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2010-04-23T11:47:00.001+01:00

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What is the main barrier to making first contact with Lawyers?

2010-04-14T16:39:00.002+01:00

Vote and comment on my poll at http://polls.linkedin.com/poll-results/84803/vyilq. All comments are appreciated as this will go a long way to moulding our services in the future.

A New Service to Hertfordshire Businesses

2010-04-12T14:18:00.003+01:00

Dear All

My firm, like your business, is a member of the Hertfordshire Chamber of Commerce & Industry. I am pleased to tell you that we have recently accepted an invitation from the Chamber to become Patron Members. Since accepting the invitation we have considered how we might use Patron Membership for the benefit of businesses within the County.

We have resolved to extend our role as facilitators for businesses in Hertfordshire, in particular for those who are members of the Hertfordshire Chamber of Commerce. Although we continue to assist local business development in our usual ways, for example hosting breakfast meetings with topical speakers, we should like to offer something that your business might find useful in these difficult times. For an initial 3-month period we are offering a free consultancy service for Chamber Members who may need general advice relating to their businesses (which may not necessarily be legal advice) but are not sure whether they would benefit from it or where to find it. Our scheme enables you to meet with someone here (usually a Director) free-of-charge to discuss problem(s) that your business faces. Whilst we may not always be able to assist you ourselves we aim to point you in the right direction with a view to your alleviating those problems currently affecting your business. The Chamber has provided to us a list of professional and other advisors who might be able to assist (on a similar basis) with any problems that we identify with you at our meeting.

If you would like to book a free half hour appointment, please contact Georgina Meadows at our Hertford office on 01992 558411 or email her on georgina.meadows@breezeandwyles.co.uk. Please note that during the initial period the meeting will be held on a Thursday afternoon from 4.00 pm.

For more information about our breakfast meetings, or to subscribe to our free monthly Employment Law Update "ezine", please visit our website www.breezeandwyles.co.uk. In addition feel free to visit our "Lonely Business Owner" blog available here

We look forward to helping you do business.

Yours sincerely

Peter Tunstill, Senior Partner
For and on behalf of
Breeze & Wyles Solicitors LLP

The Great Radwinter to Paris Bike Ride 2010

2010-04-12T13:05:00.006+01:00

From April 3-7 2010, I rode to Paris from my home village of Radwinter in North West Essex with Murray Fraser, another Director of Breeze and Wyles Solicitors LLP, Simon Berry, a Director and owner or Early Doors Limited and his fourteen year old son Tom Berry. Preparation was mixed to say the least varying from 200 miles worth of training to 1500 miles between us. The charitable cause being supported was that of the local church. Significant recent changes have seen the loss of all but one of the focuses of the community but the church remains. However, due to the lack of funding the parish church, St Mary the Virgin, is failing to meet its main financial commitment and there is a very real possibility that the church will see diminishing finances to meet its day to day running. This may leave the PCC at some time in the future with the unenviable decision to restrict the amount that the Church is being used. In order to try to postpone or remove this decision I decided to try to raise funds so that the balance of capital within the accounts could be increased to a level that ensures that the decision is postponed.

As regards the journey I can confirm that we completed the journey despite many problems along the way including, 15 punctures and a Sea France strike making it impossible for us to make the trip from Dover to Boulogne.

Day One (75 Miles Radwinter to Chislehurst)

Leaving the Parish church at 9.00 am we travelled from Radwinter to Stanstead Abbotts via Rickling, Farnham and Much Hadham stopping for lunch at Ware for lunch. We then joined the Lea Valley cycle path taking us from Ware to the Greenwich footway under the Thames. From the Cutty Sark we rode to Chislehurst arriving shortly before 8.00 pm. During the day we suffered six punctures and the failure of a pannier support that required bicycle shop repairs in Ware thus meaning a detour to Ware. We then spent the evening repairing the punctured inner tubes.

Day Two (78 Miles Chislehurst to Calais)

Starting the day following cycle route 21 it soon became clear, with further puncture problems, that progress would be too slow to make Dover and a crossing in the evening, whilst the route was scenic it zigzagged across the Kent countryside. So at about 11.30 am we joined the A20 and our speed started to increase. However, the A20 ends in Folkestone (from where nowadays few if any ferries can be found to take you to France) rather than Dover. Arriving in Folkestone we needed to make the short but circuitous journey between the two towns but found ourselves lost until we located the Alkham valley. We eventually arrived in Dover at 6.50 pm and caught a ferry to Calais at 7.45 pm arriving at 10.15 pm local time. Fortunately for us the Hotel Mercure in Calais centre had spare rooms. During the day (Easter Sunday) we managed to find an open Halfords in Maidstone and replaced the worst offending tyres with Kevlar (Puncture proof) versions. I am still unable to work out how we found this place open on Easter Sunday but am extremely grateful that we did.

Day Three (56 Miles Calais to Hesdin)

Having arrived in Calais rather than Boulogne we had now added approximately 30 miles to the journey. In addition, what had previously been a westerly wind now turned to a 20 mile an hour head wind slowing progress dramatically. Moreover, to travel inland requires a cyclist to climb some pretty steep hills. Unfortunately, I was passed the map and given the responsibility for the route for that day. Suffice to say that we climbed many more hills than was needed with the obvious impact that this had on our rate of progress. Eventually we arrived in Hesdin at 6.45 pm having travelled through Les Sept Vallees [my mistake on map reading as I told the other riders that there was only a few hills between Calais and Paris – ooops]. All of the obvious Hotels were full/closed but upon asking a local in our pigeon French if they knew of any hotels in the vicinity that might be open the local pointed to the nearest building and clearly disturbed by our massacre of the French language said in perfect English Do you mean here? My Hotel. It transpires that the Hotel was closed for bereavement reasons but the owner taking pity on us decided that we would be little problem to them in their difficult time.

