Tag Archives: Legal advice

Conditional Contracts and Planning Permission

Conditional Contracts and Planning Permission

Residential DevelopmentThe result of a recent case Cohen v Tesco Properties Ltd & Anor (2014) EWHC 2442(Ch) has highlighted the importance of ensuring that a Conditional Contract for the purchase of land subject to obtaining Planning Permission is correctly drafted.

In August 2013, the Claimant landowner (Cohen) entered into an agreement with the Defendant developer for the sale of a property in Finchley North London at the price of £1.3 million.   The agreement for the sale of the land was conditional upon the developer securing planning permission for residential redevelopment.

The contract required a deposit of £50,000 to be paid by the Defendant Buyer to the Claimant Landowner and contained a longstop date of 6 January 2014 by which time the Defendant Buyer had to have completed the purchase.  There was, however, provision for the longstop date to be extend up to 9 June 2014 but this was conditional upon the Defendant Buyer making an application to the Claimant and paying a further sum of £8,333.33 for each month of any such extension.

The Defendant Buyer had been unable to obtain planning permission by the 6th January 2014, but anticipated that it would secure permission shortly.  However the Defendant Buyer did not apply for an extension under the terms of the Conditional Contract prior to the longstop date of the 6th January 2014.   On 14th January, the Claimant gave notice that the agreement was terminated.

The following day the Defendant applied for an extension on the basis that the Defendant believed they could do so at any time up to the final long stop date of 9 June 2014. The Claimant argued that there was no right to make a retrospective application and to pay the monthly additional sums at a later date and therefore the agreement terminated automatically on the 6th January.

Planning permission was finally granted in February 2014 and the Claimant stood to gain the full benefit of this permission and to retain the £50,000 deposit previously paid by the Defendant Buyer upon entering into the Agreement.

The Court noted that although the Conditional Contract was professionally prepared it was nevertheless badly drafted.   Typically conditional contracts of this nature contain complicated definitions and provisions.  In this instance the inter-relationship between the provisions for extensions of time and termination were left unclear.  Many provisions used the wrong tense or could be interpreted in variety of ways leading to ambiguity.

This lack of clarity led the Court to attempt to make sense of what the parties had originally intended.  In order to do so, the Court  departed from a literal interpretation, preferring to interpret the wording with regards to business common sense.

As a result the Court found in favour of the Claimant’s interpretation as this was the only interpretation that gave the certainty that the parties had clearly intended.   If the Defendant wanted further time then the Defendant should have requested this in good time and paid the £8,333.33 per month in advance as the price (or consideration) for this additional extension of time.  To give any other interpretation and, in particular the Defendant argument that the application for an extension could apply retrospectively, would have meant that the Claimant would have had no idea where he stood after the long-stop date of 6th January and would have been unable to seek alternative buyers until after the 9th June without any compensation for this loss of time.

The Court also held that the deposit should be retained by the Claimant since it is standard practice that a Buyer pays a deposit to secure the right to seek to develop the property and clearly knows there is a risk that it may not secure planning permission in time to do so.  Even if the landowner suffers no obvious loss, it has been unable to sell the property in the interim and is therefore entitled to retain all the benefits of the agreement.

In this case the landowner retained the deposit and was released from any further obligations to the developer. Lessons should be learnt from this case, that a well drafted agreement from a reputable firm of lawyers can pay dividends over time.

  This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice.  Newnham &   Jordan Solicitors cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

Health & Safety: A cautionary tale arising out of a recent appeal to the Court of Appeal (Criminal Division)

Health & Safety at Work

The recent decision of the Appeal Judges to reject the submissions on behalf of a defendant company is a reminder of the liabilities of a business for the actions, sometimes very foolish, of its employees.

The case was Polyflor Ltd v Health & Safety Executive which was heard on 8th July 2014.

Polyflor Ltd was a Manchester-based company specialising in the manufacture of commercial and domestic vinyl flooring.

It had 350 employees and used a machine called a granular infeed conveyor which enabled the recycling of unused vinyl products fed in between conveyor belts and lifted to a granulator before the resultant product was then fed into a suction pipe and taken to another stage to sort what had been produced into neat pieces prior to bagging.  It was a specialised and complex piece of machinery.

On 28th February 2013 at Manchester Crown Court, after a trial lasting 4 days, the company was convicted unanimously by a jury of an offence of failing so far as reasonably practicable to ensure the health and safety of its employees contrary to section 33(1) (a) of the Health and Safety at Work, etc, Act 1974 (‘the 1974 Act’).  The applicant was fined £7,500 and ordered to pay £34,000 in costs.

What happened?

