What is the impact of COVID-19 on Court hearings?

Her Majesty’s Courts and Tribunal Service (HMCTS) recognise that during this public health emergency our primary focus should, of course, be on the health and wellbeing of the nation. However, the Lord Chief Justice has made it clear that it is essential that justice continues to be administered.

Arrangements have been in place pre-COVID-19 for hearings to be conducted remotely via telephone and video conferencing facilities. HMCTS are committed to ensuring that conferencing equipment is used to conduct remote hearings wherever possible. The Coronavirus Act 2020 has expanded the availability of video and audio links in court proceedings. There are, of course, exceptions as not every hearing is suitable to such arrangements, the most obvious being jury trials. Where physical trials are to take place, the Lord Chief Justice has confirmed that they are to take place safely and in accordance with the Government’s advice on social distancing.

The Lord Chief Justice has made it clear that parties should not simply be adjourning upcoming hearings as this would contribute to “inevitable backlogs and delays” in the system. Judges are unlikely to be sympathetic to adjournment requests simply on the basis that video hearings are difficult to administer. Parties have a duty to seek to co-operate and facilitate the process of remote justice being administered effectively and to keep costs proportionate. Where remote hearings are not required, for example for the determination of a procedural point, it may be that the judiciary are able to determine such issues on the papers.

HMCTS provides a daily operational summary on courts and tribunals during the COVID-19 outbreak and we recommend that this page is checked regularly for developments.

If you would like guidance or further explanation on the impact that COVID-19 may have on upcoming litigation that you are a party to please do not hesitate to contact Michael Shapiro on mshapiro@gscsolicitors.com or 0207 822 2246 or Sana Sheikh on sanasheikh@gscsolicitors.com or 0207 822 2214.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

Family is the priority and has always been one…

Perhaps one of the positives of this challenging and uncertain time has been the opportunity to spend time with our families and loved ones.

It has also given us time to reflect and assess our priorities and our preparedness for unexpected events. While we are usually busy with the demands of day to day life, important planning work often gets put to one side.

Now could be a great opportunity to revisit your estate plan and succession strategies.

It is important to ensure that your loved ones are properly provided when you are no longer around. GSC Solicitors are able to assist you on this and any matters relating so please call James Cohen direct on 0207822 2257 or email jcohen@gscsolicitors.com

Wishing you and your loved ones all the best at these challenging times.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

Coronavirus – Practical Legal Steps for your Contracts

Businesses and individuals are facing uncertain times at the moment. There is the immediate risk to health and wellbeing – both physical and mental – physical health issues and other concerns including children staying home from school, exams being abandoned, long-term plans and commitments put on hold and lack of social interaction.

There are also many uncertainties about the impact on businesses and contracts.  Contracts can be highly personal – a wedding or holiday or more long term such as sponsorship, entertainment and supply agreements where either suppliers are required to make guaranteed supplies which they may not be able to do or customers are required to purchase minimum amounts of goods or services which they no longer require.

  • Can I get out of my contract or can the other person get out of their contract with me?

Start with looking at the contract itself. There may be a ‘force majeure’  clause or some other way to terminate the agreement.

  • What is a force majeure clause anyway? This is a legal name for a clause usually stuck in the back of a contract which lets a party avoid performing its obligations in certain circumstances

 

  • What does it mean? That depends – they are all drafted differently and very often not even considered carefully if and when they are negotiated. Each one needs to be looked at individually to see whether it applies and what you have to do to rely on it. Legal advice on its interpretation should be obtained. For example:
  • Is the current issue covered by it
  • If it is, it that the only reason you can’t perform?
  • What else does it say – you must follow any provisions.
  • You may have to notify the other party within a fixed time to rely on it
  • You may have to take steps to minimise the impact (sometimes called ‘mitigation’)
  • In some cases if the event carries on for a particular time the contract may be terminated

 

  • What else should I be concerned about? – if you refuse to perform a contract or wrongfully terminate a contract when you aren’t entitled to, that will create liability

 

  • Is that it for force majeure? Not entirely because Parliament has created laws that may have an impact on whether force majeure clauses will work. For business to business contracts there is the Unfair Contract Terms Act 1977 which may apply and for business to consumer contracts, there is the Consumer Rights Act 2015.

