Written jointly with Katharine Everett Nunns.

In the recent case of Pitman & ors v Hicks [2021] the High Court considered an application by a landlord for permission to appeal an arbitrator’s award, which directed that the costs of the arbitration of a Notice to Repair be borne by the landlord, notwithstanding that the Notice was in part upheld.

In an Order dated 21 July 2021 (the Order) Mr Justice Fancourt refused permission to appeal the award having considered the matter on the papers.

The Court had to decide whether the question raised by the landlord was a question of law, that the Arbitrator had been asked in the original proceedings, because new points cannot be appealed. Although essentially the Arbitrator had been asked that question, the Court determined that it was not a question of law, as required. The only questions of law that could have come about in this case were not ones that the Arbitrator had been asked.  Further, even if it had been a question of law, the landlord had failed to satisfy the Court that, on the basis of the findings of fact in the award, the decision of the tribunal was obviously wrong.

Although it is unusual for an Order refusing permission to appeal to be published, Mr Justice Fancourt made specific provision for the decision to be cited in argument in other cases and to be reported.

Background

The landlord served a Case D notice to do work, under Schedule 3 of the Agricultural Holdings Act 1986 (AHA), which was then referred to arbitration by the tenant under article 3 of the Agricultural Holdings (Arbitration on Notices) Order 1987 (the 1987 Order).

The tenant referred, in 4 cases, whether he was liable to do the work, and in the other 4 cases, whether the work was necessary or justified. Then, in the course of the reference, the parties agreed that the Arbitrator should have power to modify the notice to do works by substituting different methods or materials, under article 5(b) of the 1987 Order.

Under section 61 of the Arbitration Act 1996 (the Act), the tribunal may make an award allocating the costs of the arbitration as between the parties, subject to any agreement of the parties. Further, unless the parties otherwise agree, the tribunal shall award costs on the general principle that costs should follow the event (i.e. the “loser” bears the costs of the case), except where it appears to the tribunal that in the circumstances this is not appropriate in relation to the whole or part of the costs.

Upon the basis that a substantial proportion of the works, as specified in the notice, were not ones that the tenant was required to carry out, the Arbitrator found that the tenant was the “winner” and awarded him all of his costs.

The landlord sought permission to appeal the final Arbitration Award as it related to costs.

Appeal

The Landlord sought the permission of the High Court to appeal the costs aspect of the award upon the basis that the Arbitrator had made an error of law under section 69(2)(b) of the Act.

Sections 69(3)(b) and (c)(i) of the Act respectively require that the question of law was one which the tribunal was asked to determine and, that, on the basis of the findings of fact in the award, the decision of the tribunal on the question was obviously wrong.

A question the tribunal was asked – condition not satisfied

The Court pointed out that the outcome of the arbitration reference (i.e. who is the “winner” / “loser”) was a question of fact, not law.

The Court found that the only questions of law that could arise from the award were not questions of law that the Arbitrator was required to decide.  The policy of the Act is such that “challenges to evaluative of (sic) discretionary decisions after the event” should be excluded except in very limited circumstances.

An obviously wrong decision – condition not satisfied

The Court went on to determine that even if the above had been a question of law, it was “far from clear that the Arbitrator was wrong in concluding that the Defendant had broadly succeeded, and certainly not obviously wrong.” Mr Justice Fancourt noted that:

“A different arbitrator might have taken a different view and awarded only a proportion of costs, but the Arbitrator correctly had regard to the conduct of the parties more generally before deciding to award the Defendant all his costs.”

Discussion

The arbitration of a works notice to remedy is never a straightforward affair and will always involve a degree of interpretation of the notices served, and consideration of the practicalities involved in the repairs themselves. These disputes are well suited to arbitration or expert determination before experienced rural surveyors.

The problem faced by landlords is that it is often difficult adequately to particularise the dilapidations, and the requirements for remedy. However, it is the tenant’s right to challenge the notice and to the extent that such challenges are successful, the tenant is likely to be the ‘successful’ party. The extent to which ‘without prejudice save as to costs’ offers were made in this case is unknown, but such offers are often very effective in mitigating cost risk.

As to the application for permission to appeal, perhaps there are no surprises in the decision. A costs determination rarely raises a question of law, let alone one which is “obviously wrong”. However, it is very welcome that the decision was taken to publicise the Order, since (due to arbitration confidentiality) many similar decisions do not see the light of day, and the guidance provided by the Court is helpful.

If you have any questions regarding this article, please do not hesitate to contact Adam Corbin by email or by telephone +44 (0)117 906 9324.

The Corporate team at Michelmores has successfully advised Freshways Dairy, the largest independent family-run dairy product supplier in the UK, on their merger with Medina Dairy. The merger will establish a c.£400 million turnover sustainable and progressive dairy business that has come together to promote the best interests of their combined staff, customers and the British dairy farmers that supply them. The merger fulfils both dairies’ strategic priorities and will support their joint goal of providing dairy farmers with a more sustainable future.

