JKW Law

Brexit - The Known and Unknown

noreply@blogger.com (JKW Law) — Tue, 08 May 2018 06:07:00 +0000

I was delighted to speak on Brexit to CIMA members at several events in England and Scotland earlier this year as well as a presentation to the Doyle Club in London.

I attach the presentation slides from my most recent presentation to CIMA on 23rd April 2018 and trust you will find these of interest.

PRESENTATION TO CIMA, CHILTERN BRANCH
23RD APRIL 2018

If your company requires specialist legal advice on the potential consequences of Brexit by way of a risk management process or an audit of its commercial contracts likely to be impacted, please do get in touch.

Any questions - please email me john@jkwlaw.com

London Drinks

noreply@blogger.com (JKW Law) — Mon, 12 Mar 2018 17:55:00 +0000

JKW Law would be delighted if you would join us for drinks in London
on Thursday 5th April at 6 pm.

RSVP to john@jkwlaw.com

THE DATE IS

Thursday 5th April 2018
6 pm.

VENUE

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

HOST

John Walmsley - JKW Law

Russia and CIS

noreply@blogger.com (JKW Law) — Wed, 04 Oct 2017 11:25:00 +0000

JKW Law is pleased to announce that Lyudmyla Bramley has joined the firm as a legal consultant. Lyudmyla is a qualified lawyer in the Ukraine and has experience of working in Russia.

Lyudmyla has a wealth of legal experience advising Russian and CIS companies and will assist John Walmsley on client matters in the UK.

Since our first trip to Russia in 2010 JKW Law has sought to establish close working relationships with Russian and CIS professional advisers, entrepreneurs, investors and business. We have actively sought professional partners and have successfully acted for a range of overseas clients in the UK.

Established in London in 2006, JKW Law offers City law expertise and service at reasonable rates and is always focused on achieving excellent results. We are used to dealing with substantial and complex matters with an international element.

We thought it would be useful to produce a guide on doing business in the UK for Russian and CIS companies - so here it is. We trust that it is informative.

Business in the United Kingdom:
A Brief Guide for Russian and CIS Companies and Corporations

Office move and new contact details

noreply@blogger.com (JKW Law) — Thu, 28 Sep 2017 08:08:00 +0000

JKW Law is pleased to announce that we are moving offices and please update your contact details for the firm.

Effective 1st October 2017

JKW Law
Kemp House
152 City Road
London EC1V 2NX

View on Google Maps:
https://goo.gl/maps/mf5uwyhtSfx

Telephone:
0203 693 3827
++ 44 203 693 3827

Mobile:
07870 676582
++ 44 7870 676582

Email:
john@jkwlaw.com

Skype:
john.k.walmsley

How to get value from your lawyer

noreply@blogger.com (JKW Law) — Mon, 10 Jul 2017 15:49:00 +0000

"I paid the solicitor the overpriced fee, then a few months later I got a phone call saying "the prices have gone up since may so I have to charge you another £400."

Does this sound familiar? Poor communication is the number one criticism against lawyers. Quite rightly, clients get irked by silence and then suddenly a communication (probably an email or letter) asking for more money without any satisfactory explanation or justification.

But it does not and should not be this way. Although lawyers, like many other professionals, measure their charges in units of time – time spent x hourly rate = level of charges, a more realistic approach is advisable in my experience.

What is the value of the service provided by the lawyer from a commercial perspective? Can it be measured?

Too often, lawyers will charge for every minute spent on a matter, without even checking to see that the work undertaken was done in accordance with the scope of work and estimate as agreed. Matters may become more complicated but somehow clients are expected to know this automatically and without being told!

Clients are not lawyers and often will not be able to determine the amount of work be done - ‘behind then scenes’ and this needs to be explained to them between invoices so they are fully apprised. Even if clients do not fully take the time to read these updates - there is a critical paper trail to prevent future misunderstandings and possible grounds for complaint.

My own view is that the client should know the amount of the invoice without looking at it because it will be in accordance with the agreed estimate. There will be no nasty surprises and if further work is required – this will have been explained and agreed. Litigation costs are notoriously difficult to predict with certainty and there are often many twists and turns that need to be negotiated and budgeted for and that is where cool heads and experience really count.

So, if your lawyer is not giving you the information and displaying the communication skills that you expect of your professional adviser – perhaps you should come and speak to me? I would be happy to buy you a coffee.

How can a lawyer help your business?

noreply@blogger.com (JKW Law) — Wed, 28 Jun 2017 16:18:00 +0000

Prevention

Risk management and the appropriate allocation of risk;
Ensuring that your own contracts are commercially attractive and legally sound;
Reviewing and amending (where appropriate) the other side’s contract (terms and conditions);
Seeking to limit your business’s exposure to commercial risk and where possible to exclude, cap or limit your liability for direct loss of profits and business opportunities and indirect (consequential) losses;
Ensure there is an ‘entire agreement’ clause in the contract;
Insert an English choice of law clause and provide for English courts to have exclusive jurisdiction in respect of the agreement; and
Carrying out regular fixed - price contract audits particularly around Brexit.

