Whether it be Harper Lee’s classic To Kill a Mocking Bird, John Mortimer’s charismatic Rumpole of the Bailey or John Grisham’s The Firm, library shelves are full of novels about lawyers and legal cases. 

The Cactus by Sarah Haywood is a 2018 debut novel and tells the tale of the fallout between the heroine Susan and her brother Edward following their mother’s death.  The author was born in Birmingham, so there are plenty of local references, and practised as a lawyer before turning to creative writing.

This is no doubt the reason why the dispute about whether their mother knew what she was doing in making her Will is told with refreshing accuracy.

What is key to someone making a Will is the “Banks and Goodfellow” test, which dates back to 1870.  The testator, the person making the Will, must

  • Understand what a Will is and what it will do
  • Know in general terms what assets will be disposed of under the Will; and
  • Be aware of anyone who would have a potential claim if they were not included in the Will.

Also, the testator must not be suffering from any delusion of the mind.

A lawyer specialising in Will writing will be familiar with the relevant capacity test and will take steps when taking their client’s instructions to ensure that they have the necessary capacity, particularly if there are concerns about advanced age or illness.

For more help and guidance in relation to your Will  or personal circumstances please contact Sophie Fenn on 0121 733 8000 or email sfenn@wilkes.co.uk.

Wilkes are delighted to welcome Anton Fischer to the firm to join our team of European lawyers. Together with Nigel Wood and Elisabeth Conner Anton will be servicing our existing German client base.

Anton will be taking on the role of Rechtsanwalt – Attorney at Law (Austria) and is soon to qualify as a Registered European Lawyer and has extensive experience of acting on cross -border transactions.

Anton has been tasked with assisting our already strong presence within the German market alongside launching a new initiative focused on Austrian businesses. To date Anton has worked in the UK, Vienna, Brussels, Leiden and Singapore and specialises in delivering Corporate and Commercial expertise to a wide variety of clients across Europe.

Commenting on his appointment Anton said:

“As a leading independent UK law firm, The Wilkes Partnership offers its clients a high level of service in a hands on way. Being able to deliver a wide range of legal services immediately attracted me to the firm. I am excited to work with existing clients on their cross border matters and to open up our full range of expert services within Europe and beyond.”

Nigel Wood, Senior Partner at Wilkes added:

“We are delighted to have been able to bring Anton to Wilkes and are excited to strengthen our offering both in the UK and overseas. During the recruitment process Anton showed a real desire and drive to help the firm build on its reputation and we are excited to support him in his endeavours.”

Anton is a native German speaker and can be reached on 0121 710 5900 or via email at afischer@wilkes.co.uk.

With yet another UK High Street store on the brink of collapse; albeit rescued for now but with changes and implications continuing, Stuart Tym, Head of Planning at Wilkes takes a brief look at the changing face of the UK High Street.

11.2% of the UK’s retail units are now standing empty.  The nature of the new entries to business on the High Street and likewise those falling out of business are also very telling.  Barbers, beauty salons, cafes, tearooms, bars and restaurants see a resurgence with the more traditional offerings of pubs, banks, news agents, travel agents and clothing/ shoe stores falling by the way side.

To a degree this reflects the changing nature of the way we do our business and the function the High Street has in our lives.  We no longer need to visit a shop to buy a newspaper, book a holiday or bank when there is an app for that.  We no longer choose to buy our shoes and clothes in store when they are available for less online.

Is this simply a reflection of lower overheads or a question of changing habits and convenience?  It may be argued that the tax regime has changed the way we drink with punters concentrating on the experience, over the pint itself; hence the decline of the traditional pub and the coming into trend of more restaurants and bars. However, the fall of the town centre continues, and in this year alone around 3,800 stores are going to close. These most noticeable with a closure plan include Toys ‘R’ Us and Marks and Spencer’s.

The High Street and/or the Town Centre is an important space in planning terms and alongside the obvious retail uses is a space which demonstrates the affluence and/or vitality of a town but which also, when gotten wrong, can bring a town to its knees very quickly.

In assessing the direction of travel it is interesting to look to the new NPPF.  I have expressed the view elsewhere that the changes made in the NPPF are subtle around the edges rather than wholesale.  Para.86 & 87 reflect what was para 24 in the 2012 NPPF and are shown below with the notable addition in bold: –

p.86 Local planning authorities should apply a sequential test to planning applications for main town centre uses which are neither in an existing centre nor in accordance with an up-to-date plan. Main town centre uses should be located in town centres, then in edge of centre locations; and only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered.

p.87 When considering edge of centre and out of centre proposals, preference should be given to accessible sites which are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale, so that opportunities to utilise suitable town centre or edge of centre sites are fully explored.

