In this issue

Editorial
Data Protection Act:
A New Code of Practice
New Employment Bill
The Landlord and the defaulting Tenant:
the law of distress
Holiday pay for long term sick
Thinking Adjudication?
Don't Forget the Arbitrators
Have you made your will?
Food for Thought
Meade King news

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Editorial

The period since our last newsletter has been a period of development and expansion for the firm.

We have moved into our new premises at 11-12 Queen Square. The offices have been a great success for both the staff and for clients. We are grateful to the substantial number of our friends who have called in to see us and for those of you who have not yet had the opportunity a very warm welcome awaits.

We also enjoyed the great success of receiving Investors in People and Lexcel accreditation. It is unusual to be successful in applying for both quality kite marks together and at the first attempt in both cases.

Finally we continue our expansion by welcoming new recruits to the firm.

I hope you enjoy this edition of The Orchard and wish you all well.

Peter Watkin

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Data Protection Act:
A New Code of Practice

A Code of Practice has been introduced to ensure that Employers comply with the Data Protection Act 1998. It sets out the information employers can hold about employees/potential employees and what they can do with that information once they have it. The individuals protected include job applicants (successful and unsuccessful); employees; agency workers and casual workers.

The Act protects 'personal data' held on any 'relevant filing system' that is 'processed'. In essence any data which can be identified to an individual is personal data. Any method which allows easy extraction of that information is a relevant filing system and anything done to that data, such as obtaining, storing and keeping and making use of, will be regarded as processing. If an individual can be identified by the data being held then it is protected under the Act.

Important points are:

1. If employers are processing sensitive data then they must get explicit consent from the individual to do this. However, this does not apply to processing data if it is necessary to comply with any legal obligations, e.g. complying with the law relating to racial discrimination
2. The individual about whom the data is held can make a 'subject access request' to any organization he/ she believes is holding information
3. Organisations must take care in disclosing personal data to third parties and it will invariably be sensible to obtain the individual's permission first
4. Information should only be held for as long as it is necessary. However, information can be retained for longer if it has to be used for a particular purpose, eg to protect against legal action. Detailed within the Code are benchmarks which give very clear guidelines on what an employer should be doing to comply with the Act.

The Code is available at www.dataprotection.gov.uk/dpr/dpdoc.nsf.

For further information please contact Ben Thomas bt@meadeking.co.uk

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New Employment Bill

The new Employment Bill has almost reached the end of the legislative process. The headline issue is a complete revision of the rules relating to maternity and parental leave. However, there are also significant changes for every employer in the introduction of statutory disciplinary procedures and penalties for employers who do not provide employees with contracts of employment. These points are particularly likely to affect new employees. Because there is likely to be an impact on all employers our employment unit will be sending a detailed briefing note as soon as the bill becomes law.

Richard Holmes rwfh@meadeking.co.uk

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The Landlord and the defaulting Tenant:
the law of distress

The law of distress is much misunderstood. It is a remedy available to a Landlord against a Tenant who fails to pay rent. It is one of the oldest legal remedies of all. It does not involve the use of court proceedings.

Distraint can occur on all goods and chattels on the premises for which the rent is payable.

The distrained items should be impounded. Ideally this should be off the premises, but, if they are not immediately removed, a walking possession agreement can be entered into under which the tenant is allowed to continue using the goods but cannot remove them from the premises.

Originally the distrainer was not allowed to sell the goods distrained so that goods which could not be returned unchanged could not be distrained upon (e.g. fixtures or perishable items such as fresh food). But retaining the goods enabled the Landlord to exert pressure on the tenant to pay the rent.

The Distress for Rent Act 1690 allowed the tenant whose items had been distrained five days to replevy (recover) them. An order for replevy was only made if the Tenant gave security for the rent. Under the Law of Distress Amendment Act 1888, the Landlord must extend this time to not more than 15 days if the Tenant so requests in writing and gives security for any additional costs occasioned by it.

There are certain goods and chattels which are absolutely privileged against distress. These include:

• Crown property
• property belonging to persons enjoying diplomatic privilege
• things in actual use
• fixtures
• clothing and bedding of the tenant and his family up to a value of £150
• tools of the tenant's trade up to a value of £150
• perishable items
• loose money
• wild animals
• livestock and machinery on an agricultural holding which do not belong to the tenant
• books
• goods delivered to a person carrying on a public trade (e.g. car awaiting repair at a garage).

