Congratulations to Tom!

The team at Blackhurst Budd would like to congratulate Tom Fielding on qualifying as a Solicitor as of today, March 2nd 2021.

Tom joined Blackhurst Budd in April 2018 after graduating with a Law Degree from UCLan and completing his LPC. He began his Training Contract in September 2019 and deals with residential and commercial transactions at the firm. He has now accepted a role as a Solicitor in the firm’s residential conveyancing department.

Briony Haley, Director and Head of Property commented:

“Wherever possible we always look to promote from within and invest in training for staff at all levels within the firm. Tom has shown the legal acumen and dedication required to excel in his role and I’m delighted he will be staying at Blackhurst Budd.”

The scope and effect of “subject to contract" negotiations

The term “subject to contract” is a well-known phrase in ordinary legal parlance and used daily by parties when seeking to compromise disputes. Still, in the recent case of Joanne Properties Ltd v Moneything Capital Ltd [2020] EWCA Civ 154, the Court of Appeal was required to reassess the scope and effect of this commonly used phrase, and whether or not there can be a legally binding agreement where this qualification has been used during the course of negotiations.

 On the facts of the case, Joanne Properties Ltd (the Appellant) borrowed money from Moneything Capital Ltd (the Respondent), secured by a legal charge over a property in Wandsworth. When the Appellant fell into arrears, it challenged the Respondent’s appointment of LPA receivers on the ground that both the loan agreement and charge had been procured by undue influence. The Appellant then applied to the court to set aside both the agreement and the charge, and claimed injunctive relief against the receivers preventing them from taking any steps to realise the security.

 The parties were able to compromise the injunction application, agreeing that the property should be sold, with an order for distribution of the proceeds of sale. The issue on appeal was whether the parties had reached a further binding contract of compromise about how the ring-fenced sum of £140,000, after repayment of the sale costs and the loan capital, was to be shared between them.

 In allowing the appeal, Lord Justice Lewison provided a useful review of the origins of the “subject to contract” formula and the reasons behind it. Put simply, the effect of these words mean that neither party intends to be legally bound unless and until a formal contract is executed, and that each party therefore reserves the right to withdraw from any proposed agreement until such time as a binding contract is made. This allows the parties to see at once whether there is a contract, or whether they are still in the negotiation stage. The court reminded itself that without this principle there would be a great deal of uncertainty in law in respect of those agreements that have been fully concluded and those that have not.

 The court went on to acknowledge that even where negotiations have begun "subject to contract", the parties may waive this qualification, but only if they both expressly agree that it should be expunged or if such an agreement was to be necessarily implied. The mere fact that parties get close to a contract or are of one mind is not, in itself, sufficient to create a legally binding agreement. There must be either a formal contract in place, or a clear factual basis for inferring that the parties must have intended to waive the qualification. In the case before the court there was neither.

 On its' facts, both the alleged offer and acceptance were each headed "subject to contract”, and the parties also plainly contemplated that a consent order would be needed in order to embody the compromise, just as the earlier settlement agreement had been embodied in a formal signed contract. All that had happened here was that correspondence had been exchanged, and even though there had been an agreement in principal, this was not enough to be enforceable.

 Legal disclaimer

 The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

 Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

Blackhurst Budd Awarded Lexcel Quality Mark Once Again

We are pleased to announce that Blackhurst Budd has once again been successful in retaining the Law Society’s Lexcel Practice Management Standard. Following the review process the Lexcel assessor’s report stated:

“It is clear from this assessment Blackhurst Budd Solicitors continues to maintain a sound Lexcel standard. The partners have continued to invest in IT systems and hardware improvements, and this has enabled the quick and effective establishment of homeworking necessitated by the current crisis.

The management structure of the firm is sound, communications are excellent and people appreciate the openness and support of partners. Standards of client care continue to be excellent, and the firm continues to attract and retain clients.”

