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How to secure an alcohol licence for your summer events

If you are planning to sell alcohol at your event, you will need to have a licence.

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17 May 2023
Julian Overton
Managing Partner
Blog Licensing Law

For those planning events this summer, now is the time to start work in earnest. In recent years, there has been a huge rise in the number of events taking place in London during the summer months with festivals, markets, concerts, cinemas, fetes, roof-top bars and garden parties springing up all over the capital.   

If you are planning to sell alcohol at your event, then you will need to have a licence in place. The type of licence you’ll need, will depend in large part on where the event is taking place and the number of guests you are hoping will attend.   Supplying alcohol without the benefit of a licence is a criminal offence punishable by an unlimited fine, so this is something that you will want to get right!  Although your event might be some weeks away, time might already be running out for you to get your licence arranged.  Some of the applications you will need to make can take longer than you think, and licensing law is awash with technicalities which if you get wrong, can add further delay or scupper your plans entirely. 

If you are lucky, the place you are hoping to hold your event at might already be licensed. Licensed premises are not limited to bars, pubs or clubs but can be anywhere which has the benefit of a Premises Licence granted by the local authority.  Community centres, sporting clubs, venues for hire, colleges, even places of worship often have a Premises Licence and these licences can sometimes cover fields, adjoining land or other outdoor areas where your summer event might take place.

You should check with the owner or local authority to see if there is a licence already in place and you should check with the licence holder that they are happy for you to operate under the terms of their licence.  Equally importantly, you should check that the licence actually covers the types of activity you are hoping to undertake.  Typically, Licences permit specified types of licensable activity which can include the supply of alcohol but only within certain time parameters.  They often contain other restrictions and conditions that must be complied with.  If you are unclear whether your event is covered by an existing licence, then contact the local authority or seek expert advice.

What if there is a licence in place, but it doesn’t cover the activities you are hoping to carry out?

It is possible to vary the terms of a licence, either permanently or on a one-off basis.  This would be a matter for the Premises Licence holder to arrange rather than you, but unless the variation is a very minor one, the minimum amount of time required to vary a licence is 28 days and you should allow a few weeks either side of that to prepare the application and deal with any issues that might arise.  Applications to vary are made on-line via the local authority website.  A fee, determined by the rateable value of the property, is payable and the application needs to be advertised in a local newspaper and by a notice displayed at the premises.

What if there is no licence at the venue?

There are really only two available options for you, and which route you go down depends on the number of people you are expecting to attend the event. The test is how many people will be in attendance at any one time.  If the number is less than 500, then a Temporary Event Notice is what you want you want.  If the number is 500 or more, then you will need a full Premises Licence.

Temporary Event Notices

Applying for a Temporary Event notice (or TEN) is a relatively swift, straightforward and inexpensive process although there are strict rules on the amount of notice that has to be given. A standard TEN must be received by the local authority at least 10 working days before the event (excluding the day the notice is received and the first day of the event).  If there are less than 10 working days before the event, all is not lost as you can apply for what is known as a ‘Late TEN’ up to 5 clear working days before the event.  Again, clear working days do not include the day the application is received and the first day of the event.  There are limits on the number of events than can be given each calendar year and this limit varies depending on whether you have a personal licence or not.  There are also limits on the number of events than can be held at any single premises. The Police and Environmental Health Departments can object to TENs which can lead to their refusal so, leaving them until the last minute is rarely a good idea.

Premises Licence

If your event is going to attract 500 people or more then you will need to apply for a Premises Licence.  Depending on the nature of the event and where it is to take place, this can be a significant undertaking.  Applications are made on-line via the local authority’s website.  A fee, determined by the rateable value of the property, is payable and the application needs to be advertised in a local newspaper and by a notice displayed at the premises. You will need to provide a scale plan of the premises.  All applications are subject to a 28-day consultation period, and you should allow for a few weeks either side of this period to prepare your application, and deal with any representations that it might attract.

In order to be able to supply alcohol under a Premises Licence, it is worth nothing that you will need to nominate someone with a personal licence to be the Designated Premises Supervisor.

