Churchers Solicitors Change Skippers - Duncan Johnson Hands the Ropes to Ian Robinson

It’s all change at the top as Churchers Solicitors new Managing Partner Ian Robinson takes the helm from Senior and Managing Partner Duncan Johnson, who semi-retired from the firm in December 2006, after 38 years.

Duncan Johnson’s career at Churchers began in 1968 when he was head-hunted to join the Gosport office. He subsequently moved to the Fareham office in 1970. Duncan managed the firm under the previous senior partners for about ten years and was then formally elected Managing Partner in 1992. As such he was instrumental in creating the current departmentalised structure and in achieving the Lexcel and Legal Aid Kitemarks.

Ian Robinson took over as Churchers’ Managing Partner in January 2006 to Duncan’s great relief, as he has since been able to focus purely on client work.

However, Duncan will not be retiring from the firm entirely, as his partners have kindly agreed to let him “sneak back under the wire” and work as a Consultant for his private client base from 1st January 2007. He comments:

“The strength of this partnership, coupled with Churchers’ friendly atmosphere and devoted staff are the most valuable assets of the firm.”

Duncan is married to Lizzie and they have four daughters and five grandchildren. He enjoys sailing, gardening, cooking, cycling, reading, France, learning Italian and fine wines.

Ian Robinson joined Churchers in 1992 to specialise in criminal defence. The growth of the Criminal Department led to the creation of a bespoke Litigation / Criminal office in Portsmouth in 1998, headed by Ian. Churchers now have the largest Criminal department in Hampshire.1

Ian was made a Partner in 1998 and became Managing Partner in January 2006, after his office as Commodore at his local sailing club came to a close, enabling Ian to dedicate his attention to Churchers’ business development.

Ian’s vision for the immediate future is to hone the creation of specialist departments which Duncan Johnson began and to develop a uniform style and approach across the firm.

Churchers also recently promoted their Company Commercial department with a seminar at the SpinnakerTower in response to demand from the growing commercial sector market in the Portsmouth and surrounding areas.

Ian Robinson comments:

"We are ideally placed geographically and structurally to meet the legal needs of Hampshire’s expanding commercial sector. Our aim for Churchers is to maintain our approachability and accessibility to private and publicly funded clients, whilst growing the Commercial arm of the business."

Ian lives in Lower Swanwick, Hants with his wife; he has a son aged 23 and a daughter aged 20. He enjoys sailing and harbours a passion for classic British sports cars.

John Guest will assume the role of Senior Partner at Churchers from 1st January 2007.

Employees’ Rights – Transferring a Business

If you have ever been involved with the sale of a business, you might know that employees’ rights are protected under regulations known as TUPE. The Government has just published new regulations in this area which come into force on 6th April 2006.

The regulations aim to clear up some grey areas and make things more certain in this field. The Transfer of Undertakings (Protection of Employment) Regulations 1981 are amended by the new regulations and the changes:

• Extend TUPE to cover additional areas where services are provided but not where they are just provided on a one-off basis


• Require the old employer to provide the new employer with details of any employment liabilities - if this is not done compensation can be awarded against the old employer


• Introduce new flexibility where there is a transfer of insolvent businesses


• Clarify the circumstances in which employers and employees can change the terms and conditions of employment for "economic, technical or organisational" reasons


• Clarify the circumstances under which it is unfair for employers to dismiss employees for reasons connected with a relevant transfer

Call Andrew Bryan on 02392 210 170 for further information or help when you sell or buy a business.

Buying and Selling a Business

Many of our local business clients buy or sell businesses. Sometimes they own a limited company and sell its shares and sometimes its assets and in other cases they trade in partnership or as a sole trader and are selling assets to the buyer. John Guest says:
“We provide advice and guidance on business sales and purchases and can ensure you are properly protected legally in all contractual documents relating to the sale or purchase. In June, the Office of Fair Trading issued a consultation in revised guidance in merger cases. Some mergers, particularly in narrow local markets where the parties’ market shares are over 25%, may need to be cleared by the OFT.

Under the Enterprise Act 2002, the OFT has a duty to refer certain mergers to the Competition Commission. The exception allows the OFT to decide not to refer where the markets involved are not of sufficient importance to justify a reference. Existing guidance suggests that the OFT may consider a merger in a market worth as little as £400,000 per year to be of sufficient importance to justify a reference to the Competition Commission. The revised guidance raises the market size threshold to £10 million. Many other legal issues relating to a sale of a business arise, including protection for employees under regulations known as TUPE 2006.
Call John on 01329 822333 for further information.

Notes

1. Since real consumer harm can arise in cases below that threshold, it is subject to certain caveats. Specifically, the OFT is less likely to make use of the exception where:
   - market concentration is very high and entry prospects are low, making substantial consumer harm likely
   - there is evidence of coordination, such as price-fixing, between competitors in one or more of the markets in question
   - a reference would have important precedent value for business, or
   - a substantial proportion of the likely detriment is suffered by vulnerable consumers.
   
