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When is a Tractor Not a Tractor?

The European Court of Justice (ECJ) delivered an extremely significant decision in the case of Damijan Vnuk v Zavarovalnica Triglav (2014), regarding the issue whether a vehicle used on private land should be insured against civil liability, and concerning the use of vehicles as per Article 3(1) of the First Motor Insurance Directive, which is an EU Directive.

The facts of the case will sound uncomfortably familiar to those who use vehicles on private property. Mr Vnuk suffered an injury after being knocked off a ladder whilst working on a farm. The accident was caused by a tractor with a trailer reversing in the farm courtyard. The initial position of the Slovenian domestic courts was that a compulsory insurance policy on the tractor, from which Mr Vnuk was trying to claim compensation, would not offer protection when a tractor was used as an agricultural machine on private land. Mr Vnuk was, however, of the view that 'use of the vehicle' should not be limited only to journeys on public roads.

The Slovenian Supreme Court raised a question with the ECJ, enquiring whether “the use of vehicles” phrase should be limited only to road traffic accidents.

Landmark Ruling

The ECJ, in its landmark ruling, held that the term “use of vehicle” indeed extends to a vehicle being used “as a means of transport or as machines, in any area, both public and private, in which risks inherent in the use of vehicles may arise, whether those vehicles are moving or not”. Furthermore, it covers any use which is consistent with the normal function of that vehicle.

The ECJ also considered the term “vehicle” which, in the First Motor Insurance Directive, is defined as “any motor vehicle intended to travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled”. The ECJ ruled that the definition of the vehicle is not connected to the use of the vehicle, and therefore a tractor with a trailer fulfils that definition, even if it is used as an agricultural machine.

Bringing the Law Back Home

The implications in the case of Vnuk are significant as it appears some provisions of domestic legislation, being the Road Traffic Act 1988, are in fact in breach of the First Motor Insurance Directive. Firstly, the duty to take out third party motor insurance is limited to the “use of a motor vehicle on a road or other public place”. Secondly, the term “motor vehicle” is defined as “a mechanically propelled vehicle intended or adapted for use on roads”.

The amendments to the Road Traffic Act 1988 are yet to be seen. The Road Traffic Act 1988 excludes some vehicles from the obligation to take out third party insurance, for example some local authority owned vehicles, and the Act may in future be amended to exclude other types of vehicles, as this is allowed under the European law.

However, at this point in time, owners of agricultural vehicles, forklifts, ride-on-lawnmowers, golf buggies and go-karts could find themselves potentially liable for injuries caused on private land but not covered by their insurance. Legal representatives of those injured in accidents involving vehicles on private land, will be citing the case of Vnuk which is directly applicable in the UK, in support of their clients' claims and may consider bringing a legal action against the British Government for a failure to implement EU law properly.

Great Glen Way Challenge

Kevin Thomas and I have arrived in the Highlands of Scotland to walk the Great Glen Way.

This is a 79 mile trail, encompassing just over 6,000 feet of ascent, starting in Fort William and ending in Inverness five days later.

We are doing this walk to raise money for the following charities:

July 2015

I have finally managed to tot up the sponsorship we raised - the final scores are:

RNLI - £398.75

Leukaemia & Lymphoma Research - £333.75

SARDA Wales - £287.50

A grand total of £1,020.00!

Thursday 30 April 2015

Well, the deed is done!

The final haul of 21 miles from Drumnadrochit to Inverness, whilst being incredibly arduous, is easily the most varied and striking.

It started with an uninspiring trudge along the A82 to meet a woodland track which undulates, steeply in places, through thick Caledonian forest.


The climb is stiff but the coolness of the woodland is refreshing and the "bouncy" softness of the track eases the pain!


After a while we crossed a stream on stepping stones in a lovely sunlit glade and emerged onto a logging track high up on the mountain. Here there was an encampment for lumberjacks from Newfoundland who came across in World War 2 to keep the timber industry going for the war effort.


A small cairn marks the 1000-feet contour but there are still about 300-feet to go till you reach the highest point and you wind round on the logging track into the Abriachan Forest until, a couple of miles later, you hit the top. On this stretch the sunshine turned to heavy snow within a couple of minutes.

A steep descent into the next glen gives stunning views of Glen Affric, with Ben Affric looking like a Christmas cake with its thick covering of snow.


Before long you enter more woodland and a tantalising track edged with little posts announcing "real coffee" and "hot soup" at intervals, like a tired walker's treasure hunt!

We reached the Abriachan eco-campsite where there are pigs roaming free and the owner installed us on the deck in her little log cabin with cups of tea and let us eat our packed lunches, warning to watch out for the cunning white hen who steals food.

The sawdust toilet was a particular high point!.....

Leaving them reluctantly, we started the long stretch along a lonely, high road with views across to Glen Affric sustaining us.

From here I saw our first golden eagle of the walk, a huge bird of prey soaring on thermals and just a flash of gold in the sunlight as it turned.

After about two miles we turned up over moorland for a gentle ascent into the forest. We flushed up grouse, saw endless meadow pipits and even heard our first cuckoo of the year!

The long walk through Caledonian forest was stunning but by this time, having had our first glimpse of Inverness far below us, we just wanted to get there and knew we had another five miles to go....

I've never been so glad to see a pylon as it pinpointed on the map exactly where we were but we knew how painful a descent would be now.


We wound down past reservoirs into the upper residential reaches of Inverness and soon realised, after five days of wilderness, what a danger we were to ourselves when crossing roads, it all felt so alien!