Day Four (93 Miles Hesdin to Beauvais)

Leaving at 8.30 am we departed Hesdin on an extremely busy road towards Abbeville. It became clear almost immediately that our safety was in jeopardy every time a lorry passed us, so about three miles out of the town we deviated onto smaller D class roads. Anticipating a long day as we tried to catch up both the extra 30 miles that the crossing to Calais had created and the shorter riding time of the previous we did not expect to have to ride into the night. However, on reaching Crevecoeur where we hoped to finish our day we found that the only hotel in the town was full and the owner somewhat unhelpful. A decision was then taken to attach our lights and make the 15 miles journey from Crevecoeur to Beauvais. Riding in a block of four rather than strung out (my lights had failed but I had brought with me a miners lamp than could be fitted to my forehead) we doubled our rate of progress, noticing that the wind was now almost negligible, making Beauvais inside the hour. Arriving at Beauvais at 10.30 pm we eventually found a Hotel that would take us at about 11.10 pm.

Day Five (78 Miles Beauvais to Paris)

We started the day at 8.15 am heading towards Paris on the N1. Our average speed was quite high with the team maintaining progress of about 28 KPH average. Our plan was to try to take the most direct route into Paris passing through Chambly and then down into Saint Denis. A fine plan in theory but the practice was something completely different. Our aim had been to arrive at the Eiffel Tower at about 5.00 pm but in the event this did not happen until about 8.00 pm as we tried to locate a D Class road to take us into the immediate outskirts of Paris and when we eventually found one (D928) to find it again when we lost it in Taverny. Before moving on to the Eiffel Tower we needed to find a hotel near the Gare du Nord (and therefore the Eurostar) succeeding eventually after much negotiation in finding two rooms in a rather seedy 1* Hotel. We then travelled to the Eiffel Tower and took our photographs among all of the other tourists.

Thanks

I wish to thank my fellow participants but in particular Tom who despite having being diagnosed with type 1 Diabetes some years ago was by far and away the strongest cyclist among us. His energy kept us all going and I hope that he appreciates what he has achieved. I would like to thank all those people who have donated money to the Church and will report how much we collect when I have a final figure, this being delayed as funds continue to be received. In addition, I would like to thank Newdales in Saffron Walden for all of their advice and assistance prior to the trip. I must also thank Alan Drury of adsignwriting for preparing the firms shirts at such short notice. Finally, none of this would have happened without the support of all of our families.

As a final note, donations continue to be received and if you wish to donate to this cause please let me have a cheque made payable to Radwinter PCC at my office.

Breeze and Wyles Solicitors LLP
11 Ducketts Wharf
South Street
Bishops Stortford
Hertfordshire CM23 3AR

Brendan OBrien

Employment Law Update March 2010

2010-04-01T11:30:00.001+01:00

March 2010

Dear Employer

With the milder weather upon us and the worst signs of the winter vanished, thoughts turn to spring-cleaning (at least, some peoples do!). Time to dust off those mouldy old contracts and policies festering from years ago and have some new ones drafted. For those who never had any policies or contracts in the first place, time to think about shifting into the 21st Century. The recently-retired Head of our Countys Law Society remembers when junior staff were not expected to address the Senior Partner without being spoken to first, and employment law was almost unheard of. But that was 1960, this is now

In the meantime, if you have any particular employment issues, please do not hesitate to contact us: details are at the end of this letter. If you have any comments or suggestions on this newsletter, please email newsletter@breezeandwyles.co.uk

Regards

The Employment Law Team

Some Recent Changes and Cases in Employment Law

1. UNFAIR DISMISSAL WHEN INFORMAL DISPLINARY PROCEDURE ABANDONED IN FAVOUR OF FORMAL ACTION

This is a Court of Appeal decision. Staff at a mental health trust made complaints about a consultant psychiatrist alleging his conduct was harassing and distressing. The Trust dealt with the allegations under an informal procedure designed for conduct which does not constitute serious or gross offence. While the investigation was on-going further allegations were made against the employee. At the end of the informal proceedings the Trusts Medical Director stated unexpectedly that she would report the employee to the General Medical Council. As a result, the employee withdrew from the informal procedure, to be dealt with via an ordinary disciplinary hearing. The result was his summary dismissal for gross misconduct. He appealed unsuccessfully internally and then brought an unfair dismissal claim in the Tribunal.

It was held that his dismissal was unfair because the Trust had chosen to deal with the matter through the informal procedure, implying that the misconduct alleged was of a relatively minor nature. The same offences could not then be regarded as matters so grave and serious as to constitute gross misconduct and lead to summary dismissal later. As the additional misconduct during the investigation process could not amount to gross misconduct, either individually or cumulatively, it did not justify dismissal. Also, as the Medical Director had intentionally frustrated the informal procedure, the Trust could not reasonably sabotage those discussions and proceed down the disciplinary route of alleged gross misconduct. [Sakar v West London Mental Health Trust]

2. EMPLOYER VICARIOUSLY LIABLE FOR SEXUAL ABUSE

The Court of Appeal has held that the sexual abuse of a child was so closely connected with a priest’s employment that it would be fair and just to hold the Roman Catholic Archdiocese, his employer, vicariously liable. The priest used to pay the claimant for jobs such as cleaning his car or the presbytery. The boy (who had learning difficulties and epilepsy) also attended the church disco where he would help the priest clear up. Years later, he brought a claim against the Archdiocese.

The Court of Appeal considered the law on employers vicarious liability. The correct test is whether the acts (the torts) were so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Also, although the acts must be within the scope of the employment for a claim to succeed, a broad approach should be adopted when establishing the scope of the employment. The Court of Appeal held that, although the claimant was not a Catholic and had not had anything to do with the church itself, there was a sufficiently close connection between the priests employment at the church as a priest and the abuse which he inflicted, to render it fair and just to make his employer vicariously liable for the abuse. [Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church] (See Employers Traps Section)

Whats in the pipeline

1. STUDY & TRAINING FOR EMPLOYEES

From 6th April 2010, new legislation will provide employees with the right to request to undertake relevant study and training during working time (which will be unpaid). This applies to employees in organisations with at least 250 employees. Employers will be entitled to refuse any such request where a good business reason exists for doing so. It is expected that the right will be extended to all employees, irrespective of employer size, from April 2011. More details to follow. The legislation will be part of the Employment Rights Act 1996.

