Worthingtons Solicitors, Belfast

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Worthingtons are delighted to announce that we are supporting Cash for Kids again this Christmas. For most of us, Christmas is full of joy, food and gifts. But for the 1 in 4 children in Northern Ireland who live in poverty, Christmas is just a dream. In 2015, Cash for Kids raised over £322,000 in gifts and cash which supported over 8,400 local children. Worthingtons Solicitors support Cash for Kids 2016 Our Newtownards office is a drop off location so please purchase an extra gift this Christmas and drop it into our office at 2 Court Street, Newtownards – we are open 9-5 Monday to Friday. We need new and unwrapped gifts suitable for children and young people aged 0-18 years. We are also accepting cash donations which will be donated to Cash for Kids to use to purchase gifts for age groups where they are short on gifts. Our reception staff will be delighted to take any donations you would like to give. We can accept donations until 5pm on Friday 16 December 2016. For more information on this years appeal please visit Cool FM’s website below: http://www.coolfm.co.uk/charity/mission-christmas/ Worthingtons Solicitors support Cash for Kids 2016

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Worthingtons were delighted to sponsor the Employers for Childcare 2016 Family Friendly Awards for the third year running. Worthingtons Sponsor Employers for Childcare 2016 Family Friendly Awards There was a large number of entries highlighting the continued commitment of Northern Irish companies to providing their employees with a healthy balance between their work and family lives. These awards are very timely coming into National Work Life Week (3 to 7 October) which gives an opportunity for employers and employees alike to focus on wellbeing at work and work-life balance, for example many employers this week are encouraging their staff to go home on time. Belfast Health & Social Care Trust were announced as the first ever Overall Winner of the Family Friendly Employer Awards as well as winning the Public Sector Organisation of the Year. The winners for the 2016 awards are: Small Medium Enterprise of the Year Winner: Aisling Daycare Highly commended: Progressive Building Society Large Private Sector Company of the Year Winner: Allstate NI Highly commended: Lagan Construction Group Social Enterprise/Charity of the Year Winner: MACS NI Highly commended: NI Hospice Public Sector Organisation of the Year Winner: Belfast Health & Social Care Trust Highly commended: Armagh City, Banbridge & Craigavon Borough Council Education Sector Organisation of the Year Winner: Queen’s University Belfast Highly commended: Aisling Daycare Congratulations to all the winners and those who were highly commended and a huge thanks to all those employers who entered the awards. We look forward to seeing everyone at the Family Friendly Employer Workshop in March 2017 and entering again next year for the seventh Family Friendly Employer Awards 2017.

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Worthingtons Solicitors are among 11 firms that have been appointed to Dixons Carphone's first legal panel following the merger of Carphone Warehouse and Dixons Retail. Worthingtons Delighted to Win Place on Dixons Carphone's First Post-Merger Panel After the £3.8bn merger in 2014, which created an electrical retail giant that brought household names including Currys and PC World under one umbrella, Dixons Carphone's panel review kicked off in December last year, led by general counsel (GC) and company secretary Nigel Paterson. The review concluded in February 2016 and the panel is set to run for three years. In a statement, Dixons Carphone said: "The appointment of this panel places us in great shape to support the combined business and its future growth. We're delighted to maintain relationships with a number of firms we've worked with for many years, while also establishing new relationships." The company’s new 11-strong panel includes: Addleshaw Goddard Clyde & Co DAC Beachcroft Doyle Clayton DLA Piper Fieldfisher Freshfields Bruckhaus Deringer Pinsent Masons Shoosmiths Woofinden Legal Worthingtons

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Apprentice Solicitor[s]: Worthingtons Solicitors wish to recruit one or more Apprentice Solicitors who secure a place at the Institute of Professional Legal Studies at Queens University Belfast or the University of Ulster Graduate School of Professional Legal Education, for the Year Commencing September 2016. Minimum Qualification: Law Degree or equivalent. Applicants should be able to demonstrate not only a strong academic background but also a commercial and common sense approach. Worthingtons Solicitors has an extremely high retention rate of trainees and our aim is to cultivate good home grown solicitors who will help to fuel the continued success of the firm upon qualification. Application Forms may be downloaded below or e-mail/telephone Alison McFerran alisonm@worthingtonslaw.co.uk and she will send the Application Form to you for completion and return. Tel: 028 9128 2899 Applications should be either: (1) Sent by post to : Worthingtons Solicitors, Newtownards Office 2 Court Street, Newtownards, Co Down BT23 7NX; marked Strictly Private & Confidential, Ref: Alison McFerran; or (2) Emailed to alisonm@worthingtonslaw.co.uk; or (3) Faxed to 028 9181 0532 with the reference CM/AMcF Closing date for receipt of application form is Friday 4 March 2016.