Other goods and chattels are subject to qualified privilege, i.e. they can only be distrained upon if there are insufficient other chattels available. These include:

• beasts of the plough
• sheep
• instruments of husbandry
• tools of the trade above £150

The Law of Distress Amendment Act 1908 further restricted goods against which distraint can take place. It gave protection to:

• goods belonging to a lodger
• goods belonging to any other person who is not a tenant of any part of the premises or enjoying a beneficial interest in a tenancy of any part of them
• goods belonging to any under-tenant of the premises whose rent is for the full value of the sub-tenancy and payable quarterly or more frequently than quarterly unless the sub-tenancy was created in breach of covenant.

However, by the Act certain goods are excluded from this protection. These include:

• property of the spouse of a defaulting tenant
• goods in the reputed ownership of the defaulting tenant with the consent of the true owner
• goods subject to a hire-purchase agreement
• goods belonging to a partner of the defaulting tenant
• goods on premises where a trade or business is being carried on in which the immediate tenant has an interest
• goods on premises being used as an office or warehouse in circumstances where the owner has failed to remove them after notice
• goods belonging to a company of which a director is the immediate tenant.

Any person entitled to protection may serve notice on the Landlord or Bailiff stating his interest in specified goods.

If distress continues in spite of such notice, the Landlord or Bailiff concerned will be guilty of illegal distress, and a Magistrates' Court may order a return of goods unlawfully distrained.

There is no need for the Landlord to make a demand before levying distress.

The consent of the court is needed for distress in the following circumstances:

• where there is a Rent Act protected or statutory tenancy
• where there is a Rent (Agricultural Tenancies) Act 1976 protected occupancy or statutory tenancy
• where the debtor is a serving member of the armed forces.

Access by the Landlord must be peaceable. He can open a door using the latch, but he cannot break in except:

• where the distrainer, having lawfully gained admission, has been forcibly ejected
• where the distrainer leaves the premises and on his return is refused re-admission.

In a compulsory winding up, if a landlord or any other person has distrained on the goods of a company within three months of the making of the order, the claims of preferential creditors become a first charge on the goods distrained or their proceeds. If the person distraining pays all or part of the preferential creditors claims out of the proceeds of sale he is subrogated to their rights and so enjoys preferential status.

Adam Chivers ajc@meadeking.co.uk

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Holiday pay for long term sick

In the case of Kigass Aero Components, the EAT has clarified the entitlement of workers who are long term sick to holiday pay under the Working Time Regulations 1998. The Regulations give every employee a minimum entitlement of 20 working days paid holiday for a full time worker. In this case the worker was sick long term and his right to contractual sick pay and statutory sick pay had expired. The Court however held that he was entitled to receive his full annual holiday entitlement paid at full rates. They noted that this was surprising and might well be unintended by those who drafted the regulations. However, any alteration would have to be made by legislation. The result may well be that workers on long term sick leave will be dismissed earlier than they would previously have been.

Richard Holmes rwfh@meadeking.co.uk

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Thinking Adjudication?
Don't Forget the Arbitrators

The more one reads the construction press, the more adjudication appears. The statutory fast, rough & ready method of resolving disputes in construction contracts certainly captures the headlines.

We are not knocking adjudication, as it has certainly had a major impact on the construction world and has a very valuable and useful role. However, it is not necessarily the panacea for everything.

It has suffered from a degree of misuse with disputing parties saving up all their grievances until the end of a contract, lumping them into an adjudication for resolution and requiring the adjudicator to give his decision (as he must under this procedure) within 28 days.

The growth of adjudication has seen an increase in the number of appointing bodies to which one can turn for a decision-maker. There are the traditional nominating institutions which in the great majority of cases provide decent quality adjudicators. However, there are other organisations which do not consistently provide such good quality.

Adjudication certainly has its downsides. Unless the parties specifically agree prior to the adjudication (or in their referrals and replies) that the adjudicator has the power to award costs, then the adjudicator cannot order one party to pay another's costs. Further, the adjudicator's decision requires a separate set of proceedings to be issued through the courts in order to enforce it.

For wealthy combatants with large value disputes this may not be such an issue - indeed it may be a very useful bargaining tool.

However, for the smaller and medium sized contractors, for whom the costs of dealing with an adjudication may well prove to be a significant percentage of the actual sums in dispute, it is not so attractive.

So: Why not arbitrate?