Cure

Identifying the legal issues in a commercial dispute and advising on the respective strengths and weaknesses of those arguments;
Prioritising those issues that need action immediately to protect the client’s interests;
Developing a strategy with the client and preserving the key factual evidence and speaking to those individuals who were involved in the contract;
Identifying whether expert evidence is required;
Making cogent, firm and persuasive legal arguments such that all forms of dispute resolution mechanisms are fully explored;
Making use of effective without prejudice negotiations often in parallel with the open discussions;
Not taking a ‘how long is a piece of string?’ approach but rather being dynamic in the problem solving and ensuring, wherever possible, a swift resolution of the dispute thus saving the client time and money; and
Seeking to avoid protracted and costly litigation which should only be ‘a last resort’.

Established in 2006 in London, JKW Law has been offering legal services over several practice areas to discerning clients achieving successful outcomes at excellent commercial rates. John Walmsley leads a team of 4 experienced consultants offering expertise and a personal approach to supporting your business in challenging times. We take the time to understand your business and anticipate issues before they have arisen.

If you have something on your mind (or plate) and would like an informal chat or even a second opinion, please drop John a line - john@jkwlaw.com

For more about JKW Law - www.jkwlaw.com

What is the point of your lawyer?

noreply@blogger.com (JKW Law) — Mon, 12 Jun 2017 08:46:00 +0000

Perhaps a pertinent question in these turbulent times. The traditional answer might be to provide legal advice either on one or two discrete areas as a specialist or across several practice areas as a trusted adviser to the business. The lawyer can then identify the legal issues, advise and ensure that the appropriate strategy is adopted to limit any damage or to shape or influence the path to be taken.

‘Lawyers advise and clients decide’ is certainly true but often clients expect and demand more from their legal advisers than advice alone. Clients tell me they want a lawyer who is prepared to be robust in their appraisal of the situation and not afraid to ask difficult questions; Better now than in court. Also a lawyer who anticipates a problem even before the loss or damage has occurred perhaps through a contract audit. At the end of the day, it is about making the client more financially sound and this involves understanding the client’s business and for the client to see the effect of your advice on their cash flow.

As a client told me recently ‘A lawyer should work with the client right from the start of the business and ideally help prevent any legal difficulties instead of only showing up to solve them’.

How should a good lawyer behave?

Clear, consistent and commercial advice;
Understand the business plan of the client;
Look to develop a long – term relationship and behave accordingly;
Respond quickly, accurately and succinctly;
Anticipate problems wherever possible; and
Share their network to allow you to prosper from their connections*

Does your lawyer tick all of the above boxes?

If you identify any more crucial qualities, or have something on your mind and would like to meet for a coffee, please drop me a line: john@jkwlaw.com

*On the point of sharing my network - please note that I am holding an event at Heeltap, SE1 on Tuesday 20th June to watch the British & Irish Lions’ game against the Chiefs from 8am. There are still some spaces available. Please drop me a line for full details.

Please take a moment to look at some of my recent seminars.
I am happy to discuss a tailored presentation to your organisation.

An Invitation to Breakfast with the Lions - 20th June

noreply@blogger.com (JKW Law) — Mon, 22 May 2017 15:14:00 +0000

You are cordially invited to join me to watch the British & Irish Lions' fixture against the Chiefs on Tuesday 20th June.

Places are limited so please RSVP to john@jkwlaw.com

THE DATE IS

Tuesday 20th June 2017
Kick off is 8.35 am.

Breakfast will be served from 8 am.

VENUE

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

HOST

John Walmsley - JKW Law

BREXIT: DOES IT MEAN BUSINESS?

noreply@blogger.com (JKW Law) — Mon, 27 Feb 2017 12:41:00 +0000

After the Government’s defeat in the Supreme Court last month, MP’s have now voted to trigger Article 50 and the UK prepares to give formal notice before 31st March 2017 of its intention to leave the EU and start the 2 year negotiation period.

A White Paper has been published but is noticeably lacking in detail.

Those attending will gain insight into:
Article 50 and the 2 year period
The White Paper and the exit strategy
What will Brexit look like in reality?
The process and negotiations
Further legal challenges?
What happens next?
What should business be doing now?

THE DATE IS

Friday 31st March
10.30am - 12.30pm

Tea, coffee and homemade biscuits served from 10 am.

VENUE

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

SPEAKER

John Walmsley - JKW Law

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum
is not taking place at 45 King William Street EC4.

BREXIT AND BUSINESS - WHERE ARE WE NOW?

noreply@blogger.com (JKW Law) — Mon, 10 Oct 2016 08:02:00 +0000

Following the UK Referendum on 23rd June 2016 and the successful No vote, Article 50 has still not been triggered and is not likely to be until early 2017. The future is uncertain. All we knew from the new PM, Theresa May was that 'Brexit means Brexit' and recent announcements are still opaque. What does Brexit mean for you, your business, the City of London and UK PLC?

John Walmsley has spoken on Brexit to professionals and business leaders and will help guide you through the minefield. John will cover topical, critical and as yet undecided issues such as:

What will Brexit look like - hard or soft?
Are tariffs a real possibility and a potential threat to overseas investment in the UK?
Passporting rights
Free movement of people and the proposed restrictions of movement of EU workers
Regulatory concerns and potential unravelling of EU laws
Legal challenges to Brexit

The forum promises to be a lively affair - if the last one is anything to go by and you are warmly invited to share your hopes and fears regardless of how you voted. John promises to retain a neutral stance!

