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

Following the “Dutch case” in 2018, the first time a national government had been required by its Court to take action against climate change, nutrient neutrality has become a hot topic with Natural England advising local authorities with protected water environments not to grant planning permissions unless the development can be proven to be “nutrient neutral”. The impact of this advice on development in the Solent region and in Taunton have been widely reported.

In inland freshwater environments, such as the Somerset Levels, it is phosphates that are the issue and in coastal/marine areas, such as the Solent, it is nitrates. It is thought that the issue of proving development to be “nutrient neutral” will become more widespread through the country as Natural England issues advice to other local authorities with sensitive protected water environments.

In terms of the planning process in an affected area a Habitat Regulation Assessment (HRA) will be required for any relevant development. This requirement does not only apply at outline stage, it continues until the local planning authority had made the “implementing decision”.  The relevant local planning authority will be require a HRA:

• at outline stage;
• at reserved matters stage if no HRA was undertaken at outline stage;
• at reserved matters stage even if a HRA was undertaken at outline stage if there has been a material change in circumstances; and
• when discharging conditions on full or outline permissions, whether or not the conditions relate specifically to nutrients.

The HRA must be undertaken in consultation with Natural England who will need to be satisfied that the mitigation measures proposed will achieve nutrient neutrality.

So what might this mean for developers in development transactions?

• Developers must carry out sufficient due diligence and take technical advice as regards the impact of being in a “nutrient neutral area” or the likelihood of being in such an area.
• Will there be a move by developers away from unconditional acquisitions of land with the benefit of outline planning consent to acquisitions conditional on detailed consent or reserved matters approval on the basis of an acceptable HRA and mitigation measures?
• Developers may be more likely to seek to link agreed minimum prices to net developable acres rather than gross acres so as exclude land required for mitigation measures as well as for Biodiversity Net Gain.
• Developers may seek to increase the land they control to accommodate mitigation measures.
• Developers may seek additional rights over further land held by the seller.
• Where developers are already collaborating on larger sites, consideration will need to be given to the developing planning picture.

Some of the above are also relevant in respect of other emerging mitigation requirements such as Biodiversity Net Gain (particularly bullets 3 and 5).

So is this all fine and simply a matter of making the correct revisions to our contracts? Unfortunately not. The difficulty is that some mitigation proposals are very land hungry, such as the setting aside of productive land as fallow in order for it to process the nutrients to a neutral position.  Leaving land permanently fallow and unproductive might be a short-term fix, but a moment’s thought confirms that in the longer term it is simply unsustainable.

The concept of nutrient neutrality is relatively new, but it can have a huge impact on areas such as the Solent, Somerset Levels, or anywhere similar. If Natural England expand their advice to other local authorities not to grant planning permissions, then this will really ramp up the issue of nutrient neutrality.

Following an already protracted equal pay battle, Asda’s retail workers are now one step closer to success following the Supreme Court ruling in their favour. It has been confirmed that retail employees, including shop floor workers and other front of house staff, can be compared with employees who work in the distribution centre. The next step for the retail employees is to prove that the retail workers and distribution workers are of “equal value.”

Background

Under the Equality Act 2010, men and women should receive equal pay for equal work; for this purpose, an employee can compare themselves with a comparator of the opposite sex who is performing work of equal value.

In order to bring a claim, a claimant and their comparator must be employed by the same (or an associated) employer. They must also be employed:

1. at the same establishment; or
2. at different establishments at which “common terms” apply.

For this “common terms” test, it is crucial to show that, if the comparator transferred their job to be in the same establishment as the claimant, their terms would not change. If that would be the case, the two jobs can be compared. This is known as the “North hypothetical test”.

Facts of the case

The supermarket giant, Asda, employs over 130,000 staff. Thousands of Asda’s retail employees have brought equal pay claims. These employees (the Claimants), who are mainly women, have argued that they should be paid at the same rate as their distribution colleagues, who are mainly men. For clarity, none of the retail sites and distribution depots are connected.

Asda, responding to these claims, contended that the two groups of employees are not employed on “common terms” as the retail and distribution locations are separate from one another and the employees at the different types of location have different terms and conditions of employment.

The Claimants succeeded before the Employment Tribunal and Asda unsuccessfully appealed to both the Employment Appeal Tribunal and the Court of Appeal.

Supreme Court Decision

The Supreme Court had to decide whether the (predominately female) retail employees could use the (predominately male) distribution employees as comparators under the “common terms” requirement of the Equality Act 2010.

The Supreme Court commented that because there are no actual comparators in this case, it must be considered whether hypothetical comparators would have been employed on similar terms if they were employed in the same establishment as the Claimants.       It was held that the distribution workers would have been employed on largely the same terms as the retail workers if they were based at the same site.

