COVID-19

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In a time of ongoing public uncertainty, we here at Forbes are committed to helping individuals and businesses with ongoing change. Below we have provided a comprehensive list of FAQs to address the latest coronavirus concerns. The questions and answers cover:


Commercial

Will COVID-19 be covered by Force Majeure?
 
 

This depends on the contents of your terms and conditions and commercial contracts more generally. Typically, most contracts will contain force majeure provisions which set out performing party will not be in breach of contract for failing to perform due to a "force majeure event". Epidemics and pandemics (the World Health Organisation has declared that Covid-19 is a global pandemic) will often be included; however, there could also be some merit in the argument that the Covid-19 outbreak is a "cause beyond the reasonable control" of the party in question.

The Covid-19 outbreak alone will not be sufficient to invoke the force majeure provisions within your contracts (i.e. enabling a party to terminate a contract that it no longer wishes to perform), as an assessment needs to be made on the impact that such has had on performing your contractual obligations. Most contracts also contain procedural requirements for the parties to follow in the event of a force majeure event taking place. For more information read our latest blog here.

Will COVID-19 be covered by Frustration?
 
 

An alternative [to force majeure] - but nonetheless more difficult to establish - argument would be that, as a result of the Covid-19 outbreak, your contractual obligations have become impossible to perform. This would be covered by the doctrine of frustration, under which if an event occurs (or a series of events, in the case of Covid-19 being the actions taken on a day-by-day basis by governments internationally), which goes to the heart of the contract such that it is beyond the contemplation of the parties at the time the contract was entered into, and renders performance of the contract commercially or practically impossible.

The courts are generally loathed to find that a contract has been frustrated, on the basis that - although the intervening event will no doubt have made performance difficult - there are often alternative courses of action available to the parties. This ought to be considered when reviewing your international supply contracts and the steps that have been taken to contain the spread of the virus across borders.

How will COVID-19 affect the supply chain?
 
 

With the above in mind, we would recommend that you conduct a review of your contractual obligations towards your suppliers, customers and intermediaries (as the case may be). The Covid-19 outbreak has no doubt already caused, or will cause over the coming weeks and months, disruptions to your supply chains. The international movement of goods and (particularly in light of the measures already taken by governments) people at the very least will be delayed and in some instances prohibited, which will of course have an impact on meeting agreed delivery dates.

Depending on the government's actions in the coming days (and proposed "lockdown", mirroring actions taken globally), similar can also be said for domestic supply contracts, in which we have seen a marked increase in demand on suppliers. It may well be the case that parties will rely on the force majeure provisions contained in their commercial contracts when seeking to limit their ongoing obligations to their suppliers and customers.

How can I deal with payments and cashflow issues?
 
 

On Wednesday 18 March 2020, the Chancellor announced a £330 billion support scheme that will be available to businesses throughout the Covid-19 pandemic. The scheme is changing on a daily basis; however, at the date of writing, it is available to all small and medium sized businesses (defined in the Companies Act 2006 as being those businesses with a turnover of less than £36 million, balance sheet of less than £18 million, which employ less than 250 employees). The scheme is wide-ranging, offering business rates holidays, business support grants of varying amounts, up to £25,000, in addition to providing financial support to those employers making statutory sick payments to their employees, which may assist with the short term financial difficulties that your business is facing.

Although it is always advisable to have efficient credit control facilities in place in any event, during the Covid-19 outbreak, we would recommend that you revisit your terms and conditions in order to ensure that going forwards, customers are required - where practicable and possible - to make advance payments for the goods and services that you will provide. This will reduce the potential of bad debts arising in the coming weeks and months.

Our overriding advice to clients is that the earlier its contracts can be reviewed for suitability, the more able it is going to be to mitigate any potential issues arising out of Covid-19.

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For more information or advice on what steps your business can take to protect itself contact John Pickervance, Head of our Commercial department via email or phone on 0333 207 1134. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Commercial Property

I am unable to operate my business due to COVID-19 - must I still pay rent under my Lease?
 
 

Very few Leases will allow for a rent suspension in these circumstances. The likelihood is that rent is still payable by you.

You could approach your landlord to ask for a rent holiday or to defer your rent to a later date or to pay monthly instead of quarterly, but they are not obliged to agree to this. If any rent concession is agreed it is important to document this by way of a Deed of Variation or a side letter.

There is the possibility that your current business interruption insurance will cover you for non-payment of rent under your Lease as COVID-19 is now officially a notifiable disease.

I am a Landlord and one of my Tenants has informed me that one or more employees of their business has COVID-19. Am I able to stop them using the Property?
 
 

Generally, no. Commercial Leases allow the Tenant to quietly enjoy the Property and you cannot stop the Tenant from occupying the Property. An exception is that Public Health England may direct the closure of a building, and you should monitor their published guidance.

To assist in restricting the spread of the virus you may be able to limit the use of the rest of the building or certain areas of the building by setting reasonable regulations for the management of the building which all Tenants are required to abide by.

Dependant on the terms of your specific Lease, a Landlord may also be able to limit the level of services provided to Tenants due to the outbreak of COVID-19 and subsequent social distancing requirements.

Does my Lease account for any required additional cleaning or maintenance?
 
 

Most commercial Leases oblige the Landlord to provide specific services such as cleaning and maintenance of common areas.

However, most Leases will not include specific provision for cleaning and maintenance above what is normal - such as the deep cleaning and sanitising measures which many employers are now putting in place in reaction to COVID-19.

It may be possible for Landlords to claim back expenses from Tenants in relation to additional cleaning required at the building. This would be claimed back through the service charge payable by the Tenant, subject to any cap on contributions. This would depend on the wording of the service charge clause in your Lease.

What are my responsibilities in relation to health and safety in light of COVID-19?
 
 

The Control of Substances Hazardous to Health Regulations 2002 (COSHH) may possibly cover the current COVID-19 pandemic. The COSHH requires that you prevent workers exposure to hazardous substances by:

  • finding out what the health hazards are;
  • deciding how to prevent harm to health (risk assessment);
  • providing control measures to reduce harm to health;
  • making sure they are used;
  • keeping all control measures in good working order;
  • providing information, instruction and training for employees and others;
  • providing monitoring and health surveillance in appropriate cases;
  • planning for emergencies.

The COSHH can be viewed here:- https://www.hse.gov.uk/nanotechnology/coshh.htm

We recommend you review your Lease to confirm responsibilities in relation to removal of waste - particularly during this time when employees may be required to come into contact with items which may be connected to employees who have tested positively for COVID-19.

What happens if the Property is locked down due to the government restrictions and my Lease states that I cannot leave it vacant/closed for extended periods of time?
 
 

Check your Lease to confirm exactly what your responsibilities are. If your Lease does require you remain open, but your Lease also requires you to comply with statute (as most do), then closing to comply with your duties under, say, Health & Safety at Work legislation, is likely to override your obligation to keep open. Do also remember to notify your insurance company.

Your Lease may also require you to notify the Landlord if the property will be shut/unoccupied for a period of time.

I am required to undertake work on a Property under a Licence for Alterations - the works are time sensitive, needing to be completed within 6 months. Can I get an extension to this time limit?
 
 

A Licence for Alterations will usually include provision for an extension if the reason for the works not being completed is outside the control of the parties - a force majeure clause. Whether or not a delay caused by COVID-19 would be covered by any force majeure clause depends on the specific wording of the clause and whether this includes epidemics and/or pandemics.

The best course of action is to speak to the Landlord as soon as it becomes apparent that delays may be incurred due to the current situation. It is in the Landlords favour to maintain and improve the residual value of the Property.

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For further information or further advice on how we can help your Business please contact Helen Marsh in our Commercial Property Department via email at helen.marsh@forbessolicitors.co.uk or via telephone on 0333 207 4236.

Corporate

How will this affect Mergers and Acquisitions?
 
 

For mergers and acquisitions, the impact of coronavirus is too soon to tell. If a company's profits decline, buyers are likely to lower their asking price whilst sellers are likely to maintain the overall purchase price where possible. This is likely to cause a rift in buyer-seller expectation which may hinder the mutual cooperation of the transactional parties. Anticipated changes may see companies using debt financing mechanisms and other investment fund structures to fund future M&As. An influx in overseas investment may also be prominent, although this will no doubt depend on the international impact of the virus itself. The virtual lockdown may cause potential purchasers to reconsider their position until more certainty enters the market

How do I avoid a Breach of Warranties?
 
 

Ongoing updates to Government guidelines may mean that warranties given by sellers to buyers are no longer true or are potentially misleading. A failure to provide accurate warranties may leave sellers vulnerable to a breach of warranty claim. Sellers are encouraged to update warranties in sales and purchase agreements to ensure that they accurately reflect the value and nature of the business during and after COVID-19. For more information please see our latest article

Can I invoke a Material Adverse Change clause?
 
 

A material adverse change clause is seen as a 'catch all' clause that gives the right to a party to walk away from an acquisition if detrimental circumstances unexpectedly arise. Similar to a force majeure clause, whether this will invoke protection will depend on how a material adverse change is defined in the final agreement. Buyers are advised to include specific 'coronavirus related events' to make a MAC clause enforceable in the event that it needs to be relied on in the future. Examples of this may include the absence of employees, where there has been a 'material' change to a company's accounts, or material changes made to company contracts.

I can’t meet my filing deadlines, what do I do?
 
 

Companies House have provided additional support for Companies who may not be able to meet their internal filing requirements due to coronavirus. This may be due to staff shortages, prioritising emergency contingency plans, or closure of accountancy firms. Businesses are also encouraged to use the online filing services to facilitate with the continued filing processes as the Companies House workforce processes requests remotely. Read our article on changes to the Companies House filing systems here.

How may I use electronic signatures ?
 
 

In the wake of the pandemic virus and the current threat it poses, many businesses have leveraged remote access for its workforce. For many companies it's business as usual, and this raises the issue of whether documents can be signed electronically to avoid meeting in person. Following publication from the Law Commission, under English law, generally, electronic signatures can be used as an alternative to written signatures. Practical issues will arise however, if a document needs to be executed as a deed (and therefore signed and witnessed by an independent individual). For more information see our latest blog

Can my company still hold meetings?
 
