Two highly experienced and well-regarded solicitors joined forces when establishing the specialist law firm, Cutler Buttery Solicitors, in Halesowen, combining commercial and family law legal skills.

Neil Cutler and Mark Buttery have both been partners heading up for many years specialist department in larger regional legal firms. Neil and Mark have represented clients in heavyweight commercial and family litigation with leading cases reported in the law reports. Neil Cutler has sat for over seven years as a deputy District Judge.

Now, through Cutler Buttery, they offer clients direct access to their skills, representation and advice.

Neil Cutler, who specialises in contentious and non-contentious legal work said:

“By working closely with our clients, whether business owners or private individuals, we can help them better understand their issues and options, and deal with the larger picture more effectively to gain a positive and successful outcome”.

Mark Buttery, a divorce specialist, said:

“Divorce, matrimonial issues, and family problems are truly personal, and clients tell us they appreciate having one point of contact, not having to face a whole team.”

Cutler Buttery offers the full range of contentious commercial and family law representation including commercial litigation, employment, insolvency, intellectual property, divorce, matrimonial finance, and children cases

Neil and Mark can be contacted on 0121 550 0010 at 1 Centre Court, Vine Lane, Halesowen, B63 3EB.

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• undertaken cases up to and including the Court of Appeal
• acted regularly as an advocate on behalf of clients up to trial
• made numerous successful injunction applications
• conducted much “technical” litigation involving engineering and construction disputes, particularly in the Mercantile and Technical and Construction Courts in Birmingham and elsewhere
• acted and appeared regularly in Chancery Division
• advised and litigated complex intellectual property cases
• represented insolvency practitioners in leading reported appeal cases
• represented clients in commercial and other arbitrations, adjudications and mediations
• developed an automated and successful debt recovery practice

Neil has also specialised in commercial legal work for his business clients including:

• undertaking transactional work for commercial clients acquiring or disposing of companies or their assets
• negotiating many commercial contracts and deals for clients
• drafting commercial contracts and other commercial documents including agency and distributorship documentation, licences and standard conditions of trading
• drafting conditions of employment and other employment-related documentation

Conveyancing involves quite a lot of jargon so we have italicised and defined the most important technical concepts and terms.

And, if at any stage of this document, you think “wow this is complicated”, please remember that at Cutler Buttery Solicitors, we do this work every day. We’ll cut through all the red tape, jargon and legalese for you…. So please ring Mark Buttery or Neil Cutler to discuss your conveyancing requirements.

For the more determined in you (are you studying law?) here goes…

Conveyancing - the “nitty gritty”

• land and interests in land are known technically as “realty” or “real property” (hence the similar expression in American law of “real estate”)
• “dealing in land” is the process of:

- transferring an interest in land
- creating an interest in land
- creating or otherwise dealing with rights in land where those interests are something - short of a legal interest in land

• the transfer of an interest in land is generally by sale, but sometimes by gift
• the creation of an interest in land is generally by lease or by mortgage
• an interest in land can be freehold or leasehold
• an interest in land is described as an “estate”(obviously not to be confused with a housing estate, although of the same nature as a “deceased’s estate”, i.e. the interest in property which the deceased owned at the date of death).

The three types of estate in land known to English law are:

• a freehold interest, i.e. an interest which is perpetual
• a leasehold interest, i.e. an interest for either a specific period of time (known as the “term” of a lease, and gives rise to the expression “term of years” sometimes used to describe a leasehold interest) or which is “periodical” (where the lease runs monthly, yearly or on some other rolling basis)
• a commonhold interest. This is a relatively new “hybrid” form of ownership allowing individual flats and other units (e.g. offices and commercial, but not agricultural) situated in a larger block to be owned on a perpetual basis similar to a freehold estate but with some of the features of a long leasehold interest by which such individual units were almost always previously held

What’s in a title?

The fact of ownership of land by which land is owned (e.g. freehold or leasehold) is known as “title”. To confuse things a little, the type of ownership is also known as “title”.

So:

• to say that X has “title” to land is to say that he owns the land, but without explaining what type of title X has;
• to say that Y has “freehold title” to land is to say that Y holds the land perpetually;
• to say that Z has freehold title to land but subject to “incumbrances” is to say that Z has perpetual title but that others have interests in and/or rights over the land - for example the land may be subject to a mortgage (an interest in land); alternatively the land may be subject to a restrictive covenant (a right to which the land is subject, but not an interest in land)

The right way to a right of way?

Certain rights over land are known as “easements”. Perhaps the best known example of an easement is a right of way over land. In the same way as restrictive covenants, easements are a burden on the land which they affect (that land is known as the “servient tenement”) and a benefit to other (generally adjacent) land (known as the “dominant tenement”). Other examples of easements include rights of passage of water and drainage and rights of light. Easements are noted on registered titles in the Property Register (where the land benefits as a dominant tenement) and the Charges Register (where the land is subject to the easement as a servient tenement)

Mortgages – a quick summary

• The grant of a mortgage creates an interest in land in favour of the lender, who is known as the “mortgagee”
• hat interest is created by the borrower, known as the “mortgagor” when granting the mortgage to the mortgagee
• The grant of a mortgage has the effect of giving the mortgagee security for repayment of his loan. That security is over the land mortgaged
• The mortgage provides the terms for repayment of the loan and if those terms are not met, then the mortgagee can take possession of the mortgaged land (generally requiring a Court order before he can do so) and then sell it as “mortgagee in possession”
• So far as conveyancing is concerned mortgages affect transactions as follows:
• If selling a property the seller’s solicitor must generally ensure that any mortgage on the property is repaid before or at the same time as completing the sale
• If buying property with funds lent on a mortgage the buyer’s solicitor (or sometimes the mortgagee’s own solicitor) must ensure that the title to the property being bought and standing as security for the mortgage is in order and that the mortgage document is properly completed and signed
• A solicitor will therefore have two distinct clients where acting for both the buyer and the mortgagee. The reason one solicitor usually acts for both is that it avoids duplication of effort doing much the same work twice for buyer and mortgagee.