Managing Director Warren Spencer said:

“It has been a challenging year for most businesses, so to receive such high praise from the assessor is a great achievement. The Coronavirus pandemic was the first time we have had to rely on our business continuity plans and IT infrastructure for mass remote working. I’m extremely proud of the way our staff approached the situation and were able to continue providing excellent client service.”

Abbreviated hearings within financial remedy proceedings

There is no doubt that the suitable use of an abbreviated procedure to determine the status of an alleged agreement is an extremely useful case management tool available to the courts, provided it is fair and appropriate to short circuit financial remedy proceedings in this way. This is essentially the broad proposition re-affirmed by the High Court in FN v AC [2019] EWHC 3806, subject to the qualification that every case is dependent on its' particular facts.

FN v AC concerned the husband's appeal from a case management order made within the context of financial remedy proceedings in which the husband sought to enforce a compromise agreement reached with the wife. The issue on appeal was whether the judge at first instance had been wrong to deny the husband's application for the wife to show cause as to why an order should not be granted in the terms of the agreement reached.

On the facts, there was no dispute that the parties met on three occasions with their respective solicitors in an attempt to resolve proceedings, in total spanning several hours and concluding in the signing of a document at the end of the third and final meeting. This document set out, in broad terms, the division of assets and what other terms had been agreed between them.

However, when the wife sought to resile from the agreement on the basis that she did not consider herself bound by it, this prompted the husband to issue the show cause application.

In opposing the application, the wife raised the issue of undue influence, with reference to various potential vitiating factors in relation to how the agreement was reached. This included the pressure exerted on her by the circumstances of the meetings, especially in the context of what she said reflected the husband's coercive behaviour towards her during the marriage.

The wife also referenced the overall unfairness of the arrangement, amounting to a substantial departure from equality in a sharing case where, in addition, such capital as she would derive from the agreement would have to be used in part to generate income, unlike her husband.

At first instance, the court refused to direct an abbreviated hearing, finding that there was "no clear substratum of established fact in this case", where even the net effect of the agreement was in itself in dispute. As such, the court would be required to case manage towards a final hearing, at which a detailed analysis of the agreement would form one of the section 25 factors under the Matrimonial Causes Act 1973. The husband appealed to the High Court.

In dismissing the husband's appeal, Theis J acknowledged the comments made by the judge at first instance in the desirability of upholding agreements that had been entered into between the parties. However, as that judge had rightly reminded himself when considering whether to direct a shortened hearing, each situation is fact-specific in relation to the individual case.

Given the factual dispute on the information available to the court as to the circumstances of the meetings that led to the agreement, including whether or not the wife was placed under undue pressure, this could not be determined at a 'show cause' hearing.

Accordingly, it was held that the judge had not been wrong to refuse to deny the husband a hearing of the notice to show cause application. The court also held that there was no authority to support the proposition that the issuing of such an application created some kind of entitlement that the application should be heard unless doing so would serve no purpose.

That said, the High Court echoed the warning provided by the lower court, that dismissing the appeal was not to give the wife false hope. On the facts, the existence of the agreement did not appear to be in dispute, where there were, and could be, valid points on both sides.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

Is a gift always a gift, or does it come with consequences?

When someone dies, a person's property and possessions, otherwise known as their estate, may become subject to inheritance tax (IHT). This is the tax payable on a deceased's estate where the value of that estate exceeds a certain threshold set by the government annually.

By making lifetime gifts to loved ones, it may be possible to reduce the amount of inheritance tax payable on death, in this way maximising how much you can pass on to your friends and family after you die. However, to be effective, where there are no inheritance tax consequences arising from making a gift, it must meet certain strict criteria. 

In broad terms, gifts fall into three categories: exempt transfers, potentially exempt transfers (or PETs), and chargeable lifetime transfers (or CLTs).

An exempt transfer is a gift that can be made at any time during your lifetime, whose value will be entirely ignored for the purposes of inheritance tax, even if you die shortly after making it. For example, this could include the £3,000 annual exemption that can be gifted to loved ones without this being added to the value of your estate. There are also various other low value exempt gifts that you can make without attracting any IHT. 