 

Following recent Government advice to avoid large gatherings and to work from home where possible, companies are generally advised to postpone face-to-face meetings. Where general meetings or board meetings are necessary businesses are advised to utilize electronic means by use of online webcam services or via conference calls. Businesses are also encouraged to enforce proxy voting systems in the event that imminent business decisions need to be made. Other variations to holding a face-to-face meetings will be contingent on each company's Articles of Association. To find out more about COVID-19 and AGMs view our latest article here.

What help is available for me?
 
 

The Government have released a series of packages and schemes to help a range of businesses through the COVID-19 disruption. Details of the help available includes:

  • Support for businesses paying sick pay for employees;
  • Support for businesses that pay business rates;
  • Support for businesses through the Corona Business Interruption Loan Scheme which replaces the Enterprise Finance Guarantee scheme currently offered;
  • Support for larger businesses through the Covid-19 Financing Facility; and
  • Support for businesses paying tax.

The combination of lending, grants and business relief will be assessed generally on a case-by-case basis, and businesses are encouraged to check the government website for further details. Further information can be found here.

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For further information or further advice on how we can help your Business please contact Pauline Rigby in our Corporate Department via email at pauline.rigby@forbessolicitors.co.uk or via telephone on 0333 2071131

Data Protection

Can we tell staff that a member of staff has contracted coronavirus?
 
 

Yes - data protection is not a barrier to protecting the health and safety of your staff. The fact that a member of staff has contracted coronavirus is special category data for the purposes of data protection law. Your legal basis to process this personal information may include that it is necessary for compliance with a legal obligation, such as your health and safety obligations, or where processing is necessary to protect the vital interests of an individual. You may not need to name the individual, it may be sufficient to inform staff which office or location the member of staff was based.

How can we maintain data protection compliance whilst staff are working from home?
 
 

Many organisations will have a significant, if not entire, proportion of their workforce working remotely. Whilst staff work remotely, organisations still have legal obligations to ensure technical and organisational measures are in place to keep personal information secure. We recommend reviewing all your remote working policies, provide training on your remote working policies to those members of staff who do not usually work remotely, raise awareness of the importance of data protection - in particular of the risk of handling paper documents outside the office, the risk of theft of personal devices and the importance of encrypting emails containing confidential or sensitive information and remind staff of your data breach procedure and the importance of reporting breaches to your employer.

Is it safe to allow staff to access our systems from their own personal devices?
 
 

As there is now a significant proportion of the workforce working remotely, many organisations are permitting staff to work remotely on their own personal devices (commonly known as 'Bring Your Own Device' or BYOD). Organisations should consider how staff are to access the organisation's network while working remotely. Whether access to data should be restricted via a specific app or the use of encrypted email protocols should be considered by organisations. Also, accessing the organisation's network via an unsecure "coffee house" network could increase the risk of data being lost. Therefore, use of a secure VPN when not connected to the organisation's network should be a fundamental requirement. We recommend reviewing your BYOD policy and consider what training staff need to enable business continuity whilst ensuring personal information remains secure.

Can we contact vulnerable customers, tenants or pupils to provide targeted support during this pandemic?
 
 

Yes - data protection is not a barrier to protecting health and safety or managing a public health crisis. The ICO has recognised that, given the emergency footing, decisions need to be taken and information needs to be shared urgently and therefore it is understandable that usual data sharing protocols may not always be followed. You must still comply with the data protection principles and will need to have a lawful reason to share personal information about customers relating to coronavirus. Where you want to share information in order to protect the vulnerable, there are lawful reasons to do so contained in data protection law. These reasons include your duty to protect individuals under health and safety legislation or where it is necessary to protect the vital interests of an individual.

Do we still have to comply with subject access requests?
 
 

Yes - organisations still have to comply with data protection law, but it will be understandable if there is a delay in providing the information provided. The ICO has published a statement confirming that it cannot extend statutory timescales, but it will tell people through its own communications channels that they may experience understandable delays when making information rights requests during the pandemic. The ICO went on to say that they understand that resources, whether they are finances or people, might be diverted away from usual compliance or information governance work. It won't penalise organisations that it knows need to prioritise other areas or adapt their usual approach during this extraordinary period.

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For more information or advice contact Daniel Milnes, Head of our Governance, Procurement and Information department via email or phone on 01254 222313.

Dispute Resolution

What happens if my case is ongoing?
 
 

Our team of solicitors have been agile working for a number of years, the present situation means that as far as we are concerned it is very much business as usual. We may need to operate slightly differently when it comes to meetings, these will now take place by way of telephone conference or video conference. We operate a paper-light office and your solicitor will continue to have access to all documents pertinent to your case.

If you have issued proceedings at court, or proceedings have been issued against you, your solicitor will provide you with updates as to the way in which the court will deal with any upcoming hearings - much in the same way as we are operating, the courts are trying to keep disruption to a minimum by conducting hearings by telephone and video conference where possible. Court timetables still need to be adhered to, if unforeseen issues arise as a result of Covid-19 that mean for whatever reason you are unable to comply with the court timetable it is important that you tell your solicitor as soon as you are able.

I have recently served notice on my tenant, can I still rely upon possession notices that have already been served?
 
 

If we served a possession notice prior to the coronavirus outbreak then this notice should remain valid. The proposed new law stops landlord's seeking possession of the property due to non-payment of rent resulting from the coronavirus e.g. the tenant has lost their job and income therefore has been unable to pay rent. The notice already served on the tenant will have been relating to arrears accruing before the corona outbreak and so should not be caught by this new law. We are yet to see the court rule on this yet and will update as soon as we are able.

I have already issued possession proceedings, do I need to start the process again?
 
 

No, it is not necessary to start proceedings again from the beginning. If we have already issued possession proceedings then these will proceed as usual. However, there is currently a risk that the courts will not allow enforcement of orders until daily living is able to return to normal. Again the courts may seek to interpret the relief offered to tenants differently and whilst the country is on lockdown and orders given at hearings in the coming weeks / months may reflect this.

Does this effect the work we have already done to remove my tenant?
 
 

The new laws put in place should not affect the work that has already been done. The new provisions are intended to be applied to new matters moving forwards that have been directly affected by the coronavirus. For example, this may be due to loss of income directly resulting from loss of work due to the coronavirus. So as to ensure work already done remains valid, we are taking extra precautions in terms of extending notice periods and updating our advice, where needed, as new laws are enacted.

I am owed money by a business that has temporarily stopped trading
 
 

Where possible it is important to maintain a dialogue with your debtor, there may be any number of reasons why you have not received payment and you should speak to the debtor and find out why. If it is a case of a debtor needing more time to pay, keep any extensions to a minimum and under tight control and if possible seek an immediate part payment. You must always reserve your right to claim the amount owed in full along with any contractual interest owed. It is a difficult balance when keeping the conversation open with a debtor to be flexible without appearing to not pursue the money you are owed. If the conversations with the debtor prove unsuccessful, speak to our team and we can help to get the ball rolling and attempt to recover the money owed. There are a number of ways this can be done, either by seeking a county court judgment or taking steps to instigate insolvency proceedings. We can advise on the most appropriate course of action.

How do I avoid disputes arising in contracts during lockdown?
 
 

Circumstances will present themselves as a result of government measures currently in place which will impact on your commercial agreements for supply of services or products. In order to preserve your relationship with the other party to any agreement or contract, and in order to avoid a dispute arising, you may wish to seek to vary the terms agreed. This can be done either at your request if you are unable to meet and fulfil your obligations or by the other party who find themselves in that situation. If you are able to agree between you terms which can be accommodated, you need to take advice as to the ability to vary those terms and also the impact it will have on you - for example are you waiving your rights to any damages payable or exposing yourself to additional cost?

If you are negotiating without your solicitor, please bear in mind that exchanges in correspondence which may be considered as 'privileged', won't be and you need to be careful not to bind yourself during any discussions.

If a variation is not appropriate, you may consider termination of the contract. Similarly, another party to the agreement or contract may seek to terminate. You will need to consider the terms of the agreement on termination and what the mechanics are of giving effect to that termination - whether you are instigating the termination or on the receiving end, it is important you know what the implications are. Any breach of contract can lead to a dispute between parties and advice should be sought to attempt to head this off as early as possible.

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For further information or advice please contact Michael Chambers, Partner and Head of Dispute Resolution via email at michael.chambers@forbessolicitors.co.uk or on 01254 222403.

Employment

What if a member of staff wants to go on volunteer leave?
 
 

The Coronavirus Bill introduced the concept of an "emergency volunteer", aimed at attracting volunteers to mitigate the effect of the coronavirus outbreak on essential health and community services and facilitate continued operation. The Bill introduced measures to incentivise volunteers in addition to protecting those who volunteer but are already in employment including the ability to take leave, protection from detriment, and compensation. Some workers and smaller businesses are exempted from the provisions, and there are timeframe restrictions in place governing any volunteer period.

The worker must provide written notice to their employer no later than 3 working days before the period of volunteering leave is due to commence and must specify the duration of leave. Whilst employees are not entitled to receive pay, other terms and conditions will be preserved, meaning that other benefits will continue to accrue during any period of emergency volunteering leave. There are rights to return and terms and conditions are protected. Provisions have also been put in place to protect employees from any detriment that applies also to redundancy situations. As such, the practical application of facilitating such leave is not always straight forward in such changing times, and legal advice should be taken if employers have any concerns.

Are employees choosing to isolate considered sick for the purposes of sick pay?
 
 

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 includes those "isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12 March 2020 and by reason of that isolation is unable to work". This came into force on 12 March 2020 will remain in force for the next eight months.

From 13 March 2020, employees are entitled to claim Statutory Sick Pay (SSP), payable at £94.25 per week (at present), from the first day of sickness. To be eligible for this payment, an employee must be unable to work through sickness and/or through the requirement to self-isolate. In addition, an employee must earn the statutory minimum of £118. SSP is currently payable up to a maximum of 28 weeks and we are not aware of any extension to this at present.

