Understand Your Rights. Solve Your Legal Problems
As the end of the spring semester approaches, thoughts would usually be turning to forthcoming law exams. This year, to replace face-to-face exams, universities are using a range of different formats for their module assessments. This might involve open-book exams to be completed at home, more focus on coursework or even some form of online test. Whatever the format, end-of-year assessments are always stressful. Emma Jones, Senior Lecturer in Law at the University of Sheffield, shares some top tips for handling the stress.
The last few weeks have been stressful times for both staff and students with lots of changes being made to assessment formats, timings and pretty much everything else! You are probably getting lots of emails about all these changes. It is important to read these carefully, save them somewhere you can easily refer back to them again and perhaps even print them out to highlight key points to remember.
If there’s anything you aren’t sure about, it’s important to get in touch with your seminar tutor, module convenor or personal tutor to ask about it. It may take them a little longer to respond than usual, but be patient, they are dealing with lots of changes too.
As soon as you are given dates and details of any assessments, keep a careful record of these. It’s a good idea to use a calendar or diary to write all the dates/times in one place. Once you have this information, you should write out a plan, allocating times to work on each individual assessment.
If you have any deadlines close together, make sure you are starting well in advance to give yourself plenty of time and avoid a last minute rush.
As soon as you are given dates and details of any assessments, keep a careful record of these.
Once you have your plan, it’s important to stick to it. It can be hard to keep to a routine when you’re studying at home, but there are things you can do to make it easier. These include:
Most Law Schools are now offering some form of online teaching and support, whether it’s online lectures and seminars, discussion boards and forums, online meetings with staff, or some mixture of these. They are designed to help you achieve your goals, so it is important to make the most of them. If you can’t join in a particular seminar or session, find out if it’s being recording and listen to that. Even if you don’t feel up to posting on a forum, you can still read what others have said. Having said that, do join in and contribute as much as you are able to do so – it will make the activities more engaging and interactive for everyone.
Most university libraries have great online collections, including databases such as Lexis Library, Westlaw and Lawtel for primary sources such as cases and legislation. They will also have subscriptions to a wide range of law (and other) journals and are likely to have online copies of lots of core textbooks too. If you are trying to locate information for your assignments, remember to make your university library your first port of call. It’s important not to rely on google or Wikipedia or similar if you want to produce your best academic work.
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When it’s time to tackle your assessments, don’t try to work 24/7 on them. If you are given a specific time period to write them in, then that period will have been calculated to give you more than enough time to finish your work and build in breaks and rest periods. Aim for working for a certain period of time (say, 45 minutes) then building in a break. This will give your mind time to refresh itself. If you are working at a laptop and computer it’s also important to do some physical movement and rest your eyes regularly.
Although end-of-year assessments are important, your wellbeing is more important. This is a difficult and challenging time for everyone and it is vital that you realise this and be kind to yourself, as well others. If you are struggling, do reach out to family and friends. Your university support services are also likely to be able to provide support and guidance.
So, organise your time and space, take advantage of the resources and support available, ask for help when you need it and, most importantly, look after yourself.
Here in Ireland, the average PIAB award for a whiplash case is €18,581 in general damages (pain and suffering), plus €1,456 in special damages (medical expenses, loss of earnings, and other costs), making whiplash compensation payments around 4.4 times higher than the average of our neighbours over in the UK.
Whiplash compensation is a controversial subject in Ireland, where the allure of what are perceived as large pay-outs has led to allegations of a “compensation culture” that has caused insurance premiums to rocket upwards. It is interesting to note however, that these allegations have tended to come from the insurance industry who have so far been unable to produce any evidence of such a culture or its impact on premiums.
Irish Prime Minister, Taoiseach, Leo Varadkar, is considering new proposals based on allegations that some claimants exaggerate the pain and suffering involved in their injury. Again, such allegations have tended to come from the insurance industry and business interests without hard evidence to support these claims. There has certainly been a rise in insurance premiums particularly by reference to the UK market. Whether this is driven by the behaviour of some claimants or by insurance industry profit taking is unclear. The only party with the facts to confirm or deny these claims is the insurance industry and, so far, they have not disclosed it.
Whatever the merits of the claims being made by those seeking to reduce whiplash claims, they are certainly proving influential at the highest levels in government in Ireland: “We all know that about 90% of people, once they receive payment, no longer need to attend treatment for their whiplash, it seems that the cure for whiplash is compensation payment in Ireland and not any medical treatment”, says Varadkar.