 

  • Can you be more certain? Each case is very much dependant on the facts of the contract so needs to be considered separately. While these clauses have been in contracts for many decades, cases still keep being considered on them so there is no one size fits all.

 

  • I’ve read about the doctrine of ‘frustration’ – will that let someone get out of a contract? This applies when something happens after a contract has been formed which makes it physically or commercially impossible to perform it or even illegal. Although this dates back many years, cases still are being argued over its scope. At the end of last year the courts refused to agree that Brexit was a frustrating event in a long term lease in Canary Wharf to the European Medicines Agency. We may see more leniency from the Courts for Coronavirus but any decisions are likely to only take place after the current crisis has passed. This is a complex area of law and the legal position needs to be considered very carefully in each case. It may be a fast moving area, for example if the Government stops gatherings.

 

  • Other things to look out for – expect some government legislation which may have an impact on these matters to try and relieve contracting parties and reduce uncertainty. If you are a director, also be mindful of your duties as a director and insolvency risks. If you have insurance you should always comply with the terms of the policy.

 

  • Any practical tips? If you can agree something with the other party that would be best in removing some of the likely uncertainties of relying on interpretations of force majeure clauses or legal doctrines. Collect evidence of any facts you want to rely on. It is imperative to understand what your legal position is as accurately as possible as early as you can and then see how you can de-risk any action that you might want to take.

 

  • International Contacts – overseas governments and the EU may start to impose their own laws. This might affect the ability to enforce terms or contracts and limit remedies.

If you have any questions in relation to the above or concerns about your business, contact Clive Halperin, Head of Corporate & Commercial, directly on cjhalperin@gscsolicitors.com or 0207 822 2220.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

UKVI’s latest position on absences arising from the Coronavirus pandemic

Tier 2 sponsors take their compliance duties seriously and usually they must report to the Home Office if a sponsored worker does not ‘turn up for their first day of work’. Once a sponsored worker has commenced employment, the sponsor must then report if the worker is absent from work for more than 10 consecutive working days without permission. However, in the light of the Covid-19 pandemic, the government has updated their position ( https://bit.ly/2Uosk1d ), which states that: 

“Licensed Tier 2, Tier 4 or Tier 5 sponsors: absences due to coronavirus

Some Tier 4 students or Tier 2/5 employees may be prevented from attending their studies or employment due to illness, the need to serve a period of quarantine or the inability to travel due to travel restrictions caused by coronavirus.

Sponsors do not need to report student or employee absences related to coronavirus which they have authorised.

Sponsors do not need to withdraw sponsorship if they consider there are exceptional circumstances when:

  • a student will be unable to attend for more than 60 days
  • an employee is absent from work without pay for four weeks or more

Decisions on whether to withdraw a student from their studies or terminate an employment are for sponsors to make. The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason.

The Home Office will keep this under review, especially if the length of absences mean a potential repeat of period of studies become necessary”

What should sponsors do ?

If workers who are sponsored are absent from work due to coronavirus, employers do not have to report anything to the Home Office or cancel the employees sponsorship. Nonetheless we would recommend that sponsors maintain copies of emails or notes of their discussions with the sponsored employee to be able to show that absence was due to Coronavirus.

Our team of legal experts can help you. We’re continuing to work throughout the pandemic as our business is already being carried out remotely, so it’s not a substantial disruption to the way that we deliver our service to you during this unusual time.

We will be continuing to provide sponsors with updates when any further Home Office guidance is published.

However, if you have any questions or concerns, contact Hateem Ali, Head of Corporate & Private Immigration, directly on hali@gscsolicitors.com or 020 7822 2209.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

Keeping your business afloat throughout the Covid-19 pandemic

In these unsettling times, it’s inevitable that many businesses will suffer and, sadly, some will be unable to withstand the effects of this unprecedented virus. That’s not necessarily the case for you though; we’re here to provide options and possible solutions for keeping your business afloat.