Those employees who do not earn the statutory minimum of £118, are currently being encouraged to seek support via Universal Credit or Employment and Support Allowance (ESA).

Smaller employers can seek a degree of reimbursement from the Government and should take steps to clarify what entitlement they may have. Entitlement to full pay and/or enhanced sick pay (company sick pay) for those self-isolating will depend on the specific wording of the contract of employment. This may be difficult to determine for those that are choosing to self-isolate, as opposed to those that are ill and legal advice should be taken to ensure the correct approach is taken.

On 15 April, the Government clarified that short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee. However, if employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so as with other employees. If such employees are furloughed, they should no longer receive sick pay. The Government also clarified that employers are also entitled to furlough employees who are being shielded or off on long-term sick leave. Claims can be made through both the CJRS and SSP rebate scheme for the same employee but not for the same period of time.

How do my employees access the 80% salary contribution?
 
 

Employees will only be in a position to access the contribution if they have been furloughed. The aim of the scheme is to keep jobs open for as many people as possible, and for part of their salary to be paid to those who would otherwise have been laid off. It is important to note that there is a cap of £2,500 per month.

Government guidance says employees must be designated as 'furloughed workers,' and notified of this change. However, changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation but it is anticipated that most employees will take a pragmatic approach in the circumstances. It is proposed that a new online portal will be set up by HMRC to facilitate the claims.

Employees should not work for you during their furloughed period. They must not do any work that makes money for your organisation or any organisation linked or associated with it. Or provide services for your organisation or any linked or associated organisations. The guidance is silent as to whether the employer should top up the remaining 20%. In the absence of further government guidance, the obligation could vary from contract to contract and advice should be taken.

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For further information or further advice on how we can help your business please contact Emma Swan in our Employment Department via email at emma.swan@forbessolicitors.co.uk or via telephone on 0333 207 1154.

Education

As a school can we furlough staff and can we access the Coronavirus Job Retention Scheme (CJRS)?
 
 

For independent schools this is a relatively straightforward questions, as independent schools are not in receipt of public funds there is no prohibition on your furloughing staff.

For maintained schools and academies whilst there is a general prohibition on public sector employers furloughing staff this is only in relation to where you receive public funding for staff costs. If there are therefore roles within the school that are funded in ways other than through public funds then you may be able to furlough these staff and access the CJRS for 80% of their wage costs. The most common example in staff in schools who meet this criteria are catering staff.

However to do this you need to ensure that the following conditions have been met:

  • the employee works in an area of business where services are temporarily not required and where their salary is not covered by public funding;
  • the employee would otherwise be made redundant or laid off
  • the employee is not involved in delivering provision that has already been funded
  • (where appropriate) the employee is not required to deliver provision for a child of a critical worker and/or vulnerable child
  • the grant from the Coronavirus Job Retention Scheme would not lead to financial reserves being created

For some organisations such as FE colleges it may be difficult to make a determination on whether a job is funded through public or private means. Therefore the guidance allows for this and states that the maximum number of staff on payroll who should be furloughed should be equal to the amount of non-public funding you receive. So for instance if you receive 25% of your income from non-public funding you could furlough a maximum of 25% of your staff.

The government will cover up to 80% up to a maximum of £2500 of furloughed staff’s salary but what about pension contributions?
 
 

As well as salary the scheme also covers Employer National Insurance contributions and pension contributions but there is a massive caveat for educational establishments regarding the pension contributions.

The maximum contribution the CJRS will make for pension contributions is the minimum required under auto-enrolment which is currently 3%. Therefore be aware that it is likely that there is going to be a large shortfall in the amount you receive for pension contributions under CJRS particular for staff who are part of the LGPS.

What do we do if an employee refuses to be furloughed?
 
 

To be furloughed there needs to be an agreement between an employer and employee, an employee can't insist on being furloughed without their employer agreement and vice versa. Therefore if you want to furlough any staff you will need their agreement.

In the private sector this hasn't really been an issue which has arisen much mainly as the alternative for staff who don't agree to be furloughed is likely to be redundancy.

However in environments with enhanced redundancy payments, like the education sector, you can foresee some employees refusing to be furloughed in the hopes of a redundancy payment. Our advice in these circumstances rather than making these staff redundant you should instead look at temporary re-deployment opportunities such as covering staff members who are absent due to sickness reasons.

An employee who left has asked to return and be furloughed can we do that?
 
 

Under the CJRS it does allow you to re-employ and claim for employees who have left your employment after 28th February. This will of course only apply to employees who would be eligible to be furloughed.

There is no obligation for you to rehire employees in these circumstances and there are issues for you to consider as this person could retain their continuity of employment and will accrue holiday whilst furloughed, the scheme allows you to rehire any employee you should be conscious of the reason for their departure, it is very unlikely to be appropriate to rehire an employee who was dismissed for conduct reasons.

We’ve offered a job to a new employee and want to withdraw the job offer, can we do this?
 
 

You can but there are some issues that you need to be aware of. If you have already entered into a contract with that employee then you need to give the employee the required notice under their contract. You should also be aware if you have given them a start date, if their notice expires before their start date then you can withdraw the offer and there will be no payment due to them. If however their notice period expires after their proposed start date then they will need to be paid for the time period that they would have been working before their notice expires. Be aware as well that if you are withdrawing a job offer from a teacher the normal teaching notice periods would apply and you may be required to pay that teacher until September.

However when making a decision about this we would advise schools to be aware of the current situation and speak to the employee in question before revoking any job offer as early as possible to allow them to make alternative arrangements.

I have an employee due to go on maternity/paternity/adoption/shared parental leave – will their rights change?
 
 

The government guidance makes it clear that the normal rules regarding leave and pay will still apply.

Can an employee simultaneously be furloughed and on maternity/paternity/adoption/shared parental leave?
 
 

In short, yes. If an employee is placed on furlough leave, they will still be permitted to take the relevant family leave to which they are entitled and be paid for this.

If we place an employee on furlough leave – can we reclaim back their maternity/paternity/adoption/shared parental pay from the Government under the CJRS?
 
 

You will not be able to claim and statutory element of pay through the CJRS. However, employers can claim back any contractual enhancement to pay over and above the statutory amount, subject to the overall cap of 80% of usual monthly wage costs or £2,500 per month.

What happens for periods of holiday?
 
 

The government's guidance makes clear that furloughed staff can take annual leave and this will need to be topped up to 100% of their normal salary. You may wish to require furloughed staff to take annual leave whilst furloughed to prevent staff returning to work with large amounts of excess annual leave.

How should I deal with internal processes under the disciplinary, capability and grievance policies?
 
 

The present circumstances may require you to adapt your procedures in order to investigate and reach an outcome on disciplinary and grievance matters.

Provided that the process remains fair and reasonable taking account the current circumstances will minimise the risk of criticism.

With regards to capability procedures, specifically those that have reached the formal stage, where Performance Improvement Plans are in place, postponement/deferral should be considered. This is due to the fact that it will be difficult to accurately monitor performance in the current circumstances.

Practical tips for handling matters of disciplinary, capability /grievance in the present circumstances include but are not limited to:

  • Communication: the current circumstances mean that delays are going to be inevitable. It is therefore advisable that the employee(s) concerned are aware of any delays and the reasons for the same and regular updates are provided as to progress;
  • Seek agreement: if there are any proposed changes to procedures then it will be advisable to seek agreement in the first instance with an employee or their union representative to change the policy to suit the circumstances. An example might be agreeing to postpone meetings or to defer a particular process for a period of time;
  • Hold remote meetings/hearings: the use of technology should be able to assist in these circumstances to ensure that face to face meetings can still take place.

It should be noted that allegations relating to safeguarding and child protection should be addressed as a matter of urgency taking into account the government's updated guidance on safeguarding.

How should staff’s concerns about coming into School be dealt with?
 
 

There may be a number of factors as to why staff might be concerned about coming into school during the current pandemic.

If staff are self-isolating due to coronavirus symptoms then this should be considered in line with the relevant provisions of the burgundy book or green book. The burgundy book does have a section on infectious diseases. If neither of these collective agreements apply e.g. in independent schools, then regard should be had to contractual sick pay provisions or SSP.

If staff are shielding, then arrangements should be made to make resources available for staff to work from home. Independent schools may wish to consider furlough if working from home is not an option, whereas maintained schools and academies would continue to receive funding in any event.

Risk assessments including safer systems of work should be continuously reviewed and documented throughout this period, to ensure all working environments are safe in light of the ongoing risk to public health that COVID19 poses.

Can we make staff work during the normal summer holiday?
 
 

For non-teaching staff you may need their agreement depending on their contract of employment to require them to work during the summer holidays.

For teaching staff bound by the School Teachers Pay and Conditions 2019 then for full time staff there is a maximum of 190 days you can require staff to be available for teaching and a maximum of 1265 hours in a school year. Under the School Teachers Pay and Conditions 2019 the school year is defined as September to the end of August.

Therefore there is no prohibition on requiring teachers to teach during the summer holiday period provided they have not taught for 190 days or 1265 hours of teaching during the school year.

However we would recommend a sympathetic approach where possible and seek agreement for staff who are required to work rather than forcing staff members to work during the summer holidays. Practically, schools might be minded to put in place rota systems to ensure that requests for staff to work over the Summer break are fair and reasonable whilst at the same time maintaining their ability to provide care for those children who need it most.

Do we need to complete our usual attendance records during School closures for Convid-19?
 
 

The Department for Education have stated that schools do not need to follow their usual attendance processes during this period or follow-up on non-attendance generally.

However, the DFE does expect schools to follow-up on non-attendance where they were expecting a child to attend and they do not. This is particularly important for children classed as 'vulnerable' to ensure safeguarding requirements are complied with. Where a vulnerable child does not take up their place at school or does not attend as expected, schools are also required to notify the child's social worker.

The DfE have introduced a short form for schools to use during this period to record attendance so that the government can maintain up to date data on attendance in this period. The form includes sections for schools to report whether they are open, and how many staff and children are in the school. The form can be found here: https://www.gov.uk/government/publications/coronavirus-covid-19-attendance-recording-for-educational-settings.