One of the main difficulties with whiplash claims is that they are incredibly difficult to disprove. So, if two vehicles collide but with only very minimal damage to both, insurers will often settle out of court for a lower fee of, say, €10,000, rather than risk losing in court and paying six times that amount.
The cost of insurance in Ireland is 48% higher than at its lowest point over a decade ago and significantly higher than in the UK. What is not clear is what is driving this increase and differential. The insurance industry claim that it is due to much higher reinsurance spending rather than higher claim costs has been the biggest single factor affecting firms’ bottom lines in recent years. An alternative explanation is the possibility of excessive profit taking by insurers in the small and relatively captive Irish market. The case remains to be proven either way.
The cost of insurance in Ireland is 48% higher than at its lowest point over a decade ago and significantly higher than in the UK.
The Ministry of Justice in the UK has been leading reforms to The Civil Liability Act 2018. The legislative changes include:
Another significant change will be the introduction of a ‘small claims track’ limit to £5,000. This will mean that, if a claimant hires a legal representative to make a personal injury claim below £5,000, their legal fees will not be recoverable from the compensating insurer.
A Cost of Insurance Working Group on the Cost of Motor Insurance in Ireland reported in 2017 and its recommendations included the establishment of a Personal Injuries Commission to consider the questions of levels of compensation in Ireland.
Ireland is a Republic with a written constitution that guarantees separation of powers between the government executive and the courts and, in addition, guarantees the fundamental rights of its citizens. Therefore, while the government can legislate in this area, it is one that is likely to be fraught with constitutional difficulty and if a route can be found that successfully avoids this it is likely to be chosen.
Ireland also has a pre-litigation non-contentious system of personal injuries assessment administered by the Personal Injuries Assessment Board which publishes a Book of Quantum suggesting baselines and ranges for personal injury compensation.
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The in which it carried out an extensive international review of alternative systems of compensation for personal injuries.
The Irish Government subsequently passed the Judicial Council Act, 2019 which enables the judiciary to establish committees to review matters such a personal injury claims and set guidelines for the judiciary etc.
The Government cannot impose on the judiciary what it might do in this area, but by providing the mechanisms it has enabled judge lead reform in the first instance. Irish Chief Justice, Mr Justice Frank Clarke, established The Personal Injuries Guidance Committee of the Judicial Council in late 2019 and it is now considering suitable levels of general damages to supersede those in the Book of Quantum. The Personal Injuries Guidance Committee is Chaired by Supreme Court judge Ms Justice Mary Irvine and is comprised of judges from all level in the Irish judiciary. Ms Justice Irvine’s statement that "modest injuries should attract moderate damages" is often quoted. The Committee is completely independent in the exercise of the its statutory function and its findings are currently awaited.
In fact, having a law degree is useful in a much wider range of careers. Emma Jones, Senior Lecturer in Law at the University of Sheffield shares some examples with Lawyer Monthly.
It is worth starting by mentioning legal careers, as many law students are still keen to work in the law. Although being a solicitor or barrister are the traditional option, it is important to recognise that there are many others available. A number of these are jurisdiction-specific, such as working as a Chartered Legal Executive in England and Wales. Others are recognised globally and stem from the changing nature of the legal profession, for example, the incorporation of digital technology into law firms has led to jobs such as a legal knowledge engineer or legal data scientist.
A sound knowledge of law is a real bonus in a variety of jobs. For example, police officers have to understand the law in order to be able to enforce it appropriately. Other examples could include applying your knowledge of employment law to work in a human resources department or using your understanding of contracts to work within construction and surveying.
If you are interested in law teaching, many schools and colleges offer GCSEs, A Levels or access courses in law, or related subjects such as citizenship. There may also be openings to work as a law tutor in your local area.
A sound knowledge of law is a real bonus in a variety of jobs.
The skills you have developed during your law degree are likely to be just as valuable as its content. For example, being able to research in a detailed and thorough manner is valuable a range of different settings, from working in local government to becoming a librarian. Your ability to work with large amounts of information could lead you to consider a role working with data. Managing your time successfully could mean you have valuable skills to apply in a role involving time pressures, or could lead you to think about becoming a project manager. Not to mention the value of your persuasive skills (mooting anyone?) when it comes to public relations and marketing.
