Do you really own your address book?

What happens when an employee resigns from a company to either set up on their own or to join a competitor?

Employers must be aware that knowledge and client databases built up by an employee during their employment could potentially be very damaging to their businesses future.

Employees may think they have a right to take with them any contacts built up through the course of their employment this, however, is not the case. The key point is when the relationship between the employee and client started. If it was through the course of their employment, then the employer is most likely actually the owner of the information.

In businesses where information, such as client databases, are the key to their success, employers should protect themselves by ensuring they have a very well drafted contract to prevent employees from using the potentially damaging information should they resign and move to a competitor.

Both employers and employees should carefully consider the extent of restrictions contained within their contracts and the implications of these restrictions. It is very likely that employers will have a contract drafted which prevents employees from competing should they leave the company.

The employer cannot impose unlimited restrictions on an employee as this would be thrown out if challenged through the courts. Restrictions must be considered reasonable and it is common to find a restriction within a contract preventing an employee from competing with their previous employers for three to six months after their departure. Whether the restriction will be regarded as reasonable will largely depend on the nature of the work but there are also many other factors that will need to be considered.

This blog ties in well with Simon Hall's previous post about social networking sites, especially LinkedIn. Despite being able to have a LinkedIn profile whether or not you are currently employed, if an employee has built up their contacts on LinkedIn due to a policy enforced by the employer (therefore, through the course of business), it can be argued that the employee has no right to this information upon their resignation from the company.

If an employee fails to abide by their contract and carries out an action such as contacting clients from their previous firm, there is the option to apply to the court for an injunction to prevent the employee from continuing with this act, thus enforcing the restrictive covenants within their contract.

The employment group at B P Collins can advise individuals as to the extent and implications of such restrictions within their contracts and can also assist employers in drafting a water tight contract. In the event that ex employees still attempt to use the information gathered in the course of business prior to resigning, our team can also advise in relation to injunction proceedings.

Posted by Gemma Hunter, trainee in the Employment law practice group.



Gemma started her training contract with the firm in October 2011 having studied Law and Criminolgy LLB at the University of Sheffield and the LPC at the College of Law, Bloomsbury.

Should will-writing services be regulated?

In February this year, the Legal Services Board (LSB) made a recommendation to the Lord Chancellor that will-writing should be regulated. This, the LSB claims, would reduce the “significant risks” that consumers face when using will-writing services.

However, the body has not recommended that estate administration or probate activities be regulated. There is also no intention to restrict or regulate individuals wishing to act for themselves or wishing to provide free advice to help others.

The LSB claims that it has “found comprehensive evidence that the market is working contrary to the statutory regulatory objectives outlined in the Legal Services Act 2007 and to the detriment of consumers and providers alike”.

If the Lord Chancellor accepts the recommendation, then consumers of all will-writing service providers will have a means of redress by way of access to the Legal Ombudsman. Research undertaken suggests that around two million wills are written each year, of which around 85% of wills are drafted by professionals.

There is currently no restriction on who can provide will-writing services meaning that there is an inconsistent level of protection for consumers. Some will-writers are regulated by their membership of professional bodies (for example, the SRA for solicitors); other professionals have joined voluntary regulatory schemes (the Institute of Professional Willwriters); but some will-writers are not regulated at all.  In addition, although all solicitors must be covered by professional negligence insurance, the same is not true of all other providers of will-writing services.

Research found that one in every five wills examined, failed because of being ineffective, inadequate or not achieving what the testator wanted. Problems with wills are often not discovered until the testator has died making it harder for such problems to be resolved. The LSB further claims that unregulated will-writers are selling consumers unnecessary, inappropriate or ineffective products and that their services represent poor value for money.

The body believes that by making will-writing regulated a more level playing field for traditional law firms and new providers will be created. It also believes it will support the wider objective of encouraging more people to write wills.

The Law Society reacted positively to the LSB’s recommendation but does not think it goes far enough. It is campaigning for estate administration and power of attorney services to be regulated as well as will-writing. Richard Roberts, the chair of the wills and equity committee, recently commented that he “[doesn’t] think people understand just how vulnerable the recently bereaved can be”.

