Author: Wellers

Lending Money? It Pays to Invest in a Professionally Drafted Agreement

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When lending money to friends, acquaintances or anyone else, the terms on which sums are advanced may be entirely clear to you in your own mind. However, as a High Court ruling showed, the absence of a professionally drafted loan agreement is a positive invitation to subsequent dispute.

The case concerned a couple who agreed to advance £50,000 in order to assist friends whose business was encountering financial difficulties. When the friends failed to repay the money, the couple issued a statutory demand against them. The friends, however, argued that the loan had not been made to them personally but to a company which was by then in administration.

The loan agreement, which was not the work of a professional, was in the form of a private letter and stated that the money was repayable when the company had the ability to do so or at a requested date. A number of emails were sent and received which the friends cited in support of their case. Following a hearing, however, a judge found that the friends, not the company, were the borrowers and refused to set aside the statutory demand.

Challenging that outcome, the friends pointed out that the money was paid into the company’s account. They said that references to the company in the loan agreement indicated that the company was the borrower. In reliance on the email traffic, they contended that the loan agreement did not in any event reflect all sides’ true intention that the company should have the benefit of the loan.

In dismissing the appeal, however, the Court found that the loan agreement was as clear as it possibly could be that the money was being advanced to the friends personally. There was nothing in the email correspondence to undermine the conclusion that the loan agreement was a self-contained and complete contract and that the money was repayable by the friends on demand.

Misconceptions about Lasting Powers of Attorney

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A recent survey carried out by Which? has revealed that, although most of the public understand what a Lasting Power of Attorney is, there is some confusion as to how the documents operate.

A Lasting Power of Attorney (LPA) is a document that allows a person, called the Donor, to appoint a person or persons (Attorneys) to stand in their shoes when making decisions relating to their finances and health.  I have seen for myself there is a common misconception that if a person has a Will, there is no reason to worry about a Power of Attorney; this is not the case.  A Will only takes effect on one’s death, whereas an LPA will provide support for a person who is still alive but has become physically or mentally incapable.

The powers under an LPA can only be granted by a person who has the mental capacity to make their own decisions, and as such, the Donor may have to consider preparing an LPA before it is needed, as it could be too late to do so afterwards.  If a person has already lost the capacity to make their own decisions, the only option will be to make an application to the Court of Protection to be a Deputy; this process is considerably lengthier and more expensive than the process for preparing an LPA.

An LPA must be registered before it can used.  16% of those surveyed by Which? believed that once this registration has taken place, the Donor will lose access to their assets, but this is also not the case.  Registration of an LPA does not raise any presumption that the Donor has lost capacity, and in fact, as the registration process can take several months, it is usually wise to register the LPA early to ensure that it is available should it need to be used. There are two types of LPA.  The first is for Property and Financial Affairs, and deals with all financial matters such as accessing bank accounts and settling invoices.   When completing a Property and Financial Affairs LPA the Donor has the option to decide when their attorneys can step into their shoes or choose to wait until they have lost capacity. The latter option requires evidence from a professional that capacity has been lost and therefore can involve additional expense and take longer to organise which is an important issue if the Donor has bills to pay such as care home fees.

The second is for Health and Welfare, and deals with matters such as where a person lives, medical decisions and life sustaining treatment.  The welfare LPA can only used if the Donor has become mentally incapable.

There are several options as to how Attorneys can be appointed, and a Donor must give this careful consideration.  For example, primary Attorneys can be appointed, with replacements to act if those named first are unable or unwilling to fulfil their duties.  And where multiple Attorneys are appointed, they may act jointly, so they must make every decision together, jointly and severally so that they can act independently of one another or jointly in some respects and jointly in severally in others.

An LPA is a powerful instrument, and it is important that the public are aware of the options available to them should they be concerned about the management of their affairs; particularly that the document must be prepared before it is needed!

Please call us on 020 8464 4242 if you would like advice on preparing a Lasting Power of Attorney.

 

Don’t Get Caught Out by Property Fraud

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In November 2021, the BBC reported on the shocking case of a man who found his house in Luton had been fraudulently sold while he was working away. The man described the moment when he struggled to get back into his house and establish himself as the rightful owner, only to find that the Land Registry entry had been changed without his knowledge.