Getting interested in rights?

Examples of rights in land which are short of interests in land include:

• in the case of title to land (i.e an estate in land) which is “registered” at the Land Registry, certain entries on one of the three Registers within any registered title (see below)
• in the case of “unregistered” land, certain entries on the Land Charges Register (again see below)
• the benefit and burden of restrictive covenants, i.e. obligations on the land burdened with the restriction not to do something in favour of other land benefiting from the restriction. A common example is a covenant restricting property from being developed in some way benefiting adjacent land- often landowners selling part of their land will restrict the land sold off in this way

Documentation – a short note

• the document recording a sale is known as a “conveyance” if the title is unregistered and a “transfer” if the title is registered
• a mortgage is known either as a “mortgage” or as a “legal charge”. For practical purposes they are the same
• save for “contracts” (see below in the section headed “Conveyancing Practice”) the document transferring or creating an interest in land or creating rights over land has to be a “deed” otherwise known as a “deed under seal”
• a deed uses formal wording to state that it is a deed and that it has been signed under seal
• the importance of this is that
• transactions involving land where the document is not under seal are not enforceable
• in a Court a deed “proves itself” i.e. it is not necessary to call the parties to the deed to prove its contents
• signature of a deed is known as “execution” by the parties (to be distinguished from execution of the parties – i.e. the death penalty!

The Land Registry

Briefly the system of registration of title to land at the Land Registry works as follows:

• registration is by completion of various standard forms (differing dependent on the type of transaction and the extent of registration) and the filing of the form at the Land Registry together with relevant deeds and the sale document (usually a transfer) and together with the prescribed fee
• all titles registered at the Land Registry are public and open to inspection on payment of a modest fee
• once registered the State guarantees the title to every registered title. If having relied in good faith on a registered title a purchaser subsequently is victim of a defect in the title, then the State pays compensation to that purchaser equivalent to the reduction in value in the land from what its value would have been apart from the defect
• all such titles are given a unique “title number” by which they can be identified
• not all property in the UK is registered. However registration is compulsory if there is a dealing with unregistered land (subject to a few exceptions)
• if a purchaser wants to establish whether property is registered it is possible to make an “Index Map Search” at the Land Registry. As with most Land Registry searches this can be done by post or on the Net. The search will reveal the title number if registered
• an authorised copy of any registered title can be obtained from the Land Registry. This is accurate at the date of issue and is known as “official copy of register entries” or more usually “office copies”
• title is disclosed by the seller to a purchaser by providing up to date office copies
• each registered title is subdivided into three Registers:

The Property Register

- sets out details of the property by address and by reference to a plan, known as the “filed plan” prepared by the Land Registry off the Ordnance Survey.

- it also deals with whether the property is freehold, leasehold or commonhold

- it also summarises the rights benefiting the property

the Proprietorship Register

- sets out details of the “registered proprietor” i.e. the owner(s)

- it also deals with the “quality” of the title, the best being with “title absolute” , the worst being “possessory title”. The quality of the title can affect its saleability and mortgageability

- it also sets out any “notices” or “restrictions” on the registered title. These are formal entries benefiting/protecting third parties by restricting dealings with the property. They are not restrictions such as restrictive covenants which affect the use of the property. Examples of notices/restrictions include the restriction preventing one of two or more co-owners from validly transferring the property and the restriction on dealing in favour of a wife asserting rights of occupation of the matrimonial home under the Matrimonial Homes Act (usually in divorce proceedings)

The Charges Register

- sets out all registered charges affecting the property, i.e. matters adversely affecting it

- charges are distinguished between “financial charges”, generally mortgages, and other charges such as restrictive covenants

NOTE: that whereas the price (where known) for the property paid by the registered proprietor is noted in the Property Register, the amount of any mortgage debt is treated as confidential and is not recorded

A useful rule of thumb is that entries in the Property Register are beneficial to an owner whereas entries in the Charges Register are restrictive or limiting to an owner

Unregistered Conveyancing

Unregistered conveyancing works on different principles to registered conveyancing and to a different procedure

• Title has to be “deduced”(i.e. disclosed) by the seller to a purchaser by reference to the “deeds”
• There is likely to be a deed corresponding with every transaction affecting the property often going back for many many years

Logically therefore as the years have gone by and the property has been sold and resold, mortgaged and remortgaged the number of deeds will have increased considerably. If therefore every deed, no matter how old, had to be disclosed to a purchaser the process would become impossibly cumbersome

Fortunately however that is not the case. The reason is that the obligation as to how far back a seller has to go in deducing title to a purchaser has been limited by Act of Parliament. The way this works is that a seller has to deduce title only so far back as to the most recent deed which is a legal “root of title”. A root of title has the following essential characteristics:

• It is a deed. Therefore an event such as the death of an owner is no good. Similarly a document such as a death certificate or probate of an owner’s death will not do. These are mentioned because some conveyancers try it on!
• The transaction is “for value”. It follows therefore that a Deed of Gift – a.k.a. a “voluntary conveyance” - such as often occurred between a husband to his wife in earlier days is no good. However a mortgage is a good root of title if it has the other required characteristics as it is for value, securing as it does a monetary loan
• [MOST IMPORTANTLY] the deed was executed at least 15 years ago . As will be apparent this operates as a cut-off on how far back the seller has to go in deducing title