THE DATE IS

Friday 28th October 2016
10.30am - 12.30pm

Tea, coffee and homemade biscuits served from 10 am.

VENUE

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

SPEAKER

John Walmsley - JKW Law

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum is not taking place at 45 King William Street EC4.

Breakfast Seminar Invite - Friday 27th May 2016

noreply@blogger.com (JKW Law) — Thu, 28 Apr 2016 12:16:00 +0000

LEGAL IMPLICATIONS FOR BUSINESS AFTER BREXIT

The UK Referendum will take place on Thursday 23rd June 2016. A vote to leave the EU would, it is predicted,result in market volatility and uncertainty during the lengthy negotiations surrounding the UK's exit. This highly topical round - table forum will focus on the key aspects for business which would be affected by Brexit and how to prepare.

The presentation by John Walmsley will cover high, medium and low impact effects of Brexit and consider:

Imports and Exports
Contracts
Law and Regulation
Finance
Employees
Tax
Pensions

The presentation will be followed by a Q & A session.

THE DATE IS FRIDAY 27th MAY 2016
10.30am - 12.30pm

Tea, coffee and homemade biscuits served from 10 am.

VENUE
@ HeeltapChaucer House, White Hart YardLondon SE1 1NX

SPEAKER
John Walmsley - JKW Law

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum is not taking place at 45 King William Street EC4.

Late Breakfast Forum an Invitation

noreply@blogger.com (JKW Law) — Fri, 04 Sep 2015 12:07:00 +0000

Friday 25th September 2015 from 10.30 am to 12.30 pm.
Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

COMMERCIAL FRAUD:
THE CLIENT, THE THIEF, THE OFFSHORE BANK ACCOUNT AND THE LAWYER

Fraud is infinite in variety. It is also increasingly being perpetrated on an industrial scale. It is estimated to cost all of us £70 Billion and rising. Thieves are becoming faster, smarter and more sophisticated.

What is commercial fraud?
What are the legal remedies for the victim?
Building a case, fighting back and chasing the money (the lawyer's job)
International considerations
The future landscape

SPEAKER
John Walmsley - JKW Law

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum
is not taking place at 45 King William Street EC4.

Protecting the Professional Presentation Slides

noreply@blogger.com (JKW Law) — Fri, 31 Jul 2015 14:29:00 +0000

Presentation Slides of Breakfast Forum, July 30th, 2015 by John Walmsley

LATE BREAKFAST FORUM AN INVITATION

noreply@blogger.com (JKW Law) — Thu, 09 Jul 2015 11:29:00 +0000

Thursday 30th July 2015 from 10.30 am to 12.00 noon.
Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

PROTECTING THE PROFESSIONAL

A common concern for the professional adviser is the risk of a claim against them for professional negligence. This Breakfast Forum will give you the information you need to manage that risk more effectively and to sleep easier. It will cover these important considerations:

1. Are you aware of the basics and what duties are owed to your clients in contract and tort?
2. Are you aware of the legal principles of limitation?
3. Understanding insurance arrangements for professionals
4. Regulatory, conduct and codes of practice issues
5. Contributions from other professionals

SPEAKER

John Walmsley - JKW Law

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum
is not taking place at 45 King William Street EC4.

DIRECTORS' DUTIES - THE MAGNIFICENT SEVEN

noreply@blogger.com (JKW Law) — Thu, 07 May 2015 19:19:00 +0000

An Invitation: Late Breakfast Forum
Thursday 28th May 2015 from 10.30 am to 12.00 pm.
Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

DIRECTORS' DUTIES -
THE MAGNIFICENT SEVEN

What are my general duties under the Companies Act 2006?
What is a conflict situation?
What penalties are there if I breach my general duties?
What about other duties and obligations?
What are my responsibilities on insolvency?

SPEAKER

John Walmsley - JKW Law - Solicitor

Download Presentation

Breakfast Presentation Notes: Cracking Down on Tax Avoidance - The Good, The Bad and HMRC

noreply@blogger.com (JKW Law) — Thu, 02 Apr 2015 14:02:00 +0000

Introduction

Nobody likes paying tax.

Why does it matter? – Tax Gap - £42 billion. One sixth or £7 Billion is tax evasion and another £7 Billion is tax avoidance.

The balance is uncollected taxes.

It is for this reason we have the crucial distinction between avoidance (legal) and evasion (not legal).

Dennis Healey famously commented that the difference between tax avoidance and tax evasion is ‘the thickness of a prison wall!’

The battle with the Revenue is not new:

Lord Clyde – ‘No man in the country is under the smallest obligation, moral or other, so to arrange his legal relations to his business or property as to enable the Inland Revenue to put the largest possible shovel in his stores.

The Inland Revenue is not slow, and quite rightly, to take every advantage which is open to it under the Taxing Statutes for the purposes of depleting the taxpayer’s pocket.

And the taxpayer is in like manner entitled to be astute to prevent, as far as he honestly can, the depletion of his means by the Inland Revenue.’

