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Author Archive

The Future of Furlough and other employment issues arising from Covid-19

Adrian Fryer

The Coronavirus Job Retention Scheme (“Furlough Scheme”) has been a lifeline to many employers during the Covid-19 pandemic, allowing businesses to retain employees that would have otherwise faced redundancy, but the scheme is now winding down and the Government is encouraging employees back to work with the lifting of the last restrictions from 19 July 2021. The return to work and the winding down of the furlough scheme however mean that business will face new challenges.

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Asset Finance: Frustration of contracts and COVID-19

One of the effects of the pandemic has been to slow down (some might say even further!) the litigation process in the UK courts, and despite one or two high-profile decisions relating primarily to business interruption insurance there have been few reported cases dealing with the effects of the pandemic relevant to asset financiers.

One likely vehicle of attack by customers arises from the doctrine of frustration of contracts, which may discharge the parties from performance of a contract that has become legally or physically impossible through no fault of the parties. In general terms this doctrine is very difficult to establish, and for example the European Medicine Agency failed in its attempt to use frustration to extract itself from a long lease on its central London premises as a result of the fact that it had to move to Amsterdam following Brexit.

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Asset Finance: Disclosure of Brokers’ Commissions

The Court of Appeal has recently handed down judgment in Wood v Commercial First Business Ltd and Others and Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471, on the issue of broker “secret commissions”.

These decisions have caused something of a storm in the industry, and somewhat surprisingly in our view the NACFB is recommending “both regulated and unregulated firms, working in all sectors, should be transparent about their commissions and fully disclose the amount of commission received”.

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Asset Finance: Securitisation and the right to sue

We came across an interesting argument concerning the right to sue after securitisation of assets in a recent reported case we ran for an asset finance company, Haydock Finance Limited v Starcruiser Bussing Limited [2021] EWHC 622 (Comm).

The case involved commercial vehicles and acting for the funder we brought a claim against the hirer for return of the vehicles and the guarantor for a substantial sum. There appeared to be no merit whatsoever in the Defence as served, but by the time of the hearing the Defendants turned up with a so-called “Securitisation Analysis Report” prepared by an academic in California who describes himself as an “Expert Analysis on Auto Agreement Backed Securities Data.”

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A final extension on Covid business protection law?

Phil Farrelly

On the 22 June 2021 the Government extended, perhaps for the last time, the Coronavirus Act 2020 restrictions on issuing winding up petitions until 30 September 2021 (which is also when the furlough scheme ends)  and landlord forfeiture/Commercial Rent Arrears Recovery until 25 March 2022.

It was assumed that other restrictions, such as the suspension of liability for wrongful trading, would also be extended but that was not the case and  that suspension ended on 30 June 2021. So from 1 July 2021 directors can be sued for wrongful trading in respect of trading after 30 June which increases the deficit to creditors.

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Casting a net over Liverpool

Niki Addison, Concert Networks Ltd

Niki Addison is Managing Director of Concert Networks, a connectivity and communications company based in Northwich (Cheshire) supplying businesses throughout the North West. Concert’s current focus is a connectivity project for the Liverpool City Region, which will see the roll out of a brand new £30 million, 212km full fibre network.

Businesses who are able to connect to the network for their internet connectivity will benefit from speeds of up to 1 gigabit. Niki talked to Bermans about the roll out and why projects like this are so important to the local economy in 2021 and beyond.

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Is now the time to sell up?

Jon Davage

Many business owners are re-evaluating their future plans as a result of the pandemic. Some are finding that their thoughts on retirement planning are somewhat different now than they were back in 2019. Some owners have enjoyed more free time as their businesses have been forced to shut during the lockdowns and others have enjoyed more time at home as travel and office working has been discouraged.

In some cases exit plans have accelerated and business owners are looking at what options there are to achieve a sooner than expected exit. We consider some possible solutions in this article.

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EU GDPR – will this affect your business?

Stephen Green

Remember the introduction of the General Data Protection Regulation (GDPR) that overhauled data protection rules a couple of years ago and required lots of changes to how individuals’ data was stored and processed?

Since the end of the Brexit transition period on 31 December 2020, UK businesses now have two versions of the GDPR to take into account – the UK GDPR and the EU GDPR.

 

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Supreme Court swaps old test for new one in professional negligence claims

Andrew Koffman

Manchester Building Society (MBS) successfully appealed to the Supreme Court in a claim for negligence against its ex-auditors Grant Thornton (GT), after losing in the High Court and the Court of Appeal.

The facts of the case are quite unusual.  However the judgment is of wider importance since the court took a different approach to assessing loss arising from an adviser’s breach of duty, from the previous line of cases going back to the 1990s, and the decision should signal a change of direction.

 

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