However, it’s likely that you will have already found yourself affected in one way or another, either as a debtor or a creditor.  Therefore, it’s vitally important that you address the issues you face. Here are a few things you may need to look at to help your business survive the next few months:

  • Check through your business insurance to find out what, if anything, you may be able to claim
  • Review your employees’ positions. By now you should have introduced measures to keep them safe. Make sure you’re clear about their rights and benefits regarding sick leave and other relevant factors
  • If necessary, reach out to your sundry creditors to begin a dialogue. Cash will probably graduate from being King to being the Emperor, and everyone will want to be paid quickly for their products and services.  It’s far better for you to engage now with those you may have trouble paying, rather than waiting and risking matters becoming difficult to deal with later
  • Remind your debtors that it’s time to pay up! Ask anyone that owe you money to settle their bill now, so that you have the cash in your bank rather than theirs
  • If you’re concerned about paying your tax due to the impact of the Coronavirus, please note that HMRC are being proactive in helping self-employed people and businesses at this time.  They’re currently staffing a helpline with 2,000 call handlers who can discuss installment arrangements, suspend debt collection proceedings and offer general practical advice (the helpline number is 0800 0159 559)
  • If things get really bad, don’t immediately consider entering into a terminal Insolvency appointment such as liquidation. There are other options, such as a CVA or even an Administration that could buy you some time via the statutory moratorium if necessary.

Our team of legal experts can help you with any or all of these things. We’re continuing to work throughout the pandemic with just some slight tweaks to our business practices for the time being.

For example, we’re not all office-based at the moment, but we are all still available to speak with you by phone, Skype or Facetime.

If things look bleak right now, remember – this is not a permanent situation and it will improve.  Nobody knows when, but hopefully life will return to normality by mid-summer. In the meantime, stay safe, well and positive – and feel free to get in touch for advice on any business matters.

However, if you have any questions or concerns, contact GSC’s Insolvency & Restructuring expert Richard Curtin directly on rcurtin@gscsolicitors.com or 020 7822 2224.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

Covid-19: Employment-related issues

The Coronavirus crisis is making life uncertain for everyone. These are challenging and worrying times.

However, it will be business as usual for the Employment Law team at GSC who will still be available to provide advice and deal with your queries, even if the team are working remotely.

We have already received questions which are particularly relevant to the current situation such as:

Q:  What is the position regarding paying my staff if the business has to close due to Coronavirus?

A: If employees are working from home, they should continue to be paid as per their contracts of employment. If it is not possible to work from home e.g. the business is a restaurant, but the employer has shut the premises and asked its staff not to go in, then other than in specific circumstances e.g. a contract of employment allows it, there is still an obligation on the employer to pay their staff as per the contracts of employment.

Nobody knows how long the current crisis will continue. If employers consider that they can’t continue to pay in accordance with contracts of employment, they could suggest to staff that they take a temporary reduction in pay or hours. This cannot be imposed by the employer but can be done after a careful discussion with employees (please take legal advice first!) and with the consent of employees.  If a business is facing severe difficulties, and there is a sufficient reduction in work, then depending on the circumstances, an employer could ultimately consider the last resort of redundancies.

Q: I am worried about catching Cornavirus and don’t want to go into work. What can I do?

A: Your employer should pay attention to your concerns and try to assist you. For example, by suggesting that you change your hours to so as to avoid using public transport at busier times. You could suggest taking days off as holiday or unpaid leave,  but your employer is not obliged to agree to this. Be careful because simply refusing to turn up to work could lead to disciplinary action against you.

Q: My child’s school has closed and I need to stay at home to look after them. Will I get paid?

A: The assumption is that you will not be working from home for that time, and that nobody is unwell. In those circumstances, there is no statutory right to be paid for this time off. However, depending on your contract of employment, your employer may agree to pay you for this time.  Bear in mind that your request must be reasonable for the situation.

If you have any employment law queries, please do not hesitate to contact David Nathan directly at dnathan@gscsolicitors.com or on 020 7822 2247.

© 2020 GSC Solicitors LLP. All rights reserved.  GSC grants permission for the browsing of this material and for the printing of one copy per person for personal reference. GSC’s written permission must be obtained for any other use of this material. This publication has been prepared only as a guide to provide readers with general information on recent legal developments. It is not formal legal advice and should not be relied on for any purpose. You should not act or refrain from acting based on the information contained in this document without obtaining specific formal advice from suitably qualified advisors.