So, in conclusion there are quite a few options available to you if you want to supply alcohol at your event. The key is working out which is the right one for you and planning well in advance to give sufficient time for the application to be granted.  Local authority websites tend to have a good amount of useful information and you should always check with them or seek professional advice if you are uncertain on any of the technicalities.

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Homeless application made by or on behalf of a person who lacks capacity

Capacity is issue specific and so it does not matter if the person lacks capacity to make other decisions.

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9 May 2023
Emily Black
Associate Solicitor
Blog Community Care Court of Protection Housing

Whilst the default position is that anybody can make a request to a local housing authority for accommodation or for assistance in obtaining accommodation, a person must have legal capacity to make such an application. An individual who lacks capacity to make a homeless application cannot do so.

It will be for the local authority to reach a decision as to the person’s capacity to make a homeless application. It is assumed that principle 1 of the Mental Capacity Act 2005 applies here and therefore a person is presumed to have capacity to make a homeless application until proved otherwise. A lack of capacity should not be automatically assumed because of a person’s condition.

Further, capacity is issue specific and so it does not matter if the person lacks capacity to make other decisions. Similarly, a person is not to be treated as being unable to make a decision merely because they have made an unwise decision.

Other principles of the Mental Capacity Act 2005 also apply – and so the local authority should ensure that all practical steps are taken to help the person make the decision themselves, for example considering what method of communication the person is most familiar with, what is the best time of day and best location to discuss the decision with the person, etc.

How can you appeal the local authority’s decision?

If the local authority makes a decision that a person does not have capacity to make a homeless application and so their application is refused, then there is no right to review or appeal that decision. A person could provide clear medical evidence of their capacity to make the application in an attempt to try and change the decision of the local authority. If the local authority continues to refuse to change their decision and there is clear evidence of capacity, then the way to challenge this refusal would be by Judicial Review (in which a judge reviews the lawfulness of a decision or action made by a public body). Another route could be to apply to the Court of Protection for a declaration as to capacity. The Court of Protection can also appoint a deputy who would be able to make a homeless application on behalf of the individual who lacks capacity.

In the circumstance that the local authority decides that an individual does not have capacity to make a homeless application, and that is accepted, then a route for that individual to pursue to try and get accommodation from the local authority is under the Care Act 2014. Section 9 of the Care Act 2014 places a duty on a local authority where an individual may have needs for care and support to assess whether they do have needs for care and support and what those needs are. Where the individual has urgent needs, for example they are street homeless, then the local authority has a discretion to meet the individual’s care needs before having completed the assessment. After completion of the assessment, the local authority may be under a duty to provide accommodation if the individual has accommodation-related needs, for example if they need help going to the toilet or getting washed and dressed.

The social welfare department at TV Edwards LLP has a range of both housing and community care solicitors. If you or a family member are experiencing issues with capacity and making a homeless application, please contact us at a_housingreferrals@tvedwards.com.

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Abuse of disabled or elderly relative in a care setting – how can we help?

What are the legal options for people experiencing abuse, or neglect?

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27 April 2023
TV Edwards Blog
Blog Community Care Court of Protection

Abuse of disabled or elderly relative in a care setting – how can we help?

Our team of specialist community care solicitors can advise you about what to do if you or a disabled or elderly relative has experienced abuse or neglect, whether by carers at home, in supported accommodation or in a care home. There is a range of legal options, depending on whether the abuse or neglect is still going on or whether it happened in the past.

The abuse or neglect is still happening

The local authority (council) where the disabled person is actually living at the time of the abuse has responsibilities under the Care Act 2014 for safeguarding. There are responsibilities to make enquiries about any current concerns about abuse or neglect, under section 42 of the Care Act 2014. If a person raises a safeguarding alert, the council’s safeguarding team should look into the concern, talk to the person at the centre of the concern (with an advocate present, if necessary) and decide on what action to take.

If the person suffering abuse or neglect does not have capacity to make decisions about where to live or what care to receive, then there may be other legal avenues to explore. It may be that a “best interests” decision needs to be made under the Mental Capacity Act 2005, so that the person can be moved to better accommodation or receive different care. Or it may be that an application needs to be made to the Court of Protection. People who lack mental capacity may be under a “DOLS” (Deprivation of Liberty Safeguards) authorisation. If that is the case, then an application can be made to the Court of Protection to try and get the person moved.