Most standard form contracts, whether for large works or small works, contain arbitration clauses. If not, put your own clause in.

Things have changed! Arbitration is not the long, drawn out, stodgy and expensive affair that people remember.

There is a new ethos in arbitration and the new breed of arbitrators practising in the world of fast track dispute resolution are used to and now expect to deal with matters in short timescales. There is no reason why, with a pro-active arbitrator, the parties cannot dispense with a dispute within a timescale not too dissimilar to that of adjudication.

There is another advantage to arbitration. Arbitrators are permitted under section 61 of the Arbitration Act 1996 to award costs as between the parties.

Arbitrators are in virtually all cases experienced professionals within their various disciplines, with recognised qualifications. Their nominating bodies are well respected and of long standing. You can to some degree have an input into the choice of arbitrator. They are able to give a final and binding award which with the court's permission can be enforced in the same manner as a judgment.

So if you are a small or medium contractor with a small to medium sized value dispute, see if you have an arbitration clause and think seriously about activating an arbitrator.

For further information, please contact Phil Burbidge pjb@meadeking.co.uk

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Have you made your will?

Did you know that 70% of people don't have a will but that 80% of those without wills think that they should? They are right to think so. By dying without a will there is no guarantee that your estate will pass to whom you want and you could leave your family in a financially vulnerable situation.

Wills Review
What happens to your will if you marry or divorce? Your will is revoked or amended in these circumstances regardless of your wishes. It is therefore important to bear in mind that a will, once made, needs to be reviewed on a regular basis to take into account changes in both your personal life and your financial circumstances.

Enduring Powers of Attorney
Have you considered what would happen should you become mentally or physically incapable of managing your own affairs? It is far better to deal with this whilst you have the mental capacity to decide who should administer your affairs should the situation arise and you should give consideration to the preparation of an Enduring Power of Attorney.

Tax Planning
Is your will tax effective? Tax planning is a complex and changing area of law and you should give consideration to asset protection, the use of trusts and other capital tax planning measures both during your lifetime and after your death by your Personal Representatives.

Long Term Care
Did you know that if you require long term care your house may have to be sold to fund a placement? Giving your house away to your children may also not be effective to protect it from being used to pay fees. We offer advice on all issues arising from the initial case assessment onwards and are happy to offer home visits where appropriate.

If you need assistance in will preparation or in relation to any other issues outlined above, please contact Richard Boulding rjb@meadeking.co.uk or Jackie Martin jam@meadeking.co.uk

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Food for Thought

Outline agreement has now been reached for the organisation of the proposed European Food Authority (EFA).

The stated aim of the EFA will be to provide "a high level of protection of human life and health and consumers interest in relation to food, whilst ensuring the effective functioning of the internal market".

The Authority, which will be concerned with both food and animal feed matters throughout the community will be adopting a precautionary approach to food safety. Fortunately for UK businesses, the food safety requirements are likely to follow the general form of the Food Safety Act 1990, which should help with familiarisation. However, as usual with community law, we can expect that it will be wide ranging and closely concerned with matters of detail.

All food businesses can expect to be affected by the introduction of the EFA and we expect to re-visit this topic in future editions of this newsletter.

Please contact Judith Kelly jhk@meadeking.co.uk or Darren Burleigh djb@meadeking.co.uk if you have any queries or concerns.

We are delighted to introduce Darren Burleigh who is a recent recruit to the regulatory team. Darren is an expert criminal lawyer and he is well placed to advise in all areas of regulatory law, in particular:

• Liquor licensing
• Food law and Trading Standards
• Commercial/haulage road traffic law
• Inland Revenue/Customs investigations
• Statutory interviews
• Directors' liabilities for criminal offences.

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Meade King news

We are delighted to announce the promotion of Catherine Ainley to partnership in the firm. Catherine is a highly experienced commercial property solicitor acting for a range of retail, developer and insolvency practitioner clients. She can be contacted on caa@meadeking.co.uk

The practice continues to expand and we are very pleased to welcome David Daniell as an assistant solicitor in the company/commercial team. David will be working closely with corporate partner James Hawkins in a department which has seen considerable growth over recent years focussing mainly on the needs of owner-managed businesses. James and David can be contacted on jnh@meadeking.co.uk and dpd@meadeking.co.uk.

Further expansion is planned and we expect to announce further new recruits to the firm very shortly. Please visit our website for regular updates.

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