Issue 10 Winter 2012/13

www.twmsolicitors.com

New Partner in FamilyWe are delighted that

Lindsey Alexander

has joined us as a

Partner in the Family

& Matrimonial team,

working at the Epsom

office and serving clients

across inner and outer

London. Lindsey joins

TWM from City lawyers

Memery Crystal.

She has wide experience in all areas of family law, divorce,

matrimonial finance, cohabitation and private law children

work. Lindsey frequently advises in the preparing of Pre

Nuptial Agreements for both UK residents and non domiciled

individuals living and working in London. Like all of our

family solicitors, Lindsey is a member of Resolution, as well

as a practising collaborative lawyer with wide experience in

this form of alternate dispute resolution.

She is named as a Leading Lawyer in the Family

& Matrimonial category of the 2012 edition of the

Citywealth Leaders List, published by Citywealth, based

on recommendations from within the private wealth

management sector as well as their clients.

Commenting on Lindsey’s arrival, Head of Family Sarah

Cornes said. “That Lindsey has chosen TWM says a lot about

the high regard our Family & Matrimonial team is held in by

our peers. The team has grown significantly during 2012,

and we have maintained all of our independent directory

recommendations. With 11 solicitors, all qualified as

collaborative lawyers or mediators, the TWM team is one of

the largest and most experienced in the south east”.

TWM website gets a makeoverOur website has been updated. The design is cleaner

and hopefully more intuitive, with all relevant information

about a topic included on the page in view. The site

will be updated frequently as we add information, blogs

and expert views in those areas of interest to clients and

contacts. We would be pleased to receive any comments

you may have on the new site.

Lindsey Alexander

ChristmasIn support of Surrey Air Ambulance we will be sending

their e-christmas card and making a donation to the

charity in lieu of postage costs.

Our offices will be closed from 4pm on Friday 21 December 2012 reopening at 9am on Thursday 27 December 2012. For New Year, the office will close at

4pm on Monday 31 December 2012 and re-open at

9am on Wednesday 2 January 2013.

We would like to wish everyone a Merry Christmas and a

Happy New Year.

In search of Surrey’s Young SuperstarsTWM Solicitors together

with Haslemere Travel have

joined together to launch

the Surrey Young Superstars

Awards 2013, to spotlight the many achievements of young

people in the county.

The inaugural awards, to raise awareness of Surrey

Air Ambulance, and in association with Surrey Life

magazine and SATRO, will reward and showcase young

people’s efforts and honour them for their hard work and

achievements.

Surrey Young Superstars was launched at Haslemere

Educational Museum on 19 November. The awards

event for prize winners will take place on 1 May 2013 at

Guildford’s GLive. The award categories, include:

• CaringSuperstar

• VolunteeringSuperstar

• BusinessSuperstar

• SportingSuperstar

• FundraisingSuperstar(Group)

• FundraisingSuperstar(Individual)

• EcoSuperstar

If you would like to make a nomination for an award, the forms

and all necessary information is on the Surrey Life website.

Listen upTWM will be coming through your radio during the month

of January. Our New Year, New Priorities campaign breaks

on 7 January on both 96.4 Eagle and Radio Jacky. January

is the month when people tend to ear mark their ambitions

and aims for the year ahead. For some it might be moving

house, for others it might be getting personal or family affairs

in order. Our message is that TWM is here for whatever or

whenever we might be needed.

Re-joinersIt says something about the kind of law firm and

employer that TWM is when staff who had left return.

In recent months there have been two such instances.

Sarah Cornes who was at TWM for 17 years before

leaving in 2008 re-joined in June to head our family

team. We are also delighted to welcome back Michelle

Leggett who left in 2009 to bring up her young family.

Michelle will work as an associate in our Reigate office

privateclientteam,inplaceofWendyBosler,who

retires on 31 December. We thank Wendy for her

significant contribution to TWM and wish her a very

happy retirement!

Independent recognition for TWMChambers UK, a leading annual

independent guide to the legal market

has recently published its latest edition.