To deduce title modern practice is to prepare from the original deeds a bundle of photocopies of the title deeds and any intervening searches starting with the root of title. This bundle should be (but often is not) indexed by a schedule on the front, the whole being known as an “Epitome of Title”. Historically, prior to the availability of photocopying, abbreviated summaries of title deeds were used in place of epitomes; these are known as “Abstracts of Title”. It is not uncommon to find that the only copy of certain deeds with the client’s deeds is a “marked abstract”, i.e. an abstract which a previous owner’s solicitor has certified in writing on the abstract as being a true copy of the original. Generally marked abstracts are acceptable to a purchaser, his mortgagee and to the Land Registry on an application for first registration

A bit of history for you as light relief:

Overall unregistered conveyancing is great fun. As one “investigates” a title so as to prepare the epitome and the contract there is a real sense of history and of witnessing how land has changed and been developed over the centuries. Particularly in rural areas, the older deeds are often works of art, having been handwritten by solicitors’ clerks in beautiful but sometimes difficult copperplate script, with hand painted plans and real silver seals. There is definitely a kick to be had in spreading out these old documents, seeing how they interrelate and sorting out what rights and obligations still affect the land and how they arose.

Those clerks did nothing else but write out the deeds. They were known as “engrossers”, the term “engrossment” being the term (still used today) for drawing up the final agreed form of any deed which the parties are to sign. The senior partner of the firm at which Neil Cutler was articled could remember engrossers from when he was articled and told Neil that they were notorious alcoholics because of the monotony and precision required of the job (there are never any amendments in a handwritten deed). Unfortunately as registered land has almost taken over now (Herefordshire and parts of Worcestershire were the last areas in the country to be zoned for compulsory first registration) unregistered conveyancing is very much a dying art

The Searches

In both registered and unregistered conveyancing there is a gap between the date title is deduced (in registered conveyancing, the date of issue of the office copies; in unregistered, the date of the last transaction affecting the property) and the date of completion of the current transaction. During that gap the title could change and third parties could obtain title to/ rights over the property. To protect against this a person who is acquiring an interest in the property will “search” shortly before completing the transaction.

The type of search depends on whether the land is registered or unregistered:

• If registered the search is at the Land Registry
• If unregistered the search is at the Land Charges Registry

The entries revealed by a Land Registry search are different to those revealed by a Land Charges Registry search:

Land Registry search:  The entries are simply an update of the office copies

Land Charges Registry search:   The entries are under 6 lettered “classes”, i.e. from Class A to Class F.

For interest’ sake perhaps the most important classes are these

• Class C(i) – this is a “puisne mortgage”. This rather quaint term means a mortgage created without a deed by the mortgagor simply handing over the title deeds to the mortgagee as security. This often happens where banks take informal/urgent security
• Class C(iv) – this is an “estate contract”, i.e. a contract affecting the land. Unfortunately this does not usually cover a contract for sale of the land to another buyer, so if the seller has sold the land twice the buyers are unlikely to be protected. It does however cover rights such as options to buy
• Class E - this is the registration protecting restrictive covenants
• Class F – this is the registration protecting a wife’s statutory right to occupy the matrimonial home under the Matrimonial Homes Act

The important common feature of both searches is to give the person searching a short period of “priority” against subsequent registration of entries on either register. If the transaction is completed (and in the case of registered land or land subject to first registration, registered) then the position as shown by the search is fixed and the purchaser is not vulnerable to subsequent entries registered by third parties

“You’ve been negligent”

In a increasingly litigious world, these are words to chill the blood of many professionals. The press coverage of claims against multi-national accountancy firms for very large awards has heightened awareness of such liability.

What are the real characteristics of a professional negligence claim ?

Try these :

o Firstly, unlike many claims arising from a commercial relationship, the professional is likely to feel that his expertise and reputation are being challenged . Perhaps irrationally but consistent with human nature , the professional may therefore respond at least initially as though he has been personally insulted . It is less common for this “personal” element to show itself in other commercial disputes.

o Secondly most professionals carry professional indemnity (“p.i.”) insurance. This means that a valid claim will almost certainly be paid out, there being the insurance policy to fall back on. On the other hand , the known availability of insurance makes professionals fair game for less scrupulous claimants, especially as most p.i. insurance is written with a substantial excess which may well be lost to the professional in terms of his insurers’ legal fees , win or lose . Also claims whether or not paid out by p.i. insurers may adversely affect the professional’s renewal premium . There is therefore pressure on the professional to settle, at least within the excess.

Usually about services

o By the nature of what a professional does, the complaint will be about services provided, not goods delivered. It is generally easier to establish whether goods are faulty than whether a service has been satisfactorily provided. Sometimes the negligence is there for all to see – examples are the solicitor who misses a deadline , the doctor who operates on the wrong patient , the surveyor who values the wrong building . There is even a legal doctrine specific to negligence,“res ipsa loquitur” , i.e. “it speaks for itself”. However in many cases the the negligence is not that clearcut.

Probability plays a role

o It is a fundamental of English law that a claimant – in professional negligence cases the professional’s client – must prove his case on “a balance of probabilities”, i.e. more than 50% probable. To do so in a case which is not clearcut, the client will require expert evidence from an appropriately qualified third party . There is a catch here. The client will need that evidence before issuing to ensure that he has at least an arguable case. The professional or his insurers will probably obtain their own expert evidence. If matters rested there, the two experts would battle it out in Court if they could not agree – all well and good. However the Court Rules and the Judges prefer that there be a single joint expert – who obviously will not be one of the parties’ experts – and this introduces the twin evils firstly of uncertainty of outcome and secondly of further expense , at a stage when costs may well already be considerable. On the other hand, the findings of a single joint expert are very likely to resolve the dispute at least as far as the issues on which the expert is appointed are concerned.