The observant amongst us will recognise this as a flashback to the old Planning Policy Statement 4:Planning for Sustainable Economic Growth at EC5.2 defining a reasonable period as the “the Plan period” and at EC5.2 (c) a sites likelihood of forming links with the centre boosting it back up.

It is also quite telling to compare the bullet point list of priorities that were at para 23 (#NPPF1) and now appear at para 85 (#NPPF2).  Notable is the omission to the various references to competition in the old version and the express inclusion of housing within the suitable mix of uses.  The below, selectively draws out the additions in bold and the omissions by way of strikethrough.

Planning policies and decisions should support the role that town centres play at the heart of local communities, by taking a positive approach, promote competitive town centre environments , to their growth, management and adaptation. Planning policies should:

1. Define a network and hierarchy of town centres and promote their long-term vitality and viability – by allowing them to grow and diversify in a way that can respond to rapid changes in the retail and leisure industries, allows a suitable mix of uses (including housing) and reflects their distinctive characters;

2. Define the extent of town centres and primary shopping areas, and make clear the range of uses permitted in such locations, as part of a positive strategy for the future of each centre;

Promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres;

3. Retain and enhance existing markets and, where appropriate, re-introduce or create new ones, ensuring that markets remain attractive and competitive;

4. Allocate a range of suitable sites in town centres to meet the scale and type of development likely to be needed, looking at least ten years ahead. Meeting anticipated needs for retail, leisure, office and other main town centre uses over this period should not be compromised by limited site availability, so town centre boundaries should be kept under review where necessary;

5. Where suitable and viable town centre sites are not available for main town centre uses, allocate appropriate edge of centre sites for main town centre uses that are well connected to the town centre. If sufficient edge of centre sites cannot be identified, policies should explain how identified needs can be met in other accessible locations that are well connected to the town centre; and

6. Recognise that residential development often plays an important role in ensuring the vitality of centres and encourage residential development on appropriate sites. 

Suffice to say the future is an interesting challenge for retail and our town centres.  Those that diversify to become enjoyable spaces to be rather than simply shopping destinations seem more likely respond to the new NPPF’s message and surviving.  The town centre is now a retail and leisure industry and that mix includes providing a space where people want to live as well as simply shop.

Stuart can be reached on  0121 710 5891 or via email at stym@wilkes.co.ukYou can also get all of the latest planning news straight to your inbox by signing up here.

Two members of the The Wilkes Private Client Team – Lucy Cox, and Sophie Fenn have recently completed the STEP course with a third, Jodi Flint, soon set to complete her final exam as part of our drive for continual staff development.

Lucy and Sophie join Ellie Holland, Managing Partner at Wilkes, who gained her accreditation in 2008, as specialist STEP qualified solicitors within the team.

STEP is the global professional association for practitioners who specialise in family inheritance and succession planning. STEP members help families plan for their futures, from drafting a will to advising on issues concerning international families, protection of the vulnerable, family businesses and philanthropic giving.

Lucy and Sophie were two of the highest performing students in the latest round of STEP graduates and were invited to sit at the top table at the Birmingham STEP annual dinner this summer.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “Giving our solicitors the opportunity to develop their skills is not only important for our firm and its clients, but for their futures. We have always dedicated investment in our people to help them fulfil their potential and deliver excellence to our clients”.

Lucy Cox, solicitor at The Wilkes Partnership said, “From the moment that we started at Wilkes we were encouraged to enrol on this course and to develop our skillset. Now that it has been completed, I feel that I have greater knowledge and confidence to provide expert advice to clients.

For more information about how we can help you with inheritance and succession planning please call 0121 733 8000 or email eholland@wilkes.co.uk.

Stuart Tym, Head of Planning at Wilkes examines the government’s recent revision of the National Planning Policy Framework (“NPPF2”) which incorporates the 18 Jun 2015 WMS ( Written Ministerial Statement)  in respect of community concerns. 

The WMS has incorporated the WMS as follows: –

“When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.”

Planning applications proposing wind energy development that include one or more turbines, will “not be considered acceptable” where it is not in an area noted to be suitable by the development plan. The NPPF also states that the proposal must also have undergone consultation and it must be shown that the proposal has the backing of the local community.

The WMS is brought forward with a notable addition, following the trend of NPPF1, in a footnote!  FN49 adds in that these negative /protective policies do not apply to the repowering of existing wind turbines, and therefore, there is clear incentive to revive such wind turbines in order to start using them again as a source of renewable energy.

From an evidential perspective it is hoped that problems and benefits (the balancing act) could be more clearly evidenced in a repowering scenario than a new green site scenario.

Stuart comments that “This change is being celebrated by those campaigning against climate change, and it is important for us to understand why”.