This decision has clarified that the threshold for the “common terms” test is relatively low and, as a result, Asda retail workers can now compare themselves to distribution workers to decide whether they should receive equal pay.

What this means for employers

Obviously, this result is good news for the Claimants. However, they have only passed one hurdle in a very complex case, which now returns to the Employment Tribunal for consideration of the further elements of the equal pay test. Since the judgment, Asda has given a statement to confirm they intend to continue defending these claims and that they consider retail and distribution workers have “their own distinct skill sets”.

We will update you in due course as to how this case develops. However, it is already a good reminder for employers, regardless of whether or not they are in the retail sector, to take the opportunity to review pay across all areas of their business, to try to limit the risk of being the subject of a similar claim in the future.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.

When selling a property, it is important not only to consider the current value of the property, but the potential for the property to increase in value after it has been sold. This is commonly the case where it is likely that the property may be developed in future (for example, for housing, or for commercial development).

Selling parties are often interested to know how they can use overage agreements to get the most out of their sale by realising the development potential in the property they are selling.

What is overage?

Simply, overage (sometimes used interchangeably with ‘clawback’) means a surplus of money beyond a given estimate. It follows that, in a property sale, an overage agreement is where the seller will be paid a surplus should a specific event happen in the future.

Overage agreements are usually entered into where land that has development potential is sold. For example, an overage agreement might provide that overage needs to be paid if the value of the land increases as a result of planning permission being granted for development or if planning consent is obtained for a development larger than originally anticipated (planning overage). Alternatively, an overage agreement might require a developer to pay the original seller a share of profits arising from plots that it sells (sales overage). Sometimes parties enter into hybrid arrangements.

When is the overage payable?

It is important to consider what events should actually “trigger” an overage payment.

Usually, overage will be payable on the happening of specified “trigger events”, often within a certain period of time. For example, when construction starts on a development, or when land is sold on with the benefit of planning permission (thus being sold at a higher value than the seller originally sold it for). An effective trigger mechanism will need to be included in the overage agreement, and the trigger will vary depending on the exact scenario.

Some overage arrangements will terminate after a single overage payment is made, whereas others will provide for sums to be paid multiple times, on the recurrence of a certain event happening (for example, where multiple plots are sold at the same site).

Selling parties should exercise caution in deciding when overage will become payable, given the unpredictable nature of property development. These are often matters of some negotiation in property sales, and it is always best to seek expert advice.

How much overage should be paid?

When calculating how much overage should be paid to a seller, it is important not to overly-complicate things. A simple mathematical formula is usually used which often deducts the base value of the property from the enhanced value, with account being made for certain allowable deductions.

Calculations will start to look a little more complex when it comes to overage payable on larger developments. Including worked examples of the overage calculation in the agreement can be a helpful way to show how the calculation should work. Ultimately, the amount of overage that should be paid will depend on the circumstances in question, and careful attention should be paid when documenting the calculation.

Is overage always the answer?

Careful consideration should always be given as to whether overage is appropriate to the transaction in question. Overage arrangements can be complex and the legal fees for negotiating overage arrangements can be significant. It should not be seen as a substitute for deferring an element of the consideration but rather as the ‘icing on the cake’ should a trigger event occur.

If you have any questions concerning overage payments, or you are considering a sale of land subject to overage, please get in contact with a member of our Transactional Real Estate Team.

Background

It has, to date, been difficult for businesses to show trade mark infringement in the use of services such as Google AdWords. Google AdWords is an online advertising service which allows bidders to place an advertisement on the Google results page when certain keywords are entered into the search engine by consumers. This is known as ‘keyword advertising’.

There has been controversy previously, as demonstrated in the Interflora v Marks & Spencer case, over the use of keywords that are trade marked in relation to goods or services. On the basis that search engine operators are often not using the trade marks in the course of trade themselves, there has been a lack of clarity in relation to what constitutes trade mark infringement and given the costs involved, it is often avoided.

In Cosmetic Warriors Ltd and another v Amazon.co.uk Ltd and another, the court has taken the opportunity to clarify the circumstances in which the use of a trade mark in relation to keyword advertising and website search results will constitute an infringement. The court has importantly demonstrated that it is not afraid of finding against major e-commerce retailers such as Amazon.

The three classes of alleged infringement

John Baldwin QC, sitting as a deputy judge, held that Amazon.co.uk Ltd and Amazon EU SARL (together ‘Amazon’) had infringed the Community trade mark ‘Lush’ belonging to Cosmetic Warriors Ltd and Lush Ltd, (together ‘Lush’) under Article 5(1)(a) of the Trade Marks Directive 2008/95 EC.

