Conveyancing Quality Scheme

BSG Solicitors secures Law Society's new quality mark

 

BSG Solicitors who have offices in both Lancaster and Preston have secured membership to the Law Society's Conveyancing Quality Scheme - the mark of excellence for the home buying process.

 

BSG Solicitors underwent rigorous assessment by the Law Society in order to secure CQS status, which marks the firm out as meeting high standards in the residential conveyancing process.

 

Law Society President Lucy Scott-Moncrieff said that the Law Society introduced CQS to promote high standards in the home buying process.

 

"CQS has established itself as the quality mark of the home-buying sector and enables consumers to identify practices that provide a quality residential conveyancing service. With so many different conveyancing service providers out there CQS helps home-buyers and sellers seek out those that can provide a safe and efficient level of service."

 

Tom O’Neill, Partner says: BSG Solicitors is delighted to have secured CQS status. Buying and selling a home can be a stressful time. Choosing a solicitor to help in that process just got easier. By looking for a CQS firm like BSG Solicitors the public can seek out a firm that has proved its commitment to quality.

 

“The overall beneficiaries will be clients who use BSG Solicitors when buying a home. They will receive a reliable, efficient service as recognised by the CQS standard."

 

The scheme requires practices to undergo a strict assessment, compulsory training, self reporting, random audits and annual reviews in order to maintain CQS status. It is open only to members of the Law Society who meet the demanding standards set by the scheme and has the support of the Council of Mortgage Lenders, the Building Societies Association, Legal Ombudsman and the Association of British Insurers.

 

For more information on the Law Society's Conveyancing Quality Scheme visit www.lawsociety.org.uk/cqs

 

Or contact the CQS Unit on 020 7316 5550 or CQS@lawsociety.org.uk

 

BSG Solicitors 3& 4 Aalborg Square, Lancaster LA1 1BJ Tel: 01524 386500

 

www.bsglaw.co.uk

 

Email:ton@bsglaw.co.uk

New Partner for BSG

BSG Solicitors are delighted to announce the recent promotion of Rebecca Lauder to Partner.  Rebecca started her new role within the firm on the 1^st July.

 

Rebecca joined the firm in 2006 as a Trainee and is now a key member of the firms Wills, Probate and Estate Planning department.  As a member of Solicitors for the Elderly and an affiliate member of the Society of Trusts and Estates Practitioners, Rebecca provides specialist advice on all aspects of estate planning, wills and probate, intestacy, Court of Protection applications and Lasting Powers of Attorney.

 

Rebecca said, “I am absolutely delighted to become a partner at BSG Solicitors, the firm continues to act for generation after generation of the same families which is testament to it’s caring outlook, excellent advice and service. We are more than just a solicitor to so many of our clients and I look forward to continuing to drive that ethos and continue to build on our 300 years of heritage and success”.

 

Tom O’Neill (Partner) commented “we believe that Rebecca is a great asset to the firm and will bring enormous benefits to the business in many different ways. Her enthusiasm, hard work, dedication and loyalty are obvious to all who know her and we are very pleased to have her as a member of the Partnership.”

 

To contact Rebecca email rfl@bsglaw.co.uk, or phone 01524 386500.

UNFAIR DISMISSAL-POTENTIALLY FAIR REASONS FOR DISMISSING AN EMPLOYEE

 

The EAT has decided that an employer who dismissed a senior employee following a dispute over a profit share and a failure to agree on the terms of employment could not rely on "some other substantial reason" (SOSR) to justify the dismissal. Although a breakdown in relations can amount to "some other substantial reason", it did not in this case.

An employer should not be permitted to rely on SOSR when dismissing an employee following a breakdown in negotiations or a failure to agree terms over pay. Otherwise, this would allow employers undue power in negotiations and could be a significant deterrent to employees to raising concerns.

The following highlights some common examples of SOSR in the context of dismissing an employee as well as the other potentially fair reasons for dismissing and employee.