If a person is suffering neglect because their care package is insufficient, then the local authority may need to carry out an assessment under section 9 of the Care Act 2014 or a care plan review under section 27.  Local authorities need to follow proper processes and can be held to account if they do not. This can involve either making a complaint or judicially reviewing the decisions of the public bodies involved.

Where the abuse or neglect happened in the past

There are also responsibilities on local authorities to investigate abuse or neglect that has happened in the past, through a Safeguarding Adult Review under section 44 of the Care Act 2014. This may need to be done if the person has died or suffered serious harm and various agencies (such as Social Services and the police) failed to step in to deal with it. A section 44 Safeguarding Adult Review will be carried by the Safeguarding Adult Board and will be chaired by a professional who is independent of the local authority.

It is also important to explore whether the person’s human rights were breached and whether they were discriminated against, for example because of their disability or their ethnicity. A solicitor can advise you about whether a claim under the Human Rights Act 1998 or under the Equality Act 2010 would be appropriate.

People are often stopped from taking these issues further because they are told they don’t have permission to get hold of records or to make a complaint on someone else’s behalf. This can be a complex issue to overcome, but is something we can advise you about.

If you want advice about abuse or neglect of disabled adults, our experienced team of community care and public law solicitors can advise you in complex cases, that may need an approach that uses several different legal tools. We can deal with applications to the Court of Protection, judicial reviews, damages claims, Safeguarding Adult Reviews and more.

Examples of our cases:

Our solicitors are representing a young person with learning disabilities who was sexually abused in supported accommodation by the manager of the accommodation. Through a judicial review of the police we have ensured that her allegations, which were initially dismissed by the police, were properly investigated. The suspect is now on police bail and the young person is pursuing a Human Rights Act claim against the police for failing to investigate the serious abuse she was subjected to.

One of our clients with autism and learning disabilities had been physically and emotionally abused by his support workers in supported accommodation. Through an application to the Court of Protection, he is being moved to higher quality supported accommodation where his needs will be met. The family are also pursuing a claim for damages under the Human Rights Act.

Our solicitors represented an elderly woman who was raped in her supported accommodation. We ensured that a proper Safeguarding Adults Review was carried out and also obtained damages under the Human Rights Act 1998. Please contact us to see if we can help with your situation. You can email us on enquiries@tvedwards.com or call us on 020 3440 8000.

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A review of recent reports and their implications on fertility, surrogacy and legal parenthood

The report published by the “WHO” found that 17.5% or one in six worldwide of the adult population experience infertility.

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6 April 2023
Anest Mathias
Associate Solicitor
Blog Family Modern Parenting, Surrogacy, Fertility and Adoption

On 4 April 2023 the World Health Organisation (“WHO”) published a report which found that 17.5% or one in six worldwide of the adult population experience infertility.

Dr Tedros Adhanom Ghebreyesus, Director-General at WHO said:

 “The report reveals an important truth: infertility does not discriminate.

“The sheer proportion of people affected show the need to widen access to fertility care and ensure this issue is no longer sidelined in health research and policy, so that safe, effective, and affordable ways to attain parenthood are available for those who seek it.”[1]

I completely agree with those views. We represent clients pre and post conception in relation to modern parenting, fertility, surrogacy and legal parenthood and we always support these clients with compassion, referring to other agencies as and when this may be beneficial. We have supported various organisations who in turn support fertility patients. TV Edwards has a fertility policy and I am the firm’s fertility ambassador.

The publication of the WHO report coincides with two major proposals for reform. There is currently a consultation by the HFEA about modernising the Human Fertilisation and Embryology Act. Parties may respond here.

The consultation closes at 5pm on 14 April 2023.   