The aim of the merger is to create a viable, long-term, fresh liquid milk business that will have the requisite scale and agility to compete with the two large players that dominate the dairy sector in the UK.

The Michelmores team provided advice and guidance on all legal and regulatory aspects of the merger, which is subject to regulatory approval. The team was led by Adam Corbin, a Partner in the Agriculture team, and assisted by Samantha Billingham (Corporate) and Paul Beanlands (Property).

The new business will have a combined turnover of c. £400 million, employ 1,000 staff and process in the region of 500 million litres of British Red Tractor farm assured milk per year.  A newly-formed board and management structure will be put in place to oversee the merger and integration of the two businesses.

Commenting on the merger Bali Nijjar, Managing Director of the Freshways group of companies, and Sheazad Hussain, Chief Executive of Medina Dairy, said:

“Throughout our discussions it has become increasingly apparent how complementary both companies are.  As such, through merging we will be able to harness these synergies to create a leaner, more agile and fit for purpose business.  A business that will benefit customers, consumers and suppliers and ultimately, we believe, will be well placed to grow and develop in a sustainable manner for the long-term.”

Richard Cobb, Senior Partner, and Head of Corporate at Michelmores said:

“We are delighted to have been involved with the strategic discussions around this highly important merger, which will help to boost the milk and dairy sector in the UK.  Freshways is a forward-looking business that has shown exceptional growth over the last 30 years – this merger will leave them even better placed in the dairy industry, which is a dynamic and fast-moving market.”

Mark Gibson, Partner at DWF, commented:

“We are delighted to have advised Medina Dairy on this significant merger that will see the new business become one of the top 10 UK dairy processors and greatly benefit both suppliers and customers through the creation of a progressive and sustainable business.”

The new Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (Regulations) came into force on 4 May 2021. The Regulations provide for individuals who are either facing problem debt or receiving mental health crisis treatment to be afforded the protection of a moratorium from legal action being taken by their creditors.

In this article we focus on the Breathing Space Moratorium and explain its scope and its potential implications for rural landowners and businesses.

Breathing Space Moratorium

The Regulations were introduced with the aim of encouraging those who have problem debts to seek professional advice and implement an appropriate strategy for dealing with their financial situation. Such a strategy may involve an informal arrangement being reached with one or more creditors, or the entry into a formal insolvency procedure such as a Debt Relief Order (DRO), Individual Voluntary Arrangement (IVA) or bankruptcy.

As such, the Regulations allow for individuals, who have accessed the services of a professional debt adviser, to benefit from a 60-day period of relief (referred to as a Breathing Space Moratorium, or simply a moratorium). In this regard, it is similar to the protection that is accessible to companies considering appointing administrators or to certain companies preparing a CVA proposal.

The Breathing Space Moratorium prevents certain charges, fees and interest accruing against debts, as well as preventing creditors from taking enforcement action. However, any liabilities which are due for payment during the moratorium must still be paid.

Practicalities for debtors

In order to take advantage of a Breathing Space Moratorium, an individual must have sought advice from either an FCA authorised debt counsellor or a debt adviser accessed via their local authority.  The scheme is being administered by the Insolvency Service, although its role is largely limited to operating a private electronic register of participants.

As long as an individual can demonstrate that they are unable to repay their debts, they can apply for a moratorium and all applications must be considered by debt advisers. However, a debt adviser may refuse an application where is appears that the debtor has better options, such as an immediate insolvency process or being provided with assistance with budgeting where funds are available to them.

In addition to this, there are standard criteria the debtor must fulfil which include:

• being an individual
• owing a Qualifying Debt
• being resident in England or Wales
• not being the subject of a Debt Relief Order, Individual Voluntary Arrangement or being an undischarged bankrupt; and
• not having taken advantage of a previous breathing space within the previous 12 months.

Qualifying debts include credit cards, personal loans, overdrafts, utilities arrears and mortgage or rent arrears (to the extent these are not secured).  It is also possible to include jointly owed debts.

Practicalities for creditors

A Breathing Space Moratorium will begin on the day after its details are entered onto the Insolvency Service Register and often the first time a creditor becomes aware of a moratorium is when they receive the requisite notification. As noted above, the register administered by the Insolvency Service is private and, although the Service will send notifications to creditors, they are unable to assist with individual enquiries. Once contact has been made with a debt adviser, that person becomes the point of contact for the debtor, their creditors and the Insolvency Service.

Once notification has been received, creditors must:

• stop charging certain interest, fees and charges on the debt for the period of the moratorium;
• stop any enforcement or recovery action being taken (including by agents);
• notify the relevant Court where any proceedings are being taken against the debtor;
• not contact the debtor to request payment of the debt without permission of the Court.