Until I undertook my seat in the Private Client practice group, I did not appreciate how easy it is to prepare a will for a client which fails to deliver what the client wants. I think it is vital that all will-writers have comprehensive knowledge, training and expertise to write wills. Making will-writing a regulated activity will help to ensure that every person that makes a new will can rest assured that it will effect their clients wishes as desired.  

The Lord Chancellor has until May to decide whether to accept the LSB’s recommendations. If accepted, changes would come into force in 2015.

Here at B P Collins LLP we are committed to providing high quality legal services to our clients. If you are interested in making a will or wish to review your current will, please contact our Private Client practice group.

Posted by Harriet Betteridge, trainee in the private client practice.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.

Costs under the Jackson Reforms

In my first seat in the Litigation and Dispute Resolution practice group, I have been given a great deal of responsibility in my day-to-day duties from attending application hearings in the High Court to drafting witness statements and particulars of claim.

During this brief time what has become apparent is a lawyer's fixation with costs, ensuring that they are on budget. A focus that has become necessary in this age of austerity where clients are ever more concerned with receiving value for money.

The position with legal costs is set to change dramatically from 1^st April 2013 when the first of the Jackson proposals are set to be implemented in an effort to tackle common concerns about legal costs.

The headline of these reforms is the shift away from Conditional Fee Agreements (CFA) or more commonly known as 'no win, no fee' agreements that have dominated certain areas of the legal marketplace in the last decade, not to mention television adverts.

The intended successor to the CFA is the Damage Based Agreement (DBA) in which solicitors and barristers claim fees from the damages that their clients recover in successful cases. The fees are therefore dependant upon the success of their client's case. The rationale behind this new arrangement, which has already been piloted in employment tribunal cases, is to incentivise law firms to undertake work where the client has no means to fund the case but the promise of potentially large rewards.

However, the chair of the Solicitors Regulation Authority (SRA), Charles Plant has voiced concerns that there is a risk of firms becoming potentially over-exposed to DBAs and thereby financially unstable. He confirmed that it is unlikely that the Code of Conduct will need to be amended but reminded firms that the SRA has the power to go into firms and review these agreements; in particular he commented that supervisory reviews in relation to DBAs are likely. The hope is that this will prevent lawyers from pursuing unsound business models.

Lord Jackson hopes that these reforms will redress the balance in terms of legal costs, ensuring that parties are on a more equal footing. This reform can also be seen as part of an overall scheme to boost access to justice, especially in the current climate of legal aid cuts and tighter public funding.

Here at B P Collins LLP we are committed to providing high quality legal services to our clients but also offering them a range of flexible funding options tailored to their requirements.

Posted by Benjamin McQueenie, trainee in the litigation and dispute resolution practice group. 



Benjamin started his training contract in November 2012. He previously worked as a paralegal within the litigation departments of two well-known Bristol firms, as well as a seasonaire in the French Alps.

Things are not always what they seem… in Family

Family is my first seat and I have always been interested in the subject. However, when I was contemplating what working in a family law practice would be like, I thought the focus would be on soft skills such as empathy when liaising with clients and confident negotiation when trying to reach a settlement on behalf of our client.  Certainly this is the case, but I have been particularly struck by the financial skills required, including an in depth understanding of business accounts.

As most people know, one of the important tenets of English family law is establishing what all the assets are worth – only then can the effect of any proposed financial settlement be truly understood. In situations where one, or both, of the parties have their own business it will usually be necessary to ascertain the value of that business.  Through a number of cases I have assisted on during my seat, I have gained quite a good understanding of the options in these circumstances. This has been a fascinating and somewhat unexpected aspect of my work.

For example, a balance sheet valuation is the most straightforward and involves an assessment of the tangible assets less any money owed on those assets. This is most appropriate for a business that is merely a sum of its parts – perhaps a string of investment properties held in a formal company structure for tax reasons. If the business is a service provider the balance sheet valuation is not necessarily the most appropriate way to determine the value. 

