Understand Your Rights. Solve Your Legal Problems
She reveals more on legislation developers should be aware about, growing environmental concerns which affect planning and regulations which need to be updated.
What are important parts of EU legislation that property developers/developers should be well versed on?
From my perspective there are three areas of legislation: The National Planning Policy Framework as revised in 2018; UK legislation implementing the Habitats Directive; and, legislation related to Environmental Impact Assessment (EIA). While the UK will soon leave the EU, the EU driven legislation is unlikely to change, especially as we are signatories to the Bern Convention, which pre-dates but is similar to the Habitats Regulations in its intent.
The main risk is not prosecution, but the slowing down or failure to progress a planning application.
The requirement for EIA is well-established in UK law and is unlikely to change. There is a lot of confusion regarding EIA: only a small number of projects require it. I have quite a few clients who think it is useful to voluntarily submit an EIA, but my advice is to always avoid this, if possible, using the process whereby a project can be formally screened out of the requirement. Except for its use as a process (evaluating fully the environmental ramifications before freezing the design), EIAs are costly, time-consuming and slow down planning approval. They do not substitute for planning obligations, and indeed do not carry the weight that planning obligations do.
A seller’s pack should include up to date survey information that must be produced to best practice standards and to have been undertaken by competent ecologists.
If they are not well versed on such legislation or regulations, what legal sanctions can they potentially face?
The main risk is not prosecution, but the slowing down or failure to progress a planning application. Applications for development move through the system very slowly. If the requirements of the Habitats regulations are not met, then a planning application may not even be registered, never mind approved. What clients often do not realise is that the competent authority has a duty to consider the effect of development on species afforded special protection. If the information on species, usually presence and population size, is not provided with the application, it will be refused due to the risk to the local planning authority. The LPA will not stick its neck out; it wants the data and all of the legislative boxes ticked.
It is unlikely that a client would get to the point to where they could be fined or sanctioned. It is far more likely that they fail to get planning permission. Maximum environmental fines are not large, especially in relation to the lost opportunity cost of development not getting approved. The costly environmental fines are in breeches to various Environment Act Regulations, but these usually apply to industries, not to developers.
Prospective purchasers should check ecological constraints prior to purchasing; can you share what they should be looking out for?
A seller’s pack should include up to date survey information that must be produced to best practice standards and to have been undertaken by competent ecologists. The purchaser should read these carefully, particularly in relation to findings, recommendations for further survey, and any reference to licensing. If ecological constraints are present, these do not preclude development, but may have cost and timing implications.
Most ecological constraints are not particularly onerous and can be worked around. The need to take into account the protection of bats is probably the most common issue and can create some design challenges if refurbishing a building where bats are found. I also find that the presence of high-quality trees can be quite a constraint and am working on a project now where the designers will need to be innovative on foundation construction. My understanding in that case is that the initial purchase site survey by the buyer did not take note of a significant tree line on the boundary of the site. Obvious site constraints always need to be considered.
There has been some movement in the Agencies to update European Protected Species Licensing, but they have a long way to go.
With ever-growing environmental concerns, can you share ways in which businesses can be more proactive in ensuring their new construction venture is as environmentally friendly as possible? Building Regulations incorporated in 2013 the key elements of Code for Sustainable Homes, so it is not difficult for business to meet sustainability targets simply by complying with regulations. The NPPF also incorporates a range of ways that any permitted development is likely to be environmentally friendly. I would always recommend that a client go the extra distance to identify areas where environmental enhancements can be incorporated, and I would also encourage partnership working with local wildlife groups, to help support local targets in terms of protecting and enhancing wildlife and habitats. Green space within and around development is vital, and involving new residents or users of a development can increase community cohesiveness and also improve sell-on prices for residents. The “value-added” created by Green Infrastructure is now well-documented and developers should look for opportunities to maximise this. Value is not only created by maximising floor space.
Moreover, are there any regulations that you think need updating?
There has been some movement in the Agencies to update European Protected Species Licensing, but they have a long way to go. Once we leave the EU, then the validity of the Habitats Regulations as they stand may be challenged. The licensing system used in the UK to meet the requirements of the Habitats Directive was a very awkward and legalistic “fix”, which cries out for improvement. A system which nationalizes the protection of species and habitats, rather than dumping it on developers on a site by site, un-strategic basis, would be a far better way to resolve the very real issue of habitat fragmentation and species population decline. However, until Brexit is resolved, there is little government energy being directed towards regulatory review.