By now we couldn't even muster the energy to speak to each other, we just trudged wordlessly over the golf course, along the canal and through the Ness Islands (very pretty but after 10 hours of walking we barely registered anything!) and up some steps to the castle and a stone column announcing "Great Glen Way - this is where it all ends".


This isn't our first long - distance trail so we know there is never elation at the end point, you just feel a bit numb and 'displaced' for a few minutes. The "high" tends to come later.

Our friends are taking wonderful care of us in their lovely home in Boat of Garten in the magnificent Cairngorms National Park, we came home to cottage pie, mugs of tea and the best bed in the world, we're so grateful to them for taking in two grubby walkers without putting newspaper on all the surfaces!

We can't yet straighten our heads to describe the experience fully but it has definitely been a memorable trip - crazy weather, lovely people, breathtaking scenery and a sense of having done something a bit different and a lot of fun.

Meanwhile, Kevin's blisters carry a Triple-X warning.....

Wednesday 29 April 2015

Either it was an easier day or we are getting into the swing of this long distance trail business! I hope it's the latter!

After spending a lovely treat night in the very comfortable embrace of the Glenmoriston Arms in Invermoriston on the shores of Loch Ness, we started our day with a visit to a well dedicated to St Columba. He was a traveller and a bit of a character, so I felt he'd understand blisters and bad weather so I threw in a coin and sent one up to him!

Our 15-mile day started with a steep climb out of the village into the forests above Glen Moriston and we cleared 600 feet quite quickly - either it was thanks to St Columba or the porridge and tattie scones at breakfast!


However, no sooner had we climbed than the path dropped us quickly back to sea level. From there a notice board informed us there would be three more climbs and falls, eventually taking us to 1100 feet.


The rainbow in Glen Moriston gave way to blue skies and sunshine as we climbed along good tracks along a rising balcony. On our right we could see for miles along Loch Ness and beyond to the snowy peaks of the Monadhliath Mountains.


The smells were so striking - the heady cocoa butter scent of gorse mixed with the‎ freshness of pine and newly-cut timber stacks. The weather had also brought wildlife out to play and we saw numerous robins and chaffinches, heard buzzards defending their nests and I saw a wheatear and possible crossbill.


After descending slightly from the mountain and forests we found a pretty glade with a bottom-sized rock where we could sit and eat lunch. As we did so the rain came in along the glen and we spent the last five miles of our day walking as fast as we could through hail and heavy rain across open moorland in a bid to reach Drumnadrochit some 700 feet below us - however, sharp descents and knees after 60 miles are not a happy combination!


We made very good time, 15 miles over steep terrain with loaded packs in under seven hours and have decided to treat ourselves with a sample of single malt tonight before we tackle the biggest and most remote day tomorrow - 21 miles over mountain terrain with not even a tea shop in sight! Our wonderful friends Kate and Andy who live near Aviemore have promised to be there if / when we make it to the trail's official end at Inverness Castle - watch this space.......

The support on the blog has been really encouraging and much appreciated when we check it each night, thank you to all.

Over and out......

Tuesday 28 April 2015


It's been a hard day! In summary, 18.5 miles starting in sleet, moving into rain and only finishing in glorious evening sunshine in the glen (how romantic does that sound?! We even saw a deer on the trail! - albeit a dead one, sadly.)

We had a fabulous stay in South Laggan at a guest house where we only later found out they've only been doing it for eight months. It was pretty basic but very warm, welcoming, beds to sink into and they knew exactly what long-distance trail walkers are looking for.

After a hearty breakfast we set out in sleet and following the waymarkers we headed up to an old railway cutting alongside Loch Oich. This was made pretty miserable by the works taking place up there and the constant reversing machinery although the workmen were very patient with Way walkers.

We also got to meet the handsome Max, a labrador/French Mastiff cross who greeted me with the muddy enthusiasm only labradors know!


Having left the railway cutting behind we skirted the shores of Loch Oich before meeting the Caledonian Canal once more at Invergarry. This led onto a towpath for about about five miles to Fort Augustus where we felt like we were in a constant race against the kayakers - we always gained on them at the locks!

Fort Augustus is a small settlement at the southern end of Loch Ness and and although it felt‎ comparatively touristy it had the advantage that it sold Compeed blister plasters in the post office - a big hit for Kevin....

From there we climbed steeply to a forest track running parallel with, but high above, Loch Ness. The rain from the west was squally so we felt like we were stopping every 10 minutes to shed or add a layer of clothing!


However, we crossed some beautiful waterfalls tumbling down from the peaks high above us and as we reached Glen Moriston the sun came out and lit up the glen in a riot of spring colours for our final slog to the hotel.

Tomorrow feels easy - *only* 15 miles to Drumnadrochit but after the last couple of days we know only too well what a mile really means!

Monday 27 April 2015

Today has been a toughie! - we set off from Gairlochy in bright sunshine and had fabulous views of the snowy, cloud - free summits of Ben Nevis and Aonach Mor.


We headed north-east on a lovely undulating path beside the loch, occasionally going into woodland where we crossed little chattering streams ending their long journeys down off the mountains.

Someone had recommended we add a couple of very worthwhile miles onto our walk to climb up through the Achnacarry estate to Loch Arkaig to see the falls of Chia-aig.

This is where Rob Roy was reputed to have hidden from the king's Redcoats during the Jacobite rebellions.

It was certainly worth the extra time and distance it added to our day and we had a small bite to eat by the falls before the forecast heavy weather came in.


We rejoined the trail down in the valley where a sign reminded us we were heading into remote mountain country and had to be able and equipped to look after ourselves.