Lush brought three classes of alleged infringement:

• the first class concerned keyword advertising by Amazon through the Google AdWords service which included the trade mark ‘lush’;
• the second class concerned keyword advertising by Amazon through the Google AdWords service which did not expressly include the trade mark ‘lush’; and
• the third class concerned search results delivered on Amazon’s own website when a consumer entered the word ‘lush’ into the search bar.

Importantly, in the first two classes of alleged infringement, there was no overt message to explain that Lush products were not available for purchase on the Amazon website. The deputy judge noted that, following the Google France case, keyword advertising could constitute use of the trade mark in the course of trade. The question to be asked is, whether one of the functions of the trade mark is adversely affected by that use.

The first class of infringement – sponsored adverts for Amazon containing “Lush”

Amazon had secured keyword advertising to generate a sponsored link to its website when a consumer typed the word ‘lush’ into the search bar of the Google search engine. The deputy judge held that the average consumer would expect to find Lush products available on Amazon’s website as a result of seeing the sponsored advertisement. The reasoning for this judgment pivoted on the consumer’s perception of Amazon as a reliable supplier of a wide range of goods, which would not advertise products that it did not have available for purchase. It was therefore held that Amazon had infringed Lush’s trade mark in this class.

The second class of infringement – sponsored adverts for Amazon that did not contain ‘lush’

The deputy judge held (distinguishing the facts of Interflora v Marks & Spencer) that the average consumer was aware of sponsored links and would view Amazon’s advertisement as just another company offering similar products to those searched for. The deputy judge acknowledged that consumers would expect an advertisement for Lush products to include reference to the word ‘lush’, therefore he rejected Lush’s allegation of infringement.

The third class of infringement – use of ‘lush’ on Amazon’s website

The third class of alleged infringement (and arguably the most important to Amazon) concerned the search results delivered on Amazon’s own website when a consumer entered the word ‘lush’ into the search bar. The deputy judge highlighted the two issues to this infringement – the use in the course of trade and whether this affected the function of the trade mark. Amazon argued that the consumer was at the core of the Amazon search process and that Lush’s attempt to remove that control would restrict competition. The deputy judge contended that:

“the right of the public to access technological development does not go as far as to allow a trader such as Amazon to run rough shod over intellectual property rights”.

The deputy judge held that when a consumer chooses to type the word ‘lush’ into the Amazon search engine, Amazon was not using this trade mark in the course of trade. However, in the instances where Amazon’s sophisticated software was utilised to predict a consumer’s search terms or create a repeat of the word in the related searches line, this was use in the course of trade. The deputy judge noted expert evidence that the average consumer would expect that the products suggested via a drop-down menu would be the original products and not those of competitors.

The third class of alleged infringement therefore centred on whether the use of Lush’s trade mark by Amazon damaged the origin, advertisement and investment functions of the trade mark. The deputy judge held the following:

• Origin – The average consumer would not be able to ascertain, without difficulty, that the goods which were displayed did not originate from Lush. This situation was different to the sponsored advertisements in the first two classes of alleged infringement as a consumer on Amazon’s website has an initial expectation that the products were original Lush products.
• Advertisement – Amazon’s use of the trade mark to attract consumers’ attention to third party goods without qualification was damaging to Lush’s reputation and marketing efforts.
• Investment – Lush operated an ethical trading business which had consciously avoided selling its products on Amazon due to its unethical reputation, perceived by many consumers.

The impact of the decision

This judgment has given welcome clarity on several points. Use in the course of trade in relation to the online marketplace has been further discussed. The deputy judge stated that it was clear from the cases of Google France and L’Oreal v eBay  (although different on the facts) that if third party sellers were using the trade mark on their goods and Amazon was merely the online marketplace, it would not be using the trade marks in the course of trade. As Amazon was both the designer and operator of its search engine which it used to maximise sales, the deputy judge was satisfied that this was a commercial communication by Amazon. This extended beyond a service which enabled customers of its website to display signs corresponding to trade marks. This did therefore constitute use in the course of trade.

The deputy judge also clarified the use of trade marks in keyword advertising through services such as Google AdWords and also on a company’s own website. Three key points can be taken from the decision:

• third party trade marks cannot be used as a keyword and in the related sponsored advertisement when the goods under that trade mark are not available for sale on the advertiser’s website;
• third party trade marks may be used as keywords as long as the sponsored advertisement does not incorporate those trade marks, the reason being that consumers are familiar with sponsored advertisements from competitors; and
• use of a third party’s trade mark as a search term on the advertiser’s website may infringe the third party’s rights if the goods under those trade marks are not available for sale. In fact advertisers should go one step further and make the customer aware that the goods are not available on the advertiser’s website.