Jaquelin Clay
Director
Tel: 0845 2263618
Email: jackie@jfa.co.uk
Web: www.jfa.co.uk
We have gotten in touch with expert Dr. Zeynep Çakmak, who shares all you need to know when corporations dedicated to the energy sector decide to merge or acquire another company.
When do you think energy companies are suitable/ ready to merge with another?
Mergers of energy companies take place not only when the energy sector is high and very profitable, but also at distressed times. Adverse market conditions usually encourage or create opportunities for mergers and acquisitions. We have seen major local merging with international players to take a bigger share in the energy sector by combining their forces when the trade is strong. We also see mergers and acquisitions to consolidate strengths and also to purchase companies who suffer from distressed sector conditions at advantageous purchase prices. In distressed times, there are usually more opportunities to buy projects at development or early operation stages, usually by acquiring the shares of the project company.
Anti-trust rules set out in the energy market regulations must be taken into consideration, as well as general competition law regulations governing mergers and acquisitions.
What checks must be performed beforehand, to ensure the merge concludes well, for both your client and the other party involved?
The most important check is always the assessment on the feasibility of the merger project, but it is not always easy, as it is very much dependent on market conditions. Therefore, the market conditions both from a local and international perspective are critical and need to be carefully studied, particularly from the perspective of regulatory risks and future projections. Lastly, the legal and financial due diligence on the company and the business to be acquired or merged, must be made by professionals who have the knowledge in the energy sector, respective markets and assets or projects. Without knowing the specifics and dynamics of the respective markets and assets or projects, it is not possible to make a meaningful analysis on the risks of the business.
Are there any unique challenges which are presented via antitrust or competition laws during a big merger in the energy sector? How do companies work around this?
Anti-trust rules set out in the energy market regulations must be taken into consideration, as well as general competition law regulations governing mergers and acquisitions. In addition to the general competition law requirements, there are certain integration, market share and transfer restrictions unique to the energy markets to take into account both from the point of structural and operational considerations. Those restrictions are critical issues to manage during a merger or acquisition and thereafter. For instance, sometimes where the subject matter asset is subject to an integration, market share or transfer restriction, a prior de-merger or restructuring may be agreed and implemented as a precondition to the concerned merger.
After the merger is complete, what do you recommend each party does to ensure things continue to run smoothly?
The continuation of the flawless management of the merged or acquired companies is critical. Changes in the management teams is a common practice after the merger is completed but I have seen that rushed changes in the key managers and personnel do harm rather than good to the overall performance of the companies. The change, if inevitable, must be made overtime and with utmost consideration taking into account the value of the people bringing to the business.
Zeynep Cakmak is the Co-Managing Partner of Çakmak Avukatlık Ortaklığı. She has been practicing law for 28 years, concentrating on development, financing and operational matters of infrastructure projects with a particular focus to energy law and administrative law. She has represented several local and multi-national sponsors and banks in many projects, financings, M&A deals and disputes relating to such deals during her practice.
Can you give a quick insight into plastic surgery?
The discipline of plastic surgery has two arms -
Microsurgery is a technique by which very small blood vessels tendon and nerves using magnifiers, small instruments needles and sutures. It permits the transplantation of amputated limbs and even damaged faces harvested from patients who have signed organ donation documents.
Many birth deformities require repair such as cleft lip, deformed skull, absent or deformed ears, webbed fingers. It includes excision of skin, breast and oral cancer and repairing the defect. Anecdotally our domain is the "skin and its contents".
Can you share common occurrences in your profession?
Medical malpractice is rare from board certified plastic surgeons. Most cases come from rogue and pseudo doctors who practice cosmetic surgery with little or no competence except collecting the cash.
As an expert witness, catering to the jury is rewarding. Humour in an appropriate situation can be effective. As an example, I was instructed on a case regarding workman's compensation, with the complaint being a loss of strength. I had tested him and found him normal for a blue-collar worker. When his lawyer asked how strong he was I responded, "well he is stronger than me", even the worker laughed.
Insurance: when does it cover surgery costs and when does it not? Does this in any way affect legal cases and the medical industry in general?
Straight cosmetic surgery is not covered by the major carriers. However, in the last few years a company called "cosmedisure” has provided insurance for these patients. The major insurance companies cover reconstruction, but some disorders place pressure on the company. The most common ones being the reduction of large and heavy breasts which are uncomfortable and contribute towards backache. As well as large weight loss in men and women whose excess skin becomes a hygiene problem and requires removal. Indigent patients are cared for in county hospitals and are treated by residents and salaried professors. The indigent patients with legitimate cause would still have access to legal assistance.
How has reconstructive surgery progressed over your years of practice?