In such a case it is more likely that a forensic accountant would be involved and the exercise becomes much bigger and more expensive.  The accountant reviews the company accounts for the past few years to understand the nature of the business against the backdrop of the economic climate specific to the business.  The profit a business is making will be crucial to its value as any potential purchaser would use this as a guide to what return they could expect to see on their investment. Where possible, a single joint expert forensic accountant will be appointed by the parties.  How to divide the business, if there are not sufficient assets outside the company to achieve a fair division between husband and wife, is another complex area on which the forensic accountant can provide advice. 

Seeing all of this at first hand has really opened my eyes to how different areas of law interact with one another. It has certainly made me more open-minded about the seats I choose as, even if I do not think I am likely to specialise in a particular area, I can now fully understand how useful it is to have a good grounding in a cross-section of practice groups. It also makes me appreciate working at a full service law firm, like B P Collins, where colleagues with a range of expertise are available at a phone call. 

Posted by Tina Jeffery, trainee in the family practice group.



Tina Jeffery started her training contract with B P Collins in August 2012 following a long career in the RAF. She holds a BSc and an LLB from the Open University and completed her Legal Practice Course at City Law School.

The importance of drafting an effective break clause

In today's market, commercial property tenants are continually looking for a better deal to protect their future business interests. A business can change significantly over a small period of time therefore tenants need peace of mind that they have a ‘get out clause’ if ever needed.

What happens when a tenant is tied into a lease for 10 years or more, but their business has changed causing them to move premises or even cease trading? You will often find that a carefully drafted lease will include a break clause, enabling the tenant to bring the lease to an end part way through the agreed term.

When I was asked to draft a break notice for a tenant halfway through the term of the lease, I thought it would be a relatively simple task, taking only a small amount of time. However, when I realised what was at stake for the client, I knew it wasn’t a straightforward task.

The consequences of an invalid break notice can cause the tenant to be tied into the current lease for the remainder of the term, or until the next break date (if there is one of course – there may not be!). This has huge cost implications for the tenant, particularly if they have already agreed to a new lease at different premises. A tenant could face paying rent on two premises for a period of five years plus - not the situation the tenant's lawyer wants to be faced with!

Even when a lease has a break clause, oversight of a minor point can cause the tenant to be tied in for the remainder of the term. For example, a break clause may insist on vacant possession, therefore, if any items are left behind (even a desk), the tenant may still be tied to the lease. Therefore, if you are the tenant or the landlord, a carefully drafted break clause is extremely important. A poorly drafted break clause could break the tenant's business.

The commercial property group at B P Collins LLP can assist commercial tenants and landlords with negotiating, drafting and implementing break clauses. If ever a tenant or landlord finds themselves in the sticky situation where they have a fight on their hands in relation to service of the break notice, the property litigation group has specialist knowledge in this area too and are on hand to advise. 

Posted by Gemma Hunter, trainee in the property practice group.



Gemma started her training contract with the firm in October 2011 having studied Law and Criminolgy LLB at the University of Sheffield and the LPC at the College of Law, Bloomsbury.

Whose social network is it anyway?

Social media has changed the world we live in.  It's not just the daily scandal about what some premiership footballer said on Twitter.  Social media has changed business too. In one of the most hyped IPOs (Initial Public Offering) in years, Facebook went public. Investors went mad. Suddenly though, Facebook was worth half what it was a year ago (poor old Mark Zuckerberg, eh?).

Social media is changing the society we live in too.  If you believe some people (my Grandad), then Facebook / Twitter / Blackberry Messenger (they're all the same, aren't they?) actually caused the riots in the UK last year.  It's the pinnacle of the downfall of society!  The fall of Rome!  Why doesn't anyone write a letter anymore?

The debates are endless and the issues virtually limitless.  I just want to focus on one small area and that is how social media can affect an employment contract.

For example, many employees have a LinkedIn profile.  Some even use it.  A minority might even use it as they're supposed to. They establish connections and a network of contacts for the benefit of the employer's business.  Great?

There is, however, a problem.  What happens when the employee leaves?  What happens to all those great connections and the network of contacts?  Many businesses (some say all) are based on those personal relationships and connections.  It used to be just weirdos who contacted strangers online.  For many business professionals it's now a part of everyday life.

But is there not some inherent value in those personal relationships?  If an employee has been using LinkedIn as part of their job, in the course of employment for the purpose of furthering their employer's business, who "owns" those connections?  Who "owns" the social network (see what I did there)?