A real bugbear of mine relates to sections 35 and 42 of the Human Fertilisation and Embryology Act 2008. The effect of these sections are that iIf a married woman conceives using donor sperm then her husband / wife / civil partner will be the legal parent of any child unless it is shown that they did not consent to the artificial insemination or embryo transfer. In one of my cases the court has held that the term “not consent” does not dilute the meaning of the word consent. [2] 

I find it outrageous that the effect is a spouse is asked to consent to their undergoing a gynaecological medical procedure. I, like most people, am a firm believer of full bodily autonomy. In another one of my cases the then President of the Family Division, Sir James Munby stated:

“The impression created that a married woman still requires, well into the twenty-first century, her husband’s consent to treatment is surprising, to put it no higher – as many, with every justification, undoubtedly would.” [3]

Furthermore there is nothing in the Act about whether the woman consents to her spouse being the legal parent. I have put forward these and other considerations to the consultation.

These provisions apply in surrogacy cases. There are obvious benefits to a surrogate’s spouse supporting her but this means that the spouse may become legal parent of a child they have no intention of being parent to and created using the gametes of another.   

Separately, the Law Commission of England and Wales has published its long awaited joint report with the Scottish Law Commission outlining recommendations about surrogacy.[4] This report is the result of years of work, a consultation was published in June 2019, over 681 responses received. The final report was published on 29 March 2023. Ministers should issue an interim response within six months of publication, and a full response within a year. Unfortunately there is no guarantee that the recommendations will be implemented and even if they it is highly unlike that this will be in the near future.

There are a total of 84 recommendations. The main focus for many has been the creation of a new pathway to surrogacy which I will explore separately. The final report is detailed and considered.

The Commission sets out that a fundamental element of the proposals is that the surrogate retains complete autonomy over her body and the pregnancy. This includes the right for the surrogate to withdraw her consent to the surrogacy agreement. This is clear from reading the report.

Given my views about sections 35 and 42 of the Human Fertilisation and Embryology Act 2008 I was delighted to read:

“We have concluded that there is a clear rationale for not attributing legal parental status to the surrogate’s spouse or civil partner on the new pathway in any situation where there surrogate herself is recognised as the legal parent. We recognise that her spouse or civil partner will usually be fully involved in the arrangement through the support they offer to her, and our scheme for the new pathway gives expression to that by applying certain screening requirements to them. However, we think that it is for the surrogate to make the decision as to whether she wishes to carry a child for intended parents, which is why we do not require that the surrogate’s spouse or civil partner be a party to the surrogacy agreement. The spouse or civil partner not being a legal parent of the child born of the arrangement is consistent with the surrogate’s autonomy.”

Whilst surrogacy is a growingly accepted path to parenthood, there have always been those who are concerned about the potential for exploitation, although in practice the vast majority of surrogacy arrangements are positive for all. Exploitation can be on both sides. It should not be forgotten that for many intended parents surrogacy is an option which is only explored after an arduous, exhausting, devastating and expensive journey.  (The Commission was not aware of any UK cases of surrogacy being used for elective reasons rather than out or medical necessity).  The report clearly considers the risk of exploitation at every stage and the recommendations are drafted so as to minimise this as far as possible.

It is encouraging to see the publication of these reports, nevertheless there is a lot to consider pre and post conception in relation to modern parenting, fertility, surrogacy and legal parenthood. We have built up expertise and experience in this area and are here to support you.

[1] https://www.who.int/news/item/04-04-2023-1-in-6-people-globally-affected-by-infertility

[2] https://www.bailii.org/ew/cases/EWHC/Fam/2013/1901.html

[3] https://www.bailii.org/ew/cases/EWHC/Fam/2015/2602.html

[4] https://www.lawcom.gov.uk/project/surrogacy/

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Business Contracts in Uncertain Times: 4 Terms with increasing importance in 2023

Uncertainty is permeating the business landscape of 2023.

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21 March 2023
TV Edwards Blog
Blog Dispute Resolution

Uncertainty, already the defining word for the economy in 2023

With ongoing strike actions across the country, record high inflation and now with concerns in the banking sector, uncertainty is permeating the business landscape of 2023. Uncertainty can spell doom for businesses unprepared for it but also significant opportunities for those willing and able to navigate it.

In order to survive this rapidly changing landscape, flexibility is more important then ever and businesses will be looking again at the reliable contract to assist them.

