I’m working on a law question and need support to help me understand better.PRACTICAL LEGAL RESEARCH ASSESSMENTDATE OF HANDOUT: DEADLINE FOR SUBMISSION:28 May 2021 04 June 2021Please remember that Professional Conduct is pervasive and that points on Professional Conduct can arise in any assessment.INSTRUCTIONS TO CANDIDATES Your submitted work must be word processed.
The
contents of this assessment are confidential. You must not disclose,
discuss or express an opinion on the contents of this assessment or your
answer to it to any other person, by any means.In
particular, you should note that you may not consult any member of the
University of Law staff or any other person on any aspect of this
assessment.
If you are in any doubt as to how to interpret any word or
phrase in this assessment you should decide for yourself what
interpretation to adopt.By submitting this assessment you are confirming that you are fit to sit, in accordance with the Assessment Regulations. To: Trainee From: Mary FrewClient: Krystina and Anna KuropatwinskiSubject: Housing and harassment issues Date: 28th May, 2021MEMORANDUMWe have been instructed by Krystina and Anna Kuropatwinski.Six
months ago, Krystina separated from her partner.
She spent a month in
emergency local authority accommodation. For the last five months,
Krystina has lived with her 14- year-old daughter, Anna, at Flat 3,
Dixon’s Tower, Weyford, England (“the Flat”). The Flat is a “house in
multiple occupation” (“HMO”) within the meaning of the relevant
legislation. Krystina and Anna have their own bedroom, and they share
the Flat with five other unrelated individuals. Krystina pays rent of
£75 per week to her landlord, Marcel Dupont. Krystina has a very poor
credit history, and has found it very difficult to find accommodation,
so was pleased when she was offered this room.Four
months ago, an incident occurred which caused Krystina and Anna great
concern. A neighbour from a property on the floor above (which is not
part of the Flat), John Wilson, told Anna that he had recently been
released from prison, but that she should not worry, because he did not
like girls of Anna’s age. Krystina remonstrated with John about this
comment, but John said that he had paid his debt to society.After
that, John sought to engage in conversation with Anna whenever they
passed at the entrance to Dixon’s Tower. Whilst the conversations were,
on the face of it, harmless and courteous, Anna found then extremely
intimidating, and some of John’s remarks were, in Anna’s opinion,
calculated to unsettle her. Krystina asked John to keep away from Anna,
but John said that it was a free country and he would talk to who he
liked.Two
months ago, Krystina visited Weyford City Council (“the Council”) to
see if they could do anything about the matter. In view of the Council’s
concerns about Anna’s welfare, the Council officer opened a statutory
investigation to make enquiries to enable the Council to decide whether
it should take any action to safeguard or promote Anna’s welfare.Krystina
told the Council that she could not find anywhere else to live, so
would need the Council’s help to get Anna away from John Wilson. During
the course of the Council’s investigation, it was discovered in passing
that Marcel Dupont did not have an HMO licence for the Flat.Unfortunately,
over the last two months, John Wilson has made a number of overtly
sexual remarks, as a result of which Anna has started suffering from
panic attacks when she goes in and out of the Flat. Her doctor has
prescribed anxiolytic medication. Krystina has contacted the Council on
numerous occasions in respect of John’s behaviour, and has repeatedly
asked the Council to rehouse them. However, the Council have said that
they have passed the matter on to their housing department, who are
looking into finding alternative accommodation.I
am of the opinion that if the Council had conducted their investigation
properly, they would probably by now have sought an emergency
protection order in respect of Anna. I’ve asked another trainee to
investigate whether the Council is under any obligation under any
housing legislation to rehouse Krystina and Anna.In
the meantime, please could you to look into whether Anna potentially
has any claim in tort against the Council for any failures arising out
of its statutory duty to investigate its concerns; what steps, in
outline, might be able to be taken against John Wilson in respect of his
behaviour; and whether, on the basis that the HMO is unlicensed,
Krystina can stop paying rent to Marcel Dupont, and get back any rent
paid. I will then be able to assess the merits of pursuing any such
actions.Please use our standard format of email and report to cover all of the issues and your recommendation.THAT IS A TEMPLATEEMAIL FROM:TraineeTO: [ ]SUBJECT: [ ]DATE: [ ][ ]Review of Research[ ]Advice[ ]RESEARCH REPORT REF:[ ]CLIENT: [ ] MATTER: [ ] DATE:[ ] ANALYSIS Facts and Instructions[ ]Legal IssuesMy research report deals with the following issues:1. [ ] 2. [ ]3. [ ]CONCLUSIONSReport on Legal Issue 1: [ ] Report on Legal Issue 2: [ ][Complete a summary of this sort for every issue that your research covered.]PRIMARY SOURCES [ ]COMMENTARY I used the following commentary to support my research and ensure that it was up to date:
Source
Location / Reference
Subject matter ¶graph heading
NOTES [ ] TIME TAKEN Research:[ ] minutesReporting:[ ] minutes [ ] minutes PRACTICAL LEGAL RESEARCH ASSESSMENT CRITERIA. (GUIDANCE TO THE ASSESSMENT)You
will be assessed on your ability to conduct legal research on a
competent / not yet competent basis by reference to the following LPC
