Corporate Services Blog

Thames Valley law firm, Charles Lucas & Marshall’s corporate services team has advised on the acquisition of Web on High Limited, based at Greenham Common, Newbury.

Generate UK

Generate UK Limited has acquired the whole of the issued share capital of Web on High Limited.

Web on High Limited provides search engine optimisation and digital promotion.

Rupert Wright, a corporate lawyer with Charles Lucas & Marshall advised on the acquisition on behalf of Generate UK Limited, Newbury which specialises in web and online marketing services.“This acquisition will be a valuable addition to our core business services and we expect it to provide a very helpful addition to our existing business customers,” said Joe Baily, managing director of Generate UK.

For further information contact Rupert Wright on 01635 521212 or e-mail rwright@clmlaw.co.uk

Business disputes detract the business owner away from their prime objective – to make money. Paul Trincas, Head of corporate services at law firm, Charles Lucas & Marshall, highlights the benefits of using mediation to resolve such disputes.

Business disputes, especially if they lead to litigation, can be costly. Courts nowadays, although they cannot compel anyone to attempt to resolve their business dispute, nevertheless expect the parties involved to at least have considered some form of alternative dispute resolution.

Mediation is one of the main forms of alternative dispute resolution – and one of the most successful.

•  Why use Mediation ?

Mediation is a process of resolving disputes which is a relatively informal procedure and, if successful, will avoid further acrimony, the potential costs of litigation and the risk and uncertainties involved.

• What is the success rate ?

Statistics show that the use of mediation to resolve business disputes has a high rate of success. Over 80 % of cases have a positive outcome to the parties.

• What exactly is mediation ?

Mediation is totally outside the court process and involves, in effect, a without prejudice meeting between the parties, facilitated by an appointed and trained mediator, whose task it is to find common ground and “steer” the parties towards a settlement.

• When to use mediation ?

Mediation can be used at any stage of a dispute. It can be used either before court proceedings or at any stage after court proceedings have commenced.

• What types of disputes can Mediation be used for ?

Any – that is the beauty of mediation. Trained and experienced mediators are available who have experience in virtually any form of dispute.

• What are the advantages?

If successful, the main advantages are:

It will bring finality to the dispute and certainty of outcome.

It will avoid either the costs of proceeding to court, or, alternatively, if court proceedings have started, it will avoid having to proceed to trial with all the costs and uncertainties involved.

It is independent of the court process and is a relatively informal procedure.

Although the mediator facilitates settlement, it is actually the parties themselves who come to their own agreement and model the terms of any agreement.

• What costs are involved ?

These can vary, depending upon the nature of the dispute, the amount involved, the time required and the mediator appointed.

There are many organisations which provide trained and experienced mediators.

The parties will have to pay the mediator’s costs, shared equally.

If the parties have a legal representative and wish to have their legal representative present, then the parties will have to pay for their respective legal advisors. It is normally only in the more complex or larger claims that parties wish their legal representatives to be present.

If the outcome of mediation is successful, then it is time and money well spent.

For further information contact Paul Trincas on 01635 521212 or paul.trincas@clmlaw.co.uk

If you are either a shareholder or a director of a company there’s a good chance you might at some point become involved in a director’s exit from a company. It pays to be prepared, says Peter Billyard, a corporate services lawyer with Charles Lucas & Marshall.

Peter Billyard

The removal of a director is invariably carried out in a less than harmonious atmosphere.

The way in which this may be done is set out in the Companies Act 2006 (‘the Act’).  All that is necessary is for a shareholder to propose an ordinary resolution to remove a director at the next general meeting of the company. This will require a simple majority of votes (ie more than 50%) cast at the meeting for it to be passed. However, should the directors refuse to call a general meeting, shareholders who own more than 10% of the company’s shares have the power to require the directors to call a general meeting.

If a company receives such a resolution, the Act states that the company should send a copy to the director concerned ‘forthwith’. The Act also requires that ‘special notice’ must be given in relation to the resolution to remove a director. This means that the shareholders’ meeting at which the resolution will be considered must take place more than 28 days after notice of the meeting has been given.

The director concerned has a right, under the Act, to be heard at the meeting at which the resolution is considered. He can also present his case in writing to the company.

The removal of a director under the Act is simple in principle. However, in practice it is a rather a cumbersome process.

Employee vs Director

It is important to be aware of the distinction between an executive director’s office and their employment. The termination of the employment role does not automatically affect that individual’s position as a director. In contrast it is not uncommon to find that a director’s service contract provides for his employment to end immediately after he resigns as a director.

The negotiation of an agreement between a departing employee and the company can be a difficult process. For instance, the director might wish to remain a director during these negotiations as in order to strengthen his bargaining position. Companies should remember that a director will continue to be entitled to attend board meetings and have access to board papers including accounting information. Any attempt to sideline a director by failing to give notice of meetings may affect the validity of any board decisions taken in that director’s absence.

Departing directors who also own shares in the company

There are further potential complications where a departing director is also a shareholder. In this case it is necessary to check the terms of any shareholders’ agreement that might exist. These frequently contain provisions in relation to the removal of a shareholder/director which make the process of removal more difficult. One simple example of this could be by increasing the percentage of votes required to pass a resolution to remove a director.