Potentially fair reasons for dismissing an employee

There are five potentially fair reasons for dismissing an employee:

• Conduct.
• Capability.
• Redundancy.
• Breach of a statutory restriction.
• Some other substantial reason (SOSR).

What is some other substantial reason?

Almost any reason that does not fall within the other four potentially fair reasons for dismissal may amount to SOSR, if it is not an insignificant or frivolous reason that justifies the dismissal of an employee carrying out a particular role. This business briefing highlights some common examples of SOSR when dismissing an employee.

Business re-organisation

• If the business is undergoing a restructuring, but is not making any redundancies, SOSR may be relied on as a potentially fair reason for dismissal.
• Business re-organisations often include making changes to employees’ terms and conditions. Dismissing an employee for their refusal to accept the proposed changes (either within the context of a business re-organisation or not) can also amount to SOSR.

Refusal to accept changes to terms and conditions

• An employment contract can only be varied in accordance with its terms or with the parties’ agreement. If an employee refuses to accept a change to their terms and conditions and the business dismisses them for that reason, the reason may constitute SOSR.
• However, these cases are unlikely to be straightforward because an employee is contractually entitled to resist unilateral changes to their terms. In some instances, where the change amounts to a breach of contract, the employee may be able to resign and claim unfair constructive dismissal. 
• For a unilateral change to amount to SOSR, the business must be able to demonstrate that the changes were not imposed arbitrarily but were for a “sound business reason”. There is no need for to prove that the re-organisation was crucial to the survival of the business. However, the business must provide evidence to demonstrate its reasons for the change and show that they were not trivial.
• Where the overwhelming majority of employees accept the change, or where unions have been involved and have accepted the changes, individual employees may struggle to show that their dismissal for refusing to accept the change was unfair.

 

Conflicts of interest

• The business may be able to dismiss an employee for SOSR if the employee is in a situation that creates a potential conflict with the business’s interests.
• The business must be able to provide evidence demonstrating that the employee posed a risk to its interests. The business will need to show that:
• the employee had access to commercial information;
• the employee had close connections with a competitor (or an employee of a competitor); and
• there was a genuine fear that the employee may leak confidential information.
• To rely on SOSR, the business must be able to show that continuing to employ the employee would create a real commercial risk.

Personality clashes

Personality clashes or irreconcilable differences between colleagues can amount to SOSR. However, to do so, the conflict would have to be causing substantial disruption to the business. An employment tribunal will expect a business to take reasonable steps to solve the problem without resorting to dismissal, for example, by:

• Re-deploying one of the workers.
• Changing work patterns.
• Attempting to mediate.

Pressure from third parties

• Where a third party (for example, a customer or supplier) requires an employee’s dismissal, the dismissal can be regarded as fair for SOSR.
• The business should consider the:
• importance of the third party’s business to its own business; and
• seriousness of the third party’s threat to leave.
• For example, if a major client is adamant that it will never contract with the business again unless the business dismisses an employee, this is more likely to be regarded as fair than where a minor client simply requests removal of an employee, but does not threaten cessation of business.

Breakdown in trust and confidence

Businesses sometimes maintain that they must dismiss an employee because of a breakdown in trust and confidence. In some cases, SOSR can be relied on in these circumstances as a potentially fair reason for dismissal.

 

if you would like us to assist you at any time with any such matter please contact Keith Parr, employment partner, on 01772 253841, kgp@bsglaw.co.uk or by post.

UNFAIR DISMISSAL AND THE ACAS CODE OF PRACTICE ON DISCIPLINE AND GRIEVANCE

Employers will welcome an Employment Appeal Tribunal (EAT) decision that provides further guidance on how an employment tribunal will apply the procedural requirements of the Acas Code in unfair dismissal cases. The EAT held that an employer's decision to dismiss was fair following a number of acts of misconduct and a final written warning. This was despite the employer's failure to formally notify the employee of the potential consequences of the disciplinary hearing, or the written warning, in accordance with the Acas Code.