The changes in reconstructive surgery over the years have advanced with research, especially the growing understanding of cancer, and methods to replace the defects left from the surgical removal and the availability of materials which are tolerated by tour bodies - mostly silicone, in many forms. Breast implants, finger joint replacement and ear reconstruction, are examples. Titanium is used as internal splints for fracture stabilization, as well as the development of special instruments, fine needles and suture materials required for microsurgery.
Dr. Garry Brody is a plastic surgeon in Los Angeles, California. He received his medical degree from University of Alberta Faculty of Medicine and has been in practice for more than 20 years.
But sometimes, issues and concerns may arise with this process, thus leading parties to question the will at hand. We speak with Alison Meek on what happens when a will is contested.
Contesting a will: when should people begin thinking about approaching a lawyer?
It is difficult to challenge a formally correctly executed will. In the absence of cogent medical evidence to show a testator did not have testamentary capacity at the time when the will was executed, it is a difficult and expensive claim to bring where you will be at risk as to costs.
If you have an elderly relative in the family from whom you expect to inherit and you are concerned as to whether they might, in their frailty, be “persuaded” to change their will, I would advise a client to secure advice before the testator dies. Contemporaneously produced evidence and a chronology of events recorded before a testator dies are likely to be more compelling to a court than poorly remembered evidence recalled some time after the execution of the will.
I would also advise “expectant beneficiaries” to be suspicious and remain vigilant. Elderly relatives can be driven off to solicitors; a changed will can be the work of an afternoon and lead to a lifetime of disappointed expectations.
Finally, my non-legal advice is to “be nice to the old folk”.
It is very difficult to establish that a will was produced by undue influence.
What are the initial steps when clients first present their case towards contesting a will?
It is essential to obtain relevant testamentary documents, i.e. wills/draft wills and evidence as to the circumstances surrounding the preparation of the will. Where a lawyer is involved in preparing the disputed will, a Larke v Nugus request can be made, asking for documents and information about the circumstances in which the will was made. The Law Society Practice Note to practitioners should be consulted.
If there are concerns about the testator’s capacity at the time the will was made, copies of their medical records should be obtained from their GP, as set out by the Access to Health Records Act 1990.
A caveat can be entered in the probate registry to provide notice if an application is made for a grant of representation.
What are the signs for contesting a will on the grounds that it was produced via undue influence?
It is very difficult to establish that a will was produced by undue influence. The onus is on the person alleging it to show that there was “actual coercion” (Hall v Hall (1868)). The coercion must be such that it overpowers the testator’s own wishes. The threshold for establishing actual coercion is so high that it is rarely if ever pleaded. It is in effect an allegation of fraud. It is unusual (and unlikely) for there to be direct evidence of undue influence. An alternative plea of “lack of knowledge and approval” is more frequently run if appropriate; that plea requires the person who is seeking to prove the will to establish that it was executed with knowledge and approval of its contents.
What options do clients have if they believe a will is insufficient to meet their needs?
Under the Inheritance (Provision for Family and Dependants) Act 1975, a relatively narrow class of relatives and dependants are entitled to bring a claim for reasonable financial provision if a will (or intestacy) fails to make reasonable provision for them.
Spouses / civil partners may claim as much as is reasonable in all the circumstances, regardless of whether it is required for their maintenance i.e. capital provision. All other claimants are limited to maintenance provision i.e. income.
Can you conclude the common outcomes available for a client, post their wills dispute?
The vast majority of cases settle before trial because of the uncertain nature of the outcome at trial and the very significant legal costs of a trial with witness evidence. Mediation is also increasingly popular and often successful.
Jana Weltzin gives insight into the controversial, yet ever prevalent topic: the legality of cannabis. With its neighbouring sister Canada legalising cannabis, Jana touches on the various states in the US to which cannabis is legal, and how the cannabis industry presents unique challenges to business owners in this field, and the advantages of investing in this sector.
"When Alaska legalized recreational cannabis in 2014, I felt the call to return home. I was actually born and raised in Fairbanks, Alaska, but I started my law practice in Phoenix, Arizona representing medical marijuana non-profit corporations and related marijuana businesses. I decided to leave my previous firm to venture out and start my own firm when my home state of Alaska legalized the recreational use and sale of marijuana and marijuana products. My firm, JDW Counsel, quickly grew and now represents over 100 marijuana businesses across the United States of America in one of the most uncharted and highly regulated industries we have seen in our lifetime.
"As soon as legalization was on the horizon in Alaska, I started to prepare myself to become my own business owner - I figured if I was going to help new start-ups in a highly regulated and highly controversial market, I was going to need to know how to navigate the start-up world first hand, to provide real value to my client base; I was honoured to be chosen by them to guide them to start up success."