Patience is essential

o Most professional negligence claims proceed through the Courts, rather than by arbitration (which tends to apply mainly to the construction industry). The Court Rules impose on the parties a “protocol” for professional negligence claims which provides for a very extended timetable before issue of proceedings and which can be exploited by those representing professionals to cause many months of delay. Patience is required!

o Insurers as a rule are not in business to pay out claims; the more claims they can head off the more profitable they are. A client making a claim against a professional can therefore expect both his resolve and his wallet to be tested in the early stages of a claim , firstly by being tested as to his arguments and evidence supporting the claim and secondly by being forced as a result to spend money with his legal team .

Making a successful claim

o The law of negligence is often misunderstood and it is vital to appreciate what is required for a successful claim. Negligence has the following components :

§ A duty of care must exist owed by one party ( the professional ) to the other party ( the client ). Generally that duty exists where a professional is acting in the course of his profession for a client;

§ There must have been a negligent act, i.e. an act by the professional which fails to come up to the standard required by the duty of care. That standard is one of reasonable care to be expected of a competent professional in the exercise of his profession having regard to all relevant circumstances.

§ There must be loss arising as a result of that negligent act. The loss does not have to be actual – it can be future loss. Often claims in professional negligence cases are for “loss of a prospect” or “loss of a chance” (the same thing). For example, certain solicitors have been known to allow cases to be struck out because of their neglect – in such situations the Court in the ensuing negligence action by the client against those solicitors would have to assess the client’s chances of success in the action struck out , i.e. the prospect the client would have had of winning the case had it been allowed to continue. It follows that if the Court decided that the client would not have won that case, then sadly and ironically the negligent solicitor will have done the client a favour by allowing the claim to be struck out and no loss arises.

§ If the client’s loss does not arise from the act of negligence, then there can be no claim. So for example, if a structural engineer designs a building for a particular site which if built to that design would collapse, but if it proves impossible to build the building because of a restrictive covenant affecting the site, then there is probably no loss arising from the negligence.

§ A claim in professional negligence may well include a claim for economic loss. Such loss is recoverable in principle provided there is a relationship between the parties analogous to a contract. Be watchful therefore where a professional has subcontracted out work to a third party – the relationship analogous to contract may not exist. Economic loss is notoriously difficult to prove as to amount, generally being for loss of profit or contribution and often very speculative; Judges inevitably take a very cautious view in that situation. Finally economic loss often involves expert evidence from accountants and perhaps other professionals (for example in building cases) and this can be very expensive.

§ A professional’s liability may be limited in other ways. It may be that the extent of the service provided and thus the duty of care is limited by contract between the parties. For example a tied financial advisor is unlikely to have a duty to give best advice as to insurance products outside those of the company to which he is tied. Building contracts often define very clearly the obligations of an architect or supervising officer ; it is unlikely a duty exists to go further than those obligations.

§ In addition, some contracts with professionals incorporate exemption clauses. This remains a troublesome area of law because unusually in commercial law, the Judge is required to exercise discretion, in this case as to whether reliance on the exemption clause is reasonable in the circumstances . We have produced a specific information sheet on the subject of standard trading conditions including exemption clauses and will happily provide this on request. Suffice it to say that we would expect a Court as a general rule to be unimpressed with a professional firm or body seeking to rely on an exemption clause, although in appropriate circumstances there is no reason in principle why this should not be done. It does however follow that it is well worth taking legal advice in advance on other than the most straightforward of contracts for professional services.

The format

o The conduct of a professional negligence action follows largely the format of other civil cases. If it is a substantial case, it may be referred to one of the specialist judges at a regional trial centre. However before issue the protocol referred to above requires the following:

§ An initial written indication that a claim may be made;

§ A copy of that indication in the hope that the professional will pass it on to his insurers (he would be most unwise not to , but it does happen);

§ A detailed letter of claim as soon as possible itemising the negligence and the loss arising (which should be quantified if possible);

§ The professional/his insurers then have a period of 3 months in which to investigate the claim and reply, particularly as to whether it is to be contested or not and if so why. They can and often do ask for that time to be extended;

§ there is generally provision of documentation relied upon or asked for by either side.

Beware the pitfalls

o N.B.Here is a trap for the unwary. Often in professional negligence cases the potential negligence becomes apparent before the final bill is drawn up/paid to the professional. Clients who consider a professional has been negligent are understandably reluctant to pay. The non-payment may however entitle the professional to claim a “lien” on the papers in his possession which might prove the negligence. Also, some professions, notably the accountancy profession, take the view that files belong to the professional, not the client; solicitors accept that a file once paid up to date belongs to the client.

o There are three ways round this:

· pay the invoice , but do so without admission, reserving all rights and under protest. This may not appeal but where only small sums are involved, it is practical;

· some professional bodies, notably the Law Society and its complaints arm, seem to deplore such conduct and on a formal complaint may require release of the file;

· as a last resort , threaten an application to the Court for “pre-action disclosure” by which the Court is empowered to order disclosure of documents necessary to a prospective claimant , here the client, who has reason to believe he may have a claim but needs access to documents in the hands of another, here the professional , to verify this. Our expectation is that most Judges hearing such an application would be taken aback that matters had got this far without co-operation from the professional/his insurers and might well order costs against the professional for unreasonable conduct of litigation.

The “Summary Judgement”

o In certain unusual cases it may be possible to apply to the Court for “summary judgment” or a payment on account of damages expected to be awarded to the client. The burden on the client in either application is very high indeed and is really only available in “sure thing” situations. However sometimes a case is that clearcut and delay may be disastrous to a client (generally for financial reasons, themselves often arising out of the negligence) so that an application can be justified. The beauty of doing so is that money is obtained at an early stage, perhaps only a couple of months into the litigation, rather than after trial many months later.