However, the Regulations do not prevent liabilities that fall for payment during the moratorium from being paid. The moratorium is not a payment holiday.

The position of creditors with regard to the calculation of interest, fees and charges during the moratorium; the notification of additional debts that have not been included on the initial notification; and the scope of the moratorium on enforcement, are not straightforward and creditors would be well advised to seek legal advice on receiving notification that one of their debtors has taken advantage of the Regulations.

Challenging a moratorium

In terms of challenging a moratorium, in each case the debt adviser must carry out a review of the moratorium between days 25 and 35, which is intended to ensure the debtor is complying with their obligations. If this hurdle is satisfied, the moratorium will continue until day 60. However, if the debt adviser considers it appropriate (for example if ongoing liabilities have not been paid on time or the debtor is failing to engage with the process) they have the ability to cancel the moratorium immediately following their review.

Importantly, there is a system whereby a creditor can request the review of a Breathing Space Moratorium if they consider their position has been unfairly prejudiced, or there is a material irregularity with the debtor’s eligibility.  Such a request must be made within 20 days of the moratorium start date (or within 20 days of an additional debt being added). However, reviews must be requested in writing and be supported by evidence, and there is no obligation on the debt adviser to consider such a request prior to the midway review.  In the event a debt adviser refuses to bring the moratorium to an end, a creditor’s only recourse is via Court proceedings.

As the Regulations are still reasonably new, there is little information available as to the circumstances in which a debt adviser is likely to cancel a moratorium, or where the Court will intervene to overturn the decision of an adviser. In circumstances where such cancellation may shorten the period of the moratorium by less than 25 days (even less where a Court challenge is required), creditors will need to consider carefully whether the costs of such a challenge are worthwhile.

End of moratorium

Once a Breathing Space Moratorium ends, whether via expiration of the 60 days or cancellation by the debt adviser or Court order, a creditor can begin applying interest, charges and fees once again. However, no such sums can be backdated to the period of the moratorium unless ordered by the Court. Importantly, unless a debtor has used the moratorium to put in place a DRO or IVA, or has successfully petitioned for their bankruptcy, enforcement action and any legal proceedings can also be started or continued.

Comment

Farming and rural businesses will doubtless come across Breathing Space Moratoriums in the coming months in connection with payments due under tenancy agreements, or other commercial agreements with individuals. It should be noted that some (but not all) business debts will qualify for a moratorium.

The Regulations will undoubtedly be of value to those who legitimately require assistance with an untenable financial position, providing them with time and advice to enable them to restructure their financial affairs. We are, however, already seeing the potential for the moratorium to be abused by those seeking to use any means available to stymie or delay enforcement action by their creditors.

Any business faced with one of these moratoriums as a creditor, should consider obtaining prompt legal advice as there are issues which creditors should check and options for challenge.

Should you wish to discuss any of the issues raised in this article, please contact Sacha Pickering.

From 1 August 2021 new permitted development (“PD”) rights (Class MA) to allow for the change of use from commercial, business use and service use (Class E) to residential use (Class C3) will come into force creating potential new development opportunities for farmers and landowners.

The introduction of new Class MA follows the reclassification of the use classes in September 2020, when Class E was introduced to replace the previous use classes of A1, A2 and A3 (retail, financial services and cafés/restaurants); B1a, b and c (offices, research establishments and light industry) and D1 and D2 (health clinics, nurseries and gyms). Notably, Class B2 (general industrial) and B8 (storage and distribution) remain unchanged and are therefore excluded from new Class MA PD rights.

The new class MA replaces the two, existing commercial-to-residential PD rights, being, Class O (office to residential) and Class M (A1 shops and A2 financial and professional services to residential). These rights will continue to apply until 31 July 2021.

Restrictions

As with other PD rights, those seeking to utilise the new MA right will have to satisfy prior approval requirements on transport, contamination, flooding, noise, and natural light. Restrictions also apply to a change of use under Class MA, including that the building’s floorspace:

• must have been in commercial business and service use (Class E) (or, prior to 1 September 2020, within any predecessor use class: A1, A2, A3, B1, D1(a), D1(b), D2(e)) use for 2 years continuously prior to the application for prior approval. must be an unused commercial building that has been vacant for the 3 months prior to the application; and

• must not be any bigger than 1,500 square metres.

Designations

In addition, development is neither permitted by Class MA in AONBs, SSSI, the Broads, any National Park and World Heritage Sites; nor if the site is occupied under an agricultural tenancy, unless the express consent of both landlord and the tenant is obtained.

Development is however permitted under Class MA in Green Belt, Conservation Areas and the open countryside, where it is more challenging to establish new residential use in planning policy terms. This represents a significant change by the Government and will create new and interesting opportunities for delivery of residential housing.

Applications under Class MA can only be made after 1st August 2021.