assessment criteria: 2. Analysis of complex legal, factual, business and/or management issues, as appropriate 3. Application of knowledge and understanding to the task4. Ability to select and use appropriate information in support of the argument 6. Ability
to reach a clear and reasoned solution to the problem(s) raised in the
task, addressing any ethical and commercial issues, as appropriate7. Ability to communicate using a clear and logical structure and language appropriate to the taskWhen
carrying out your research you may use either electronic or paper based
sources, or both, unless you are expressly told otherwise. There is no
specific word limit.Guidelines
are set out overleaf to help you understand how to ensure your work
demonstrates that you have met these LPC assessment criteria. GUIDANCE ON PRACTICAL LEGAL RESEARCH REPORTINGCriterion 2: Analysis of complex legal, factual, business and/or management issues, as appropriate analyse the client’s concerns, perspective and needs;
identify the issues to research and base the research on key factual information and the supervisor’s requirements; and
explain
whether any further information is required; and correctly analyse how
the identified law relates to the identified issues.
Criterion 3: Application of knowledge and understanding to the task correctly interpret the sources of law used to support the report;
take account of the supervising solicitor’s and/or client’s perspective, as relevant; and
address all issues raised; and do not cover issues which are irrelevant to your instructions.
Criterion 4: Ability to select and use appropriate information in support of the argument use an appropriate and sensible range of reliable research sources;
identify the correct sources of law;
explain the primary sources of law and commentary that you used;
include correct citations and references to all of the relevant law; and
do not repeat the full text of sources nor attach a copy of any sources that you used.
Criterion
6: Ability to reach a clear and reasoned solution to the problem(s)
raised in the task, addressing any ethical and commercial issues, as
appropriate provide unequivocal legal and practical advice, including any relevant procedural steps;
identify potential solutions, based on your analysis of the legal and factual issues;
identify and analyse the advantages and disadvantages of potential solutions;
identify the most appropriate solution(s);
only where there is any uncertainty, explain how your advice would differ if additional facts are subsequently discovered; and do not set out excessive detail nor irrelevant material.
Criterion 7: Ability to communicate using a clear and logical structure and language appropriate to the task use the standard format for your email and report;
in an email separately summarise the conclusions to your legal research and advice;
produce a well-organised research report at a level of detail suited to the task;
be concise and clear, using a professional style to suit your supervising solicitor’s requirements;
ensure you have enough time to check and proof read your work;
produce an email and a report which contain no typographical errors and are grammatically correct; produce work which meets the needs of the recipient;
include sufficient information and references to commentary to allow
your supervisor to find and check the sources and your conclusion;
do not make unsupported assumptions about the meaning of the law;
do not breach any professional conduct obligations;
spend an appropriate amount of time on your work and do not rush the research; and
record the amount of time that you spent on research, reporting and drafting your email.
PRESCRIBED PRACTICAL LEGAL RESEARCH ASSESSMENT TEMPLATEWhen
completing the Practical Legal Research Assessment, you must produce an
email and a report in the format set out below. Guidance included in
square brackets in this template must not appear in your email or
report.EMAIL FROM:TraineeTO: [Name of Supervisor]SUBJECT: [ ]DATE: [The date on which you prepared the email] [Your email, which should be split under two headings] Review of Research [This should briefly summarise the conclusions in your report into the legal issues contained in your attached Research Report]Advice[This should cover:Your advice for the client;
Your recommendation(s); and
Your analysis of alternative courses of action]
————————-[Start your research report on a new page]————————-RESEARCH REPORT REF:[ ]CLIENT: [ ] MATTER: [ ] DATE:[The date on which you complete the actual research] ANALYSIS Instructions[A brief analysis of the relevant facts and instructions, and client’s needs]Legal IssuesMy research report deals with the following issues:1. [A brief statement of the first legal issue on which you have reported] 2. [A brief statement of the second legal issue on which you have reported]3. [etc][If there is only one issue, you do not need to produce a numbered list]CONCLUSIONSReport into Legal Issue 1: [A reminder of issue 1 identified in your list of Legal Issues] [A report into the legal position related to the first legal issue that you researched, summarised in your email]Report into Legal Issue 2: [A reminder of issue 2 identified in your list of Legal Issues][A report into the legal position related to the second legal issue that you researched][Complete a summary of this sort for every issue that your research covered]PRIMARY SOURCES [A list of all primary sources to which you have referred and which support your conclusions][Further guidance on reporting on primary sources:Include
sufficient information about each source to enable your supervising
solicitor to identify the specific source, sections/regulations/
paragraphs, as well as their significance to your conclusion(s);