Mediation matters

o Finally a brief word about mediation and alternative dispute resolution (“ADR”). Please bear in mind that mediation is well-suited to professional negligence claims and in our experience more often than might be supposed produces a negotiated result.

In Summary

o In summary therefore, professional negligence cases are not a free pot at an advisor’s insurance policy. The onus is on the claimant to make all the running and he can expect insurers for the professional to test him out. Such proceedings can be costly if experts are involved. However because insurers are professional litigators, where they are on risk of losing and when opposed by an experienced and skilled solicitor acting for the claimant, they will aim to settle rather than allow costs to escalate overmuch. All in all once identified as such, a good case will win as insurers well know.

Children Act 2004 - guidance on the ‘duty to cooperate’

From: http://www.everychildmatters.gov.uk/strategy/guidance

The Children Act 2004 provides the legal underpinning for the transformation of children’s services as set out in the Every Child Matters: Change for Children programme. Section 10 of the Act provides the statutory basis for Children’s Trusts (the duty to cooperate).

Revised Children’s Trust guidance on the ‘duty to cooperate’ was published on 18 November 2008. The ‘relevant partners’ currently under the ‘duty to cooperate’ are: district councils, the police, the probation board, the youth offending team, the Strategic Health Authority and Primary Care Trusts, Connexions partnerships, and the Learning and Skills Council.

The relevant partners are placed under a ‘duty to cooperate in the making of arrangements to improve well-being’ and have a power to pool budgets and share other resources.

The Government is intending to add to this list of relevant partners other bodies including maintained schools, Academies, FE and sixth form colleges and Job Centre Plus, to bring key delivery partners into the strategic planning role of the Children’s Trust.

For more information and guidance, go to the Children’s Trust page.

The Children’s Plan

The Children’s Plan: building brighter futures recognises the importance of Children’s Trusts in forging collaborative partnerships, improving integration of services and delivering measurable improvements for all children and young people.

To help drive forward this ambition the Government is committed to considering whether Children’s Trust arrangements need to be strengthened, including through further legislation. To this end, on 3 April 2008, the Secretary of State, Ed Balls, launched a consultation on the updated guidance Children’s Trusts: Statutory guidance on inter-agency cooperation to improve the well-being of children, young people and their families, which supplements the existing guidance issued in 2005.

Guidance on the Children and Young People’s Plan (CYPP)

A key element in the implementation of Children’s Trusts is the development, by the local authority and its partners, of a single, strategic, overarching plan for all services affecting children and young people - the Children and Young People’s Plan (section 17 of the Children’s Act 2004).

Revised CYPP guidance should be available in December 2008. It will replace the previous guidance issued in 2005 and 2007; bring together the 2005 and 2007 CYPP regulations into one place, and reflect new performance management arrangements.

For more information and guidance, go to the Children and Young People’s Plan page.

Guidance on the roles and responsibilities of the Lead Member for Children’s Services and the Director of Children’s Services

A consultation on revised ’statutory guidance on the roles and responsibilities of the Lead Member for Children’s Services and the Director of Children’s Services’ was published on 18 November 2008. The consultation will run from 18 November to 10 February 2009. This guidance explains how the roles of the LM and DCS are distinct and complementary and how working together as a team, they can be most effective in driving clear improvements in outcomes for children and young people.

For more information, read the 2005 statutory guidance along with the revised statutory guidance which is currently under consultation.

Local Safeguarding Children Board Guidance

The establishment of local safeguarding children boards (LSCBs) is an important element of the improved safeguards for children put in place by the Children Act 2004 - the creation of LSCBs fulfils sections 13-16 of the act. The LSCB and its activities are part of the wider context of children’s trust arrangements. Each local authority needs to have an LSCB in place by April 2006.

The LSCBs guidance forms chapter three of Working Together to Safeguard Children.

Click to read the guidance on LSCBs or to read more about LSCBson this site.

Working Together to Safeguard Children

Working Together to Safeguard Children sets out how individuals and organisations should work together to safeguard and promote the welfare of children. The guidance has been updated since the previous version which was published in 1999. The new version reflects developments in legislation, policy and practice.

Click to read the guidance.

Guidance on the Duty to Safeguard and Promote the Welfare of Children

Working Together and the Guidance on the Duty to Safeguard and Promote the Welfare of Children, both deal with the key cross cutting issue of safeguarding and promoting the welfare of children.

Click to read the guidance.

Children Act 1989, Guidance and Regulations, Volume 1 Court Orders

Children Act Guidance and Regulations, published originally in 1991, provided a suite of guidance, primarily addressed to local authorities. Volume 1 addresses the court-related provisions set out in the Act. Following the Review of the Child Care Proceedings System in England and Wales, published in May 2006, and public consultation on draft guidance between June and September 2007, revised guidance has now been prepared, which is being published alongside this letter. This replaces the 1991 edition and comes into effect from 1 April 2008.

Read the guidance and letter, available on the DCSF website.

“I haven’t anything in writing so I haven’t got a contract, have I?”

Not so fast – if you and I are talking and I agree to sell you my car, then we do have a deal, an oral contract, enforceable in a Court. In practice, contrary to what many people think, the only contracts which must be in writing are those which deal with land. However the problem you have with the car contract is one of evidence, not law, - how are you going to prove that we have an agreement?

Get it in writing!

Because of this it is only sensible to make sure that contracts are in writing. When trading regularly with a customer or trading in volume with a large customer base, it becomes impractical to negotiate individual contracts with each customer on each deal and that is where standard conditions come in.

