Frequently Asked Questions
With offices across Lincolnshire and East Yorkshire, including Lincoln, Grimsby and Hull, our professional and caring solicitors can help.
Debt Recovery FAQ’s
What are the options for an insolvent company?
If the underlying business of the company is sound, it may be possible to rescue the company and save the business by restructuring or refinancing. This can sometimes be done without a formal insolvency process, or through an administration order or company voluntary arrangement (CVA) or scheme of arrangement. Advice from a qualified insolvency practitioner is essential. If the company or business cannot be rescued, the options include administration, administrative receivership or liquidation. Again, advice should always be taken from a qualified insolvency practitioner as to the best option in the circumstances.
What is insolvency?
A business is insolvent if it is unable to pay its debts as they fall due (i.e. on a “cash flow” basis) or if the value of its liabilities is greater than the value of its assets (i.e. on a “balance sheet” basis). It is important to note that solvency is different to profitability and a business can be insolvent even though profitable and vice versa.
What should I do if my business is in financial difficulty?
The most important thing to do is to face up to it. Acting promptly by seeking professional advice from a lawyer, accountant or insolvency practitioner will give you the best chance of protecting the business, its employees and creditors and will reduce your risk of personal liability and/or directors’ disqualification proceedings.
Employment FAQ’s
Can an employee be on and off furlough numerous times?
This remains unclear but there is nothing in the latest guidance which specifically prevents it, so long as on each occasion the employee is furloughed for a period of at least three weeks. However, employers should be cautious until this is further clarified.
What is Furlough?
As part of the Corona Virus Job Retention scheme the UK Government have created a method to keep jobs open for employees by subsidising 80% of wages up to £2,500 per month where they are “furloughed” or stood down from their role.
Who can access support?
Any UK organisation with employees can apply, including businesses, charities, recruitment agencies (with agency workers paid through PAYE). You must have created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account.
Family Law FAQ’s
Can you act for both of us in the divorce?
No, we are only able to act for one party in the proceedings.
Does a divorce/civil partnership dissolution automatically resolve financial issues?
No, financial issues are not resolved automatically, but it is something that we recommend you look into at the time of the divorce/civil partnership dissolution, and we can provide advice about that.
How long will a divorce take?
A divorce or civil partnership dissolution will generally take between 5 and 7 months. This however may not be the case if there are complicating factors that need to be taken into consideration, for example personal service of papers, or where one party is out of the country.
Medical Negligence FAQ’s
Can I make a medical negligence claim on behalf of my child?
Yes. Only, if you are the mother, father or parental guardian.
My claim has settled but I have now developed further problems, what can I do?
If you were not symptom free when you settled your claim, or have settled your claim and are now experiencing further complications that were not considered as a potential side effect of your injuries; then your solicitor may have acted negligently and you may be entitled to professional negligence compensation. Please get in touch today to see if we can help.
Can I make a medical negligence claim on behalf of someone who has died?
Yes, if you are the spouse of the deceased, executor of the estate or legally defined next of kin.
Asbestos and Mesothelioma FAQ’s
Am I eligible for government compensation?
If you have more than pleural plaques, you may be entitled to state benefits such as Industrial Injuries Disablement Benefit and Disability Living Allowance.
You may also qualify for a lump sum payment under the Workers’ Compensation Act scheme.
Even if you have not been exposed to asbestos through your own work, you may qualify for certain benefits/payments and you should contact us for more advice.
How much will I have to pay?
If you have a condition which is compensatable in the courts, then we will not have to ask you to pay anything. Your legal costs would be paid by the other side if you win your claim. If you lose your claim, you pay nothing.
Sometimes, if it not clear whether or not your condition is a compensatable one, we may ask you to pay the costs of a preliminary medical, so that we can find out more about your condition.
However, in most cases, you are not asked to pay anything. In any event, we would not incur any costs without your express prior agreement.
Can you claim compensation for pleural plaques?
The legal position in England and Wales is that they are not compensatable unless they are sufficiently extensive to cause symptoms. This is not often the case. In Scotland, the legal position is different and you should seek advice from a Scottish law firm if this affects you.
Commercial Property FAQ’s
Can I avoid rent reviews?
This is a matter for negotiation at the outset of the Lease. In shorter leases, you may have one rental figure for the duration of the lease. In longer leases, it may be possible to negotiate fixed increases (rather than rely on market conditions) throughout the Lease. You should take professional advice from a chartered surveyor as to what constitutes a market rent at the outset.