Property fraud often sees the scammers impersonating the registered owner and once they have convinced a conveyancer or lender that they are the owner and have the right to sell, they can list the property and net the proceeds.

The BBC reports that the Land Registry paid out £3.5m in property fraud compensation last year.

Lasting power of attorney fraudulent house sales

In December 2021, the Radio 4 consumer affairs programme, You and Yours investigated the sale of homes through fraudulently obtained lasting power of attorney (LPA), recounting the story of a 57-year-old woman who discovered her mortgage-free home, that she had owned for more than 20 years, had been put up for sale without her knowledge.

The woman, who had not been living in the property at the time as it was undergoing renovation, was alerted to the issue when she received an email from the property freeholder thanking her for a payment for a resale pack. She queried the details with the freeholder and was alarmed to find out that a fraudster, claiming to be her sister, had registered an LPA and was in the process of attempting to sell her house.

The astonishing and shocking story was mentioned in the House of Commons. Shadow Justice Secretary Steve Reed told parliament that the fraudster had gained the LPA by filling in an official form, using fake names and signatures of witnesses who did not exist. “Astoundingly,” he said, the Office of the Public Guardian (OPG) is not required to carry out basic identity checks and granted the LPA without ensuring this woman was who she said she was.

Are you at risk of property fraud?

Property fraud occurs when a scammer cons another party into believing they have an interest in a property in order to defraud significant sums of money. The criminals may claim to be the owner, a buyer, borrower, lender or conveyancer, or they may claim to be representing the owner through power of attorney.

Fraudulent property transactions have become a considerable threat for homeowners, especially if they are in one of the ‘at risk’ groups.

The types of property which are more likely to attract a fraudster are:

  • Empty properties (both residential and commercial)
  • Properties being redeveloped
  • Probate properties
  • High-value properties
  • Properties not registered with HM Land Registry
  • Property that is a contact address for an owner who lives elsewhere
  • Property that is not mortgaged

You may be at greater risk of property fraud if:

  • You have been the victim of identity theft
  • You are elderly or vulnerable
  • You live overseas or at another property
  • You rent the property to tenants

How can I protect my property?

Properties bought or mortgaged since 1998 will be registered with HM Land Registry. If your property is not registered, this is the first thing you should correct. Unregistered properties do not qualify for compensation claims if property fraud occurs.

To check the information held about your property you should apply to HM Land Registry. You can do this online; however, there is a small fee for this service. You should inform HM Land Registry immediately if the information held is incorrect.

HM Land Registry alerts

You can sign up for alerts which will notify you when an application is made to change the registry details for your property. This service cannot block a change, but it will give you an early warning so that you can take action. This is a free service. You can register for alerts on up to ten properties. To contact the Property Alert team at the Land Registry you can call 0300 006 0478 or go to propertyalert.landregistry.gov.uk.

Submit a restriction for your title

This allows you to prevent activity in respect of your property, such as an application for a mortgage. Owner occupiers must pay a fee for this service.

Business owners can request a restriction for company-owned properties. Owners who do not live permanently at the address can also apply for a restriction. For these applicants, the service is free.

Preventing LPA-related property fraud

Sadly, the systems used by the Office of the Public Guardian for the creation and processing of LPAs are woefully out of date and, despite a 12-week consultation on the process which occurred in July 2021, they are still open to criminal abuse.

Dominic Raab, Secretary of State for Justice, has said that the Government is in the process of reforming the system; however, it appears that currently the requisite safeguards are not in place.

If you wish to create a Lasting Power of Attorney and appoint a person of your choice to handle your affairs when you are no longer able, contact Wellers today. We can ensure the LPA is created and witnessed correctly, and is legally binding. Once an LPA has been registered with the Office of the Public Guardian, in practice, it should make it more difficult for scammers to set up a fake LPA in your name.

Help, I think I’ve been the victim of property fraud

If you believe you have been the affected by property fraud, you should speak to a property fraud solicitor and they will be able to advise you on your best course of action.

You can contact the HM Land Registry property fraud team on 0300 006 7030 (restricted office opening hours may apply).

You can report the issue to Action Fraud on 0300 123 2040 at any time. This is the national reporting centre for fraud and cybercrime in England, Wales and Northern Ireland. When you make a report you will be given a police reference number and the details will be passed to the National Fraud Intelligence Bureau.