Using social media, like most businesses these days, to communicate with one’s customers, is a challenge in itself.
In what ways is the marijuana sector similar to any other business? Alternatively, in what ways is this industry different?
In Alaska, we only have recreational marijuana commercialized, not medical, unfortunately. Operating in the legalized marijuana sector has many similarities to running any other business; you have employees, HR issues, PR issues, marketing and market share challenges, competition challenges, and the list goes on.
But, operating in the marijuana sector is vastly more challenging and complex than most industries. The regulations that govern these businesses are ever evolving, placing one regulatory hurdle and challenge on these new business owners after another. Using social media, like most businesses these days, to communicate with one’s customers, is a challenge in itself. Balancing the shut down of marijuana companies’ social media accounts (resulting in starting from ground zero on followers) to ensuring you’re complying with advertising regulations that are vague and unevenly enforced is a constant battle. Coupled with the negative impact of 280E (an Internal Revenue Code provision that disallows regular business expenses, except for the costs of the goods sold from being deducted if you’re operating a marijuana business), lack of banking access, and the constant struggle with cash management, operating a marijuana business has an extraordinary level of added stress and expense that most starts-up are spared from. Despite the surmounting challenges (not to mention the looming fear of federal enforcement), marijuana start-ups are surprisingly resilient, surviving, and in many cases, actually thriving.
What are the important regulatory requirements needed for business people to establish their own recreational cannabis company?
That is a huge question that cannot be summed up in a few sentences, simply because there are so many regulatory requirements, and the requirements change state to state and even city/county to city/counties in the same state. If you’re seriously interested in getting in the business and doing it successfully, you need to hire a lawyer in your area that has been making it their business to follow and participate in the regulation drafting process, the zoning and local ordinances, and knows business law. Without a lawyer who has worked to obtain the knowledge above, you will be starting your new venture on very shaky grounds.
There are many regulatory barriers that you have to meet and exceed before the marijuana control board will allow you to be an owner of the marijuana business.
Once established, how can companies progress well in this industry?
Branding. You need to establish solid branding and start engaging in licensing agreements with other companies in other states. Once marijuana legalization goes federally legal, all of the micro marijuana businesses that have sprung up due to state by state legalization, are going to be in a precarious position: these micro business need to be either relevant enough to be bought out by the big dogs that will come into the marijuana sector once its federally legal, or strong enough to sustain its business viability in an interstate cannabis market.
Another important self-preservation step cannabis businesses should be taking, is making it clear to their local and federal lawmakers that when federal legalization occurs, there will be some protection for the existing cannabis businesses that have sprung up via the unique opportunity state by state legalization has provided for this sector.
If done correctly, what are the advantages of investing in the cannabis industry?
There are many pros and cons in investing in the marijuana industry; for a state program, like Alaska, there are many regulatory barriers that you have to meet and exceed before the marijuana control board will allow you to be an owner of the marijuana business.
A long story short: you need a lawyer who is competent in marijuana business law, it’s such a unique legal framework that it is so easy to mess up and cause massive unrepairable damage.
Currently, the marijuana market is largely undervalued, as the threat of federal criminal charges is a large discount factor on a marijuana businesses’ valuation: meaning that you can get in for less and get more bang for your buck. Other good (and safer) investments hinge on the “picks and shovels” of the industry, HVAC, engineering, lights, nutrients, etc. Recently, we have seen an uptick in Canadian based marijuana companies stock values, those businesses are new, and time will tell if they will succeed, but for an investor that is looking for a step away from the normal ebb and flow of typical stocks, these have been gaining momentum and venture capitalist interest. However, there is a ton of snake oil out there, many con artists and tons of folks that overstate the stage of their business, in hopes of gaining investors to move forward. A lot of folks have lost a lot of money by investing in companies that have not been fully vetted. Due diligence is essential to not losing all in this business.
Are there any legislations or regulations difficult for your clients to get around? How should they work around such hurdles?
Too many to count! A long story short: you need a lawyer who is competent in marijuana business law, it’s such a unique legal framework that it is so easy to mess up and cause massive unrepairable damage; an experienced lawyer is essential to guide you through this budding industry.
Though still a young firm, JDW Counsel has managed to be one of the top legal leaders in the marijuana industry nationwide – the firm assists companies in OR, AZ, AK, and WA. Jana Weltzin has been named one of the top 40 most influential people in the cannabis industry nationwide, in the leading publication Marijuana Venture in 2017.
She is also a founding board member of the Alaska Marijuana Industry Association, maintains an appointed seat on the local platting board and continues to expand the firm through strategic alliances and political relationships.