The trail climbed up through Clunes Forest as the snow fell increasingly heavily around us, covering the enormous mountains towering over our shoulders in a thick, white blanket.

It was very lonely and atmospheric up there, away from the relentless lapping of the loch water against rocks and whilst it was a slog we could cover a good distance quite easily.

By 4pm we were heading down to the the meeting point of the northern end of Loch Lochy and the next stretch of the Caledonian Canal where we crossed and started on the final trudge to our guest house. The snow turned to heavy sleet and we dripped all over our host's pristine porch and were relieved of our boots and jackets which were whisked away to the drying room for some well deserved TLC!


We got almost 16 miles under the belt today, Kevin has a couple of yucky blisters which he's threatened to photograph and put on the blog!

18 miles tomorrow, to Invermoriston...... see you on the other side!

Sunday 26 April 2015


We did the first day yesterday, it was a pretty easy start of ten and a half miles from Fort William to Gairlochy along the shores of Loch Linnhe, beside the Caledonian Canal and finally meeting up with River Lochy at the southern end of Loch Lochy.

We started in sleet which grew ever heavier for the first hour, suddenly giving way to sunshine for a short time whilst we had our first cup of tea (with a tot of something Scottish in it - just to get in the mood!) beside the canal, which was built by Thomas Telford. Not long before the wind and rain returned! Meanwhile, in Drumnadrochit (our destination in three days) they had heavy snowfall....


We followed the canal past Neptune's Staircase, the longest series of rising locks in Britain and started to leave people behind, the gentle towpath scenery starting to give way around us to deep glens and spectacular snowy peaks such as Ben Nevis and Aonach Mor.

Passing Moy Bridge, the last hand-operated swing bridge in the country, we soon arrived at the tiny settlement of Gairlochy and left the Way to find our B&B in Mucomir. The tranquility here belies a turbulent history in the Jacobite uprisings but for now we're content with looking out at the changing views of Ben Nevis as the clouds lift then drop again, and some delicious carb-loading at the Station Restaurant in Spean Bridge.

13 miles on the menu today!


Accidents Abroad Seminar and Legal Update

The following account of the day is written by Gayle Kinsey who is a solicitor within the accident abroad team.

Personal Injury solicitors at Lanyon Bowdler have been successfully pursuing claims on behalf of Claimants injured whilst abroad for over 20 years. French coach crashes, rail disasters, aviation claims and road traffic accidents in all corners of the globe are examples of cases where the team have been instructed. A general rise in the number of people travelling abroad, whether for business or pleasure, has seen a consequential rise in the number of accidents and claims. Lanyon Bowdler now has a specialist team of accident abroad solicitors who can offer expert advice on these often complex claims.

Over the years, Lanyon Bowdler has developed relationships with foreign lawyers and barristers without whom it would not be possible to conduct claims such as these. A seminar was held at the Malmaison Hotel in central Birmingham on 6 March 2015 giving those experts the opportunity to present to accident abroad lawyers and other interested professionals.

The event was the first of its kind organised by Lanyon Bowdler Solicitors and was introduced by Neil Lorimer, award winning personal injury solicitor specialising in catastrophic brain injury and amputations. Neil is a partner with the firm and head the accidents abroad team. Neil welcomed the speakers and delegates including Wolfgang Resch the CEO of PEOPIL.


Jurisdiction – Lucy Wyles

The first of the speakers was Lucy Wyles, barrister at 2 Temple Gardens. Lucy set out the basic rules concerning jurisdiction, i.e. the law used to determine the country in which the claim will be pursued through the courts. She looked at rules contained within Brussels I bis Regulation (1215/2012) which is applicable from 10 January 2015, as well as the traditional common law which applies to those jurisdictions not covered by the Brussels Regulations, such as Mexico and the USA.

The basic rule under the Brussels Regulation is that the Defendant is served in the jurisdiction where he is domiciled. The courts permission will be required where service is outside of the jurisdiction. Lucy set out important exceptions to the general rule that applies in matters of tort under Article 7(2), which states a Defendant can be sued in the place where the “harmful event” occurred; the harmful event normally being the accident itself, and not any indirect damage such as loss of earnings or subsequent medical deterioration which could conceivably take place in a different country to that where the accident occurred. Importantly this is different to the “jurisdictional gateway” which applies under the common law whereby it is possible to sue in the English/Welsh courts as long as some damage was sustained there. The “forum conveniens” rule which applies under the common law is far wider than that contained in the Brussels Regulation.

Lucy set out the details of an interesting case heard by the European Court of Justice in which it was held a hotel which took online bookings with customers in a different country was deemed to be “directing commercial activity within a member state of the consumer’s domicile”, and thus a claim could be pursued by the consumer in his home court.

Other topics covered by Lucy included adding parties domiciled in different jurisdictions to proceedings and direct actions against insurers, now commonplace in road traffic accidents following the case of Odenbreit, and now contained within Rome II at Article 18.

Applicable Law – Bernard Doherty

Bernard Doherty has acted as counsel in many of Lanyon Bowdler’s cross-border cases. He is the lead author of “Accidents Abroad: International Personal Injury Claims which is an essential text for anyone practising this area of law.

Bernard’s presentation on applicable law and, in particular, “Applying Foreign Law to Claims in Tort” flowed nicely from Lucy Wyle’s discussion on jurisdiction. When a cross border case is before the English courts, the judge must determine whether some foreign law should be applied rather than English law. Rome II will apply to events giving rise to damage in member states after 11 January 2009. To the limited number of on-going cases where the accident occurred before that date, the Private International Law (Miscellaneous Provision) Act 1995 (“the 1995 Act”) applies. The common law will also apply on some rare occasions where the Rome II exclusions apply such as in the case of certain acts of the State which only a State rather than a private individual can carry out.