Legal advice on fraudulent property transactions

High-value property fraud has become increasingly attractive to scammers. Talk to Wellers Law Group today if you have been the victim of a fraudulent property transaction. We can explain your rights and help you seek justice through all available means.

All I want for Christmas….is to see my child

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When a relationship breaks down and there is a child or children involved, the courts do not generally intervene unless there is a dispute.  It is up to the parents to agree the arrangements between them.

In an ideal world, parents would automatically work together and there would be a shared care arrangement with the children sharing equal time with each parent.  However, it is not always possible for the children to be able to share their time equally between their parents and their extended families.  It can sometimes be disruptive for the children and does not always work given work commitments, the logistics of where parents live or the structure of many family routines.

Moreover, when a relationship breaks down more often than not, emotions can run high.  Issues concerning child arrangements can be incredibly emotional and stressful.  This is especially the case, on the lead up to the Christmas period when extended families wish to meet and be together during the festivities.

With this in mind there are some obvious but important principles to follow to make arranging contact easier this Christmas and into the New Year.

  • Always put the children first. It may sound like common sense, but it must be a priority for both parties.  Equally, the Court’s paramount consideration whenever dealing with a Children Act application is the welfare of the children.  It is always deemed to be in the children’s best interests that they should have a relationship with both parents unless more harm would be caused to the children by having a relationship with that parent.
  • Communicate with the other parent and be flexible. It is important that parents communicate with each other at all times concerning issues in respect of your child(ren).
  • Plan ahead and record the agreement reached into a Child Arrangements Agreement. A member of our Family Law Department can assist you in recording an agreement into a legally binding document so as to provide certainty and consistency moving forward for you and your children.

We offer a fixed fee consultation for up to an hour with a member of our Family Team either by telephone, Teams or in person for £100 plus vat.

The Family Department at Wellers Law Group provide extensive family law knowledge and expertise combined with sympathetic, personalised advice tailored to your individual circumstances and requirements.

Our Family Lawyers are members of Resolution (formerly the Solicitors Family Law Association) and are committed to resolving your matter in a constructive and non-confrontational manner whenever possible.

Please call us on 020 8464 4242 to talk to a family solicitor on your options.

 

Inheritance Tax Property Valuations – Don’t Dispense With Professional Advice

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Residential property often represents the majority of a person’s wealth and valuing it for Inheritance Tax (IHT) purposes is, par excellence, a matter for professionals. In a case on point, a son who dispensed with expert tax and valuation advice following his mother’s death found himself in very deep water.

When the mother died, she owned three terraced houses in the same street. When it came to calculating IHT payable on her estate, HM Revenue and Customs (HMRC) valued them at £2.42 million in total. Her son, acting as her personal representative, challenged that assessment before the Upper Tribunal (UT), arguing that they had an aggregate value of just £840,000.

The son represented himself before the UT, without the assistance of lawyers or a property valuation expert. He presented statistical evidence and argued, amongst other things, that the value of the properties was restricted by the returns that could be achieved by letting them. Ranged against him was HMRC’s legal team and a chartered surveyor with 33 years of experience in valuing properties.

Ruling on the matter, the UT noted that its task was to assess the properties’ open market value as at the date of the mother’s death. In doing so, it considered prices that had been fetched by comparable properties in the same area. It found that the properties were worth a total of £2.68 million on the relevant date – substantially more than HMRC’s original assessment.

Home Improvement Contracts and Building works – ‘Good foundations’

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During the last year many of us have spent more time at home than ever before due to Covid-19 restrictions. Some of us have used this time as an opportunity to carry out home improvements and minor building works. Between the aftermath of Brexit and the pandemic, we have seen the inflation rise significantly and specifically an increase in the price of building materials and delays to their supply.. These unpredictable events can cause real problems for both the trader and the home-owner/customer and can lead to expensive disputes and disgruntled parties. In response to an increase in these types of enquiries, we have provided some useful tips for consumers. Traders stand to benefit from these tips too. Knowing what is important to your customer and reflecting this in your dealings could instill more consumer confidence in your business and secure more  contracts.