Michelmores’ Agricultural Team is pleased to announce that they have contributed to the UK’s first Report on the future of insect protein in pig, poultry and aquaculture feed, ‘The Future of Feed: a WWF roadmap to accelerating insect protein in UK feeds‘, produced by WWF and Tesco. The Report was launched Thursday 1^st July during a virtual panel discussion where leading Michelmores’ Agricultural Lawyer, Ben Sharples, discussed the existing legislation and urgent need for the UK government to introduce new regulations for this important sector.

The Report highlights the huge potential for insect farming in helping to tackle the climate and environmental crisis, and considers how using insect meal to feed fish and livestock could cut the UK’s future soy footprint by a fifth protecting critical landscapes like the Brazilian Cerrado. The research, commissioned by WWF-UK in partnership with Tesco, highlights the huge potential for insect farming in helping to tackle the climate and nature crisis.

Michelmores has provided guidance and support on the environmental legislation, regulations, and recommendations that are laid out in the Roadmap. Existing legislation is placing a stranglehold on insect farming, restricting what materials insects can be reared from and preventing insect meal from being used in livestock feed. New EU legislation is being drafted to allow the use of insect meal in pig and poultry feed and this needs to become law in the UK along with the ability to use a broadened range of feedstocks to feed farmed insects.

Commenting on the Report, Michelmores Agricultural partner, Rachel O’Connor, who led the Michelmores team inputting on the report’s legislative components, said:

“Legislation plays a central role in shaping the commercialisation of food production. It is essential that regulation continues to protect human and animal health, but without unnecessarily inhibiting development of the UK insect sector. Unlike other livestock production processes, the regulations governing animal feed bite at two feed chain stages for insect protein: firstly, what may be fed to insects; and secondly, in determining which farmed animals insects may be fed to. This report highlights the need to update legislation to take into account the emerging role of insects in the feed market.”

Ben Sharples, Partner at Michelmores & Head of the Agriculture Team said:

“The work we have undertaken with WWF and Tesco is highly important as it outlines the importance for legislation to evolve with new agricultural practices and environmental sustainability. The current legislative restrictions in place around feedstock substrates that can be used to rear insects, and the sales and uses of the by-products that result from insect farming, are preventing many opportunities that ultimately can contribute to minimising environmental impact”

Michelmores has several Legal Teams that advise on sustainable issues including natural capital, impact investing, environmental law, sustainable agriculture, and energy. The Agriculture Team is the national specialist in agricultural law and a trusted advisor ranked as a top tier firm by independent legal guides, the Legal 500 and Chambers and Partners.

Summary

Hospitality venues will be comforted to learn of a recent decision permitting a venue represented by Michelmores to retain costs of preparing for a wedding cancelled at the start of lockdown. Counter to CMA’s guidance, the judge in Offley Place v Willis [2021] found that all categories of attributable costs qualified as just expenses under the Law Reform (Frustrated Contracts) Act 1943 (the “1943 Act“).

Background

The Claimant’s wedding was due to take place on 21 March 2020; on 20 March the first lockdown was announced and the venue cancelled the wedding. The Claimant held a small ceremony at the venue and a reception elsewhere. Having paid £8800, the Claimant demanded a refund (less a small amount for costs of the ceremony) and brought a small claim in the Oxford County Court. Offley sought to retain reasonable expenses.

First instance

Deputy District Judge found the contract was frustrated and, despite Offley putting a lot into the event, he found that the Claimant was entitled to a full refund (save £600 for the ceremony). “It is not open to those who are unable to perform their obligations to offset their costs against what the claimant can recover unless the claimant had some benefit from those things“.  Permission to appeal was given on a single point, whether the judge had misdirected himself on the application of the 1943 Act.

Decision on appeal

HHJ Melissa Clarke overruled, saying: “the Deputy District Judge was wrong to direct himself that the appellant (Offley) could not offset its costs against what the respondent could recover, unless the respondent had some benefit.” She exercised her discretion under section 1(2) of the 1943 Act and considered what would be a ‘just’ sum to deduct from the refund for expenses incurred. HHJ Clarke accepted that all expenses were potentially recoverable and that due to the lengthy lockdown Offley was not able to mitigate its loss. She allowed a two third retention in respect of ‘attributable costs’ plus an additional £500 for ‘direct costs’ (food): £4500 in total (51% the contract value/64% of the costs incurred).

Impact of the decision

One of the first decisions to apply the provision of the 1943 Act to venue contracts impacted by Coronavirus, it shows:

• The 1943 Act was not specifically aimed at protecting consumers and should not be treated as such.
• Claimant obtaining a ‘benefit’ is not a prerequisite for retaining expenses.
• Section 1 seeks to achieve a just outcome for all parties in light of all the circumstances.
• Costs such as repair, cleaning, gardening, IT and wages are recoverable even if not incurred specifically in relation to an event; necessary and fundamental to hospitality contracts, they are recoverable because they are incurred “in part for the performance of the contract.”
• CMA’s guidance is wrong to state that such categories of cost are unrecoverable.
• County Court decisions are not binding but can be persuasive in other courts.
•  and illustrative of how other courts may rule.
• The facts of this case are unique and unlikely to be replicated in many circumstances.