2 FIT NOTES

As advised in our last e-zine, these will come into effect from 6th April 2010 and will replace the current sick notes. On the new form, doctors can provide a may be fit statement if they think a patients health condition may allow them to work if they get suitable employer support, e.g. altered working hours, amended duties or workplace adaptations. Where an employee is too ill to work, the doctor will continue to advise this, as with the old sick notes. As before, self-certification will apply for the first 7 days. The fit note will not be required until after the 7th calendar day. There will be no change to statutory sick pay arrangements, nor to employers obligations under the Disability Discrimination Act. Guidelines are available for employers.

3. ADDITIONAL PATERNITY LEAVE AND PAY

From 6th April 2010, the provisions relating to additional paternity leave and pay in the Work & Families Act 2006 are expected to come into force. If they do, then employers will have to wait another year before they take effect. However, it would be wise to plan in advance. Essentially, the new provisions mean that mothers of children due on or after 3rd April 2011 will be able to transfer up to 6 months of their maternity leave to the father when they return to work. The key points of the scheme are quite complicated and, therefore, this will be re-visited in a further issue once it is confirmed that the Regulations are coming into force in April.

The Employer Traps and Other Tips

1. SELF-EMPLOYED v EMPLOYED

Sometimes individuals are genuinely self-employed; sometimes they are in fact really employees. If they are employees, then they of course have considerably more rights than the self-employed. Sometimes the parties may genuinely think that there is a self-employment situation when actually the facts point to an employer/employee relationship. It is the Tribunal which will ultimately decide what the correct status is when there is dispute, by looking to see what the true working relationship is. It can be the case that individuals are in fact employees even though the Inland Revenue has accepted them as self-employed. As always, if in doubt, take advice.

2. EMPLOYERS LIABILITY FOR ACTIONS OF THIRD PARTIES

Did you know that you as an employer are liable for the actions of third parties towards your employees in relation to sexual and sex-related harassment under the Sex Discrimination Act? This means that if one of your customers, for example, harasses a member of your staff in a way that is covered by the Act, then you could be liable. The Equality Bill which is due to receive royal assent this spring will extend employers liability for third parties to all elements of discrimination (i.e. not just sex).

3. MATERNITY LEAVE & HOLIDAY

Remember that an employee who is on maternity leave is entitled to accrue annual leave throughout the full period of her absence. It used to be the case that leave was only accrued whilst on ordinary maternity leave but it now applies to additional maternity leave also.

4. EMPLOYERS VICARIOUS LIABILITY

The case of Maga is a reminder of the liability of employers for the acts of their employees, even when the situation may not at first glance seem to be connected with work. It is a good idea to make your employees aware that they can be liable for acts committed outside works time (and thus making you as the employer liable).

Breeze & Wyles Employment Group

114 Fore Street, Hertford, Hertfordshire SG14 1AG
Tel: 01992 558411 Fax: 01992 503889
Email: jane.dismore@breezeandwyles.co.uk

Patron Membership of the Hertfordshire Chamber of Commerce and what it means for us

2010-03-29T17:14:00.001+01:00

It is undoubtedly the case that the Chamber serves an extremely important function with the economy of the region and it is with this in mind that we decided in January of this year to commit to Patron membership.

In these uncertain times the success of any business is dependent on the economic conditions within the region in which the business is located. Breeze & Wyles Solicitors LLP has been a member of the Hertfordshire Chamber of Commerce and Industry but perhaps could have used membership to its greater advantage. In recent times, it has become clear that it is very much in our interests to engage with the right people and to play an active role in the economic growth of the region.

In the recession, we have been generating a significant number of opportunities but were finding it increasingly difficult to reach potential customers despite the marketability of the propositions. Following discussions with the Chamber it has become clear that we and the Chamber have very similar development areas. It enables us to ensure that credible people demonstrate belief in the ideas that we have and assist us in promoting them for the benefit of the region.

An example of this is one that I have been trying to develop since I joined the firm in 1996. I was keen to provide a legal surgery within Hertfordshire that would allow potential clients to have a ‘sounding board’ for their problems, areas of development or potential successes. Over the years this has become increasing difficult to achieve. However, upon becoming a Patron member the Chamber has shown increasing interest in the various projects of which this is one. This project enables us to meet potential clients, and also to point potential clients to other professional service providers and businesses where opportunities may arise for them. In tandem with my ‘Lonely Business Owner’ blog to be found at http://www.breezeplus.co.uk/blog/ this provides some of the support that regional businesses may require particularly in the hoped-for growth phase of the economic cycle when development can be constrained by lack of funding and information.

Bearing this in mind we must ensure that we get value for money for our membership. This can only be achieved if we work hard at what we wish to achieve from it. As the economy grows so will our business and with this in mind we wish to participate closely with some of the educational establishments who are members to develop local talent and provide a solution to the skills gap. This will have a long term benefit for our business in that it will both provide excellence in new staff and further our objective to enhance the reputation of our brand.

We hope that our membership and involvement will enhance the profile of the Chamber and its benefits leading to both greater participation and increased membership. We look forward to working closely with the Chamber in the future

Brendan OBrien
Director and Head of Company/Commercial and Corporate Recovery
Monday, 29 March 2010

Intellectual property: Whats that?

2010-03-26T12:36:00.004Z

This type of property is divided into two areas:

1. Industrial property, which includes protection for inventions, trademarks and industrial designs; and
2. Copyright, which includes protection for literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.

The rights and protection provided by copyright extend to other parties involved in the creation of the work.

Experience suggests that very few businesses understand the amount of intellectual property that they own, its value to them and how to best exploit it. Invariably businesses tend only to know its value or indeed of its existence when it is stolen or infringed and that action has an impact on the business.

The simplest example of Intellectual Property is the main essence of goodwill. The Trade Name or brand of the business or through which the business trades is key to the business and it is an commercial imperative that these are protected. The best example lies in the value of some of our major brand where in fact their greatest value is in their trade names.

An inventor would never go to market with his/her invention without first obtaining the protections afforded to that product. Why should business with good trading names do otherwise. Well in fact they do and it is the exception rather than the norm that trade names are protected by registration.

The distinction between an unregistered trade name and one is registered is for another time but suffice to say that it is very much in the interest of a business to register its mark/name in respect of the goods which they sell. If the business had such a registered trade mark in the case, an action would have been so much more straightforward that it might have been worth pursuing for the injunction and damages, and importantly, legal costs.

