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Debating and Coronavirus

Due to the coronavirus outbreak the planned Debate-Ed debating competition will not be taking place this March.

I am conscious, however, that parents will soon be trying to find activities for their children to do whilst they are out of school. Parents may want to consider whether their children would enjoy using this time to practice and develop their debating skills. This could involve debating against friends (perhaps via lively email debates), against their siblings or even the pets (very receptive audience, rarely heckle).

Children could be encouraged to research any or all of the topics below and to come up with some arguments for and against. They could then practice how they would deliver a persuasive and engaging speech, keeping in mind the importance of fully explaining their points, backing these up with examples/evidence and linking their points into the overall debates.

I have suggested some potential topics below, but feel free to expand on this list or tailor it to your child’s specific interests.

Younger Students/Lighter Topics

  • Who is their favourite character in a specific book/tv show/film. Why is that character the best?

  • Who would win in a fight out of two characters? You could restrict this to characters the children are used to thinking of in the same context (Iron Man vs Captain America for instance) or expand it out to help them think innovatively about how different character’s abilities might benefit them e.g. Harry Potter vs the Incredible Hulk.

  • Should violent video games be banned?

  • Should school uniform be banned?

  • Should zoos be banned?

  • Should all reality TV be banned?

More Mature Students

  • Should we ban cosmetic surgery?

  • Should testing on animals for medical purposes be allowed?

  • Should advertising of unhealthy food be banned?

  • Should celebrities who break the law receive harsher sentences?

  • Should the royal family be banned?

  • Should everyone become a vegan?

  • Should 16 year olds be allowed to vote?

Coronavirus and Pregnancy

This week pregnant women have been added to those in the high risk category for coronavirus. The latest advice is that pregnant women minimise social contact for up to 12 weeks from this weekend.

I, at 32 weeks pregnant, fall into this category and I am now working from home. I understand completely therefore that this is an anxious and uncertain time for everyone.

However the advice is not to panic. Given that this is a new virus there is limited information about the effects on mother and baby. The little evidence the government does have suggests there are no coronavirus-related complications in pregnancy.

It goes however without saying that no infection or virus in pregnancy is welcomed. Therefore the government is taking very precautionary measures in relation to pregnant women to be on the safe side.

I would urge pregnant women therefore to be sensible at this time and to follow the advice we are being given about minimising social contact. However, I cannot emphasise the important of continuing to attend antenatal appointments as normal. This is essential to ensure the wellbeing of pregnant women and their babies.

I wish you all the best with your pregnancies. Stay safe and good luck putting up with your husbands and partners for this period of confinement!

Extension of Off-Payroll Working Rules Postponement

The government announced yesterday that the extension of off-payroll working rules to medium and large companies in the private sector is being postponed until 6 April 2021.

The IR35 legislation was introduced in 2000 with the aim of cracking down on a form of perceived tax avoidance whereby individuals would seek to avoid paying employee income tax and national insurance contributions (“NICs”) by supplying their services through an intermediary (usually a personal service company) and typically paying themselves in dividends.

In summary, the IR35 legislation requires the intermediary to determine whether the worker would have been a deemed employee of the end-user client, but for the existence of the intermediary. If so, the intermediary must operate payroll, make deductions for income tax and employee’s NICs and pay employer’s NICs on the fees received for the services.

However, the treasury’s perception of large-scale tax avoidance nonetheless continued and therefore the government introduced the off-payroll working rules in 2017 for the public sector, whereby the responsibility for operating payroll, making deductions and paying employer’s NICs shifted from the intermediary to the paying party, where payments for the services were being made by, or on behalf of, public authorities.

These rules were to be extended to medium and large business in the private sector for services provided on or after 6 April 2020. However, in light of the burden on the economy of the coronavirus outbreak, this change has been shelved for a year.

The effect of the new rules is that the burden of making a determination of employment status will fall on “end-user clients”, who then need to notify their contracting party and the worker of that status determination. The final party in the chain before the personal service company must operate payroll, make deductions and pay employer's NICs on the fees paid for the services.

In anticipation of the changes taking effect this April, many businesses had announced that they had ceased, or would be ceasing, to engage contractors through PSCs. Many other businesses, however, were struggling with this issue, and the delay in implementation provides them with more time to prepare.

