FAQs

FAQs from our customers

Paper saying Frequently Asked Questions and a pair of glasses
 

Commercial Law

Directors duties

Question:
What are my duties as a Director of a company?

Answer:
The Companies Act 2006 replaces directors’ fiduciary duties with a statutory statement of the main general duties owed to the Company. The seven new general duties are as follows:

    Duty to act within powers (Section 171);
    Duty to promote the success of the Company (Section 172);
    Duty to exercise independent judgement (Section 173);
    Duty to exercise reasonable care, skill and diligence (Section 174);
    Duty to avoid conflicts of interest (Section 175);
    Duty not to accept benefits from third parties (Section 176); and
    Duty to declare interest in proposed transactions or arrangements with the Company (Section 177).


Business Purchases – Employee questions

Question:
I am buying a business, The target business has 10 staff, how do I ensure they do not all leave as soon as I take over the business?

Answer:
Employees transfer at completion as a matter of law. However, employees are free to give notice to leave under their contracts of employment. A purchaser should ensure that he remains in close contact with the seller during the negotiation and due diligence stages to ensure they are informed of anyone giving in their notice during the lead up to completion.

Question:
I am buying a business with employees. Will I have to pay for staff holidays that have not been taken by the date of completion?

Answer:
The costs of employees including salaries, benefits and accrued holidays are apportioned at the date of completion and therefore you will only pay for holidays due after completion. You should note that the contracts of employment will set out what holidays are due for each employee, however the statutory minimum is 4 weeks paid holiday including bank holidays.

Question:
I am buying a business with employees. Some of the staff do not have written contracts, how do we know what rights they have as employees?

Answer:
All employees have statutory rights and the terms of their employment will be implied into their contracts by statute and common law. You should note that employees have a right to written terms of employment and therefore, you should arrange for this to be done as soon as possible after completion.

Business Purchases – Trading Contracts

Question:
I am buying a business. How can I be sure that I will retain the trading contracts?

Answer:
One of the completion documents will be an assignment of the goodwill and contracts of the business which means you as the purchaser, will have the right to stand in the shoes of the seller after completion and complete the contracts currently in place.

Question:
I am buying a business. Do I need the consent of third parties to the trading contracts in order to take over the contracts?

Answer:
Some contracts do require the consent of third parties for them to be assigned or transferred to a purchaser, such as leases, hire purchase contracts and distribution agencies. Consent can be obtained from the third parties involved either running up to completion or after completion. If consent is being sought after completion, the purchaser will be dealing with the contract as trustee for the sellers until such time as consent is obtained.

Question:
I am buying a business. Will I have to keep buying from the same suppliers after completion?

Answer:
No, you are free to choose who you purchase your supplies from after completion and can change suppliers if you so choose. However, any current supply contracts should be checked to ensure there are no penalties for terminating them.

Question:
I am buying a business. What happens if a supplier refuses to supply me following completion?

Answer:
If there is no requirement to continue to supply pursuant to any contract in place with the Target, then you will need to find an alternative supplier.

Question:
I am buying a business. Do I have to take on all the contracts of the business including the lease hire contracts?

Answer:
It is for the purchaser to negotiate with the seller prior to completion as to what assets and/or liabilities the purchaser is to take on following completion. Most assets that are subject to lease hire contracts are usually vital to the smooth running of the business and therefore, a purchaser will need to take these liabilities on following completion.

Property and conveyancing

1. Question:
Can my Landlord increase my rent by any amount he wishes?

Answer:
The question of rent review depends on the wording of your Lease. Most leases provide that rent can be renewed in line with the market rental applying at the time of the review. In most Leases rent reviews are upwards only. In other words if the market rental has gone down or remains the same, the new rent will remain the same. However if market rental has gone up, then the new rental reflects market rental. Most Leases contain a provision for the Landlord and the Tenant to appoint an independent expert to ascertain a market rent.

2. Question:
When my Lease ends must I leave or can I apply for a new Lease?

Answer:
This will depend on whether your Lease has been contracted out of the security provisions of the Landlord & Tenant Act 1954. If the security provisions have been contracted out, then the Landlord can apply for possession of the property. In all other cases, the Landlord can only apply for possession in certain limited cases (for example he wishes to make substantial alterations to the property which cannot be carried out with a tenant in possession where the Landlord has owned the property for at least 5 years). There are other examples and anyone contemplating taking a business Lease should take legal advice from an experienced commercial property Lawyer.

3. Question:
What are Fire Safety Assessments and Asbestos Surveys?

Answer:
The occupier of a commercial premises is under a duty to carry out a Fire Safety Assessment and an Asbestos Survey pursuant to Government Regulations.

4. Question:
Can my Landlord refuse permission to transfer my Lease?

Answer:
Unless the Lease specifically precludes assignment, a Landlord cannot unreasonably refuse permission to transfer a business Lease. There have been many cases as to what is or is not reasonable refusal. However, in simple terms, if the proposed transferee of the Lease is of reasonable financial standing, consent should be given.