Examples occur all over the place where someone breaches a businesses trade name. threats are made to cease and desist. With an unregistered mark/name it is almost impossible to do anything further once the breach has stopped occuring. Whereas if registered the business is provided with better protection under statutory provisions relating to trade marks. The business would then have the ability to proceed for damages whilst ensuring recovery of the legal costs of preventing a continuation of the breach.

Brendan OBrien
Intellectual Property Group

Private Sector Housing: Terminating a Tenancy under s21 of the Housing Act 1988

2010-03-26T12:17:00.004Z

This seemingly, relatively simple piece of legislation can cause problems for both Agents and Landlords and a few simple precautions may avoid problems with the courts and as a result disgruntled Landlords.

S21 allows a landlord to regain possession of their rented property when a tenancy agreement has come to an end by giving two months notice to the tenant.

Proceedings can usually be issued using the Accelerated Possession Procedure under Part 55 of the Civil Procedure Rules. Using the Accelerated Procedure means that all the documentation is lodged with the court and so long as it is all in order and the tenant does not dispute any of the documentation and is unable to provide a good reason (e.g. special hardship) why the landlord should not be given an Order for Possession, the court will make the order without the need for a hearing.

Issues on the notice given is one of the most common reasons why proceedings may be dismissed outright or set down for hearing. Either way it incurs further costs for the landlord and possibly Agents if it is their mistake. Some of the more common reasons for claiming the notice is invalid are:

(a) It was never received - so much easier to ensure there is proof of the service of the notice which can be included in the court documentation
(b) The notice was served before the tenancy began
(c) An incorrect notice was served

Before discussing ways to avoid the above difficulties, it should be noted that under the Act there are two different notices which can be served and deciding which one to use is dependant upon whether the tenancy has expired or not when the notice is served.

If a notice is served during the course of the fixed term tenancy then a notice under s21(1) of the Housing Act can be served giving "not less than two months’ stating that he requires possession of the dwelling house". So long as the Landlord or Agent gives the two months' notice in writing the notice will be valid and does not need to specify a termination date – but if one is specified ensure that it is a date that is more than two months after the date of receipt by the tenant of the notice. The notice does not need to be in any particular form but most agents use a standard form.

If the tenancy has expired and has become a "periodic" tenancy then Notices under s21(4) must be given.

These notices must be more specific and must specify an end date and the date must be the last day of a period of a tenancy. Consideration should be given to including some appropriate 'fall back' wording in case the date specified turns out to be wrong. Again it is usual for Landlord and Agents to use a standard form but completion of it must be accurate.

Avoiding the problems

It is fairly common for Agents to attach a s21(1) Notice to the tenancy agreement at the outset. The tenant comes in to their offices to sign the agreement and is given a notice at the same time, often attached to the back of the tenancy agreement. They do not see the s21 notice attached, or claim that they did not see it, and when proceedings are issued, they claim that they have never received one. By putting an extra paragraph at the bottom of the notice "I confirm that I have received this notice on the.." etc. and having it and a duplicate copy to be kept on file signed by the tenant may avoid this. However, this won't help where you are sending a s21(4) notice in the post.

Even if you get the tenant to sign the bottom of the document it does not avoid a potential claim that the notice was served before the tenancy began. It is often the case that tenants will pop into the Agent's offices to sign documents before the tenancy has begun and service of the notice attached to the back of the tenancy agreement may defeat or at least cause argument in any action that the landlord wishes to take in the future.

To be absolutely safe and to avoid the above issues it is always best to serve the notice by recorded delivery post the day after the term of the tenancy has begun. In the beginning it is unlikely that a tenant would refuse to accept recorded delivery post and a copy of their signature can be kept on the file. If the recorded delivery was not accepted there would be ample time to consider and make arrangements to serve the notice by hand with the person serving it signing a certificate of the date time and circumstances of service for use in the court papers later.

As previously stated when a tenancy has become a periodic tenancy it is very important that the correct notice is served detailing the information required under the Act. Standard forms will usually incorporate all the relevant information but it is important to make sure that the dates are correct and/or have a fall back provision as described above. There must be two clear months and the date must be the last day of the period of the tenancy. Remember that it will probably only become a periodic tenancy if the terms are the same as the original tenancy, otherwise it is possibly a replacement tenancy and you are back to the beginning of serving a s21(1) notice and not being able to start proceedings until the further into the new tenancy.

Can you rely on the s21(1) Notice served at the outset during the periodic tenancy? The answer is 'yes', unless you have in any way invalidated the original Notice, for example by giving the tenant a new tenancy agreement, confirming in writing that the tenancy is now a periodic tenancy and you will give them two months notice if you want them to leave..

There are also other areas that can cause problems when seeking possession. For example:

Ensure the 'landlord' named in the tenancy agreement is in fact the person who is the legal owner or tenant of the property and has the legal ability to grant the tenancy and that where there is more than one they are all named as landlord;

Ensure compliance with legislation relation to deposit protection

Keep true and complete copies of the final signed agreement and other documents and, if appropriate certificates or other documentary evidence of service of notices so that these items can be included in the papers submitted to the court

I hope this helps and if in doubt it is always best to seek legal advice.

Rita Wright
Legal Executive
Housing Team

Budget: Stamp Duty Technical Update

2010-03-24T15:01:00.003Z

Following the Stamp Duty changes announced by Alistair Darling today in his 2010 Budget, practitioners and clients alike are asking the question: what is a first time buyer?

You should be able to find your answer here - http://www.hmrc.gov.uk/budget2010/sdlt-qa-tech-1545.pdf

In essence, the guidance splits the process of determination into three parts

What is the Land?
What is the price?
Who is the purchaser?

The answers are

The Land

The land must consist wholly of residential property being freehold or leasehold (with at least 21 years left to run) and to be used as the purchasers only or main residence.

The Price

The price must not exceed GBP250,000 for a freehold interest or the assignment of a lease and in the case of a grant of a new lease also must not exceed GBP250,000.00. Where the rent is significant and tax will be charged on it relief cannot be obtained against that amount.

The Purchaser

The purchase must be a person who intends to occupy the property as his or her main residence and who has not either alone or with others, previously acquired a major interest in land which includes residential property, or an equivalent interest in land situated anywhere in the world. An exlcusion exists in relation to land owned being leasehold where there is less than 21 years left to run.