Top Tips to avoid disputes

It seems obvious, but many of us do not spend enough time preparing for the intended home improvement project and as a result, we run into difficulty later. Before engaging a contractor or tradesperson to undertake work, we recommend you consider the following steps:

Do your Research

  • Check the identity of your tradespersons/contractors to confirm whom you are actually contracting with. Are they individual sole traders, partners or a limited company?
  • Check the trading address for the contractors to see if it is a post box or an actual address. You may be able to do this online or using an app.
  • Check the company’s financial status at Companies House to see whether there is likely to be any risk of the company being struck-off or going into liquidation in the future.
  • Search for online reviews from trustworthy sources.
  • Check the trader’s website, paperwork and vehicle to see if it is licensed and/or holds a current registration/ membership of a relevant Trade Association or Affiliation. Check it holds the relevant qualifications for the work. Members will usually have to comply with the organisation’s code of conduct and a breach of that code by the member could result in the member being penalised or even removed. The organisation will have its own redress scheme that may assist you in resolving any dispute. It is not unusual to find opportunists falsely using emblems associated with trade organisations, so it is important to check the membership to satisfy yourself that all is legitimate.
  • Ask to view examples of work. Many reputable traders arrange for customers to display their signage for marketing purposes and provide a cost incentive to the customer so potential customers can view the work carried out.
  • Check if the contractor has insurance backed cover to protect you in the event any accidents and/or damage arise during the works.

Quotations or Estimate

  • If you want the certainty of knowing what price you will have to pay, then you must ask for a ‘quotation’. This will be a fixed price for the work requested. Be sure to get this in writing and check if it has an expiry date.
  • An estimate is a rough indication of the likely costs to be charged and may vary.
  • Try to get at least three different quotes or estimates for comparison.

How are you intending to Fund the works?

  • If you are taking out a finance agreement to buy new windows or a new kitchen and/or to pay for the installation works, you may find that you have a contract with the finance company and not the trader. This will depend on the type of finance agreement you take out. Ask questions and read any financial information provided to you thoroughly to ensure that you understand what you are agreeing to, before signing on the dotted line.
  • Check whether you have a time-limit and/or a right to cancel the agreement.
  • If the main contract for services is conditional on you obtaining finance, then you need to make provision to withdraw from any main contract if it transpires that you cannot get the funding. Check whether any cancellation rights exist.
  • If you make a payment by credit or debit card, depending on the contract value, you might have added protection.

Payments

  • Check if you need to pay a deposit and if this is refundable.
  • Consider making staged payment so you only pay out an amount reflective of the actual stage of the works.
  • Consider having a retention clause in the contract to allow you to hold back a percentage (usually 5%) until the works are completed.

Contractor’s Standard Terms of Business

  • Read the full terms and conditions in the contractor’s standard Terms of Business. If the terms do not meet your needs, then consider making agreed amendments to the relevant terms and document these.
  • A Trader is obliged by UK law to comply with consumer protection law. Check that the clause dealing with the applicable law and jurisdiction provides that the Law of England and Wales applies.
  • Notice of your cancellation rights should be referred to in the Terms of Business. Your right to withdraw from a contract will differ depending on when and where you entered the contract.

Prepare a written contract and outline the key terms

  • It is so important to be clear what the expectations are from each party and it is even more important to document these in a written agreement so that the parties can refer back to the document to decipher what they have agreed to do at various points in the contract. Having a well-drafted contract will avoid confusion and provide certainty for all concerned. It could save money and avoid you having to pay thousands of pounds in litigation.
  • Key terms should make provision for most eventualities. At the very least, the contract should address and identify the following :
  • full names and contact details of the contracting parties;
  • a relevant point of contact;
  • a description of the works and where necessary, attach a Schedule of Works and Materials: confirm the start/finish dates and working hours;
  • identify who is responsible for sourcing and delivering the materials and if any planning or other services such as architectural designs or structural surveys are required, specify who is responsible for obtaining and paying for that;
  • outline the price of the works and when and how payment is to be made;
  • when and how variations are to dealt with;
  • identify the VAT position and outline the complaints procedure.

Our solicitors at Wellers Law Group can assist in drafting bespoke contracts to suit the particular needs of the contracting parties. They can also provide specialist advice on consumer related contracts including home improvement contracts and residential building disputes. They advise both traders and consumers on issues that arise in this specialist area of the law. Realistically, employing a solicitor may not appear to make financial sense unless it is a major project but more often than not, seeking legal advice at the earliest opportunity could be money well spent for your own peace of mind.