Do not quote verbatim from sources, but you may summarise content when you consider it necessary;
You
may choose to list primary sources separately for each legal issue
where necessary, possible and appropriate, but you do not have to do
this;
If
you list sources separately by reference to each of the legal issues,
and a source is relevant to more than one legal issue, you do not need
to duplicate information; a cross reference is sufficient;
Always include commencement dates for legislation; and
Always include full citations for case law]
COMMENTARY [A
list of all commentary that you used to support the research and to
ensure that it was up to date. You may choose to list commentary related
to each legal issue separately, where necessary, possible and
appropriate, but you do not have to do so]I used the following commentary to support my research and to ensure that it was up to date: SourceLocation / ReferenceSubject matter ¶graph headingNOTES [If this part is not relevant to your research, it can be omitted] [Include
any notes to your supervisor that you consider are of interest or
assistance but are not directly relevant to your allocated research
task, such as:Proposed amendments;
Appeals pending;
Case law or arguments which can be found in sources you used, but which you consider are not relevant; and/or
Points that you consider may become relevant as the matter progresses]
TIME TAKEN [Record the actual time taken for each type of work]Research:[ ] minutesReporting:[ ] minutesEmail:[ ] minutesThis page is intentionally blankBelow is an example of email to a trainee and the respond by the trainer, kindly peruse and follow suit for mine. Thank youINTRODUCTION TO PROFESSIONAL PRACTICEUnit Workshop: Practical Legal ResearchGuideContextResearch
is often allocated to trainee solicitors and paralegals. This Unit
helps you develop your practical legal research skills and plan how to
report the findings of your research. You will practise providing a
clear analysis and application of law to a client’s situation; a skill
which is highly valued. Outside
of the Unit you need to practise these skills, and in particular
practise using the online and paper-based legal research sources. You
will, over time, develop a general research strategy to give you
confidence that your research is comprehensive and complete. You will
carry out research for the formal assessment and throughout the course.Outcomes By the end of this Unit you should be able to:1. Respond appropriately to a colleague’s request for assistance with legal research.2. Follow a thorough process to solve a client’s problem and adopt efficient research strategies.3. Draft a report to answer a client’s problem in a format which meets a supervising solicitor’s needs. 4. Use time management strategies and record time when working on legal research.Unit Workshop TasksIn this Unit Workshop you will: 1. Consider the outcome of research and reports prepared by colleagues. 2. Analyse a problem, apply legal principles to meet the client’s needs, evaluate possible solutions and advise.PreparationTo prepare for this Unit workshop you should:1. Read Chapters 2 to 9 of the Skills for Lawyers textbook.2. Complete Test and Feedback – Practical Legal Research (Preparation).3. Read
the Assessment Guidance relating to the Practical Legal Research
Assessment, including the prescribed email and report format. 4. Complete the Preparatory Tasks attached to this Guide.Materials Required for the Unit Workshop1. This Unit Guide and all documents attached.2. Your Skills for Lawyers textbook3. Your Business & Company Legislation handbook. 4. All of your notes and documents relating to the Preparatory Tasks.Consolidation after the Unit Workshop It is important that you consolidate your learning. In particular you should: 1. Review
your answers to the Preparatory and Unit Workshop Task in light of the
work you completed and any feedback you received in the Unit Workshop. 2. Complete Test and Feedback – Practical Legal Research (Consolidation).3. Complete the Consolidation Task.4. Complete
the Tasks in the Practical Legal Research Workbook. Practise and
improve your research skills by consulting the resources available on
the library webpages and in the library. Visit the library at your
Campus, find practitioner texts, use resources with which you are not
familiar and use the facilities that are available to assist your legal
research.PREPARATORY TASK 1Your supervising solicitor has sent you the email set out below, while she is travelling. Use appropriate research sources to comply with her instructions. EMAILTO:TraineeFROM:Angela SmytheSUBJECT: ST077-003/AS: Brian Stokes, Find of CoinsDATE:[Today’s date]I’m
on the train at the moment, so need you to look something up for me.
The firm acts a lot for Brockley Construction plc. One of their
construction managers, Brian Stokes, has sent an email today, part of
which is attached. Please
research just his specific queries, including any penalties for failure
to report this find. I vaguely remember something about ‘treasure
trove’ but I think the law on treasure changed about 15 to 20 years ago,
and I read about some minor changes recently. Keep
the report brief and don’t spend too long on this one, as we might not
charge. Still record your time. Remember, Brian is our client for this
matter, not the company, so don’t do it on the general file for
Brockley. I’m happy that there is no conflict of interest. Don’t waste
time on things that he doesn’t want to know.Please
confirm that you have received this so that I know you are working on
it. Please send me your research report in our standard format, by email
before the end of the day. Brian may call me back at close of business.
