Do I need both?
Increasingly we are seeing clients dispensing with shareholder agreements at the time of incorporation and setting out key provisions, such as share rights and leave provisions, in articles of association only. Shareholder agreements are then introduced at the time that material third party investment is introduced into the company.
Are you able to advise me on commercial contracts in the wealthtech sector?
Yes, we act for WealthTech businesses on all kinds of commercial contracts including B2B contracts bespoke to robo-advisers and WealthTech providers, partnering agreements and standard terms and conditions of business. We also advise on data protection, cyber security and GDPR within financial services as well as intellectual property and brand protection.
What are the main issues to consider in SaaS agreements?
There are a number of factors which need to be considered when negotiating SaaS agreements. These include:
- Is the agreement B2B or B2C?
- How many users will be permitted to use the solution?
- Will the SaaS solution result in the processing of personal data? If so, data processing provisions will need to be included.
- What provisions are included to protect your IPR.
- What provisions are included to limit liability and manage legal risk.
- As a customer, do you require service levels and service credits to be included?
- Are there industry-specific regulations which need to be complied with?
We are experienced negotiating SaaS agreements from the customer and supplier side and assist with any queries you may have.
Do you handle both regulatory and criminal investigations?
We have built a specialist practice that is able to deal with the full spectrum of regulatory and criminal investigations in the financial sector. Our team includes solicitors and barristers who have substantial law enforcement experience and who have been enforcement lawyers, investigators and prosecutors prior to joining our team.
We are regularly engaged in relation to investigations and enquiries brought by the UK Financial Conduct Authority (both regulatory and criminal), the Prudential Regulation Authority, the Serious Fraud Office, various national police forces, HM Revenue and Customs and other specialist law enforcement agencies. We represent our clients at all stages of investigations including scoping, initial interview (whether voluntary, compulsory or under the Police and Criminal Evidence Act) and in subsequent action. Our team has deep experience of attending before regulators, at police stations and before all relevant courts and tribunals involved in the conduct of financial market investigations.
Do you act for both regulated firms and individuals subject to financial markets investigations?
We have expertise in acting for any party subject to an investigation in the financial markets. Our clients range from the largest global financial institutions through to national and regional financial services firms. We also act for individuals who may work at or control such firms and who may also be subject to regulatory investigations.
We are one of the few firms recognised in all the major legal directories for our expertise in acting both for corporate and individual clients. We recognise that our specialist service needs to be tailored to our clients’ needs and the resources they have available. We offer a tailored approach to the circumstances facing our clients and ensure the legal and reputational risks they face are mitigated.
We need day to day compliance support. Can you help us with that?
If you need to know what a particular PRA or FCA rule means; or whether particular arrangements are rule compliant, we can help. If you need help working out how best to respond to questions from the regulators, we can help with that too. We can’t help with routine compliance activities, compliance monitoring, compliance auditing or the detailed design of new systems and controls. We may, however, be able to introduce you to a compliance consultant who can.
We’re selling online to consumers, are there any regulations we need to be concerned about?
There are a number of laws which aim to protect consumers in the context of online sales in the UK and across the EU generally. At a high level, these rules seek to provide a level playing field for customers, including by ensuring the terms of any consumer contract are “fair” (if not, they will be unenforceable) and by providing for certain mandatory terms to be implied into consumer contracts. Failure to comply with these requirements could lead to complaints and regulatory action. We regularly advise on all aspects of e-commerce and can provide tailored advice as required.
What types of financial market investigations do you handle?
We handle the full spectrum of investigations that occur in the financial markets. We act for firms and individuals in the fields of banking, insurance, investment, payments and fintech.
Our recent investigatory experience includes a wide variety of matters which include: financial mis-selling; serious fraud and money laundering; conduct of business failures (including pensions transfer and discretionary investment management investigations); insider dealing and market abuse investigations (including market manipulation); payment services fraud; and systems and controls investigations amongst others.
Can you help us with an application to the PRA / FCA?
We can, if there’s something especially novel about it; it’s unusually complex; or there’s a reason to think it might be rejected. If there isn’t, you probably don’t need a law firm, but you might need a compliance consultant.
If the compliance consultants need legal advice about something, we certainly help with that.
We can also help if the regulators ask you to get legal advice about an issue, before sharing this advice with them. For example, the regulators sometimes ask applicants (a) to get legal advice, which explains why they need to be authorised and regulated, and which particular regulated activities they need to be authorised for; and/or (b) to get a legal opinion, which confirms the regulatory capital status of their shares, and any other financial instruments they might have issued. Advice like that is right up our street.
We are going to supply a new customer in Italy. How can we ensure that we are paid?
The starting point is to ensure that your contract with this customer includes provisions which set out both the payment terms and the terms on which you will supply. This is to ensure that your customer cannot refuse to pay by disputing that you have not fulfilled your side of the bargain! Subject to this we can advise on various payment scenarios ranging from requiring payment in advance to using letters of credit to obtaining a bank guarantee, to just issuing an invoice following your supplying the customer. It depends on the level of risk with which you feel comfortable.
We are putting in place a distributor network throughout EMEA. What should we be thinking about legally?
As a starting point you should think about ensuring that the distributor network will not infringe competition law, which could expose you to hefty fines. It is therefore crucial to assess the proposed network under both UK and EU competition laws as well as the national competition laws of countries outside of the EU and the UK where distributors will be based. We recommend that local law advice is taken in the countries where the distributors will be based because many countries outside the UK provide legal protections to distributors, including a right to payment of compensation on termination.
Do you provide advice on property development?
Yes, we advise on property development. The Fox Williams Real Estate team has extensive experience acting for landowners, investors and developers on the acquisition and redevelopment of property for development purposes. We can advise on all elements of the transaction, including acquisition of the development sites, negotiation of development agreements and construction documentation. We help ensure that our clients obtain good value for money and we give careful consideration to whether the property is suitable for any proposed development.
Our French sales agent is acting for a competitor. Can I terminate the agency contract?