Note for practitioners 1: You must check the completions that you have from tomorrow to ensure that all of your clients fulfilling this criteria are able to take advantage of the relief. Ensure declarations are sent to clients now!

Note for practitioners 2: When seeking to take advantage of this relief on behalf of a client purchaser the recommendation is that relief code 28 is entered into box 9 of the SDLT form.

Brendan OBrien
Wednesday, 24 March 2010

Will the UK be downgraded by the rating agencies after the forthcoming budget?

2010-03-24T10:38:00.002Z

View and vote on my poll at http://polls.linkedin.com/poll-results/82149/olpdx

The Lonely Business Owner

2010-03-18T14:22:00.000Z

At times like these when the business is as lean as is possible and you are barely breaking even you are probably spending most of your time working in your business rather than on it. Dealing with day to day micro-operational issues means that the problems aren’t getting better you are the only person that can make those decisions.

Every time you look up is the situation is worsening?

Maybe it is so bad that you cannot see through the symptoms to the problems and as result not solution is possible. In circumstances like these the one thing that needs to be done is to get an objective opinion about the situation from an outsider.

There will undoubtedly be a time when taking formal insolvency advice is the only course of action and indeed that may also be a safe place to start. However, we are seeing many business owners only turning for help when the situation is irretrievable. The reality is that in most cases early action would have saved the business or created a better outcome. Turnaround professionals tend to see crisis situation with requirements for crisis management where the options are severely limited. It would be better for the client if they had approached the professional earlier thereby increasing the options. An Insolvency Practitioner might very well say that they cannot help because this is not a situation appropriate for formal insolvency procedures. In those circumstances, perhaps an outside management consultant may be able to help enabling a costs effective business retention solution with minimal impact on the business and its reputation.

If you would like to have an objective discussion, please contact me or my team on 01279 715333 or brendan.obrien@breezeandwyles.co.uk.

Does Open Source Software equate to Piracy?

2010-02-24T16:26:00.001Z

In an article in the Guardian (see http://www.guardian.co.uk/technology/blog/2010/feb/23/opensource-intellectual-property ) a US Lobby group is seeking US Legislation to make it as much. However an influential US research group has suggested that open source have saved the consumer worldwide $60bn.

Trading companies in difficulties

2010-02-24T09:42:00.004Z

Are you suffering in the current economic climate?

Do you have a profitable core operation that is being damaged by the rest?

Do you have too many employees for the work coming in?

Will you survive if the Business Tax Deferment Scheme is cancelled or your participation in it is ended?

Send me an e mail in the first place on brendan.obrien@breezeandwyles.co.uk so that we can discuss your options.

Weathered the Recession: Are you planning for growth?

2010-02-15T11:57:00.002Z

In mid January I wrote two starts to this talk, each of which deals with the alternative outcomes that could have been revealed by the economic data and which were released at the end of last month.

So the data was positive and that the UK has exited the recession even though that the data is likely to be revised twice in the next six weeks. We need to be cautious. The figures are so close to zero that any assumptions may be premature and prove disastrous if acted upon.

Although there seems to be light at the end of the tunnel in this recession, each market sector faces its own challenges, and the economic data is not a panacea for all business ills. Over the last two ears we have for the most part focussed on survival. The landscape for most of us has changed but we have been unable to change due to the pressure on our cash-flow and funding. The norm post recession will be so much different from 2007 that we will have a lot of catching up to do.

The Business environment has always been cyclical in nature, and those of us that have looked ahead for the opportunities that follow the recession will have the competitive advantage in the ensuing upswing because having identified them we shall be able to create and implement a plan for them.

Most properly organised and managed businesses will have survived the recession by implementing some or all of the following steps. For instance: -

• Retrenching to core products thereby limiting research and design costs
• Reducing staffing levels
• Outsourcing expensive parts of the business process offshore or to cheaper alternatives
• Moving to smaller premises
• Where possible extending credit facilities with new or existing bankers
• Encouraging suppliers for extended credit or enhanced credit terms

However ironically, it is the climb out of recession that often causes a significant amount of business failure. Survival strategies are not the same as success and growth strategies. In fact that they are so incompatible that the longer a survival strategy is pursued the harder it is to effectively implement a success or growth strategy.

Why is this so?

2007 was the best year that I can remember in terms of business return. The Banks and other credit businesses were on a spending frenzy the likes of which we had never seen. However, the warning signs were there if you looked closely enough, but the vast majority of us didn’t see it coming because we were ‘nose to the grindstone’ throughout this time ensuring optimum return and a maintenance of quality standards. We can all identify in hindsight the point at which the warning signs became obvious. When we consider those symptoms and the causes it is clear that a return to norm is not likely within the short to medium term. The growth needed to get to those levels needs to have strong foundations. This is not possible where a business starts from the basis of having followed a long term survival strategy.

Companies that keep struggling but hoping to get back to 2007 returns are going to be surprised that the upswing is not anything like 2007. For companies with old products and services selling to mature markets, the next year or so may seem like a continuation of the recession. For those with new products developed for different or new markets it could be an extremely successful period. Businesses that wait for the market upturn will be left behind those competitors who go looking for the opportunities a develop strategies and processes to meet them.

Whilst having some similar features survival strategies are not success strategies.

Altering business processes to remove unnecessary costs is an essential management task whether in survival or growth mode.

The paradox is that some businesses risk their chance of survival and longer-term success by losing or having lost people who would have been star performers in the post recession growth stage. Businesses with good, trained teams have the best chance of survival, and expansion after the worst is over. Good people keep quality high, fast-moving market information up to date, and existing as well as new customers delighted. Businesses that prosper in the years after a recession will be those that kept their best people during the hard times, and made sure they were trained to take advantage of new opportunities. Indeed, the Department for Business in its report entitled “Engaging for Success” which can be found at www.berr.gov.uk/files/file52215.pdf sets out the proposition that the successful businesses going forward will be those that engage with their staff. Particularly in the service sector but across all business sectors our staff are a key asset in the delivery by our business of its products. The report proposes that businesses increase communication to the staff to ensure that they are aware of the businesses objectives and have something which they understand to implement. The communication should not be scatter gun but accurate and concise and to the level that all staff can understand.