Irrespective of whether the 1995 Act or Rome II applies, there is what Mr Doherty refers to as a “fairly universal rule” which is that rules of evidence and procedure will always be governed by the law of the forum. However, the substance/procedure dividing line may be drawn in different places depending upon which applies.

Under the 1995 Act matters relating to remedy including the assessment of damages are considered procedural. This is where the key difference with Rome II lies as article 15(c) states that the “existence, the nature and the assessment of damage or the remedy claimed are all to be governed by the substantive applicable law”.

Mr Doherty explained the importance of the Court of Appeal decision in Wall v Mutuelle de Poitiers. As with many continental jurisdictions, the French courts assess damages using a single expert. The Defendant French insurer argued that an English judge should try to reach the same result as a French court and, therefore, use the French single expert approach to obtaining evidence. The Claimant argued that expert evidence was a matter of procedure and so to be dealt with according to the law of the forum ie English law and thus experts in a number of specialist disciplines should be instructed. The Claimant was successful in this argument. The Defendant did succeed on its argument that the secondary law such as conventions and damages guidelines should be applied by the English court.

The argument, that the aim of Rome II was to harmonise outcome of cases across member states, was rejected. However, dicta in the more recent case of Cox v Ergo Versicherung would suggest that this argument is still “up for grabs” to use Mr Doherty’s expression. No doubt, the ECJ will have the final say!

Antoinette Collignon

Antoinette Collignon is a partner of Dutch law firm “Legaltree”. She is also co-founder of the Pan-European Organisation for Personal Injury Lawyers (PEOPIL) and the first Dutch (as well as first female) president from 2009 until 2013. Antoinette’s relationship with Lanyon Bowdler began in 2004 when she acted as co-counsel in a case involving three young men who were tragically killed in a car accident in Holland. The administrators of the estates, on behalf of the dependent partners and children of the deceased, pursued Law Reform (Miscellaneous Provisions) Act 1934 Fatal Accident Act 1976 claims.

Antoinette provided a very helpful overview of the types of personal injury systems that exist across Europe. These vary from liability systems like those in England and Wales to no fault systems. In Holland, in traffic accidents involving pedestrians and bikers there is a cap of 50% on any contributory negligence. So even where a pedestrian or biker is 90% to blame for his injuries, he will get 50% of the value of his claim.

Antoinette stressed the importance of selecting an appropriate co-counsel and provided some excellent tips in this regard. With 400 members across the world, PEOPIL is an ideal place to look for a foreign lawyer.

Antoinette concluded with an overview of the Hague Convention on the law applicable to road traffic accidents . Twenty two countries are signatories to the convention though not the UK. Where those countries are also EU member states, the Hague Convention will prevail over Rome II.

Jon Sutton

Next up was Spanish lawyer, Jon Sutton of Spanish law firm De Cotta Law. Jon is the head of the international personal injury litigation team at De Cotta Law. He assists private clients and UK law firms with claims for accidents which occur in Spain. Jon is dual qualified in England and Spain and is a very useful contact if conversing in Spanish is not a forte!

Claims arising out of accidents in Spain are a common feature in accident abroad work; largely due to the popularity of Spain and surrounding islands as holiday destinations. Spanish personal injury law and procedure in the Spanish courts is very different to the system we know under English law and Jon explained some of the crucial differences that English lawyers should be aware of.

It will rarely be advisable to pursue a personal injury claim through the Spanish Courts (there is no recoverability of costs under Spanish law). Where it is possible to pursue a claim through the English courts, the Spanish law relating to limitation, liability and now under Rome II, the assessment of damages will apply. There is a 12 month limitation period under Spanish law. Jon explained how this could be extended by “Burofax” but warned against English lawyers trying to do this themselves. The “Burofax” must be in Spanish and meet certain strict criteria.

In Spain, damages are assessed according to the Baremo Tables which Jon likened to the English CICA tariff. He stressed the importance of clearly instructing English medical experts in a way that their reports can be used to quantify damages using the Baremo Tables.

Paul Rosson

Finally, Paul Rosson of Frenkel Topping considered the matter of periodical payments and the issues that may arise in a case against a foreign insurer. Before ordering an award by way of periodical payments, the court must be satisfied that the continuity of payments is reasonably secure (CPR 41.9(2)(a)). One test of a “reasonably secure” payment is defined in the Damages Act 1996, namely that it is protected by a scheme under section 213 of the Financial Services and Markets Act 2000 (compensation). In the UK, the scheme is the Financial Services Compensation Scheme. Members of the European Economic Association (EEA) must have an equivalent FSCS scheme in their home state.

Paul considered the Spanish “Consorcio de Compensacion De Seguros” scheme, the Dutch “Waarborgsfonds Motorverkeer” scheme and the Californian “Insurance Guarantee Association2.

Paul concluded by considering taxation and currency risk and alternative options to periodical payments should continuity of payments not be deemed as reasonably secure. This is a complex issue and financial advice will be crucial to confirm or deny the security of continuity of payments and determine the optimum solution for settlement.

The Afternoon Session

Following lunch, the panel gave consideration to a case study; discussing the issues which arise during the life of an accident abroad case.


The case study was based on a fictional car accident in Spain involving Claimants and potential Defendants from Shropshire, Holland, Spain and California.