Yes – but we will need to check whether English law applies to the agency contract and whether there are any terms in the agency contract which prohibit the agent from acting for a competitor (whether expressly or impliedly). Even if there are no such terms, the agent may be in serious breach of its statutory duties and/or fiduciary duties to you by acting for a competitor, which might enable you to terminate the agency contract. However, we will need to assess the factual circumstances before you take any action.
What is a “schedule of dilapidations” under a commercial lease?
A schedule of dilapidations is a detailed list of items that the landlord believes require repair, reinstatement or redecoration in accordance with the tenant’s obligations in their commercial lease.
It is generally prepared by landlords (or their surveyors) at the end of the term of the lease. The schedule will usually be served by the landlord on the tenant once they have vacated the premises. As such, instead of requiring the tenant to carry out the works, the landlord will usually require that the tenant pays the costs of the works to them.
A tenant may contest the landlord’s schedule and it can therefore quite quickly turn into a dispute. We regularly advise both landlords and tenants to help ensure that the parties are aware of their rights and obligations before matters become contentious. If, however, you do become involved in a dilapidations dispute, whether you are a landlord or a tenant, our experienced team will guide you through the process and will work closely with your surveyor to deliver practical, commercially driven advice throughout.
We are considering an AIM IPO. Can you assist?
Yes. Our capital markets group has extensive experience of AIM transactions and advise on a broad range of transactions including IPOs, secondary fundraisings, M&A, corporate governance, shareholder engagement and shareholder activism.
Is it worth suing someone with no money?
Almost never. If someone you are suing has no money or other assets in England and Wales which could be used to pay you, there is no way to recover your debt and will just be incurring additional costs in the attempt. If you are aware that a person or company which owes you money is going through bankruptcy or liquidation proceedings, you should register as a creditor in order to stand a chance of recovering your debt as part of those proceedings.
Do you advise on Hotel Management Agreements?
Yes, we act on behalf of a number of hotel owners and advise upon Management Agreements with operators, development, branded residences, food and beverage (F&B) and finance. The work we undertake involves both UK hotels and international hotels. We advise clients in respect of hotel acquisition, disposals and refinancing. We also advise hotel owners on ownership and leasing structures.
Do you advise on commercial tenant non-payment of rent?
Landlord and tenant work is one of the cornerstones of our practice and it is a fact of life that disputes can and do arise. We are perfectly placed to assist our landlord and tenant clients with all aspects of disputes concerning rent recovery. Because we are frequently instructed by landlords and tenants, we are able to understand the perspectives not just of our clients but also of our opponents, which means we are quick to understand and deal with any points raised against us in a dispute. We can advise on and execute the full range of landlord’s remedies for default, including court proceedings, forfeiture, Commercial Rent Arrears Recovery (CRAR) and possible avenues concerning insolvency.
We always approach a dispute commercially and pragmatically in seeking the best course for our clients based on the facts of every individual dispute. We do not litigate where to do so would not be in our client’s interests, yet we can do so decisively and aggressively if the situation demands it.
Why do barristers’ chambers need employment advice if barristers are self-employed?
Barristers in private practice are self-employed but their chambers employ staff, such as clerks/practice managers, accounts staff and marketing specialists, and increasingly professional managers in the form of chambers directors or CEOs. Barristers themselves are also protected from unlawful discrimination under the Equality Act. We advise chambers on sensitive employment and discrimination law issues relating to their staff and members. We have a deep knowledge of barristers’ chambers’ culture and their challenges and have experience of advising chambers on everything from performance management and redundancies to dysfunctional clerks’ rooms and the mental health of members.
Can you advise on cross border mergers and acquisitions?
Yes, with the world so international most of our transactions involve an element of cross border work, whether an overseas buyer or the seller having operations overseas. We have excellent relationships with a range of international law firms with whom we work closely to ensure that your transaction is handled in a “joined up” manner.
How do I renew my commercial lease / should I have a commercial lease exit strategy?
The steps to renew a commercial lease will largely depend on whether the lease is within the Landlord & Tenant Act 1954 (the “1954 Act”) (and therefore the tenant has security of tenure – i.e. a statutory right to renew its lease) or whether it has been contracted out of the 1954 Act, meaning the tenant does not have a statutory right to renew its lease.
Leases within the 1954 Act
If a lease is within the 1954 Act the tenant has a statutory right to renew its lease at the end of the contractual term. A tenancy will not therefore automatically terminate at the end of the contractual term. There are different procedures for renewal, depending on whether the landlord or the tenant initiates the renewal. The landlord can initiate renewal by serving what is known as a section 25 notice on the tenant. The tenant can initiate renewal by serving what is known as a section 26 request on the landlord. It is imperative that this notice is valid and is validly served on the competent party.
Leases renewals within the 1954 Act have strict statutory time frames that must be adhered to – to miss a statutory deadline could mean a tenant loses its statutory right to renew its lease or a landlord could lose its ability to oppose a section 26 request. It is therefore imperative that contractual end dates are diarised, and solicitors instructed well before the contractual end date.
Leases contracted out of the 1954 Act
Leases outside the 1954 Act will automatically terminate on the contractual end date, unless both landlord and tenant agree to renew the lease. It is completely at the other party’s discretion whether it accepts a renewal lease and/or the terms on which the lease is renewed. There is no statutory procedure to follow – it is all down to negotiations between the parties.
As with leases within the 1954 Act, termination dates should be diarised, and discussions held well before the contractual end date if either party wishes to renew the lease. If a tenant continues to occupy the property post termination, from a landlord’s perspective it is vital that the basis of their occupation is formally documented.
When will I need to obtain my landlord’s consent?
Your lease will set out the specific circumstances in which you are restricted from carrying out certain actions at your property without first obtaining the consent of your landlord. The most common situations are on assignment or underletting, proposed change of use, when dealing with planning applications, and making alterations or additions to the premises.
We work with tenant clients to review the legal requirements of their lease and put forward formal applications. We also advise landlords on their obligations following receipt of a tenant consent application, which is particularly important in circumstances where they wish to refuse. We ensure that landlords are aware of their statutory duties, in conjunction with their contractual rights and obligations, and any commercial considerations. Failure to follow the correct processes, whether you are applying for or reviewing an application for a consent under a lease, can have costly consequences and we recommend that legal advice is taken at an early stage.