Commentary regarding TWM’s services

were as follows:

Contentious Trusts & ProbateThe “experienced and wise” Guy Perkins leads the

contentious probate group at TWM Solicitors. “He is

able from the outset to identify the issues and potential

solutions,” comment clients.

Family / MatrimonialThis firm maintains a formidable practice representing

clients in high-value matrimonial finance cases, often

involving trusts and overseas assets. The firm is also

capable of handling Children Act matters.

Private ClientThis group increasingly wins recognition for its involvement

in complex private client matters. The team is skilled with

estate administration, inheritance tax planning and trust

restructuring. The bulk of the practice’s work in Guildford

is non-contentious, although it often involves multiple

jurisdictions. “The group works well, with all members

aware of the tactical decisions, objectives and progress,”

states a market commentator.

Real EstateThe real estate team at TWM is recommended by

clients for its service and value for money. The team is

also praised for its “creative thinking,” commerciality

and attention to detail. Clients include Asprey Homes,

Handelsbanken and Riseden.

Dispute Resolution - Funding litigation cases

Damages Based Agreements – (DBAs)These are commonly known as “contingency fee”

agreements, which are widely used in the USA. Lawyers in

this country have always been prohibited from entering into

suchagreements(otherthaninemploymenttribunals)but

they are now being promoted as an integral component of

litigation funding.

TheActwillallowtheuseofDBAsinallareasofcivil

litigation. Such an agreement between the client and his

lawyer will allow for the lawyer’s fee to be calculated as

a percentage of the amount of damages that the client

becomes entitled to as a result of a successful legal case.

There will be a 25% cap on the amount of damages,

excluding damages for future care and loss, that can be

takenasalawyer’sfeeunderaDBAinpersonalinjurycases,

and a cap of 50% on damages for all other cases under a

DBAincivillitigation.

Cost Protection in Personal Injury Claims: Qualified One-Way Cost Shifting (QOCS)

Under QOCS, if the claimant wins his action, the defendant pays

both sets of costs, but if he loses he will only pay the defendant’s

costs if he has, in relation to his claim, behaved unreasonably,

fraudulently,orhasfailedtobeatawithoutprejudice(Part36)

offer to settle made by the defendant. That is to say, he recovers

less at trial than he was offered by the defendant.

Other measures being introduced within the Act, or in parallel

with it:-

• Damagesforpain,sufferingandlossofamenity(general

damages)awardedinpersonalinjurycaseswillbe

increased by 10% over the amounts currently awarded

by Courts.

• Therewillbeanewruleonproportionality;thetestis

intended to control the cost of activity that is clearly

disproportionate to the value, complexity and importance

of the claim.

• Referralfeeswillbeprohibitedinpersonalinjurycases.

These are fees paid by lawyers to claims management

companies who pass clients to lawyers in return for a fee.

The Ministry of Justice says “These civil justice reforms will

restore a much needed sense of proportion and fairness to

the existing regime, not by denying access to justice, but

by returning fair balance to the system”. Only time will tell

whether the reforms will achieve this objective.

Guy Perkins – guy.perkins@twmsolicitors.com

Lord Justice Jackson was commissioned by the Government

back in 2009 to undertake a review into the legal profession,

and, in particular, how solicitors and barristers charge their

clients, and the basis upon which costs can be recovered by a

successful party against an unsuccessful party in civil claims.

Following the publication of his report, the Government will

implement a significant number of his recommendations

in April 2013 through Part 2 of the somewhat curiously

named Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Belowaredetailsofsomeofthemoresignificantreforms

affecting legal costs and the funding of litigation.

Conditional Fee Agreements – (CFAs)

Known more commonly as “no win, no fee” agreements,

CFAs offered an attractive alternative to “pay-as-you-go”

funding of cases, particularly for those of limited means.

Under the existing model of CFA, the successful party can

recover from the unsuccessful party, not only their solicitor’s

standard costs, but in addition the success fee that they had

agreed with their solicitor and, if they had taken out “after the

event”insurance(ATE),thentheinsurancepremiumaswell.