A message from Senior Partner Saleem Sheikh

Dear Clients and Friends

I hope that this message finds you and your families well during this exceptional and difficult time.

I am writing to you to reassure you that at GSC Solicitors LLP we are ensuring that our clients continue to receive  the highest levels of service, whilst of course taking actions to protect the wellbeing of our clients, staff, their respective families as well as the wider community.

We are closely following all guidance issued by Public Health England and the World Health Organisation regarding Coronavirus (COVID-19) and constantly adapting to the ever changing situation. In particular, we have been committed to agile working for some time and are therefore able to transition to remote working efficiently to continue to service all our clients as usual.

Our priority remains the best interests of our clients and in particular the concerns that clients will understandably have regarding their staff and businesses. We are available to speak to clients about the challenges they are facing as well as to provide pragmatic advice on any specific concerns whether it is in relation to managing staff, dealing with cancelled contracts, managing supplier distress, dealing with tax concerns or cybersecurity issues.

We will be continuing to issue thought leadership on our website and Social Media channels addressing the key concerns that clients may have with respect to Coronavirus. In the meantime, please feel free to contact me personally or any of your usual contacts here at GSC.

I look forward to seeing you again soon and in person but for now we are here for you and you can reach us at any time by email and telephone.

On behalf of all of us at GSC we are wishing you and your loved ones to stay well.

Kind regards,

Saleem Sheikh

The Woes of the High Street & possible solutions

We are all painfully aware of the carnage that has littered the High Street up and down the country.

Beales, Mothercare, Thomas Cook, Bon Marche, Jamies Italian & Hawkin’s Bazaar to name a few.

Woolworths collapsed some eleven years ago and 46 of its shops stand empty.

Almost 10,000 retail jobs have been lost in the first three weeks of January 2020. This should be set against the retail sector in the UK employing some three million people.

According to the Centre for Retail Research there are 50,000 fewer shops on our High Street than just over a decade ago.

Shopping on the internet has borne the majority of the blame in the media and elsewhere but that is not the full story as internet shopping still only accounts for around 20% of the total.

Other factors contributing to the difficulties are business rates, changing consumer behaviour, devaluations in currency and the effect of that on imported goods, over valued real estate and wholesalers being squeezed out resulting in reduced choice.

There is no single answer to solving these difficulties but, as ever, a combination of measures.

Council taxes & rents need to be reduced. Neither will be easy to achieve due to the vested interests of politicians and landlords.

The character of the High Street needs to be improved. Landlords and planners should strive to make High Street shopping less mundane and more of an experience. They should not be just somewhere you go to  buy goods but also a mixture of other aspects such as recreational, dining, health clubs, some residential and sundry medical offerings.

The decline in the High Street can probably be turned around but it will require considerable effort by most, if not all, of the stakeholders.

if you have any questions or in need of consultancy, please contact Richard Curtin directly on rcurtin@gscsolicitors.com or 0207 8222 2222.

Senior Partner becomes PINE Trustee

GSC’s Senior Partner Saleem Sheikh has joined PINE as a Trustee on the Board of Advisors. PINE is a business incubator programme that helps young entrepreneurs to build and grow startup businesses.

The mission of the incubator is to stimulate the establishment and growth of technology, education and financial services, based startups and other compatible businesses.

The programme is developed under the guidelines of the ‘Youth Entrepreneurship Policies’ by the Commonwealth. PINE is backed by some of the most successful companies that once started out as startups themselves, including Shajar Capital and Osmani and Co.

‘I am delighted to have come on board and join PINE’, Saleem comments. ‘I admire what that organisation does, its ethos and the valuable guidance that it provides to younger generations. I am looking forward to contributing with any necessary support and advice to those who are just starting their businesses or entrepreneurs with ambition.  This programme is quite similar to what GSC’s Next Generation Programme offers to next generation of entrepreneurs in the UK and beyond. Everyone needs a helping hand and support as valuable platform at a start of professional journey.’

If you are a start up or a smaller business and would like to learn more about what PINE could do for you, please visit: https://pine.global/