The afternoon was a more informal opportunity to apply the helpful points raised by the speakers in the morning to a set of facts, and this was well received by delegates. Chaired by Mr Doherty, the speakers discussed the issues that arise during the life of an accident abroad case, right from the first considered decision of where to bring the claim, against which Defendant, through to whether a periodical payment is an option to be pursued against a foreign insurer. This was a great opportunity for the delegates to raise questions of the experienced speakers and led to a “stimulating” and “useful” discussion as described by delegates.

A former client of Lanyon Bowdler who had been injured in a car accident in Spain contributed to the discussion considering with delegates the view point of a Claimant injured abroad. He confirmed that for him it was important to be able to bring a case in his home country. With Lanyon Bowdler’s expert guidance, assisted by Jon Sutton and Bernard Doherty, he had been able to pursue damages in the English courts and recover legal costs.

Lanyon Bowdler has received great feedback from delegates stating “the format of the day worked extremely well, with the opportunity to apply the morning’s learning to the problem”, Delegates found the day to be “hugely educational” and a “great opportunity to network”.

High Court Finds Recruitment Consultancy's Restrictive Covenants To Be Enforceable

Businesses with employees who could potentially be a commercial threat should they leave their employment often make use of restrictive covenants to restrict what an employee can and cannot do for a specified period once the employment has terminated, for example restrictions on working for a competitor and/or soliciting other employees or customers. If an employee acts in breach of any such restrictions, an employer can apply to the High Court for an injunction and/or seek damages for breach of the restrictions. 

It is important that restrictive covenants are well drafted and properly incorporated into contracts of employment if they are to be enforceable. Such covenants will be void unless the employer can show that they go no further than is reasonably necessary to protect a legitimate business interest.

The recent case of East England CIC (t/a 4myschools) v Palmer is an example of the High Court finding in favour of a former employer. Mrs Palmer was employed by 4myschools as a recruitment consultant who matched teacher applicants with schools. She left to work for a competitor after approximately 26 months. There was a restrictive covenant in her contract of employment which prohibited her from soliciting or dealing with the candidate teachers or client schools with whom she had dealt in her last 12 months, for a period of 6 months after the end of her employment. 4myschools believed Mrs Palmer was in breach of  covenant. 

As the matter was not resolved following exchanges of correspondence and the giving of an undertaking, 4myschools made an application to the High Court seeking damages. The High Court had to determine whether (i) the restrictions in the employment contract were reasonable and (ii) the employer had a legitimate proprietary interest to protect.

With respect to (i), the court found that other than one point (which could be detached from the rest of the restrictions and so did not make all of them unenforceable), the restrictions were drafted reasonably, including the duration of them.  

With respect to (ii), Mrs Palmer and her new employer denied that 4myschools had a legitimate proprietary interest to protect and argued, amongst other things, that with the increasing use of social media and the internet, all relevant information is now in the public domain, and so cannot be confidential to any particular agency. The court found that 4myschools did have a legitimate business to protect despite the fact that recruitment information relating to the education sector was widely available, stating “the fact that the relationship between schools and teachers on the one hand, and 4myschools on the other, was known to be a fragile one, makes it more, rather than less, necessary and legitimate for the employer to seek to protect it, because it makes the prospect of a successful solicitation by the ex-employee more likely.”

This case shows that even if information is widely available online, as it increasingly is in this ‘information age’, it does not necessarily weaken the employer’s legitimate proprietary interest. 

Many employers do not have as well drafted and incorporated restrictions as 4myschools – sometimes due to poor initial drafting and/or procedures, and sometimes because employees’ circumstances have evolved but the purported restrictions have not. We recommend that employers should review:-

  • the restrictive covenants to which current employees are subject – or, at least, it is assumed they are subject, and
  • their template covenants which are intended for future use and their procedures for introducing new restrictions

with a view to ensuring that they are still fit for purpose (if, indeed, they ever were).

Equally, employers who have not included such restrictions in the contracts of employment of employees who they consider to be a potential commercial threat should give serious consideration to having such clauses introduced.

Legal advice should be sought before seeking to amend the contracts of any existing employees in order to avoid claims for breach of contract and unfair dismissal, and also to ensure that any amendments that are sought to be made are enforceable. 

The Legal Obligations of Quad Bikes

Quad bikes, or all terrain vehicles (ATV) are a very useful light machine used by many farmers, growers and gamekeepers who enjoy their versatility and utility. However, like everything used on the land which is mechanically driven, there are rules and regulations which must be adhered to to prevent prosecution at the Magistrates Court. 

All quad bikes, if they are to be used on the road must be approved, registered and taxed and have an MOT if they are more than three years old.   There are quite a few designs of quad bikes that cannot be used on the roads as they do not meet road safety standards. Some are tested and “type approved” in a similar way as motorbikes and these are sometimes called “leisure quad bikes” or “quadricycles".  These car-like quads, where the driver compartment is fully enclosed are treated in the same way as other quad bikes.  They are the only type of quad that can be used on the road.   We recommend that you check with the manufacturer if your quad bike has been approved for road use.  If your bike has not been approved but meets road safety standards, you can apply for type approval with the DVLA.   

The quad bike must be registered with the DVLA, have number plates and display a tax disc.  Bikes used on the road must have a valid MOT certificate.   To drive on the road you will need a full driving licence or a category B1 licence if it was issued before 1997.  Most important is that you must have a minimum of third party insurance.  A quad bike can only carry passengers if it is designed to do so and has the right number of seats – again check with the manufacturer to make sure that it is compliant and only choose quad bikes suitable for the purposes required.  If two gamekeepers are needed then the quad bike should have two seats. 