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Temporary position available for experienced matrimonial solicitor to cover a period of maternity leave in our busy Newtownards office. Expected start date in or around November 2015 for a period of 12 months. Post qualification experience in family law is essential. Successful candidate will have responsibility for own case load and must be prepared to undertake advocacy on behalf of clients in court. If interested, apply by sending a copy of your CV to clare@worthingtonslaw.co.uk by noon on Friday 2nd October 2015. Successful candidates likely to be shortlisted for interview on the week commencing 12th October 2015. DIRECT APPLICATIONS ONLY - STRICTLY NO RECRUITMENT AGENCIES

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Graham Pierce, Solicitor considers the legal implications of private car parking penalties in "Outstay Your Welcome, Pay the Penalty" In a decision likely to be warmly received by the private security and parking enforcement industry, the English Court of Appeal has recently upheld the validity of a £85 parking charge imposed on a member of the public who overstayed his welcome at a retail park in Chelmsford, Essex. In the run-up to its hearing the case of ParkingEye Ltd v Beavis [2015] EWCA had attracted a good deal of media attention and given the perceived public interest in the outcome, the Consumers’ Association was added as a party to the case. The facts of the case: ParkingEye managed the car park at a retail park in Chelmsford under the terms of a management contract with the park’s owners, a large pension fund. About 20 signs were prominently displayed at the car park stating that there was a maximum stay free of charge of two hours and that failure to comply would result in a parking charge of £85.The defendant Mr. Beavis overstayed by just under one hour (which was not in dispute) and was duly issued with a request for payment which was ignored, leading to ParkingEye seeking to recover the charge through the courts. The legal considerations: Given the points of principle involved which were likely to affect other claims, the claim to enforce the £85 charge was assigned to a civil judge for the county rather than the usual small claims process in the county court and after Mr Beavis lost at first instance, the case found its way to the Court of Appeal. The Court was required to address two essential questions; firstly, was the charge a penalty and therefore unenforceable at common law and; secondly, was the charge unfair and therefore unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999. The traditional view of contractual charges which seek to impose a penalty which is not linked to the level of loss or damage suffered as a result of the breach is that such charges are a penalty designed to act as a deterrent and are therefore void and unenforceable. However in this case the Court of Appeal held that the sum of £85 was not “extravagant or unconscionable” and that the underlying contract between ParkingEye and Mr Beavis was enforceable. On the second question the Court held that the charge was not unfair in terms of the 1999 Regulations as it did not offend the requirement of good faith nor did it cause a “significant imbalance” between the parties, to the detriment of the motorist/consumer. Accordingly, the fact that the overstay charge might act as a deterrent and does penalise transgressors will not on its own render it an illegal and unenforceable penalty and provided such charges are not “extravagant or unconscionable” they will be enforced by the courts. Similar management contracts to that entered into by ParkingEye in this case are used by local councils and private car park operators throu

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Belfast’s Cathedral Quarter will once again be taken over by Culture Night on 18th September. In past years, this event has captured the imaginations of locals and visitors alike with a cacophony of visual and performance arts. Not wanting to miss out on taking part in the festivities, Worthingtons Solicitors are honoured to be hosting a cinema event at our Gordon Street Premises. The award winning Newcastle Community Cinema group will be preview Northern Ireland's brightest & freshest film festival in our car park. The title of the event is the Full Moon Film Festival Preview and all details are contained on the Culture Night Website www.culturenightbelfast.com Rosie Le Garsmeur from the Culture Night team has commented that “The organisers of Culture Night are delighted that Worthingtons are contributing to this event and the support is very much appreciated at a time when budget cuts pose major threats to the arts festivals such as ours. The fact that a law firm wants to take part shows the commitment to this event and we are grateful for Worthingtons support” Whether it is through financial donations to NI Opera or funding of locally based community arts groups or by voluntary board participation, Worthingtons Solicitors are dedicated to promoting the arts through business. So come along to the Cathedral Quarter on 18th September and don’t miss what will surely be one of the most talked Arts events in the country.