Can I get out of the lease early?
It may be possible to transfer the lease (often known by lawyers as “Assignment”) if you can find a willing tenant however it will be necessary for the Landlord to approve the new tenant. Alternatively, you should negotiate a break-clause entitling you to end the Lease on a specified date or dates during the lease.
Can I extend my lease?
Generally speaking a Business Lease of at least six months will enjoy what is known as “security of tenure” under the Landlord and Tenant Act 1954. This means that once the lease period has expired the Tenant will be automatically entitled to a further lease at a market rent provided certain steps are taken.
The grounds on which the Landlord can oppose a lease renewal under the 1954 Act are limited (eg. where the Tenant is seriously in breach of his obligations, or where the Landlord intends to redevelop the property or use it for his own business). However, some leases are “contracted out” and do not benefit from this protection.
Dispute Resolution FAQ’s
How do I keep my information private?
This is often a concern for sellers when providing potential purchasers with sensitive information about their business. Any prospective purchaser will need to see information about your business so as to make an informed decision as to whether to proceed and at what price.
However, you need to ensure that the purchaser cannot walk away from the deal and use the information you have provided for their own benefit. You can therefore enter into a “confidentiality agreement” or “non-disclosure” agreement with the purchaser. These documents contain details of what information will be regarded as “confidential” and to whom it can be disclosed (for instance, professional advisors). They will also deal with what happens if the purchaser breaches your confidentiality.
What is alternative dispute resolution?
Generally speaking alternative dispute resolution (or ADR) refers to methods of attempting to resolve a dispute without recourse to formal proceedings. The most straightforward method of ADR is by negotiation.
If that fails parties to a dispute will often agree to attend a mediation hearing – indeed the Courts have made it very clear that in most cases parties are expected to do so. The Mediator has no power to enforce any kind of resolution on the parties but will facilitate a compromise where at all possible. Mediation is very often an expeditious and cost effective way to resolve a dispute.
ADR also refers to various other, more formal, ways of resolving disputes such as adjudication (often used in building disputes), early expert determination or arbitration.
How is litigation funded?
Usually each party to a dispute pays his or her own legal costs. The general rule is that the losing party in litigation is ordered to pay the successful party’s legal costs as well as having to bear their own.
Mergers & Acquisitions FAQ’s
Can I continue to work in the industry after completion?
The purchaser is likely to want to restrict what you can do following completion of the sale. The sale agreement will therefore contain “restrictive covenants” which prevent you from competing with the business you have sold for a specific period and within a specific geographical area. How much you are restricted is a matter for negotiation and can have an impact on the sale price.
Do I charge VAT on top of the price?
In the majority of business sales (as opposed to share sales), it is possible to avoid having to charge VAT on the sale price. If the sale can be treated as the transfer of a going concern (“TOGC”) no VAT would be payable.
The transfer of a business as a going concern will not usually be regarded as a taxable supply of goods or of services for the purposes of value added tax. However, for this exemption to apply, it is essential that the business or part of it is transferred as a going concern and that the assets are to be used by the purchaser in carrying on the same kind of business as that carried on by the seller. If the sale relates to part only of a business, it must be a part which can be operated on its own. There must be no break in trade. Furthermore the purchaser must already be a registered person for VAT purposes or someone who will be immediately registerable as a result of the transfer.
Can I pull out after signing heads of terms?
Heads of terms generally set out the headline terms of the transaction and do not commit either seller or purchaser to the deal. Either party will usually be able to withdraw after signing heads of terms.
However, it possible to include commitments in the heads of terms which require the withdrawing party to cover the costs of the other party if they have withdrawn without good cause. You will appreciate that the purchaser will want to withdraw if, having carried out due diligence, he finds unexpected information about the business.
Personal Accident and Injury FAQ’s
After my case is settled, can I ask my opponent to pay me more compensation if my injuries worsen?
In cases where there is a risk of the injuries or condition becoming worse, it may be appropriate to obtain provisional compensation which would mean that you would be awarded a sum of money and will be permitted to seek further compensation should your injuries or condition deteriorate.
Those instances are very rare and generally arise in industrial disease cases involving asbestos related conditions. Otherwise, the amount of compensation you receive will be in full and final settlement of your claim.
Can you claim compensation for pleural plaques?