Expansion makes it easier for everyone to look like a star, which leads poor managers to believe that somehow, everyone just got better. Those that mistake upturn success for good performance often find themselves with a line-up of C players when the next recession arrives. The best companies are as rigorous in evaluating people during good times as bad. It can hardly be the case that Manchester United play their A team throughout the run up to the Champions League final last year only to play its academy side in the final.

Business process automation, this is both a key to survival and an absolute in service based businesses as regards growth. This is achieved mainly through IT development. Depending on who you use and the amount of bespoking involved the cost of change can be relatively inexpensive as against the rate of return. Customers are becoming more demanding in terms of the cost versus service dilemma. When implementing internal change to business processes to increase competitiveness it is imperative that managers ensure that the outward face of delivery is perceived to be improving. It is essential that business managers engage with clients and customers to ensure that the process of change is seamless and that it factors in excellence. If as the old adage goes the customer is always right then without asking the customer what they are right about in advance of growth then you are likely to be trying to grow without them.

In addition businesses should consider whether they are capable of outsourcing part of their business processes. Businesses must take a long, hard look at their offshore strategies, and do a better job of understanding and quantifying all of the risks associated with outsourcing production particularly in respect of loss of control and data protection issues. Inevitably those offshoring businesses that survive will have an increased focus on value-added innovation and on producing for growing local markets. Endeavour to engage with the potential suppliers to ensure that the decision to proceed or not is taken based on all of the information

Probably the greatest challenge that will be faced by business in the growth phase of the economic cycle is the ability to deal with suppliers and banks where the finance or credit terms have been stretched to the limit. Once again, engagement is the key. Shout about your successes but do the arithmetic and demonstrate that you have a grasp of your situation and where you will be in the medium term. Otherwise your business is likely to be the victim of the frenzy of profit taking that is to come. Banks appear to have applied a relaxed approach to debt levels over the last 18 months but this cannot continue. The banks must go through the pain of sifting through their customers and analysing the debt position and the risk of recovery. As they bring pressure to bear on their customers this will feed down the supply chain and credit control terms will tighten.

The reverse is also true. Make sure that you are engaging with the people that owe you money. The longer this is left the worse it will get and when eventually the bank comes calling on them you will be unlikely to recover anything. This leaves you with two choices, to continue your forbearance or decide that you no longer want to do business with this entity. How you proceed regarding the debt depends on what decision you make. If you continue to wait for the debt without taking any action you must continue the relationship however if you choose to terminate then you must target recovery assertively. Remember that being nice will not help you in the long term. Someone else will get their first and your return will be diminished. An assertive approach at the earliest stage of recovery is more likely to give you a 100% return on your outstanding debt.

Downturns are only a small part of the economic cycle, but these are the times when market leadership shifts. Managing intelligently during the next expansion, engaging with staff and customers alike, will be much more than a chance to rise in competitive rankings. As the next expansion starts, it’s time to make sure not only that you grow and succeed, but also that you position your business to win in the inevitable next recession.

Summary

Today’s markets are changing rapidly and demand sensitive market tracking with agile technology response. A company’s very survival may be threatened by under-performing and over-priced “new” offerings based on myopic marketing. This demands swift decision-making to abandon old “new” products and plans. Engage with the market and potential customers to ensure that you offering is current and where it isn’t make the changes necessary.

The good news is that there will be lots of new business opportunities when there is an upturn. The bad news is that those competitors who survive will be leaner, meaner and tougher when they fight for market share in new opportunities. The longer and deeper the recession, the more likely that customers will adjust their attitudes and behaviours permanently, and the competitive landscape will have changed. The winners will require top talent, clear market intelligence, impeccable quality and fast response to the challenges. The companies that will emerge from the downturn the strongest will be those that use this time of uncertainty to their advantage. They will improve market position through targeted investment in their core business either by adding capacity or capability. They will spend on bargain acquisitions to gain market share and take leadership positions. Some say that they will also avoid diversification, because it dilutes focus on strengthening the core business. The trouble is that the market dynamics may demand ‘added value’ services which can only be achieved by diversification.

Don’t rely on the general election to change anything. As it stands at the moment neither party is likely to have a significant majority and even if this does occur the party in power will have its fiscals hands tied. Cuts will be necessary and an increase in the tax burden is inevitable. Failing to action this will be disastrous for the UK economy and the business trading within it as interest rates are forced into an upward spiral. Let’s assume that the public debt currently stands at about £300bn - a new government will be required to deliver approximately £1bn worth of savings or increases in tax revenue for each of the weeks that it is in power assuming that it gets to the end of a full term. The impact of the cuts on the private sector will be noticeable as we see less demand as more public servants are made redundant and the tax burden increases reduced the value of our profit. I think it is fair to say that only the private sector will get us out of this recession.

By being proactive and remaining focused on their key business principles and processes forward thinking businesses will outperform hesitant and struggling competitors. However as a warning, being proactive does not necessarily mean overspending particularly as the economy shows signs of relief. We have all heard the horror stories about new starts and over expansion. Spending that dramatically outpaces growth will eventually force draconian cost cuts or even mean the end of the business.

so finally on that note - Make sure you are ready for growth when it arrives. This will ensure that you have some fun and make some money…again.

The best of luck for 2010!!!

Recession finally ends but what now for 2010?

2010-01-26T10:40:00.000Z

Official first estimate figures released by the ONS today confirmed what many had predicted, the UK finally pulled out of recession at the end of 2009.

Whilst on the face of it, we can breathe a sigh of relief that the worst post war recession is finally over, the weakness of the GDP figures (0.1%) casts serious doubts over the strength of the recovery.

Most economists had predicted Q4 GDP to come in around 0.4%. The reality is that the UK very narrowly escaped a record 7th quarter of recession.

It has to be borne in mind that this is a first estimate for GDP and that all first estimates have been revised since 2007 so it may very well be that in coming months we will see Q4 GDP revises upwards to nearer 0.3% . That being said the figure has shocked many economists and yet again calls into question the accuracy of many of the economic surveys that have been predicting far stronger recovery.