Do we need to change our existing safeguarding procedures?
 
 

The Department for Education has published updated safeguarding guidance for schools, colleges and other education providers in light of the ongoing coronavirus pandemic.

More information about these changes can be found in the below article which includes advice on the updates education providers will need to make to their existing child protection policies and procedures.

https://www.forbessolicitors.co.uk/news/46888/27/convid19-updated-safeguarding-guidance

To view our latest articles please click here.

Family

Can separated parents still share care of their children during COVID19 lockdown?
 
 

The Government has been placing pressure on society for social distancing and this has left many separated parents confused as to whether contact between parents, who do not live in the same household, can still be maintained.

The Stay at Home Rules have made the general position clear in that it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical needs or attending essential work. However, the Government also issued guidance alongside the Stay at Home Rules to deal specifically with child contact arrangements. This guidance states "where parents do not live in the same household, children under 18 can be moved between their parents' homes".

Whilst the above establishes an exception to the requirements it does not mean that children must be moved between homes. The decision whether a child should be moved between homes is for the child's parents to determine after a sensible assessment of their individual circumstances has taken place. This assessment should include the child's present health, the risk of infection and whether there are any vulnerable individuals in either household who could be put at risk should this arrangement to move between houses take place.

Many people are very worried about COVID-19 and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.

Ultimately, the best way for parents to deal with contact during these difficult and confusing times is to communicate with each other about their concerns and discuss practical solutions. It is, of course, noted that it is not always possible for parents to agree between themselves and disagreements will undoubtedly arise. Our experienced Family Solicitors are on hand to assist and provide further advice if required.

Can a Child Arrangements Order be varied during the COVID-19 restrictions?
 
 

There are many parents whose children are the subject of a Child Arrangements Order made by the Family Court and it is understandable that, due to the current COVID-19 crisis, they are concerned about their ability to meet the requirements of these Court Orders safely given the unprecedented circumstances that now apply.

The Court has provided a short statement intended to offer advice but, given that the circumstances of each child and family will differ, this advice can only be given in the most general form.

The Court confirms that first and foremost Parental Responsibility for a child who is the subject of a Child Arrangements Order made by the Family Court rests with the child's parents and not with the Court. If parents agree and exercise their parental responsibility to temporarily vary the arrangements set out in the Child Arrangements Order they are free to do so. It is, however, sensible for each parent to record such an agreement in a note, email or text message sent to each other.

If parents cannot agree to vary the arrangements set out in the Child Arrangements Order but one parent is sufficiently concerned that complying with those arrangements would be against current Government advice, then that parent may exercise their parental responsibility and vary the arrangements to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the Court is likely to look to see whether each parent acted reasonably and sensibly in light of the official advice and the current Stay at Home Rules which were in place at that time together with any specific evidence relating to the child or family.

Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parents as set out in the Child Arrangements Order, the Court will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules. Remote contact is one such alternative.

The Court's key message is that, where the current COVID-19 restrictions cause the letter of a Court Order to be varied, the spirit of that Order should still be delivered by making safe alternative arrangements for the child.

How can contact be maintained safely during COVID19 lockdown?
 
 

There are a number of temporary safe ways in which contact can still take place without the need for families to be put at risk and parents should see if it is possible to discuss sensible arrangements between themselves: -

  • Can a safe drop off/pick up location be agreed and arranged away from crowds giving consideration to the safe distancing guidelines recommended by the Government?
  • If both parties can agree that it would be best for the children to postpone the current arrangements, then this is an option. This will allow the child or children to stay safely in one home whilst maintaining regular contact with the other parent via alternative methods such as Skype, FaceTime, phone and text etc.
  • Can arrangements be changed from 'the norm' to make them more convenient for both parties? Again, this is something which the parents could agree between them and it could undoubtedly prove beneficial to one or both parents. For example - if the parent who has less contact is off work and/or working from home whilst the other 'main carer' has to continue working and therefore less able to facilitate the added childcare.

It is important to remember that the health and wellbeing of all concerned is paramount and everybody's situation will be different. Furthermore, these new arrangements will be temporary and normal contact can easily resume once this pandemic has passed us by.

Will my Private Law Family Court Hearing still go ahead during COVID19 lockdown (contact/children issues and financial matters)? It is listed in the next couple of weeks.
 
 

As a result of the COVID-19 emergency, the Family Court have notified us that they are going to suspend all non-urgent cases. This will ensure that any future hearings must comply with the Public Health England Guidelines to make sure staff and judiciary are safe. At the moment the Courts do not have a date when your case will be considered but, keep in regular touch with your Solicitors and they will notify you as soon as they know.

Some Courts are trying to put in place facilities to hold hearings remotely, i.e. via telephone calls or video links, but at present this is not set up for every Court.

I want to start divorce proceedings, am I still able to?
 
 

Yes! All applications for divorce are sent to the Liverpool Family Court. You do not need to attend Court and the process will be managed by us. We can arrange appointments with you by telephone to take your instructions. We have staff working in our offices to send documentation to the Court. You would need to be able to post your marriage certificate to us.

I want to apply to Court for a child arrangements order - am I better waiting until the restrictions are lifted or can I start the process now?
 
 

Of course, this is a matter of choice but you can start an application to Court now. In most cases before you start the application you need to attend a Mediation Information Assessment Meeting (MIAM) with a trained mediator. The mediation service is still running and they can conduct appointments by telephone. You can still make new applications to Court at this time. Court hearings are being conducted by telephone, where possible, and the same process will apply now as it does during other times.

Will COVID19 affect the progress of my divorce?
 
 

Family Courts are still open, and so, if you have already issued your divorce petition, this will still progress. The only difference is that it is likely to take more time, due to less staff, and the Courts understandably prioritising the more urgent cases.

I have lost my job due to the pandemic. Do I still need to pay child maintenance?
 
 

If you have no income, then you will be unable to pay child maintenance. Do please discuss this however with the carer of your child/children, as they will also be relying on that money for their own budget. Try and give them as much warning in advance so they can prepare and inform the Child Maintenance Service (if you have been formally assessed ) that your income position has now changed and you will need a re- assessment. Even if you are in receipt of benefits , some monies may still be due to the carer of your child or children.

Concerns about isolation in an abusive relationship?
 
 

Support agencies, Police, Hostels, and Charities are all still operating to support people who may be in an abusive relationship. You can now telephone 999 from a mobile phone, wait for them to answer and then press 55 and then disconnect. This will alert the police that you are in danger and they will come immediately. Whilst you are self isolating, the government has confirmed that if you need to leave your address to escape an abusive relationship, you may do so, whether it is to a refuge or friend or family member.

Courts are still sitting to hear cases for injunctions and Solicitors are still open to deal with these issues.

How will COVID19 impact on settlements being negotiated and recently concluded?
 
 

If your settlement has recently concluded, then apart from the practicalities, i.e sale of house etc. this pandemic should not effect the outcome. In some rare cases, you may be able to ask the Court to revisit a final settlement, as your financial situation and assets have plummeted, which was not envisaged when the agreement was reached, due to Covid19, but this would be in very limited circumstances, and the agreement would have to have concluded in a small window of time.

Ongoing negotiations can continue and initial financial hearings are still going ahead remotely. FDR's and final hearings were until recently quite rare due to lack of Court staff, District Judges and practical issues. It is pleasing that these are now getting listed, remotely for now, but soon to be face to face towards the end of Summer, observing the social distancing requirements.

Solicitors offices are still open, disclosure is still being exchanged and proposals negotiated. Again, it may impact your case time wise, taking slightly longer than usual, but these can continue.

Please click here to view our latest articles.

For further information or further advice please contact Rubina Vohra in our Family Department via email at rubina.vohra@forbessolicitors.co.uk or via telephone on 01254 580000. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Housing & Regeneration

Are the Courts still open?
 
 

Yes. Courts are still open for business and are currently conducting hearings either by telephone, video link or face to face (with adequate protective measures in place).

How are the Courts dealing with Possession Cases?
 
 

The Courts are dealing with possession cases on an evolving basis but generally, it appears that many cases are being vacated / adjourned. Judges do not feel it is appropriate to evict tenants during the course of a national emergency and have them roaming the streets when they should be 'at home'.

Can new Possession Cases still be issued?
 
 

As far as we are aware, new cases can still be issued. Hearing dates may be listed later than would ordinarily be expected but cases can still be issued. Some organisations are taking the view that they will not pursue evictions at this stage so it is always worth checking with your own organisation as to its position on such matters.

How are the Courts dealing with urgent cases?
 
 

Urgent cases, including ex parte applications and committals, are still being dealt with. Hearings are taking place by telephone and the Court staff are accepting applications and sending approved Orders by email.

Can I apply to incorporate ASB into existing rent cases to speed things up?
 
 

You can still apply to vary a suspended possession order, if appropriate, to include ASB Grounds. The Court will still be unlikely to evict a tenant during the course of this pandemic in light of Government guidance to 'stay at home'. Urgent cases may still be dealt with in accordance with the Judge's discretion.

I think we are about to be inundated with complaints about noisy parties etc. In the light of the COVID 19 Government advice and to protect our well-behaved tenants, do you think ASB injunctions using anonymised witness evidence may be a response?
 
 

At the moment the police are stretched due to Coronavirus and so housing associations are going to be picking up most of the slack (more so than usual). It seems likely that we will see an increase of the use of warning letters and, in cases where violence has been used/ threatened, or there is a significant risk of harm, there will be an increase in the use of without notice injunctions. In terms of noise nuisance, there should be no reason why tenants can't download the noise App to capture evidence for use in support of 'on notice' injunction proceedings. However, warning letters are always a useful first step in tackling ASB. Anonymous evidence can be used in the usual way.

How can staff deal with victims and witnesses whilst working from home and what if witnesses can’t sign their statements?
 
 

Most staff will deal with witnesses and victims by either telephone or email. The vast majority of tenants will have access to emails and telephones and can give details of incidents in this way. Electronic signatures can also be used, if they are available / accessible. Witness statements can be posted to tenants with pre-paid stamped, addressed envelopes for returning it to officers. If there is no way of the victim signing their witness statement or getting it back to the officer dealing with the case, in some cases it will be possible for the housing management statement to exhibit an unsigned victim statement, with a section explaining why the victim has not yet been able to sign the statement but with confirmation that the victim has fully read the statement and confirmed by telephone or email that the contents is correct.