The Act will abolish the recovery of success fees and ATE

insurance premiums from the losing party. People will still be

able to use CFAs but will have to pay their lawyer’s success

fee and any ATE premium themselves. There are limited

exceptions in respect of ATE insurance premiums relating to

expert’s reports obtained in clinical negligence cases.

Whereas before there was no statutory cap on the percentage

of success fees recoverable, the Act will impose a 25% cap

on success fees in personal injury cases.

Employment - Employment rights for shares - A fair swap?

Theywillalsoloserightstostatutoryredundancypay;to

requestflexibleworking;andtorequesttraining.

Rather curiously, any employee shareholder returning

early from maternity or paternity leave will have to give 16

weeks’ notice.

Comment

The proposals have met with a mixed reception, with many

commentators remaining sceptical. Only a “very small

number” of respondents to the consultation welcomed the

new status and expect to utilise it. It is hoped that matters

will become clearer as the legislation makes its way through

Parliament, but grey areas remain:

• Willthecomplexityofthelegalandtaxrulesbeoff-putting

to the small and medium sized businesses at which

the scheme is aimed? There will be no requirement for

compulsory independent legal advice for individuals

considering employee shareholder status.

• Acceptanceofthecontract,byanewjoiner,isvoluntary.

However, they may have little choice if they want the job!

• Willthelossofunfairdismissalrightsleadtoanincrease

in employee shareholders’ remaining claims, such as

discrimination and automatically unfair dismissal?

• Existingemployeeswillbeabletoremainontheirexisting,

traditional contracts if they choose. How will the creation of

a mixed workforce impact on employee relations between

those with and without full employment rights?

• HowusefulistheCGTexemption,giventhecurrent

£10,600 annual allowance that already exists?

• TheGovernmentsuggeststhat“incertaincircumstances”

an employer could buy back shares at less than market

value(maybewhereanemployeewasdismissed).Thus,

an individual who considers himself to have been unfairly

dismissed could not claim compensation nor receive the

full value of the shares which were meant to compensate

him for the loss of this right.

Further details are expected in the New Year, before the

new changes are implemented as part of the Growth and

InfrastructureBillinApril2013.Itremainstobeseenhowthe

concerns will be ironed out and how popular the new status

will be once introduced.

Clare Chappell – clare.chappell@twmsolicitors.com

The last 2 years have seen a raft of proposals and

consultations designed to reform employment law. The

latest of these is the consultation on implementing employee

shareholder status. Initially called ‘employee owner’ status, it

was changed soon after the consultancy period closed. This

wasbornoutofthe‘NuttallReview’(designedtopromoteand

facilitateemployeeownership).

The key proposals are:

• Anewstatusof‘employeeshareholder’willbecreated;

• Anindividualjoiningafirmasanemployeeshareholder

will be issued with fully paid up shares worth at least

£2,000;and

• Inreturn,theemployeeshareholderwillforfeitcertain

statutory employment rights.

The offer will be available for new joiners and acceptance will

be voluntary. Existing employees could also choose to accept

an offer of a new contract.

Shares

It seems that the shares will be valued at their restricted

market value. Employers will be free to put restrictions on the

shares(egrestrictionsondividendsorvotingrights).Valuation

methods could also impact on the taxability of the shares.

Ultimately, employee shareholders could be getting less than

they expect.

It is likely that employers will require employee shareholders to

forfeit their shares on termination of employment. The buy-

backmechanismforthisistobesimplified(throughchanges

totheCompaniesAct2006)buttherearestillissues,not

least that the forfeiture conditions are to be left to contractual

agreement between the parties. How harsh can an employer

make the forfeiture conditions without unreasonably restricting

the value of the shares?

The good news is that any capital gain made by the employee

shareholder will be exempt from CGT, although the value of the

shares for CGT purposes will be capped at £50,000. However,

the normal rules for Income Tax and NI Contributions will apply.

Employment rights

Employee shareholders will lose their entitlement to claim

unfair dismissal, unless it is for one of the automatically

unfair reasons, such as whistle-blowing or raising health

and safety issues.

Family & Matrimonial - Popping the question: Are pre-nuptial agreements now binding?