If you are in any doubt as to your legal rights or obligations, we strongly advise you to seek legal advice at the earliest opportunity. If you would like to speak to our Consumer Specialist Patricia Wollington in our London office please call on 020 7481 2422 or email patricia.wollington@wellerslawgroup.com.

Power of Attorney and managed investments – why it pays to get professional help

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Since being introduced in 2007 it has become apparent that the Lasting Power of Attorney (Successor to the Enduring Power of Attorney) is an important document to assist in the management of an individual’s financial affairs and medical needs.

However, a part of the Lasting Power of Attorney (LPA) that is often overlooked is Section 7: Preferences and Instructions.  Using this section, the Donor of the power can communicate to their Attorneys details of things they would like them to do, i.e. preferences, or things they must do, i.e. instructions.  By way of an example, a preference may be that the Donor wishes to remain at home and receive domiciliary care; this is something that they would like to happen, but which may not be achievable if their care needs are very severe.  An instruction may be that the Attorney must prepare a set of accounts annually; this is something that an Attorney can do, and will be in breach of their duties if they fail to do so.

Some care must be taken when wording Preferences and Instructions.  If the Office of the Public Guardian feels that the directions given are too restrictive or incompatible with the powers granted by the LPA, they may refuse to register the document until the problematic clause has been removed.

Managing investments

One particularly common instruction, and one that is essential for any Property and Affairs LPA, is the clause that allows Attorneys to invest the Donor’s assets with a discretionary fund manager, or to continue where such an arrangement is already in place, as opposed to investments that would be managed by the Attorney personally.

It is usual for funds to be invested such a scheme, allowing an Independent Financial Adviser to act quickly on behalf of an investor to buy or sell shares subject to the whims of the market.  However, as this would essentially represent an Attorney delegating their powers, the LPA does not authorise investment in this type of arrangement without additional wording.  Where this wording does not appear, it may be that the fund manager will not accept the LPA, and an Attorney does not have the full range of powers available to ensure that they are able to act in the Donor’s best interests and secure the best return on their investments. This could be critical if there is a downturn in the stock markets or investment trends, which potentially offer greater returns start to evolve and you find yourself powerless to act. In particular, it is quite likely that the risk level selected for a person’s investment portfolios might need to change or at least be reviewed once they reach the point of not having capacity.

A Donor should be mindful of this and review their LPAs to ensure that they are fit for purpose; if amendments need to be made it will be far easier to achieve this while the Donor has mental capacity, and before the LPA is needed.

These hidden aspects of preparing a Lasting Power of Attorney can easily catch out those who are not aware and is one of the reasons why it pays to have LPAs prepared by a qualified lawyer.

Please call us on 020 8464 4242 for our Bromley office or 020 7481 2422 for our London office to talk to a qualified professional who can help you with your Powers of Attorney.

Buying property together and the importance of clearly identifying beneficial ownership

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Whether you are partners buying your first home together or investing with family and friends in the purchase of a property, it is incredibly important that you identify how you intend to own the property from the outset. Normally, you will be asked to complete a form known as ‘TR1’. This is the transfer deed and within it, is contained a declaration of trust which identifies how the purchasers intend to own the property. Purchasers can elect to own the property jointly or as tenants in common in equal or unequal shares.

Caught up in the excitement of the transaction, purchasers can simply tick a box without understanding or giving due consideration to what they are actually ticking and agreeing.

The transfer deed will be the starting point for identifying the purchasers’ intended beneficial ownership. If either party seeks to argue otherwise, he or she will have to produce strong evidence to convince the court that what they had stated in that deed was not their true intention.

In the recent Court of Appeal case of ‘Ralph v Ralph’, Mr David Ralph (father) failed to obtain an order for rectification of a transfer deed based on common mistake.

The facts

In October 2000, David was unable to get a mortgage to buy a property and he asked his son, Dean Ralph, to assist him. Dean obtained a mortgage against the property and David paid the balance of the purchase price. The property was transferred into their joint names and box 11 of the TR1 form which deals with declarations of trust, had been ticked to indicate that the purchasers intended to own the property as tenants in common in equal shares. The TR1 form was only signed by the transferors.