Just in case I can’t download or view the full report in Word format
while travelling, your email needs to be brief but clear about what he
should do. >>>Brian.Stokes@BrockleyBuild.com wrote:“During
a visit to one of our sites in Suffolk yesterday, I was inspecting some
foundation trenches dug by a sub-contractor. I noticed three metal
discs that looked like they might be coins. I was a coin collector in my
childhood so was curious to see how old they were. A museum curator
friend of the sub-contractor has told me that they are coins, made of
solid gold and date back to about the seventh century.I want to know: whether I need to inform anyone of this find; and, if so
the consequences of failing to do so.”
PREPARATORY TASK 2In
the Unit Workshop you will analyse a complex matter based on the
information in the following attendance note. Highlight important issues
and facts, draw diagrams and make notes or lists to help you recall
important facts when dealing with the detailed legal issues in the
Workshop. Make sure that you look up the meaning of any legal
terminology used in the attendance note which is unfamiliar to you.You will follow the Problem Analysis Model in the Unit Workshop. Do not solve this problem before you attend the Workshop. ATTENDANCE NOTEFEE EARNER:ASATTENDING:Monica RowlingMATTER:Paloma ChoiREF:RO103-002/ASTIME TAKEN:30 minutesMonica gave the following information. The Company and Family BackgroundMonica
needs advice about how best to deal with a director in Kavanagh
Furniture Limited (the “Company”). The director is called Paloma Choi
and is the step-mother of Monica’s children, James and Delyth. Paloma
also operates a sole trader business which sells antiques, separate from
the Company. In contrast, the Company imports and sells modern
furniture. Monica estimates that the Company is worth at least £1m but
that is a rough estimate; she doubts anyone would buy it in the current
circumstances.Monica
and her son James Kavanagh (aged 24) are directors and shareholders of
the Company, as is Paloma. Monica’s daughter, Delyth Springfield (aged
22) is not a director but is a shareholder. James is the managing
director.Monica
amicably divorced James and Delyth’s father, Padraig Kavanagh, 16 years
ago. Padraig later married Paloma Choi, but sadly he died 8 years ago.
Paloma inherited Padraig’s shares in the Company. As a result of the
amicable relationship that she had with the children and Monica, Paloma
retained her shares in the Company, became a director, and carried out
an active role in the Company, working part-time as the marketing
director on an employed basis. Paloma’s service contract provides a 12
month notice period. Share ownerships and directorships are as follows:Directorship in the CompanyVoting shares in the Company JamesYes – employed20,000DelythNo20,000MonicaYes – non-executive and chair20,000PalomaYes – employed40,000The Company has Model Articles, with no special articles. Monica,
James and Delyth used to trust Paloma implicitly and thought of her as a
member of their extended family until a few months ago. Paloma has been
charged with fraud by false representation when seeking investment in
her sole-trader business. Basically, when speaking to potential lenders
to her personal business, she over-inflated her profits by giving the
turnover figure instead of the operating profit, and she didn’t explain
the cash-flow problems that she was having. Some of the investors were
family friends and are asking for their money back. Paloma’s solicitor
advised her to plead not guilty because it is unlikely that she would be
remanded in custody. However, her chances of successfully defending the
charge very much depend on whether the jury believes that she made a
mistake about terminology rather than made deliberately false claims.
The solicitor advised her to prepare for a two year custodial sentence
if she is convicted.James
and Delyth suspect Paloma was deliberately misleading and are furious.
They feel let down as they considered her to be a second mother. Monica
likes Paloma and they got on well, but Monica also suspects Paloma knew
the figures were false.Directorship: James
has asked Monica to help him and Delyth vote to remove Paloma from the
board of the Company immediately, and he wants to do it without
informing Paloma. Monica is inclined to agree for reasons set out below.