The subject of the buyback of shares from a departing director is another issue to be considered. One common sticking point is  the price of the shares. Many shareholders’ agreements provide for different prices of shares according to the reason for their sale. Typically, a higher price is paid if the sale is for reason of redundancy or ill health (called a ‘good’ leaver); a lower price is paid if the director is dismissed or simply resigns (called a ‘bad’ leaver).

For further information contact Peter Billyard on 01635 521212 or peter.billyard@clmlaw.co.uk

I confess that I am not a pensions expert.  The pension world in general is difficult but with the proposals in respect of the NHS pension scheme for dentists, it is anything but in the words of a meerkat, “simples”.   We have recently posted

Hugh Ellins

a blog by Peter Dunn of Heritage Financial Advisors Limited who has kindly supplied me some more information which deals with various scenarios.  The principal issues appear to arise where there is an element of incorporation or where the dentist being a principal or an associate is working for a corporate.  Even that is not simple on the basis that the situation alters as to whether you are working for a large corporate for example, IDH, or any corporate other than a large corporate.

The purpose of this blog is not to give you a breakdown of the position, as this would suggest an expertise, which I do not possess.  However, I am in the admirable position of being able to refer any questions on these matters to people who know.

You can contact Hugh Ellins on 01793 511055 or hugh.ellins@clmlaw.co.uk

Charles Lucas & Marshall – Legal Services for Dentists.

Thames Valley law firm, Charles Lucas & Marshall’s corporate services team has advised on the UK management buy-out of US business consultancy, RWD Technologies.

Rupert Wright - Corporate Services Specialist

The MBO team has acquired the UK business and set up a new company, CLM Performance Solutions Limited.

The business will provide services related to enterprise learning, organisational strategy and sales force enablement.

Rupert Wright, of Charles Lucas & Marshall, advised on the MBO which involved the transfer of various assets, goodwill, intellectual property and assumed contracts to the new UK business.

RWD is based in Baltimore, Maryland and has offices in Europe and North and South America.

For further information contact Rupert Wright on 01635 521212 or e-mail rwright@clmlaw.co.uk

In a ruling that may have implications for dental associates, the Supreme Court has upheld a decision by an Employment Tribunal that, where contractual terms did not reflect what was actually agreed, one party to the contract was a worker and not self-employed.

Autoclenz, a car valeting firm, inserted new terms into the contract with its valeters entitling them to engage individuals to carry out the valeting on their behalf (in effect, a locum) and also provided that: “You will not be obliged to provide your services on any particular occasion nor does Autoclenz undertake any obligation to engage your services on any particular occasion.”

The contractors brought a case that, despite these clauses, they were “workers” within the meaning of the National Minimum Wage Regulations 1999 (“NMWR”) and of the Working Time Regulations 1998 (“WTR”) and therefore entitled to holiday pay and the minimum wage.

The Supreme Court found (1) the valeters would perform the services defined in the contract for Autoclenz within a reasonable time and in a good and workmanlike manner; (2) that the valeters would be paid for that work; (3) that the valeters were obliged to carry out the work offered to them and Autoclenz undertook to offer work; and (4) that the valeters must personally do the work and could not provide a substitute to do so.

Normally a commercial contract would be definitive in the area of rights and responsibilities, however the Court said “the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. This must be taken into account in deciding whether terms of any written agreement in truth represent what was agreed“.

The implication for self-employed associates is that their contracts might fall within the scope of this ruling, in which case the Court would look closely at whether the terms reflected the true intention of the parties. Where it was clear that (despite what was contained in any contract) the associate was not free to substitute a locum, or was not free to accept or decline patients or choose his or her working hours, or work at other premises, or where the principal was expected to provide patients, it may be found that the Associate is, in fact, an employee.

Where an Associate is found to be an employee, the Employer may under certain circumstances be liable for PAYE and NI based on the gross amount paid, going back up to six years, plus up to 100 per cent penalties and interest.

A DPA contract is the best defence against an employment claim and is available only to DPA members.

For further information, please call 01635 521212 or andrew.egan@clmlaw.co.uk

Newbury lawyer, Paul Trincas has been chosen as one of the athletics officials  for the London 2012 Olympic Games.

Paul Trincas

Paul, a partner and head of corporate services at Charles Lucas & Marshall, was short-listed for interview at the end of June and found out today (23 September) he had been selected.

Paul has been selected to be part of the London 2012 Olympic high profile ‘Athletics Team’ and his role will be performed within the main Olympic Stadium.

Among many responsibilities, he will need to ensure the track and field of play is properly prepared, maintained, marshalled and supplied. However, further and more specific details of his role will be notified to him shortly.

“To be perfectly honest, following my interview in June, I had put it to the back of my mind,” said Paul.  “I thought the chances of my being offered a position within the ‘Athletics Team’ in the main Olympic Stadium were not that great given that some 250,000 people had applied to be part of the Olympic Games -  and they needed  less than 200 to be part of the ‘Athletics Team.’