Do you advise on service charge issues?
Yes, we regularly provide advice to clients in relation to all aspects of service charges for both commercial and residential property. A service charge is a contractual mechanism for recovery by a landlord of the costs it incurs in running a building or development and providing services for the benefit of its tenants.
When it comes to initially legally documenting how a service charge will operate in practice, we work with clients to ensure that both the management mechanics and potential financial liabilities are clear and aligned with expectations. If a dispute arises in relation to service charges (for example, due to financial disagreements, or practical issues around repair and provision of service levels) we are experienced in advising clients in raising or contesting challenges in the context of their contractual rights and available statutory protections.
I would like to sell my company or business, can you help?
Yes. We have a strong team that is recommended by the legal directories for its mergers and acquisitions capability. We can also call in the expertise of several other specialist departments including tax and employment to deal with the legal issues which come up during the sale process.
What should a partner be concerned about when looking to move firms?
Partnership and LLP agreements often contain lengthy notice periods and onerous restrictive covenants. These are more likely to be enforceable than for employees, so partners will need to understand their legal position and need to carefully negotiate exit terms.
Partners and LLP members will have more stringent legal duties which will restrict any preparations to join or create a competitive business. These restrictions will often be expressly set out in the partnership or LLP agreement but will also be implied as part of the relationship between the partners and the firm or LLP. These might include fiduciary duties or obligations of confidentiality.
Do you advise on leases of commercial premises?
Yes. We act for landlords and tenants across the board – from institutional landlords to start up tenants, we can advise you on the terms of your lease. We advise clients from the Heads of Terms stage, reviewing and negotiating the terms of your lease and carrying out due diligence on the property (if required) to actually completing your lease and dealing with post completion matters such as stamp duty land tax and Land Registry requirements. We can also advise on standalone enquiries – such as break clauses and/or yield up provisions at the end of your term.
Do you advise on commercial real estate finance?
Yes, our specialist real estate finance team has significant expertise and regularly acts for lenders and borrowers on a wide range of real estate finance transactions for UK and overseas clients. We are very experienced in handling the full spectrum of real estate finance transactions from portfolio, development and acquisition finance and refinance to bilateral and syndicated loan facilities. We also work closely with colleagues in our corporate and tax teams to offer you comprehensive advice on the implications of property finance transactions. We adopt a commercially focused and proactive approach, taking the time at the outset to fully understand the client’s objectives, transaction structure and crucially, timescales for drawdown of funds and closing of the transaction. We will move quickly to resolve any issues in a timely, cost-effective manner, keeping you informed at every stage.
Are partners protected against discrimination?
Although partners and LLP members do not enjoy protection from unfair dismissal and other employee protections, they are protected against discrimination on the same basis as employees in connection with their partnership or membership and offers of partnership or membership.
My LLP does not have a members’ agreement. Is this a problem?
Not necessarily, but it is rare that the rules which apply to an LLP without a members’ agreement will be suitable. For example, there is no ability to expel a member from an LLP unless there is an agreement in place, even if that member is clearly guilty of conduct which would justify such an action. Also, the absence of a written agreement risks conversations and emails creating an agreement piecemeal, leading to uncertainty and potential confusion.
Do I need to incorporate if I am operating in the UK?
Incorporation is the process by which a new or existing business registers as a limited company. A business cannot operate as a limited company until it has been incorporated at Companies House under the Companies Act 2006. Incorporation generally involves preparing a number of documents and delivering them to the Registrar of Companies at Companies House and paying a small fee.
Which UK solicitors can help me establish my UK business?
Fox Williams understands first-hand the challenges, risks and opportunities involved in building and sustaining a business. The corporate group assists clients through all stages of their transactions, from mergers and acquisitions, venture capital and private equity to business crime and regulatory compliance. Our corporate lawyers have industry-specific knowledge and expertise in Financial Services, Technology, Travel, Fashion and other sectors.
What are the main UK legal considerations to consider?
There are both legal and commercial factors to consider when setting up a business in the UK. These include: choosing the right legal structure, exploring different funding options, understanding financial, accounting and tax obligations and protecting businesses through insurance policies, and making sure that the contracts into which you enter and the terms on which you do business work for you.
For overseas companies that wish to operate in the UK, there are additional considerations, such as how to take advantage of the UK’s new relationship with the EU.
Is there help in setting up a business in the UK?
When setting up a business in the UK, it is advisable to seek legal assistance to ensure that the process is as smooth as possible. The corporate team at Fox Williams is extremely well placed to assist you and, where relevant, introduce you to accountants and other third parties.
There are several websites that provide useful information regarding setting up businesses:
Are you a partner-led service?
Yes, our partners are involved throughout the transaction. They are supported by a strong team of associates and we ensure that the work is done by the right lawyer to achieve a cost-effective result.
What are the main stages of selling your business in the UK?
To start with you may be sent a “subject to contract offer”. If this is agreed you would typically then agree “heads of terms” or a “term sheet” to set out the proposed main terms. The seller would then typically populate a data room and respond to due diligence questions. Finally you move onto the negotiation of the main sale documents including disclosure against the sought warranties.
What are the main UK insolvency processes?
The main UK insolvency processes are:
- Company Voluntary Arrangement (CVA) or scheme of arrangement
- Administrative Receivership
- Strike off
If your company is in distress we offer expert legal advice and support to help you decide which route is best for your company and guide you through the process, driven by your commercial needs.
How do I re-possess my goods under a retention of title claim?
Our lawyers have extensive experience of advising creditors seeking to repossess goods or recover monies from insolvent companies under a retention of title claim. This would involve looking at the terms and conditions that govern the supply of the goods. It may also involve examining whether the claim has been lost because the goods can’t be identified or have undergone a process, and finally how the claim can be practically enforced if possible.
What is wrongful trading?
A company director risks becoming liable for a court-ordered contribution to the company’s assets if they have failed in their duty to take diligent steps to minimise loss to the company’s creditors, from the point at which there is no reasonable prospect of the company avoiding an insolvent liquidation or administration. This can involve the risk of the director being responsible personally for the debts of the company incurred whilst such wrongful trading was carried on.
