ready to collect, address as to where the goods are held and what amount if any are due to the landlord for storing the goods. If the tenant fails to respond or refuses to collect the goods then the Landlord can give a further notice of their intention to sell the goods under section 12(3) of the TIGA 1977. This notice would set out similar details as the first notice and include the date on or after which the landlord intends to sell the goods.

With both notices the landlord must give a reasonable opportunity to collect the goods. What is reasonable will depend on the circumstances of each case.

For more information and advice on this and how this may affect you please contact Anton Bilinski who is able to guide you through this and act for you when a landlord or tenant dispute arises.

Anton Bilinski
Chartered Legal Executive
Litigation Department

Who To Appoint As Executors Under Your Will.

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When making a Will you should consider carefully the right Executor to appoint as the role of an Executor carries important legal duties and responsibilities.

It is an Executor’s duty to administer the estate in accordance with the terms of the Will and in accordance with the law. Executors are personally liable for their errors or omissions. It is therefore extremely important you appoint somebody that you trust to carry out this role efficiently and responsibly. You can appoint an individual such as your spouse/partner, a family member or even a close friend.

You may however not wish to put this responsibility on an individual. You are therefore able to appoint professional Executors such as solicitors.

Dealing with the death of a loved one is a difficult time at best. Unfortunately it can also release underlying tensions and resentments between friends and even family members. By appointing a professional Executor such as Adams Harrison this would minimise any disputes that can arise.

Sadly, some Wills are challenged, especially where one beneficiary benefits more than others. Allegations of undue influence or lack of capacity can arise in these cases. By appointing Adams Harrison as Executors, your estate has a professional on hand who can rebut such allegations and robustly defend your last wishes.

If you wish to discuss making a Will or you require any further advice on this, please contact our Wills, Estates and Trust Team.

Leanne Mayes   Legal Executive

Early Neutral Evaluation: Another Victory for Alternative Dispute Resolution

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Following the Woolf Reforms in April 1999 with the replacement of the Civil Procedure Rules (CPR) meant that prospective litigants were to make every effort to settle their differences via pre-action protocols with the intention of avoiding Court proceedings.

The most common aspect of ADR was mediation. Whilst CPR required the Court to manage cases actively by encouraging each party to use ADR the rules fell short of making ADR mandatory. However the risks of costs penalties that likely befall those who ignore such offers of ADR were sufficient to bring them into line. Even if you are successful, an unreasonable refusal to mediate would impact upon your cost recovery.

On the 1st October 2015 the CPR concerning the court’s powers of case management were amended to ‘any other step or make any other order for the purpose of managing the case and furthering the overriding objective including hearing an Early Neutral Evaluation (ENE) with the aim of helping the parties settle the case’

Early Neutral Evaluation is an alternative dispute resolution procedure whereby the parties agree to submit their dispute to an independent third-party expert to provide a preliminary view on the merits of the parties’ respective positions.

The evaluation is not binding on the parties unless the parties elect for it to be and is entirely without prejudice. The process is particularly useful where the parties have very differing views of the prospects of success and perhaps an inadequate understanding of the risks of litigation itself.

Until now it has not been clear whether the court could impose ENE on the parties without their consent. In Lomax v Lomax, decided on 20 May 2019, Parker J held that it could not. She held, “on the finest of fine balances”, that she could not order an ENE essentially because the Rules were not clear when one party had not consented to ENE.

The Court of Appeal set aside Parker J’s decision on 6 August 2019. In the leading judgment Moylan LJ’s view on the words “encouraging” and “facilitating” in CPR 1.4(2)(e) did not lead to the implication that consent was required nor was there any limitation on the court’s power to order an ENE hearing to the effect that the agreement or consent of the parties was required.

The decision by the Court of Appeal in Lomax v Lomax has given the court more power in directing ADR no matter how entrenched each party may appear to be.

ENE can be an effective means of dispute resolution to get a practical view of the merits of each parties respective positions without spending large amounts on litigation.

Anton Bilinski
Legal Executive

Wills for Second Marriages

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There are a large number of people who have been married more than once and who have children from previous marriages or relationships.

It is important to understand how the law works if you die without leaving a Will in this situation. A marriage automatically revokes any existing Will unless that Will was made in contemplation of marriage.

If you remarry and do not remake a Will, when you die leaving this second spouse and children from a previous relationship and perhaps children from the current marriage; your estate will be distributed under the Intestacy Rules. Your new spouse will inherit the first £250,000 of your estate. The remaining value of your estate is then split into two. The new spouse will inherit the first share outright and the second share will pass to your children equally.

Depending on the value of your estate, your new spouse could potentially inherit the whole of your estate with nothing passing to your children.

You must review your circumstances and make a Will after re-marriage or in contemplation of that marriage.

You should also consider that if you and your new spouse make mirror image Wills, there is nothing to stop your spouse from changing their Will at any time after your death.

To protect your children you could consider including a trust in your Will. There are various types of trust; in particular, a life interest trust or right of residence. This allows for your new spouse to benefit from the trust assets during their lifetime, but after their death, the assets can pass to your children. This ring fences the assets in the trust from your spouse’s assets so that the trust assets cannot be given away under their Will.

The usual asset to place in such a trust is your share of your property. It is important that if you own the property jointly that you hold as tenants in common. This means that both owners have their own individual share in the property which would pass under the terms of their respective Wills rather than pass automatically by survivorship to the surviving spouse.

Our will writing team can provide guidance, explaining how to ensure that you provide for your loved ones after your death.

Sarah Bruce
Legal Executive Wills Trust & Probate

Discrimination Claims Against Employers.

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It is the Equality Act 2010 that establishes the ability to bring action for unlawful discrimination. It is only in relation to a “protected characteristic” that action can be brought. The reason for the unfavourable treatment/discrimination must be due to a “protected characteristic” for the individual to be afforded protection under the act. So what is a “protected characteristic”? The Act dictates that the following are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Each protected characteristic has a statutory definition under the Act and therefore must be looked at carefully before unlawful discrimination can be established. Interpreting the meaning of each protected characteristic gives rise to various case law.

A recent case heard by an Employment Tribunal on 10th September 2019 (Conisbee v Crossley Farms Ltd and others) held that vegetarianism was not a “belief” qualifying for protection under the Act. Mr Conisbee alleged that he had suffered discrimination on the ground of religion or belief, his belief being vegetarianism. The Employment Tribunal held that although his belief was genuinely held and was worthy of respect in democratic society it failed to meet the other legal hurdles for protection under the Act. In their judgement the Tribunal ruled that it did not have a similar status or cogency to religious beliefs.

This decision does not have to be followed by other Tribunals in the future but is an interesting approach to what amounts to a “belief” for the purpose of the Equality Act 2010.

Who is protected? Under the Act there is a wide range of potential claimants for discrimination claims. This includes the following:-

  • Employees
  • Job applicants
  • Contract Workers
  • Agency Workers
  • The police
  • Individuals in a business partnership

If you consider you have suffered unlawful discrimination then please seek our advice. Do not delay. There are strict time limits for bringing a claim to an Employment Tribunal, whereby claims must be brought within three months of the date the discrimination occurred.

Jennifer Carpenter
Employment Specialist solicitor