If you’ve enjoyed your time at law school, rather than moving into the job market straightaway, you may also want to consider going on to a postgraduate qualification such as an LLM (Masters degree in law). This could eventually lead to you working in academia and teaching on the law degree yourself. You can chose between a taught LLM, where you attend lectures and/or seminars or a research LLM, where you focus in on a specific topic of your choosing. As well as being genuinely interested in law as a discipline, you’ll need to show that you can study independently and undertake legal research to succeed on an LLM.
Many law students also go on to postgraduate study in different disciplines, including sociology, criminology and psychology, although some institutions may require you to studying a ‘bridging course’ first.
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Lots of students study law because they are passionate about social justice and upholding basic rights and liberties. If this sounds like you, it is worth exploring roles in charities and non-profit making organisations (sometimes known as the third or voluntary sector). Even if this isn’t the area you want to work in, there may be opportunities for volunteer work in your spare time.
Overall, your law degree will provide you with a great level of knowledge and fantastic transferable skills, opening up a wide range of careers. If you aren’t sure which career options are right for you, it is important to get in touch with your university’s career service. They can provide valuable advice and guidance tailored to your abilities and preferences. Whatever your choice, your law degree is likely to help you along the way.
Amazon and its third-party sellers have been accused of violating a Californian law for price gouging as the cost of some essential items reportedly increased by at least 500%.
Lawyers at Hagens Berman filed a proposed class action stating that Amazon had violated the law that bars price increases of more than 10% during declared emergencies on essential goods. Such items would typically include food, cleaning materials, and medical supplies - all of which were bought by customers amidst a mass panic.
These increases as reported on Bloomberg “are flagrantly unlawful under California penal law, which makes presumptively illegal any price increase exceeding 10% during a state or local emergency,” Victoria Ballinger and Mary McQueen allege in a suit filed in the U.S. District Court for the Northern District of California.
Despite the allegations, Amazon stated on their website, that "Amazon has zero tolerance for price gouging and longstanding policies and systems to prevent this harmful practice.
"Amazon has already removed well over half a million [of] offers from our stores due to coronavirus-based price gouging. We have suspended more than 3,900 selling accounts in our U.S. store alone for violating our fair pricing policies. We began taking these enforcement actions promptly upon discovering this kind of misconduct, and we’ve been partnering directly with law enforcement agencies to combat price gougers and hold them accountable."
The online retailer has seen sales increase, with some items being up more than 1,000%. With customers avoiding brick and mortar stores, they opted for Amazon, where some supplies such as face masks, jumped by more than 500% in price; masks went from less than $20, up to £120.
Medication for colds, according to the plaintiffs, hiked up from $4.65 to $35.99, an increase of 674% and black beans - a staple food item that was popular in demand amongst other tinned food - went from $3.17 to $24.50, an increase of 672%.
Despite these claims, Amazon, on the 23 March previously announced that they have "dynamic, automated systems in place that locate and remove unfairly priced items."
They claim to have deployed a dedicated team that’s "working continuously to identify and investigate unfairly priced products that are in high demand", such as protective masks and hand sanitizer.
"If we find a price that violates our policy, we remove the offer and take swift action against bad actors engaged in demonstrated misconduct, including suspending or terminating their selling accounts and referring them to law enforcement agencies for prosecution under relevant laws", the retail giant posted on their blog.
Nonetheless, the complainants are accusing Amazon of violating California's Unfair Competition Law, of negligence and negligence per se and unjust enrichment. They are thus seeking: damages, restitution, public injunctive relief, punitive damages, and attorneys’ fees and costs.
This is not the first time Amazon has been under scrutiny during the coronavirus crisis. In France, the company suspended its distribution activity after a court ruled it had to stop all non-essential deliveries.
The ruling followed after a complaint filed by a French labour union accused the online delivery giant of endangering the lives of workers. Amazon said it was "perplexed" by the court ruling which ordered the company to restrict its local delivery operations to essential goods only, or face a penalty of 1 million euros ($1.1 million) for each day it failed to comply.
Citing the high penalties imposed by the court and the "complexity inherent in our logistic activities," Amazon - which plans to appeal the ruling- said it would temporarily suspend activities in their distribution centres "despite the huge investment that we have made to ensure and strengthen [by] additional measures the safety of our employees who remained mobilized during this crisis."
The online retailer had stated they have implemented safety measures including "temperature checks, masks, and enforced social distancing which [have] received the approval of health and safety representatives at multiple sites." They were set to re-open in France on 22 April, after a two-day delay due to the pending appeal.
