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.

This month has seen two developments in dispute resolution which may impact on how certain construction disputes start and finish. Firstly, the Joint Contracts Tribunal (‘JCT’) has announced that it will shortly publish its Dispute Adjudication Board documents for use with its JCT 2016 Design and Build Contract (‘DB’) and JCT Major Project Construction Contract (‘MP’) at main contract level.

Secondly, the European Commission has at this time rejected the United Kingdom’s application to join the Lugano Convention, which governs which court has jurisdiction in cross-border disputes, and streamlines the enforcement of judgments in the jurisdictions of its member states.

Either, or both, developments may complicate the start and finish of disputes arising in certain projects, especially those with a cross-border element. It does not require a great leap of the imagination to foresee, for example, that projects involving off-site modular construction techniques where one or more components are manufactured overseas could be affected.

The JCT Dispute Adjudication Board documents

Dispute Review Boards originated in the United States, where the first recorded use was on the Boundary Dam and Powerhouse project in Washington State which lasted from 1960 to 1967, at a cost of $98 million, and was completed without resort to any construction litigation. The aim of such boards is to avoid disputes by identifying and resolving potential problems during the course of the project before they escalate into full blown disputes. They are usually established at the beginning of the project and their members make themselves acquainted with the contract, the project and the personalities involved. Their remit includes informal risk-management assistance, making recommendations for the resolution of disputes which the parties are free to accept or reject and, where they are constituted as a Dispute Adjudication Board (‘DAB’), to issue binding decisions too. A DAB typically comprises one or three persons, with each of the parties nominating an individual, who in turn agree on the identity of a chairman.

The advent in the UK of statutory adjudication under the Housing Grants Construction and Regeneration Act 1996, which was influential internationally, was a major boost to the main engineering contract suites introducing DAB documentation (FIDIC in 1999 and ICE in 2005). They have not been widely adopted in the UK precisely because of the success of statutory adjudication. However, in selecting the DB and MP forms, the JCT has identified those of its contracts which are more likely to be used on larger, longer-term projects, which can justify the expense of constituting a DAB to resolve disputes contemporaneously in order to keep the project on track. This outlay is, so the theory goes, likely to be far less than the cost of taking a dispute to a trial in litigation or a final hearing in arbitration.

The JCT does not publish its DAB documents until 4 May 2021 but we are told that they are based on the Chartered Institute of Arbitrators’ Dispute Board rules with amendments for DAB status to allow for the issue of binding decisions in a manner consistent with adjudication in the UK. It will be interesting to see how this is achieved, given that most DABs provide for an 84 day quasi-arbitral process. This results in a decision which is final and binding unless a notice of dissatisfaction is served within, say, 28 days (whereupon, like an adjudicator’s decision, they become interim binding pending the resolution of the dispute via arbitration, litigation or settlement). The popularity of the statutory adjudication amongst users of the JCT suite, coupled with the current thin profit margins in construction projects, means that it is questionable whether the DAB documentation will gain traction in their target market.

The Lugano Convention and the enforcement of judgments

The Lugano Convention 2007 is an international treaty negotiated by the European Union (‘EU’) on behalf of its member states (and by Denmark separately) with Iceland, Norway and Switzerland, all members of the European Free Trade Area (‘EFTA’). It contains rules that govern which nation’s courts have jurisdiction to deal with cases with a foreign element, such as a foreign-based party or events which took place in another jurisdiction. It upholds any choice of jurisdiction the parties have made in their contracts, while providing that where no such choice has been made, the defendant should generally be sued in the member state in which they are domiciled. This helps prevent multiple court cases taking place on the same subject-matter in different countries and reduces the costs for the parties involved. It also seeks to ensure that judgments made in such disputes are recognised across borders, so that the defendant cannot evade enforcement just because it is in a different jurisdiction to the claimant. Rules governing these situations (known as ‘private international law’) can have a significant impact on the costs, conduct (including taking evidence and disclosure of documents) and even the ultimate outcome of the proceedings including the claimant’s ability to realise the value of a judgment.

Having left the EU, it was necessary for the United Kingdom to join the Lugano Convention as a non-EU contracting state if it was to preserve these advantages, and so the UK applied to join in April 2020 before the end of the Brexit transition period. The rejection of the UK’s application by the Commission this month is not final; the European Council may yet permit the UK to accede if a qualified majority of EU member states agree. The EFTA member states have already agreed to the UK’s accession.

Thankfully, the applicable law for the contract chosen by the parties based in different jurisdictions will still be respected because, unlike the Lugano Convention, the Rome I Convention on choice of law in contract survives Brexit (as does the Rome II Convention, the equivalent for non-contractual obligations i.e. negligence and other tort-based claims).

What does this mean you or your business?

Proceedings commenced after the end of the Brexit transition period on 1 January 2021 will not have the benefit of the Lugano provisions. So if, for example, a party to a contract with an English jurisdiction clause finds that the other party has, in breach of that clause, issued proceedings in an EU member state, it could only stop those proceedings by persuading the court that they were commenced in breach of that state’s domestic law and that it should therefore decline jurisdiction. There is therefore now an increased risk of costly parallel proceedings and disputes about which country’s courts have jurisdiction to hear a case.

It also means that different recognition and enforcement regimes will apply when seeking to enforce a judgment of the courts of England and Wales overseas or a judgment of a foreign court in England and Wales. Where no treaty exists, recognition of a judgment and enforcement of it in a foreign jurisdiction will again depend on satisfying that state’s domestic law; some will be more benevolent to claimants based here in England and Wales than others. Navigating the resulting patchwork of enforcement arrangements will require specialist advice on a case by case basis, and will increase the cost of enforcement overseas.