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The Partners and Staff of Worthingtons are delighted to congratulate both Sara McGaughey and Laura Feeney who have graduated from the Institute of Professional Legal Studies Laura won the following prizes: The Tyrone Prize: This prize was endowed by the late Judge William Johnston, QC from a gift made to him by the Tyrone Solicitors’ Association.It is awarded to the trainee who achieves the highest mark in the County Court examination. The Diageo NI Prize: This prize was established in 1990 by Guinness (Ireland) Ltd.It is awarded to the trainee who attains the highest standard in the Licensing examination. The Pat Finucane Prize This prize was established in 2002 by Messrs Madden & Finucane Solicitors in memory of Pat Finucane, Solicitor.It is awarded to the trainee who attains the highest standard in the Criminal Procedure – Indictment Examination. Belfast Solicitors Association: Laura has been awarded second place in this prize. These prizes were established in 2007 by the Belfast Solicitors Association.These prizes are awarded to the three solicitor trainees who attain the highest average marks in the Postgraduate Diploma in Professional Legal Studies examinations. Both Laura and Sara are delighted to have completed their studies at IPLS QUB and are very much looking forward to continuing their legal careers as fully qualified Solicitors with Worthingtons. In the words of Elbert Hubbard "The best preparation for good work tomorrow, is good work today". We trust that the hard work put in by Laura and Sara to date will stand them in good stead for their future careers.

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Worthingtons are currently representing a child with special educational needs, in their fight to have the Education Minister’s decision to close their primary school, overturned. Avoniel Primary School in east Belfast is set to close on 31 August under the Minister’s current plans, but a judge is now set to decide, early next month, whether the child should be allowed to seek a judicial review of the Minister’s decision. The Education Minister, John O'Dowd MLA, announced in May this year that he was approving the closure of Avoniel Primary and increasing admissions and enrolment at nearby Elmgrove Primary School. At the time, Mr O’Dowd said the proposals were the first phase in plans to reshape controlled primary provision in east Belfast. But parents of pupils at Avoniel reacted with anger to the decision, claiming they have been left with little time to find a new school by September. Now one child at the school with special educational needs is seeking a judicial review. It is contended in this legal case that the Minister's decision should be overturned because a prior consultation process carried out by the Belfast Education and Library Board was allegedly not properly nor fairly conducted. According to their case, the parents believe that when this exercise was carried out, back in 2014, the Board's proposals were already at an advanced stage. An injunction is also being sought to prevent the Education Authority (who have taken over from the Education & Library Boards) from implementing the Minister's decision to close the school before the legal action is determined. The case was mentioned in front of Mr Justice Treacy in the High Court yesterday. He will now determine whether the case should advance to a full hearing in four weeks time. Our solicitor Brian Moss is representing the child taking the case, and he insists that the case has major significance within the east Belfast community. He said "Local political representatives had raised concerns about the closure of the school during the consultation which was carried out by the Belfast Education and Library Board. It is now for the Court to decide whether the applicant should be given the right to challenge the Minister's decision through a judicial review." Please contact Brian Moss at our Belfast office, who specialises in educational law, should you require any advice on any similar legal matters.

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The current political impasse at Stormont has led to ever increasing talk of widespread cuts across all government departments. This will undoubtedly be a matter of huge concern for our new Education Authority, for parents and most importantly, for our children with special educational needs, for whom the Authority (now established in the place of our Education & Library Boards) usually fund the additional resources that they require for their education Such children often require additional resources and assistance not commonly provided by schools, to ensure that they can access their education and achieve their potential. It is important that these children are not deprived of necessary resources, to ensure that a level playing field is created and maintained, between them and other children their age. That is why, in passing the Education (Northern Ireland) Order 1996, Parliament imposed a statutory duty upon the Education Authority, to firstly use their powers to ensure that children with special educational needs are identified (see article 13 of the Order), and assessed if necessary (see article 15). For many children with special educational needs, the educational provision which needs to be made for them is protected by law, as it is written into a statement of special educational needs. The Board responsible for such a child is under a legal duty to ensure that the stated educational provision is made for that child - see article 16(5) of the 1996 Order: Statement of special educational needs (5) Where a board maintains a statement under this Article- (a) unless the child's parent has made suitable arrangements, the board- (i) shall arrange that the special educational provision indicated in the statement is made for the child, and(ii) may arrange that any non-educational provision indicated in the statement is made for him in such manner as it considers appropriate, and (b) if the name of a grant-aided school is specified in the statement, the Board of Governors of the school shall admit the child to the school. Therefore, if the educational provision set out in a statement is not being provided by the Authority, then it would in most circumstances be open to the child (acting by their parents) to challenge the lack of (or failure to make) provision through the courts, on an urgent basis. This right of legal action can equally be open to children with special educational needs who do not have statements, where certain provision has been curtailed or removed. However, the legal duties of a Board towards such children are not as clear cut as they are towards children with statements. It is therefore in the interests of all children with special educational needs, that their educational provision is safeguarded by a statement, insofar as possible. For children with special educational needs without the legal protection of a statement of special educational needs, it is open to their parents to request their Board