Despite this decision, employers should be aware of the risks connected with non-compliance with the Acas Code, and ensure that they follow the best practice procedures set out in it, to reduce the scope for procedural unfairness claims. It also highlights the importance for employers of having clearly drafted policies and procedures, which can be relied upon in the event that their actions are challenged and if you would like us to assist you with this please contact Keith Parr, employment partner, on 01772 253841, kgp@bsglaw.co.uk or by post.

Set out below are the key issues a business should consider when conducting a disciplinary procedure connected with misconduct or poor performance.

The Acas Code of Practice (Acas Code) was introduced in 2009 to replace the statutory disciplinary procedures. Employers are required to follow the code in disciplinary situations.

Why is it important to follow the Acas Code?

It can avoid a finding of unfair dismissal

The Acas Code was introduced to help businesses and employees deal effectively with issues of alleged misconduct or poor performance. When deciding whether an employee has been unfairly dismissed for misconduct or poor performance, an employment tribunal will consider whether the business has followed a fair procedure, and must take the Acas Code into account when considering whether an employer has reasonably or not.

It can affect the level of compensation

If an employee’s claim is successful, but either the business or the employee has failed to follow the Acas Code, the level of compensation awarded can be affected:

• If the business unreasonably failed to follow the Code, the employment tribunal may increase the employee’s compensation by up to 25%.
• If the employee unreasonably failed to follow the Code, the employment tribunal may reduce their compensation by up to 25%.

How should misconduct or poor performance be handled?

Investigate the issues

• The business must carry out a reasonable investigation of the issue (for example, by conducting an investigatory meeting with the employee under investigation). Any investigatory meeting should not result in disciplinary action without a disciplinary hearing taking place first.
• If paid suspension is necessary during the investigation it should be as brief as possible and kept under review. The business should clarify that this is not in itself a form of disciplinary action.  

Inform the employee of the issues in writing

• If, following the investigation, it is found that there is a case to answer, the business should notify the employee in writing of the alleged misconduct or poor performance and its possible consequences in sufficient detail to enable them to respond at a disciplinary hearing.
• The notification should set out details of the disciplinary hearing, for example, the time and place of the disciplinary hearing.
• The disciplinary hearing should be held without unreasonable delay. However, the business must ensure the employee has reasonable time to prepare their case.
• Any written evidence (for example, witness statements) should be provided to the employee.

There must be a disciplinary meeting or hearing

• The business should not make a decision to dismiss or take other disciplinary action without a disciplinary hearing or meeting taking place first.
• If the employee is persistently unable or unwilling to attend, without good reason, the business is entitled to hold the meeting or hearing in their absence and make a decision on the available evidence.
• Either side should give advance notice of any witnesses they intend to call.
• At the hearing, the :

• business should explain the allegations and go through the evidence;
• employee should be allowed to set out their case and answer the allegations; and
• employee should have a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by the business’ witnesses.

Inform the employee of the decision in writing

After the hearing, the decision should be sent to the employee in writing without unreasonable delay. Written warnings should set out:

• The nature of the misconduct or poor performance.
• The improvement required.
• The timescale for improvement.
• How long the warnings will remain current.
• The consequences of further misconduct (or failure to improve) within that period.
• The employee’s right to appeal the decision and the procedure they need to follow to do so.

The employee has a right of appeal

• If the employee feels the disciplinary action against them is unjust, they should appeal in writing, specifying the grounds of their appeal.
• If they bring a tribunal claim without appealing, any compensation they are awarded may be reduced.

Practical steps for businesses to take to improve their disciplinary procedures

• Involve employees in developing workplace procedures, and make sure those procedures are transparent and accessible to employees.
• Encourage managers to manage conduct and performance issues quickly and informally before they get to a formal disciplinary stage.
• Investigate issues thoroughly. Even if the employee has attended an investigatory interview, always hold a disciplinary hearing once all the evidence is available, and allow the employee to put their side of the story before making any decision.
• Keep written records, including minutes of meetings.
• Communicate decisions effectively and promptly, setting out reasons.