Michelmores’ lawyers have been assisting the Wedding Venues Support Group (“WVSG”) and its members with devising new template terms and conditions and negotiating with the CMA and large insurance companies. We recommend that hospitality venues facing small claims make use of the WVSG member guidance in the first instance and engage local legal services as appropriate. Venues can contact WVSG here.

As discussed in the article published last month Planning & nitrate neutrality: Legal challenge to Natural England’s guidance the High Court granted permission for the judicial review of a planning consent granted in August 2020 by Fareham Borough Council (the “Council“).

Natural England’s guidance and the EU Habitats Directive

R (Save Warsash and the Western Wards) v Fareham Borough Council (CO/3397/2020) was heard consecutively with R (Brook Avenue Residents Against Development) v Fareham Borough Council (CO/4168/2020) as both raised issues about the validity of guidance issued by Natural England (the “Guidance“)

The Guidance issued to the Council following the European Court of Justice’s decision in 2018 Dutch Nitrogen Case, advised that planning permissions should only be granted in the Solent region if the development is considered to be ‘nutrient neutral‘ preventing protected sites from being harmed by pollution generated by new developments.

One of the grounds advanced by the claimant was that the Guidance did not meet the ‘standard of certainty‘ that is required by Articles 6(2) and 6(2) of the EU Habitats Directive (92/43/EEC) (which forms part of EU retained law following Brexit) due to there being a lack of scientific certainty for the Council to base its decision on when granting planning consents. This point led the claimant to contend that the Council had infringed the so-called ‘precautionary principle’.

Judgment

In his judgment dated 28 May 2021, Mr Justice Jay dismissed the claimant’s application for judicial review and said it was based on a misunderstanding of the precautionary principle. The judge said that “that is the whole point of the precautionary principle: the uncertainty is addressed by applying precautionary rates to variables and, in that manner, reasonable scientific certainty as to the absence of a predicated adverse outcome will be achieved.“

The Judge held that the Guidance, which advises councils to apply precautionary rates to variables when calculating nutrient budgets and to add a precautionary buffer to the total nitrogen calculated for developments, was “impeccable in all material respects“. Consequently, the judge found that “by requiring the competent authority effectively to rule out, to a very high standard, the possibility of relevant harm, the requirement… of the Habitats Directive is fully satisfied.”

It is anticipated that Natural England will publish national advice once it has had the opportunity to consider the terms of this judgment.

On 30 June 2021, the deadline arrives for eligible EU, EEA and Swiss citizens and their family members to make an application under the EU Settlement Scheme.

Who is eligible?

EU, EEA and Swiss citizens who were resident in the UK prior to 11pm on 31 December 2020 are eligible to apply. Their family members should also be able to apply in most circumstances.

If someone does not fall within one of the aforementioned categories, they may still be able to apply if:

• they used to have an EU, EEA or Swiss family member living in the UK but they have either separated, the family member has died or the family relationship has broken down;
• they are the family member of a British citizen and have lived outside the UK in an EEA country together;
• they are the family member of a British citizen who also has EU, EEA or Swiss citizenship and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship; and
• they have a family member who is an eligible person of Northern Ireland.

It is also worth noting that eligible Irish citizens need not make an application under the scheme but can do so if they choose.

What do you get if you apply?

Those who have resided in the UK lawfully for five years are eligible for “settled status” and will be free to live and work in the UK indefinitely. Those who have resided in the UK for fewer than five years by the time they apply will be eligible for “pre-settled status”, which will permit them to live and work in the UK for up to 5 years or, if earlier, until they successfully apply for settled status.

How to apply?

The application can be completed online via the UK government website and is free of charge.  Applicants will normally need to prove their identity and their residence in the UK, as follows:

1. An applicant’s identity can be verified easily with their passport or their Biometric Residence card or permit. They will also need to provide a digital photo of their face and, in some cases, their fingerprints.  If an applicant is an EU, EEA or Swiss citizen, the easiest way to do this is using the government’s ‘EU Exit: ID Document Check’ app.  If they are not an EU, EEA or Swiss citizen, they will need to send their supporting documents by post.

2. To prove an applicant’s residence, they can provide their National Insurance number to allow the Home Office to undertake an automated check based on tax and certain benefits records.  If this check is successful, they will not need to provide any documents as proof of residence.  However, they may need to provide additional documentary evidence of their residence if there is not enough information available to prove they have been continuously resident in the UK for more than 5 years.  Once they have applied, the Home Office will let them know whether they need to provide additional evidence.