5. Question:
If I transfer my Lease, do I remain liable to the Landlord?

Answer:
In the case of leases granted since 1995 a Landlord can ask the Tenant of a commercial property to guarantee the performance of the Lease by the person to whom he transfers it. However, if that person transfers on, the liability will cease.

6. Question:
If I make improvements to my commercial leasehold property, can I get compensation from my Landlord?

Answer:
Provided any work carried out is a true improvement and the correct procedure has been followed which includes giving Notice to the Landlord before improvements are carried out, the Tenant can be compensated on vacating the property. However, this is quite a complex situation and you should always take advice from an experienced commercial property Solicitor.

Family Law

Divorce FAQ

1. Question:
Can I get divorced?

Answer:
The marriage has to be “irretrievably broken down” but in practical terms this has to be evidenced by one of 5 factors:

a. Adultery;
b. Unreasonable behaviour;
c. Desertion for 2 years;
d. Living apart for 2 years, and both agreeing on divorce;
e. Living apart for 5 years.

2. Question:
Will I be entitled to maintenance for myself/children?

Answer:
The Court has the power to make various financial Orders, including spousal maintenance, depending upon the respective financial positions of each party.

The Court generally has no power to make an Order for child maintenance, save for a limited agreed Order, since the CSA.

3. Question:
How much does a divorce cost?

Answer:
This depends how much you want to argue about between you!

Solicitors work to an hourly rate; in addition there is a Court fee payable by the Applicant at each stage. The Court can make an Order that one party pays the costs of the other, but this is contrary to the general rule. Each aspect of the proceedings is subject to a separate consideration as to costs.

4. Question:
How long does it take to divorce?

Answer:
Again, it depends upon the arguments. A “straight forward” divorce would take 3-4 months to get a Decree Nisi, and then 6 weeks wait for the Decree Absolute. But contested financial arrangements might easily take a year to resolve, and you would not apply for the Absolute until they were concluded.

5. Question:
Will I have to attend court?

Answer:
Not for the Divorce itself: that is a postal application. But you would need to attend at Court on most separate applications, for instance issues in respect of the children or finances. 

6. Question:
Do I have rights to see my grandchildren?

Answer:
There is no automatic right for grandparents to see the Children. They can apply to the Court for permission to make such an application, which is usually granted.

7. Question:
If I agree to a divorce from my wife, will she automatically get custody of our children?

Answer:
The Court can make Child Arrangement Orders to provide, inter alia, where and with whom the Children shall Reside, and the Contact they shall have with the other parent. All decisions regarding the Children are based upon the Welfare of the Children being paramoun: Children Act 1989. The Court will only agree to the Children splitting their time equally between the parents if that is practical, but will strive to uphold the rights of the absent parent.

8. Question:
Who will decide who gets what if we split?

Answer:
Firstly, the two of you will; If you cannot agree, with or without the assistance of a Solicitor, you will be advised to try to resolve matters by Mediation. If that fails, the Court will have to decide, but the procedure through the Courts is geared to encouraging you to agree. The Court also has to approve any agreement the two of you may reach.


9. Question:
What if my name is not on the marital home?

Answer:
In the first instance, you should register your right of Occupation of the Matrimonial Home at the Land Registry. But ultimately, all assets of each spouse, whenever acquired, have to be disclosed, and certainly anything that relates to the marriage will be available for division.


10. Question:
Will I have to sell the house if we get divorced?

Answer:
The Court has to make Orders of a financial nature as are reasonable and fair. If fairness cannot be achieved immediately, then the Court will try to provide for this later. The Court has to consider specific factors, very importantly set out in Section 25 Matrimonial Causes Act 1973, but the first priority is the welfare of the Children: that might mean a sale being delayed until later. Ideally, the Court see equality as being fair, but more often than not the financial resources are such that this cannot be achieved: the needs of the Children for a home will take priority.

11. Question:
What if my Spouse will not co-operate?

Answer:
The Court has extensive powers to Order and assist in investigating financial disclosure, protect assets, and draw adverse inferences against reluctant parties.

12. Question:
What is a pre-nup?

Answer:
Well-off spouses with substantial pre-acquired assets are now making arrangements in advance of the marriage to provide what should happen if the marriage failed. Such an agreement is not binding on the Court, but the Court is now prepared to acknowledge that the agreement is evidence of what the parties thought between themselves would be reasonable, and give effect to it. The agreement would have to be concluded well in advance of the marriage, involve a full financial disclosure by each, and separate legal advice for each, and be reasonable in all the circumstances.

13. Question:
We were never married but are splitting up – who gets what?

Answer:
It is important to recognise that you have not married, and that none of the matrimonial law or rules, nor fairness, apply. There is no such thing as a “common law wife”, nor a cohabitant getting rights after a period living together. Usually it comes down to the legal title on the property. Children issues are still dealt with by the Children Act 1989.