What can we do if several team members are off work or self-isolating?
 
 

A casework service can be provided by Forbes Solicitors to assist with staff shortages. Assistance with things such as case advice, warning letters, action plans and witness statements can all be provided.

Can Right to Buy/ Right to Acquire sales still go through?
 
 

Right to Buy / Right to Acquire is a statutory right with prescribed timescales. As of yet, the government has not brought forward any legislation to relax or suspend any of those timescales. It remains a legal requirement for you to comply with those timescales and you are not able to extend them without the agreement of your tenants/buyers.

Where the solicitors acting for the buyer are able to obtain and transfer the purchase monies, there is no reason why the purchase cannot complete if the transfers/leases are signed by both parties. Allowing the documents to be signed in counterpart can reduce the risk of contamination and additional delays in arranging for the same documents to be signed and returned.

As the purchaser already resides in the property, there will be no key handover to arrange.

What if a developer is putting us under pressure to acquire plots (already into contract) during this period?
 
 

As we are in unprecedented times, guidance has been issued across all sectors to act reasonably during this period and we must look at each individual circumstance. If you would like us to review any documents to see whether you have any legal scope to postpone handover and completion please get in touch.

Can I attend the development site to accept handover of plots?
 
 

During the current lockdown position only 'key workers' and those who cannot work from home can leave their home to go to work. Therefore it would depend upon your employment contracts / contracts in place with employers agents whether anyone can physically attend the site. If you would like advice on this from our employment or construction team please get in touch.

How do we deal with plot sale handovers under current guidance?
 
 

Moving house is currently a permitted activity providing that you are able to adhere to social distancing while moving.

There are a couple of suggested ways to have 'contactless' handover of keys on completion:

  • Place a keybox on the property that is accessed by a code that the seller will only give to the buyer once the sale has completed.
  • The seller attends the property first, checks the property and leaves any paperwork and keys inside, the seller would then wait outside for the buyer to attend and collect the keys.
  • For any key handover the buyer and seller would be able to communicate by phone and email to resolve any queries/issues.
Where a deed is needed for a land transaction how can I get the document executed and still comply with social distancing?
 
 

When it comes to executing documents such as a deed, the availability of signatories and the logistics around receiving the executed legal documents are the key factors. The existing Land Registry requirements have not changed in this respect - wet signatures are required - and the current restrictions on travel and social distancing may pose further complications to the process. In the current circumstances, to avoid any delay, it is advisable to plan ahead. Flexibility is key with the parties being innovative in their approach. If you would like to explore how you can increase your organisation's flexibility in relation to executing documents, please do not hesitate to get in touch with our Governance team.

What if a purchaser’s mortgage offer is due to expire?
 
 

In accordance with government guidelines, to help home movers impacted by Covid-19, UK Finance (the collective voice for the banking and finance industry) have confirmed that mortgage providers will give customers who have exchanged contracts, the option to extend their mortgage offer for up to three months to enable them to move at a later date. Customers who have not exchanged contracts and are concerned about their completion dates and the need to extend their mortgage offer should contact their lender.

What is the impact on searches?
 
 

Given the current situation, we expect that it is very likely that there will be some changes to the normal service Local Authorities and third-party suppliers deliver in respect of searches. At the time of writing, we are aware that there is a delay in delivering the results for the requested searches, with some of the Local Authorities currently having postponed such services. If you have a transaction that is critical to complete and you are still awaiting your search results, Search Delay Insurance may be an alternative. If you would like to explore this option, please do not hesitate to get in touch with us.

Please click here to view our latest articles.

For further information or advice please contact the following members of our Housing Department:

Housing & Regeneration Property - Jennifer Hankinson
t: 01254 222417
e: jennifer.hankinson@forbessolicitors.co.uk

Housing & Regeneration Litigation - Shirley Faragher
t: 01772 220245
e: shirley.faragher@forbessolicitors.co.uk

Governance Procurements & Information - Daniel Milnes
t: 01254 222313
e: daniel.milnes@forbessolicitors.co.uk

Insurance

Are the Courts still open?
 
 

Most Courts are still open for business and are currently conducting hearings either by telephone, video link or face to face (with adequate protective measures in place).

A number of court buildings have been closed but 157 priority courts will remain open for essential face to face hearings. Another 124 courts that have been closed to the public but will still be staffed in order to facilitate telephone/video hearings and a further 89 courts have been closed completely.

The courts which remain open can be found here.

HM Courts and Tribunal Service has issued guidance for all Court users during the Covid-19 period which can be accessed here.

What happens if a hearing is listed/trial due to go ahead?
 
 

Each Court has issued differing guidance and the decision as to how a hearing will proceed is a matter for the Judge. The courts are avoiding physical hearings and arranging remote hearings via telephone or video hearing wherever possible.

Article - HMCTS Announces Civil Court Listing Priorities

What happens if an inquest pending?
 
 

Each Senior Coroner Court will issue individual guidance which will be based on the following advice issued by the Chief Coroner:

  • Senior coroners should adjourn any jury inquests which are due to start between 31 March and Friday 28 August of any significant length.
  • Cases which are scheduled for 1 September onwards should generally remain in the list.
  • It is a matter for each senior coroner whether they adjourn to a (realistic) new date now or leave the position to be reviewed in due course and a new date fixed then.
  • Long or complex inquests not involving a jury due to start between 31 March and Friday 28 August, which will include those which require large numbers of witnesses to give evidence in person, should be reviewed and may have to be adjourned.
  • Inquests which are ongoing - including jury inquests - should not be automatically abandoned. These inquests should generally proceed in the hope that they can be completed. However, there may be factors, such as the loss of jurors who are self-isolating, or other events outside your control, which may mean that some inquests will inevitably and regrettably have to be stopped and re-heard at a future date.
  • Less complex inquests and pre-inquest reviews which are listed to start between now and 31 March should generally proceed where at all possible, subject to individual factors in the case.
  • Coroners should make every attempt, where feasible, to use modern technology to enable the participation of the bereaved family and other Interested Persons and their representatives and those giving evidence. This will include, where possible, video links, skype, facetime or other applications and the telephone.
  • Cases which involve NHS staff may have to be adjourned to allow those staff to remain at work in the emergency period.
What should we do if we have court deadlines coming up?
 
 

From 2 April 2020, parties are now able to agree a longer extension of time up to 56 days, previously parties could only agree an extension of 28 days without the permission of the Court.

Any extension of time, whether agreed by the parties or on application by a party, beyond 56 days will still require the permission of the court (unless the particular court has issued specific guidance). An application for such permission will be considered by the court on the papers. Any order made on the papers must, on application, be reconsidered at a hearing.

This is intended as a temporary measure during the Coronavirus pandemic to ensure that the administration of justice is carried out so as not to endanger public health.

Useful link: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/practice-direction-51za-extension-of-time-limits-and-clarification-of-practice-direction-51y-coronavirus

What about MOJ portal/ Pre-Action protocol deadlines and timescales?
 
 

These currently remain unchanged.

At Forbes, we have been working with FOIL to call on the Lord Chief Justice to introduce emergency changes to extend or allow flexibility in the pre-action protocol and/or MoJ portal deadlines. In the meantime, FOIL and APIL have agreed a set of best practices for their members to consider and adopt during the coronavirus outbreak (full details can be found here). Notably, it has been agreed that:

Medical examinations

It is acknowledged that face -to-face examinations will be difficult to arrange. In some cases, video conferencing for experts examinations maybe possible. Medco has agreed the current ban on the use of remote examinations will be lifted. There are however several conditions, and other factors, which users will need to consider before making any arrangements with claimants for a remote examination.

Inevitably some appointments with experts will have to be postponed or rescheduled. Practitioners should try to adopt a consensual approach to the impact this will have on case timetables.

Extensions of time

It is likely that both parties will face challenges complying with existing court directions and timetables and a consensual approach should be taken when responding to requests for extensions.

Interim payments

Parties ought to adopt a reasonable approach to requests for interim payments. In the current climate, it is noted that interim payments are likely to be of increased importance, and any unnecessary applications to the court ought to be avoided.

Limitation

Where the effects of Covid-19 means that limitation becomes an urgent issue, then best practice is to:

  • Enter a standstill agreement to extend the limitation period.
  • Issue and serve the claim form - either ask the defendant to agree an extension of time for medical evidence or, if they will not so do, seek an order from the court.

Article: "COVID19 - APIL and FOIL Agree Best Practice for Mutual Co-Operation".

How will remote hearings work?
 
 

A new protocol has been published to deal with remote hearings in England & Wales. The Protocol applies to all hearings, including trials and applications.

Short, interlocutory or non-witness applications are likely to be held remotely. Some witness cases may also be suitable for remote hearings. The listing office will seek to ensure that the judge and the parties are informed, as far in advance as possible.

The hearings will be recorded unless the judge has dispensed with recording.

If required, parties will need to prepare an electronic bundle of documents which should be indexed and paginated. The bundles will need to be filed at Court and forwarded to all other representatives and parties "well in advance of the hearing".

The HMCTS has also published guidance on how HMCTS will use telephone and video technology during the coronavirus (COVID-19) outbreak.

www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak?utm_medium=email&utm_source=#history.

What is the guidance in my local court?
 
 

Several Courts have issued Listing Protocols, please see below for further details. We will continue to add further information for other Courts as soon as we have it. Please note that the following information is subject to change.

Civil Update for North And West Yorkshire - 6th April 2020

Introduction

Much has happened since the Listing Protocol published on 23rd March 2020, not least the Prime Minister's announcement only hours later that the country would be in "lockdown". This meant that the few Face to Face hearings which I envisaged happening were unlikely to occur thereafter. Since then there has been a flurry of guidance nationally which we are obviously following but I thought it would be helpful to set out the position as I see it going forward to inform professional court users.