In contrast, potentially exempt transfers are gifts that will only become fully exempt from inheritance tax if you survive the date you made the gift by a period of 7 years. This is known as the 7-year rule. For a gift made between 3 to 7 years before your death, these will be taxed on a sliding scale known as taper relief. However, for gifts made less than 3 years between the date of the gift and death, these will be taxed at the full applicable IHT rate (currently set at 40% on the value of an estate exceeding the inheritance tax threshold of £325,000).

For those gifts falling within the chargeable lifetime transfer category, this may attract an immediate tax charge, with an additional charge should you then die within 7 years of the gift being made. A gift made into a discretionary trust may be treated as a chargeable transfer, although trusts can still prove to be useful tools as part of your overall tax planning, especially where there are minor beneficiaries.

The rules relating to gifts and the inheritance tax consequences that can flow from this can be complex. Even where something has a loss in value, it can be treated as a gift. For example, if you sold your house to an adult child for less than it is worth, the difference in value will count as a gift. There are also a number of other potential tax traps, or financial catches, that can arise when making a gift during your lifetime, including the following:

• reservation of benefit: where you gift an asset but continue to derive a benefit from it, like giving away your house but continuing to live there, you may be treated as still owning it for inheritance tax purposes, even if the gift was made more than 7 years before your death;

• deprivation of assets: where you gift an asset but subsequently require nursing care, you may be treated as still owning that asset for the purpose of the financial assessment undertaken by the local authority to determine your contribution to the cost of your care;

• capital gains tax liability: where you gift certain assets, such as shares or a second home, this may be treated as a disposal for capital gains tax purposes, where you may be liable to an immediate charge to tax if the asset's value has increased since it was acquired. 

It is important to always seek specialist legal advice when gifting money or giving away assets during your lifetime for the purposes of avoiding inheritance tax after you die. This can require careful estate planning and expert knowledge of the law.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.

Vacancy Legal Assistant - Commercial Department

Primary responsibilities

To provide a high level of secretarial and administrative support to the Commercial Department.

 Main duties

• Preparation of legal correspondence and documents using digital dictation.

• File management. Ensuring that all files are up to date, including file opening, archiving and structure of paper files.

• Liaising with internal staff and external clients to arrange meetings and appointments.

• Undertaking all associated administrative tasks including diary management, legal billing.

• Any other duties commensurate with the job role as reasonably requested by your supervisor.

Department specific duties

• General understanding of Commercial practice and procedures.

• Carrying out searches.

• Dealing with pre-contract enquiries.

• Preparing contract documents.

• Exchanging contracts when required.

• Filing SDLT returns.

• Preparing completion statements and files for completion.

• Completing sales, purchases and re-mortgages.

• Registration of title at HM Land Registry.

• Assisting with the monitoring of compliance procedures within the Department.

Compliance

• You will be expected to be familiar and compliant with the full range of regulatory policies and procedures including: equality and diversity, data protection and confidentiality/security, anti-bribery and anti-money laundering etc.

• You will also be required to undertake mandatory compliance training as required.

Experience & Technical Skills

• Previous experience of working within a similar role is essential – the role will be predominantly dealing with Commercial matters but Residential Conveyancing knowledge is also required.

• Previous experience of a case management system.

• Previous experience of using digital dictation.

• Thorough knowledge of Microsoft Office – Outlook/Word/Excel/PowerPoint.

Personal Skills

• A team player, able to work on own initiative but as part of the team when appropriate.

• Must be well organised and methodical with excellent attention to detail and prioritisation skills.

• Will be able to prioritise a heavy typing workload whilst delivering a high level of administrative support.

• Effective communicator with the ability to problem solve, directing enquiries where appropriate.

• Confidential and discreet but able to re-direct information when appropriate to ensure areas of concern are resolved efficiently and effectively.

• Reliable and hardworking.

• Positive, helpful and enthusiastic.