Crash helmets are recommended in all circumstances but quad bike drivers and passengers do not have to wear the crash helmets - but on or off road, these vehicles give little protection in an accident.  

If you are using your bike off road you do not need a driving licence, nor do you have to tax and register it.   However there is an off road register where you can record the details of the bike which could help the Police if it is stolen.   I would recommend that all off road quad bikes are so registered and protected with such items as trackers and “smart water”.  These items assist the Police in retrieving the vehicles which are often targeted by thieves and easily sold on the “backstreet market” . 

If you are using your quad bike for agricultural, horticultural or forestry work such as spreading of slug pellets or other chemicals it is effectively a light agricultural vehicle and should be registered as such.   You will need to get the correct nil value tax disc and renew it each year.   You can only use an agricultural quad bike on the road if travelling less than 1.5 km between sites where it is being used for agriculture, horticulture or forestry.  An agricultural quad bike used on the road does not need an MOT but must be registered and licensed for road use and must have a valid number plate and a minimum of third party insurance. Any owners who allow staff to use quad bikes should ensure that they have proper training and the correct safety equipment and the correct insurance.    If quad bikes are used after dark they will all need the correct lights, this is particularly important for looking after stock and again in the short hours of daylight in the winter.  Quad bikes used for light agricultural vehicles are usually made only with a driver’s seat and therefore are not allowed to carry passengers. 

Farmers and landowners who use the vehicles might want to check with their insurers and solicitors that they have correctly applied the rules and regulations for the use of these vehicles.

Accrued Holiday on Termination of Employment

An employment tribunal has held that payments in lieu of untaken statutory holiday on termination of employment must be calculated to reflect normal pay.

The Working Time Regulations 1998 (“the Regulations”) entitle an employee to pay in lieu of unused statutory holiday calculated in accordance with either (i) a “relevant agreement” (i.e. a written employment contract, a collective agreement or a workforce agreement) or, where there is no such agreement, (ii) the same statutory formula which applies during the employment, which requires that workers be paid at the rate of a week's pay for each week's leave.

The Regulations do not prescribe how a payment in lieu of unused holiday is to be calculated under a relevant agreement. Some agreements have stipulated that no holiday pay will be paid at all – either in all cases, or in specified circumstances, such as where the employee has committed gross misconduct. However, it has long been established that such provisions, so far as they relate to accrued statutory holiday, will be void.

In a recent case, an employment judge considered whether a contractual term providing for a nominal payment of £1 in lieu of untaken holiday complied with the Regulations.

When the employment terminated, the employee had three days' accrued but untaken holiday. If this holiday had been taken during her employment, she would have been paid £176 net.

The employment judge’s view was that the Regulations must be read in the light of the Working Time Directive (“the Directive”), and he relied on decisions of the European Court concerning the Directive which provided that where a worker "has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship".

Based on this, the decision was that pay in lieu of untaken holiday under the Directive had to be calculated to reflect normal pay. However, the authorities relied on by the employment judge concerned the situation where workers were unable to take holiday during their employment for reasons beyond their control (in that case due to long-term sickness). It is arguable that this reasoning does not apply where it has been open to employees to take holiday (free of sickness) during their employment.

This is a first instance decision and is, therefore, not binding on other courts and tribunals. However, unless and until the higher courts decide otherwise, employers who are parties to relevant agreements which purport to allow otherwise should consider paying employees the same rate for untaken statutory holiday on termination of employment that they would have been paid if the holiday was taken during employment – at least in the event of a challenge by the employee. Where employers do make such payments, however, it would be consistent with principles applied in other cases that any statutory obligation to do so will apply only to the first 4 weeks of holiday entitlement in any year (the minimum entitlement under the Directive) and not the additional 1.6 weeks’ holiday provided for under the Regulations.

To emphasise, there is nothing to stop employers providing in employment contracts that there will be a reduced payment, or indeed no payment at all, upon the termination of the employment in respect of any holiday accrued in excess of the relevant minimum statutory entitlement.

For advice relating to the above issues, please contact me (T: 01952 211010; E: john.merry@lblaw.co.uk) or Will Morse (T: 01432 377152; E: will.morse@lblaw.co.uk

Ragwort - what's the problem?

Farmers, landowners and the general public may be aware of the legal implications under the Weeds Act 1959 and the legal obligation to clear away and prevent the spread of this notifiable weed.  

In fact, the “powers that be” and the Environment Agency can issue a clearance notice under the Ragwort Act since this is a poisonous plant which is dangerous to animals, in particular horses and cattle.  It is more poisonous in its dry form so if found in hay it can kill more rapidly than if it was left standing in a grazing field.  Farmers selling hay to other livestock owners for winter fodder should be particularly cautious if there is any risk of contamination with this poisonous weed. 

Ragwort spreads rapidly and has a long-lasting seed and can take years to eradicate once a parcel of land is infested.

You as a landowner have legal obligations to remove and treat your own land and you must not allow ragwort to spread onto adjacent land since that landowner could take legal action against you for allowing the spread of the weed.

Each plant produces thousands of seeds which are dispersed mainly by the wind and even the movement of contaminated soil during building operations could incur such a liability if the soil has ragwort weed within it.  Therefore it is important that landowners have management strategies for the removal and disposal of this weed to prevent further infestation.

The weed can be easily pulled up since it is shallow-rooted and the stem and flower should be burnt, or if no seeds are present it can be chopped and composted.  However for heavy infestations, broadleaf weed killers will be necessary.