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Huw Worthington, Senior Partner, advises on the benefits of drawing up an Enduring Power of Attorney No one knows what the future holds and there may come a time when a person is unable to make their own decisions.Mental incapacity can happen to anyone at anytime, eg through accident or illness.It can be difficult subject to broach with relatives but it is something everyone should think about. Whilst many people think that that if they become unable to make decisions for themselves through illness or mental incapacity then a family member can act on their behalf, this is not the case.One of the most significant decisions you can make in your life is to put in place an Enduring Power of Attorney while you still have that choice and ideally whilst still young. Not planning ahead for the fact that there may come a time when you cannot make important decisions for yourself or need help to do so means the chance to legally state your wishes will have passed. In this event, in most cases, if there is no Enduring Power of Attorney in place, another person would have to go to Court to set up the authority to act on your behalf.This can be time consuming, stressful, costly and might not reflect your wishes. An Enduring Power of Attorney is a legal document which allows someone else to deal with third parties on your behalf, for example financial institutions, local council or to choose someone else to make decisions on your behalf should you become unable to do so. You can cancel or amend an Enduring Power of Attorney at any time as long as you are mentally capable. By planning ahead you can have peace of mind knowing that your wishes have been formally recorded and that someone you trust has authority to deal with your affairs should you become incapable. Huw Worthington is a member of the Society of Estate and Trust Practitioners, the leading worldwide professional body for practitioners in the field of estates, trusts and related matters. Our Wills and Estates department provide specialist advice on all matters relating to Wills and Estate planning solutions, as well as the administration of estates, contested Wills, Intestacy and Inheritance tax advice. huw@worthingtonslaw.co.uk

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Maxine Orr advises on considerations when making changes to a Contract of Employment: An employer will often insert a clause into the contract of employment to allow unilateral changes to the contract.However the Courts and Tribunals have stipulated that clear and unequivocal language is required to be able to establish the right to make a unilateral variation to the contract of employment and such clauses will be carefully scrutinised to ensure that they encompass the particular proposed changes.A recent case in the Employment Appeal Tribunal looked at the wording of such a clause. Ms Hart was employed at St Mary’s School in Colchester from July 2001.The contract of employment stated “in the case of the teacher on a part-time contract the fractional part will be notified separately and may be subject to variation depending upon the requirements of the school timetable”. Ms Hart commenced employment working a two day week and this increased to three days, namely Tuesday, Wednesday and Thursday. In 2013 the School wished to alter the timetables to enable particular core subjects to be taught in the morning and Ms Hart was invited to spread her working hours over five days instead of three.A major difficulty for Ms Hart was her need to avoid working on a Friday as she visited her elderly mother in Wales and not working a Friday and Monday facilitated this. A period of consultation ensued with Ms Hart but unfortunately agreement could not be reached between the parties. The School nonetheless implemented the changes with effect from 1 September 2013.Two days later Ms Hart resigned stated that the School had chosen “not to make me an offer of reduced hours on the three days that I work” and that the School had imposed a five-day timetable “without any flexibility”.She issued proceedings for unfair constructive dismissal on the grounds that the School had committed a repudiatory breach of her contract by making a unilateral change to her working hours entitling her to resign.Her case was dismissed; the Tribunal Judge stated that the School had a contractual right to vary her contract of employment in the way that it had done so.It consulted with her, provided her with a business document explaining the changes and the reason for same and had allowed the employee to put forward her proposals.The Employment Tribunal’s reasoning for the decision was that under her contract she was required to be flexible in her working hours to meet the demands of the School and that specifically under clause 1.4 the part-time hours could always be subject to variation depending upon the requirements of the School timetable. The Tribunal stated that this was precisely the type of variation that the School was seeking to make through the consultation process.Therefore there was no fundamental breach of the contract of employment.Indeed the Tribunal Judge went further and stated that the resignation letter made it clear that the employee had resigned beca