A Technical Support Engineer was performing maintenance activities on the machine following a blockage incident when the spanner he was holding was plucked into the fast moving machinery before he was able to release his grip and, as a consequence, he suffered a fractured arm and was off work for 7 weeks.  In many ways, it might be said, he was fortunate, to get away with just a broken arm but be that as it may there are principles to remember arising from this case.

There had been a not dissimilar incident involving this machine not very long before this accident and lessons had been learnt; access and visibility issues had been addressed and even the victim of the earlier incident was able to advise the company on ways it could improve the safe maintenance of it and many of his recommendations were implemented.

However despite the improvements and the fact that the Engineer on this occasion had requested permission to work on the jammed machine he agreed in cross examination that he had been blasé and that he had taken a risk.

Could the company escape liability for the foolish actions of its employee?

No, the Court of Appeal said the creation of a material risk by the carelessness (including gross carelessness) of an employee remains a material risk for the purposes of section 33(1) (a) of the 1974 Act.  The prosecution needed only to adduce some evidence of exposure to risk – in other words, some evidence that an employee was, or employees were, exposed to a possibility of danger. Once that is established the onus shifts to the defendant company to show on the balance of probabilities that it did all that was reasonably practicable to ensure that its employee was, or its employees were, not exposed to such risk.

So the pressure very much remains on companies to be very alert to the potential for risky actions of employees and to assess the reasonable practicalities of averting such behaviours.

If your company is facing an investigation by the HSE then approaching a law firm with expertise in this field and the resources and contacts to make the difference should be at the top of your list.

 This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice.  Newnham &   Jordan Solicitors cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

 

 

 

Health & Safety: A cautionary tale arising out of a recent appeal to the Court of Appeal (Criminal Division)
Road Haulage & Parking Disputes

Road Haulage & Parking Disputes

Parking Not Encouraged

Road Haulage:  The significance of signage in parking disputes.

A recent court victory over a parking fine has raised hopes that it could aid similarly affected hauliers.

A driver called Nicholas Anderson was prosecuted by Ransomes Europark after he refused to pay £237.50 for a parking fine issued by Proserve Enforcement Solutions when he visited the local Plumb Center on the Europark trading estate in Ipswich.

When the case came before Ipswich County Court a judge found in Anderson’s favour and described signage on the estate as “wholly ambiguous.”

Anderson’s comments will strike a chord with many drivers when he said: “It just wasn’t right what Ransomes and Proserve were doing. People may not know the legal ins and outs of why something is wrong, but they know that it is wrong.”

It hasn’t always been so; B&E Hamblion Transport Ltd, a haulier from Colchester, lost a court case against Ransomes’ parent company The Land Group last year after it refused to pay three fines totalling £900, again issued by Proserve Enforcement Solutions.  The court heard argument on behalf of Hamblion that the fines were excessively high but a judge disagreed with the submissions.

Nigel Robson, who is a director at The Land Group, said the company would appeal the decision in the Anderson case, adding “we have done everything we should be doing in accordance with the regulations.”

Clearly each case is distinguishable on its facts and one success by one individual may not signal a shift towards haulage drivers in general.

If your driver finds himself on the wrong end of a parking enforcement decision then, if it appears wholly unfair, at the very least it may be wise to survey the signage there, take good photographs and consider seeking initial legal advice sooner rather than later.

Newnham & Jordan can advise you on all road traffic legal matters including potential parking offences and fines.

 Call us now on 0845 680 7871

This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &   Jordan Solicitors cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

 

Health & Safety Investigation?

So what might be the implications of a conviction?

First of all it helps to know just how common prosecutions are and how successful they are.

In the period 2010/11 statistics show there were 551 cases prosecuted by the HSE (and the Office of Rail Regulation). The prosecutors achieved a high conviction rate of 94% but local authorities did even better, achieving a conviction rate of 97% in the 129 cases they brought in the same period.

What will be the impact on my business?

It is no exaggeration to say that an HSE or local authority prosecution can have far-reaching implications both on the business and the individuals running it. It is vital to understand that it is a criminal offence to breach the obligations contained within Health & Safety legislation.

Fines are the most common outcome

Safety breaches of the most serious nature routinely attract fines in the hundreds of thousands of pounds. Invariably there will be an application to pay the prosecution’s costs and while that may be open to challenge it still means the business can be hit very hard financially.

Damage to Reputation is another consideration that can long outlast the financial impact

Nowadays companies often seek to scrutinise the safety record of their potential business partners and it has become commonplace to request details of “safety” convictions on tender questionnaires.

The position of individuals in workplace accidents

Inspectors routinely assess the role of individuals. Whilst courts may not impose the largest fines, the impact on the individual will almost certainly be far-reaching.