Bereavement Damages Update

When a person dies as a result of negligence either following an accident or clinical negligence, a limited group of people are entitled to compensation under the Fatal Accidents Act 1976.

The bereavement award is currently limited to £12,980. Whilst no amount of compensation can make up for the loss of a loved one, it is a very low level award. The bereavement award of £12,980 was set in 2013 and has not been increased since. There have been calls for the government to review the award and to consider a substantial increase. However, the Ministry of Justice has rejected calls for a full consultation on bereavement damages stating that the award will be increased to reflect inflation since the previous increase in April 2013.

Defending its decision not to carry out a full review, the Ministry of Justice has stated that bereavement damages “are and were only ever intended to be a token payment to a limited group of people”.

The exact increase in the amount of bereavement damages that will be awarded under the Fatal Accidents Act in England and Wales is yet to be confirmed.

If you have any queries about a fatal injury claim please contact our specialist personal injury department.

Coronavirus and Contractual Obligations

Following the World Health Organisation’s classification of COVID-19 as a pandemic and the increasing restrictions being imposed by the British Government to limit the spread of the virus, many businesses are becoming concerned at the financial risks these measures may entail.

The Issue

The jeopardy which exists for businesses in the wake of this pandemic is not just in its workforce being unable to carry out their roles but in the ability for it to carry out contracts in the face of the prospect of increased limitation of public movement/gatherings.

The ability to perform, and receive performance of, contracts is essential to the existence of commercial entities. The continued supply and receipt of goods and services ensure their continued profitability and survival in a competitive marketplace.

The majority of contracts will, almost inevitably, require a human element for their execution, whether that be the production, or shipment, of goods or the provision of services. Should the British Government follow the lead of their European counterparts in imposing restrictive measures on public movement, the human element may be unable to perform its obligation under contract.

If a party to a contract does not carry out its obligations, it can be said to be in breach of the same, giving rise to the unpalatable prospect of litigation in addition to lost revenue.

What Should You Do?

There are proactive measures a business can take in order to try to mitigate the financial risk posed by acts of government restricting its ability to perform contractual obligations:

  • Conduct a review of all active contracts for the supply or receipt of goods/services, specifically clauses in relation to the cancellation or suspension of parties’ obligations or ‘Force Majeure’ clauses.

    • Force Majeure clauses operate to relieve parties’ obligations if a trigger event occurs which is beyond the control of either party. The concept of Force Majeure does not exist unless it is included by an express provision (meaning it will not exist in oral contracts). In the absence of a Force Majeure clause, the parties would need to rely on the doctrine of frustration.

    • The law of frustration, in a similar way to Force Majeure, relieves parties’ obligations in the event the contract is unable to be performed by an intervening act, which makes that which was agreed to be carried out impossible to perform. Although, rather than suspending the parties obligations, frustration effectively ends the contract. The scope for claiming frustration is far narrower than establishing Force Majeure under a properly drafted clause, meaning there is less chance a party will be successful in claiming it.

  • Conduct a review of relevant insurance policies. There may be circumstances in which a business could claim some, or all, of its losses incurred under an existing policy of insurance.

  • Stay up to date with all developments as they happen. Many Force Majeure clauses contain a notice requirement, which requires the affected party to make the other party(ies) aware it is seeking to trigger the clause.

    • If you intend on providing such notice, be sure to comply with the requirements to give notice under the appropriate contractual clause (if there is one).

  • Consider ways in which the effects of the failure to perform the contract may be mitigated. In addition to limiting the impact on a business’s revenue, considering mitigation is often a requirement for claiming Force Majeure.

What Can Lanyon Bowdler Do to Help?

Our Corporate and Commercial team has decades of combined experience in helping businesses plan ahead, particularly in times where the future can be unclear. Our firm can conduct reviews of current supply or service contracts as well as any insurance policies a business may have, advise on likely issues and help draft agreements with appropriate clauses to protect against the uncertain.

Contact a member of our team today to see how we can help you.

The Coronavirus and Travelling with Children

With many families getting ready for their Easter breaks, our family law team has seen a sharp increase in calls from worried parents.

In the current climate with the public understandably concerned about the coronavirus, parents need to remember that the decision to travel with children needs to be a joint decision made by all those who share parental responsibility.

We have seen a significant increase in calls from worried parents wanting advice on whether they should travel with their children without the need for updated consent from the other parent.