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Clare Curran, Solicitor, considers "Can an Ex Wife Really Make a Financial Claim against her Millionaire Former Husband 30 years after separation?" The above case recently hit the headlines for its seemingly exceptional outcome whereby Kathleen Wyatt was granted permission by the Supreme Court to continue with her application for a financial order against her former husband Dale Vince, despite the fact that they have been separated for some 30 years and divorced for over 20 years. The background to the case is this.Mr Wyatt and Mr Dale married in 1981 shortly after meeting at university.They had one child together.Ms Wyatt also had a child from a former relationship, who was treated as a child of the family.During their marriage, the parties had limited resources and survived on state benefits.The marriage was short and the parties separated in 1983.Both parties moved on and met new partners.Ms Dale went on to have 2 more children.The divorce was finalised in 1992. A number of years after the parties divorced, Mr Dale started a green energy business which became hugely successful and was valued to be worth around £57 million when the case came before the Court.By contrast, Ms Wyatt continued to struggle financially and was of limited means. Crucially, when the parties divorced in 1992, they did not implement any agreement regarding their finances and no financial application was made to the court.The detriment of not taking all the steps they could to sever their financial ties formally is demonstrated by the fact that Ms Wyatt issued her application so long after the marriage breakdown. In 2011 Ms Wyatt issued proceedings against Mr Dale seeking a £1.9 million lump sum.Mr Dale applied to strike out the application on the basis that she had no reasonable prospect of success, given the short duration of the marriage, the length of time the parties have been separated and the fact that his fortune was acquired after they divorced. At first instance, the District Judge dismissed Mr Dale’s application to strike the case out, which he then appealed.The Court of Appeal overturned the first court’s decision, however Ms Wyatt then appealed that decision to the Supreme Court.The Supreme Court has now ruled in her favour by allowing the appeal, meaning Ms Wyatt can return to the High Court to proceed with her original application seeking a lump sum. It is important to note that the Supreme Court has not ultimately determined whether Ms Wyatt’s application will be successful.That remains to be seen when the case is heard in full in the High Court which will determine in due course whether she will receive the £1.9 million she is seeking, or a lesser amount, or indeed anything at all.The fact that she is bringing the claim after such a considerable delay, that the marriage was so brief and that the husband’s assets were acquired long after the parties separated will present significant challenges for her to overcome.However, in her favou

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There has been much debate over recent months as to whether the recently published Corporation Tax (NI) Bill, which allows our Assembly to reduce corporation tax rates for local companies, is a “silver bullet” for the Province. Currently the tax rate for companies is 21% and expectations are that the Assembly will reduce this to 12.5% from April 2017. There are many good reasons why businesses choose to incorporate and, whilst tax has always been a major consideration for doing so, a reduction in the tax rate of this magnitude will make this an even more attractive proposition for some businesses. So aside from tax considerations, what are the other attractions of incorporation:- . A limited company has its own separate existence from the people who run it. This can provide protection from personal liability for company debts. . Shares in a limited company are transferable. All the rights of the promoters are represented in the shares. In an unincorporated business the process of divesting oneself of the business assets can be cumbersome and costly. Incorporation can allow the free transferability of interest from one person to another. . There can be considerable sophistication in relation to the split of ownership and the ability to bring in external financial support by the giving up of equity in your business. Having made the decision to incorporate it is important to give thought to a shareholders agreement in circumstances where there are a number of owners of shares. Such an agreement will deal with how and when shares can be transferred and new shares issued, provision of protection where appropriate or necessary for those holding less than 50% of the shares, rights to appoint directors and payment for directors, any dividend policy, how to finance the company and what happens to shares if anyone leaves the company or dies. It is easy to assume that nothing can go wrong in your business when you have been in business for a long time but, if it does, the absence of a shareholders agreement can cost dearly. Celia Worthington, senior partner of the Commercial Department of Worthingtons Solicitors Belfast Office