• A proactive, professional and flexible approach to work, conscientious, takes personal responsibility for own work and is accountable for its delivery and quality.

• Commitment to continuous improvement of the practice.

Please note that this job description is not an exhaustive list of duties but merely an outline of some of the key components of the role. You may be required by your supervisor to take on additional responsibilities when requested.

To apply please email your CV and covering letter to acm@blackhurstbudd.co.uk

Vacancy: Legal Typist / Assistant - Residential Conveyancing Department

Primary responsibilities

To provide typing support to the Conveyancing Department.

Main duties

• Preparation of legal correspondence and documents using digital dictation.

Compliance

• You will be expected to be familiar and compliant with the full range of regulatory policies and procedures including: equality and diversity, data protection and confidentiality/security, anti-bribery and anti-money laundering etc.

• You will also be required to undertake mandatory compliance training as required.

Technical Skills

• Previous experience of a case management system.

• Previous experience of using digital dictation.

• Thorough knowledge of Microsoft Office – Outlook/Word/Excel/PowerPoint.

Personal Skills

• A team player, able to work on own initiative but as part of the team when appropriate.

• Must be well organised and methodical with excellent attention to detail and prioritisation skills.

• Will be able to prioritise a heavy typing workload whilst delivering a high level of administrative support.

• Effective communicator with the ability to problem solve, directing enquiries where appropriate.

• Confidential and discreet but able to re-direct information when appropriate to ensure areas of concern are resolved efficiently and effectively.

• Reliable and hardworking.

• Positive, helpful and enthusiastic.

• A proactive, professional and flexible approach to work, conscientious, takes personal responsibility for own work and is accountable for its delivery and quality.

• Commitment to continuous improvement of the practice.

Please note that this job description is not an exhaustive list of duties but merely an outline of some of the key components of the role. You may be required by your supervisor to take on additional responsibilities when requested.

To apply please send your CV and covering letter to acm@blackhurstbudd.co.uk

The pandemic break-up boom: how divorce rates are on the rise

The emotional and socio-economic stresses arising from the COVID-19 pandemic, especially with the disruption to daily routines, loss of face-to-face contact with friends and family, as well as the removal of external leisure activities, have led to many couples reassessing their domestic arrangements and deciding to go their separate ways. This, in turn, has recently led to a significant rise in divorce rates, both in the UK and globally.

With couples being forced to spend more time together due to lockdown and social distancing measures, this has magnified any differences and thereby acted as a catalyst for the failure of those relationships already on the brink of a break-up. Even for couples in previously healthy relationships, the pandemic has taken away the comfort and stability of well-established work and leisure routines, with limited opportunities to seek other forms of support, stimulation or release beyond their own partnership or immediate family unit.

That said, this is not a new phenomenon, where separations typically spike after families spend longer periods of time together, such as during the school holidays. However, lockdown has created enormous additional pressures, like the need for home-schooling and an increase in domestic workloads, not to mention the loss of employment or reduction in income from being furloughed. With these extra everyday and potentially long-term stresses, inevitably comes an increase in mental health issues, including anxiety and depression, and in some cases, an even greater incidence of domestic abuse, both physically and emotionally.

For many couples, where both individuals have felt unable to cope with their own personal problems, let alone what is going on between them and their partner, this has put a significant strain on their relationship, ultimately leading to permanent separation or divorce. For newly weds in particular, the stripped-back lifestyle and economic downturn created by the pandemic is also likely to represent the first major life challenge for a young married couple, where their relationship has not been previously tested. This will be a far cry from the wedded bliss they envisaged, and for many has signified a premature end to married life.

If you add into the equation the uncertainty as to when couples will be able to resume their pre-pandemic lifestyles, even with the promise of vaccines being quickly rolled out, there may be an even greater increase in divorce rates over the coming months. Indeed, the impact of the pandemic is likely to have long-term financial implications for many marriages. It is also possible that even an upturn in economic fortunes could result in a new wave of break-ups, where couples whose marriage has already suffered irreparable damage may be delaying getting divorced for practical and logistical reasons during the current tiered restrictions.