The company also faced similar criticism in the US, over the health and safety of its employees. Earlier this month, Amazon responded that they may begin firing employees that violate social distancing guidelines and policies that were put in place in response to the pandemic crisis; employees claim, however, that the demands of their job make it impossible for them to comply with the policy.
Image credits: jetcityimage
Dan Taylor, director of systems and security at Fletchers solicitors, offers his thoughts to Lawyer Monthly.
The demand for home working has been on the increase for some time and in the legal sector, a profession known for its long hours at a desk, working late into the night, and dealing with clients' most private of matters, there has been the desire to make it work.
However, whether it be culturally, practically, or just from a technological adoption perspective, there has always been a reticence in the Law to engage remote working practices more widely.
Within the space of two weeks, all those obstacles had to be overcome to make working from home possible. The coronavirus pandemic pressed the fast forward button for everyone.
It has brought huge changes in all walks of life, but one of the things it has really thrust into the spotlight for businesses is their ability to enable their people to work from home efficiently and productively.
In 2019, out of 32.6 million employed people, around 1.7 million people reported working mainly from home (Office of National Statistics). Once people are eventually allowed to return to the physical workplace, that figure is likely to rise significantly as many companies will have adapted their systems to facilitate remote working.
The coronavirus pandemic pressed the fast forward button for everyone.
This pandemic will have created a huge shift in the mindset of many companies regarding remote working, because they have seen that it can work.
At Fletchers we had around 15 team members working remotely at the beginning of March, with a number more doing a day or two a week. We knew that there was a desire for more people to be working from home and we had a project looking at implementing it for more of the team.
At the beginning of March we started planning for the 'what ifs' and started testing our systems. Within days, we had to fast forward our plans and get hundreds of our team members working from home as quickly as possible.
This has been forced on everyone and the learning 'curve' has been more of a vertical line.
The coronavirus has acted as a reset button for the profession to consider its offering to staff but also to clients.
Virtual law firms already exist and have traditionally worked best for corporate law where in the B2B sector companies are already used to transacting business online. For private client legal work, it can be difficult because you are dealing with individuals. However, at Fletchers, even as a private client firm we rarely meet face to face with the majority of our clients. The work is done by post, over the phone and digitally so effectively, we have been offering a virtual service for some time.
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However, other players in the legal sector are catching up and some parts of the process can't be done virtually. The court system will take a while to catch up, even though court rooms are opening their doors to new technology, there are reams and reams of paper records and medical records that need to be processed in a physical place.
These barriers are out of our control but don't prevent us from being able to offer a virtual service to our clients.
In order to attract the best talent, and to offer a more agile way of working to help with people’s work/life balance, firms have been working hard to be flexible. A more agile way of working makes the business more attractive and competitive and people can be hired from further away, meaning a bigger talent pool.
Businesses have so much square footage of working space that perhaps they wouldn't need if there was a robust, flexible working policy in place.
A more agile way of working makes the business more attractive and competitive and people can be hired from further away, meaning a bigger talent pool.
Technology infrastructure is improving all the time - 5G home broadband will mean faster connections and better-quality video conferencing - but it's not just about technology, it’s about supervision, remote monitoring, checking productivity statistics and providing support.
People have had to learn very quickly how to deal with the technology off site and how to adapt and manage their teams remotely as well as ensuring their clients continue to receive the best possible service.
There needs to be a proper road to virtual working mapped out but this is certainly going to act as the catalyst for many businesses. This has been forced on everyone and the learning 'curve' has been more of a vertical line, but people are managing it well and it will certainly change remote working policies for many people.
As it becomes increasingly competitive to win leads, effective PR and marketing are crucial for firms to stand out. However, it can often be difficult for lawyers to justify spending their time on PR and personal branding when they have casework to do. Yet, engaging with press at consumer publications is still essential for winning new customers and simple techniques such as sharing legal comments on trending news, TV shows or celebrities can be an effective way to raise the profile of both yourself and your firm.
“Personal branding” is a buzzword that is tossed around the internet these days, but the value of a well maintained online profile should not be underestimated. From raising your own personal profile within the industry to generating more leads for your firm, personal branding is an effective marketing technique that could enhance both yours and your firm's reputation, if managed properly. Nicola Kenyon, PR Manager at leading medical negligence firm Patient Claim Line, explains the value of personal branding and shares tips on how to achieve success with your own personal brand below.