3. If an applicant has any unspent criminal convictions, from the UK or overseas, they will need to declare these.  The Home Office will then determine whether these prohibit the applicant from obtaining pre-settled or settled status.

4. If an applicant is applying to join their EU, EEA or Swiss family member in the UK, they will also need to provide evidence of their relationship.  In particular, they will need to demonstrate that they are in a genuine relationship, that the relationship started before 31 December 2020 and it is continuing at the date of the application under the EU Settlement Scheme.

What should employees and employers do next?

With very limited exceptions, applications for status under the EU Settlement Scheme must be submitted by 30 June 2021 and failure to acquire pre-settled or settled status will render the vast majority of eligible people “illegal immigrants” and subject to removal from the UK. This includes those that are currently resident in the UK with an EEA residence card or permanent residence card, which was granted under the old rules.  So, if you’re eligible and you’ve not yet made an application, you do need to act quickly.

Employers can also help with this.  Those with eligible employees should take active steps over the next few weeks to remind their staff about the looming deadline and encourage those that are eligible to make applications.  Employers should also ensure that their HR and onboarding teams are fully trained and up-to-date on all of the rules regarding right to work checks so as to ensure that these are being conducted correctly both before and after the 30 June 2021 deadline.

If you have any follow-up queries regarding the EU Settlement Scheme, please do get in touch.

Law fairs are once again being held virtually, which can have some really great advantages. For example, there is no need to stand awkwardly waiting for your turn to talk with a firm’s graduate recruiter or current trainee. Most platforms now offer the opportunity to organise one-to-one meetings ahead of time. Admittedly, the downside is not walking away with three water branded bottles, a lifetime supply of law-firm logo post-it notes (enough even to last through the LPC) and the occasional tote bag!

Research the law firms in attendance

It is worth dedicating some time to research each of the firms before the event to see if they might be right for you. Review their academic requirements, locations and salary to see if the firm aligns with your achievements and expectations. If it is of interest to you, check for opportunities to work abroad and whether secondments are on offer. Understand who some of the firm’s clients are and follow up on information on some recent deals or cases to enable you to start a conversation, and maximise your time with the recruiter. LawCareers.net, Chambers Student and Legal Cheek are all useful resources for these types of information. You can then take a more targeted approach at the law fair.

Most importantly, don’t ask questions that you could find the answer to by simply looking at the firm’s website, brochure or social media. Recruiters are far more impressed with insightful and intelligent questions. Show that you have done your research. If the platform has the capability, do set up one-to-one meetings. Try to find out information that can only be gained by talking to someone who works there. Not only will this make the recruiter happy (and potentially remember you), it will also give you the edge when it comes to writing your application.

Turn your camera on and unmute

It is tempting to hide behind the chat box function, keep your camera off and stay on mute. The recruiters and trainees will be on camera and it is nice to put a face to a name! Due to COVID, the vast majority of client calls are now over Teams or Zoom, and this is expected to continue regardless. This is a great opportunity to show that you are up for the challenge as a potential future trainee and that you are paying attention and actively participating.

Use the opportunity to network and ask those insightful questions. Often, recruiters will be relieved that you have had the courage to speak up and show your face. Do feel free to follow up with any recruiters or trainees on LinkedIn if you run out of time or forget to ask something.

Make the most of talks, Q&A’s and workshops

Often there will be several talks and workshops on offer throughout the day. These may be designed to assist you with the application and interview process and help you to crack the essential ‘commercial awareness’ secret. Check the agenda and go to as many as possible as these will be presented by experts in their field.

Above all else, be confident, polite and do your research.

Michelmores will be attending the University of Law Virtual Fair on Thursday 1 July (14:00 – 17:00). We look forward to seeing you there!

When applying for training contracts, one of the main criteria for me was ‘client exposure’. As someone who likes to socialise, inside and outside of the office, I hoped to find a firm that would let me interact with clients rather than simply doing the work behind the scenes. Michelmores has not disappointed.

Michelmores is an all-round law firm dealing with a variety of clients, from large corporate organisations, to academies and private individuals. Michelmores is a well-known firm in the South West, but has a growing London presence, which brings with it a number of international clients. An estimated 15% of Michelmores’ yearly turnover is made up of international work, which is distributed between the firm’s three offices.

Below are some examples from my different training contract seats of where I have had direct contact with clients and built a professional relationship with them:

• Corporate: During my first month as a trainee in the London Corporate team, I spent three intense weeks verifying a prospectus for a standard listing on the Main Market. This involved regular meetings with our African based client, including daily emails and/or phone calls and bi-weekly meetings in the firm’s office.