At Fox Williams LLP we aim to provide practical advice to clients on issues such as how to avoid potential personal exposure of directors if their company fails financially.
How do I carry out a pre-pack rescue?
A pre-pack administration is the process by which a company is put into administration and its business/ assets are immediately sold to a third party by a licensed insolvency practitioner. The process can be invaluable in keeping a business trading, saving jobs and in providing a better return for creditors when compared to liquidation.
With our technical expertise in corporate pre-pack rescues, we will can recommend expert licensed insolvency practitioners who we will work alongside to provide you with advice and support throughout the pre-pack process.
What is the difference between administration and liquidation?
The key difference between the two processes is that if effective, administration will should lead to the sale of your business as a going concern. In liquidation, the company’s assets will be sold but not normally on a going concern basis to repay creditors before the company is dissolved completely.
Our specialist team of lawyers have years of experience in advising on insolvency issues, with in depth knowledge of administration and liquidation procedures, across a wide range of practice and sector groups.
How long do I have to bring a claim?
For breach of contract, the general rule is that if you wish to bring court proceedings, you must do so within 6 years of the date on which the contract was breached.
For negligence, the claim should be brought within 6 years of the date on which you suffered loss as a result of the defendant’s breach of duty.
The above time limits are just a general rule of thumb and we can advise you further on any limitation issues.
Will my claim be in the County Court or the High Court?
The general rule is that claims for £100,000 or less must start in the County Court, whereas claims for more than £100,000 may be started in the High Court. However, where a claim falls within the jurisdiction of the County Court the claimant may start it in the High Court if there is a special reason, such as complexity, to believe it would be better dealt with by a High Court judge. Without such a reason, claims worth less than £50,000 commenced in the High Court are usually transferred to the County Court.
How long does it take?
This will depend on the type of dispute, how complex it is and Court timetabling. We can provide advice specific to your dispute. Complex or high value disputes, typically those worth over £100,000, generally take over a year to reach trial.
How much will it cost?
This is entirely dependent on the circumstances of your case. For complex cases, this can easily run into hundreds of thousands of pounds or more. We can discuss potential funding options once we have discussed your case.
If I win, do I get my legal fees back?
The general rule is that the losing party pays the winning party’s costs. If the Court orders the unsuccessful party to pay the successful party’s costs, costs will either be agreed between the parties or assessed by the Court. The typical outcome is that the loser pays between half to three quarters of the successful party’s legal costs.
Do you advise in relation to commercial rent reviews?
Yes, and we strongly recommend that expert legal advice is taken at all stages of a commercial rent review process (including on commercial agreement and drafting of terms) often in conjunction with the expertise of a specialist surveyor. Traditionally, an open market rent review, usually on an ‘upwards only’ review basis, has been provided for in commercial leases and we are experienced in negotiating technical terms of the associated lease clauses for both landlords and tenants.
There are other options, however, and rent levels could instead for example be linked to the changes in the retail prices index. There is also an increasing trend towards ‘turnover rent’ leases whereby the rent is calculated by reference to the gross turnover of the tenant at the premises, with complex legal drafting requirements. A rent review may be determined by an expert or arbitrator in the event that the parties cannot reach agreement between themselves, and we also guide clients through these processes.
What happens if I sue someone and they don’t pay?
If you successfully sue someone and have a judgment against them, but they do not pay, you can apply to the court for enforcement of the judgment against them. There are a number of different ways this can be done, including allowing bailiffs to seize and sell assets, freezing the debtor’s money or assets or securing charges over their property so you receive the debt from sale proceeds when the property is sold.
What can I do in an emergency situation?
It is not uncommon for emergency situations to arise, where immediate action is required to protect you. We can help you in these situations by applying to the court for:
- Search and seizure orders – these orders allow us to search a defendants’ premises (in the presence of an independent solicitor) for crucial documents or items. This is usually done where a defendant is liable to destroy crucial documents and condemning evidence.
- Negative injunctions – these are orders that stop your opponent taking certain damaging action.
- Positive injunctions – these are orders that require your opponent to take certain positive action.
- Freezing orders – it may be possible to obtain an order to freeze your opponent’s bank accounts and assets to prevent those assets being dissipated or moved out of the jurisdiction.
I am being sued by a person or company who has no money, or is based in another country – what protection have I got?
As you may be sued at any time, by anyone, and for any reason and it costs money to defend that claim, no matter how confident you are of success or how hopeless the claim may be. If you win, the usual rule is that the loser would pay your costs, but you may be seriously concerned that the claimant would not able to pay any legal costs awarded against it. In certain circumstances, you may be able to make an application to the court early on that a claimant pays money into court as security for your legal costs that they may be ordered to pay if they lose.
The legal issues around security for costs are complex and we are able to provide further advice on the merits of such an application.
Do I have to disclose a document that is unhelpful to my case?
Yes, the rules are clear that you must disclose all documents within your control that:
- You rely on;
- Adversely affect your own case;
- Adversely affect another party’s case;
- Support another party’s case; or
- You are required to disclose by a relevant practice direction.
This duty extends to any documents you find at a later date as well. This means that an unhelpful document that comes to light after initial disclosure will need to be disclosed to the other side as soon as possible.
What is the difference between litigation and arbitration?
Litigation is the method of resolving a dispute where a judge decides a case in Court. Arbitration is similar to litigation, except an arbitrator (typically appointed by the parties) takes the place of a judge and it is not a formal court process. The outcome of arbitration is confidential and binding.
I want to purchase a property in London as an investment. Can you help?
Yes, we can help you with property investment in London. London continues to be a sought-after location for property investors both for international and domestic investors. We work with corporate investment vehicles, property investment arms and private individuals who are looking to invest in commercial and in some cases high end residential property. We help ensure that our clients obtain good value for money and a commercial investment that meets their objectives on appropriate terms. Once the investment has been made we stay alongside our clients to advise on other ongoing issues that arise for commercial investors, which could include building management contracts, tenancy agreements, rent reviews and refinancing.
Is Arbitration cheaper than litigation?
The cost of arbitration depends on a number of factors, such as how many arbitrators are required (as the parties are liable for the arbitrators’ fees), how many parties there are and how complicated the legal and factual questions are. Arbitration can be cheaper than litigation, but this is not always the case.