The wider effect of this judgment may be minimal, noting that Amazon is intending to appeal the decision. However, in the interim this case indicates that sponsored links and AdWords can be used in relation to competitor’s goods but use of a trade mark should be avoided.  As the deputy judge placed weight on the reliability and wide product range offered by Amazon, it is evident that the expectations attached to the average consumer are still likely to vary on a case-by-case basis. For businesses who are concerned that larger retailers’ advertising may capitalise on their trade marks, this case should encourage them to look into how their trade marks are being used and consider whether such use should be challenged.

This case does demonstrate the court’s willingness to take a bold approach to the activities of one of the largest online retailers. This judgment offers greater clarity and peace of mind to businesses in relation to when they may be successful in litigation and therefore should incur the extensive costs of issuing proceedings. It will be interesting to see how Lush fares if this decision is simply the first pitched battle of a continuing conflict.

For further information on the issues raised in this article, please contact Tim Richards, Partner at tim.richards@michelmores.com or Associate David Thompson at david.thompson@michelmores.com.

On 5 March, the Minister of Women and Equalities, Liz Truss, called for flexible working to become part and parcel of daily life. This includes allowing employees to have the option to work part-time/flexi time, work from home and job share. Whilst this seems beneficial to the workforce, are there any benefits for employers in increasing flexibility?

The Call for Flexible Working

With more people working flexibly due to Covid-19, the Equalities minister has said that now is the time to offer flexible working as a standard option for employees.

Research from the Government-backed Behavioural Insights Team (BIT) and Indeed, the job website, found that, where flexible working arrangements are offered, job applications increase by up to 30%. This was the largest research carried out of its kind in the UK, analysing nearly 20 million applications.

Currently, flexible working is usually requested by employees, however, Liz Truss explains that by “making flexible working the norm, rather than something employees have to specially request, will help open up opportunities to people regardless of their sex or location”.

By increasing the flexibility of jobs, it is hoped that employment will be enhanced in areas away from major cities and provide greater opportunities for women who are twice as likely to work flexibly as men.

Minister for Women, Baroness Berridge, commented that “we continue to see the benefits of flexible working, now more than ever. These findings add to existing evidence showing how both men and women stand to benefit from working from home and returners programmes”.

What are the Benefits of Flexible Working?

The Government Equalities Office published its findings in a paper “Encouraging employers to advertise jobs as flexible“. It recognises that many individuals would prefer to work flexibly (including 93% of non-workers) and that this desire has only increased through the outbreak of the Covid-19 pandemic. However, currently, only 22% of jobs are advertised as flexible. Nevertheless, once in a job, 60% of workers end up working flexibly. This further illustrates the demand for flexible working.

The paper explored some reasons as to why employers may be unwilling to advertise jobs as flexible, when they are, in fact, willing to offer flexibility. This included a “status quo bias which favours full-time work and ambiguity aversion which may discourage consideration of a range of flexible working patterns”.

The benefits of flexible working may be clear for employees, who are able to work around other commitments, such as childcare. However, what are the benefits for employers when it comes to offering flexible working?

There are a number of benefits that can come from offering employees flexibility in their working, the increase in employee morale and engagement being one. This can have ricocheting effects in reducing employee turnover and absenteeism. A survey carried out by CIPD found that “flexible workers are more likely to be engaged which yields significant advantages for employers – potentially generating 43% more revenue and improving performance by 20%, compared to disengaged employees.”

Furthermore, CIPD’s research found that flexible working allows companies to adapt to fluctuating market demand and increase competitiveness.

Implementing Flexible Working

Covid has meant that flexible working has naturally increased due to necessity. However, as people begin to return to work, employers may need to consider updating their contracts and policies to enable their staff to continue to work flexibly.

Currently, employees who have accumulated at least 26 weeks’ continuous employment are eligible to make one written flexible working request in any 12 month period. Once received, an employer is required to deal with the request in a reasonable manner, which will likely involve arranging meetings with the employee to discuss their request and any concerns. An employer has three months to respond from the date of the request, unless both parties agree to extend this time limit.

Given that many employees have been working from home for the majority of the past year, there may be an assumption that they have already successfully proven to their employer that home working is possible. In some cases, this may be correct. However, some employers may seek a return to normality in terms of office hours and presenteeism for various reasons. An employer who takes this course of action will need to produce evidence as to why continuing to allow the extent of flexibility currently in place would not work for the business in the long term.

Our article “How should employers handle flexible working requests following lockdown?” provides further information on flexible working requests, which will likely increase as lockdown eases.

Final Notes for Employers

As we come out of lockdown, businesses will need to continue to review their methods of working. It will be worth considering whether allowing staff to continue to work flexibly is something they are able to provide and whether this will remain beneficial to them as an organisation.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such.