Given the enormity of the personal consequences caused by the pandemic, not least emotionally and psychologically, many couples are likely to have spent some considerable time scrutinising their lifestyle and relationship choices - from how they want to spend their time to whom they actually want or need in their lives. As such, as with the epidemic itself, the pandemic break-up boom may be far from over.

For advice on divorce or family matters please call 01253 629300 or email info@blackhurstbudd.co.uk

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Rules on Moving Home During Lockdown 3

• You can still move home. People outside your household or support bubble should not help with moving house unless absolutely necessary.

• Estate and letting agents and removals firms can continue to work. If you are looking to move, you can go to property viewings.

• Follow the national guidance on moving home safely, which includes advice on social distancing, letting fresh air in, and wearing a face covering.

For a no obligation conveyancing quote please call 01253 629300.

The ‘Do Not Resuscitate’ decision - who makes this?

With the recent pandemic, and the significant media coverage relating to coronavirus deaths, many of us have become more concerned about our future care, and that of our loved ones, especially if a difficult decision had to be made as to whether or not to resuscitate.

Understanding how the law works in relation to a ‘Do Not Resuscitate’ decision can help to provide us with some much needed peace of mind, and even allow us to make suitable provision in advance to ensure that, if the time came, our dying wishes would be honoured.

What is a ‘Do Not Resuscitate’ order?

A ‘Do Not Resuscitate’ order is an order not to attempt cardiopulmonary resuscitation, more commonly known as CPR. This is an emergency life-saving procedure, typically combining rescue breaths, chest compressions and even electric shocks, that can be carried out when someone has ceased breathing and their heart has stopped beating.

However, when someone’s breathing and heart stops because they are dying from an advanced and irreversible condition, vigorous physical intervention by way of CPR can actually deprive them and those close to them of a dignified death. For some patients this may prolong the process of dying and, in doing so, prolong or increase their suffering.  

As such, a ‘Do Not Attempt CPR’ (DNACPR) decision can be made and recorded in advance, to guide those present if a person subsequently suffers a cardiac arrest. 

Who makes a ‘Do Not Resuscitate' decision?

While you still have mental capacity as a patient, you can accept or refuse life-sustaining treatment in a number of different scenarios. For example, you might decide that you don’t want to be given antibiotics for a life-threatening infection if you’re suffering from terminal cancer.

It’s only when a patient loses mental capacity that decisions relating to medical treatment become more difficult. This means that if you lose the ability to make your own decisions, for example, you are unconscious or otherwise too poorly to participate in any discussion, unless you have clearly set out your wishes in advance, the decision as to whether or not to resuscitate will need to be made by the leading physician in charge of your care. 

In these circumstances, although advice will usually be sought from your next of kin as to what’s in your best interests, the final decision will ultimately lie with the healthcare professionals.

Can a ‘Do Not Resuscitate’ decision be made by family?

Your family cannot refuse life-sustaining treatment on your behalf, not unless you have specifically granted them this power by way of a Lasting Power of Attorney (LPA).

An LPA allows you to appoint an attorney, providing them with the power to make decisions about your health and welfare should you lose the capacity to make these decisions for yourself. It is up to you who you appoint, for example, a relative or close family friend. You can also appoint more than one person, where decisions about your daily care routine can be decided by one attorney, and the bigger decisions about life-sustaining treatment made jointly.

You can record your wishes while you are mentally well, so that any attorney acting on your behalf has some guidance on what decisions you would like to be made. You can also make an ‘Advance Decision to Refuse Treatment’ (ADRT), or a Living Will, in clearly defined circumstances. This will let your family, carers and health professionals know your wishes about refusing treatment if you're unable to make or communicate those decisions yourself.

This will be a legally binding decision that cannot usually be overridden by either your family or your physician.

For personal advice please call 01253 629300 or email info@blackhurstbudd.co.uk.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.