Contracts are essential for transactions ensuring certainty of supply, costs, and sales. However not all contracts are equipped to handle changing circumstances and rising costs. Of course, renegotiating and varying contracts can help updating older contracts for modern circumstances, but negotiating a settled contract again can just increase costs and relies on the other party agreeing.

This is why incorporating adjustable and flexible features into contracts can be lifesaving for businesses in difficult climates. In light of this, here are four terms businesses should be considering for their contracts in 2023.

Price Variation

The rapid rise of inflation has ballooned costs for many producers and suppliers. However long-term supply contracts might not have been adjusted for the new operating costs and the costs of materials.

A price variation term could assist in this case. A term like this could automatically adjust the prices a purchaser pays for your businesses goods, potentially pinning it to inflation. This could allow the offsetting of increased costs, to be ingrained in the contract from the start ensuring profitability even as prices rise.

Without such an express term it may be likely that any such increase would require renegotiation, incurring costs and taking valuable time.

Interest for Late Payments

With rising inflation, comes rising interest rates to try and tackle it. This can pose a problem for businesses as many contracts stipulate that interest is to be paid on late payments and this is often tethered to interest rates.

Now with swiftly rising interest rates this could pose a problem for businesses, should they fail to make a payment on time the associated interest would be far higher than they may previously have anticipated. To combat this, adjusting this contract term to adjust less relative to interest rates, could prove critical for businesses if they have been struggling paying monies due.

This would require negotiation when drafting the contract, however as it is likely to be of the most impact on one’s business when the business is suffering the most, it is essential to consider it during the drafting stage.

No Fault Termination

With turbulence and instability, comes unexpected costs and change of circumstances. This is why having a flexible contract is essential, and the most flexible contract is one that can be ended for no fault. Without an express term ending a contract, it can only be ended should both parties agree. This means that if one finds themselves unable to afford a contract’s obligations, one could still be burdened with fulfilling those obligations under threat of being sued for losses.

This is the benefit of a no-fault termination clause, this allows a party to a contract to terminate it at any time without imposing fault for the termination on either party. These can come with risks, particularly if the other contracting party is also able to access this clause it can mean contracts might be terminated against your wishes.

Altogether however, a no-fault termination clause can be a very useful tool in navigating economic uncertainty.

Alternative Dispute Resolution Clause

Even parties with the best of intentions can end up in disputes particularly in economically uncertain times. Litigation can be time consuming and costly, so when there is a dispute, it may be preferable to arrange an alternative means to resolve it.

Alternative dispute resolution (ADR) are alternative paths to litigation which can lead to legally binding resolutions. There are two main paths of ADR, these are mediation and arbitration. Mediation involves a mediator who is not involved to make a decision on the matter but is working with both sides of a dispute and attempting to find common ground and ultimately to assist in reaching a mediated agreement, which can be legally binding. Arbitration, on the other hand involves an arbitrator, unlike a mediator they do make a final decision on the matter which is legally binding.

The advantage of these methods are that they are often significantly cheaper to use, faster to resolve and can result in confidential settlements. However, to pursue these legal routes it requires agreement between the parties, which may not always be forthcoming, but express terms in a contract can require using one of these methods. Such an express term could require the parties to use either method of ADR before pursuing litigation through the courts.

Why these are needed, Breaches of Contract

Considering how one would enforce a contract, is just as important as considering what is in the contract. Breaching a term of a contract can lead to damages being sought, while enforcing a breach can lead to significant legal costs not all of which may be recoverable.

That is why considering these above terms is growing in importance and ensuring that they are well drafted is more important than ever.

Our dispute resolution department understand the issues which are facing businesses throughout the country, and we are well placed to bring our years of expertise into the work we do assisting with issues exactly like these. We pride ourselves on handling dispute resolution cases, with excellence, diligence, and an eye for business.

Should you need assistance with drafting a contract, enforcing a contract’s terms, or navigating alternative dispute resolutions, please contact our dispute resolution team.  

TV EDWARDS SOLICITORS LLP

Who needs to pay for their care package?

A lot of people are likely to think that there is no charge for care services

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13 March 2023
TV Edwards Blog
Blog Community Care

Who needs to pay for their care package?