• Arbitration: Some clients will be accustomed to receiving legal advice and may even have an in-house legal team who liaises directly with the firm. I experienced this whilst representing a global technology company with respect to a cross border arbitration case worth over £4m. I attended a number of videoconference and teleconference calls with our client’s General Counsel to discuss our client’s strategy going forward as well as the contents of our procedural documents.

• Commercial and Regulatory Disputes: During my time in the firm’s Commercial and Regulatory Disputes team, my supervisor introduced me as the main point of contact on our Client Engagement Letter for our client. I was given the opportunity to run a matter, relating to the recovery of debts from solvent and insolvent companies on behalf of an Italian client, from start to finish.

• Planning: I am currently working for the Mayor’s Office for Policing and Crime in relation to a Compulsory Purchase Order (“CPO“). I have assisted with the preparation of documents for the public Inquiry, which involves attending meetings and taking evidence from witnesses. Most of these meetings have been virtual due to COVID-19 restrictions; however I recently had the opportunity to conduct a site visit at the land subject to the CPO. I am very much looking forward to attending the public Inquiry where I will again be able to meet our client in person (respecting COVID-19 restrictions of course!)

• General: As a trainee you will also be tasked with taking initial enquiry calls from potential clients. These calls are always interesting, as you do not know what to expect. It is important to be aware of the wide variety of work Michelmores does and to gain as much information about the enquiry as possible from the potential client so that they can be redirected to a colleague best placed to assist.

Although direct contact with a client can be daunting at first, especially when you start a new seat in an area of law that you are not familiar with, Michelmores offers its trainees the support needed to excel in building client relationships. With a lot more client exposure than I expected to have as a trainee, I have been able to develop my communication skills through my experience of working closely with the firm’s clients.

If you would like to learn more about some of the Michelmores trainee seats, more information can be found in our Trainee Blog articles:

• Family: Trainee blog: a day in the life of a trainee family solicitor | Michelmores
• PPP & Projects: Trainee blog: What does a seat in PPP & Projects involve? | Michelmores
• Planning: Trainee blog: a day in the life of a Planning trainee (during a pandemic) | Michelmores
• Real Estate: Trainee Blog: A Real Estate seat in unprecedented times | Michelmores
• Corporate: Trainee Blog – A Guide to a Seat in Corporate | Michelmores

Adverse possession, often described as ‘squatter’s rights’, is the process by which a person who does not have legal title to the land, can become the legal owner by possessing the land for a specified period of time. We explained this topic in our Learning the Law article in the Autumn 2020 edition of Agricultural Lore.

In summary, to claim title by adverse possession, the claimant or ‘squatter’ needs to prove:

• Uninterrupted factual possession for the requisite period (10 years under the statutory regime for registered land or 12 years under the regime applicable to unregistered land, where the period of possession relied upon ends before 13 October 2003); and
• Intention to possess (to exclude the world at large).

If an adverse possession claim is successfully established, the squatter may acquire title to the land, as can be seen in the recent case of Haandrikman v Heslam [2021] UKUT 0056.

The case

Mrs Haandrikman’s father had purchased the strip of land in question in 1987. However in 1978, Mr and Mrs Atkinson, the previous owners of a nearby property, Fortuna Villa, had erected a fence along the southern boundary of the strip of land. Their son had used the strip of land to graze sheep.

Fortuna Villa was then sold to new owners in 1994. From 1994 to 2001, sheep were grazed on the land by a licensee of the new owners.

Mr Heslam purchased Fortuna Villa in 2012. In 2017, Mr Heslam applied to be registered as proprietor of the strip of land.

Issues in dispute

Mrs Haandrikman argued that the title acquired by Mr and Mrs Atkinson by way of adverse possession, was not passed when the property was sold in 1994, because there was no grazing on the land and the presence of fencing by itself was insufficient to amount to adverse possession. She also argued that grazing did not amount to adverse possession.

The First Tier Tribunal (“FTT”) found that Mr and Mrs Atkinson had been in adverse possession of the strip of land for 12 years from 1978 to 1990. Mrs Haandrikman appealed this decision.

Upper Tribunal decision

Mrs Hanndrikman’s appeal was dismissed.

The Upper Tribunal (“UT”), held that the mechanics of Mrs Atkinson’s adverse possession was acquired by common law principles as well by way of an equitable interest under trust, pursuant to section 75 of the Land Registration Act 1925.

The UT, cited the authority of Site Developments (Ferndown) Limited and others v Cuthbury Limited and others [2010] EWHC and also referred to Megarry & Wade on the Law of Real Property 7th edition 2008 which states ‘If a squatter is himself dispossessed the second squatter can add the former period of occupation to his own as against the true owner.’ On this basis, the UT found that successive squatters could take over from each other without the need for a deed or for an assignment in writing and Mrs Atkinson’s title was passed accordingly.

What is particularly relevant in an agricultural context, is the UT’s consideration of in what circumstances, acts of fencing and/or grazing of animals may amount to adverse possession.