The UK’s continuing membership of The Hague Convention on Choice of Court Agreements (2005) (‘Hague Convention’) helps, because it says that contracting states (EU member states plus the UK, Mexico, Singapore and Montenegro) must uphold any choice of court agreement which confers jurisdiction on the courts of a single contracting state exclusively, and must recognise and enforce any resulting judgment. However, not every jurisdiction clause confers exclusive jurisdiction on the courts of one state, so the above concerns will persist. Widespread mutual recognition and enforcement of judgments on a similar basis to the Lugano Convention will not occur until the Hague Judgments Convention (2019) comes into force, which is unlikely to happen before 2022 due to the time it will take for member states to ratify it. Moreover, it will not have retrospective effect.

What do you need to be doing now?

If your projects involve a cross-border element, then carefully consider where your claims are likely to arise, and where the other contracting parties’ assets are situated. This is also relevant if your company was to be the defendant in proceedings, because if you successfully defend yourself you would want to realise any costs award in your company’s favour. Until the UK re-enters the Lugano Convention or an equivalent, the litigation process is likely to become more complicated as different local regimes will apply. You should consider seeking advice about how the other parties’ local law may affect the enforcement of a judgment in the country where their assets are located.

You should consider whether any standard dispute resolution clause you typically rely on is still suitable for future contracts involving other parties based in the EU, and what changes could be made. A contractual service clause, which will determine the method and place for the service of proceedings, is likely to be beneficial. A clause which provides that the service of proceedings at, say, the UK branch of a foreign company is permissible will obviate the need to serve proceedings out of the English jurisdiction so you will not need permission from our courts to serve proceedings overseas. Having assessed where the majority of the other parties’ assets are situated and the local law in that country, you should consider which jurisdiction is most appropriate to determine your disputes. If there is a possibility that an English court judgment is going to be harder to enforce now, you should consider if an exclusive English jurisdiction clause is necessarily still appropriate. It may be, if the Hague Convention can be utilised, but if not, then a non-exclusive jurisdiction clause which gives you the option of bringing proceedings in England or to sue the other party in another state instead may be appropriate. It may even be appropriate in some circumstances to agree with the other contracting parties to confer exclusive jurisdiction on another EU member state’s courts, or even to forego the right to litigate and specify arbitration at an agreed forum. The parties’ choice of law which governs the contract itself is unaffected by Brexit, so specifying English law remains a feasible option and will be of some comfort.

An application has been granted permission on all grounds for the judicial review of a planning consent granted in August 2020 by Fareham Borough Council. The consent related to a housing development of 6 detached residential units in the Solent region (application reference P/18/0884/FP).

The claimants challenged the validity of the Council’s application of Natural England’s guidance in relation to nitrate neutrality and of the guidance itself, when considered in accordance with the principles governing application of the EU Habitats Directive.

R (Save Warsash and the Western Wards) v Fareham Borough Council (CO/3397/2020) is due to be heard on 11-13 May 2021 consecutively with R (Brook Avenue Residents Against Development) v Fareham Borough Council (CO/4168/2020), which also raises issues about the guidance issued by Natural England.

Background

In 2018 a landmark case ruling known as the “Dutch N” was made by the European Court of Justice and this ruling informs the way in which relevant legislation is applied to pollution-related matters, in particular, nitrogen and phosphates, and the limits placed on them to stop them from polluting the wider environment. That relevant legislation is contained in Articles 6(2) and 6(3) of the EU Habitats Directive (92/43/EEC), as implemented by the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012).

As a result, in 2019 Natural England issued guidance to all relevant local planning authorities regarding the implications of the Dutch N decision in relation to planning applications that may affect protected sites under environmental legislation. In relation to the Solent, the primary concern was the high input levels of nitrogen and phosphorus into the Solent’s water environment causing eutrophication, leading to increased algae growth.

The Guidance

Natural England advised all local planning authorities in the Solent region that new planning permissions should only be granted if they can demonstrate ‘nitrate neutrality’.  This led to a moratorim on all new housing development, any new overnight accommodation such as hotel and student accommodation, and major tourist facilities within the region that would discharge into the Solent, whether directly, or indirectly via one of its river catchments. Natural England issued revised advice that set out a methodology to calculate a total nitrogen load for a proposed development, which must then be offset. In practice, the guidance requires all new housing developments in the Solent to secure an in-perpetuity mechanism to offset nitrates.

The solution to achieve nutrient neutral development and the science behind it is a complicated issue. In practice, mitigation options are now being used by some local authorities. These options include financial contributions being paid to third parties, who use the funds to secure agricultural land and take this out of agricultural use, and the creation of suitable alternative natural greenspace (SANG) mechanisms and ‘nitrate credits’.

Judicial Review

In respect of the judicial review claim brought by Save Warsash, an order of the High Court was made on 7 December 2020 refusing permission to bring the judicial review claim on all 8 grounds. The Court’s view was that officers had correctly interpreted and applied the Natural England guidance on achieving nitrate neutrality, had properly advised the Planning Committee, and that the Planning Committee had made a lawful decision.

Save Warsash successfully asked the Court in December 2020 to reconsider its claim. The outcome of the hearing (11-13 May 2021) is eagerly anticipated to provide clarification on the issue to developers and local authorities alike.

UPDATE – click here for an update on the outcome of this case: Planning and nitrate neutrality: the High Court backs Natural England’s guidance | Michelmores