What is dishonesty?

There has, for a long time, been a debate as to whether, in order to establish dishonesty, one has to show that the perpetrator knew he was being dishonest.

To illustrate; a tourist using public transport from a country in which public transport was free gets on a bus.  If that person got off the bus without paying, would he be dishonest?

The Supreme Court recently considered this issue in the case of Ivey v Genting Casinos [2017] UKSC67. That was a case which involved a professional gambler who was playing baccarat and on leaving the casino, was refused his £7.7 million winnings.  The gambler said that although he accepted he was edge sorting, a technique of identifying minute differences in the design on the back of cards, he did not think that was dishonest. The skill he applied led him to the conclusion that it was him being skilful, rather than cheating.  The Court considered that he genuinely believed this, hence him taking the claim.

The Supreme Court considered both civil and criminal cases on the matter. The Court confirmed that the same test applies to both Courts.  In a thoughtful and ground-breaking decision, the judges clarified the law and set out a two-stage test.

They found that when assessing an individual’s state of mind at the time, one must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. What his actual state of mind was is a matter of fact.  It does not have to be reasonable and in that sense, the test is subjective. The question is whether his belief was genuinely held.

Once there was a finding as to his actual state of mind as to the knowledge or belief as to the facts, the question of whether the person’s conduct was dishonest is to be determined by applying the (objective) standards of the ordinary decent person.

Although there can be exceptions, such as a mistake as to the law as in the earlier example, the previous test set out in the case of R v Ghosh [1982] EWCA Crim2 was over-ruled.  In that case, the person had to be proven to have known what he was doing was dishonest.  Hence a genuinely held belief can be dishonest – he was cheating.

Certified copy: Court pronounces for copy will and defies presumption of revocation

I recently acted for a successful Claimant in a probate claim to prove a copy will with an original codicil endorsed on the back. The original will could not be found. The question for the Court was whether the absence of the original will, which was last known to be in the testator’s possession, led to the presumption that the testator intended to revoke it.

The case is Whitton v Herman HC-2016-2058. It looks at the evidential questions around rebutting the presumption of revocation, and considers an alternative argument that any revocation would be conditional on the making of a new will. It is among a relatively small number of cases on this topic so is a useful illustration of these points in practice.

The testator, Stanley Herman, had made a will in 2003 leaving his residuary estate to a number of charities, the Wallace Collection, an NHS Trust, the State of Israel, and a couple of people including the Claimant. The will had been drafted by will writers. Two years later, Mr Herman made a codicil increasing the Claimant’s share of the residue. The codicil was written by hand on the back of a copy of the 2003 will. On the face of the copy will on the bottom page was written “PTO” in the same ink as the codicil was drafted.

Mr Herman had no living close family. His intestacy beneficiaries were numerous, around 35 distant cousins some of whom lived abroad. There was no evidence that Mr Herman had contact with them. Mr Herman had appointed his friend, Mr Williamson, as one of the executors. He had given custody of the original will to another friend, Mr Samuels, who lived in the same residential block. When Mr Williamson died in 2008, Mr Herman asked for the original will back and it was handed over to him by Mr Samuels. He told Mr Samuels that because Mr Williamson had died, he intended to make a new will.

On Mr Herman’s death, an original will could not be found. His flat was searched by Mr Samuels and Ms Wells, a nurse from the hospital. Mr Samuels died before the hearing, but Ms Wells gave evidence that the flat had been tidy and ordered. She found the copy will with the original codicil in Mr Herman’s bedside table with his bank statements. She described them as looking like his important papers.

The court noted that there was no evidence that Mr Herman had shown any interest in changing the provision in his will and codicil after the death of Mr Williamson.

The Court pronounced for the force and validity of the copy will. The Court found that there was insufficient evidence to upheld the prima facie presumption of revocation.

Important facts weighing against the presumption were Mr Herman’s deliberate storage of the copy will with his important papers. The Court found that he intended to give effect to the copy will by retaining the original codicil with it. The codicil was not capable of standing alone. Had Mr Herman wished to destroy the will, it would have been illogical for him to have retained the original codicil. In all likelihood he would have destroyed the codicil as well if he did not want the will to take effect. In fact, he must have wanted the provisions of the will to take effect to give effect to the codicil, a fact reinforced by his annotation “PTO” to draw attention to the codicil on the reverse of the copy will.