Delyth will support the decision of her mother and brother about the
removal, but wants to be fair to Paloma on any other issues. Paloma’s workload:
Monica and Delyth are happy for Paloma to work for the Company while
the trial is on-going. Monica want to ensure Paloma has no involvement
in financial matters and does not contact clients. However, James thinks
they should terminate Paloma’s employment regardless of the cost of
paying off her 12 months’ notice period. AS advised that the employment
team would advise on the potential costs/risks associated with
terminating Paloma’s employment immediately, or changing her role, if
necessary. Urgently, Monica needs to know the position if Paloma is
subject to a custodial sentence, as that seems likely. Monica previously
worked for the Company, and is therefore confident that she can take
over marketing for a year or two. Delyth cannot work for the Company
because her full-time job at an import/export business pays
significantly more than the Company could possibly pay, and her employer
would not hold her job open. Monica’s ConcernsMonica
works part-time with adults who have significant mental disabilities
and has to look after their money from time to time; she is therefore
concerned to ensure public records show that Paloma is no longer part of
the Company’s management. There has never been any animosity between
them and Paloma has been very kind and generous to the children. Monica
does not want to leave Paloma completely penniless, especially if she
has a custodial sentence. Monica wants to avoid potential publicity at
court and the Employment Tribunal if at all possible.PREPARATORY TASK 31. Find
an explanation, from a reliable paper or online source, about
termination of employment in the event of a custodial sentence. Make
notes, and print out or save enough information for you to be able to
use what you have found in the Workshop, including a note of exactly
where you found it.2. Create a list of the types of sources that you would use for any research problem, in chronological order.PREPARATORY TASK 4Find and read the guide ‘Setting Up Current Awareness Alerts’ located on the main Library page.Select
a subject area from one available of the available databases and then
follow the instructions in the guide to set up a personal current
awareness alert for your own use.Be prepared to discuss the process of setting up the alert and any results received in the Workshop.UNIT WORKSHOP TASK This is a continuation of Preparatory Tasks 2 and 3.Analyse and solve Monica Rowling’s problem.CONSOLIDATION TASKThis is a continuation of the Unit Workshop Task. You have received the following email from your supervisor. Follow her instructions.From:Angela Smythe (Angela.Smyth@U-Laws.com)To: Trainee Subject: RO103-002/AS Monica Rowling – Paloma ChoiDate: [Today’s date] Please
could you produce a full research report, together with a covering
email, about Monica Rowling’s legal position and your recommendations.I
fully understand how to run meetings in a Company with Model Articles
and about the public records relating to termination of a directorship.
Therefore, I do not need you to produce a detailed report about those
aspects. Kind regardsAngelaUnit Workshop: Practical Legal ResearchPreparatory Task 1 ExemplarEMAIL From:TraineeTo: Angela Smythe (Angela.Smythe@U-Laws.com) Subject: Brian Stokes, Find of gold coinsDate: [Today’s date] Dear Angela I have researched whether Brian Stokes has any obligations following his discovery of three gold coins from 7th century. Review of ResearchThe
coins Brian found fall within the definition of ‘treasure’. As a
result, he is under a duty to notify the find of the coins to the
coroner for the area where he found them. He
must report the find as soon as possible because it is a criminal
offence not to do so within 14 days of finding the coins. While it is
possible that the 14 days will only start to run from the time when he
became aware that the coins are ‘treasure’, he must not delay making the
report. The offence is so serious that a Magistrates’ Court can impose
an unlimited fine and can even give a custodial sentence, if
appropriate. AdviceBrian should report the matter to the local coroner. Contact details for the Coroner for Suffolk are available on www.suffolk.gov.uk. Brian can also see more information about finding treasure on www.gov.uk/treasureReport treasureReport treasure finds to the local coroner within 14 days – items officially defined as treasure, Portable Antiq…If you or he need any further assistance, do give me a call.Kind regardsTrainee RESEARCH REPORT REF: STO77-003/ASCLIENT: Brian Stokes MATTER: Find of Coins DATE: [The date on which you do the research] ANALYSIS Facts and InstructionsBrian
Stokes needs to know whether he has to report a find of gold coins, and
is concerned about the consequences if he fails to do so.Legal IssueMy research report deals with the legal issue set out belowCONCLUSIONReport on Legal IssueWhat
obligations would Brian have to report a find of three seventh century
gold coins and, if he has any obligation what are the consequences of
failing to do so?The
coins fall within the definition of ‘treasure’ because they were a find
(i.e. found together) of at least two coins, containing at least 10%
precious metal (gold). As a result, Brian is under a duty to notify the
find of the coins to the coroner for the area where he found the coins. Brian
must report the find as soon as possible because it is a criminal
offence not to do so within 14 days of finding the coins. It is arguable