For lawyers operating in more traditional consumer-facing law, it can be difficult to find the right balance between positioning your firm as authoritative as well as approachable. Trust and approachability are values that law firms often struggle to translate to their customers. A recent report published on the Law Society revealed that the general public often see lawyers as ‘arrogant, disinterested or unapproachable’ .
Personal branding could offer a manageable, modern way to break down the barrier between consumers and legal teams. By maintaining a personal brand online, such as through releasing comments to newspapers or even maintaining a social media account dedicated to legal advice, lawyers can offer a more approachable face within the firm.
Personal branding could offer a manageable, modern way to break down the barrier between consumers and legal teams.
You may be widely recognised as an expert within your field of law, but a potential customer or lead may not recognise you as such based on industry qualifications or accreditations that they are unfamiliar with. So in this instance, a strong personal brand on social media and popular news sites could offer a ‘way in’ with potential customers. For example, at Patient Claim Line, we regularly monitor news trends to identify opportunities for our lawyers to comment on popular news topics. Our legal team commented on a medical negligence storyline in Coronation Street which was covered by the Express and a series of other national news sites, and we received a number of website visits from new users as well as inquiries after publication of the story. Newsjacking allowed us to reach out to a wider audience who may not even be looking for, or know that they need legal representation.
In the age of fake news, internet scams and social media ‘experts’ pedaling poor advice, trust signals are becoming increasingly important for businesses. But whilst awards, accreditations and qualifications are important stamps to have within the industry, they’re often not as obvious trust signals for customers. However, mainstream media offers the opportunity to create trust signals with news outlets that consumers trust, for example through sharing a lawyer’s expertise with the BBC or magazines that are read by your target market.
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Social media platforms play an important role in how people consume information and should not be neglected in your marketing efforts. A study by communications firm Edelman found that 41% of users still trust information on social media. According to a 2018 Ofcom report, 44% of adults cite social media as their first point of call for news and information, and whilst users today may be more inclined to research information themselves than take it at face value, having visibility in this platform is still important. By investing in spokespeople for your firm, or your own personal branding, firms can have an authoritative, genuine position on these platforms to share credible information and expertise.
Whilst investing in personal branding can do a lot for the firm that lawyers work at, its main goal is to raise the profile of the individual - an area that will be of increasing importance for lawyers personally. A strong personal profile within the media will bring in more leads, which will raise a lawyer’s reputation with the board, their colleagues and the industry overall.
Individuals and businesses across the UK are struggling financially due to COVID-19. As time presses on, the far-reaching consequences of this are becoming ever clearer. One area of concern is the effect this could have on divorced couples who either rely on or are obliged to make maintenance payments such that one party can make ends meet. People who receive maintenance are worried about what will happen if those payments stop or if they need more money to meet their expenses in these uncertain times. Those who make maintenance payments are worried about what should happen if they can no longer afford to pay. Moore Blatch's Sahil Aggarwal dissects the uncertainty around these payments below.
As we’re regularly reminded, beating this pandemic will be a ‘marathon and not a sprint’ so people aren’t just looking at their finances now, they are looking at how they may survive in the months to come.
So, what is the situation for those whom COVID-19 directly impacts on spousal maintenance?
Even when the court has ordered individuals to pay maintenance to their ex-spouse, the very fact this order has been made means that those income claims are still ‘live’, allowing the court to make further orders if and when necessary. The court is therefore bound to consider changes in circumstances since the original order. This does not mean that those individuals need to rely on the court, but it leaves the door wide open to re-negotiate the level and term of maintenance payable.
The court is therefore bound to consider changes in circumstances since the original order.
If an individual can no longer make the maintenance payments required under any given order as a result of the pandemic, for example because they have been made redundant or furloughed, then this might justify temporarily decreasing or ceasing maintenance. On the other hand, if an individual is struggling to meet their own outgoings as a result of the pandemic, perhaps because their own income has been curtailed, then this could give rise for any maintenance to be varied upwards.
People may ask why their ex-spouse would ever agree to any change at all, but legal costs are treated differently when dealing with a variation of maintenance which should incentivise them to reach a sensible agreement. If an ex-spouse turns down what a court might consider a very reasonable offer, especially under the current circumstances, then they could be at serious risk of paying the legal costs for taking the matter back to court.