The Court distinguished the case from Re Jones (deceased) [1976] 1 Chancery 200 where the testator had mutilated the will to prevent it taking immediate effect and because he wanted to change the provision. In this case, the court found no evidence that Mr Herman would have wanted to benefit the intestacy beneficiaries. This was due to their lack of contact with him, and the fact that the main beneficiaries of the will included institutions and charities which it was unlikely Mr Herman ceased wishing to benefit in favour of relatives he did not know.

The Court held that if that finding was wrong, there was sufficient evidence to lead to a conclusion that any revocation was to be conditional on the making of a new will. Mr Herman told Mr Samuels that he wanted to make a new will because Mr Williamson had died. The court found that any changes to the will were likely only to have been to replace his executor. It was held that Mr Herman did not intend to revoke one will without having another in place. As no other could be found, that condition was not fulfilled.

Accordingly, the evidence was sufficient to rebut the prima facie presumption and the will was pronounced as valid.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

How to remove a shareholder of a company

Most directors and shareholders are the same persons in SMEs, known as ‘quasi partnerships’.  So what happens to the shares if a director leaves or ceases to play their part in running the business? Can you force a sale of the director’s shares? Here’s a discussion on how to remove a shareholder of a company.

The majority shareholders can remove a director by passing an ordinary resolution (51% majority) after giving special notice. That much is fairly straightforward.  But take care, since if the director is also an employee you will need to terminate their employment. A director who has been dismissed may have a claim for unfair dismissal. The director will continue to own the shares and will continue to be entitled to their share of dividends.

Can you force a sale of the shares?

There is no automatic right for the majority shareholders to force a sale by a minority shareholder.  Conversely, there is no automatic right for a minority shareholder to force the majority to buy their shareholding.

So what are the ways of removing a minority shareholder of a company?

There are several possible ways to remove a shareholder of a company or force a sale of their shares, but care needs to be taken in each case, and a tactical approach is required.

  • Check the articles of association of the company to see if they contain drag-along provisions which would enable the majority of the shareholders to force the minority to sell in the event of a buyout of the company.
  • Consider passing a special resolution (75% majority) to alter the articles to include provisions to force a sale of the shares, say for fair value. However, any alteration should not amount to an oppression of the minority and should not be unjust.
  • Check if there is a shareholders’ agreement which contains a ‘buy-back’ clause which can be invoked if a shareholder leaves the company.  This is sometimes known as a ‘bad leaver’ provision.
  • Consider increasing the remuneration of the remaining directors, and reducing sums paid by way of share dividends. This may not be tax efficient, but may be preferable to paying dividends to a shareholder who no longer participates in the running of the company. But take care, since you should be able to justify this course of action.
  • Once you have assessed your options, you should start negotiations with a view to reaching agreement for the purchase of the shares for fair value. You should first discuss with your accountant carrying out a valuation of the shares. A minority shareholding will often be valued at a figure below what the shares would be worth based on a percentage of the whole. Check to see if the Articles contain a formula for valuing a minority shareholding.
  • Care should be taken to avoid a dispute which could end in costly litigation. A minority shareholder has the right to apply to the court claiming ‘unfair prejudice’. The court will usually order a sale of the leaving shareholder’s shares at a determined value. Company litigation is expensive and the costs would usually be paid for by the individual shareholders. However, the threat of such proceedings can be used to put pressure on the minority shareholder to reach agreement for the sale of their shareholding.
  • The company could consider bringing a claim against the departing director if it can show it has suffered some loss as a result of a breach of his duties as a director. Care should be taken, however, to check that the other directors have not themselves been in breach of their duties.
  • If the majority hold 75% of the shares, then you could consider the nuclear option of winding up the company. If a solvent company is wound up through a members voluntary liquidation (MVL), the company’s assets can be transferred into the name of Newco, which would not issue shares to the minority shareholder in Oldco.

Conclusion – Removing a shareholder of a company

Each case needs to be carefully considered on its merits.  Most shareholders disputes are resolved by having the majority buy out the minority shares for fair value.  A well drafted solicitor’s letter making an offer to purchase the shares on terms which would most likely be awarded by a court (adopting the principles in the leading case of O’Neill v Phillips) will put pressure on the minority shareholder to negotiate sensibly, otherwise they risk incurring substantial legal costs if they fail to do so.

To avoid these situations arising in the first place, companies should put in place suitably drafted articles of association and a shareholders’ agreement.

If you would like to discuss any issues which affect your company, please contact Gil Percival at gap@anthonygold.co.uk or call 020 7940 4000 or any member of our Commercial Department.