that the 14 days will only start to run when we tell him that the coins
are ‘treasure’, but he must not delay making the report. If he misses
the deadline he would be guilty of a summary offence and the
Magistrates’ Court has the power to impose an unlimited fine or give a
custodial sentence of up to 3 months, or both.There
is a defence of having, and continuing to have, a reasonable excuse for
failing to notify the coroner. This does not appear to be relevant to
Brian, so he should make a report within 14 days of the find.PRIMARY SOURCES Treasure Act 1996s1 and s3 contain the provisions which mean that Brian’s find is ‘treasure’.s1(1) (a)(ii) sets out the definition of ‘treasure’ s3(2)defines ‘coin’ s3(3)defines ‘precious metal’s3(4)sets out the requirements for a ‘find’ s8(1)contains the obligation to notify the coroner s8(2)contains the 14 day notice period s8(3)sets out the offence and penaltys8(4)contains the defenceAll of the above sections of the Treasure Act 1996 came into force on 24 September 1997: see SI 1997/1977, art 2.s37
Criminal Justice Act 1982 sets out the standard scale for fines. The
part of the section which contains the standard scale came into force in
its current form on 1 October 1992 : see Criminal Justice Act 1991
s17(1).The
upper limit on the fine was removed by s85 Legal Aid, Sentencing and
Punishment of Offenders Act 2012 which came into force on 12 March 2015.I found no relevant cases.COMMENTARY I used the following commentary to support my research and ensure that it was up to date:SourceLocation / ReferenceSubject matter / paragraph headingHalsbury’s Laws 5th Edin Lexis®LibraryVol 77, National Cultural Heritage 4(1) paragraph 1091Obligation to notify the coronerStone’s Justices Manualin Lexis®Library (also available in hard copy)Paragraphs 3.37 and 3.183Standard scale of fines for summary offencesHalsbury’s Statutesin hard copys8 Treasure ActDuty to notify the coroners37 Criminal Justice Act 1982The standard scale of finess85 Legal Aid, Sentencing and Punishment of Offenders Act 2012Removal of upper limit on finesWestlaw Legislation Analysiss3 and s8 Treasure ActNo relevant cases foundNOTES The following amendments are proposed but are not relevant to the client:The
maximum term of imprisonment will change to 51 weeks when the Criminal
Justice Act 2003, s 280(2), (3), Sch 26, para 48 comes into force.
The
Coroners and Justice Act 2009 will amend the law so that any
notification must be made to the Coroner for Treasure rather than the
district coroner (amendment to Treasure Act s 8(1)) and a report will
have to be made to an officer appointed for an area (Treasure Act s 8B).
These amendments are not yet in force.
TIME TAKENResearch:1 hour Reporting:42 minutesEmail:6 minutesINTRODUCTION TO PROFESSIONAL PRACTICEUnit Workshop: Practical Legal ResearchConsolidation Task ExemplarFrom:TraineeTo: Angela Smythe (Angela.Smythe@U-Laws.com) Subject: Monica Rowling – Paloma ChoiDate: [Today’s date] Dear Angela Here
are my conclusions in respect of Monica Rowling’s concerns about Paloma
Choi’s directorship and employment in Kavanagh Furniture Ltd (the
“Company”). My understanding of the factual situation is set out in the
attached report.Review of ResearchPaloma’s
removal from the board can be achieved either by her resignation, or by
James, Monica and Delyth voting together as shareholders to that
effect. James
may have implied authority, as managing director, to dismiss Paloma
from her employment without Monica’s approval. However, James’ authority
can be removed by a board decision and Monica can pass such a
resolution using her casting vote. Monica
could follow the same process of obtaining a board resolution to take
away Paloma’s responsibilities which involve finance or contact with the
public, subject to any advice of the employment team on varying the
service contract. If
Paloma is subject to a custodial sentence (as opposed to remanded in
custody pending trial), it is likely that her employment will terminate
and that any dismissal will be fair and lawful. AdviceWhilst
a resignation could preserve Paloma’s personal dignity and would be
quicker than holding a shareholders’ meeting, Paloma may resist
resigning. In order to reduce the likelihood of this happening, we could
prepare a formal notice to the Company proposing Paloma’s removal
(signed by James, Delyth and Monica) in order to make it clear that if
Paloma refuses to resign she will be forcibly removed if the matter has
to go to a vote. Faced with the prospect of being removed against her
will, Paloma may then relent and tender her resignation. This would
avoid the need for further formal meetings, and would mean Monica can
assure her personal clients (or their parents) that the Company acted
robustly in response to the allegations, and was poised to secure
Paloma’s forcible removal had she not agreed to resign. Monica
should hold a board meeting to remove Paloma’s responsibility for
contact with customers and financial matters. That is a crucial role for
the Company, which cannot be left vacant, so Monica will need to do
this herself. The board will then need to either approve a service
contract for Monica or else decide how to allocate Paloma’s
responsibilities.Monica
wants to prevent Paloma losing her job unless she is sentenced to a
custodial sentence. As James may have implied authority to dismiss
Paloma, Monica should be prepared to call a board meeting to withdraw
any implied authority. This should be on a date when Delyth can attend
so that Monica and Paloma can appoint her if James does not turn up.