How long does Arbitration take?
This depends on the circumstances, however the parties generally have more control over the timetable than they would if the matter proceeded to litigation. According to the London Court of International Arbitration, between 2013 and 2016 the median duration of an LCIA arbitration was 16 months.
Some arbitration rules allow for expedited arbitrations and we can advise further on the possibility of doing so.
Can you terminate a commercial lease before the end of the term?
Whether you can bring your lease to an end before the term expires will depend on what your lease says. Many commercial leases have a ‘break clause’ which will allow either the tenant or the landlord to terminate the lease early on certain conditions.
Break clauses have been scrutinised by landlords, tenants, lawyers and judges for many years. To make sure that you do not inadvertently lose your right to end the lease early, it is important to be well advised when negotiating such a clause, and particularly when serving your break notice. Our real estate team has a wealth of experience in this area and is well versed in acting for both landlords and tenants in the negotiation of lease terms, and in the preparation and service of break notices.
If you don’t have a break clause in your lease, you might be able to reach an agreement with your landlord (or tenant as the case may be) to surrender the lease. A landlord may also be able to forfeit the lease if their tenant is in breach of their obligations. Please get in touch with a member of our team if you would like to discuss the options that might be available to you.
Do you advise on the Telecommunications Code?
Yes. The Electronic Communications Code is a complicated and oft-criticised piece of legislation and this has been compounded in recent years by the introduction of a completely new iteration of it in 2017. We advise landlords on resisting Code applications by (often very aggressive) telecoms operators for access to our clients’ property to install equipment, termination of Code Agreements and site clearance. We negotiate the best possible deal for our clients where access cannot be prevented and the terms of an agreement need to be negotiated.
Why is litigation finance growing in the UK?
Litigation in the UK can be expensive, and has an impact on a company’s cashflow and bottom line. Litigation finance has allowed clients to engage in litigation with no downside risk and no cost to their balance sheet.
Is there a link between the growth of litigation finance in the UK and the growth of securities litigation and other forms of group litigation in the UK?
Yes. Whether co-incidentally or not, securities litigation and other forms of group litigation in the UK have begun to grow at a time when the availability of third party funding and of innovative alternative fee arrangements has also developed. So for instance, this has allowed institutional investors who have suffered a loss to participate in securities litigation, if they choose, with no downside risk and no cost to their balance sheet. So, securities litigation can be brought without litigation financing, but it is true that more often than not securities litigation will be brought with the support of litigation finance or alternative fee arrangements where risk and reward are shared.
Why is securities litigation growing in the UK?
As a major economy, the UK is the headquarters or primary operating centre of many of the world’s largest companies, including but not limited to financial institutions, and many of these are publicly listed on the main market of the London Stock Exchange or on AIM. Many of the world’s largest and most sophisticated institutional investors are located in the UK.
Until recently, however, securities litigation against misbehaving PLCs was not undertaken in the UK. But this has changed, and in the last five-seven years we have now seen three-four major cases in this area.
Is there regulatory support for securities litigation?
Yes, there is regulatory and policy support for securities litigation, as policy makers and corporate regulators in the UK and internationally recognise the positive benefits of private securities litigation in driving deterrence objectives, encouraging better corporate behaviour and governance, and enabling investors to obtain redress. This is especially so in circumstances where regulators are sometimes stretched to discharge their functions and can see private securities litigation as being both complementary and supplementary to the investigatory and enforcement actions which they have the capacity to undertake.
Should securities litigation be seen as part of a governance framework?
Yes, securities litigation should be seen as part of a framework that includes the UK’s Corporate Governance Code (2018) and the UK’s Investor Stewardship Code (2019), each of which is designed to encourage improvements in corporate governance, including better corporate disclosure, at the public companies in which we invest.
Is there a link between the growth of securities litigation in the UK and the growth of litigation finance?
Whether co-incidentally or not, securities litigation in the UK is increasing at a time when the availability of third party funding and of innovative alternative fee arrangements has also developed. This has allowed institutional investors who have suffered a loss to participate in securities litigation, if they choose, with no downside risk and no cost to their balance sheet. Securities litigation can be brought without litigation financing, but more often than not it will be brought with the support of litigation finance or alternative fee arrangements where risk and reward are shared.
Someone has copied my design and/or brand. How can I stop them?
We will assist you with taking action against the company with innovative infringement strategies and also including more traditional actions such as a letter of claim, all the way to initiating court proceedings to stop the infringement and to obtain damages.
If we convert from partnership to LLP, will I be protected against liabilities?
Individual members of an LLP are protected by limited liability status from bearing the risk of the actions or inactions of fellow members. This is the fundamental difference between the position of partners in a general partnership and the members of an LLP, and one of the principal benefits envisaged by those who become members of an LLP. However, there are some exceptional situations in which an LLP member may still incur personal liability.
How do I choose between a company and an LLP for my business?
Companies and LLPs both offer the advantage of limited liability for business owners and managers. LLPs are favoured in professional services, where the flexibility and partnership-like culture are key. Companies offer benefits where profits are intended to be retained year to year and where outside investment is likely. There are many other factors and choosing between the two is most easily done at the very outset of a business, although later conversion is possible.
What is a designated member in an LLP?
All LLP members have the same rights and duties towards the LLP and these are governed by the Limited Liability Partnerships Act and by any Members’ Agreement, but additional duties are placed on designated members in relation to the signature and filing of certain documents. A designated member does not have any additional rights in respect of managing an LLP unless the members have agreed this will be the case.
What are the most common equity incentive arrangements in private companies?
The most common way of giving employees an equity interest in a private company is through granting them Enterprise Management Incentive options (EMI Options). These have significant tax advantages for both the employee and the employing company. Some private companies will not meet the conditions required to grant EMI Options, and for these companies some form of bespoke growth share scheme is commonly used to replicate the economic return of an option but in a tax efficient form. We can advise further on the type of equity incentive scheme which would be best suited to your company.
Can I grant EMI options to non-executive directors or consultants?