14. Question:
Civil Partnership – can we divorce?

Answer:
The terminology is different (“a dissolution order”), but the basic procedure is the same, as are the grounds (as above, for divorce), save for adultery, and the Courts powers to make financial Orders are similar.

15. Question:
Can I get physical protection?

Answer:
Yes. The Court can make injunctive restraining Orders, whether you are married or not, backed up by a Power of Arrest for the Police.

Civil Disputes

1. Question:
What is a civil dispute?

Answer:
This is a broad term covering all disputes involving money, land or other property.

2. Question:
Do I have to go to Court?

Answer:
Parties to a civil dispute are expected to follow a Pre-Action Protocol requiring all parties to set out their cases and to seek
to reach settlement before issuing a Court claim. The majority of cases settle before a final Court hearing. In bringing any
claim you should however be prepared to attend Court to give evidence, if necessary.

3. Question:
How long will it take?

Answer:
If it is not possible to settle your claim at the Pre-Action stage then you will need to issue Court proceedings. This is not a
particularly speedy process and as a rough guide you should not expect your claim to come to a final Court hearing until 18
months to 2 years from initially bringing the claim.

4. Question:
What if the person I’m suing has no money?

Answer:
Obtaining a Court Judgment against a person with no money or assets is pointless and will have involved you in incurring
unnecessary and irrecoverable costs. We will ascertain with you at the outset that the target of any claim is insured or has
other means to meet any Judgment.

5. Question:
Can I recover the costs of litigation?

Answer:
If your claim is for personal injury or otherwise for more than £10,000 (the small claims limit) and you are successful the Court
will normally order the other side to pay your costs. This may not amount to a full indemnity in respect of the legal charges
that you have incurred but should amount to substantial reimbursement. Again it is important to ascertain that the defendant to
any claim has the means to meet any Judgment and any order for costs. 

Personal Injury

1. Question:
Can I make a Personal Injury Compensation Claim?

Answer:
If you have suffered personal injury in an accident that was caused by the fault of another person or organisation you can claim compensation.

2. Question:
How long after my accident do I have to make a claim?

Answer:
It is in your interest to notify a claim for personal injury at the earliest opportunity. You have at the outside 3 years from the date of the accident in which to issue a Court claim.

3. Question:
How much compensation am I likely to receive?

Answer:
This depends on the seriousness of your injury, whether you make a full recovery and whether you have suffered loss of earnings or other financial losses.

4. Question:
Will I have to go to Court?

Answer:
The majority of claims for personal injury settle before they reach a Court hearing; in making a claim for personal injury you must however be ready to attend Court to give evidence, if necessary.

5. Question:
How much will it cost and will I be responsible for fees? [change to Who will be responsible for your firm’s fees?]

Answer:
The rules relating to funding have recently changed and “No Win No Fee” agreements are no longer as attractive to Claimants as before; we can discuss with you various ways of funding your claim and limiting your personal exposure to costs liabilities.

Wills & Probate

1. Question:
How much do we charge for Probate/Will/LPA?

Answer:
Please phone for details.

2. Question:
Do we make home/hospital calls?

Answer:
Yes

3. Question:
Are we holding a Will for {}?

Answer:
This information cannot be given out over the telephone, please write in.

4. Question:
Is there a fee involved for holding a Will?

Answer:
We do not charge a fee for holding Wills

5. Question:
A person has died so what do they do now?

Answer:
A member of the family needs to register the death and arrange the Funeral, get together all the paperwork in respect of the estate and bring it into the solicitors. 

6. Question:
What ID do we require?

Answer:
Passport/Picture Driving Licence, Utility bill (no longer than 3 months old)

7. Question:
How long will it take to complete?

Answer:
This depends on what is involved in the estate and whether the administration of the estate is dependent upon a sale of a property.

8. Question:
When will they get their Money?

Answer:
Residuary beneficiaries usually get their money when all the estate is wound up and the bills paid but there may be interim payments made in the meantime.
Duffield Harrison LLP is authorised and regulated by the Solicitors Regulation Authority under number 383068

Duffield Harrison LLP is registered in England and Wales under Company Registration No. OC304381

Our Professional Rules are set out in the SRA Handbook 2011 which was implemented on the 6th October 2011. A copy of this Handbook can be accessed, in English, from the Solicitors Regulation Authority website at www.sra.org.uk/handbook/

The word Partner in the context of an LLP is also to be read as Member

A full list of partners is available from our registered office Rathmore House, 56 High Street, Hoddesdon, Hertfordshire, EN11 8EX"
Can't find the answer to your question? 
Contact us: 
Hoddesdon:
01992 442 911

Hertford:
01992 587 065

Enfield:
020 8804 5271
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