You should proceed with caution. It is a very difficult position with the WHO advice likely to change daily as the virus spreads.

Anyone concerned should contact our specialist family law team and seek legal advice before travelling.

Entrepreneurs’ Relief

With the budget creeping up on us fast, it is important that you keep informed with the changes to Entrepreneurs’ Relief (EP) so that you know where you stand when it comes to selling your business. When you decide to sell your business or shares you own in a business, it is a big decision and there are many considerations to be made.

The current law

The current law allows for a seller of shares to qualify for EP if the following criteria are met: the shares must have been held for at least two years, the company must be a trading company and the shares being sold must account for at least five percent of the share capital of the company. If all of these criteria are met, the tax payable on the proceeds of the sale will be reduced from the flat rate of twenty percent, to a much smaller ten percent. This relief can be used over a lifetime, as many times as necessary, up to a maximum value of £10 million.

With this being the case, business is promoted and the number of companies within the UK has drastically increased since EP was introduced. The relief has been very important for owners of smaller companies who have later been able to sell on their businesses and retain a large percentage of the profit. However, it also allows for very big companies to get even bigger, as they are able to benefit from this relief. Although this can generally be argued to be a beneficial relief all around, there have been numerous complaints regarding the loopholes that are created because of it.

For example, the primary criticism of EP is that it can encourage individuals to set up their own private limited company, pay themselves through it and therefore reduce their exposure to taxation on their earnings. By providing a salary through dividends, lower taxes are in place and then when the company is eventually dissolved, ER will be applied to any capital remaining in the company. In the eyes of the government, this is a concerning loophole as business owners are being asked to pay less tax than those who work for them. For that reason, this may be reduced, removed or amended otherwise in this year’s budget.

How will it impact you?

So, how will you be affected if you intend to sell your business after the budget has been implemented?

This could mean that the capital gains tax bill you are liable for, on the proceeds of the sale, is much larger than it would have been in the years of ER. The overall process of the sale will probably not be affected but there might be some aspects that would be best changed in order to provide for the most tax efficient process. This is all speculative at this time, but when the budget hits, we will be here to help and to guide you through your business sale.

Get in touch with our corporate and commercial team to find out more and to see how we can help facilitate your business sale.

Is Planning Permission Required for Camping Pods and Yurts?

One issue which raises its head from time to time, concerns the ever developing world and diversification of outdoor activities such as ‘yurts’ and other camping and leisure activities on land.

This can be particularly relevant to some of our farming and other clients in rural areas.

A recent planning appeal regarding camping pods

A recent planning appeal has considered the planning issues, which may apply to such activities, and a planning inspector’s decision has held that ‘camping pods’ were to be treated as buildings for the purposes of planning law and regulations.

In this case, a local planning authority took enforcement action against the erection of (four) camping pods which the appellant argued were not permanent but should be treated as caravans.

Unfortunately for the appellant and in the circumstances of this particular case, the independent planning inspector when considering the matter on appeal concluded that the pods did not fall within the definition of ‘caravan’ which is set out in the Caravan Sites and Control of Development Act 1960.

Why was the planning appeal dismissed?

His decision was based upon a number of factors, such as the degree of permanence of the pods and physical attachments to the ground.

He ruled that the pods would constitute ‘operational development’ under section 55 of the Town & Country Planning Act 1990.

Accordingly, the planning appeal was dismissed and the enforcement notice upheld which means that the appellant must now remove the pods within the terms specified in the council’s enforcement notice, or face prosecution.

We have previously published advice and articles about similar issues and would welcome any queries from clients who would like further clarification of the law and the relevant factors, which might apply to such initiatives.

Lanyon Bowdler has a team of specialist and experienced planning lawyers who are able to offer advice on such matters.

Electronic Signatures - A Sign of the Times?

When was the last time you signed a document with an actual pen - in ink? If you can’t remember, you’re certainly not alone. An increasing number of contracts are now signed electronically using a variety of online methods, prompting questions as to the legality of these agreements, which have not been confirmed with a “real” signature.

Electronic signatures can be carried out remotely, dispensing with the need for face-to-face meetings meaning a saving of time, travel, potential manpower and administrative costs. Plus, there could also be benefits to the environment with less use of paper and therefore less waste.