Any necessity to vary maintenance as a result of COVID-19 may in fact be an opportunity to settle matters once and for all. An ex-spouse might feel more inclined to accept a one-off lump sum payment in lieu of maintenance rather than dealing with any variation. This in turn will bring any maintenance claims to a permanent end. One point to consider is that the pandemic is certainly going to make some people much more risk averse which means an ex-spouse might be much more willing to accept a one-off lump sum payment rather than risk the uncertainty that comes with future maintenance payments in the current climate.
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The coronavirus pandemic means we are living in extremely uncertain times, with some people feeling much harder done by than others. This will mean that, for better or for worse, some spousal maintenance payments will need to be reviewed.
There is no doubt the impact of the coronavirus on the commercial property market is going to be significant. The government’s decision to close all retail and leisure outlets until further notice leaves both landlords and tenants uncertain where they stand.
So, Rebecca Cleal from the Commercial Property team at Ipswich law firm, Prettys, has looked at the wording of the Coronavirus Act 2020 to answer some of the most common questions. Please note that the content below is subject to change upon further advice from the UK government.
Will my premises be covered by the Coronavirus Act?
In terms of commercial premises, the important thing to note is the definition of ‘relevant business tenancy’ is one to which Part 2 of the Landlord and Tenant Act 1954 applies.
Whilst this clearly means that licences or commercial premises which form part of a larger residential lease will not be covered, it is not clear whether this applies to tenancies contracted out of the Landlord and Tenant Act 1954.
We would anticipate that contracted out tenancies would be included in the definition of ‘relevant business tenancy’ on the basis that Part 2 applies to those tenancies in the first instance prior to the contracting out process taking place, however, we await further clarification.
I am a landlord and my tenant hasn’t paid the March quarter rent – I thought they had to pay?
Although the government advice is to close premises, the obligation to pay rent continues under a lease. If a tenant fails to do so, then the landlord is normally able to forfeit or terminate the lease on the basis of that breach, if they so wish.
However, the government has announced that there will now be a 3-month moratorium on any forfeiture actions, with the Coronavirus Act stating that a right of forfeiture “under a relevant business tenancy, for non-payment of rent may not be enforced, by action or otherwise, during the relevant period” - the relevant period here means the period from 25th March until 30th June 2020.
Even though the threat of forfeiture is no longer immediately available, our advice would be to try and speak with the tenant and agree a formal rent deferment, with the terms clearly set out in writing.
For example, the agreement should confirm if the landlord expects the amount to be repaid (with or without interest) and over what period. Without a written agreement in place the terms of any rent deferment are open to interpretation. In that case, your tenant could argue that it was agreed there was no obligation on them to repay the deferred rent, so a written agreement is key here.
What if I have already commenced forfeiture proceedings against my tenant?
If forfeiture proceedings have already commenced, then the courts won’t be able to order possession until the 30th June 2020, even if the reason for the action related to rent due before the COVID-19 epidemic. Any orders for possession prior to 30th June 2020 can be postponed by application from the tenant.
Are there any other ways I can get my money from the tenant?
Please note that there is nothing to suggest that a landlord cannot still choose to exercise their rights under the Commercial Rent Arrears Recovery regime (CRAR) or issue a statutory demand for payment.
But in practical terms many premises will be ‘locked up’ and the courts service will be on a much-reduced timetable, so there is little to be gained from taking this action at the moment.
You may also still be able to forfeit for other sums due under the lease, such as insurance or service charge payments, if these are not being paid.
I am in the process of making a dilapidation claim against my tenant but I cannot access the property because of the lockdown – what is the position?
If you are in the position where you need to commence, or are in the process of making a landlord’s dilapidations claim, then there are a few key points you need to bear in mind.
Whilst there is no prescribed period for a schedule of dilapidations after the expiry of a lease (other than the one imposed by the Limitation Act 1980), the purpose of a schedule of dilapidations on expiry is to record the state of repair of the property on the termination date.
Access to properties may prove difficult for both parties in this scenario but, unfortunately, it would seem the absence of appropriate surveyors or dilapidations assessors to carry out an assessment will not act as a defence to a contractual obligation to keep a property in good repair.
There is nothing in the Coronavirus Act which would give any leniency on the procedures to be followed under the usual dilapidations procedure.
We can offer advice on the correct approach depending upon whether the end of the lease has already passed. We would also need to assess the wording of your lease to check specific time limits for service of the dilapidations schedule.
My tenant has a protected business tenancy which is about to renew but they have not paid their rent – does this mean I don’t have to agree to the renewal?