But how?

o Standard conditions come in two forms, firstly conditions of sale (the more common) and secondly conditions of purchase. However before dealing with the conditions themselves, it is necessary to appreciate that the most carefully drafted conditions are useless if they are not properly incorporated into contracts. So an explanation of how the paperwork actually works may be useful.

o It is of course possible to have a stand-alone contract for a specific deal but which is subject to standard conditions. If this occurs the conditions will be incorporated as agreed terms of the contract.

o However the more usual situation is where standard rather than bespoke paperwork is used. This is known as “the battle of the forms”.

o The first document likely to be used is a written quotation. If standard conditions of sale are used, they will be set out on the quotation (usually on the reverse side and referred to on the front as being conditions to which the quotation is subject. If the quotation is accepted without comment, or if the goods or services quoted for are provided by the seller to the buyer, then the standard conditions of sale will have been incorporated into the contract.

o However often the seller’s quotation is answered by a written order from the buyer on which there are conditions of purchase inconsistent with the seller’s conditions of sale. Where this happens there clearly is no agreement as to the conditions of the contract. The legal status of the order is as a counter-offer to the original offer represented by the quotation. At this stage there will be no contract.

o What then conventionally happens is that the seller sends out a further document, a written acknowledgment of order. The acknowledgment will repeat the seller’s standard conditions as conditions to which the acknowledgment is subject. Again there is no agreement as to the conditions of the contract at this stage, the acknowledgment being legally a counter-offer to the counter-offer the order represents.

o The contractual paperwork generally comes to an end at this stage and the goods or services are provided to and accepted by the buyer. That acceptance is taken to be on the seller’s conditions which become incorporated into the contract and bind the buyer.

o N.B. a word of warning – logically it may well be the case that if the buyer refused to take delivery in the above circumstances, a Court would find that there was no binding contract and so the seller would have no claim. Clearly this is a potentially dangerous situation where bespoke goods are being provided, since if they are refused there may be no ready alternative market for them.

o To complete the picture so far as incorporation of conditions of purchase are concerned , these are likely to be incorporated if referred to in a buyer’s order and if no acknowledgment of order is issued by the seller .

Standard conditions of sale often used

Having explained how standard conditions are generally incorporated , we can move on to the various individual standard conditions of sale generally in use :

i. The parties to the contract:

These should be specified so that the obligations of each party are clear, and so that if necessary, it is clear who should be sued for any breach.

ii. The contract :

Again it is advisable to define the contract, even if this is open to challenge if the sellers conditions have not been incorporated.

iii. The goods and/or services to be supplied :

It is vital that these are clearly defined. This is usually by reference to the description given in the narrative of the quotation and/or order acknowledgment.

iv. The price payable :

· Firstly the price needs to be identified. This again is usually by reference to the price (either per unit or overall) specified in the quotation or acknowledgment but on occasion it is by reference to the sellers catalogue or other documentation.

· Secondly there is often provision for price escalation if variable costs are likely to change.

· There may be provision for payment of the price by agreed instalments; these are usually set out in the narrative of the paperwork.

· Provision is sometimes made for carriage and/or packaging costs.

v. Payment of the Price :

· Payment terms are important because among other things they dictate when a seller becomes entitled to sue.

· In addition it is sensible to provide expressly for the consequences of non-payment, such as interest (including interest under the Late Payment etc legislation).

vi. Delivery of Goods :

This is a necessary commercial term; the parties need to know who is responsible for delivery and where delivery, i.e. handover of the goods, is to take place. In addition this has important legal implications under Sale of Goods legislation since title passes on delivery unless a specific contrary provision is included.

vii. Risk in Goods :

Legally unless specifically agreed otherwise, risk passes on delivery. It is therefore important to make sure that the parties both know where they stand as to at whose risk the goods are at any one time , so that appropriate insurance can be arranged .

viii. Title to Goods :

This is a most important area which well-drawn conditions will regulate. The seller will aim to retain title to goods supplied until either those goods have been paid for or all goods supplied by the seller at the time the condition is relied upon have been paid for. Such clauses are known as “retention of title” (R.O.T.) or “Romalpa” clauses.

ix. Liability (i.e. exemption clauses) :

Together with R.O.T.clauses, exemption clauses are a crucial part of the seller’s armoury to protect himself from the buyer. The general principle remains that parties should be free to agree such terms as they see fit, i.e. “buyer beware”. However so far as exemption clauses are concerned, the legislature has restricted and in some cases outlawed the right to exclude or limit liability.

Firstly so far as a consumer (i.e. a person not acting in the course of a business) is concerned, the opportunity to exclude/limit liability is very restricted. If trading on standard paperwork substantially with consumers ( for example , hire shops ) great care is necessary to ensure that the conditions are drafted within the limited areas of exclusion allowed to avoid falling foul of a Court ( and possibly one’s insurers ) in the event of a claim.

So far as dealings with traders are concerned, the legislation provides:

· It is simply not possible to avoid liability arising from death or personal injury ;

· It is possible to exclude ( including by way of indemnity ) or limit liability for loss arising from:

· Negligence ;

· The supply of defective goods or unsatisfactory materials ,

But in each case only where it is reasonable to do so. The legislation provides various indicators for a Judge to take into account in deciding what is reasonable, including:

· The parties’ relative bargaining power

· The information available to the parties when contracting

· Whether the clause excludes or merely limits liability

· The availability of insurance

· Whether the terms of the contract were specifically negotiated or in standard form

N.B. It is for the seller to show that the term is reasonable.

It is sensible to try to tie in exclusion clauses with the cover provided by product liability insurance, if obtained .