The Court is likely to consider it fair to hold couples to an

Agreement provided:

• TheAgreementissignedatleast21daysbeforethe

wedding;

• Therewasnoduress,fraudormisrepresentation.

• TheAgreementisnotmanifestlyunfair;

• Bothspousesreceivedindependentlegaladvicebefore

enteringintotheAgreement;

• Bothspousesprovideddisclosureoftheirassetsand

income.

In addition, Pre-Nuptial Agreements cannot prejudice the

financial provision to be made for any children of the family

on divorce. It is therefore recommended that Pre-Nuptial

Agreements do not deal with financial provision for the

children.

Since the landmark case of Radmacher, the Courts have

continued to refine the law, and in the 2011 case of Z -v- Z

the Court accepted that the wife had full understanding

of the implications of the Agreement, even though she

had no independent legal advice and there had been no

disclosure of the parties’ assets. Although the Court held

that the wife should be bound, in deciding the division

of the assets the Court awarded the wife more to take

account of her needs.

A Pre-Nuptial Agreement should be particularly considered if

one or other party:

• Hasbeenmarriedbefore;

• Hassignificantwealth;

• Haschildrenandseekstoprotecttheirinheritance.

Law Commission

Pre-nuptial Agreements are likely to continue to receive

press, government and Court attention in the coming

years. The Law Commission is currently considering the

status of Pre-Nuptial Agreements under English law and is

due to report on its proposal for reform in late 2013. If the

Commission follow the trend started by the Court Pre-Nuptial

Agreements may become legally binding.

Case law in this area is continuing to develop but it is largely

case specific, and specialist legal advice tailored to a client’s

individual needs is essential.

Lindsey Alexander – lindsey.alexander@twmsolicitors.com

Pre-Nuptial Agreements can regulate the distribution of

assets in the event of marriage breakdown rather than

leaving the decision to the Court, or to the parties to try

and reach an agreement at a difficult and emotional time

should the marriage break down.

Often couples acknowledge it is fair that where one party

has generated or acquired wealth before the marriage

that it is not necessarily to be shared in the event of

divorce. A Pre-Nuptial Agreement properly prepared with

the benefit of legal advice can be extremely persuasive

although they are not however currently legally

enforceable.

Radmacher v Granatino was a decision of the Supreme

Court(thehighestappealcourt)in2010.MrGranatino

had married a wealthy German heiress Katrin Radmacher

and had entered into a Pre-nuptial Agreement which

protected her substantial interests in the family business.

He was bound by the Pre-nuptial Agreement and as

a consequence was awarded a £5.5m house which

he can continue to occupy with the children and a

lump sum capitalising his maintenance needs whilst

the children are in his care. In the Judgment it was

ruled that “The Court should give effect to a Nuptial

Agreement that is entered into freely by each party with

the full appreciation of its implications unless in the

circumstances prevailing it would not be fair to hold the

parties to their agreement”.

Commercial Property - Green deal cashback scheme to include landlords

Company Formations - Cheap may not always be cheerful

In order to encourage take-up, the Department of Energy

andClimateChange(DECC)hasnowannouncedthatwith

effect from 28 January 2013, homeowners will be eligible

for cashback of up to 50% of the householder’s contribution

to costs. The government has set aside £125 million for the

cashback scheme which will be available on a ‘first-come

first-served’ basis for households in England and Wales. The

cashback rates that apply to different energy saving measures

are published on the DECC website.

In addition to owner-occupiers and tenants in privately

rentedorsocialhousing,theBritishPropertyFederationhas

confirmed(inconsultationwithDECC)thatthecashback

will also be available to private and social landlords paying

installation costs, up to certain limits. Landlords will be able

to claim cashback either where they pay for improvements

up front, or where Green Deal financing is used where the

landlord is the bill payer. Landlords can also claim cashback

on multiple properties, provided the amount claimed does not

exceed state aid limits.

Adrian Price – adrian.price@twmsolicitors.com

experienced in company law and company formations. We are

experienced in company formations, and as a full service legal

firm, we can also advise on related issues, such as employment

contracts or Wills.