EMI Options are a very tax efficient form of equity incentive arrangement. But EMI Options can only be granted to full time employees who work at least 25 hours a week, or spend 75% of their working time, in the business. EMI Options cannot therefore be used to provide equity interests to non-executive directors or consultants. Instead, many private companies look to incentivise non-employees through growth share arrangements which can be structured to provide similar economic returns in a tax efficient from.
Can I insert a new holding company without triggering tax charges?
Clients look to insert a new holding company into their share ownership structure for different reasons. Generally, it should be possible to do this without triggering significant capital gains tax or stamp duty charges, as a number of tax reliefs are available in these circumstances. It is important to ensure that the conditions for these tax reliefs are satisfied, and it is often necessary to make certain applications to HMRC either to obtain the relief or to gain comfort that the relief is available. We can advise further by reference to the particular facts of the case.
Do you advise individuals on their personal tax matters?
We advise individuals in the context of their business dealings, so we would advise individuals on the tax treatment of their shareholdings (or proposed investments) in corporate entities, and the impact of proposed disposals or restructurings. We also advise individuals on the tax and national insurance contribution issues arising in respect of remuneration received both during and upon the termination of employment, whether in the form of cash, equity interests or otherwise. We do not provide private client tax advice, and do not advise in relation to inheritance tax or the tax treatment of trusts and settlements.
We are making a payment to an employee on termination of their employment. Will it be taxable?
Payments made to employees on termination of their employment can, in certain circumstances, benefit from an exemption from income tax/NICs, in part or in full. In most cases, it should be possible to benefit from a £30,000 exemption from tax, but this will depend upon exactly what the termination payment relates to. In some cases, particularly where payments are made in connection with ill health or discrimination, further reliefs may be available.
What are the most common ways for private companies to reward employees with equity?
The most common way of giving employees an equity interest in a private company is through granting them Enterprise Management Incentive options (EMI options). These have significant tax advantages for both the employee and the employing company. Some private companies will not meet the conditions required to grant EMI options, and for these companies some form of bespoke growth share scheme is commonly used to replicate the economic return of an option but in a tax efficient form. We can advise further on the type of equity incentive scheme which would be best suited to your company.
On a disposal of the company, will the sale process be complicated by having employees who hold EMI options?
A sale process will likely trigger the exercise of any EMI options, so that the employees can dispose of the resulting shares as part of the sale. Due diligence will need to be undertaken to confirm whether this will be the case and whether the exercise of the options will trigger any income tax/NIC charges. The process of exercise and issue of shares to option holders also needs to be factored into the timetable and documentation. The exercise of the options could also give rise to a valuable tax deduction for the employing company. Advice on all these factors should be obtained early in the sale process to ensure that nothing is missed.
Do you advise individual sellers on the tax aspects of selling their company or business?
We advise individuals in the context of their business dealings, so we would advise individuals on the tax treatment of their shareholdings (or proposed investments) in corporate entities, and the impact of proposed disposals or restructurings. We do not, however, provide private client tax advice, and we do not advise in relation to inheritance tax or the tax treatment of trusts and settlements.
Do you provide advice in relation to overseas companies setting up in business in the UK?
When setting up a business in the UK, it is advisable to seek legal and tax advice at an early stage to avoid any unexpected tax charges and ensure that you comply with UK tax obligations. We are well placed to advise in relation to corporation tax, VAT and employment taxes issues arising and, where relevant, introduce you to accountants and other third parties who can assist with tax registration requirements and tax compliance going forwards.
Our mobile app needs some T&Cs – what do we need to think about?
As your app is essentially a type of software which will be subject to copyright protection, one of the core requirements of the T&Cs will be to ensure that these adequately protect your intellectual property rights. The T&Cs should grant the user a licence to use the app and impose restrictions in terms of what the user is permitted to do with the app. The T&Cs should also include provisions setting out your power to terminate and suspend user accounts, limiting your liability and setting out any disclaimers you wish to include amongst other matters.
Our software has been developed using some open source code. Could this be a problem?
Using open source code can sometimes restrict the way in which you are able to commercially exploit your software. To ascertain whether this is the case, you will need to review the licence for the open source code you have used. Generally, these fall into two categories: permissive licences and restrictive licences. Permissive licences do not generally impose restrictions on subsequent licensing of works derived from the open source code, whereas restrictive licences do. We are experienced advising on open source software and can assist with any queries you may have.
Do you provide compliance services?
We provide legal advice, whenever you need it. If you need day-to-day compliance services instead, we can introduce you to compliance consultants. If you need a combination, we will work closely with your compliance advisors, so that nothing falls between us, nothing gets done twice, everyone plays to their strengths, and you get the best possible value for your money.
I’m looking to raise growth capital, can you assist?
Yes, we are recognised by the legal directories as a leading law firm on advising on the raising of equity finance, and we have assisted both investors and companies in various sectors on their funding rounds.
Are you able to facilitate introductions to potential investors in the publishing industry?
We have a wealth of experience in the early stage, venture capital and private equity sectors and act for institutional and private investors, investee companies and management teams. We have good relationships with both individuals and intermediaries and can facilitate introductions where required. In particular we have a strong network of angel investors in the publishing sector as well as many acquisitive clients.
Do you have experience working with employee-owned businesses?
We have a number of clients which are structured as employee collectives or are owned by employees or employee share ownership plans and trusts. We have advised on all stages of the business life-cycle of such organisations from initial structure, incentive arrangements and eventual exit and sale.
Are there any travel regulations which apply to the sale of travel services in the UK?
Yes, aside from those which require an ATOL (see above), travel companies selling combinations of travel services (such as a package holiday) must comply with the Package Travel and Linked Travel Arrangements Regulations 2018. These set out a comprehensive scheme of consumer protection in the UK, which lays down requirements as to the sale of travel services, pre-departure and post-departure rights for the customer. These regulations also require the customer to be given the benefit of insolvency protection for certain sales so that the customer will be refunded and/or repatriated if the travel company becomes insolvent.
Do travel companies have to arrange any form of insolvency protection in the UK?