The position so far as the effectiveness of exclusions in export contracts is concerned is complex and somewhat unsatisfactory. Please feel free to contact us for further advice on exclusion clauses, whether for domestic or export contracts, so as to avoid any avoidable difficulties arising.

x. Intellectual Property :

N.B. This is a specialist topic in its own right and we will be happy to advise.

xi. Arbitration :

Again this is a specialist topic. In summary arbitration is a method of determining a dispute but without reference to the Courts. The arbitrator acts in a judicial capacity and the procedure is generally similar to that followed in court. Decisions are binding and can be enforced, using the Courts’ machinery for doing so if necessary. Arbitration proceedings are private, whereas Court proceedings are generally public. However arbitration can be costly as the services of the arbitrator have to be paid for, as does the room or rooms used during the proceedings. It may be that the benefits of arbitration outweigh its disadvantages. In order to require arbitration of disputes and so oust the jurisdiction of the Courts, it is essential that an effective “arbitration clause” is incorporated into the contract. We will be happy to advise on the detailed pros and cons of arbitration both in the context of standard conditions and bespoke contracts.

xii. Export.

Again this is specialist and if your business is involved in significant export sales we will be happy to draft standard legal documentation for you. However if it is necessary to have some export conditions incorporated in your standard conditions as a safeguard, then the following are probably the minimum:

· It is necessary to provide for when legal “delivery” takes place. There are various (often abbreviated) commonplaces, such as “ex works” or “free on board” (“f.o.b.”). As risk is tied up with delivery it is essential to define delivery to coincide with your insurance arrangements.

· The price must be defined with care, to ensure that you are not left with financial obligations (for example for carriage and/or packaging) which you cannot recover from the buyer. Terms such as “c.i.f.” (Cost insurance freight) may be appropriate.

· Payment may be more likely to be an issue in an export contract. Letters of credit may be involved. Credit insurance may be involved in which case it is essential that the conditions tie up with the cover obtained.

xiii. Jurisdiction.

Under English law it is possible to require by contractual condition that English law shall be the law applicable to the contract which shall be an English contract and that the Courts of England and Wales shall have jurisdiction to decide any disputes. This is helpful in these respects:

· Your English solicitors who drafted your conditions can assist with any dispute arising (few English solicitors have detailed knowledge of foreign law and legal systems).

· A judge sitting in an English court will of course be fully familiar with the principles of English contract law.

· The cost of advising an English judge as to the provisions of foreign law will be avoided.

· The further cost of litigating in a foreign country will be avoided.

At Cutler Buttery Solicitors Neil Cutler has 30 years specialist experience of acting for numerous companies, whether PLC or private, in a very wide range of commercial matters and has drafted (and litigated) numerous conditions of trading during that period.

Please contact Neil Cutler for detailed guidance and advice in relation to all aspects of commercial transactions and contracts.

Buying or selling a business is never stress-free, but it can be made easier – if everyone pulls in the right direction.

If you are selling your business, you are bound to have strong ties to it.  After all, you may have conceived of the idea, and nurtured it through good times and bad.  Your longest serving employees may be like old friends, and most of all - part of YOUR identity is within that business.

If you’re buying a business you want to ensure you get the best possible deal, and that the due diligence is up to scratch.  You’ll be aiming to carry on the trade, or to splice it into your existing company, but whatever your plans, you need to ensure that what you are buying is what you agreed at the outset.

Wherever you are in the business buying/selling process, there are numerous issues to be considered, and every business transaction is a separate and independent event.

At Cutler Buttery our partners have experience in business transactions at every level, and for every size of organisation.

If you may have committed a driving offence, here’s a quick guide about what’s what.

Notice of intended prosecution

Under Section 1 of the Road Traffic Offenders Act 1988 - you’ll find the whole Act here - the following offences require that you be given notice of the fact that you may be prosecuted:
a) Dangerous Driving
b) Careless & Inconsiderate driving
c) Leaving a vehicle in a dangerous place
d) Dangerous cycling
e) Careless & Inconsiderate cycling
f) Failing to conform with the indication of a police officer when directing traffic
g) Failing to comply with a traffic sign
h) Exceeding temporary speed restrictions imposed by Section 14 of the Road Traffic Regulation Act 1984
i) Exceeding speed restrictions on a special road
j) Exceeding temporary speed limit imposed by order
k) Speeding offences generally

What form must the notice take?

It can be :
a) given verbally at the time of the offence, or
b) by a summons being served on the offender within 14 days of commission of the offence, or
c) a notice of intended prosecution, specifying the nature of the offence and the time and place where it is alleged to have been committed, must be served on the offender, or the registered keeper of the vehicle at the time of the offence, within 14 days of the offence.

These provisions are deemed to have been complied with unless or until the contrary has been proved (i.e. you will have to raise it).

If you have not been given the notice within 14 days (ignoring the day of the offence) then they cannot proceed against you unless one of the exceptions set out below applies.

Exceptions & Get Outs

a) No such notice is required if a full or provisional fixed penalty notice has been given or fixed under the Road Traffic Offenders Act 1988.
b) A notice sent by post must be dispatched so that it would reach the driver within the 14 day period within the ordinary course of the post. If this is the case then it will have been deemed to have been served even if it is delivered outside the 14 day period.
c) If there is an accident involving the vehicle in question, of which the driver is aware, then the police do not need to provide a Notice of Intended Prosecution.
d) Failure to comply is no bar where the police could not with reasonable diligence have ascertained the name and address of the accused in time for service of the summons or notice within the 14 day period, or the accused contributed to such failure. [These are our highlights - might apply for example if you drive a hire car, company car or you were not the registered keeper]
e) Service of a notice at the last known address of the accused will suffice for good service.

Do you need to respond to a Notice of Intended Prosecution?

Originally it was thought not because of the effect of European legislation as now incorporated in our Human Rights legislation. However a recent decision seems to require that a response is given to these Notices - check out the latest by clicking here.

Caught on camera

It appears that a legal loophole in road traffic legislation regarding speed cameras has been firmly closed by a Privy Council ruling in the case of Margaret Brown.