Lawyer Monthly hear from Stuart Leach who has combined his involvement in advertising with his experience as a barrister, to guide his client’s reputation through litigation and disputes.
With experience in marketing communications and in the legal sector, can you expand on how public relations can easily impact a legal case?
The first point to remember is that it is a major error to deal with a piece of litigation without giving any thought as to how it is going to be reported, even if you think it might not be. The problem being that whatever is reported sticks around forever and a day, so being able to manage what is said about your dispute is vital. For example, five years down the track you could be involved in a deal and those carrying out due diligence on you and your business might find on Google page one a report from your case that is based on your opponent’s version of events. That could cost a lot of money. So negative PR can have a dramatic effect on the after effects of a case.
Before people embark upon litigation or before they respond to a claim being filed, it is worth examining and identifying all the vulnerabilities. What are the risks, what could come out?
When companies are undergoing a lengthy case, is it better for them to stay quiet, or speak and remain public during their legal proceedings?
Each case is different, however, if you believe your case is going to be in the public domain there is a huge advantage in having your narrative out first and trying to control the way that a case is reported. It is very often the case that clients are reticent about going out to the public, in fact most of our clients would rather that nothing was ever said about them, but the bottom line is if it is going to be in the media, don’t wait for it to happen. If you sit and wait, it’s quite likely that the media will contact the other side, in which case the first thing they hear about the case regarding you, is negative. Having said that, there are times when it is better to wait, but if you do, you should make sure you have a very strong rebuttal strategy in place to push back against any attacks.
Every aspiring young lawyer should understand that communications are a key part of any dispute.
How can companies maintain their reputation during litigation?
The first thing is to understand where the risks lie, and a great deal of our work is spent on risk analysis. Before people embark upon litigation or before they respond to a claim being filed, it is worth examining and identifying all the vulnerabilities. What are the risks, what could come out? They may not affect the legal issue and you may end up with success in court, but if you suffer significant reputation damage in the process you could lose a great deal more than you win.
So, the start point is to understand what the risks are. When you understand these, you can then apply your mind to how you manage them and what communications should be used, what the messaging should be, to whom, and via what channels. Identify the key stakeholders. You may not need to communicate with the world at large. Ask who are the people you need to keep on side? The point being that when a dispute is over, you need to be seen by the people who matter such as employees, investors, regulators – as either the right winner or the wronged loser. Start with the risk analysis, look at the messaging, and look at whom you are going to communicate with, before deciding if you go proactive or adopt a rebuttal strategy.
Further from this, how can they enhance their reputation?
Every opportunity to communicate should, in my view, be looked at as an opportunity to enhance reputation. Even when being on the wrong side of a lot of negative publicity in a piece of litigation, how you deal with it can speak volumes. It may well be that there is no defence to what’s been thrown at you but the way you handle that position and look to move on is what will allow you to successfully move on when the dispute is over. The key is to prevent it from becoming a crisis and thereby establish a base from which to move forward once the dispute is over.
What is important to remember is that the reputation issues around disputes requires much more than just PR.
You have worked on some of the biggest cases in London; can you share how you ensured you gained a positive outcome in a high-pressured environment?
We are involved in something now that involves an individual who has, with no evidence having been found against him at all and having been subject to extensive investigations, been excluded from office. There has been no real engagement from the people excluding him. We were able to put his story, his case, out into the public domain in a high-profile publication which was spread via the internet and our digital activity and it immediately got the attention of important influencers around the dispute. That was one specific piece of communication that broke the deadlock in a piece of litigation. A different example of how communications can make a difference is in the area of enforcement. It is very clear from experience that whilst people will use all sorts of legal chicanery to avoid paying a Court Order, the interest of the media as to why they won’t pay is extremely motivating!
Can you give a top tip to our aspiring lawyers?
Every aspiring young lawyer should understand that communications are a key part of any dispute. When initially meeting the client, they should be thinking about what the reputation risks are and how these can be managed. Arguably in the world we now inhabit, to not think of these and embark on litigation in a vacuum, might one day be considered negligent if it leads to an avoidable but predictable loss. They should seek the advice of a specialist in the area in the same way they obtain the advice of specialist Counsel on the legal issues. There are a limited number of specialist consultancies, although there are many PR firms operating in the legal area. What is important to remember is that the reputation issues around disputes requires much more than just PR. PR is just one tool but what is needed to fully manage all the reputation threats that are part of a dispute is a new type of adviser - one that fully understands litigation because they have litigated, but who also has the communication skills to turn that legal experience into a powerful additional tool during litigation.