Monica should send us Paloma’s employment contract for us to check
whether it contains a clause automatically terminating her employment in
the event of her removal from the board. Taking
these steps to prevent James from dismissing Paloma will be
complicated, and could result in creating unnecessary divisions between
family members. It is also possible that Delyth will not necessarily
want to be a director (even though she can resign at the end of the
meeting). I therefore recommend that Monica asks James to agree to have
his managing director’s powers limited so that it is absolutely clear
that he cannot dismiss Paloma from her job. Monica could explain to him
that this would avoid the need to find a replacement for the whole of
Paloma’s work. Monica could also point out that imposition of a
custodial sentence will likely result in termination of Paloma’s
employment in any event, and any such termination resulting from a
custodial sentence is likely to be fair and lawful, so is a lower risk
strategy than instant dismissal. To
maintain the good relationship with Paloma, Monica should explain to
Paloma in advance why they propose dealing with things in this way.
Monica should confirm it in writing, for clarity. I recommend that we
draft this letter to go from Monica to ensure that it is accurate. A
formal letter from us directly to Paloma appears inappropriate in the
family circumstances. In terms of practical steps, I suggest that we do the following:prepare a Form TM01 for Monica to date and file immediately after the meeting; and
show
Monica the kind of formal wording used in a resignation letter to
ensure that it sets out the specific date for termination required by
Model Article 18(f).
I suggest we do not actually draft a full resignation letter, as that may appear unnecessarily aggressive.If
you or Monica need any further assistance do give me a call, especially
if you need me to plan how to set up and run the shareholders’ meeting
in the event that Paloma has to be forced off the board.Kind regards,Trainee RESEARCH REPORT REF: RO103-002/ASCLIENT: Monica Rowling MATTER: Removal of Paloma Choi as a director of Kavanagh Furniture LimitedDATE: [The date on which you do the research] ANALYSIS Facts and InstructionsThe
client is Monica Rowling, a director and shareholder in Kavanagh
Furniture Limited (the “Company”). Paloma Choi is also a director.
Paloma may soon be convicted of fraud by false representation and
sentenced to a custodial sentence. Paloma is stepmother to Monica’s
children. The children are James (managing director of the Company and
shareholder) and Delyth (shareholder only); both are adults. The Company
has articles based on the Model Articles for a private company (“MA”).Monica wants advice about removing Paloma from the board. Paloma
is employed by the Company and is in charge of marketing. Her contract
provides for a 12 month notice period. Monica is happy for Paloma to
remain employed by the Company in a capacity which does not involve
finance or contact with customers – that is unless she is convicted and
sentenced to a term of imprisonment, in which case Monica and Delyth
want the Company to terminate Paloma’s employment at minimal cost and
without notice.James
wants to dismiss Paloma immediately and Monica needs to know whether he
can do this. My instructions do not explain whether James has ever been
given the power to dismiss employees without reference to other
directors, nor do I know the exact terms of Paloma’s employment
contract.I
have taken account of Monica’s concerns about publicity, the family
relationships, the amicable relationship between Monica, her children
and Paloma, as well as the need to ensure continuity of the business.I have not formally reported on the following areas:the likelihood of a conviction (because Paloma has separate representation);
the
potential cost/risks associated with terminating Paloma’s employment
immediately or changing her role (because our employment team will deal
with that). I have only covered the possibility that James could dismiss
her and incur liability.
The report does not cover the following points that AS fully understands:the detailed procedure for running relevant meetings; and
the fact that Paloma’s removal from the board will appear on the public record through the filing of a TM01 Form.
Legal IssuesMy research report deals with the following issues:1. How to remove Paloma from the board by way of a resolution of the shareholders or through her own resignation.2. In what circumstances James may have the power on his own to dismiss Paloma from her employment?3. What happens to Paloma’s employment if she is imprisoned?CONCLUSIONS Report into Legal Issue 1How to remove Paloma from the board by way of a resolution of the shareholders or through her own resignation.James, Monica and Delyth can vote together as shareholders to remove Paloma from the board or Paloma can resign. Removal
from the board requires an ordinary resolution of the shareholders
(s168 Companies Act 2006, (“CA06”)). The ordinary resolution needs to be
passed by simple majority (s282 CA06). James, Monica and Delyth need to
vote together on both a show of hands (3:1) or a poll vote, which could
be called under MA 44 (60%:40%) to achieve a simple majority and
successfully pass the resolution. James
cannot implement a plan to remove Paloma without informing her because
s169 CA06 requires the Company to send a copy to Paloma of the proposal
to remove her, and sets out the right to speak or make written
representations at the meeting of the members. As
an alternative to removal by the shareholders, MA 18(f) allows Paloma
to cease to be a director if she is persuaded to resign. The resignation
would be effective from the date stated in the resignation letter. Report into Legal Issue 2In what circumstances James may have the power on his own to dismiss Paloma from her employment?Paloma’s employment under her service contract is a separate issue from her position on the board. James
will only be able to dismiss Paloma if he has a specific power to do
so. This is because, under the MA, decisions of a company are taken by
the “directors”, i.e. collectively, such as at a board meeting (MA 7) or
unanimously (MA 8). The board is able to delegate powers (MA 5) but I
would need to ask the client whether such delegation has been made to
James. James
cannot hold a valid meeting of the directors on his own, as a quorum of
two directors is required for a valid meeting (MA 11) so, in the
absence of delegated authority, James would need Monica to agree at a
board meeting to dismiss Paloma. Case
law suggests that James, in his capacity as a managing director, might
have authority to dismiss Paloma from her job without involving the
other directors. A managing director has implied authority to do all
acts necessary for the conduct of a business (Hawken v Bourne). I consider that dismissing a fraudulent employee could well be included within this implied authority. There are two legal issues that I considered when coming to this conclusion:Paloma’s
dismissal could fall within the general authority given to a managing
director. I distinguish the present situation from Smith v Butler.