There are a number of issues to consider before a business should decide whether electronically signed contracts are best suited to them.

Are Electronic Signatures a Safe Way to Sign Contracts?

The world of corporate and commercial law is held in place by certainty; this certainty is paramount to business transactions. With the Law Commission having confirmed that electronic signatures can be used to sign formal legal contracts, electronic signatures are now, with much more certainty, seen as a safe and legal way for individuals and businesses to sign contracts. This allows for remote transactions, which can hold the same degree of validity as ‘wet’ signatures. With electronic signatures being accepted in statute, the certainty and level of trust in transactions is maintained, whilst simplifying the transactional process.

However, using electronic software to close contracts can be an expensive option. The software will also need constant updates as developments are made by the software developers. Larger businesses may more easily afford this and cover the costs with the savings they make in other areas, but smaller businesses may want to consider this carefully. One further disadvantage is that parties to a transaction may well never meet. This can be seen to be problematic as agreements may be better drafted, or drafted to a more suitable level, if face-to-face meetings occur.

Security

On the plus side, a higher level of security can be guaranteed by using electronic signatures. This is because electronic signatures contain the signature itself, as well as traceable information, such as who signed it, when it was signed and where they signed it. Other advantages are that it isn’t so easy to destroy or lose electronic documents and they can be found more easily online than looking through paper files.

Parties can also opt to receive only electronic copies of such agreements, saving paper, and contributing towards a greener footprint. There are large cost savings owing to this as well because the printing, scanning and sending of documents can be completely eliminated.

Although a ‘wet’ signature is the best first choice, electronic signatures are binding and will be accepted commercially and legally.

Overall, electronic signatures can be seen to be highly beneficial within the business world. The advantages do, on the whole, tend to outweigh the disadvantages, so they are certainly here to stay.

Update - Proposed Reforms in Relation to Changes to the Small Claims Court Limit in Personal Injury Claims

In 2017 the government announced proposed reforms in relation to changes to the small claims court limit in personal injury claims from £1000 to £5000 in relation to road traffic accident claims and £2000 in other personal injury claims. In cases caught by this limit legal costs of assisting the claimant will not be recoverable from insurers. The proposed implementation date was April 2020. However the Ministry of Justice has announced the date is to be delayed until August 2020, having already been delayed from the original date of 2019.

I am not surprised that the implementation is being delayed again, as there is still little information available as to how exactly the system will work and how the unrepresented claimant will be expected to access it.

As the insurance industry wants claimants to be unrepresented in bringing their claims, any announcement of a further delay will be frustrating news.

I have always had concerns in relation to the proposed changes and the impact that they may have on claimants. In any personal injury claim a claimant has to prove negligence on the part of the defendant and causation with respect to their injuries in order to be successful with their claim and often there are complexities in respect of both of these hurdles. A claimant whose claim falls under the new limits proposed will find themselves faced with a professionally represented defendant insurer either without the support of legal advice and assistance or having to pay for it reducing their damages. Without any expert advice or assistance this may result in the chances of success being diminished or being under compensated.

The government needs to take their time in considering the reforms to ensure that personal injury victims are not deprived of access to justice under the reforms. The only way that the concerns can be alleviated is for the concerns around access to justice to be properly addressed and the precise rules to be made clear. If the government needs more time to do this, then so be it.

I would encourage anyone with a potential claim to start the process as soon as possible, before the changes bite and deprive claimants of recovering the cost of legal advice.

Coronavirus - what is it and where does it come from?

Coronavirus is making all the headlines at the moment but what is it and where does it come from?

On 31 December 2019 the World Health Organisation (WHO) China office heard about the first reports of a previously unknown virus causing a number of pneumonia cases in Wuhan, a city of over 11 million people in Eastern China. The disease appears to have originated from a seafood market where wild animals were traded illegally. Corona viruses are known to jump from animals to humans so it’s thought that the first people infected contracted it from animals. However, some people without links to the market have also been infected so the exact source is still not conclusive.

The WHO advise that the incubation period between infection and symptoms lasts up to 14 days but other sources quote up to 24 days. Many symptoms of corona viruses are often mild much like a cold, runny nose, cough and fever. These symptoms can become more serious leading to respiratory disease such as pneumonia and bronchitis. This can be particularly dangerous in older patients or people with existing health conditions.