Stuart Leach
Chief Executive & Co-Founder
+44 (0) 207 406 7444
+44 (0) 782 667 1266
Stuart Leach is the Chief Executive and Co-Founder of Pagefield Global. Having practised as a barrister for nearly 10 years and having had 18 years in advertising, it was totally natural to him to combine these two skill sets by offering a service that manages reputation during disputes.
The private equity fund Spanish expert in restructuring PHI Industrial has sold ownership of Intimus Group to the Spanish investment company Kaizaharra Corporación Empresarial.
Intimus International Group is an international company headquartered in Markdorf, Lake of Constance, Germany, with regional offices in 10 countries around the world. Founded in 1956 as Schleicher, the intimus brand was born in 1965 with the introduction of the intimus Simplex, their first office shredder.
The management team, headed by Javier Ortiz de Zárate, will continue to guide the company's steps in the new stage that it opens under the control of Kaizaharra Corporación Empresarial.
Interview with Beatriz Castelar Mezo, Lawyer at Bufete Barrilero y Asociados
Please tell me about your involvement in the deal
Our client, Kaizaharra Corporación Empresarial (KCE), entrusted Bufete Barrilero y Asociados with the comprehensive legal advice for the acquisition of the Intimus Group. The M&A team of Bufete Barrilero y Asociados worked together with the client ,not only in boosting the acquisition, but also in negotiating the terms and conditions of the acquisition and managing the negotiation, the drafting and closure of every agreement and document of the transaction including the sale and purchase agreement, guaranties structure and supplementary agreements.
I would like here to underline the fact that whenever a client entrusts us with a transaction of this kind, at Bufete Barrilero y Asociados our mission is crystal clear. Obviously, we are responsible for each and every legal aspect and document involved in the process, but our clients know they can depend on us to go the extra mile. This means total commitment to our client and we work together to make it happen by managing intangibles and any nuance that might possibly arise during the process, in order to achieve the client’s goals which are primarily closing the transaction within the optimum price, deadlines, legal certainty and commitment to the future of the key people involved in the project.
Why is this a good deal for all involved?
Our client, Kaizaharra Corporación Empresarial KCE is a recently established business corporation, headquartered in Bilbao and promoted by Mr. Iñaki López Gandásegui. His vision is investment in medium-sized companies based in Spain with the aim of enhancing development opportunities, reinforcing technological, internationalisation and management capabilities by taking advantage of existing synergies and those that arise within KCE.
Accordingly, the acquisition of the Intimus Group is especially relevant for KCE as it is the first majority purchase comprising the first of a series of acquisitions already set in motion, programmed for the creation and consolidation of a renowned industrial corporation.
For the seller, PHI Industrial, we understand this transaction happened at the right time and under the expected conditions. Equally important,t is the identity of the purchaser, as the KCE vision together with the Intimus team is a solid guarantee for the future evolution of the Intimus Group.
What challenges arose? How did you navigate them?
Given the corporate structure of the Intimus Group with operating companies in different countries (UK, USA, Spain, Germany, Portugal, Austria, Netherlands, Belgium, Luxemburg, Check Republic and China), the crucial challenge of the transaction is definitely the factor of risk management involved in the acquisition, in the identification of possible contingencies as well as in the definition and negotiation of the seller’s responsibility structure.
The negotiation of the seller’s representations and guaranties and the inherent responsibility involved was a tough and intense task which, by means of collaboration, purchaser, seller and their respective legal teams were able to succeed with goodwill, flexibility and common sense, successfully formalising the transaction for all parties concerned.
How important is a legally strong contract for property/construction development?
A strong, well-considered contract is essential for any purchase or sale of real property. When first considering purely the purchase and sale of real property, careful thought is required as to which provisions are included in the contract and which ones are not. It is important here to give a precise description of the property, which extends far beyond the mere extract from the land register. Detailed surveys of the boundaries of the property, of property zoning, are just as essential as the examination of the soil for contamination. Major property acquisitions should also always involve surveys by the building authority, so as to identify open construction contracts or construction projects not yet completed.
Zoning is, at present, of particular relevance as it regards undeveloped properties; take Vienna as an example: in Austria’s capital, in particular, living accommodation is at a premium and there is huge demand for it, which is putting increasing pressure on property prices. Particularly, property that is undeveloped – properties used for agricultural or horticultural purposes – is therefore much sought-after at present. The prerequisite, however, is always the property’s re-zoning as land for development. This is where our excellent contacts and close networking with the competent bodies come in to find solutions quickly.
From a legal perspective it is also important, particularly in the field of property development, to have a good economic understanding of prices per square metre and to keep an eye on any further costs that might potentially rise after purchase.