Prior to that ruling there had been lower court decisions in both Scotland and England, suggesting that to ask drivers to confirm whether they were driving a car at the time an offence was committed was contrary to Article 6 of the European Convention on Human Rights, and so was itself illegal. As a consequence many speed camera prosecutions failed simply because the identity of the driver could not be established.

Road Traffic Offences

These are some of the more common driving offences.

NOTE: the bracketed initials are the codes used to describe these offences on licence endorsements.

Failing to Stop/Give Particulars after an accident (AC10) (AC20)

“Being the driver of a mechanically propelled vehicle, owing to the presence of which on a road an accident occurred whereby personal injury or damage was caused to another person or another vehicle or an animal not in the vehicle, or property on or near the road, then failed to stop or on being required by a person to give your name and address and the name and address of the owner and the identity mark of the vehicle, failed to do so.”

Maximum Penalty
6 months imprisonment and/or fine not exceeding Level 5 (see Table below)
Endorsement with 5-10 penalty points
Discretionary disqualification

Failing to Report an Accident (AC10)

“Being the driver of a mechanically propelled vehicle, owing to the presence of which on a road an accident occurred whereby personal injury was caused to another person, and not having given your name and address to a person having reasonable grounds for requiring you to do so, failed to report the accident at a police station or to a constable as soon as reasonably practicable and in any case within 24 hours of the occurrence of the accident.”

Maximum Penalty
6 months imprisonment and/or fine not exceeding Level 5
Endorsement with 5-10 penalty points
Discretionary disqualification

Speeding/Exceeding the speed limit (SP30)

“Driving on a road exceeding the prescribed speed limit”

Maximum penalty
Fine not exceeding Level 3
Endorsement with 3-6 penalty points
Discretionary disqualification

Speeding on a Motorway (SP50)

“Driving on a motorway in excess of the speed limit”

Maximum Penalty
Fine not exceeding Level 4
Endorsement with 3-6 penalty points
Discretionary disqualification

Totting up

o Where a driver accumulates 12 penalty points within the 3 year period from the date of the offences (NOT the date of the hearings) a driver can be disqualified under the totting up provisions.

o The minimum period of disqualification is 6 months.

o Following disqualification all points are removed at the date you get your licence back.

o To avoid a ban for totting up mitigation in the form of “exceptional hardship” (such as the loss of employment or family hardship) must be proed to the Court.

AT A GLANCE PENALTIES - LINK TO TABLE >>>>>

Endorsements

A licence will remain endorsed for 11 years from date of conviction if the offence is for:

o Driving while under the influence of drink or drugs (shown on the licence as DR10, DR20, DR30 and DR80).

o causing death by careless driving while under the influence of drink or drugs (shown on the licence as CD40, CD50 and CD60).

o causing death by careless driving, then failing to provide a specimen for analysis (shown on the licence as CD70).

A licence will remain endorsed for 4 years from date of conviction if the offence is:

o reckless/dangerous driving (shown on the licence as DD40, DD60 and DD80).

o an offence resulting in disqualification.

o driving while disqualified from holding a full licence until a driving test has been passed.

A licence will remain endorsed for 4 years from the date of the offence in all other cases.

Removal of endorsements

Different procedures apply depending on whether you hold a paper licence or a photocard licence.

In both cases, at the appropriate time you can apply to have endorsement(s) removed from your licence by completing a DVLA D1 application form and sending the appropriate fee to DVLA, Swansea, SA99 1AB.

If you hold a paper licence, you must also fill in a photocard D750 application form. You must also enclose original documentation confirming your identity and a passport sized photograph.

Forms are available from a Post Office.

Disqualification and Revocation of Licences

o Short Period Disqualifications.

If you were disqualified for less than 56 days, after stamping your licence as to how long you are disqualified for, the Court will return it to you. You do not need then to renew your licence when the short period disqualification ends and your licence becomes valid again the day following the expiry of the disqualification.

o Revocation under The Road Traffic (New Drivers) Act 1995.

a) If you pass your first driving test on or after 1 June 1997, and

b) then incur penalty points wiihin two year periods following first passing your driving test, and

c) there are 6 or more penalty points on your licence

your licence will be revoked by the DVLA. You will then have to obtain a provisional licence, drive as a learner, and pass the theory and practical test again in order to regain your full driving licence. Passing the retest will not remove the penalty points from your licence.

o For other instances of disqualification, please see “Penalties” above.

Getting your licence back following disqualification

o Firstly you must apply for a new licence, even if your old licence has not yet expired

o The DVLA will make medical enquiries if you have :-

a) been disqualified for driving, or being in charge of a vehicle, when the level of alcohol in the body equalled or exceeded :-

i.) 87.5 microgrammes per 100 millilitres of breath, or

ii.) 200 milligrammes per 100 millilitres of blood, or

iii) 267.5 milligrammes per 100 millilitres of urine.

b) two disqualifications within 10 years for drink/driving or for being in charge of a vehicle whilst unfit through drink.

c) one disqualification for failing or refusing to supply a specimen for analysis.

o Paper licence holders must complete DVLA driving licence application form D1 and photocard application form D750 and enclose the appropriate fee together with original documentation confirming identity and a passport sized colour photograph.

o Photocard licence holders must complete DVLA driving licence application form D1 and enclose the appropriate fee. If your name has changed since your last licence was issued you must complete driving licence application form D1 and photocard application form D750 and enclose the appropriate fee and original documentation confirming your new name.

How to get a disqualification removed

After being disqualified for more than 2 years, on application the Court which disqualified you will remove the disqualification after the following minimum periods:

a) 2 years if you were disqualified for less than 4 years

b) half the period of disqualification if it is less than 10 but not less than 4 years

c) 5 years if you were disqualified for 10 years or more.