How not to deal with a data protection breach – Uber in the news again

As the ongoing saga of the Uber drivers Employment Tribunal bubbles along, the company has been in the news again.  This time, in relation to its data protection policies.

Uber has been required to take urgent action following the revelation that, in 2016, hackers were able to download files from the company’s cloud-based storage accounts.

The files contained personal information about 57 million Uber uses around the world including names, email addresses and mobile phone numbers.  In addition, the names and driver’s license numbers of approximately 600,000 drivers in the US were obtained.

The chief executive of Uber, Dara Khosrowshahi, has assured customers that action is being taken and that he only recently was informed that the breach had taken place.  He indicated that trip location history, credit card numbers, bank account numbers, social security numbers and dates of birth were not in the information downloaded.

So, what steps were taken?  At the time of the incident in October 2016, the company secured the data, shut down unauthorised access, identified the hackers, demanded confirmation that the information obtained was destroyed and implemented new security measures.

The question obviously arose as to why this potentially catastrophic breach was not made public at the time of the hack.  Khosrowshahi merely stated that he ‘had the same question’ therefore the jury is out on that point.  The chief executive has taken the following actions in light of the recent discovery:

  • Engaging an expert to consult on security and procedures
  • Termination of two staff members’ employment
  • Notification to drivers individually whose license numbers were obtained and provision of free credit monitoring and protection against identify theft
  • Notification to regulator
  • Monitoring of affected accounts and provision of additional fraud protection

What does this mean for the UK?  The Information Commissioner’s Office (ICO) deputy commissioner, James Dipple-Johnstone, has advised that the data breach raises huge concerns about the ethics and data protection policies of Uber.  An investigation is to be launched where the ICO will work with the National Cyber Security Centre to ascertain the scale of the breach, how this affects individuals in the UK and what Uber needs to do to comply with its obligations in respect of data protection.  Uber must identify any UK citizens who have been subject to the data breach and take steps to reduce any harm caused.  The ICO has warned that deliberately concealing breaches from regulators and citizens could attract higher fines for companies.

Although the investigation is yet to commence, there is speculation that the timing of Uber’s disclosure in not unrelated to the fact that the new General Data Protection Regulation (GDPR) comes into force on 25 May 2018.  Breach of the GDPR may attract fines of 20 million Euros or 4% of annual worldwide turnover, whichever is the greater.  Currently, the ICO only has the power to issue fines of up to £500,000 and the highest fines to date include a £400,000 fine given to TalkTalk in October 2016 for a breach affecting 156,959 customers.  Uber may well want to get the investigation out of the way before the higher fines are implemented.

All businesses are obliged to have systems in place for the GDPR to ensure compliance with data protection principles.  The starting point is to assess current data security measures, ensure that there is an efficient reporting mechanism and train employees on what to do if there is a breach.  If you would like to discuss the changes that the GDPR shall bring and how this affects your business, please contact Elaine O’Connor on 0207 940 4000 or eoc@anthonygold.co.uk.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

I was promised a share in a property but this was never written down. Is there anything I can do?

There are times when the ownership of property can be different from what it seems.  The legal owner of a property is the person whose name is registered at the Land Registry, but this may not tell the whole story of who owns a property. It is the beneficial ownership that sets out who actually owns the property and in what shares.

There may be formal paperwork setting out who the beneficial owners are (for example, where a property is purchased by one person who holds it on trust for another, under the terms of a clear trust document).  However, this is not always the case.

Co-habitants or family members who are helping each other out with a property purchase, often fail to put into writing the extent of their beneficial interest in a shared home or investment property. This can cause issues if the couple split, or when the property is sold or the legal owner of the property dies.  We are frequently approached by clients who want to realise their share in a property which is in the name of another person.

In such scenarios, there are a number of legal routes that can be taken to try and remedy the situation.

Constructive Trust (common intention between you)

If there is no written agreement then you may be able to argue that there was a “common intention” between you and the other party that you would be entitled to a share in the property. This is known as a constructive trust.

In order to prove this, you would have to prove;

a)That there was a common intention between you and the other party that you would have an interest in the property (this intention can be through something said or written, or inferred through actions);

b)That there has been a change of position on your part and that of the other party (for example contributing to the mortgage or paying for property renovations); and

c)That it would be unfair to prevent you having that share in the property.

 

If this intention is proven then the Court will decide your share based on any established agreement or by deciding what is fair based on all the circumstances of the case.

Proprietary Estoppel (a promise made to you)

If you were promised a share in a property and have relied on this promise then you may be able to make a claim to the Court that this promise should be upheld. This is known as proprietary estoppel.