 

 

For further information or help with any employment law related matters please contact Keith Parr Partner BSG Solicitors 10 Chapel Street, Preston, PR1 8AY

Tel: 01772 253841

Fax: 01772 201713

E-mail: kgp@bsglaw.co.uk

Web: http://www.bsglaw.co.uk

Late Payment of Commercial Debts Regulations 2013

 

 

Summary. The Late Payment of Commercial Debts Regulations 2013  came into force on 16 March 2013.

Background. The 2013 Regulations implement the changes set out in the Late Payments Directive  and amend the Late Payments of Commercial Debts (Interest) Act 1998.

Facts. The aim of the 2013 Regulations is to encourage prompt payment of invoices, in particular to protect small suppliers from suffering cash flow problems due to late payment of their invoices.

The 2013 Regulations will apply to the supply of goods and services and impose new time limits to pay invoices in addition to the existing statutory rate of interest for overdue payments set out in the 1998 Act. The amendments made by the 2013 Regulations will only apply to contracts made after 16 March 2013.

The 2013 Regulations introduce new time limits to pay invoices for the following types of contract:

         Business-to-business contracts.

If the contract is silent on the payment term, payment must be made within 30 calendar     days after the latest of the customer receiving the supplier's invoice, receiving the good or services, or verifying or accepting the goods or services. If the contract contains an express payment term, the parties can agree payment up to 60 days from the date of invoice, receipt of goods or services or verification or acceptance of the goods or services. The parties can agree an extension to this limit and go above 60 days as long as this is in writing and not "grossly unfair". The 2013 Regulations define "grossly unfair" as anything that is a gross deviation from good commercial practice and contrary to good faith and fair dealing, taking into account the goods and services in question, and whether the buyer has any objective reason to deviate from the standard 60-day period.

                 Business-to-public authority contracts.

If the contract is silent on the payment term, payment must be made within 30 calendar days after the latest of the   customer receiving the supplier's invoice, receiving the good or services, or verifying or accepting the goods or services. Public authorities must pay more quickly than businesses. If the contract contains an express payment term, public authorities must pay within 30 days from the date of invoice, receipt of goods or services, or verification or acceptance of the goods or services. There is no possibility to extend this period.

The 2013 Regulations do not change the statutory rate of interest that applies to late payments not made within the prescribed payment period. This remains at the current level of 8% over the Bank of England base rate (which is used as the base reference rate fixed on 1 January for the following six months and then on 1 July for the following six months).

Parties may contract out of the statutory interest rate and negotiate their own more commercially acceptable interest rate as long as it provides a substantial remedy for late payment.

The supplier can claim a fixed charge for recovering the debt (£40, £70 or £100 depending on the size of the debt) plus any other reasonable costs of recovery.

 Comment. Clients should review their standard terms and conditions of purchase to see if they include a payment period that exceeds 60 days, as a customer will be required to justify that such a longer term is not grossly unfair to the supplier. Note that any term that completely excludes the right to claim interest will always be considered grossly unfair.

 Contact Keith Parr, Head of the Litigation Department of Blackhurst Swainson Goodier LLP , by telephoning 01772 253841. kgp@bsglaw.co.uk.

Restrictive Covenants in Contracts of Employment

A High Court case underlines the importance of the need for regular review of contractual restrictions to ensure they reflect the current position. The court decided that an employee was entitled to an equity share that had been offered to him on joining, despite the employer's argument that he had forfeited it by acting in breach of post-termination restrictive covenants in his employment contract.

The claimant successfully argued that he was not in breach of his non-compete restriction, because the alleged competitive activities (high-level conference moderation) were outside the scope of the restriction. The court also found that, once the claimant had left, there was no one else in the company who carried out these activities, and so the employee could not be acting "in competition" with his former employer.

The decision is likely to be particularly relevant to small companies, where there is greater scope for individuals to be solely responsible for specific activities.