On 27th March 2020 it was decided that Skipton County Court would be suspended until further notice and all other courts on the cluster would be staffed apart from Leeds which is an open court. This means that any face to face hearings can only take place at Leeds and the other courts on the cluster (apart from Skipton) are staffed courts which means they are only open to judiciary and staff. Remote hearings will still be conducted from those courts. Skipton work will be managed and heard from Bradford County Court

Listing Priorities

We are attempting to achieve the objectives set out in the Civil Court Listing Priorities published on 2nd April 2020 by HMCTS. We are also however attempting to go beyond that and list additional hearings where we feel we can do so safely, and where a remote hearing can be conducted fairly.

Practice Directions

There have been three recent Practice Directions published:

  • PD 51Y which deals with the discretion of the court to hear remote hearings in private during the Coronavirus Pandemic;
  • PD 51Z which seeks to impose a 90 day stay on possession proceedings and enforcement of the same from 27th March 2020;
  • PD 51ZA which extends the right of the parties to agree extensions of time for directions from 28 days to 56 days pursuant to CPR 3.8. It also reminds the court to consider the Covid-19 Pandemic when considering requests for extensions of time.

Interim Hearings

As I mentioned in the Listing Protocol, these are hearings which are particularly suitable to being conducted remotely and going forward I anticipate most if not all of these hearings will be conducted in that manner. In order to achieve this I authorised the vacation of all civil interim hearings in Leeds for two weeks to create a "firewall" to enable court staff to plan the future listing of hearings remotely. Hearings resume on 7th April 2020 and thereafter it is hoped that all parties will be consulted about the type of remote hearing they would prefer (BT Conferencing, BTMeetMe or Skype for Business). A Judge will then direct what the method of conducting the hearing will be and give directions about what is required from the parties and the court. It is anticipated that the Court will make the arrangements for BTMeetMe and Skype for Business calls).

Multi Track Trials

Initially all such trials were vacated but we are now giving the parties the option of a trial conducted on paper only or remotely by any of the three methods sent out above. It is not anticipated that many such trials will take place but at least this gives the parties an option of a timely hearing by remote means. The Court is prepared to consider Face to Face hearings conducting with appropriate social distancing but only in a very limited class of case, for example to prevent physical harm, serious financial consequences or involving the liberty of the subject. It is expected that very few such trials will take place.

Fast Track Trials

Again these were initially vacated but from 20th April 2020 onwards any case listed for a Fast Track trial can take place remotely if the parties can agree that it should. The procedure set out in the previous paragraph will apply with a Judge determining how the hearing should take place and giving directions. If the parties agree that a remote hearing is unsuitable (for example where fundamental dishonesty is alleged) then the trial will be adjourned until such time as it is safe to have a face to face hearing. I can see no reason why a simple road traffic fast track trial could not be conducted via Skype for Business where the issues are straightforward. I recognise that the logistics may be complicated where barristers' chambers and solicitors' offices are effectively closed but some parties and witnesses may be capable of giving evidence from home remotely.

Small Claims Trials

Initially these trials were also vacated but as from 1st May 2020 we are going to attempt to list some for remote hearings where the parties consent and are capable of fairly taking part. Again, they will be given the option of a decision on paper only or a remote hearing. If both parties consent an attempt will be made to list it for hearing by a suitable remote method. I recognise that this will not be possible in every case with every litigant and that some cases will have to be adjourned until a face to face hearing is possible, but we will attempt to hear as many as we are able to. We face the added challenge that these cases are normally block listed so any such list would need to be "unblocked" so that each case has an individual appointment. This will mean the times and dates of some hearings may have to be changed. I recognise that we cannot hope to try the same numbers of cases that we did prior to the Covid-19 Pandemic.

Stage 3 lists

Again, these are normally block listed and so they will either be conducted on paper only (which is an option for the parties in any event) or by remote hearing with the usual options. This will mean the lists having to be unblocked to create individual appointments and so I would encourage parties to choose the paper only option which will result in a prompter decision.

Appeals

The majority of appeals are suitable for remote hearings. I conducted two appeals last week by Skype for Business and it mainly worked well. Going forward I will hear as many appeals as I can remotely in addition to permission hearings and oral reconsiderations.

Injunctions and Committals

The Court will still consider and hear applications for injunctions and committal hearings whether following arrest or otherwise. Some applications for injunctions can be heard remotely and possibly some final hearings. Parties will be given the option of a remote hearing as with other trials. Committals will either have to be adjourned or exceptionally conducted in a large courtroom in Leeds with appropriate social distancing if a hearing is urgently required (for example after an arrest).

Possession Claims and Enforcement Proceedings

Possession claims generally have been stayed for 90 days and all block lists have been vacated during that period. The court will continue to entertain applications to suspend different types of enforcement proceedings and will attempt to conduct them remotely where possible.

Bundles

It is essential that an appropriate ebundle is prepared to enable a remote hearing to take place. Currently the District Judges in Leeds are directing that the following are required before a remote hearing:

1.

I. A hyperlinked paginated electronic court bundle which shall be limited to those documents essential for the court to determine the issue on that day. The bundle may have to be split (or "zipped") if the bundle exceeds email attachment file sizes.

II. A single agreed case summary and a list of issues to be determined; and

III. A draft order in word format;

IV. In the case of a CCMC or any application to amend a cost budget, a copy of the relevant Precedent H(s) in an editable excel format

V. Any costs schedule to be relied upon;

VI. A skeleton arguments or written submissions which shall be limited to 6 single pages of typed, double spaced, font size 12, Times New Roman or equivalent

A composite bundle of any authorities relied upon

Currently just under half of the District Judges on the cluster are working from home, either because they or a family member is vulnerable or because of school age children or some other reason. It is unrealistic to expect that they will have the benefit of the court file. It is therefore important that they have everything they need electronically to fairly conduct a remote hearing. It is perhaps likely over time that more Judges will work from home if their personal circumstances demand it.

The recommendation from HMCTS is that an email and attachment should not exceed 10mb. As I understand it, justice accounts used by HMCTS staff have a limit of 25mb but the ejudiciary accounts have a 50mb limit which is due to increase to 150mb by Wednesday 8th April 2020. If the Judge consents, it may be more helpful to send the ebundle direct to the Judge's email account to avoid limitations surrounding size of data.

Communication with the Court

Across the cluster approximately 35% of staff are absent from work for reasons connected with the Covid-19 Pandemic. Different courts are affected in different ways. I am told that from today court staff at Leeds and Bradford will only be dealing with telephone enquiries from 10am -2pm. This is likely to continue until staff numbers improve. Email is the court's preferred method of communication as the court can reply to these in their own time prioritising responses as they go along.

His Honour Judge Mark Gosnell (We are grateful to FOIL for publishing this protocol on its website www.foil.org.uk)

In South Yorkshire, HHJ Robinson, the DCJ has published a listing and hearing protocol for all court users.

"South Yorkshire Civil Covid-19 Protocol 1 His Honour Judge Graham Robinson, Designated Civil Judge (DCJ)"

Introduction

This listing and hearing protocol is addressed to all civil court users. It is intended to give some guidance as to what work can be done and the manner in which it can be done. It applies to all Civil work. It is guidance only. It has no application to Family or Criminal work.

Wherever possible hearings will continue to take place. The default means of hearing is remotely.

This is explained more fully below.

Status of Court Buildings

The County Courts at Sheffield and Doncaster are "open" courts in the sense that they are theoretically open to Judges, staff, legal professionals, litigants, witnesses and members of the public. However, this status is subject to the Government guidance to stay home wherever possible. As appears below, it is anticipated that only in exceptional circumstances will it be appropriate for anybody to attend a court building to take part in a hearing.

The County Court at Barnsley is a "suspended" court. The building is temporarily closed. Arrangements have been made to permit periodic access by staff, for instance to retrieve paper files, but it is otherwise inaccessible. It follows that no hearing requiring a physical presence of anyone in a hearing room can be conducted at Barnsley.

Furthermore, because of the severely restricted access to the Barnsley building, it is unlikely to be possible to deal with Barnsley box-work on a daily basis.

The public counters for civil work in Doncaster and Sheffield are closed.

The staff located at Doncaster and Sheffield are extremely busy and very stretched. As with all businesses, there are significant staff absences.

At present, telephones in the Civil section are being answered from 10.00am until 4.00pm, but expect longer than usual delays in your call being answered.

In the future it may be necessary to have Civil section telephone lines open only from 10.00am until 2.00pm.

Listing Priorities

Annex A reproduces guidance concerning listing priorities. Once more it is guidance only. In common with many other DCJs, I have agreed that urgent family work takes priority over routine civil work.

Conduct of Hearings - Face to Face (F2F) Hearings

Only in exceptional circumstances will a hearing be conducted with any person being present in a hearing room at Doncaster or Sheffield. If an F2F hearing is a Barnsley case, the hearing location will have to be Doncaster or Sheffield, or some other court building outside South Yorkshire.

Any application for an F2F hearing will be referred to the DCJ. Cogent reasons must be provided why the hearing cannot be conducted by remote means. The application need not be by formal application notice. An email to the court will suffice, which will then be forwarded to the DCJ.

Conduct of Hearings - Remote Means

Judges have for many years been conducting hearings by telephone, so in one sense there is nothing new. However, before the current Covid-19 crisis, some hearings have been deemed unsuitable for telephone hearings. All that has changed.

Judges will now consider the conduct of hearings by any feasible remote means. These include:

(1) BT telephone conferencing.

(2) BT MeetMe telephone conferencing.

(3) Skype for Business video conferencing.

Current guidance is that Zoom is not a suitable platform for the conduct of remote hearings. It will be the personal decision of the individual Judge to permit a hearing by Zoom.

Most Judges are, wherever possible, working remotely from home. It is unlikely that such Judges will have access to the Court file. However, Judges will attend at Doncaster or Sheffield where necessary.

Wherever possible, hearings will NOT be conducted using paper files. Necessary documents must be sent to the relevant court electronically. Annex B contains relevant guidance.

All orders to parties will contain instructions concerning the delivery to the court and to other parties of electronic documents largely in accordance with the Annex B guidance.