Social networks have a value to any business that uses them.  For employers, one way of protecting that value is through a properly drafted employment contract which addresses social media.  There's no point ignoring it, after all.

Posted by Simon Hall, trainee in the employment law practice.



Simon started his training contract in January 2012 and his experience includes working on shareholder and director disputes, contractual disputes, personal insolvency and consumer claims. 

Osborne proposes employee share schemes

The season for political party conferences is upon us once again and the Conservative party took to the stage in Birmingham to showcase its policies for the coming political year.

During his speech on the economy the chancellor, George Osborne, outlined proposals for employees to be given between tax-free shares in exchange for giving up some of their employment rights.

The idea is that the employee will give up his right to claim unfair dismissal, a redundancy payment and a request for flexible working in return for between £2,000 and £50,000 of shares in his employer company. Furthermore, female employees may have their maternity rights reduced. Mr Osborne proposed that companies could make such a scheme mandatory for new employees.

Employee share schemes are not a new concept. Successive governments have always sought ways to encourage companies to grant options and shares to their employees, particularly through favourable tax treatment.

In the late 1980s employee benefit trusts (EBTs) were popular as they minimised corporation tax, National Insurance contributions and income tax, and could provide benefits to employees and, in some situations, former employees and employees' dependants.

However, EBTs are now seen as being too tax advantageous and the government currently favours enterprise management incentive (EMI) schemes. EMI schemes are often used by small, higher-risk trading companies. Under an EMI scheme, a company grants options to employees who can then purchase shares at a set price within a specified timeframe.

Both the company and the employees who benefit from the scheme must meet certain criteria, for example, the company's gross assets must not exceed £30 million, and an employee holding options must spend at least 25 hours a week or 75% of his working time on the business of the company.

As a trainee undertaking my first seat in the corporate and commercial practice group here at B P Collins LLP, I recently worked on a matter involving an EMI scheme. In this particular matter two employees were exercising EMI options to become shareholders, and then further options were being granted to them and several other employees.

I drafted exercise certificates, new option certificates and board minutes (yes, the LPC did come in handy here!) and filed information about the new shares at Companies House. The employees who exercised their options became shareholders and I helped amend a shareholders' agreement for them to enter into with the existing shareholders.

While working on this matter, the advantages for both the company and its employees became clear to me. The shareholding employees receive equity in the company, motivating them in their work because if the company succeeds they will get a better return from their shares. The company gets a more motivated and dedicated workforce which it benefits from. And both parties may get some tax relief.

I have keenly watched the press take hold of Mr Osborne's recent proposal; it has faced a myriad of responses, many of them critical, and despite the advantages of option schemes it is easy to see why. Although an employee will receive equity in his employer company, he is unlikely to have any controlling influence in the company; in fact he may not even get voting rights with the shares he is given.

Furthermore, the value of his equity is, of course, dependent on the success of the company which is less than certain in this current economic climate. And, given this climate, giving away employment rights on dismissal may not be advisable, when dismissals are more likely to occur!

Companies already use employee share schemes as an incentive in recruiting, retaining and motivating employees. Such schemes also help to bring the interests of a company's shareholders into line with those of its employees.

But are employer companies now likely to give away shares if they do not already do so? Small businesses, especially those which are family-run may understandably be reluctant. The potentially necessary complex and costly shareholder arrangements and tax provisions will be off-putting to many, but for some companies, the cost of using an employee share scheme will now be offset by the ability to get rid of employees more easily.

While the debate about the economic consequences of George Osborne's proposal and the morality of taking away employment rights from employees continues, it is worth bearing in mind that an employer may want to use an employee share scheme even if Mr Osborne's proposals don't get much further than his speech at the Tory party conference.

If you are thinking of setting up an employee share scheme or need some advice in relation to your or your employees rights, B P Collins LLP will be happy to assist you so do get in touch.

Posted by Harriet Betteridge, trainee in the corporate and commercial practice.

Harriet started her training contract in September 2012 having previously worked in the Litigation team as a paralegal. Her previous experience includes working at a group of law centres in south London and in the Legal, Compliance and Risk team at the Charities Aid Foundation.