Contact Keith Parr on 01772 253841 kgp@bsglaw.co.uk

Losing the Right to Light?

 

 

The Law Commission last month began a consultation examining the current law relating to “rights of light”. This is seen as key in establishing a mutually beneficial balance between landowners who currently enjoy such a right and developers keen to build.

 

Quite often a landowner will be unaware of the existence or use of a right to light. Unless specifically referred to in a conveyance, a landowner can acquire a right of light simply by long and continuous use. If a property enjoys the natural light flowing through its windows, a neighbouring landowner may be prevented from interfering with this right, for example where a proposed development would restrict this light. This is regardless and independent of any planning permission conditions.

 

The consultation process intends to look at the link between existing rights to light and the planning process and if the remedies currently available to the Courts require alteration. At present, along with damages, a court may award an injunction against a development if a neighbouring landowner can show this materially affects the right of light they have acquired and enjoyed for a 20 year period. This can obviously cause a developer substantial headaches and case law shows development has been ceased and in some cases demolished where a neighbouring property has successfully proven their right to light.

 

It will therefore be part of the consultation process to look at matters such as preventing the creation of ‘long user’ rights of light, where damages may be more desirable than demolishment and a form of notice procedure whereby those with the benefit of a right to light are forced at an early stage to disclose if they intend to seek an injunction.

 

Clearly, as greater emphasis is placed on development and the desire to remove any obstacles to its path, it will be of particular interest to developers keen for greater certainty on right to light issues. Please be aware that during the consultation process the current law remains unchanged and should you have any queries (either from the landowner or developer perspective), please do not hesitate to contact Alex Walsh al@bsglaw.co.uk (01772 253 841) or Mark Burrow mwb@bsglaw.co.uk (01524 386500) here at BSG.

Caution on Consent

 

 

With conditions on the high street showing little signs of improvement and tenants seeking to maximise their income streams, Landlords and their agents or surveyors should carefully consider their response to any applications for consent.

 

The case of Prudential Assurance v Mount Eden Land may date back to 1997 but its implications are of paramount importance. The tenant, in accordance with the provisions of the lease, asked for consent to alter the premises. The Landlord’s agent replied in a letter setting out terms upon which a licence would be granted. The letter was headed “subject to licence” and in the body of the letter it stated that if the tenant confirmed acceptance of the terms they would arrange for the solicitor to prepare the licence. The tenants went ahead with the alterations without the licence and subsequently the Landlord claimed a breach as the licence was never put in place. The court however held there was a binding agreement. 

 

Many agents and surveyors will therefore bind the Landlord to an alteration, assignment subletting or a change of use merely by expressing initial consent before a solicitor is even involved. This case has been confirmed in subsequent decisions even to the extent that email correspondence from a Landlord’s solicitor agreeing in principle to assignment making it clear that the email did not constitute a Licence nevertheless constituted the licence for these purposes.

 

It is therefore advisable that the Landlords agent or surveyor should not give consent until they (and their clients) are comfortable with the terms of the tenant’s application (be it for assignment, alteration or otherwise). To assist in preventing inadvertently granting consent, solicitors should be involved from the outset and any licence must be made conditional (for example on undertakings as to costs). Surveyors and agents should be wary of expressing any form of consent or acceptance to a tenant’s request in correspondence, even if qualified.

 

Increasingly, leases will be drafted in such a way that applications for Landlord consent will be “subject to a formal licence by deed drawn up by a solicitor” to prevent any ambiguity. The problem arises in part from the fact that most cases simply provide for the Landlords consent to be in writing.  This problem may be overcome in the case of leases granted in future if Leases are drafted, to make it clear that the consent must be given in a deed prepared by the Landlords Solicitor.

 

If you require advice in relation to the issue of consent or a tenant’s application, BSG has a wealth of L&T experience and can provide valuable assistance and guidance. Please contact Alex Walsh awl@bsglaw.co.uk at Preston office 01772 253841 or Mark Burrow mwb@bsglaw.co.uk in Lancaster 01524 386500.