When you are or a loved one is offered a care package by the local authority Adult Social Services department you may be concerned about whether you/your loved one will have to pay for the care services, and if so, how much the local authority will charge. Charging for adult care is a complicated issue that has a huge impact on anyone needing a care package. This article explains more about this issue.

A lot of people are likely to think that there is no charge for care services, or if there is, it would only apply to people who have plenty of disposable income. What people often don’t realise is that even people with no savings and on very low incomes will usually be asked to contribute to the cost of their care packages arranged by Social Services.

These care charges depend on the policy of the local authority that provides the care package but also on national rules.

There is also a means test under the Care Act 2014. This was meant to be reformed this year to increase the capital limit (above which a person has to pay for their own care), from the current limit of £23,250 to £100,000. However, in a recent announcement the Government has delayed this change to 2025.

Also delayed was the plan to introduce a lifetime cap on care costs. (The lifetime cap means the amount of money a person will have to pay in total towards the cost of their social care over their lifetime, no matter what savings they still have or the value of their property.) The lifetime cap will be set at £86,000. However, at the moment, there is no lifetime cap on charges. Therefore, it is important that anyone who is assessed as having to pay towards their care package has a detailed financial assessment, where they can explain their daily costs and especially their Disability Related Expenditure. This can help to bring the charges down.

There are some types of care package that must be provided free of charge:

Reablement care

Reablement care is a temporary care package usually provided when someone comes out of hospital and needs a higher level of care for a short period of time to get them back to their best possible level of functioning. This is meant to be free of charge, whatever a person’s income or savings or the value of any house or property they own.

Continuing Healthcare

Continuing Healthcare (known as “CHC”) is free health and social care provided by the NHS in a care home, nursing home or in a person’s own home. Because it is NHS funding there are no contributions to pay, and it is not means-tested. If a person qualifies for CHC then all of their social care is paid by the NHS.

To obtain this funding, you need to be assessed under the Decision Support Tool (or “DST”), which is a formula for rating each of a person’s needs (known as “domains”) such as behaviour, mobility or nutrition. There are often disputes about the outcome of such assessments and there is an appeals process.

Section 117 Mental Health Act 1983 funding

Aftercare under section 117 of the Mental Health Act 1983 is another form of care funding that is meant to be free and available for anyone who has been detained under the Mental Health Act 1983 for treatment and who has on-going mental health needs. Like CHC, this is not means-tested and should be provided free of charge.

What our solicitors can do

Our solicitors can advise you on complex funding disputes, using their experience of current funding policies and public law. They can help you to appeal or advise you about judicially reviewing funding decisions or unlawful funding policies.

Associate solicitor, Monica Kreel, has secured refunds for a number of disabled clients in circumstances where they should have been receiving care free of charge under Continuing Healthcare, under a reablement care package or under section 117 of the Mental Health Act 1983.

Case study

Monica Kreel supported a client to receive a very substantial refund of fees.

Mr N was placed in a nursing home by the local authority and the local NHS Mental Health Trust. He had previously been detained under section 3 of the Mental Health Act 1983, meaning that he was entitled to receive free aftercare under section 117 to prevent a re-admission to a mental health hospital.

In 2020, his care was reviewed and he was told that his mental health aftercare would only cover some of his care package but that his other needs, due to his dementia and physical frailty, would be met under the Care Act 2014. Although he had a very modest amount of savings, he was assessed as having to pay over £350 per week towards his care.

The review was meant to be “an initial assessment” subject to a full review six weeks later. Close scrutiny of his personal records by his solicitor revealed that the sic week review had never taken place. Following a detailed complaint submitted on his behalf by his solicitor the council and NHS Trust agreed to fund the complete care package and refund all of the fees he had paid – over £33,000.

Please contact our team on enquiries@tvedwards.com or 020 3440 8000 to see if we could help with your situation.

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Doctrine of Frustration

Global events in the last few years have made it increasingly difficult for companies to fulfil their contractual obligations.

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10 March 2023
TV Edwards Blog
Blog Dispute Resolution

The Doctrine of Frustration

Global events in the last few years have made it increasingly difficult for companies to fulfil their contractual obligations. As a result many businesses have had to consider whether they can delay their obligations under a contract without inviting a breach of contract claim. In specific circumstances the doctrine of frustration may come to a business’ aid.