The UT were clear in that, although every case turns on its facts, what is manifestly not correct is to argue that fencing a piece of land to keep animals out can never, as a matter of law, amount either to factual adverse possession, or to evidence of an intention to possess.

In this case the strength of the fencing was significant, as was its effect on the rest of the world; it completely blocked access to the strip of land for the registered proprietor and indeed for anyone seeking to enter from the south.

Although authority exists to the effect that grazing does not amount to adverse possession, in this case the FTT had not found that at any time the only act of adverse possession was grazing. The UT found that adverse possession was taken by virtue of both fencing and grazing in 1978. The possessor at that time (Mrs Atkinson), remained in adverse possession even after grazing had ceased on the strip of land.

Impact on landowners

Notwithstanding that grazing alone does not give rise to adverse possession, this case demonstrates that grazing is, nonetheless, a significant factor in determining adverse possession and one of which land owners, in particular, should take heed.  Land owners should also remain cautious that adverse possession does not necessarily cease, when grazing is not happening. It is therefore important to consider all of the facts carefully, in order to establish whether adverse possession has arisen.

As a mixed raced woman, first generation university student, and someone who is state school educated, I was always worried about fitting into the legal profession and never believed I would be a lawyer. It can be more difficult to realise your potential when you come from a certain background due to lack of role models and connections to the profession, the confidence is not always there. It took me completing my studies, going down a different career path and a lot of encouragement, to finally gain the confidence to apply for training contracts and pursue my dream career.

The typical image of the legal profession not being diverse is slowly starting to change but there is still a long way to go. Diversity in the legal profession is essential as it will encourage a more collaborative, innovative and inclusive workforce, this will in turn help us to provide the most effective service to clients. Law firms also need to be proactive to encourage positive values and inclusion, not only through recruitment and representation, but also through the way employees treat each other and their clients. It is more important than ever to encourage conversations around diversity and for my generation to lead the way to becoming a more accessible and inclusive profession.

Diversity at Michelmores

When I started applying for training contracts, firm’s diversity and inclusion policies and firm culture was important to me. I instantly felt comfortable meeting people from Michelmores and the firm clearly demonstrated a desire to make everyone feel welcome.

Michelmores have worked on several initiatives to promote diversity and inclusion. Some examples are removing bias from the recruitment process, diversity training throughout the firm, the Women @Michelmores initiative, members of Stonewall, work experience programmes, wellbeing events and a Diversity and Inclusion working group. Events and initiatives around diversity and inclusion open up the dialogue to discuss concerns and ways to promote diversity. The firm are also keen to hear what their employees think about their diversity and inclusion initiatives and have welcomed new ideas.

Here are my top tips for aspiring trainees/ trainees for encouraging diversity, building confidence and breaking the mould:

Sign up to be a mentee/mentor

Make the most of any mentor schemes available to you. Mentoring is a powerful way to boost confidence, reflect and learn from others, and to build connections within the profession. There are mentor schemes available from being a student, through to training contract.

Now as a trainee I have signed up to be a mentor with the recently launched GROW Mentor Scheme. The scheme helps those that come from underrepresented backgrounds to access the legal profession by pairing aspiring lawyers with mentors in the legal sector. Knowing how much mentoring helped me in the past, I feel empowered that I can help someone else reach their potential.

Michelmores colleagues are also signed up as mentors for the Aspiring Solicitors scheme, which also supports aspiring lawyers from diverse backgrounds.

Reach out to the firms D&I representative and get involved with events

When applying for training contracts look at firms D&I policies and initiatives. If you are already a trainee reach out to your D&I representative for a catch up about current initiatives, suggest ideas to your firm for encouraging diversity and get involved with any events.

When I joined Michelmores I was very keen to get involved in any initiatives and have requested to be involved with the Diversity Working Group. I also gave a statement for International Women’s Day and have been involved with organising a wellbeing challenge with my fellow trainees.

Continue learning

To boost your confidence attend training seminars and be proactive with learning. The more self-development you do the more confidence you will have.  Level up in anything you feel that you have missed out on e.g. commercial awareness, business-writing skills, financial management etc.

For example, before making training contract applications I felt like I lacked commercial awareness through lack of exposure. I made sure to attend any events, listen to podcasts or read any business literature to level up my knowledge. I have continued to work and build on my knowledge through my training contract by for example, seeking out opportunities to learn about financial management, attending other teams training sessions and by reading  Michelmores website content.

Embrace your individuality

Don’t shy away from who you are and your story. In my training contract interview, I was able to use some of the challenges I have faced due to my background to demonstrate skills and resilience. People appreciate seeing the authentic you.

I still have some issues with confidence now but I have found being open, a ‘can do’ attitude and continual learning to be a helpful strategy.

In summary: Have confidence, embrace your individuality and continue to champion diversity.