Ayrshire Pullman Motor Services v Inland Revenue [1929]

A. EVASION

HMRC’s Affluence Unit – Evidence of a crackdown

Background - The Affluence Unit was established in September 2011.

It was focusing on around 200,000 people who had net wealth between £2.5 million and £20 million.

It now also deals with individuals who earn more than £150,000 per annum and have net wealth between £1 million and £2.5 million (January 2013).

The move follows the success of the High Net Worth Individuals Unit (HNW) set up to deal with individuals whose wealth exceeds £20 million.

HMRC will often arrange meetings with individuals and one of the first lines of attack was offshore property and any rental income from foreign property not declared or property bought with ‘dirty money’.

The Affluence Unit announced that it was recruiting an extra 100 inspectors so now has between 200 and 300 inspectors across six locations in UK.

The target is to recover £586 million by the end of 2015.

Common characteristics:

Affluence Unit will target wealthy individuals who:

Habitually use avoidance schemes;
Have a low effective rate of tax across their total income;
Have bank accounts in Switzerland and who appear to be understating their liability;
Fail to file self-assessment returns on time;
Avoid or evade Stamp Duty on property purchases; and
Have UK and offshore property portfolios.

Recent events in news -

2012 – HMRC claimed to have saved £200 million by closing three tax avoidance schemes (which ones?) and in early 2013 clawed back an estimated £500 million from Barclays avoidance schemes. Barclays’ chief executive, Anthony Jenkins then closed down the unit and stated that ‘although this was legal, going forward such activity is incompatible with the new tax principles which we are publishing. We will not engage in it again’.

HSBC – Swiss entity – whistle blower passing information to HMRC. Claimed that HSBC's Swiss private banking arm helped clients in more than 200 countries evade taxes on accounts containing £77bn ($119bn). The alleged evasion was said to have taken place at HSBC's private bank in Switzerland in the mid-2000s.

Reports that HMRC have recovered £100 million from the 100,000 individuals whose details passed to HMRC.

Interesting exchanges between the Select Committee and Lin Homer (Chief Executive) and Jennie Granger (Enforcement & Compliance). One area was surrounding the presentation of cases by HMRC’s enforcement team to the CPS.

1. New – strict liability offence

Consultation on strict liability offence of offshore tax evasion; also consultation on criminal liability for corporate failure to prevent evasion.

B. AVOIDANCE

Aggressive Tax Avoidance – How aggressive is aggressive and how do they work in practice?

Between 100 - 200 providers in the market (last count)

Well publicised cases – K2 (Jimmy Carr), Eclipse 35, Icebreaker

HMRC published a list of 1,200 schemes in July 2014.

Tax avoidance promoters require the signature of a leading tax QC attached to scheme to create a highly marketable and lucrative product.

View that tax avoidance promoters can sell scheme 250 times before HMRC spots it.

Limited shelf life for scheme - Before Revenue acts

Rewards can be huge. Comment that a single planning idea generated fees of around £100 million.

Create the product and the market. Advertising to professionals.

Common Features of Aggressive Tax avoidance schemes

Scheme providers will charge high entry fees for entry into a scheme which will put it beyond the reach of most ordinary people.
The scheme may offer some protection against fees incurred as a result of an HMRC investigation typically up to first round tribunal. However, word of warning, fees unlikely to cover the cost of the full investigation. Subsequent costs will therefore have to be funded by the scheme participants.
All of these schemes are notifiable to HMRC so, where an individual or company has participated in a scheme they are required to inform HMRC and disclose the identification number.
HMRC aim to investigate each scheme and the investigation could last for several years.
If the result of the investigation ends in HMRC’s favour then the participants will have to pay over any tax due, plus penalties (which could be up to 100% of tax due) plus interest and will have also incurred the initial costs of the entry to the scheme and the costs of defending it to HMRC. Could very easily add up to substantially more than the tax initially saved. (Point raised at select committee re HSBC where initial starts up costs for entry were more than tax paid to HMRC by way of settlement thereby questioning the success from HMRC’s perspective of the deal.)
Conversely, if the scheme is found to be legal, then a significant amount of tax could be saved but position is unlikely to be certain for many years.
Note impact of disclosure of tax avoidance schemes and accelerated payment notices (see below) – much less cashflow advantage than before.

My attendance at seminar – SDLT in 2012 – Focus on Sub – Sale Relief (3S) and the Multi – Purpose Trust (MPT)

Sub sale relief is legitimately used by housebuilders to avoid paying stamp duty twice, first when they buy the house and again when they sell it.

Before decision in Vardy Property Group – September 2012 – HMRC succeeded and was trumpeted by HMRC as evidence that they could go to court and win.

Case concerned a scheme used by Vardy whereby a site was acquired for £7.25 million in 2006 by an intermediary and then transferred to Vardy which then used sub sale relief to avoid paying £290K in stamp duty.

Spoke of couple of tax barristers. Revenue bar is very small.

Had to sign an NDA before my place was confirmed.

Remember promoters are salesmen; they also duplicate and cannibalise each other’s plans.

Watch out for offshore promoters – they are sheltered from HMRC.

How do HMRC fight back?