The legislation

Under the Weeds Act 1959 common ragwort is one of the five weeds which allows the appropriate authorities (DEFRA) to serve a notice requiring an occupier of land to prevent the spread of this weed.  It is unfortunate the Highways Authority do not take this weed seriously and if landowners feel that their land has been contaminated by the spread of the weed along the highway and can show it has spread over several years they may have an action against the Highways Authority or the County Council.

There is also the Ragwort Control Act 2003 which gives a code of good practice not seeking to eradicate ragwort but to help prevent its spread onto land used for livestock and forage production.  Many people other than farmers and growers believe that ragwort is a useful plant for wildlife and it is particularly noted that certain butterfly species do enjoy ragwort as a source of food and in nature every plant has its place, but not in a hay or silage field. 

The responsibility to control ragwort rests with the occupier of the land and farmers that have land rented under Agricultural Holding Act or Farm Business Tenancy agreements should enforce their lease provisions regarding the spread of this noxious weed.  Farmers and landowners should seriously consider the implications of the spread of this weed and if they have concerns, contact their agrichemical consultants or environmental consultants for further advice.  

Alternatively, DEFRA gives very good advice on its website including advice on chemical use and other means of disposal of the plant and contaminated soil.

Farmers can allow caravans and camping on their land for fourteen days without change of use application

My family and I recently stayed on a camp site which was located on agricultural land behind a local public house.  We had an arrangement with the public house to use their facilities and water supply.  

Farmers and landowners may not be aware that they can legally allow camping on their land with tents and caravans for up to fourteen days continuous use or fourteen days spread over a year without change of use application to the local planning authority.   Obviously, there are other considerations as to the safety and security of the camp site and landowners may wish to have a short agreement in place with any holiday makers and campers which would reduce their potential liabilities in such circumstances.   It is well known that the National Scouts Association are looking for suitable camp sites and particularly are looking for woodland which is not grazed with livestock where they can place small camp sites on an ad hoc basis.   Similarly local schools are often looking for such sites for pupils undertaking the Duke of Edinburgh Award Scheme which often involves some form of expedition.  

Should you require further information on temporary use of agricultural land for recreational purposes I can be contacted on 01432 378379 or email douglas.godwin@lblaw.co.uk.


Farm Vehicles and Mud on the Road - Farmers Must be Aware of the Law

Following a wet summer and difficult harvest we just need to be careful when driving.  Of equal importance is the need for the farmers to know the law regarding mud on the road and to ensure users are safe. 

Farmers and vehicle operators who deposit mud on the road maybe potentially liable for a range of offences under the Highways Act.  Section 148 makes it an offence to deposit mud on the highway and interrupt the use of other road users.  Section 149 gives the Highway Authority the power to clean the road and recover its expenses from the person causing the obstruction.  Section 161 of the Highways Act makes it an offence for anyone to deposit anything whatsoever on the highway which will cause a user to be injured or endangered.  A civil claim may also follow any personal injury, damage or loss as a result of mud on the road.

I would therefore urge farmers to ensure they keep their own farm roads and minor roads clear wherever possible, to keep to low speeds, particularly when travelling short distances to retain mud on the vehicle.  A written record of decisions on whether or not to deploy signs and clean the roads, farm roads and other minor roads where available, check availability of hire equipment.  Farmers must do everything possible to prevent mud deposited on the road, which includes cleaning vehicles before leaving fields.  If there is a danger of mud being accidently deposited on the roads they must use slippery road signs with a mud on road sub-plate to alert other road users, check local highway authorities.

It is very important to clean the road in the working day and always at the end of a working day and ensure that labour and equipment is available and suitable for this task.

In particular, farmers should be aware that where a contractor is used they must enter into proper agreements to ensure who is responsible for the mud on the road, lineage and cleaning etc, to make sure public liability insurance is in place to safeguard against any such claims being brought. 

Debate-Ed Programme – Progress so Far

The Debate-Ed programme has come to the end of its summer/autumn run and will now be on break until early January. Consequently, this is a good opportunity to take stock of what has been achieved so far.


Interactive workshops

Prestfelde School, Priory School and Meole Brace School have all had students take part in our interactive workshops. Students have debated a wide range of topics including the use of Photoshop, capping salaries, the use of doping within sport, human rights and feminism. Students have sometimes been given the option of choosing which side they are on and to express their own opinion, and at other times have been allocated a side and pushed to carefully analyse the potential arguments they could make, even if this is against their natural inclination.

Effective counter arguments

The purpose of all this is to help students to develop vital skills. Students have been taught in particular about the importance of making effective counter arguments when debating. To do this well, students need to listen to their opponent, identify their key points and then explain why their opponent is wrong and why they are right. This is an extremely useful skill and is essentially what distinguishes debating from speech making. It requires students to think more deeply about what their opponent has said and how to react quickly to a developing argument.

To be a good debater, you cannot simply write a speech hours before the debate and then read out your speech verbatim. You need instead to react to the other speakers and counter their points.

This skill is particularly relevant within the legal industry as whether you are a barrister or a solicitor, you will always need to be able to react quickly to what is being said and to respond to any developments appropriately. Just as no debate is the same, similarly no case is ever the same. It is not possible to simply churn out the usual answers and hope for the best. You need to tailor your answers to the facts in front of you and be able to deal with whatever surprises there are along the way.