In order to prove this, you would need to prove;

a)That a promise (or series of promises) was made to you, and the terms of that promise;

b)That it was reasonable for you to rely on the promise or promises that were made to you.

c)That you relied on the promise to your detriment (you normally have to show that you have suffered some kind of financial hardship (like contributing to the mortgage payments) as a result of the promise).

Where this is established the Court has a wide discretion and will usually award you what is considered to be fair to satisfy the promise or promises made.

Claim under the Inheritance (Provision for Family and Dependants) Act 1975

Cohabitants often face a problem when their partner, the legal owner of the property has died, and they do not stand to inherit the property.  If this has happened to you, it can mean that you are threatened with loss of your home at a time when you are already mourning the loss of someone close.  A cohabitant, or child in the same position, is entitled to bring a claim under the 1975 Inheritance Act for reasonable financial provision, which can include the provision of housing.

The Court decides such cases by looking at a variety of factors including your financial resources/needs of the Claimant, any other Claimants and the beneficiaries of the estate; any obligations/responsibilities of the deceased (including promises made to you about what might happen with the property, or what might happen on their death); the size of the estate;  any health needs you may have and any other relevant issues including conduct. The Court will balance these factors to reach a result, which can include the provision of property, or money to buy or rent somewhere else.

If you face any of the issues outlined in this blog and require assistance, Anthony Gold can help. Please contact any member of our Contentious Probate team.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Employment Tribunal fee re-imbursement and case re-instatement scheme launched by Her Majesty’s Courts and Tribunals Service (HMCTS).

Further to my blogs on 8 August, 10 August and 21 August, HMCTS have now announced details of the scheme to reimburse Employment Tribunal (ET) fees and re-instate claims that have been struck out. This is after the ruling by the Supreme Court in the case R (on the application of Unison) v Lord Chancellor on 26 July 2017 that fees for bringing a claim in the ET were unlawful as this prevented access to justice.

Re-imbursement scheme

On 17 August 2017, Her Majesty’s Courts and Tribunals Service (HMCTS), made a statement that it expected details of a scheme to make the refunds to be announced in September 2017 however this did not happen until 16 October 2017.

A representative of HMCTS explained to the Employment Tribunals National User Group that an amount of £32.5 million is due to be refunded. This represents the fees collected since the regime for paying fees was introduced in July 2013 by the fees order (Employment Tribunals and the Employment Tribunal Appeal Tribunal Fees Order 2013, SI 2013/1893). This corresponds to approximately 100,000 claimants.

The scheme required any person believing that they are entitled to a refund to make an application to HMCTS. This also applies to employers who have paid the fee for claimant, if this was ordered by the ET, and Trade Unions who have paid fees on behalf of their members.

A further announcement on 20 October 2017 stated that around 1,000 people shall be contacted individually and given the chance to complete applications before the full scheme is opened in the near future. Trade Unions are also being contacted in relation to large multiple claims.

If you have paid ET fees but have not been invited to take part in this initial stage, there is a pre-registration for the next phase and further information may be obtained from, click here.


Re-instatement scheme

Rule 11 of the Employment Tribunal Rules of Procedure (the ET Rules) related to a claim being rejected if it was not accompanied by the required fee or an application to have the fee reduced or cancelled (remission). Rule 40 dealt with how claims are dismissed for non-payment of fees. Under the Unison case, these rules were therefore quashed.

HMCTS has estimated that there may be around 7,500 claims that did not proceed under these rules. People affected shall receive a letter from HMCTS to ask whether they would like their claim to re-instated and proceed towards trial.

What if a claim was not brought at all due to the requirement to pay a fee?

The scheme announced by HMCTS only covers claims that were already submitted to the ET. Individuals who now wish to bring an historic claim must file it with the ET as soon as possible with a request to extend the time limit on the grounds of the effect of the now unlawful fees order.

If you have been involved in an Employment Tribunal claim, want to apply for a refund, or are thinking of bringing an historic claim and wish to discuss this further, please contact Elaine O’Connor.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Andrew Weir joins the Team London Bridge Board

We are pleased to announce that Andrew Weir a Partner at Anthony Gold has joined the board of the Team London Bridge BID. Anthony Gold have been proud supporters of Team London Bridge since the BID was created in 2006. Having previously been based in New London Bridge House, the staff at Anthony Gold have watched the evolution of the London Bridge area over the years.