Targeted anti avoidance rules.
Wide ranging targeted rules – e.g. transactions in securities, employment-related securities, disguised remuneration.
Case law – Ramsay, Furniss v Dawson, Halifax.

Arms race – and if HMRC use their weapons they may turn out to be the Emperor’s New Clothes instead. Each new weapon looks best just after it has been announced, and then the avoiders get to work to deal with it.

Historically HMRC are always playing catch up, always behind the curve. Their problems:-

Permutations on loopholes they thought they had blocked;
Delay in finding out what is going on in the market;
Cashflow advantage is with the avoider – keeps the tax until the appeal process is exhausted.

Disclosure of Tax Avoidance Schemes

Objectives

The objectives of the disclosure rules are:

To obtain early information about tax arrangements and how they work; and
information about who has used them.

Different rules for each tax. Particularly broad for SDLT.

The effect of disclosure

On its own the disclosure of a tax arrangement has no effect on the tax position of any person who uses it. However, a disclosed tax arrangement may be rendered ineffective by Parliament, possibly with retrospective effect.

General Anti-Abuse Rule (GAAR)

Already exists for stamp duty land tax – section 75A Finance Act 2003.

Now extended to SDLT plus all taxes except VAT (European law) and stamp duty.

Advisory panel rules on whether arrangement are abusive – the double reasonableness test.

No appeal.

Plans to bring in extra penalties for GAAR cases.

Not tested as yet.

New weapons

Follower notices
Accelerated payment notices

Still to see how these work in practice – but large numbers of APNs are now being issued.

Very limited right of appeal.

Perception and Enforcement

Embarrassment of being accused of tax dodging and profiting from tax dodging. Morally repugnant according to George Osborne.

’It is not that you did it John, it is the fact you got caught’

Truth is aggressive avoidance is a convenient construct. Licence for HMRC to take action at its own discretion.

Are they pursuing Amazon, Starbucks or Vodafone for their highly artificial arrangements? (But NB diverted profits tax – unilateral action by UK, jumping the gun ahead of “BEPS” programme of OECD).

They seem to be concentrating their efforts on the smaller fry or low hanging fry to try to use these cases as an obvious deterrent.

Note blurring of lines between evasion and avoidance.

Professionals and Aggressive Tax Avoidance Schemes

‘Damned if they do, and damned if they don’t’.

Accountants and tax advisers

Court of Appeal decision in Mehjoo v Harben Barker (2014)

Case that received much attention and whose decision at first instance caused a certain degree of concern amongst tax advisers.

Argued that the Claimant’s accountant had, as a reasonably competent chartered accountant, the obligation to advise Mr Mehjoo that he had or very probably might have non-dom status which carried significant tax advantages and that he should therefore seek and obtain tax advice from a firm of tax advisers or accountants which specialised in advising non-doms on their tax affairs. Mr Mehjoo’s case was that armed with this advice he would have gone to see such a specialist and been advised to enter into an aggressive tax avoidance scheme to avoid paying any CGT on the sale of shares in one of his businesses.

The Court of Appeal reversed the ruling in favour of Mr Mehjoo at first instance and held that an accountant does not have a general roving duty to have regard to and advise on all aspects of a client’s affairs absent a request to do so.

Particular attention was paid to the accountant’s retainer letter and the generally accepted view that the extent of a professional’s retainer depends on the terms and limits of the retainer and any duty of care to be implied must be related to what he is instructed to do.

The imposition of an open ended and apparently limitless duty upon the accountant was therefore rejected by the Court of Appeal.

Lawyers – SRA – Breach of professional Duties?

Professional Indemnity Insurance (role played by) – More difficult to obtain in market?

Certainty, peace of mind and a reduced tax bill.

Advice in dealing with HMRC

As an individual or corporate entity – think very carefully before entering into schemes.

If it goes wrong it can go badly wrong –

Icebreaker investors:

lost in court
lost their insurance cover for non-disclosure of relevant information
have conflicted adviser probably requiring replacement; and
worse still, in many cases the firms that advised them have ‘phoenixed’ the businesses so as to avoid the inevitable claims

As a professional adviser – better position after Mehjoo case.

If you are interested, check:-

What advice did Counsel actually give?
What rights have you got against the promoter? (Hint – there will be very little recourse.)
Will the scheme be disclosed?

Get a second opinion.

Conclusion

Clear evidence of a crackdown – Affluence Unit.
HMRC are prepared to fight hard and take their legal challenges to Court.
High start – up or entry fees means that aggressive tax avoidance schemes are not for the average individual and certainly not for the faint – hearted.
HMRC may be playing catch – up but are now better resourced and with new weapons
Advisers need to carefully check their retainer letters to ensure the scope of their advice to clients is clear and unequivocal.
Get expert advice, Counsel’s Opinion and possibly a second Opinion.
Stay the right side of the prison wall!

This presentation contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances.

John Walmsley and Paul Giles – JKW Law
26th March 2015

JKW Law
45 King William Street
London
EC4R 9AN
0203 102 6865
john@jkwlaw.com

LATE BREAKFAST FORUM AN INVITATION

noreply@blogger.com (JKW Law) — Wed, 04 Mar 2015 21:15:00 +0000

Thursday 26th March 2015 from 10.30 am to 12.00 pm. Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

CRACKING DOWN ON TAXAVOIDANCE -
THE GOOD, THE BAD AND HMRC

There is a large gulf between what amounts to tax avoidance, which is within the law, and tax evasion, which is illegal.