So what now for 2010? With so much in air at the moment it is going to be very difficult to call. A general election is due within 5 months and whilst the Conservatives still lead in the polls, a clear cut victory is far from secured. A hung parliament remains a more than remote possibility and is probably one of the worst current threats to economic recovery. Tax rises and spending cuts are just over the hill and the removal of monetary stimulus is only a matter of time. Add to that the thorny issue of inflation and the way ahead for 2010 is far too difficult to predict.

So far as the housing and remortgage markets are concerned, much is going to depend on public reaction to the media headlines on our technical exit from recession.

Property is always a confidence game. Following the 1990s property market recovery was subdued for many years because the public lacked the confidence in the market. This time around we have not yet seen the vast wave of repossessions and negative equity issues and therefore the public may feel more confident about the future of the property market

The remortgage market will be dictated by the publics attitude to the imminence and likelihood of interest rate rises. We still consider that BoE rate rises will occur during 2010 but the anaemic GDP figures may have an effect of the public perception of the timing of rate hikes and therefore we may see a continuation of the subdued remortgage market in the first half of 2010.

We welcome comments from others as to their views on the property/remortgage markets as a result of the GDP figures.

FSA intervenes on mortgages arrears

2010-01-26T09:21:00.002Z

For article see http://news.bbc.co.uk/1/hi/business/8480073.stm. Reading between the lines the FSA has made it clear that its rules on lender's behaviour around mortgage arrears are not fit for purpose. One must ask what the FSA has been doing since its intervention into the Mortgage market.

Given the failure of regulators in general, but the FSA in particular, to foresee events over the last 2 years and either to prevent or reduce the impact of unnecessary risk taking, this latest admission must be seen as a final straw in the FSA's ability to create a proper regulatory environment in which to transact mortgage business. With an impending election it is unlikely that this requirement to regulate on the FSA will be changed but it is likely that the FSA will be challenged post-election to demonstrate that it adds value. Whether this is possible is a matter of how they respond to the concerns in the mortgage market. Based on past record one must question whether this will happen.

Lender's like any other business have to ensure that they are profitable, whilst balancing with issues such as reputation and their regulatory requirements. Working with the principles of Treating Customer Fairly has always been difficult because of their vagueness. On the other hand, because of the lack of flexibility, black letter rules can fail to provide effective rules in individual circumstances.

Where next? A full re-write of the Mortgage: Conduct of Business together with the associated cost to lenders? The market already reeling from the failure of appropriate regulation to then be hit by tighter rules reducing the ability for lenders to assist the economy in recovery.

We suggest that before making knee-jerk statements of the kind released today a full consultation is carried out, with lenders and consumer bodies, that ensures that the rules produced create a market where risk levels are acceptable, find the right balance between the lender's commercial needs and the borrowers rights, and appropriate sanctions against lenders for non-compliance.

Are we on the precipice of a remortgage Tsunami

2010-01-22T10:36:00.003Z

Following our blog earlier this week on the possibility of interest rate rises there have been a number of comments on various financial news sites regarding the same.

Today Santander have revealed some rather frightening statistics. According to Santander Mortgages Remo Index there are potentially nearly 900000 UK home owners looking to remortgage within the next six months, more than half of whom are aiming to grab good fixed rate packages before they go

Borrowers have seen a large number of highly competitive fixed deals come on to the market recently and with many commentators predicting a base rate rise this year, homeowners now seem more inclined to play it safe with a fixed rate deal.
If these statistics are correct this would mean an increase in remortgage volumes to 145000 remortgages a month.

With the majority of remortgage transactions in this country being handled by a handful of legal firms including breezeplus, and assuming that most of these remortgage volumes will be centred amongst a few high street banks, it is imperative that these players are geared up to handle such a huge spike in instructions.

Lenders and lawyers alike have become accustomed over the course of 2009 to ever reducing levels of remortgage work and staff reductions have been inevitable. Both are now faced with a very difficult call. Do we increase staff overheads now in anticipation of a wave of new work or wait until the wave hits and risk being washed away.

The view at breezeplus is that a tsunami of remortgages is inevitable during the course of 2010, but that its timing is less clear. We are investing in staff numbers now to ensure we are able to take advantage of the upswing and to make sure that we can maintain our quality standards.

Whether we have made the correct call, only time will tell, but we would welcome comments from others as to their views on the market

Time to fix your mortgage rates?

2010-01-19T17:09:00.001Z

Inflation is back, bringing with it the prospect of enforced interest rate rises rather sooner than policymakers would wish.

The Inflation Indices for December released today showed the highest monthly increase since the 1970s. In response, gilt yields have risen sharply and so too has the pound. Many economists had predicted a big surge in inflation for December because in the same month the year before there had been a number of one off factors which had acted as a depressing influence on the indices, including the cut in the rate of VAT to 15 per cent. But the surge to 2.9% was not anticipated

The reversal of the VAT rate has not yet been factored into the indices, this will impact in Januarys figures with the result that it is more than likely that the inflation rate for January will substantially breach the 3 per cent level at which the Governor of the Bank of England is forced to write a formal letter to the Chancellor explaining why inflation is so far adrift from target.
This time last year many economists were predicting a second Great Depression, house price falls of 40% + , years of stagflation or deflation. 12 months down the line the economic experts have proved to have exaggerated considerably to the downside; house prices rose in 2009, the financial markets are still standing, unemployment has not ballooned, and inflation no deflation is our current concern.

The GDP figures for Q4 2009 are due for release on 26th January and if predictions are correct are likely to show that we are at long last out of recession and on the road to recovery. Prices are racing ahead as if the economy is again operating at full tilt.

The markets are now confidently pricing in a rise in Bank rate for later this year. There are some economists predicting rate rises before the general election.

With all this in mind, and also taking on board recent SVR rate rises by lenders the statistics are pointing towards fixed mortgage rates having reached their bottom and mortgage rate rises being just around the corner. Fixed Rates have become unfashionable recently with many opting for headline low tracker rates. But is it now prudent to lock into these historically low fixed rate mortgage products before the market shifts upwards as it inevitably will.

It is the brave borrower who is prepared to continue the wait and see policy on mortgage interest rates and those that leave it too long could be caught short.

Weathered the recession: have you planned for growth?