Andrew has worked in the SE1 area for over 15 years and will be replacing the firm’s predecessor, Howard Lerman, who has represented TLB for 15 years. Andrew is eminent for his expertise in drafting and negotiating commercial leases for offices and other small businesses premises, acting for developers and undertaking a wide range of property transactions across the BID area, Central London and countrywide.

Andrew joins the TLB Board from October 2017 and is looking forward to getting involved from day one. He says, ‘Team London Bridge is at the heart of the SE1 business community and has a unique position in being able to put the interests of its members first without fear from, or constraint by, political pressure or its own commercial agenda.

I am very pleased to be a part of the Board and look forward to using my commercial and legal experience gained predominantly in SE1 in supporting the important objectives encapsulated in the TLB mission and assisting with maximising the exciting opportunities presenting themselves for the further development of London Bridge businesses in the coming years.’

Andrew looks forward to coordinating with the other ten members of the Team London Bridge Board on a quarterly basis to ensure that they represent the business community and provides support within the community.

Law Commission’s proposals to change rules as to Capacity to make a Will

Amongst many controversial proposals, the Law Commission Report published this summer proposes that the test for whether a testator has the mental capacity to make a Will should be changed.

The current test, indeed the test since 1870, has been that as set out in the case of Banks v Goodfellow. In that case, Chief Justice Cockburn said “it is essential to the exercise of [the power to make a Will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – that no insane delusion shall influence his Will in disposing of his property and bring it about to a disposal of it which, if the mind had not been sound, would not have been made.” (1869 – 1870 LR5 QB549 at 565]

This test remained a rare island of certainty in the ever-changing legal landscape for over 100 years. Then, however came the Mental Capacity Act 2005. It contained what seemed like a different test for capacity. It is this statutory test that the Law Commission proposes should apply to Will writing.

The test is found at sections 1-3 of the Mental Capacity Act 2005. The relevant parts of these sections state:

“1(2)   A person must be assumed to have capacity unless it is established that he lacks capacity …

2(1)     For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain …

3(1)     For the purposes of section 2, a person is unable to make a decision for himself if he is unable:

  1. To understand the information that is relevant to the decision.
  2. To retain that information.
  3. To use or weigh that information as part of the process of making a decision, or
  4. To communicate his decision (whether by talking, using sign language or any other means)”

The Law Commission’s proposal is not a new one. Following the Act coming into force in April 2007, there was much debate as to which test prevailed. The debate seemed to be settled by the courts in the case of Perrins v Holland [2009] EWHC 1954 (Ch).

That case held that the common law rules apply. The case was later approved in 2003 in the case of Bray v Pearce and in 2014 by the case of Walker v Walker (ChD 20/11/2014). In that latter case Mr. Strauss QC set out the three potential differences between the tests and rejected the argument that the Act was just a modern reinstatement of the common law. The three potential differences he identified were:

  1. The burden of proof under the Act is on the person asserting lack of capacity, while under the common law it is on the person propounding the Will (at least initially).
  2. The Act requires that the person understands all the information relevant to making a decision in order to have capacity. This goes beyond what is needed under common law, where it is possible to have capacity to execute a Will even though a person is unable to remember all the relevant information.
  3. The Act also arguably requires that the person has capacity to understand use or weigh information as to the reasonable foreseeable consequences of his choices, whereas the common law does not require such an understanding of collateral consequences.

The Law Commission’s stated objective is to make making a will a lot easier. It is on that basis that they wish to explore making Wills online and generally reducing the formalities around Wills. The Mental Capacity Act 2005 test seems more straightforward and simple. However, in overturning hundreds of years of caselaw dealing with the nuances of a very specific task, they might inadvertently trigger more disputes and more Wills being disallowed. That in turn might lead to less people making wills.

Some also question the merits of the Mental Capacity Act test itself. Although good in many ways, is not without its critics. The Mental Capacity Act in effect defines capacity in terms of a diagnostic threshold and then a functional test. The diagnostic test found at section 2(1) of the Act is in effect is a medical test. This medical model of incapacity was criticised by the Committee on the Rights of Persons with Disabilities in their report of 11 April 2014.

The Committee, whose job it is to oversee the operation of the United Nations convention on the rights of persons with disabilities 2006, which the UK ratified in 2008, said of the UK that there is “a general failure to understand that the human-rights model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making. The Committee was particularly critical of the diagnostic threshold.”

After the publication of the Committee’s general comments, the Ministry of Justice commissioned the Essex Autonomy Project to consider whether the Mental Capacity Act was compliant with the convention. On 22 September 2014 the Essex Autonomy Project published its report, which said that the Mental Capacity Act was not fully compliant. It recommended that section 2(1) be amended to remove the diagnostic element.