People who would just consider themselves moderately successful professionals and business people are now also coming under the scrutiny of HMRC's specialist units.

HMRC have been given new powers to pursue tax avoidance in a more aggressive approach to prosecutions targeted at professionals and entrepreneurs.

The forum will cover the new climate, the legal ramifications and advice in dealing with HMRC.

SPEAKERS

John Walmsley - JKW Law - Solicitor
Paul Giles - JKW Law - Solicitor and Consultant

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum
is not taking place at 45 King William Street EC4.

LATE BREAKFAST FORUM AN INVITATION

noreply@blogger.com (JKW Law) — Mon, 12 Jan 2015 14:19:00 +0000

Thursday 29th January 2015 from 10.30 am to 12.00 pm.

Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap

Chaucer House, White Hart Yard

London SE1 1NX

THE LEGAL WORLD OF

DISPUTE RESOLUTION -

WHY RISKS ARE LIKE FROGS

Why do disputes happen?

The life cycle of a risk

How to deal with disputes effectively

Who is in charge of the dispute resolution process?

Effective dispute resolution strategies

SPEAKERS

Hannah McCarthy - 39 Essex Street - Barrister

John Walmsley - JKW Law - Solicitor

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum

is not taking place at 45 King William Street EC4.

Merry Christmas and Happy New Year

noreply@blogger.com (JKW Law) — Mon, 15 Dec 2014 13:45:00 +0000

Mastering the Dark Art of Contract Negotiation

noreply@blogger.com (JKW Law) — Tue, 04 Nov 2014 11:10:00 +0000

LATE BREAKFAST FORUM - AN INVITATION

Thursday 20th November 2014 from 10.30 am to 11.30 am.
Coffee and tea (and homemade biscuits) served from 10.00 am.

@ HeeltapChaucer House, White Hart YardLondon SE1 1NX

PRESENTATION

John Walmsley
MASTERING THE DARK ART OF CONTRACT NEGOTIATION

Why negotiating contracts effectively is crucial to the success of your business.
How to negotiate contracts effectively.
9 legal tips to protect your business and win the contractual war of words.

Presentation to be followed by a round table discussion.

Please RSVP to john@jkwlaw.com

LATE BREAKFAST FORUM AN INVITATION

noreply@blogger.com (JKW Law) — Fri, 03 Oct 2014 14:14:00 +0000

Thursday 16th October 2014 from 10.30 am to 11.30 am.
Coffee and tea (and homemade biscuits) served from 10.00 am.

@ Heeltap
Chaucer House, White Hart Yard
London SE1 1NX

PRESENTATION

John Walmsley
RUSSIAN ECONOMIC SANCTIONS:
A SURGICAL STRIKE OR A BLUNT WEAPON?

What are the current sanctions?
What are the new obligations owed under the current Regime?
What is their likely effect on business between the UK and Russia?

Presentation to be followed by a round table discussion.

Please RSVP to john@jkwlaw.com

Please note venue details and that the forum
is not taking place at 45 King William Street EC4.

A TALE OF TWO LAWYERS AND DROPPING THE F - BOMB WITH CLIENTS

noreply@blogger.com (JKW Law) — Mon, 07 Jul 2014 09:28:00 +0000

WHAT COULD IT MEAN?
YOU KNOW, THE F WORD ... F*@#!

AKA - FEES

Simon did not like discussing fees with his clients. He found the whole situation of talking about legal costs a little ...vulgar. ‘Clients should be told a rough idea of the costs at the outset but when the firm charges for my time by the hour, it is an imprecise business ... an inexact science.’

He would also comment... ‘Clients receive a full breakdown of my time with the firm’s invoice so surely they must know all the time spent was reasonably incurred even if it did take me twice as long as I anticipated.‘

Unfortunately for Simon, he did not communicate this fact to his client who had expected to receive a much lower bill consistent with the original estimate. ‘I was very busy and it simply slipped my mind to discuss it with the client’ was his excuse.

The client saw things a little differently and sought a reduction of the bill much to Simon’s chagrin. ‘Well, you win some and you lose some I suppose - I must confess I can leave things a little loose at the edges’ was Simon’s reply when asked to justify his conduct to the senior partner. The senior partner’s response is not reported.

One of Simon’s other practices was to send out his bills in Friday night’s post in the hope that the client will have ‘calmed down’ by Monday or whenever it was that the first class post was delivered.

RING ANY BELLS?

On the other hand, John sought clients’ express agreement as to the estimate of the costs from the outset in a signed letter of engagement, together with an agreed budget which could not be exceeded without the client’s consent and he often worked on fixed fee arrangements. The invoice was prepared by John personally rather than a junior accounts individual who had no knowledge or dealings in the matter.

John’s approach was open, consistent and transparent at all times regarding fees and invoices were emailed to the client with a full narrative and breakdown of the work undertaken. Generally, not on a Friday. No nasty surprises or F - bombs for clients.