The Court of Appeal considered the findings of the lower courts and found that they had been incorrect to allow the TR1 to be rectified but they accepted that the trial judge had found on the facts that there had not been a continuing common interest as to the split in the beneficial ownership of the property.

The Court of Appeal acknowledged that, since the parties had not discussed their intentions at all,  rectification was not possible. For rectification to be available, the parties’ needed to have discussed their intentions at the very least.  In the absence of any discussion as to intention, the Court could not order rectification for common mistake.

Points to note

A party seeking rectification of a document based on common mistake needs to prove that a common intention existed between the parties for a mistake to have occurred. If the party is unable to demonstrate common intention, then the court cannot rectify the document.

This case illustrates why joint purchasers need to discuss and identify how they intend to share their beneficial interest in the property before completing the TR1 form. It is also good practice for conveyancing solicitors to check that the purchasers have understood the significance of the TR1 form and have signed it.

Upon the death or insolvency of a joint owner or following the breakdown in a relationship, many clients find themselves in protracted litigation seeking to prove their beneficial interest in a property. The solicitor instructed to advise on the purported claim to beneficial ownership, will always consider the prospects of any claim by referring back to the conveyancing file and the declaration of trust specified in the TR1. What they find will often mean the difference between a strong or weak claim.

If you need assistance

Whether or not you intend to sell your property soon or in the future, it is worth checking how and if your interests in a property have been recorded. It is better to fix any problems now by having a new declaration of trust drawn up rather than wait for a dispute to arise. If you find yourself in dispute about your interests in a property  and  you require legal advice or guidance in either bringing or defending a claim, please contact Patricia Wollington in our London litigation team on 020 7481 2422 or email patricia.wollington@wellerslawgroup.com or call 020 8464 4242 for our Bromley team.

Payment under a construction contract and the right to adjudicate

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We continue to receive a number of enquiries from contractors and sub-contractors unaware of their right to adjudicate under a construction contract for non-payment, despite the fact statutory adjudication was introduced 25 years ago.

Many clients have come to us after being advised by previous solicitors to commence County Court proceedings, which can be a lengthy and costly process, by which time the paying party may be insolvent.

Alternatively, clients have commenced insolvency proceedings and fall at the first hurdle if there is a genuine dispute. A client will be subject to a costs order if the debtor has been successful in setting aside a statutory demand, which is a precursor to liquidation of a company or the bankruptcy of an individual.

Adjudication

Adjudication is a way of resolving disputes in construction contracts. The right to adjudicate is governed by S.108 of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”). The Act sets out certain procedural requirements which enable either party to a dispute, to refer the matter to an adjudicator, who is then required to reach a decision within 28 days of being served with the Referral Notice.

If a construction contract does not comply with these requirements, a statutory default scheme known as the Scheme for Construction Contracts will apply. If the construction contract contains adjudication provisions, but does not comply with the requirements of S.108, the Scheme will again apply.

The Referring Party of a dispute who appoints an adjudicator, has the added advantage that, its solicitors have spent weeks/months preparing for the adjudication, putting the other party (the Responding Party) on the back foot, with little time to prepare a Response.  This may result in payment being made before an adjudicator has reached his/her decision.

In the event that the losing party does not comply with the adjudicator’s decision, enforcement proceedings can be commenced in the Technology & Construction Court (“the TCC”) and you would normally apply for Summary Judgment. The TCC will enforce adjudication decisions without enquiring as to the correctness, subject to two exceptions.

The purpose of adjudication is to expedite cash flow during the construction contract and it is not uncommon to have multiple adjudications, throughout the duration of a project, but not adjudicated at the same time.

The payment terms of a construction contract are also regulated by Part II of the Act. So, before you decide to commence an adjudication, do you have a construction contract?

A construction contract

 A construction contract is defined by  the Act and are agreements for any of the following:

  • carrying out of construction operations.
  • providing one’s own labour, or the labour of others, for the carrying out of construction operations.
  • arranging for the carrying out of construction operations by others e.g. under a sub-contract.
  • It extends to architectural, design, advice on building, interior or exterior decoration, engineering, demolitions, surveying work and on the laying-out of landscape.
  • Installation of mechanical, electrical and heating works. to include maintenance of the works.
  • A collateral warranty as to the carrying out of construction work. Parkwood Leisure Ltd v Laing O’ Rourke Wales and West Ltd [2013] EWHC 2665 (TCC).Whether you can adjudicate will depend upon the timing and the wording of the warranty. Timing is paramount: Toppan Holdings Ltd & Anor v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC).
  • Government contracts are construction contracts under the Act.