What things should clients ideally be looking to address in such contracts?
All the details described above are to be found in our contracts which should reflect the prevailing situation as accurately as possible. From a legal perspective it is also important, particularly in the field of property development, to have a good economic understanding of prices per square metre and to keep an eye on any further costs that might potentially rise after purchase. Tax arrangement is also of crucial importance. Here, too, appropriate provisions must be included in the contract.
In the case of contracts with property developers or construction firms (general contractors), it is important to have a good understanding of the structural details. As precise a description as possible of the service to be provided, the sampling and detailed specifications of the building and fittings are essential. It is imperative to have provisions dealing with default and other breaches of contract to provide appropriate safeguards that the agreed deadlines are observed.
In our experience, the majority of disputes arise as the result of certain things being left unaddressed.
When dealing with litigation, what are common disputes that have arisen due to lack of thoroughness when devising a contract at the onset?
In our experience, the majority of disputes arise as the result of certain things being left unaddressed. The parties usually fill these “gaps” with expectations which – if failed – then result in dispute over the terms of contract and scope of services. The provisions specifying what the seller guarantees and what is not guaranteed also need to be quite clear and precise.
How must development contracts differ for developers, compared to project financers and private individuals?
Usually developers acquire large real property and/or sections in not yet zoned, mostly undeveloped or only lightly developed condition. Here, particular consideration must be given to rights and obligations under public law (vehicular access, zoning, density of development). Project financers are on the lookout for projects that are as far as possible to being completed which are a good investment proposition for them. Private individuals, on the other hand, normally acquire existing properties where the definition of specifications of the building and fittings is important. If private individuals acquire properties that are still under construction, the provisions of the Bauträgervertragsgesetz (Austrian Developers' Contract Act) must be applied, which specifies certain minimum content of contracts, e.g. milestones and tranche payments.
Wolfgang A. Orsini und Rosenberg is a qualified and well-known lawyer in Austria and founder of the Orsini und Rosenberg law firm with a particular focus on real estate law as well as building and construction law. He primarily deals with contractual matters, but he is also an experienced trial lawyer and advises his clients in commercial matters. He is a member of the Vienna Bar and started his legal career right after completing his studies at the University of Vienna with distinction. He is a member of various national expert committees and provides advice to interested parties during the legislative process.
The death of Natasha Ednan-Laperouse, who passed away following an allergic reaction to a Pret A Manger (Pret) baguette, has sparked a national debate around food allergen information and labelling. Earlier last month, Michael Gove, the current Secretary of State for Environment, Food and Rural Affairs, met with Natasha’s parents and has publicly backed changes to current food labelling law; a full review of current legislation should be complete by Christmas, with an aim to usher in new rules by summer 2019.
Changes to the current law, dubbed “Natasha’s Law”, aim to close a so-called ‘loop hole’ in food labelling laws. Calls for these changes have only increased given the criminal trial relating to the death of Megan Lee, who unknowingly ate a takeaway meal containing peanuts, despite stating her allergies to nuts on an online order form. On 28 October, the owners of the Royal Spice takeaway in Oswaldtwistle, Lancashire, were found guilty of the manslaughter of 15-year-old Megan.
Each tragic case serves to highlight possible deficiencies in the effectiveness of current regulations surrounding food labelling and the provision of allergy information by freshly-prepared food retailers. Though necessary, updates to current law could have huge implications for the food retail sector, particularly large UK chains, and the obligations on it to provide allergy information.
Current Regulations
The UK food retailing sector currently abides by the Food Information Regulations 2014, which came into force on 13 December 2014. The regulations give authorities the ability to enforce Regulation (EU) No 1169/2011 on the provision of food information to consumers; this requires food business operators to list any of 14 identified allergenic ingredients, including sesame seeds and products thereof, on all pre-packed foods. However, Regulation 5 of the 2014 Regulations provides an exception for food items which are not prepacked; packed on the sales premises at the consumer’s request; or prepacked for direct sale.
If any of the above apply, then the food business operator does not have to list any allergenic ingredients on the food product itself. Instead, it can provide allergen information by any means the operator chooses including orally – provided the operator indicates, by way of a label attached to the food or on a notice, menu, ticket or label, that details of that substance or product can be obtained by asking a member of staff.
In Pret’s case, the company says the baguette was ‘assembled’ in an adjacent onsite kitchen and was then packed and displayed for sale. Hence it was ‘prepacked for direct sale’ and fell within Regulation 5 of the 2014 Regulations, meaning there was no requirement to list the ingredients on the packaging itself. Instead, in order to comply with Regulation 5, Pret relied on stickers placed on the food display units which highlighted that allergy information could be provided by staff or obtained from Pret’s website.