My own view, for what it is worth, is that the Law Commission, although working under the laudable objective of encouraging people to make wills, should not abandon hundreds of years of careful legal analysis for a simplified statutory code, which itself may well be criticised or later amended. Furthermore, it is not at all certain that the Mental Capacity Act test would lead to less challenges, indeed it is most likely that it would lead to more.

At Anthony Gold, we are engaging with the Law Commission in consultation. We have prepared a questionnaire which we are circulating to South London lawyers who have an interest in probate and that questionnaire is attached. It has ten questions with three multiple choices which we would hope that you would have the time to complete. If you wish to let us have more comments then of course they would be more than welcome to pass them on to the Law Commission, or discuss them at our next seminar on 15 September.

We would like to invite you to our seminar, please click here for more information.

I hope to see you there.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Employment Tribunal President lifts stay on claims and applications in reliance upon UNISON decision

Further to my blogs on 8 August and 10 August , the President of the Employment Tribunal (ET), Judge Brian Doyle, has made a second case management order for claims and applications brought in light of the Supreme Court’s decision in R(UNISON) V Lord Chancellor. The effect of the second order is to remove the stay that was previously placed on claims and applications. The main terms of the new order are:

  1. The stay on all claims and applications brought to the Employment Tribunal in England and Wales in reliance upon the decision in the Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 (26 July 2017) is lifted with immediate effect.
  2. So far as is necessary, applications for reimbursement of fees, however paid or by whom, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and Her Majesty’s Courts and Tribunals Service shortly.
  3. So far as is necessary, applications for the reinstatement of claims (of whatever kind) rejected or dismissed for non-payment of fees shall be made in in accordance with administrative arrangements to be announced by the Ministry of Justice and Her Majesty’s Courts and Tribunals Service shortly.
  4. All other claims or applications brought to the Employment Tribunal in England and Wales in reliance up-on the decision shall proceed to be considered judicially in accordance with the appropriate legal and procedural principles in the usual way.
  5. Any party or representative wishing to make representations for the further conduct of such claims or applications should do so upon application to the Regional Employment Judge for the relevant Employment Tribunal region.

What this means is that the following applications are still on hold whilst the Government and the Courts some up with a system for dealing with them:

  • Applications for refunds of fees, whether paid by claimants or employers;
  • Applications for the reinstatement of claims rejected or dismissed for non-payment of fees.

All other claims or applications that people want to bring to the ET in England and Wales based on the decision can continue in the usual way.

We shall continue to provide regular updates in relation to this hot topic but if you are in a situation where you think you may be affected by these changes, and wish to discuss this further, please contact Elaine O’Connor.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

How long do I have to enforce an order?

Unfortunately, being awarded an order for money to be paid to you does not guarantee that you are going to get your money.  If the person who is due to pay you does not cough up on time, you may have to seek to enforce the judgment against them. Unfortunately, this means yet another application to the court.

Section 24(1) of the Limitation Act 1980 sets out that after 6 years of a judgment becoming enforceable, no action can be brought based on that judgment.  On first reading this could suggest that the deadline for enforcing an order is 6 years.

However, the 1998 House of Lords case of Lowsley v Forbes held that this time limit does not apply to enforcement of an order.  It confirmed that the relevant section of the Limitation Act 1980 only applied to new actions being made on the basis of that judgment.  Therefore, enforcement proceedings in the same proceedings were not included as they are simply a way of executing a judgment.

Hence you could apply for a charging order using the same Court, using the same case number, but you could not start a new action, such as a bankruptcy petition based on the judgement.

However, this does not mean that you should delay enforcing a judgment that has been made in your favour and you need to watch out for the following:

  1. You can only claim interest on a judgment debt for up to 6 years;
  2. After 6 years, you will have to seek permission from the Court to obtain a writ of execution;
  3. The more time that passes, the harder it may be to find assets to enforce the judgment against; and
  4. The judgment debtor may challenge the enforcement proceedings on the grounds that you delayed enforcement.

Enforcing a money judgment is not always simple. What if the Judgment Debtor has left the country?  What if the Judgment Debtor has declared themselves bankrupt or becomes insolvent?  What if the Judgment Debtor simply has no assets to enforce the judgment against?

It is important to discover the best form of enforcement. The answer as to which way may be not be straight forward and enquiries can take some time. Therefore, if you don’t get paid on time, it is important to start making enquiries and seeking advice as soon as possible.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*