Exclusions

The following are excluded from being a construction contract:

  • Agreements which primarily relate to the financing of works
  • Development agreements containing provision for the disposal of an interest in land
  • Contracts between employers and employees.
  • Supply only contracts: manufacture and delivery of building/engineering, unless the contract also provides for their installation on site
  • Oil and gas exploration, mining and industries plants
  • Contracts with residential occupiers that occupy or intend to occupy the property

All construction contracts, except those with a duration of less than 45 days, must contain a right to instalments, stage payments or other periodic payments.

The Act prohibits withholding or reduction of payments, except after proper notice and prohibits pay-when-paid clauses, except in circumstances of insolvency.  The Act provides a right to suspend performance for non-payment.

Payment under the Act

The Act has the following provisions regarding payment:

  1. It requires a construction contract to provide for interim payments.
  2. It requires the contract to provide a mechanism for determining what sums became due and when is the due date.
  3. It requires the contract to provide a final date for payment which would be later than the due date
  4. The contract must require the employer to serve a payment notice within five days of the due date
  5. If an Employer wishes to resist paying a contractor’s final account, it is obliged to serve a pay less notice

Payment notices and pay less notices

A valid payment notice confirms the sum to be paid by way of an interim or final payment or any other payment provided for in the contract, unless a valid pay less notice is served. S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448 at [37]–[42].

If an employer (owner/developer) fails to serve a valid pay less notice and fails to pay the amount claimed, the contractor will be able to recover the amount claimed by bringing an adjudication, without the adjudicator having to decide the substantive merits of the payment application.

These are known as ‘smash and grab’ adjudications. If you fail to serve a valid pay less notice and wish to obtain a reduction in the amount due or pursue a counterclaim or cross-claim, you will have to pay the full amount first and then pursue the reduction or other claim, by bringing proceedings or by set-off against a subsequent payment. This is known as a true value adjudication.

The notice requirements apply to all payments provided for by the contract: liquidated damages or repayment of overpaid instalments. It also applies to payments due following completion of the works or termination of a contract.

When deciding if a payment notice (or a pay less notice) is valid and complies with the relevant statutory and contractual requirements, it has to be construed objectively –  how a reasonable recipient would have understood the notice.

A payment notice (and a pay less notice) has to make plain that it is a payment notice (or a pay less notice). Each has to set out clearly the sum which is said to be due and/or to be deducted and the basis on which that sum is calculated. This can be zero. Beyond that, the question of whether or not it is a valid notice in accordance with the contract is a matter of fact.

Grove Developments Ltd v S&T (UK) Ltd [2018] EWHC 123 (TCC) at [20]–[31] per Coulson J upheld by the Court of Appeal: see S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448 at [46]–[59].

What happens if the payer does not serve a payment notice?

Section 110B deals with situations where there is a default in service of the payer’s payment notice.  There are two situations:

  1. Where the contract requires the payer to give the payment notice, and a valid notice is not given, the payee may serve a payment notice instead.
  2. Where a contract provides for the payee to make a payment application before the time for the payer’s payment notice, default in service of the payer’s payment notice, makes the application count as the payment notice. The application must be one which states the amount which the payee considers will become due and the basis on which it is calculated, and it must be given in accordance with the contract..

If you have been provided with a construction contract for execution by an employer, it is likely to be a JCT or NEC contract. They have a suite of standard form contracts for use in the construction industry in the UK to help deliver projects.

It sets out the responsibilities of all the parties within the process and their obligations to each other. The intention of these contracts was to give a balanced allocation of risk between the parties. These contracts are prepared by an employer’s construction solicitor, who will have appended to it, the employer’s schedule of contract amendments, with the objective of increasing the liability of the contractor under a contract and reducing the employer’s risk. It will often have amendments to the payment clauses contained in these contracts. For this reason, it is imperative that you obtain legal advice, so you are aware of all pitfalls, and if it is commercially viable for you to enter into the contact. Upon obtaining legal advice, you may be able to re-negotiate certain terms of the contract.