At TWM Solicitors we are transparent about fees relating to

companyformations.Ourstandardchargeis£250plusVAT.This

fee includes the Companies House fee, and for this service you

get peace of mind that a law firm is dealing with your company

formation, in a professional manner and ensuring that obligations

as to the formation itself are being complied with. This fee also

includesalltheextrasyouwouldexpect;statutoryregisterswritten

up(electronicand/orhardcopy),hardcopycompanybooks,first

board minutes, and either model articles, or bespoke articles of

association(forpropertymanagement/residentscompaniesonly).

We can also act as company secretary to remove the burden

of day to day filing and statutory obligations from the company

directors(though,notethatdirectorsthemselvesarestill

responsible for ensuring that statutory obligations are complied

with,andfilingsmade),aswellasactingasregisteredoffice,for

an annual fee.

Amy Rees – amy.rees@twmsolicitors.com

Further to the recent launch of the ‘The Green Deal’, the

coalition’s flagship initiative to improve the energy efficiency of

buildingsinGreatBritain,thegovernmenthasnowannounced

a Green Deal Cashback Scheme to incentivise homeowners and

residential landlords and tenants to make use of the scheme.

The Green Deal was included as part of the Energy Act 2011,

and came into force on 1 October 2012. The primary aim of

the scheme is to allow homeowners to make energy efficiency

improvements to their properties now by removing the up-front

costs of such measures and allowing them to be repaid over

time via the property’s energy bills.

Once improvement measures have been agreed with an

approvedGreenDealProvider(essentiallyenergycompanies,

withhighstreetnamesexpectedtoparticipateintime),

householders will enter into a Green Deal Plan with that provider,

and the improvements will be made to the property. The cost of

the installation will then be recovered over time via the electricity

bill for the property, creating a ‘pay as you save’ mechanism,

on the basis that the measures taken will eventually pay for

themselves by the savings made on energy bills.

Type company formations into any internet search engine and

you will find providers offering this service for what appears a

knock-down rate, sometimes as low as £50.

The small print of such formation agents can state that the

feeadvertisedisexclusiveofVAT,CompaniesHouse,and

any other professional fees, so that £50 formation is now

probably closer to £70. Many providers offer different levels

ofservices;youmaynotbegettingmuchforyourbasic

“£50” fee. Mistakes can be made, articles of association can

be poorly drafted, and in the long run, that cheap formation

you purchased could end up costing you more than you had

bargained for.

Formation agents normally do not provide advice on whether

the chosen structure of the company is appropriate for the use

intended;theysimplyformthecompanyyouadvisethemof

and do not ensure it is completely suitable for your needs. Most

formation agents do not tend to offer a bespoke service tailored

to the client’s needs, and keep their charges low by assuming

one size will fit all.

Perhaps worryingly, company formation agents are not required

to be regulated, and in some instances may not be qualified or

Residential Property - Chancel repair liability

Wills & Probate - Cross-border problems

• Obtaininsurancecoverwhichwhileaffordableformost

dwellings can become prohibitively expensive if the land

beingacquiredisoverfiveacres.Bewarethoughpolicy

detailsvarybetweenproviders;or

• Thepurchaserto“buyout”theliability.Thisisentirelyat

the Church’s discretion.

The future of CRL will become clearer and easier after 2013.

With effect from 13 October 2013 CRL will only bind new owners

of registered land if it has been protected by an entry on the

title to the property at the Land Registry. Where a piece of land

is unregistered and is subject to CRL, that liability will continue

even after the 13th October 2013 so long as the property

remains unregistered. This puts the onus on the Parochial

Church Councils to identify all affected land and register their

interests before that date. It is important to highlight the fact that

only a purchaser after 2013 will take the property without liability

- existing owners of land will remain liable.

Jonathan Potter - jonathan.potter@twmsolicitors.com

Thus a Regulation which aimed to simplify things has merely

created a different set of problems.

The personal circumstances and needs of each individual

client must be taken into account, and a specifically tailored

solution found for each. Please seek advice from any of

our Private Client solicitors who will, if necessary, involve a

memberofourspecialistCross-Borderteam.