“When I was told by email, I had to read it twice to reassure myself it was true,” added Paul.

“It is a voluntary role and I will need to be available for eleven days of the track and field events. I may also be contacted to officiate at the Paralympics Games which would be a great honour.

“I love athletics and to be part of such a great occasion within the main Olympic Stadium will be the experience of a lifetime.”

Paul, who is a qualified UK Athletics Official and qualified UK Athletics Coach, and who has taken written and practical exams as well as on-going assessments to achieve his qualified status, has been an active member of Newbury Athletics Club for the last ten years.

A schoolboy record holder in sprint hurdles, he now coaches youngsters interested in his favourite athletics event.

Paul will now have to undertake a variety of training and briefing courses in the run up to London 2012, as well as attending various test events to ensure that everything is ready for 2012.

You can contact Paul Trincas on 01635 521212 or paul.trincas@clmsolicitors.co.uk

New Law on Privacy and Cookies

According to a leading legal information provider, in 2010 there were 806 new laws published by the EU which had an impact in the UK.  Peter Billyard, a corporate services lawyer with Charles Lucas & Marshall predicts we can expect a further increase this year.

Several months ago one such EU-derived law came into force which applied to how cookies and other similar technologies are used to store information on computers and mobile devices.

For the uninitiated, cookies are small files used by websites that send information to the browser used by the website visitor which in turn return information to that website. They are typically used to store passwords, to show more relevant content for site users and for tracking browsing habits. Cookies are of benefit to users but are also highly valued by marketers.

The main change introduced by the EC Directive is that a website which uses cookies is now required to:
•    Provide clear and comprehensive information about the purposes of the storage of or access to the data collected; and
•    Obtain a user’s consent if they want to store a cookie on a user’s device.

This change marks a shift in the law to an ‘opt-in’ system.

The law does include an exception to the need to gain a user’s consent. This is when a cookie is ‘strictly necessary’ for a service explicitly requested by a user. An example of this is when a cookie is used to ensure that when a user clicks the ‘proceed to checkout’ button the website has a record of what item the user selected to purchase.

However, such exceptions will be very limited in number and will be, in legal-speak, ‘interpreted narrowly’. In other words it’s not an easy option to avoid complying with the new law.

Currently, many website owners (and users) are already familiar with requesting consent from users to their site’s terms and conditions of business. Indeed some sites have previously referred to the use of cookies in the terms and conditions. It will no longer be possible to do this. To comply with the new rules you will have to refer specifically to the use of cookies and then gain a positive indication that users understand what they are agreeing to and give them a way to show their acceptance.

The Information Commissioners Office, which is responsible for policing the new law, has given website owners until May 2012 to comply. In the meantime it expects website owners to be aware of the change in the law and to be able to show what steps it is taking to conform with the new law.

Website owners should therefore ideally check what cookies are used by their site, how they are used and decide the best way in which they plan to obtain consent from users.

For further information contact Peter Billyard on 01635 521212 or peter.billyard@clmlaw.co.uk

Newbury lawyer, Paul Trincas is aiming to swap the courtroom for the athletics track at the London 2012 Olympics – as he sets his sights on becoming an athletics official  at the Olympic Stadium.

Paul Trincas - Head of Corporate Services

Paul, a partner and head of corporate services at Charles Lucas & Marshall, has applied to become part of the Olympic ‘Athletics Team’ – and has been short-listed for interview later this month (28th June).

If successful, he will be part of an army of an estimated 70,000 people who will be needed for key support roles during the duration of the Games.

“The Olympics in London is a one-off special event that is unlikely to arise again during my lifetime. I felt I would be kicking myself if I didn’t take the opportunity and apply,” says Paul.

“It is not a paid role but I love athletics and to be part of such a great occasion within the main Olympic Stadium is an experience and an opportunity I don’t want to miss out on.”

Paul, who is a qualified UK Athletics Official and who has taken written and practical exams as well as on-going assessments to achieve his qualified status, has been an active member of Newbury Athletics Club for the last ten years.

A schoolboy record holder in sprint hurdles, he now coaches youngsters interested in his favourite athletics event.

If selected, Paul will have to undertake a variety of training and briefing courses in the run up to London 2012 and will need to be available for all eleven days of track and field events.

As well as being a qualified UK Athletics Time-Keeper, he has listed ‘anti-doping’ regulation as an area of interest within his application.

You can contact Paul Trincas on 01635 521212 or paul.trincas@clmsolicitors.co.uk

Thames Valley firm, Charles Lucas & Marshall’s corporate services team recently completed the sale by JMR Ventures Limited of Newbury bar and nightclub, Monty’s to two leisure industry entrepreneurs.

Peter Billyard

Rupert Wright - Corporate Services Specialist

The undisclosed buyers are believed to run a number of other bars and nightclubs in Berkshire and the London area. Plans are in place to update and rename the Newbury venue shortly which will continue to trade in the meantime.

The sale, which was completed in only a little over a week, was led by Charles Lucas & Marshall’s Rupert Wright who was assisted by Peter Billyard.

Rupert Wright said: ‘We were delighted to complete the company sale for our clients on time and within such a short space of time’.