In the case of the takeaway Megan Lee ordered from, Royal Spice Takeaway, its online menu stated “Think allergy” and “please ask any member of staff”. This approach may also have been sufficient to satisfy the 2014 Regulations – albeit, in that case there are a number of further allegations relating to other food safety regulations.
What this means for future food regulations
At the inquest into the death of Natasha, the Coroner, Dr Sean Cummings, appears to have accepted that Pret operated within the 2014 Regulations but said he would be writing to the Secretary of State for Environment, Food and Rural Affairs to consider whether food labelling laws are adequate for large food business operators. In response, Theresa May has called for a review of food labelling laws and Michael Gove has talked about the need for a ‘Natasha’s law’. Pret has also said it will start trialling full ingredient labelling on product packaging.
The Coroner’s concerns appear to have stemmed from the applicability of Regulation 5 of the 2014 Regulations to large food business operators like Pret – as opposed to small independent businesses, such as a fruit stall. The potential changes recently suggested by both May and Gove could have huge implications for the food retail sector and the obligations on it to provide allergy information. Large chain retailers such as Greggs are already said to be urgently reviewing how they provide ingredient information to customers.
What this means for claims
In terms of the potential for civil claims, compliance with existing regulations will of course be relevant. In the context of a claim under the Consumer Protection Act 1987, a claimant would need to establish that the level of safety is not such as ‘persons are generally entitled to expect’.
A change in the regulations would obviously have an impact on the general public’s expectation of safety.
However, the courts have said that it would be challenging for a claimant to prove that this level of safety is higher than that provided by a regulatory regime. A change in the regulations would obviously have an impact on the general public’s expectation of safety. The same would arguably apply to a claim in contract where a claimant would need to prove that the food served was not of satisfactory quality.
Further, a negligence claim would entail a detailed analysis of the food operator’s approach to providing allergen information. This includes staff training, the prominence of displays and the extent that previous similar complaints, which might be thought to have provided sufficient warning that the food operator’s present practices are not sufficient, have been addressed. For instance, in Pret’s case, the Coroner criticised it on the basis that the stickers dealing with allergy information were difficult to see and because it had failed to adequately deal with and respond to previous similar complaints. Indeed, it has been reported there were six allergic reaction cases in the year before Natasha’s death.
Necessary steps forward?
It has undoubtedly been a challenging and potentially damaging time for Pret, but the questioning of current regulations has opened some important conversations around food and allergen safety. No matter the legislative outcome of the issues raised at the inquest, going forward it will be vital for food retailers to take heed of this case, and urgently review the way it provides ingredient information to its customers – perhaps by trialling full ingredient labelling on product packaging, as Pret has said it will do.
The level of media scrutiny accompanying the untimely deaths of Natasha, Celia and Megan has brought forward a sense of shock from consumers who may have expected a greater level of care from big name retailers such as Pret. As Coroner Dr Cummings noted, and as some of the public have concurred, it seems strange that such a large retailer (Pret has over 500 stores, three quarters of which operate in London) is held to the same labelling and allergen information standards of small independent shops. Whilst a challenging time for all involved parties, the tightening of food regulations may ultimately serve to safeguard and reassure customers with serious allergies, and ensure retailers are protected by providing clearer regulations.
Daniel West
Associate in Product Liability
BLM
About BLM
Foresight Group LLP (“Foresight”) announced the acquisition of 100% of the equity of Simple Power Limited (“SPL”) for an undisclosed sum, comprising a portfolio of 52 onshore sub-250kW single wind turbines located across Northern Ireland.
SPL has the largest distributed wind portfolio in Northern Ireland, with a total output in excess of 12MW across all the turbine sites, which benefit from some of the highest wind speeds in Europe.
The 52 wind turbines are fully operational and OFGEM accredited. The portfolio qualifies for participation in the recently launched I-SEM market in Ireland. Each turbine benefits from a standardised lease, grid connection and PPA, with long-term fixed price O&M agreements in place with a number of experienced third-party contractors.
In the past five years, Foresight has mobilised investment of more than £200 million into the Renewable Energy sector in Northern Ireland building a portfolio of 12 Bioenergy and Waste projects alongside this wind portfolio. Together, these projects generate enough clean energy to power the equivalent of some 66,000 homes, and Foresight has a strong pipeline of opportunities in Northern Ireland for future deployment.
Deloitte’s role covered financial DD, tax DD, tax advisory and transaction structuring; all led from their Belfast office.