Nigel Harding – nigel.harding@twmsolicitors.com

The media has widely reported the story of 30 households

intheCotswoldvillageofBroadwaywhoareunhappyatthe

prospect of being forced to pay for the upkeep of the local

St Eadburgha’s church.

The prospect of paying a charge dates back to the time of

HenryVII,whentractsoflandownedbythechurchweresold

off to private individuals. A liability to repair the Chancel of

the Church passed with the land, known as a Chancel Repair

Liability(CRL).Theremaybeasmanyas5,200parishes

where there is land which might be subject to a CRL.

Establishing if a CRL applies to a particular property is

difficult since there is no single register. For those people

purchasing a property, conveyancing solicitors will establish

whether or not a Parish in general might have land which is

subject to a CRL, but for those wanting greater certainty, the

options are:

• Amoredetailedsearch(£300-£400)whichcantake

sometime;

There have always been problems where someone owns assets

inmorethanonecountry.UndertheConflictofLawsRules(CLR)

of English law, it is quite possible to have more than one system

of laws applying to one’s estate, depending on one’s personal

circumstances and the country where the assets are situated.

ThenewEuropeanSuccessionRegulation(BrusselsIV),

which is in the process of coming into force, aimed to simplify

the situation in Europe so that only one set of laws would

apply to an estate. However, the UK, Eire and Denmark have

alloptedout,andBrusselsIVdoesnotapplyhere.

If a testator, who is a UK national owning assets in a

European country, says nothing in his Will then English law

(asthelawofhishabitualresidence)withallitsCLRwillstill

apply in that European country and we still have more than

one system of law involved.

However, if the same person opts, under his Will, for English

law(asthelawofhisnationality)toapplythentheEuropean

country will disregard the English CLR and apply English law

no matter what our CLR say.

The position is equally complicated if a foreign national,

habitually resident in England, wishes to make a Will here.

Ourrulesastodomicile(whichisnotthesameashabitual

residence)mustbetakenintoconsideration.

Golf Clubs to the Fore!We were pleased to have the opportunity to share our

knowledge and expertise advising golf clubs at a recent

meeting of Surrey Golf Union. We work or have worked with

nearly20clubs(bothmembers’andproprietary)onprojects

ranging from small scale property disputes to the sale and

purchase of Clubs.

We were hosted by Effingham Golf Club and talks covered

topics including:

• Equality

• Incorporation

• CommunityAmateurSportsClubs(CASC)

• Redundancy

• Issuesaroundland

• Telecomsmasts

• NatureoflegalrelationshipswithClubsuppliers

Notes of the talks are available from the golf club page on our

website, alternatively please contact Anne Fowler, Peter

Stevens or Patrick Stewart.

Jacky and Sarah qualify as MediatorsJackyButtandSarahBostockhavebothrecentlyqualified

as mediators, meaning that all of the solicitors in our family

and matrimonial team are either mediators or collaborative

lawyers. Congratulations to both.

NewsandViewsisTWMSolicitors’quarterlynewsletterforclients and contacts. The articles included in this publication are necessarily brief and because the law may change subsequently, it is essential that legal advice is obtained prior to proceeding.

TWM Solicitors is a full service law firm. It is the second largest firm based in Surrey and its approach centres on achieving success for its clients.

If we can help with a legal issue, please do not hesitate to contact one of our team:

Cranleigh-RichardBland01483273515Epsom - John Sandford-Pike 01372 729555Guildford - Adrian O’Loughlin 01483 752700Leatherhead - Mark Stevenson 01372 374148Reigate - Demelza Patricio 01737 221212Wimbledon - Peter Lambert 020 8946 6454

For further information about TWM Solicitors, please visit our web site: www.twmsolicitors.com

@twmsolicitors

Support from all quarters for MovemberOur male staff were keen once again to take part in

Movember to raise the profile of men’s health issues. This

year, however, the fairer sex decided that they wanted to

chip in, as the photograph shows. Comparing the efforts

of the men and the women, we came down on the side of

the girls, by a whisker! Go to uk.movember.com for further

details.