Whether you are an employer, main contractor or sub-contractor. and you require advice in relation to payment notices and pay less notices, under a construction contract, or wish to obtain our Guide to Adjudication, please contact Teresa Johnston on 0207 481 2422, 07584 229 373 or via email at Teresa.Johnston@wellerslawgroup.com

 

 

New Immigration Routes for Global Talent and Innovators

Posted on by Wellers

The Government’s latest Innovation Strategy was published in July 2021. The proposals focus on the UK’s recovery from the COVID-19 pandemic and the creation of a “robust and agile economy” that will work for everyone and be viable for future generations.

One of the four “key pillars” identified as being crucial to the strategy is “people” and the need to attract global innovators and highly-skilled individuals.

The introduction of two new visa routes for individuals, the High Potential Individual and Scale-up routes, will add to existing routes and could make the UK one of the most accessible countries in the world for global talent.

New immigration routes

The strategy contains details of the following new visa routes for 2022.

The High Potential Individual visa route

Adding to the Global Talent Route, the new High Potential Individual route will see graduates of top global universities able to apply to enter the UK without a job offer. As an unsponsored route, the employer of a “high potential individual” won’t require a sponsorship licence.

The route will offer the visa-holder flexibility to switch jobs and employers, and to extend their visa so they can settle in the UK, thus contributing to the UK economy.

The strategy proposals include scope for the visa route to expand eligibility to additional characteristics of high potential other than university graduation.

The Scale-Up visa route

Skilled migrant workers who have a job offer with the required salary from a qualifying “scale up” business, will be able to enter the UK on the Scale-Up visa route.

The ‘scale up’ business will be able to apply for fast track verifications if they can demonstrate an annual average revenue or employment growth rate over a three-year period greater than 20%, and a minimum of 10 employees at the start of the three-year period.

This new visa route will allow eligible individuals to work, switch jobs or employers, and, if they meet certain requirements, extend their visa in order to settle in the UK.

Global Business Mobility visa

Overseas businesses and companies specialising in innovation will have greater flexibility to come to the UK to grow their businesses and transfer workers to the UK. The Global Business Mobility visa route will streamline a number of existing routes and incorporate various existing provisions.

Updates to existing visa routes

The strategy document also provides details of how existing visa routes for innovators and global talent will be “revitalised”.

The Innovator visa route

This current route allows entrepreneurs and talented innovators to enter the UK from overseas to start a venture-backed business or a business that harnesses innovative technologies based in the UK. The visa holder must operate the business in the UK and create jobs for UK workers.

The revitalised route will simplify the existing requirements by streamlining the business eligibility criteria. Fast-track applications may be available when the business ideas are particularly advanced. Any applicant accepted for the Global Entrepreneur Programme (GEP) will be eligible automatically for this visa route.

The latest proposals would see the requirement for £50,000 in investment funds removed, providing the applicant is able to show they have sufficient funds for business growth. Further flexibility will be encouraged by removing restrictions on work carried out other than for the primary business.

Encouraging globally-mobile talent into the UK

Current visa routes and programmes already create opportunities for global talent to enter the UK, and to work and study here. Tweaks and changes to the various qualifying criteria, extent of the provisions, and the options available to applicants and visa holders are being evaluated and added in response to Government strategy.

The ‘Global Entrepreneur Programme’ is available to high-skilled migrant tech founders who have IP-rich businesses they wish to establish in the UK. The ‘Global Talent Visa’ is open to leaders in the fields of research, arts, culture, academia and digital technology. In May 2021 a fast-track option was introduced for winners of globally recognised prizes.

More flexible Graduate Visa routes will allow international students time to live and work in the UK once their studies have been completed successfully. This gives graduates two years following a degree and three years following a PHD to live and work, doing any job, in the UK. This should mean that they have time to find the best, most suitable use of their talents and to potentially fulfil the UK’s innovation needs.

Specialist immigration solicitors for visa applications and more

The ever changing rules and requirements for UK immigration can make it seem hard to enter the UK or to fulfil your business’s needs for talent.

By instructing Wellers Immigration Service you can eliminate much of the confusion and hassle that is often associated with immigration applications. Take advantage of our vast experience, thorough knowledge and team of expert support staff.

Please call Rosalind Nunoo on 020 8290 7982 or email rosalind.nunoo@wellerslawgroup.com