BT Telephone Conference Hearings

The arrangements are as before, with the Solicitor for the Claimant or Applicant having the obligation to arrange the call. At present there are sufficient staff to be able to put these calls through to the Judge. It has to be acknowledged that this may not be the case in the future. In that eventuality, BTMeetMe may be the only feasible choice.

It remains unlikely that this remote means is suitable for litigants in person. It is also unlikely to be a suitable means for clients and witnesses to participate. However, Judges are always willing to listen to constructive proposals.

BT MeetMe Hearings

In most cases the Judge, as chairperson of the conference call, will dial out to participants in the hearing. The advantage of this procedure is that no other participant needs to download any software.

It follows that the telephone numbers of all of the participants must be supplied in advance.

This means of remote hearing is also likely to prove a more appropriate means to accommodate the participation of litigants in person, clients and witnesses.

Video Conferencing

At present, the only approved remote means of video conferencing is Skype for Business. It is by far the most preferable means of participation where evidence is to be taken.

Court Dress

Advocates are not required to wear Robes any hearing. Smart business wear is, however, appropriate for hearings where the advocate(s) can be seen.

Open Justice

The provisions of PD51Y have effect.

Subject to PD51Y all hearings, wherever possible, continue to be open to the public.

Wherever possible hearings which are conducted by remote means, such as by telephone or video, will have the sound streamed into a court room.

It is acknowledged that with increasing pressure put on court staff, the instances where the above arrangements are not possible are likely to increase.

The PD provides a mechanism for listening to recordings of hearings. PD1ZA provides that a "request" must be made. It is not necessary to make a Part 23 application.

Adjourned Hearings

In accordance first with the Government announcement and then pursuant to CPR Practice Direction 51Z, all possession proceedings and evictions have been adjourned, stayed or suspended, as appropriate.

Similar arrangements are in place for work involving attendance by bailiffs.

Similar arrangements are in place for work involving attendance by bailiffs. This includes personal service of documents by bailiffs. National guidance is to the effect that bailiffs "are to carry out duties only where Personal Protective Equipment and/or physical distancing can be achieved in accordance with a local risk assessment."

It is not presently feasible for debtors to attend court to give information as to their means. At present it is not thought that these appointments are suitable for remote hearings, particularly in the light of the pressures on court staff.

Attention is drawn to CPR PD 51ZA. This provides that the reference to consensual extensions of time of up to 28 days in CPR rule 3.8 is now substituted by 56 days.

The PD also directs courts to take into account the impact of the Covid-19 pandemic when considering applications for extensions of time for compliance with directions, the adjournment of hearings and applications for relief from sanctions.

At the commencement of the Covid-19 crisis, Judges and staff needed a breathing space to think. A number of cases were adjourned with an indication that a new hearing date would be fixed sometime after the elapse of 12 weeks, that is until after June 2020. Provision was made for the parties to make proposals for earlier remote hearings.

Things have settled down somewhat. Even those who did not previously consider themselves to be particularly "tech savvy" have made remarkable progress. It seems likely that Judges and parties are now in a better position to undertake a greater variety of hearings by remote means.

There are clearly issues about conducting a remote hearing where contested oral evidence will be given. However, wherever possible, such hearings will be accommodated.

The largest impediment to conducting hearings such a Fast Track and Multi Track trials is the volume of documentation. Such cases will continue to be triaged on a case by case basis. If the decision is taken to adjourn a hearing, there will always be a provision in the order inviting proposals how the hearing can be conducted remotely.

Consideration will be given in Small Claims cases to dealing with them by the "on paper" procedure.

Orders

Some firms of Solicitors have set up a dedicated inbox to receive orders and communications from the court. Court staff will happily send orders etc by email. Will those solicitors who require this service please send an email to the court with details of the preferred email address.

The court is unable to email material to the private email addresses of individuals.

Conclusion

It is impossible to predict how long these arrangements will remain in place. The Judges and court staff are working incredibly hard to continue the Administration of Justice in South Yorkshire.

The Judges and court staff are always open to constructive suggestions how to improve that Administration of Justice.

His Honour Judge Graham Robinson (We are grateful to G Exall for publishing this protocol www.civillitigationbrief.com/2020/04/07/south-yorkshire-civil-covid-listing-and-hearing-protocol/).

In the North East, HHJ Freedman the DCJ for the North East Circuit (Northumbria and Durham) has also issued guidance:

Small Claims & Fast Tracks

All Small Claims & Fast Tracks listed in Northumbria and Durham between now and 9th April 2020 are vacated from the list.

Small Claims & Fast Tracks listed from 14th April 2020 onwards will be kept under review; and parties will be notified during the week beginning 6th April 2020 whether it is practicable for the trials to proceed.

Short Hearings

All 'Short hearings' (including Stage 3 Hearings and Approvals in P.I.cases), other than Trials, will be conducted by telephone or other remote means for the foreseeable future (to be kept under review).

Multi Tracks

The parties are at liberty to extend, by consent, any step in the timetable up to a maximum of 90 days (as opposed to the present limit of 28 days).

If the extension of time, as agreed by the parties does not adversely affect the Trial date, the court does not need to be notified.

DCJ in Manchester has confirmed that all face-to-face hearings due to take place up to and including Tuesday 31 March 2020 have been adjourned.

The information was correct at the time of publication but is subject to change.

Guidance from Birkenhead County Court

Birkenhead County Court has circulated guidance confirming how hearings listed at Birkenhead County Court will proceed (or not) over the forth coming weeks.

  • All Fast Track trials listed for the next 4 weeks will be vacated and parties will receive a new hearing date.
  • ALL Pcol lists are vacated until after 1st June 2020. New dates will be sent out in due course.
  • All small claims will be adjourned until a date to be fixed after 1st June 2020.
  • Any civil interlocutory matters, parties are urged to agree directions/issues where possible. Any matters where a hearing is still required will be accommodated as far as we are able by telephone and it is the responsibility of the parties to arrange a Legal Connect telephone hearing.
  • All infant approval hearings will be dealt with on paper, as per the instructions by e-mail issued by the Court.
  • All stage 3 hearings are currently being managed by the court dialling out to counsel.
  • Stage 3 lists: the hearings will take place remotely using BT meet me facilities. Specific instructions as to how these hearing should operate have been issued by Birkenhead Court.
  • All back to back Disposals hearings will be dealt with in the same way as the stage 3 hearings.
  • All Block listed stay claims will be vacated and a further hearing date sent out in due course.
  • Any upcoming FHDRAs will be dealt with by phone with the court dialling out to the parties, save where the matter is not deemed to be urgent, in which case it may be adjourned on a case by case basis.

(We are grateful to FOIL for publishing this protocol on its website www.foil.org.uk)

Guidance on Listing published for the Western Circuit

Western Circuit Protocol to apply to fast track and multi-track cases listed in from 1st June - 1st October 2020

This protocol is to be followed by all Western Circuit Chambers/ Counsel in relation to cases listed in the County Court at Barnstaple, Basingstoke, Bath, Bodmin, Bournemouth, Bristol, Cheltenham, Exeter, Gloucester, Isle of Wight, Plymouth, Portsmouth, Salisbury, Southampton, Swindon, Taunton, Torquay, Truro, Weston-super- Mare, Weymouth, Winchester and Yeovil.

The aim is to bring to the court's attention hearings that are able to be heard remotely and for the parties to co- operate and undertake preparation so that court time is used as efficiently as possible. All Chambers on the Western Circuit are encouraged to engage with the Protocol. It is not compulsory, but those cases where a response is received in accordance with the protocol are likely to achieve earlier attention/priority listing given the pressures on court staff/ court lists.

Although attended hearings may resume, probably from mid-June the court estate will be very much reduced due to the need to maintain social distancing; so the need to conduct hearings remotely whenever possible will remain for several months (at least). When attended hearings do resume it may be still be necessary for some witnesses to attend remotely.

The hope is that parties can work together constructively to ensure that wherever possible hearings take place. The parties must be realistic about the time that a hearing will take and the capability of all those involved in the hearing to take part in it. However, with proactive case management by the parties, witnesses should, where necessary, be able to attend remote hearings and the Court should be able to hear 2 remote hearings with e-bundles (although may not be an absolute necessity for every hearing).

E-bundles or paper bundles should be sent to the relevant court by 2pm three days before the hearing. Wherever e-bundles are being constructed, this guide may be of use.

Protocol

  1. The civil clerks of Chambers shall, as a matter of urgency, identify all fast track and multi- track trials listed between 1st June - 1st October 2020 in which that Chambers has a booking for counsel.
  2. They will:
    1. (In so far as Counsel has not been allocated as yet by name) identify Counsel to be allocated to that case;
    2. Contact Counsel so allocated and inform him/her of the potential hearing;
    3. Contact, or ask Counsel to contact, the instructing solicitor and enquire as to the current status of that potential hearing.
  3. If the case is still effective allocated Counsel shall request that the Instructing Solicitor consider, again as a matter of urgency, the practicalities of the hearing proceeding remotely, including with the other party/parties, using the checklist annexed to this protocol.
  4. As soon as practicable the parties (preferably jointly), either through instructed solicitor(s) or through allocated counsel's clerk(s), shall inform the Court by e-mail of the results of the enquiry. Specifically the Court should be informed;
    1. If it is agreed by all parties that the case cannot properly proceed to a remote hearing together with very brief reasons why not;
    2. If it is agreed by all parties that the case can properly proceed to a remote hearing together with an indication of whether it can proceed by telephone and/or Skype for Business/Teams and/or Cloud Video Platform (a method of remote video hearing administered by the Court in which a person simply requires a device with internet access) and/or some other medium agreed by the parties;
    3. If there is disagreement as to whether the case can properly proceed to a remote hearing, also briefly setting out the reasons behind each party's view (the Court may then arrange a short telephone hearing to determine the issue).

His Honour Judge Cotter QC (Designated Civil Judge for Avon, Somerset and Gloucestershire)

His Honour Judge Gore QC (Designated Civil Judge for Devon and Cornwall)

His Honour Judge Parkes QC (Designated Civil Judge for Hampshire, Wiltshire, Dorset and the Isle of Wight)

18th May 2020

Can electronic signatures be used?
 