Options to purchase and Conditional Contracts

 

 

We have recently been instructed by a number of vendors following approaches by developers looking to secure sites for residential development. Whilst this is clearly a positive sign of increasing confidence in the market, there are a number of factors to consider when acting on behalf of the landowner.

 

(1)   Is the transaction to be an option agreement or conditional contract? The latter obviously favours the seller in terms of providing greater certainty; the developer is committed to purchasing the property in the event that planning permission is obtained. An option merely provides the purchaser with the right to exercise that option to buy. It is important to bear in mind that the purchaser will want to drive the matter and seek the ability to walk away if the planning permission granted does not match their plans for the site. Negotiating the contract to ensure flexibility and communication between the parties in the event of a potential planning hurdle can benefit both buyer and seller.

(2)   How long is the option or contract to run for? Following exchange the purchaser will usually place a restriction on the landlowners title; be aware of developers merely seeking to ring-fence sites to prevent and preclude competitors. The longer the period granted, the more time a purchaser has to limit the landowners ability to freely deal with the property. Long stop dates should be agreed from the outset.

(3)   In the event that the buyer does not want to proceed with the planning granted, the seller may wish to proceed with another interested party. Therefore, a clause requiring the assignment of any copyright in plans and drawings for the development and for the removal of the title restriction should be included.

(4)   Consider the concerns of the seller; do they want to restrict development on the property (for example in the event they remain in situ on retained land) or solely want to dispose of the whole of the property? Is the deal exclusively for the whole of the property or will the seller consider a sale of part if the developers plans change? Some clients will require a certain amount of guidance in such deals and its therefore helpful to establish their desired outcome from the transaction along with managing their expectations.

Obviously there will be a whole host of other issues which require careful consideration in such transactions ranging from the calculation of the price to section 106 obligations. If you have any specific enquiries or would like to discuss matters in further detail, please contact one of our commercial team. Alex Walsh awl@bsglaw.co.uk in Preston or Mark Burrow mwb@bsglaw.co.uk in Lancaster.

CAVEAT VENDITOR!

Whilst a new version of the Commercial Property Standard Enquires being released is slightly less anticipated than the latest iPhone, the introduction of CPSE 1 (3.2) serves as timely reminder to solicitors, agents and clients alike of the care required in providing accurate responses to enquiries.

 

The concept of ‘caveat emptor’ (let the buyer beware) can be a little misleading and hoodwink sellers into the misapprehension that the burden of risk lies solely with the purchaser. The potential for claims of misrepresentation against both agent and client is highlighted by recent caselaw.

 

In the case of Clinicare, a dry rot enquiry was met with the fairly standard response that, whilst the solicitor was not aware of any, the buyer should rely on its own investigations. The buyer arranged for a survey which revealed the existence of damp and recommended a further survey which the buyer proceeded without. On dry rot subsequently being discovered, the sellers’ solicitor was successfully sued.

 

It was held that knowingly failing to disclose the existence of the dry rot (presumably on client instructions) led to an actionable misrepresentation, Merely advising the purchaser and their solicitor to rely on their own investigations will not simply pass responsibility and, as such, the burden. Similarly, in the residential case of McMeekin, a sellers’ failure to disclose an ongoing neighbour dispute amounted to misrepresentation and an award of £67,000 in damages.

 

It is imperative that sellers (and those acting for them) answer such enquiries with due consideration. In a challenging market, it may be tempting for vendors keen to clinch a deal to be somewhat economical with the truth. However, with sizable sums involved purchasers are more frequently turning to litigation where a problem, not disclosed in the conveyancing process, materially affects enjoyment or use of the property. Sellers are advised to offer more rather than less information to prevent such problems.

 

BSG can offer invaluable advice to agents and vendors in the disclosure required in both commercial and residential matters. If you have a question or query relating to CPSEs or SPIFs, please do not hesitate to contact Alex Walsh at the Preston office on 01772 253841 or email aw@bsglaw.co.uk or Mark Burrow in Lancaster on 01524 386500 or email mwb@bsglaw.co.uk

Quality Conveyancing!