On 11 February 2020 the WHO announced that the official name of the disease was now Covid-19.

The majority of cases have been in China but cases have now been confirmed in many other countries including the UK. As of 17 February 2020 70,620 cases had been confirmed in China with 1,770 deaths from the disease. Approximately 715 people outside China including nine in the UK have been tested positive for the disease. So far six people have died from the virus outside of China.

If symptoms are minor no treatment is needed. If they become more severe, treatment relies on keeping the body going with breathing support until the immune system can fight off the virus. However, work to develop a vaccine is underway and the hope is that it will be available by the end of the year.

Very recent news reports that more cases have been confirmed in South Korea. The WHO has declared it a global emergency but believe it can be contained. It is also hoped that the coming warmer weather may slow down the spread of the virus. Let us all hope this is the case.

East Kent Hospitals Baby Death Investigation

At Lanyon Bowdler we have been working on behalf of a significant number of families affected by failures at the Shrewsbury and Telford Hospital NHS Trust, which has hit headlines again recently after news broke about the leaked independent inquiry report. It is therefore all the more concerning to read the recent news coverage concerning East Kent Hospitals NHS Trust which sadly tells an all too familiar story.

Investigation into East Kent Hospitals NHS Trust

Last week, a BBC investigation discovered that since 2016, at least seven preventable baby deaths may have occurred at East Kent Hospitals NHS Trust. One of those is Harry Richford who was born at the Queen Elizabeth The Queen Mother Hospital in Margate in November 2017. Harry sadly passed away just a week after he was born following complications with his delivery and neonatal care.

On Friday 24 January 2020, coroner Christopher Sutton-Mattocks ruled that Harry’s death was “contributed to by neglect” and “wholly avoidable”. The BBC reported that the coroner identified a number of failings in Harry’s care including, but not limited to, failure to expedite delivery once the cardiotocography (CTG), which monitors a baby’s heartrate, had become pathological and a lack of consultant involvement during both the delivery and resuscitation attempts.

Upon conclusion of the inquest, Harry’s father, Tom Richford said, "Accidents happen every day but failing to learn from them appears to have become part of the culture of this trust. It was known there was a risk. The risk was present as far back as 2014." It is that failure to learn from mistakes which is most familiar to those of us working with clients who have been failed by maternity services. We have heard from many clients who were told by the hospital treating them that lessons have been learnt from their case, and yet more cases with similar facts continue to come to light.

A 2015 report by the Royal College of Obstetrics and Gynaecologists (RCOG) reviewing obstetric services at East Kent Hospitals NHS Trust uncovered a number of concerning findings that contributed to Harry’s death, including a reluctance/refusal by some consultants to attend out of hours when requested and a failure to attend CTG training. Despite these concerns however, the full report was not provided to the Care Quality Commission (CQC) until January 2019.

Criticisms from Dr Bill Kirkup CBE

This was heavily criticised by Dr Bill Kirkup CBE, the Chairman of the Morecambe Bay investigation into maternity and neonatal services at Furness General Hospital. He told The Independent: “When there is sufficient concern about a service to prompt an external review, the report must be available immediately to those responsible for assuring the quality of the service. That was the reason for the recommendation of the Morecambe Bay investigation, and it is disappointing that the Care Quality Commission apparently had no sight of this report until now.”

Towards the end of 2019 my colleague, Beth Heath took part in BBC Radio 4’s Women’s Hour alongside Dr Kirkup, discussing the news coverage regarding Shrewsbury and Telford Hospital NHS Trust. He made it clear that he hoped that lessons would be learnt from the Morecambe Bay investigation report, which was circulated to other hospital trusts in 2015. Sadly there continues to be a worrying pattern of repeated failings in maternity care despite the rhetoric from hospital trusts of “lessons being learnt”.

Following the conclusion of Harry Richford’s inquest, East Kent Hospitals NHS Trust is now under criminal investigation by the CQC.

Lanyon Bowdler’s award winning clinical negligence team includes members of the Law Society’s Clinical Negligence Panel and AvMA panel members. The team has extensive experience of dealing with birth injury cases, in particular cases involving neonatal deaths and we are handling many cases arising out of the Shrewsbury and Telford Hospital NHS Trust baby death scandal. If you have concerns about the maternity care you have received, our team are happy to discuss the matter with you and guide you through the process sensitively.

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