WHICH LAWYER WOULD YOU RATHER WORK WITH?

This article contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances.

THE CAUTIONARY TALE OF THE FAKE ROLEX - BUYER BEWARE!

noreply@blogger.com (JKW Law) — Wed, 11 Jun 2014 23:46:00 +0000

Buying second hand goods at live local auctions can sometimes be problematic and leave the buyer without a satisfactory legal remedy if the goods do not comply with their descriptions and are later proved to be forgeries or fakes. A recent example involved a second hand watch to be auctioned and described as a Rolex.

CASE STUDY

I was recently contacted by a lady who bought a Rolex watch through a local auction house. She went to see the watch before the auction and had a chat to a member of staff along the lines of how nice it was. The watch was described in the catalogue as a ‘Rolex in Rolex box’, but there was no paperwork.

As an online bidder, she successfully bid £4k (she would expect to pay circa £6k retail). She collected it (same watch as she viewed) but then subsequently took it to a Rolex shop to have links removed from the strap and was told ‘it’s a copy or fake’. She sent me an extract from the auction house terms and conditions (Ts & Cs) and sought my advice as to her legal rights.

The Auction House’s Ts & Cs state:

The auctioneers act only as agents for the vendor the auctioneers accept no personal liability under contract made at or prior to auction.

All bidders are deemed to have viewed or requested an appraisal for a lot being bid on. All lots are sold as seen there are no guarantees. All descriptions and pictures are produced as a guideline only.

Bidders will be deemed to have read and understood the terms below. No refunds, credits or storage waivers will be given once acceptance and registration is approved.

Viewing is available Fridays and Mondays from 3pm-6pm, and 9am-10am before the Auction begins on Saturdays, Tuesdays and Thursdays. All verbal appraisals must be obtained in office hours 9am-5pm Mondays - Fridays and 9am-4pm Saturdays.

Viewing Extra Note

All items are sold as seen in the auction centre. All images and descriptions are for guidance purposes only and in NO WAY replace viewing or appraisal. We have a viewing every Friday at our auction centre from 12-4pm, Saturday and Monday by appointment only. All Lots are sold as per our Terms and Conditions on display in the Auction Centre and are available on request. Please see section 5 of our customer terms and conditions. PLEASE NOTE NO credits or refunds will be issued for items that have not been viewed by the buyer or appraised by a member of staff.

PRELIMINARY ADVICE

Assuming the Rolex is a fake, it is necessary to consider:

Contractual rights; and
Statutory rights

CONTRACTUAL RIGHTS

As a prospective online bidder, you should have been directed and accepted the auction house's Ts & Cs before registering and being allowed to bid. This could have been done online or perhaps at the auction house when you viewed the watch at an earlier time.

The auction house state that their Ts & Cs are also on display in the auction premises or are available on request.

Therefore, the Ts & Cs were brought to your attention before bidding and are incorporated into the contract of sale between the seller and you. Ts & Cs will also usually appear in the catalogue.

Auctioneers act solely for and in the interests of the seller. They do not act for the buyer or give advice to the buyer.

The auctioneers have an express term that the goods are 'sold as seen' and no guarantees are given. Again, this is standard in many live auction sales. Sometimes, condition reports are prepared but there is usually an express term that by providing the condition report the auctioneers are not entering into a contract with the buyer.

By contrast, Bonhams' Ts & Cs have what is termed a ‘Contractual Description’ of a lot which is printed in bold letters together with the photograph. Everything else regarding the lot, including its alleged provenance and any oral or written statements made before or during the sale, do not form part of the contractual description. So, a watch stated to be a Rolex with a brief description and photograph appearing in a Bonhams catalogue is a contractual description. Bonhams Buyer's Ts and Cs also have a section dealing with forgeries stating that Bonhams undertake a personal responsibility for any forgery and, subject to certain conditions, will agree to buy the lot back from the buyer.

I recommend you double check to see whether there is such a clause in the Ts & Cs. It appears that this is the statement regarding descriptions - 'All descriptions and pictures are produced as a guideline only'.

STATUTORY RIGHTS

Auction sales are covered by The Sale of Goods Act (SOGA) 1979. However, due to the 'sold as seen' express term in the contract the implied terms regarding sales conforming to their description in the SOGA will not apply.

So, from the information provided, you do not have any legal recourse against the auctioneer as agent based on the Ts & Cs reproduced above. In addition, the Ts & Cs limit the seller's liability in respect of its conformity with any descriptions and right to claim a refund.

On a practical point, it emphasises the need to take specialist advice before buying at auction. Certainly, paperwork does add to the authenticity of a lot and increase the value of watches but again could be forged. It is possible that it is a bad fake and that a specialist auction house would have easily seen this and refused to accept it for the auction. Again, perhaps more reason only to buy from specialist auction houses.

The auctioneer is under no duty to disclose the identity of the seller and whether they are a professional or a private individual.

QUESTION

Are the Ts & Cs subject to Unfair Contract Terms Act (UCTA) 1977?

3.-(1) This section applies as between contracting parties where one of them deals as consumer or on the other's written standard terms of business.

Liability arising in contract.