In the ordinary course of events if one party fails to perform their key obligations under a contract they will be liable to pay damages as a result of the default.

However, the doctrine of frustration establishes an exception to the general rule. The doctrine of frustration is triggered when an unforeseen event makes performance of the contract impossible or the contract itself has become something radically different from what was contemplated by the parties at the time it was entered into.

A contract is effectively brought to an end if the ground of frustration is successfully relied upon. Unlike some other doctrines there is no specific or narrow test for establishing frustration. The court takes a broad approach when considering frustration and will consider all the facts and circumstances of the case. That being said there are some general key factors which will be common to almost all frustration matters:

  1. The frustrating event occurred after the contract was formed.
  2. The frustrating event is not due to the fault of either party to the contract.
  3. The frustrating event results in performance of the contract being completely beyond what either party had in mind when the contract was formed and the impact of the event strikes at the root of the contract.
  4. The frustrating event means that further performance of the contract is impossible, in some cases illegal or makes it drastically different from that contemplated by the parties.

In certain cases, a party may have already paid money to another party under the terms of the contract prior to the frustrating event. In such circumstances it may be possible to recover such monies if the contract comes within the Law Reform (Frustrated Contracts) Act 1943 and certain elements of the act are satisfied. Further, under common law a party may also be able to recover sums paid but only if there is a total failure of consideration.

It is important to note that the Law Reform Act can be contracted out of and does not apply to certain contract.

Recent cases involving the doctrine of frustration have shown that the threshold to be met in order to satisfy the doctrine is high. As such it is important for businesses to carefully examine contractual clauses prior to entering into them.

If you think that the doctrine of frustration may apply to a contract you are a party to or need general advice as to a potential contractual dispute, please contact our Dispute Resolution department.

TV EDWARDS SOLICITORS LLP

Estimating the quantity of drugs sold

How do the police estimate the quantity of drugs that have been distributed via a drugs line?

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15 February 2023
TV Edwards Blog
Blog Criminal Defence

How do the police estimate the quantity of drugs that have been distributed via a drugs line over a given period of time?

Over the course of the last year, we are now seeing this done using an algorithm that was designed by the Metropolitan Police and an organisation called Forensic Analytics. The algorithm analyses the call data for a telephone number suspected to be used as a drugs line.

In 2020, the Home Office produced a review of drugs. According to Public Health England, on average a drug user consumes 0.4 grams of crack-cocaine and 0.5 grams of heroin a day. Using the information from the call data, the police will determine how many customers a day have contacted the drugs line, and therefore forecast how many grams of crack-cocaine and heroin were supplied in a day. Following on from this, the police will quantify the volume of drugs sold by the line over a given period of time.

police car

Why is this important for our clients?

In short, the quantity of drugs that has been supplied will have an impact on the sentence that is passed. This is significant because it can move a person from one sentencing category to a higher category, which may add a few years to the final sentence that is passed.

Our expert criminal defence solicitors have experience of successfully challenging this type of evidence and the assumptions that have been made by the police. We are passionate about what we do, and unsurprisingly we have a national reputation for delivering first class legal services. Get in touch with our team today to discuss your case.

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Important guidance on seeking a stay of an order pending the hearing of a permission to appeal application

By Gemma Adams

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6 February 2023
TV Edwards Blog
Blog Family

Mostyn J handed down judgment on 23 December 2022 setting out what factors should be considered when an application to stay (provisionally stop something that has been ordered from happening) has been made before permission to appeal a judgment has been considered.

Background

Proceedings concerned a boy aged 2 years and 10 months, referred to as “HH” in this judgment. His father applied for a child arrangements order seeking to spend time with HH. The mother opposed this application, alleging that the father has sexually and physically abused HH. A fact-finding hearing was heard for 6 days before Recorder Wood KC. This is a hearing where the court hears evidence about allegations made by either party and determines whether they are true or not on the balance of probabilities (more likely than not that the alleged incident happened). Judgment was handed down on 11 November 2022, and the court determined that the father had not sexually or physically abused HH. At the time judgment was given, the father had not had any direct (face-to-face) contact with HH for over a year, and so the judge directed that the father should have direct, unsupervised contact, initially for one hour, twice a week, commencing on 26 December 2022.