 

 

 

BSG Solicitors secures Law Society's new quality mark

 

BSG Solicitors in Lancaster & Preston has secured membership of the Law Society's Conveyancing Quality Scheme - the mark of excellence for the home buying process.

 

BSG Solicitors underwent rigorous assessment by the Law Society in order to secure CQS status, which marks the firm out as meeting high standards in the residential conveyancing process.

 

Law Society President Lucy Scott-Moncrieff said that the Law Society introduced CQS to promote high standards in the home buying process.

 

"CQS has established itself as the quality mark of the home-buying sector and enables consumers to identify practices that provide a quality residential conveyancing service. With so many different conveyancing service providers out there CQS helps home-buyers and sellers seek out those that can provide a safe and efficient level of service."

 

Tom O’Neill, partner in the property department says: " BSG Solicitors is delighted to have secured CQS status. Buying and selling a home can be a stressful time. Choosing a solicitor to help in that process just got easier. By looking for a CQS firm like BSG the public can seek out a firm that has proved its commitment to quality.

 

“The overall beneficiaries will be clients who use BSG when buying a home. They will receive a reliable, efficient service as recognised by the CQS standard."

 

The scheme requires practices to undergo a strict assessment, compulsory training, self reporting, random audits and annual reviews in order to maintain CQS status. It is open only to members of the Law Society who meet the demanding standards set by the scheme and has the support of the Council of Mortgage Lenders, the Building Societies Association, Legal Ombudsman and the Association of British Insurers.

 

Contact Tom O’Neill ton@bsglaw.co.uk 01524 386500 in Lancaster, and George Mercer gam@bsglaw.co.uk 01772 253841 in Preston.

 

For more information on the Law Society's Conveyancing Quality Scheme visit www.lawsociety.org.uk/cqs

 

Or contact the CQS Unit on 020 7316 5550 or CQS@lawsociety.org.uk

Legal Professional Privilege

Confidentiality and legal professional privilege.

Another good reason why you should choose to instruct a solicitor rather than one of the growing number of non- solicitor “advisors” – your business remains confidential and details of your affairs cannot be demanded from your solicitor except in the most unusual circumstances involving criminality. Other bodies or “advisors” can be compelled to disclose documents and information which would be deemed to be privileged if held by your solicitor. Legal professional privilege exists as a protection to our clients.

Solicitors are both professionally qualified and rigorously regulated to ensure that you will receive the best confidential advice. The relationship between a solicitor or barrister and his or her client is uniquely special and protected.

The Supreme Court ruled recently that legal professional privilege (LPP) applies only to qualified lawyers – solicitors and barristers.

The eagerly awaited decision, by a majority of 5:2, maintains the existing certainty about the scope of LPP. It confirms that ‘there is no doubt that the justification for [LPP] is as valid in the modern world as it was when it was first developed by the courts’.

The Law Society had intervened in the Supreme Court case of Prudential PLC and Prudential (Gibraltar) Ltd v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes).

The Society's chief executive said about the decision: ‘A lawyer’s duties and responsibilities to the client and to the courts are not available on a pick ‘n’ mix basis. The relationship between a solicitor or barrister and his or her client is a precious human right, tested and refined by centuries of common law.

‘Legal professional privilege supports the process of law, speeding the conviction of the guilty and securing the acquittal of the innocent.’

The case originated when Prudential Plc sought to withhold documents about a marketed tax avoidance scheme on the grounds of privilege. The Supreme Court, in agreement with the Court of Appeal, emphasised that extending LPP communications to other professionals, such as accountants, was a matter for parliament, not for the courts.

In the leading judgment Lord Neuberger said privilege should not be extended to communications in connection with advice given by professional people other than lawyers, ‘even where that advice is legal advice which that professional person is qualified to give’.