(2) As against that party, the other cannot by reference to any contract term -
(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or
(b) claim to be entitled -
(i) to render a contractual performance substantially different from that which was reasonably expected of him, or
(ii) in respect of the whole or any part of his contractual obligation, to render no performance at all, except insofar as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.

Dealing as a consumer ...

But the buyer is not in any circumstances to be regarded as dealing as consumer -
(a) if he is an individual and the goods are second hand goods sold at public auction at which individuals have the opportunity of attending the sale in person; (my emphasis)

ANSWER

No.

OUTCOME

Despite the bleak legal position for the buyer, I am pleased to report that on being presented with the allegation that the Rolex was a fake based on two independent inspections by authorised Rolex retailers the auction house acted professionally and provided a full refund including the buyer’s premium. They kept the fake Rolex.

ON A PRACTICAL NOTE ...

Checklist of Fake vs. Real Rolex

Attribute	Real Rolex	Fake Rolex
Extra seal within the threads around triplock crown	Yes	No, have screw down threads
Clear display or caseback	No	Maybe
Smooth caseback	Yes	Maybe, many have logos
Engraved caseback	No	Maybe
3-D Hologram encoded sticker on caseback	Yes on Models after 2002	Probably not
2.5 magnification on Cyclops lens	Yes	No, most fakes have 1.5 magnification
Serial and Case Reference numbers on side of case	Yes, and is light-reflecting and very fine	Yes, but most have poor spacing and lines are etched

This article contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances.

noreply@blogger.com (JKW Law) — Wed, 11 Jun 2014 08:59:00 +0000

LATE BREAKFAST FORUM AN INVITATION

Thursday 19th June from 10.30 am to 11.30 am.
Coffee and tea served from 10am.

@ HeeltapChaucer House,
White Hart YardLondon SE1 1NX

PRESENTATIONS

Charlotte Factor - Employer Engagement Manager
Economic Development Office, City of London
What can your business do to tackle youth unemployment?

John Walmsley - JKW Law
‘Reasonable notice to terminate’ and ‘good faith’ in B2B contracts

NOT JUST ‘DRY LAW’

noreply@blogger.com (JKW Law) — Mon, 19 May 2014 14:52:00 +0000

WHAT DO CLIENTS WANT FROM THEIR LAWYERS?

We recently met with a successful company that uses another firm of employment lawyers on retainer. They considered that these lawyers were slightly weak in the commercial understanding of the company as a business. This was illustrated when the lawyers were trying to apply the law to real situations in the company’s business and how that could impact on them. The company commented that it was not just seeking ‘dry law’, but to really understand how it will affect them in real terms.

CAN WE HELP YOU?

"I instructed John from JKW LAW in December last year and can only describe the service as being - Highly professional, caring, clear and consistent. John achieved the desired result in a cool and calm manner. I would highly recommend John to anyone with any kind of legal problem."

Tim Belson
Jewellery Direct Supply

A COUPLE OF SHORT NOTES ON COMMERCIAL LEGAL MATTERS THAT ARE WELL WORTH READING ...

1. Court clarifies what is ‘reasonable notice’ to terminate a contract

Hamsard 3147 Ltd (t/a Mini Mode Childrenswear) v Boots UK Ltd [2013] EWHC 3251 (Ch), 31 October 2013
The High Court has listed the factors to consider when deciding what is ‘reasonable notice’ for terminating a contract. The decision doesn’t create new law, but it will be useful when interpreting a ‘reasonable notice’ clause, or when a contract is silent on termination.

Hamsard had contracted to supply children’s clothes to Boots. The contract wasn’t in writing and the trading relationship had been inherited from previous arrangements between other parties. Hamsard ran into financial problems and Boots terminated the contract on 9 months’ notice. Both parties accepted that the contract could be terminated on reasonable notice, but Hamsard argued that ‘reasonable’ meant 18 months (referring back to a previous agreement).

The court set out five factors for deciding what is ‘reasonable’, summarising previous case-law:

it will always depend on the facts – so other cases are of limited help;
the circumstances and practices of the parties’ trade may be relevant;
it should be judged at the time notice is given;
the circumstances at the time of the contract are also relevant, to show ‘the common purpose of the parties’; and
it will depend on how formal the relationship is.

Here, the contract was informal, short-term, and constantly changing. 9 months was reasonable.

Although this case is useful guidance when deciding on a reasonable notice period, there’s no substitute for including clear contractual wording on termination rights. The dispute also shows how important it is to document any trading relationship your business inherits - eg following corporate restructurings.

2. New employment rules on changing service providers

The new TUPE regulations came into force on 31 January 2014. This is part of the government’s commitment to cut employment law red tape.

The regulations introduce some important changes:

for a TUPE service provision change to take place, post-transfer activities must be ‘fundamentally the same as the activities carried out previously’;
pre-transfer collective consultation (where the transferee, with the transferor’s consent, meaningfully consults with the transferring employees) can count towards collective redundancy consultation obligations; and
changing an employee’s workplace location after a transfer can be an ‘economic, technical or organisational’ reason and won’t automatically be unfair.

BIS has published guidance on TUPE generally, including the new regulations (the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014)

This article contains general advice and comments only and therefore specific legal advice should be taken before reliance is placed upon it in any particular circumstances.