What did the mother do next?

On 5 December 2022, the mother filed a notice of appeal in the High Court seeking to challenge the findings made and alleging that she was subject to procedural unfairness during the hearing. The mother sought a stay of the proceedings, and a stay on any direct contact happening between HH and his father. On 16 December 2022, the President of the Family Division considered the application, and gave the mother until 13 December 2022 to file perfected grounds of appeal and a skeleton argument in support. He did not deal with the mother’s application for a stay and so the mother’s solicitors emailed the court, seeking that this be dealt with urgently, given that the date for the father’s first contact was fast approaching. This application was then considered by Mostyn J on 23 December 2022.

Important to note – Mostyn J states that it is not clear whether the mother sought permission to appeal from the trial judge when judgment was handed down, and that although the rules do not require this, it is good practice to make such an application as stated by the Court of Appeal in P v P (Variation of Post-Nuptial Settlement) [2015] EWCA Civ 447 per Jackson LJ at [68]. Mostyn J went further and said that it would be “extremely bad practice” to not seek permission to appeal, and a stay (where applicable), from the trial judge, preferably at the time that the judgment is handed down.

The following five principles as set out by Mostyn J in NB v London Borough of Haringey [2011] EWHC 3544 (Fam) should be considered:-

  1. Take into account all the circumstances of the case;
  2. A stay is the exception rather than the rule;
  3. The party seeking a stay should provide cogent (clear/logical) evidence that without a stay the appeal will be “stifled or rendered nugatory (of no value or importance)“;
  4. Apply a balance of harm test which considers the likely prejudice to the successful party;
  5. A stay should only be considered where there are strong grounds of appeal, or a strong likelihood of success is shown.

Mostyn J states that these principles should apply forcefully where the application for a stay is being considered alongside the application for permission to appeal, whether by the trial judge, or appeal court. If permission to appeal is refused, then a stay will also be refused unless the appeal court decides to allow it pending any oral renewal hearing that the applicant is entitled to seek under FPR 30.3 (5).

What happens if the application for a stay is considered before permission to appeal is determined?

Mostyn J states that it would be inappropriate and fraught with potential error, for the appeal court to determine the fifth principle above (strength of the ground/likelihood of success) because this would pre-empt the permission to appeal decision, that the stay is seeking to preserve. The court should only be thinking of awarding an interim stay until the permission to appeal application can be considered by the appeal court.

The court granting an interim stay would not require proof of strong grounds of appeal or likelihood of success. When considering an interim stay, the court need only be satisfied that the grounds of appeal are not fanciful. The focus should be on whether refusing the interim stay would mean that the appeal is nugatory (of no value of importance). The issue here is whether the father should be having direct contact with HH and if a stay is not granted, and that contact took place, in effect, it decides the very subject matter of the appeal. Mostyn J states that whatever he may think about the reasonableness of the mother’s stance, or her likelihood of success, if a stay is not granted, her proposed appeal is pre-emptively extinguished. If this is the consequence, then the court should normally grant the interim stay.

Summary

The court should only award an interim stay pending the decision on permission to appeal where:-

  1. The grounds of appeal are not fanciful; and
  2. Where implementation of the order pending the permission to appeal decision would irreversibly extinguish the viability (likely success) of the proposed appeal.

Where an interim stay is awarded, the court should give directions to list the permission to appeal application at the soonest opportunity and for the respondent to make submissions (legal arguments) in writing under FPR PD 30A para 4.22 as to whether permission to appeal should be granted and/or a full stay awarded.

What did the court decide in this case?

Mostyn J decided that the grounds of appeal were not fanciful and an interim stay was granted.

Contact our expert team of family lawyers

Should you need advice on child arrangements orders we have a large expert team of lawyers who would be happy to assist. We can be contacted on 0203 440 8000 or by email: A_FamilyReferrals@tvedwards.com

By Gemma Adams

Related Services:
Family Finance Solicitors Child Arrangements Solicitors
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