The Coronavirus Act goes further in respect of business tenancy renewal and confirms that a landlord will not be able to rely on ground 30(1) (b) of the Landlord and Tenant Act 1954 (persistent delay in paying rent) in relation to any rent which has become due under the relevant period. Therefore, you cannot use this as grounds to refuse a new lease.
Given the timings around lease renewals, we would suggest you seek specialist advice on your options, as you may be able to postpone serving your section 25 renewal notice until after the agreed rent deferment period. But circumstances vary on a case-by-case basis.
Is there any way my tenant could argue that the lease has come to an end because of Coronavirus?
Some tenants may try to argue that the lease has been ‘frustrated’ and has therefore come to an end. The concept of frustration is where circumstances beyond the control of the parties and outside their contemplation make the contract impossible to perform.
Whilst tenants may feel that the government intervention preventing them from operating their premises may amount to frustration, the general view is that this is unlikely to be successful, given the very high standard to which this doctrine is held by the courts.
The recent case of Canary Wharf Limited v. European Medicines Agency 2019 held that a lease was not frustrated as a result of the Brexit vote. We have no doubt that this will be an area where multiple cases arise as a result of the current situation, but at present, we believe the principle of frustration is unlikely to be applicable.
The only other possible way a tenant may be able to terminate their lease is if the lease contains a specific ‘force majeure’ clause. A force majeure clause is usually found in contracts but is not usually found in commercial leases.
Even if you have a lease which does contain a force majeure clause, it would need to be specific enough to encompass the current COVID-19 scenario and, again, we believe this would be highly unlikely. If you would like us to review your lease wording and advise further, then please get in touch.
I own a multi-let commercial building and there are various common areas, such as a reception area and stairwells etc.. What obligations do I have in respect of managing these areas during the Coronavirus outbreak?
Where you have responsibilities for any shared or common areas of a commercial building, then it is your responsibility to comply with all government regulations applying to that part.
If any of your tenants are continuing to operate on a reduced basis, then you will need to do a full risk assessment to ensure that social distancing measures are put in place for access to and from the let parts via the shared parts of the building.
You should also issue your own policy document which echoes the government’s requirements for self-isolation and instruct the tenant their employees should not be allowed into the common parts where the recommendation is that they should be self-isolating.
*Image Credit: Andrea Angelini
Maintaining as much activity as possible, ensuring that the company will still be there after the sanitary crisis, saving jobs, dealing with the business partners, managing cash flow: these are the top concerns of companies today. Another one should, however, be on their mind: protecting themselves against future litigation. The States, employees, consumers, business partners are currently animated by goodwill and a focus on dealing through these unprecedented times as well as possible. History has nevertheless showed that litigation is never far off. Sylvie Gallage-Alwis, Partner at Signature Litigation, offers Lawyer Monthly her thoughts on the risk of legal action faced by companies operating during the COVID-19 pandemic, using France as a case study.
When it comes to litigation that may affect companies which keep on doing business during this period, employee-related litigation is central.
Looking at France, the main risk relates to employees developing the disease and filing a gross negligence claim. This applies to other countries too as the first wrongful death, linked to the death of a Walmart employee, was also filed in the United States. In France, the French government expressly stated that "the employer's liability for its non-compliance with this specific obligation to prevent occupational risks can be sought" and that "regardless of the situation, complying with this specific obligation or, on the contrary, not complying with it, are not presumed (except in very rare cases) and must be proven, in the event of a dispute". This statement has not been unnoticed by trade unions which have threatened numerous companies that their employees will file such claims. Such claims will be facilitated if the government agrees to list COVID-19 as an occupation disease. If this happens, there will be a presumption, which is almost impossible to overturn in practice, that will link the disease to the working conditions.
When it comes to litigation that may affect companies which keep on doing business during this period, employee-related litigation is central.
Some employees are also seeking liability on the ground of manslaughter (such as the employees of Amazon for instance). Here, the employee will have to demonstrate that the company breached a safety measure that caused a risk to the life of its employees. The types of protective measures implemented by the employer will therefore be scrutinised.
One can also fear cases relating to the anxiety of developing COVID-19, in a similar way as the litigation that arose relating to the exposure to asbestos. Pursuant to decisions dated 5 April 2019 (no. 18-17.442) and 11 September 2019 (no. 17-24.879 to 17-25.623), the Plenary Assembly of the French Supreme Court extended case law that was initially limited to workers potentially exposed to asbestos, to any worker exposed to a harmful product or substance. Here, all employees who did not develop COVID-19 but fear to do so could sue. In this instance, the employer must demonstrate that it complied with its safety obligation and provided protective measures as set out by the law.