Yes. Travel companies have to arrange insolvency protection in the UK if they organise and sell package holidays, linked travel arrangements or flight-only, although there are many exemptions available for flight-only. The regime is split into two parts. The ATOL regime provides insolvency protection for the sale of flight-inclusive packages and flight-only, whereas the insolvency protection for non-flight packages and linked travel arrangements is to be provided by a financial bond, financial failure insurance or through operation of a trust account.
What will be the impact of Brexit upon regulation of the travel industry?
Currently, UK-based travel companies may use their UK insolvency protection arrangements to sell to customers throughout the EEA (and vice versa). Unless a new agreement is reached between the UK and the EU, this scheme will end at 11pm on 31 December 2020. UK travel companies will then have to make new arrangements to sell to the EEA, and EEA-based travel companies will similarly have to make new arrangements to sell into the UK.
How can Fox Williams assist international law firms?
We have assisted many international law firms establish themselves in London and go on to advise on an ongoing basis on various aspects of running an English law firm, including advice on regulation, employment matters, real estate and other business needs.
Our team is among the most experienced in the City in advising US law firms and we are unique in the depth of expertise and experience across all of the services that we provide.
What is an ABS?
An ABS or ‘alternative business structure’ is the term given to law firms that have been approved to have non-lawyer owners. ABSs offer law firms great flexibility in ownership structures, from appointing a senior non-lawyer employee to partnership, or taking outside investment, potentially including a stock market listing. International firms are increasingly using the flexibility of ABSs to better join their international offices together in a single ownership structure.
What matters do I need to report to the SRA and how do I go about this?
Recent rule changes have lowered the threshold at which potential breaches of SRA regulation (in some cases including misconduct by partners and employees of the firm) must be reported. We advise our clients as to whether we consider a report to be necessary and help them to prepare a full and timely report to be made.
What are “reserved legal activities”?
Reserved legal activities include the conduct of litigation, appearing before and addressing a court, probate activities and preparing certain transfer documents relating to land.
An individual or firm who wishes to carry out reserved activities will need to be authorised by the SRA or other legal services regulator, otherwise they will be committing a criminal offence.
However, it is possible to carry out a number of legal services, such as in corporate, M&A, employment and commercial law, without triggering the need to be authorised. We are experienced at advising individuals and firms on what they can do outside of the scope of legal services regulation.
Why are team moves so popular, but also considered high-risk?
A team move offers the acquiring firm the opportunity to quickly enter a new business area with a group of people who have a proven track record in the sector. However, the commercial appeal of team moves is matched by the potential risks in such situations. There is a risk for legal liability both of the individuals moving firm and for the firm which is recruiting them. Navigating these risks successfully requires careful planning, otherwise the team, their new firm and any third party involved in the recruitment may find themselves subject to legal action (sometimes at very short notice) for claims such as breach of contract, breach of confidence and unlawful conspiracy.
Are partners protected under whistleblowing legislation?
LLP members may in certain cases fall within the definition of “workers” in the relevant legislation and will therefore be protected from detriment if the LLP seeks to retaliate against them for having made protected disclosures in the public interest. However, not all LLP members will meet this definition. Members of professional services LLPs will often qualify, but it is not always the case. Partners in traditional partnerships may not qualify as workers, although it is an untested question which may be answered by case law.
Is it possible to realise the value of a law firm through a business sale?
Historically law firm partners have rarely been able to realise a capital value for their business. This is changing, with the introduction of alternative business structures potentially allowing outside investors to purchase a stake in a law firm. Other options, such as selling the business to existing staff members, are also a possibility.
Why is opening an office in London different to opening a local office of an international law firm?
English regulation allows a great deal of flexibility as to the establishment, ownership and control of law firms by non-English lawyers, but it remains the case that authorisation must be obtained. This will require a relatively detailed application process to be undertaken and will impose compliance obligations that have implications for the ownership and control structure. We are very experienced in advising on what options represent best practice and which may best suited to a particular firm.
What advice can you offer to senior and managing partners?
The Fox Williams Professional Services Group includes a number of partners who have both advised senior and managing partners and who themselves have served on our partnership board. As such, we can offer insights and support in relation to nearly all aspects of the running of professional services business.
How do you help professional services firms with evaluating partner performance?
The combination of our leading employment advisory team together with our senior professional services group members allows us to offer insight into best practice for performance evaluation at all levels of professional services businesses. We can offer advice on encouraging positive behaviours and on how to deal with negative behaviours.
What is the best system for partner remuneration?
The detail of partner remuneration systems varies substantially between firms, but fundamentally range from wholly subjective systems (such as discretionary allocations) to objective systems (such as eat what you kill or lockstep), with most firms opting for some mixture of the two. We can advise on how best to tailor remuneration systems to match the firm’s wider business objectives.
I am employed in professional services and need advice – how can you help?
Employees operating in the professional services sector will face particular challenges and opportunities. Employment law is only part of the picture and the strategy involved in disputes and negotiations will often be affected by the employer’s regulatory and professional obligations. We also have extensive experience in advising on confidentiality duties and post-termination restrictions in the professional services context.
Do you handle dispute and investigatory matters relating to the FCA’s Senior Management and Certification Regime (SMCR)?
Yes we frequently act for both firms and individuals who are addressing complex issues under the SMCR.
We frequently advise firms on how to comply with the SMCR when complex and sensitive issues arise. Our work includes advising on how to conduct internal disciplinary processes on an SMCR compliant basis. We do this by deploying our expertise in both the regulatory and employment law fields. We can ensure that firms meet their PRA and FCA regulatory obligations whilst acting on a fair and appropriate basis as an employer.
Equally, we can act for individuals who may be subject to internal investigation or are seeking to join a new firm as a Senior Management Function (SMF) holder, or as a certified staff member. We are experienced in dealing with difficult issues and the implications that can arise in respect of adverse regulatory references. We are also able to represent and support individuals who may be subject to investigation for breaches of the FCA’s Code of Conduct (CoCON) provisions.
Do you advise on regulated consumer credit issues?
We can, but you might not need us.
We usually advise on regulated consumer credit issues, if (for example):
- A client is designing a new product, and it needs to know whether there will be regulated consumer credit (or not). If there will be regulated consumer credit, we can sometimes structure the product, to get a different result.