 

Yes. Electronic signatures are valid in most cases and can be used to sign Court documents.

Will the Court Funds Office accept payment by BACS?
 
 

Yes. The Court Funds Office (CFO) has now changed its procedures to accept electronic documentation and payment by BACS. However, it is to be used only in the most urgent cases because of the pressure on CFO staff during the present time.

Deposits via BACS (by request only)

The following documents relating to the deposit to be submitted by email to the CFO email address enquiries@cfo.gov.uk.

Normal procedures will continue to apply if a deposit via BACS is not requested specifically. This means that if a deposit is received without prior approval it will be rejected.

Payments out of Court Funds Office

During the current period of restrictions, the CFO has introduced the facility to release funds electronically. It is to be used only in the most urgent cases, which will be decided by the Judiciary.

Please note that this information is subject to change and it is worth checking the most up to date CFO guidance before making a payment.

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For further information or advice on how we can help you please contact Chris Booth in our Insurance Department via email at chris.booth@forbessolicitors.co.uk or via telephone on 0161 918 0002.

Wills, Probate, Tax & Trusts

How can I make a Will if I cannot see a Solicitor face-to-face?
 
 

Forbes are now offering initial consultations by telephone, Skype, FaceTime etc. In the initial discussion with one of the Solicitors in our Wills team, they outline the best type of Will for your circumstances, what should be included and what remaining aspects need to be given consideration.

We have adapted our procedure to ensure that we are still able to provide you with clear, straightforward advice and an efficient professional service.

  • An initial telephone/Skype/Facetime/WhatsApp appointment to discuss your Wishes
  • Sending the draft Will to you for approval via email or by post.
  • A further telephone/Skype/Facetime/WhatsApp appointment to go through and discuss the Will with you.
  • Sending the Will out in the post to be signed and witnessed at home, providing clear written instructions and being available by telephone or video conference to guide you through the signing process if required.
  • Suggesting alternative ways to have the Will witnessed whilst practising social distancing and good hygiene:
    • With neighbours over the garden fence or from the driveway or doorstep
    • Through a window
    • Everyone using their own pen and preferably wearing gloves.
    • Our Wills are bound with a plastic front and back sheet which can be wiped down if necessary, as an extra precaution.

As additional reassurance, when restrictions on movement and social distancing are lifted, an invitation to come into the office at no extra cost to go through and re-sign your Will with a solicitor present.

How can I sign my Will if we are social distancing?
 
 

This is one of the main obstacles for Wills in the current climate as there must be two witnesses present when you sign your Will. The witnesses (broadly speaking) cannot be your spouse, anyone in the Will, nor a spouse of anyone who is named in the Will. Typically, if you are self-isolating this will be with a partner, children etc and so they cannot be witnesses.

When you are happy with your Will, we can send the engrossed Will to you with specific instructions on the execution. It could be that the witnesses attend in your garden and witness from a distance and you each use separate pens. Unfortunately there is no precedent in place at present which provides specified structure on distance witnessing nor by technology such as FaceTime, Skype etc. The Law Society and Ministry of Justice are in talks with a view to relaxing the requirements; it is likely there will be reform.

What happens if I don’t have a Will in place and I die?
 
 

It is a common misconception that communicating your wishes to your loved ones will suffice. Unfortunately, unless your wishes are drawn up in a Will this is not the case. If you die without a Will, this is known as intestacy and your estate falls to those closely related to you. There is legislation in place which contains a list of those who qualify.

Can we begin dealing with a deceased person’s estate during this time or should we wait until the office is open to the public again?
 
 

All of the solicitors in the Wills and Probate team are working during this time and are able to take instructions in relation to all matters by telephone or video meetings. There is no reason to delay dealing with an estate.

We have adapted our procedures to take account of the current situation. We are able to communicate with you by telephone, post, email and Skype/FaceTime, whichever you would prefer and is most appropriate.

Will ongoing Probate matters be progressed during this time?
 
 

The work that we undertake on behalf of the Executors in administering an estate will continue as normal. All of our solicitors are working remotely and are progressing your matters as efficiently as possible. Although the office is currently closed for face-to-face appointments, we are available to speak to you by telephone or Skype/FaceTime where appropriate, and we have access to our emails as normal. Our usual telephone numbers remain in operation.

Will obtaining a Grant of Probate be delayed?
 
 

The work that we undertake on your behalf will continue as normal and as efficiently as possible. The Probate Registries remain open and are processing applications, although it is not yet clear if there will be any delays in this process. The Probate Registry has recently introduced an online platform for solicitors to use to make Probate applications in certain cases. We are making use of this where possible in the hope that this will be a more efficient means of progressing matters for you.

Can new applications for Deputyships be made?
 
 

Yes, here at Forbes we are closely following the Government guidance regarding COVID-19. We are therefore offering initial consultations by telephone, Skype, facetime etc. We are able to provide you with clear, straightforward advice and support you throughout the process of applying to become a deputy remotely.

The Court of Protection are continuing to review and issue Deputyship Orders at this time.

What if I need to attend a hearing?
 
 

The Court of Protection have been conducting hearings remotely both by telephone and Skype. They have also released the following guidance: "No hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing".

How do I serve notice on P when they live in a care home that has been ‘locked Down’?
 
 

Part of the application to become a Deputy requires notice to be given to a number of individuals this includes the person the application is regarding. This individual may be in a care home and the proposed deputy may not be able to visit them to give this notice. It does not have to be the applicant who gives this notification. The applicant can appoint an agent to carry out the notification, the agent could be a member of staff at the care home, who will be able to enter the care home safely. If the notice cannot be given to P, an application can be made to the Court of Protection to dispense with the notification requirements.

What about mental capacity assessments, is it possible for these to be undertaken by video link?
 
 

It may be possible for a mental capacity assessment to be carried out by video link if the individual being assessed is comfortable with this. This would need to be discussed with the capacity assessor. The court will review the capacity evidence that they have been provided with on a case by case basis and what was appropriate for one case may not be appropriate for another. Some GPs have begun conducting numerous consultations through video and may therefore already have the facilities to do this. We will always work with you to make suitable arrangements for the capacity assessment.

What if I have already been appointed as Deputy?
 
 

It is important that you continue your duties as Deputy and continue to act in the best interests of P. Please contact us if you would like any advice on acting as a deputy.

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For further information or further advice please contact Jane Burbidge in our Wills, Probate, Tax & Trusts Department via email at jane.burbidge@forbessolicitors.co.uk or via telephone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

SIPP & SSAS

Given the COVID-19 situation and the difficulties many businesses are facing, can a rent holiday be agreed with a connected tenant company?
 
 

Where the lease has been entered into between connected parties, the rules as to how a rent holiday can be permitted are set in accordance with HMRC rules. Usually, HMRC would require an independent valuation to be obtained from a qualified surveyor confirming that the agreed rent holiday is on commercial terms. However, HMRC have recently released guidance specifically on this point, confirming that "any arm's length commercial decisions… including rent holidays, will not give rise to an unauthorised payment charge and can be agreed without independent valuations taking place." Although a valuation may not therefore be required, it should still be noted that any decision made should be on an "arm's length" basis so Scheme administrators may wish to request evidence to support the decision made, such as requesting details of the tenant's financial position. HMRC have advised that this updated guidance will apply until June 2020.

If a rent holiday is agreed with a Tenant, does this need to be formally documented?
 
 

To avoid the potential for a dispute in future, it is best for any change to the lease terms to be documented and signed by the parties. If the parties have agreed a change in rent payment (whether that is to change the payment dates or for the rent to be deferred or abated), this can be documented by way of a side letter which tends to be quicker and easier than a formal variation of the lease, and can be made personal to the parties. Once a change in the lease terms have been agreed, we can assist in preparing a suitable side letter to ensure all relevant issues have been covered.

Due to the lockdown restrictions and social distancing, can documents be signed electronically?
 
 

Legally, it is possible for an electronic signature being used to execute a document although depending on the nature of the documents itself there are still rules and formalities that may need to be complied with. For example, where a deed is being executed by an individual the general rule is that the deed is to be signed in the presence of an independent witness, and therefore both the person signing and the witness must be present for the electronic signature to be valid in a deed. However, although electronic signatures are legally valid in principle, signatures also need to comply with the requirements of the relevant organisations to which the documents are to be lodged. Within the property context, this will mainly be the Land Registry; as it stands, the Land Registry do not accept electronic signatures so the traditional "wet-ink" signatures will be required for any documents to be lodged with the Land Registry.

Has there been any changes to the rules regarding obtaining Energy Performance Certificate due to COVID-19?
 
 

An EPC is required on the sale or letting of a property (subject to certain exceptions). Despite the COVID-19 outbreak, the EPC requirements remain in place although where a property does not have an EPC the assessment must only be carried out in accordance with the government's social distancing guidance.

A further point to note is that the existing EPC Regulations do allow a grace period of up to 28 days from the property being marketing to try to obtain an EPC before enforcement action can be taken, which could provide some leeway in complying with the Regulations.

Will COVID-19 result in delays with property transactions being completed?
 
 

The impact of the COVID-19 pandemic can be felt across all areas, including within the context of property transactions. In particular, the nationwide lockdown has meant that many organisations involved in this area, such as firms of solicitors, lenders, professional advisers and even the Land Registry, have either reduced their operations or closed completely. This can inevitably have a knock-on effect of delaying the progress of a transaction, although this is not necessarily the case for all transactions. In addition, parties themselves may be wary of exchanging contracts or completing on a transaction until they are in a better position or the lockdown restrictions have been lifted. There are therefore many factors at play in any one transaction, and if you do have any concerns or queries given the circumstances we can discuss the available options to complete the transaction.

For further information or advice please contact Adam Bromley, Partner and Head of Commercial Property, via email at adam.bromley@forbessolicitors.co.uk or via telephone on 0333 207 1158 or contact Mohassan Mehmood, Associate, in the Commercial Propery team, via email at mohassan.mehmood@forbessolicitors.co.uk or via telephone on 0333 207 1161.

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