2010-01-18T16:21:00.003Z

Come along and join me for this great networking opportunity where I will be the guest speaker. Meet with like minded people, make contacts and discuss business opportunties over a full English breakfast.

Those who follow my blog or LinkedIn will know that I am a Director and the Head of Company Commercial and Corporate Recovery at Breeze & Wyles Solicitors LLP. The firm's Corporate Recovery team was launched in mid 2009 to meet the changing demands of a number of high profile clients. The team has handled a number of corporate recovery instructions within this period and associated work such as claims against directors and book debt recovery.

Networking is an effective way of generating new business leads, raising your companies profile and promoting your services and products.

Member: - £22.5 Per Person
Non-member: - £30 Per Person
Latest Booking: - 8 Feb 2010
Contact: - Jodie Reid
Tel: - 01707 398400
Email: - mailto://jodiereid@hertschamber.com

Announcement: Snow Hero 2010 Winners

2010-01-15T14:01:00.002Z

Last week, Breeze & Wyles launched a competition to find a person in Hertfordshire who has done something exceptional for the community or for their workplace or business, or shown exceptional team spirit over the last week of snowy and hazardous conditions (full details of the competition can still be found on our website at www.breezeandwyles.com/snowhero).

The joint winners are Liz Hawkins, Aukjen Rooke and Georgina Matthews who were nominated by Pat Burt. In her nomination Pat said:

"I would like to nominate Georgina Matthews, Liz Hawkins and Aukjen Rooke who work in the District Nursing Team at Hoddesdon Health Centre. Of course they are dedicated nurses all year round but in the snow they have gone beyond the call of duty. In this very bad weather they have been covering their regular patients residing in Hailey, Hoddesdon, Broxbourne, Wormley, Nazeing and Roydon. Their days have started at 7.30 am and they have also been working on their days off and not taking any breaks for lunch etc. If the patients could not be reached by car they have walked to their homes. They have also helped patients who heating has failed by collecting electric heaters and taking them back to the patients homes. They have prepared breakfast for those that are diabetics and visited those that they felt were vunerable or needed support. Vital medication was also collected on behalf of the patients who's families were unable to get to the chemists."

The £100 prize was awarded to them on behalf of Breeze and Wyles at our hosted breakfast seminar this morning by Mark Prisk MP for Hertford and Bishop’s Stortford. The three winners decided immediately to donate their prize winnings to the emergency fund for Haiti.

Is 2010 likely to repeat 2009 for the retail sector?

2010-01-14T11:31:00.003Z

There is a significant amount of evidence that the retail sector of the UK economy will suffer in much the same way as it did in 2009 over the forthcoming months. R3 the Professional Association of Insolvency and Turnaround specialists reported on 30 November that "Retailers should prepare for New Year bloodbath" based upon opinion from within their ranks see https://www.r3.org.uk/newsandpress/default.asp?page=1&i=4&id=330#PressStory.

However, news on the high street is that retailers have seen a much better christmas than was expected. Is that the case?

Good news of itself may mean much for the wider economy but creditors may see this as an opportunity to push for receovery through formal proceedings on the basis that post christmas the debtor is in the best position it is likely to be in for some time. The financial status of the debtor can only deteriorate as the market hardens for reasons such as: -

1. continuing rise in unemployment that leads to lower confidence meaning less spending on the high street;
2. where expenditure over the Christmas period being higher than epxected what available cash there will be to spend will be diminshed.

All of the above opinion applies to the supply chain to retailers. the example of which is the collapse of Woolworths. The failure of Woolworth's had ramifications beyond those directly involved in the business and estimates suggest that there were a significant number of knock-on insolvencies as a result.

With all of this in mind there is no better time than now to get some advice is the financial situation seems parlous. Failure to do so may limit the options available to you, your business or company as creditors become even more agressive in their approcah to recovery.

Snow Hero Competition

2010-01-08T14:46:00.003Z

Breezeplus: We are pleased to announce our Snow Hero competition and the chance to nominate someone for a £100 award. If you know of someone who you would like to nominate for this award please view http://www.breezeandwyles.com/snowhero.html. Please note that this award is only open to people in the Hertfordshire area.

Merry Christmas and a Happy New Year to all from Breezeplus Legal Solutions

2009-12-17T15:46:00.003Z

Happy Christmas from all at Breeze & Wyles Solicitors LLP and Breezeplus Legal Solutions. We wish you a prosperous New Year.

The opening hours for Breezeplus Legal Solutions through the week of Christmas are as follows: -

23 December 9am to 5.30pm
24 December 9am to 4.00pm
25 December Closed
28 December Closed
29 December 9am to 5.30pm
30 December 9am to 5.30pm
31 December 9am to 4.00pm
1 January Closed
4 January Normal opening hours

Breezeplus: Does the change to Direct Payments go far enough?

2009-12-16T10:04:00.005Z

The Government is proposing to change the rules on payments of Local Housing Allowance to allow the Tenant to decide whether to receive the payments directly or direct payment to the Landlord. Please see article at http://www.insidehousing.co.uk/story.aspx?storycode=6507837.

Previously tenants have receive the payment directly without the choice and this has created a significant amount of arrears in the Social and Private Landlord markets.

However, is the change sufficient to enable the Landlord to guarantee receipt of the money. Because the tenant still retains the right to choose where the payment goes then this does not provide sufficient guarantee of receipt to the Landlord.

The tenant is already is financial difficulty having to rely on state assistance to fund payments for basic housing needs. It is unlikely that the rest of their finances are in a positive shape and it may not even be the tenant's choice as to where that funding goes.

The Government should go further and ensure payment directly to the Landlord. It is argued by Yvette Cooper that this is to ensure that tenants interests are protected. Can this be the case?

I would welcome your comments on this.

Directors Planning Conference Update

2009-11-25T12:30:00.001Z

It was good to get away from the office to concentrate on the wider issues that affect that management of our business.

The decisions made include: -

1. The enhancement of the firm-wide Brand Values
2. An action plan for development of some new legal services (look out for these in the early part of 2010)
3. An action plan for development for the process of delivery of the existing legal services so as to create efficiency saving and drive out further unnecessary costs

Persoanlly, I am excited at the prospects for the coming year and we have less concerns whatever the economic situation the legal services sector takes in the next 12-18 months.