The legal position in England and Wales is that they are not compensatable unless they are sufficiently extensive to cause symptoms. This is not often the case. In Scotland, the legal position is different and you should seek advice from a Scottish law firm if this affects you.
Am I eligible for government compensation?
If you have more than pleural plaques, you may be entitled to state benefits such as Industrial Injuries Disablement Benefit and Disability Living Allowance.
You may also qualify for a lump sum payment under the Workers’ Compensation Act scheme.
Even if you have not been exposed to asbestos through your own work, you may qualify for certain benefits/payments and you should contact us for more advice.
Professional Negligence FAQ’s
How does a conditional fee agreement (CFA) work?
A CFA is a risk-sharing arrangement whereby we agree to take a share of the risk in the claim. A full CFA or “no win, no fee” agreement is where, if you lose claim, you will not pay anything to us for our costs. If you win, you pay to us our fees on an hourly rate basis plus a success fee. The success fee is a percentage of our fees based on hourly rates. The level of the success fee will depend on all of the risk factors in the case including our assessment of the merits and the prospects of success on your claim. If you win, you will usually be entitled to recover costs from your opponent, but the success fee is not recoverable from your opponent however, as a firm, we agree to cap your success fee at 25% of your damages ensuring that you always retain the majority share of your compensation. You will be liable to pay to us any difference between the costs recovered from your opponent and the costs payable under the CFA including the success fee. If you lose, you will not pay anything to us for our costs, but will still be liable for any expenses and/or disbursements, but you may be able to take out after-the-event (ATE) legal expenses insurance against this risk.
How long do I have to bring a claim?
Professional negligence claims generally arise from breach of contract and/tort. A claimant has 6 years to bring this kind of claim. This is the primary limitation period. This period begins from the date that the cause of action accrues.
If the prmary limitation period has expired but you had not realised your professional had been negligent, you have three years from the date that you first knew this or the date that you ought to have known. This is the secondary limitation period.
There is however, a 15 year longstop period. You cannot bring a claim after 15 years of the negligence or loss, regardless of whether you knew about the negligence.
How involved will I be in my claim?
We know that bringing a legal claim can be stressful and you can be as involved in your claim as you wish to be. Of course, we will always provide you with real and honest advice throughout your claim and will always act in accordance with your instructions.
We understand that some people like as little involvement as possible, and some like to be involved as much as possible. We will be guided by you as to how involved you would like to be in your claim whilst ensuring that you are always kept fully up to date.
Wills, Trust and Probate FAQ’s
Can anybody witness my will?
Any adult of full understanding, yes, but some categories will disqualify themselves from benefiting from the Will.
Can I create a trust for my children in my will?
Yes, children cannot generally receive money until they are 18 years old. It may be wise to let them benefit at a greater age, or be assisted by Trustees until, say, they finish education and training. A properly prepared Will can set this up.
Can I contest or challenge the validity of a Will?
Yes, in certain circumstances. If you have concerns about whether any of the following situations apply to the deceased’s last Will, then you should seek legal advice: • The Will was not signed or witnessed properly; • The person who made the Will lacked the capacity (mental understanding) to do so; • The person who made the Will was pressured into or coerced by another person to make the Will in the terms that they did; • The person who made the Will did not know and approve the contents of their Will; • You suspect that the Will is forged. If a Will is found to be invalid by reason of any of the above, then the estate will be administered in accordance with the terms of the deceased’s previous valid Will or, if there isn’t one, in accordance with the intestacy rules.
Conveyancing FAQ’s
By what time do we have to move out on the moving date?
The sale contract will usually stipulate that you must move out by 1pm. This is a fairly logical time as it means that if you are buying a new property on the same day you have the morning to pack up and leave the property you are selling and the afternoon to move into your new home.
We will telephone you on the moving day to let you know when the buyer’s money arrives and to check you are ready for the keys to be handed over. In practice depending on whether there is a chain and if so the size of the chain, you may find keys can be handed over before or sometimes after 1pm.
Do I need to pay the estate agents when we sell?
No. We will check you are happy with the amount of the estate agents’ bill but then pay it ourselves out of the money received from the buyer.
Great news, our purchase offer has been accepted.
Firstly your legal adviser will send you details of what it will cost to buy the property and will ask you for some money to pay for the property searches. The actual amount required for the searches does depend on the location of the property as search prices vary in different parts of the country. Secondly your legal adviser will advise you to have the property professionally surveyed.
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