Imprisonment is an ever present possibility for breaches of Health & Safety legislation, with sentences of up to 6 months in the Magistrates Court and of up to 2 years in the Crown Court. Convictions will often have other unwelcome consequences, such as restrictions upon foreign travel which for a business may present a commercial difficulty of its own, particularly in the case of the smaller business.

So who can be prosecuted for Health & Safety offences?

There are a number of distinct groups that can face prosecution for breaching Health & Safety regulations and the range is wide. It includes:

• Employers
• Self-employed individuals
• Owners of workplace premises
• Employees
• Designers, manufacturers, importers or suppliers of work equipment

What is the criteria for a prosecution?

These are examples where the HSE are very likely to prosecute:

• Death arose out of a breach of legislation
• There was evidence of a reckless disregard of Health & Safety requirements
• Obstruction of inspectors acting in accordance with their duties
• False information has been provided or there was an intent to deceive

It is not all doom and gloom though

In some less serious cases it may be possible to influence the enforcing body’s decision whether to prosecute. Examples of positive steps that can make the difference include:

• Cooperation with the regulator’s investigation
• Readily accepting an invitation to send a representative of the business to an interview under caution or by providing written answers to questions under caution
• Providing evidence that robust rectification procedures have been introduced independently of the investigation

Insurance cover

• Many insurance policies will include legal expenses cover in the event of an investigation and criminal prosecution for a safety-related breach
• Typically insurance companies have panels of law firms and will refer their insured to them for legal advice. However, a business can still properly consider the desirability of representation by a specialist lawyer of its own choice
• Although there will be indemnity for defence costs, any fine imposed following conviction certainly will not be covered. Similarly, where there is an order to pay the prosecution’s reasonable costs in bringing the case, these costs are rarely covered by business insurance

Newnham & Jordan Solicitors are able to assist and advise you with regard to a variety of Health & Safety and Regulatory issues.

 Call us now on 0845 680 7871

This article is intended for general information purposes only and  shall not be deemed to be, or constitute legal advice. Newnham &   Jordan Solicitors, in Wimborne Dorset, cannot accept  responsibility for   any loss as a result of acts or omissions taken in  respect of this   article or any external articles it may refer or link to.

 

 

 

Health & Safety Investigation?
Changes in Child Maintenace

Changes in Child Maintenace

Proposed New Child Maintenance System

The Child Support Agency (CSA) is being wound up and replaced by the Child Maintenance Service (CMS).

The current proposals are:

  • To impose an application fee to the CMS of about £20.
  • An ongoing deduction which may be around 7%. This will be paid by the parent with day to day care of the children.

The application fee will be waived if the applying parent has suffered domestic abuse and reported it to the police or a relevant agency. It appears that the ongoing deduction will be paid by all parents receiving child  maintenance.

Rolling out at the end of 2012 and during 2013.

The Department of Work and Pensions intends to roll out the process of opening child maintenance cases under theCMSscheme later this year for applications made by a parent with 4 children who have the same father. Most other families will come under the new scheme in 2013.

Government policy  favours encouraging direct payment by one parent to another. At present theCSAcan provide an assessment, but parents can agree for payments to be made directly without the involvement of the CSA in collection. Under the new scheme it is being proposed that if a parent fails to make a direct payment, they will have to pay a collection  surcharge of perhaps around 20% of the child maintenance payment.

Newnham and Jordan Solicitors based in Wimborne can provide advice on family law related matters. We offer a free initial meeting at a place and time convenient to you. We also offer competitive fixed fees for Divorce and Dissolution of Civil Partnership and Financial Orders. Or call us on 0845 680 7871 (local rate)

 

This article is intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

VAN THE MAN

  • Do you drive a van in the course of your employment ?
  • Do you know its maximum laden weight?
  • Do you know the maximum speed limits applicable to your vehicle?

 

Make sure you know the speed limits that apply to your vehicle at all times.

For goods vehicles not exceeding 7. 5 tonnes maximum laden weight, the maximum speed on a dual carriageway is in fact 60mph – 70 mph on a motorway (reduced to 60 if articulated or towing a trailer).

For a goods vehicle or van exceeding 7. 5 tonnes maximum laden weight, the maximum speed on a dual carriageway is 50mph and 60 on a motorway.

On single carriageways under 7.5 tonnes has a maximum speed limit of 50, and a vehicle exceeding 7.5 tonnes a maximum speed limit of 40mph.

In built up areas the maximum speed limit for all vehicles is 30mph.

Many van drivers assume that the maximum speed on a dual carriageway is 70mph, regardless of the size or weight of the vehicle, but this is not the case.

For advice about this and all other traffic offences, contact Newnham & Jordan at office@newnham-jordan.co.uk  or on 0845 680 7871

VAN THE MAN