Besides the actions of employees, companies also risk potential actions from third parties. This might be the case of a consumer who would act against a store who, according to the consumer, would not provide adequate protection, or the employees of transport or logistics companies or distributors in contact with the employees of the company in question. We are also seeing claims against jails on the ground that inmates started developing COVID-19 which would necessarily be linked to an outside contamination.
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Class actions linked to how companies deal with refund or payment have also started over the world, with a starting point against cruise or hotel companies as well as against companies which provide memberships and have not suspended payments, in particular when governments were not yet sending strong or coherent messaging to the population. Lawsuits against some types of refund policies are starting as well, as well as against insurance coverage denials or limitations.
For the businesses exceptionally manufacturing products intended for the health and safety of the population (masks, antibacterial gel, overalls, ventilators) in order to help overcome the global shortage, there may be actions on the ground of product liability.
Finally, one cannot exclude contract liability between business partners who cannot fulfil their contractual obligations. An analysis of the case law relating to force majeure in the event of epidemics like Ebola, the Dengue fever, the H1N1 flu or the Chikungunya, does not provide much hope, at least in France. Indeed, the courts have either refused to take into account the concept of force majeure or denied the causal link between the pandemic and the non-performance claimed. This being said, there has never been any similar situation where States have taken measures to restrict freedoms.
An analysis of the case law relating to force majeure in the event of epidemics like Ebola, the Dengue fever, the H1N1 flu or the Chikungunya, does not provide much hope, at least in France.
The question will, therefore, be whether or not Courts will remember, when they will come to rule on these issues, that companies have faced an unprecedented crisis and actually helped States during it. It will be important to remind everyone of the solidarity that is currently taking place at every level.
In a statement shared with Law360, Baker McKenzie announced that their lawyers, mainly high-paid staff, will be impacted by a pay-cut. Those affected will be lawyers who earn more than USD 100,000, including nonequity partners, timekeepers and business professionals.
US attorneys will see a 15% pay cut, whereas Canadian attorneys will see a 10% cut. Those impacted are currently unaware of how long this pay reduction will last, but it is predicted to follow through to the end of the year. In addition to this, the bonus pool for business professionals will be adjusted to save money during the pandemic. Although the firm did not mention how the pool will be affected, they did mention that they hope to give payments to top-performing members of the firm later in the year, to recognise their hard work during this unprecedented time.
Whilst the firm stated that equity partners will be hit the hardest here, they also mentioned that this decision was to ensure layoffs were avoided where possible.
Being one of the largest law firms in the world, boasting 77 offices across more than 45 countries - 10 of which are located in the US, with one office in Canada - and more than 12,000 employees, Baker McKenzie pulled in $2.92 billion in revenue in fiscal 2019.
"We all will share in some short-term pain, but in the long term, taking these actions now is the most prudent way for us to move through this crisis as a firm, with the smallest impact possible on our people and our clients," Colin Murray, Baker McKenzie's North America chief executive officer, said in the statement, as reported on Law360.com.
Baker McKenzie have also established an emergency loan fund to support timekeepers and business professionals facing extreme hardships as a result of the crisis.
They are not alone, however. A growing number of law firms across the globe have taken similar action to lessen the financial repercussions of the Covid-19 pandemic.
Even though they are in no debt, Allen and Overy announced at the end of last month that they are holding a cash call and are gradually reducing its partner profit distributions, calling for partners to contribute to capital; they have also frozen associate and support staff pay, and will not undertake annual salary reviews. Meanwhile, bonuses which due to be paid to fee-earners and senior support staff in July will be split into two payments.
Kilpatrick Townsend & Stockton have also temporarily cut partner draws by an average of 10% and announced they will reduce pay by 5% for other lawyers and staff from today, as told to Law.com in a statement. Secretaries, who are hourly employees, will have their work time reduced by 20% from 20 April.
In Europe, the Middle East and Asia, Norton Rose Fulbright offered their staff reduced working hours and pay for one year, as well as deferring the payment of partner distributions, staff salary raises and bonuses.
If eligible staff accept the reduced hours offer, they could be asked in the next 12 months to reduce their working hours and pay by 20% from 20 April.
Many firms have taken action to freeze bonuses and pay raises until this crisis is over in order to lessen any potential impact; time will tell if this will work, or if more needs to be done.
*Image credit: Rien Janssen