- A client is investing in, or buying, another business and the client needs to understand whether the target is properly authorised, and complying with its legal and regulatory obligations. All too often, we find it’s not, and we’re asked to advise on the risks and consequences of the non-compliance for the target and the acquirer, and the steps that need to be taken to sort things out;
- A client and its business partners are entering into new commercial arrangements which depend on, or include, primary or secondary credit broking; or primary or secondary regulated lending, and want to make sure the new arrangements are lawful, and consistent with their regulatory permissions.
We draft regulated and non-regulated lending agreements; and our colleagues enforce their terms.
Our financial services regulatory team doesn’t advise borrowers, and it doesn’t give routine advice on (for example) the variation or early termination of regulated credit agreements, or the promotion and sale of regulated lending products.
Do you do fund formation work?
We’re often asked to advise PEVC fund managers on regulatory matters, including the Alternative Investment Fund Managers Directive (AIFMD). But we don’t do fund formation work of any kind.
We have identified a new supplier but their manufacturing contract seems one-sided. Can you help?
Yes. We can help by discussing with you several important issues which will need to be addressed in the contract, including ownership, licensing and restriction of use of your intellectual property rights, the process for the approval of products, your remedies if the products supplied are defective, and whether the agreement includes minimum purchase quantities. If the supplier is based abroad, then it will be necessary to consider international trade (including responsibility for export / import licences) and currency issues. What is important is that you have a contract which works for you!
Will a partner be involved in my transaction?
Our partners are involved throughout the transaction and each partner is supported by a strong team of associates. This ensures that the work is done by the right lawyer to achieve a cost effective result.
Do we need to register with the Information Commissioner’s Office (ICO)?
Data controllers are generally required to register with the ICO in the UK, subject to a handful of limited exemptions. As most businesses will be acting as a data controller to one degree or another, the requirement to register applies to most businesses. There are three separate registration tiers (with different fees applicable in relation to each of these) which apply, depending on the number of employees and turnover of the controller. If you would like our assistance registering your company with the ICO, please contact us using the details provided above.
We have had a data breach – what do we need to do?
From a legal perspective, there are notification requirements set out under the GDPR which apply to certain types of breaches. You are required to notify the ICO within 72 hours of having become aware of a data breach, unless it is “unlikely to result in a risk” to the rights and freedoms of the individuals concerned. For higher risk breaches, the data subjects affected may also need to be notified “without undue delay”. We are experienced in advising when data breaches occur and are able to assist if a data breach takes place in your business.
Can we send our HR data to our parent company in USA?
The GDPR generally prohibits the transfer of personal data outside of the UK / EEA unless an appropriate transfer mechanism is in place. In terms of transferring data from a UK company to its US parent, unless the US company has signed up to the UK-US Privacy Shield, the most appropriate mechanism will likely be for the parties to enter into a data transfer agreement incorporating standard contractual clauses. If you would like our assistance drafting such a data transfer agreement, please let us know.
Do we need consent to send out marketing emails?
Consent is generally required when sending marketing emails to personal (i.e. non-corporate) email addresses. However, where you are sending marketing emails to existing individual customers regarding products or services which are similar to those they have purchased from you previously, and provided the recipient is given the opportunity to unsubscribe from receiving further communications, what is known as “soft opt-in” will apply, meaning consent is not required. Where this is the case, legitimate interests will likely be the appropriate lawful basis for sending such communications. Different rules apply when sending communications to corporate email addresses where consent is not required.
We’re using XYZ’s SaaS solution which hosts our HR/CRM data. What do we need to do?
The provider of the SaaS solution will be acting as your data processor. As a result, you will need to ensure that the subscription agreement relating to the service contains certain mandatory data processing provisions as set out under the GDPR. These terms will impose clear conditions on what the provider is permitted to do with the data it processes on your behalf. We regularly draft and review data processing provisions and would be happy to provide you with tailored advice if required.
How does a UK subsidiary guarantee and secure the debt of its parent company?
It is not uncommon for intra-group security to be provided when debt is being incurred at the parent level, but there are rules which make these arrangements unlawful for certain types of share acquisition (depending on whether the subsidiary or the parent is a public company). We can advise you on whether these rules apply, and if not, structuring and drafting the debt and security arrangements, including the relevant corporate approvals required from the UK subsidiary.
What legal advice is needed if I am taking on a term loan?
You would need to think about the covenants and restrictions which the creditor would seek to impose and how these would affect you/the business. If the term loan is secured, you would have to consider which of your assets you would be giving security over (which can include receivables and bank accounts) and the operational effect of such security on the day-to-day running of the business. Thought should be given to any other financing arrangements you have in place, including equity, for consents and other authorisations which may be needed. We can advise you from the outset of a financing, including term sheet or even evaluation stages of such transactions.
Do you have AIM experience?
Yes. Whilst we work on all of the major domestic exchanges (Official List, AIM, NEX as well as the Channels Islands International Stock Exchange), the majority of our work is on AIM.
Have you done many transactions with overseas companies and investors?
Yes. The majority of corporate transactions we advise on have an international element and we are experienced at working with overseas clients as well as responding to the requirements of non-UK lawyers and advisers. We have particular expertise advising on dual-listings on AIM of companies listed on foreign exchanges, such as the TSX, TSX-V, ASX and OTC.
How do I incorporate a company in the UK?
Companies can be incorporated online or in hard copy. Online incorporations have a standard constitution which will be appropriate for many companies. If there is more than one class of share or a more sophisticated constitution is required, usually involving different share rights, we can advise and prepare the constitutional documents and the incorporation must be in hard copy.
How do you remove a director of a listed company?
We can provide a roadmap of the legal and tactical considerations involved in doing so, which will depend on the provisions of the articles of association and the Companies Act (or other corporate legislation applicable to the Company if not incorporated in the UK), as well as the make-up of the board and shareholder base.
We may need to commence an internal investigation, can you help?
We can advise on the legal and regulatory issues involved in carrying out an internal investigation relating to corporate governance failings, financial impropriety or fraud, HR issues and discrimination, health and safety breaches or other forms of potential misconduct. We also have extensive experience in carrying out and reporting to the board and regulatory bodies on such independent investigations as well as advising on public reporting obligations in relation to the same.