Although, still dependent on the securing of funding, and whether individual developers will choose to carry out such repowering, there are financial barriers that must be overcome by wind farm developers, however, it would appear that renewable energy is being refocused once again.

Stuart has a strong background of acting on renewable energy applications having most recently acted on opposing a planned windfarm in the Lincolnshire area.

If you would like assistance in relation to planning law or renewable and/or alternative energy please contact Stuart Tym at The Wilkes Partnership on 0121 710 5891 or stym@wilkes.co.uk.

For those of us for whom such items are of significant importance, we can confirm that the colour red (specifically Pantone 18-1663TP) is now becoming recognised as a registered trademark for Louboutin high-heeled shoes.   

The Grand Chamber of the Court of Justice of the European Union made this finding in proceedings brought by Christian Louboutin and his companies concerning the sale of shoes by another company (Van Haren shoes) that Mr Louboutin alleged infringed his trademark by incorporating red soles.

Mr. Louboutin reportedly used his assistant’s red nail polish and applied it to the soles of a shoe a quarter-century ago. Since then, he has frequently declared the design element to be his recognisable signature and has argued that it merits legal protection.  This argument was put to the test when Van Haren, a Dutch company, started selling affordable high-heeled women’s shoes with red soles. Lawyers for Mr. Louboutin claimed that the shoes sold by Van Haren, part of its Fifth Avenue by Halle Berry line, infringed on his brand’s trademark for footwear. The trademark, registered in Belgium, the Netherlands and Luxembourg, referred to “the colour red (Pantone 18 1663TP) applied to the sole of a shoe.”

Louboutin’s team had an initial ruling in their favour and Van Haren had to temporarily stop making and selling the line of shoes, but the company’s lawyers fought back, using the argument that Mr. Louboutin’s red soles were not a separate entity from the shape of his high-heeled shoes – and shapes typically cannot be trademarked under European Union law.  The case eventually made its way to the European Court of Justice and the arguments focused on the definitions surrounding “shape”.

The Court found that, whilst it was true that the shape of the product or of a part of the product played a role in creating an outline for the colour, it could not, however, be held that a sign consisted of that shape in the case where the registration of the mark did not seek to protect that shape but sought solely to protect the application of a colour to a specific part of that product. The mark did not relate to a specific shape of sole for high-heeled shoes because the description of that mark explicitly stated that the contour of the shoe did not form part of the mark and was intended purely to show the positioning of the red colour covered by the registration.

In its ruling, the court concluded that Louboutin was not seeking to protect the shape of a shoe, merely the application of a colour to a specific part of it.

The case is not over yet as it will still have to go back to the original Dutch Court, however it is widely expected that the court will now confirm the validity of the red sole trademark.

If you would like assistance in relation to a copyright/trademark matter, please call Aimée Redican on 0121 710 5846 for further information or email aredican@wilkes.co.uk.

Businesses have been gearing themselves up to comply with the Data Protection Act 2018 and General Data Protection Regulation (GDPR) in relation to the retention and use of personal data of individuals they interact with for some time now, but do they realise there are huge employment law implications to this new directive?

Jas Dubb, employment law specialist at Wilkes sheds some light on the new rules.

“The penalties for non-compliance have now significantly increased and can carry criminal sanctions in extreme cases”, he warns.

Personal data comes in many forms. It is likely that employers will hold a lot of personal data about their employees, and former employees.  This could include next of kin details, benefits details and bank details. If the employer operates CCTV or monitors emails, internet use or records telephone calls, then this will constitute personal data for the purposes of GDPR.

Under GDPR employers need to ensure that where data is held it is properly protected. There is a greater emphasis upon security and the control of data within the employer’s possession. Employers should also consider how long they legitimately require to hold employee data and regularly check the accuracy of the data held.

Employees have previously had the right to seek copies of the personal data held via a Subject Access Request. But under GDPR employees also have rights, under certain circumstances. to erase personal data, to restrict data processing and to object to processing of their personal data, amongst others.

As part of the road to compliance, employers need to have a privacy notice. The notice needs to cover such things as what data it expects to gather, whether or not they ever share this data and if so with whom, amongst other matters. This notice must be provided to all those who’s data is held. As such this, in an employment law context, would include prospective candidates who may apply for a job, workers the business may engage from time to time as well as direct employees.

The Information Commissioner’s Office (ICO) is the body which oversees this new legislation. Disgruntled employees can raise their concerns and complaints directly with the ICO.

The original employer data protection obligations come from the 1998 Data Protection Act following EU regulations. These were related to obtaining, processing and securing personal data. This has now been replaced by the GDPR and Data Protection Act 2018 which came into force on 25 May 2018.