Thank you to all involved

Overall I am really proud of the Debate-Ed programme and the skills it is teaching students across Shropshire. I would especially like to thank the students from Sixth Form College who give up their time to lead these workshops and have done a fantastic job this year. I would also like to thank the schools and teachers involved. Their support for the programme has been phenomenal and it is great to see us reaching more and more students.

When Debate-Ed returns, we will be hosting both a debating competition and also inviting the students who have completed the Core Programme to complete an English Speaking Board debating qualification.

Animal Cruelty & Lorry Driver Offences

The Government is currently consulting on whether or not to increase the maximum penalty for Animal Crueltyoffences.

Currently the maximum sentence available to the courts is six months custody which has often been criticised as being far too lenient for the most serious cases. The new proposal is to increase the sentence significantly to up to five years imprisonment.

Lorry drivers are to face tougher penalties if they exceed certain time limits on the road, if they breach their tachograph restrictions by exceeding the hours they work in a 24 hour period.


Traffic officers can now issue fixed penalty fines of up to £300, the Driver and Vehicle Standards Agency (DVSA) has announced.

Dragons Den – Spotlight on Communities and Charities in Shropshire

I was really pleased last month to be involved with a charity event organised by the Shropshire Providers Consortium (SPC). Five charities met with local business people at Lanyon Bowdler’s Shrewsbury office to discuss their existing and planned activities in Shropshire. Similar events also took place in Oswestry and Telford.

Joining myself as ‘Dragons’ were Carol Ewels from Always Consult, Sarah Offland from Barclays, Mandy Thorn from Marches Care and Councillor Nic Laurens from Shropshire Council. We did our best however to reign in any tendencies towards fire breathing and instead focused on how we could potentially work with or support the organisations that came to pitch their ideas.


It was very interesting to hear about the range of different projects and community groups that exist within Shrewsbury. In attendance were Headway Shropshire, Axis Counselling, Shropshire Disability Network, Shropshire Youth Association and the Yellow Ribbon Community Chaplaincy.

All the charities/groups had the opportunity to highlight their work and ask for support with a particular aspect. I have summarised below the current work of the different charities and their plans for the future.


Headway Shropshire

Headway Shropshire is a registered charity working with people who have suffered an acquired brain injury. They support people both in their own homes and within their dedicated site to help individuals to return to living as independently as possible and to enjoy everyday activities such as cooking, art and craft, socialising and gardening. They currently have 110 day placements per week, but find that the demand for their services is ever growing.

Headway Shropshire consequently is looking to grow to meet this demand and to secure a new building which would allow them to offer more day places, along with accommodation for those who are well enough to leave hospital, but need to remain within a supportive environment.

If you would like to find out more about Headway Shropshire, you can visit their website here: http://www.headwayshropshire.org.uk.

They are also holding a winter fair on Saturday 18 November if you would like to pop in and meet the team.

Axis Counselling

Axis Counselling provide essential counselling to adult survivors of childhood sexual abuse. Their focus is on helping adults and children to deal with the trauma of those experiences and go on to thrive and reach their potential. They, like many services providing mental health support, have found that demand has greatly outstripped their ability to supply services. They advised that at the moment, they have 200 people on the waiting list with patients waiting around one year for an appointment.

They wanted advice on how to expand their services and generate income so that they could reach more people.

They also suggested that in the future they would like to offer training in schools and colleges in relation to sexual abuse.

If you would like to find out more about Axis Counselling, you can visit their website here: http://www.axiscounselling.org.uk/.

Shropshire Disability Network

Shropshire Disability Network provide support through their website, quarterly meetings and newsletters to those in Shropshire who suffer from a disability or long-term health conditions along with offering carers and social workers. They also run the Safe Places community initiative in Shropshire.

Ruby Hartshorn of Shropshire Disability Network explained that while their organisation has just over 1000 members across Shropshire, she is aware that there are over 56,000 people with disabilities or long term conditions in Shropshire. She wanted advice on how to reach more people and raise awareness of what Shropshire Disability Network can offer.

They also had this to say about their participation in the event;

"SDN appreciated the opportunity to pitch to the friendly dragons, we are grateful to those who are helping us. A quick win for us was when networking with the other charities as it gave us chance to talk. Shropshire Youth Association offered us storage space at an accessible location meaning our Chairperson who has stored the majority of our items can have her home back"

You can find out more about Shropshire Disability Network here: https://shropshire-disability.net/.

Shropshire Youth Association

Shropshire Youth Association assists youth clubs and groups and provides programmes for young people in Shropshire such as CRUCIAL CREW. They currently support 120 youth clubs across Shropshire with offices, budgets, safeguarding, DBS checks and training. However, since public funding was cut four years ago, they have seen a drop in the number of clubs registering with the Shropshire Youth Association.

They wanted advice on how to adapt to the changes in public funding and assistance in developing their organisation further.

You can learn more about Shropshire Youth Association here: http://www.sya.org.uk/.

Yellow Ribbon Community Chaplaincy

This organisation aims to help ex-offenders rehabilitate and provide mentoring support, temporary accommodation and a furniture restoration shop and café where ex-offenders can retrain, get work experience and obtain a reference. Pauline Mack of Yellow Ribbon explained to the Dragons that sometimes ex-offenders leave prison with just the clothes on their backs and £46 to last them for up to four - six weeks before any benefits are received. It is in these situations that Yellow Ribbon try to step in to assist the ex-offenders and help them to get back on their feet.

Yellow Ribbon was particularly looking to expand their café, workshop and furniture shop so that they could give more ex-offenders an opportunity to learn business skills while volunteering there.

You can learn more about the Yellow Ribbon projects here: http://yellowribbonuk.org.uk/.

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