2. The OFT decided to review its guidance in this area because it was concerned that an unduly narrow interpretation of the exception might result in mergers being referred to the Competition Commission where the risk of consumer harm was low and any adverse effect would be small-scale. In such cases the costs involved potentially outweigh any benefit of intervention. This concern has been heightened by the impact of the Court of Appeal’s judgment in IBA Health.
   
3. The consultation paper is at http://www.oft.gov.uk/shared_oft/consultations/oft933con.pdf
   
4. The deadline for comments is 10 August 2007
   
5. Under current law, the OFT has a duty to make a reference to the CC if the OFT believes that it is or may be the case that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation; and the creation of that situation may be expected to result in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services.
   
6. In its February 2004 judgment in IBA Health v OFT [2004] EWCA Civ 142, the Court of Appeal criticised the OFT Guidance in force at that time, which described the threshold test for reference as whether there was a ‘significant prospect that a merger may be expected to lessen competition substantially’, as setting too high a threshold for reference.
   
   As a result, OFT guidance was revised, and it now states that the threshold for reference will be met if there is a 'realistic prospect that the merger will lessen competition substantially'.
   
   The effect of the judgment, and the change in OFT guidance, is widely regarded as having lowered the threshold for references and, consequently, having made reference in marginal cases more likely.
   
7. Under the Enterprise Act 2002, a relevant merger situation is created if two or more enterprises have ceased to be distinct enterprises; and the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million or, as a result of the transaction in relation to the supply of goods or services of any description, a 25 per cent share of supply in the UK (or a substantial part thereof) is created or enhanced.
   
8. Reference should also be made to the existing 'Mergers: substantive assessment guidance' and 'Interim arrangements for informal advice and pre-notification contacts'. The latter sets out the OFT interim practice since April 2006 on the provision of informal advice for proposed mergers.

Recycling of Electrical Waste

ON 1st July, the UK brought into force the EU Waste Electrical and Electronic Equipment (WEEE) Directive. This imposes new requirements for the disposal of electrical waste. Ian Robinson says:-

“The WEEE directive covers a wide range of products such as:

• Large household appliances: fridges, freezers, microwave ovens, washing machines
• Small household appliances: vacuum cleaners, toasters, coffee machines, electric toothbrushes
• IT and telecommunications equipment: PCs, laptops, monitors, keyboards, printers, cordless phones
• Consumer equipment: radios, TVs, DVD players, video recorders etc
• Lighting equipment: low-energy Compact Fluorescent Lamps (CFLs) are classified as WEEE
• Electric tools: all tools such as drills, saws, sewing machines. Only large, stationary industrial tools are exempt
• Toys, sport and leisure equipment: electric trains, game consoles, cycle computers etc
• Medical devices: implanted or infected products are exempt
• Monitoring and control devices: smoke alarms, thermostats etc
• Automated devices: this classification covers all appliances that automatically deliver products, e.g. drinks, food, money etc.

Businesses which sell these items can either give consumers the right to return the goods to the shop when they are going to be thrown away in replacement for a new item or they can opt to fund centralised recycling. There are at least 36 different "producer compliance schemes" manufacturers and importers can join. The schemes arrange collection, delivery and disposal of affected waste without further charge to the customer. The average cost of each device subject to the regime is estimated to be less than GBP1 per item sold.

Many of our clients will be affected by the new rules. Call Ian on 023 9286 2424 for further information.

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Notes

Information the WEEE regulations is on the website of the Department for Business, Enterprise and Regulatory Reform (formally the DTI) at http://www.dti.gov.uk/innovation/sustainability/weee/page30269.html
Many trade associations also provide some guidance to their members on this topic.

No Smoking

Since 1st July 2007, it has been against the law to smoke in enclosed or virtually enclosed public places and workplaces, including vehicles. Andrew Bryan says:

"We have been advising local businesses on the new law. They need to make sure they have the following:

• All the required no smoking signs in place
  
• Staff, customers, members or visitors are aware that the premises and vehicles are legally required to be smoke free


• All existing smoking rooms have been closed or removed

It is now against the law to smoke in most enclosed and substantially enclosed public places and workplaces. Some local councils are considering banning it in public parks too. Premises are “enclosed” if they have a ceiling or roof and are wholly enclosed either on a permanent or temporary basis (except doors, windows or passageways). Premises will be considered substantially enclosed if they have a ceiling or roof, but have an opening in the walls which is less than half the total area of the walls. The area of the opening does not include doors, windows or other fittings that open or shut. A smoking shelter that has a roof, back and two sides will be substantially enclosed.

If a company decides to provide a unenclosed smoking shelter, it must check with the local authority as there may be planning permission required, licensing, building control and noise issues to consider. Private clubs and company cars are also subject to the ban. Those using their home for work purposes will also have to abide by the rules in those places where clients or customers go, and will need to put up No Smoking’ signs. On the spot fines of £150 can be imposed, as well as other penalties."

If you want legal advice on these new rules or any other health and safety issue relating to your business call Andrew on 023 9221 0170.