We provide advice to both employers and employees. For advice on any employment related matter and to discuss our Free Employment Health Check for your business please contact Jas Dubb at The Wilkes Partnership on 0121 233 4333 or jdubb@wilkes.co.uk.

The Wilkes Partnership has advised BGF on its portfolio company, The Coaching Inn Group’s, 15th site acquisition of The Swan Inn, Stafford for an undisclosed sum.

The transaction was led by Corporate Partner, Rick Smyth with support from Associate Solicitor Mike Linford.

Supported by BGF, The Coaching Inn Group will continue to seek and acquire high-quality coaching inns as it looks to further consolidate this highly fragmented market.

Commenting on the deal, Rick said: “We were delighted to be working with the team at BGF again to help them develop their ongoing investment in the Company. We look forward to continuing to build the relationship going forward.”

It has been a great start to the summer for the Wilkes corporate team with a record number of sizable mandates currently under instruction. It is encouraging to see the M&A market continue to flourish in 2018.”

Mark Freer, Investor at BGF said: We have been working with Wilkes for a number of years and always appreciate their pragmatic approach to getting the job done. We look forward to working with the Wilkes team again on transactions of this nature.

This is the latest in a growing line of M&A work for The Wilkes Partnership, following the completion of deals across a range of sectors including IT software, FMCG, events and health and social care.

For help and advice relating to your business get in touch with Rick Smyth on 0121 710 5932 or via email at rsmyth@wilkes.co.uk.

Congratulations to Nicola Pitt who has successfully qualified into the Private Client Team here at Wilkes.

Nicola will be working across all areas of private client work such as Wills, Probate and Tax Planning.

Nicola graduated from The University of Birmingham and completed her LPC at The University of Law, Birmingham.

Speaking about the appointment, Zara Reed, HR Director at Wilkes said “ We are delighted to have Nicola with us as a qualified solicitor having successfully completed her training contract.

We feel that the training contracts we offer here at Wilkes give future solicitors a well-rounded view of what life in a faced-paced, independent law firm is all about.

Our aim is to select high quality individuals with realistic potential to become excellent qualified solicitors and, ultimately, partners.”

We offer a two-year training contract made up of four six-month seats in the following areas:

  • Corporate & Commercial
  • Real Estate
  • Business Recovery
  • Commercial Litigation
  • Property & Probate Litigation
  • Private Client

We are currently recruiting for training contracts commencing in September 2020. The deadline for applications is 31 July 2018.

If you would like to find out more about our application process click here.

The Wilkes Partnership Solicitors, Birmingham, Solihull, Supreme Court

Civil Partnerships should be available to everyone – or no one. This was the key finding of a hearing in the Supreme Court in July of this year.

The issue was raised by a different-sex couple who had an objection to marriage and who wanted to have a civil partnership with one another. They have a long-term relationship and have two children.  Under the current rules, they can marry but they cannot have a civil partnership as civil partnerships are restricted to couples of the same sex.

The anomaly in the law arose when Parliament enacted the 2013 Act enabling same-sex couples to marry.  It consciously decided at that point neither to abolish same-sex civil partnerships nor to extend them to different-sex couples even though that was recognised as creating an inequality of treatment between same-sex partners and different-sex partners. Rather, Parliament decided to carry out further investigations. They proved inconclusive. The government therefore decided that there should be no final decision on the future of civil partnerships until societal attitudes became clearer after same sex marriages had taken root.

In seeking to justify its interference with the rights of different-sex couples, the government argued that changes in the law in such a sensitive area of social policy needed time for proper inquiry and consideration. Requiring such time was a legitimate aim. It was therefore legitimate to perpetuate the acknowledged inequality of treatment.

A key consideration for the Supreme Court in addressing the issue was the European Convention on Human Rights taken in conjunction with the right to respect for family life. One of the main tenets of the convention is that people should not be discriminated against on the basis of sex – unless there is a very good and justifiable reason for it.

In respect of the 2013 Act it was parliament itself that brought about the inequality immediately on the new law coming into force, where none had previously existed. In the Court’s view, to create a situation of inequality and then seek the indulgence of time, in the present case several years, as to how to cure it was, to say the least, less obviously deserving of a margin of discretion.

The Court therefore found that the current 2013 Act is discriminatory, that there is no justification for this discrimination and the Act should therefore be amended as soon as possible.

This is not to say that the law has yet been changed and nor can different-sex couples yet have a civil partnership. It is, however, a significant signpost on the way to alleviating this anomalous and discriminatory law.

If you would like assistance in relation to a family matter, call Aaron Keene at The Wilkes Partnership on 0121 785 4400 for further information or email abkeene@wilkes.co.uk.