The Court of Appeal stated that removal of a chairman from their
position as a director was not within a managing director’s implied
authority. Paloma’s job is not equivalent to the high level appointment
of chairman, and so can be distinguished on this point.
It
is unlikely James would have implied authority to dismiss a director by
reason of a previous course of conduct by James. Even if the board has
allowed James to dismiss members or employees in the past, I would argue
that dismissal of employees is different to the dismissal of someone
who has also been appointed as a director, such as Paloma.
In
light of the above, there is a chance that James would have the power
to dismiss Paloma without needing Monica and Delyth to agree. However,
this risk can be eradicated. Monica could, at a board meeting, vote in
favour of restricting James’ authority to dismiss Paloma. Such a
resolution would be passed because James would be outvoted by Monica’s
casting vote as chairman (MA 13). Paloma
would be prevented from voting because of her personal interest (MA
14), so James could prevent there being a quorum of two directors by not
turning up. If so, a resolution to restrict James’ power would still be
effective if:Monica and Paloma attend (as existing directors), accompanied by Delyth; then
Monica
and Paloma appoint Delyth to the board (with her consent) (MA 17(1)(b))
to ensure that a quorum who can count in the vote is present; and
Monica and Delyth vote in favour of restricting James’ power.
The
conclusion above is made on the basis that Paloma’s employment contract
does not contain provisions which provide for termination by the
managing director or automatically on removal from the board. The
employment team will take this into account when advising on the risks
and costs associated with early termination. It would be best to obtain
clarification on this as soon as possible. Report into Legal Issue 3What happens to Paloma’s employment if she is imprisoned?If
Paloma is subject to a custodial sentence (as opposed to remanded in
custody pending trial) then the Company can argue that her employment
ends by reason of frustration, so notice is not required. Paloma may
argue that frustration does not apply and that she has been dismissed.
If she does this, it may give rise to potential claims for wrongful
dismissal and unfair dismissal; however, a dismissal because of an
immediate term of imprisonment of any significant length passed on an
employee is likely to be lawful and fair. Relevant case law is set out
in the Primary Sources section.PRIMARY SOURCESCompanies Act 2006The legal principles relating to removal of a director are contained in the following provisions:s168 The shareholders right, by ordinary resolution, to remove a director, regardless of any agreement with the company. s169(1) The obligation for the company to send to the director concerned a copy of a proposal to remove the director.s169(2) Sets out the director’s right to protest against their removal by attending and speaking on the resolution at the meeting. s169(3) The director’s right to have written representations heard.s282Sets out the requirements of an ordinary resolution.s167The obligation to inform the registrar of cessation of a director (within 14 days of removal)Commencement of these sections, for purposes relevant to this report, was as follows:1 October 2009: s167 (for purposes relevant to this problem): see SI2008/2860 art 3(i) & (r) and Sch 2 para 28(2) & 31(1).1 October 2007: ss 168, 169 & 282: see SI 2007/2194, art 2(1)(d) and (f).Employment Rights Act 1996s98Deals with unfair dismissal.Commencement: 22 August 1996Companies (Model Articles) Regulations 2008 (SI 2008/3229)Reg 2 Applies the rules in Schedule 1 to a private company limited by shares.Article 3 Gives directors the powers of the company.Article 5 Allows the board to delegate powers.Article 7 Requires a majority decision of the board for collective decisions.Article 11 A quorum of two directors is required for a valid board meeting.Article 14 An
interested director cannot vote or count in the quorum on matters
involving an actual or proposed transaction or arrangement with the
company.Articlr 18 Deals with termination of a director’s appointment.Article 13 Sets out the chair’s casting vote on decisions at board meetings;Article 8 Allows unanimous decisions of eligible directors as an alternative to collective decisions.Article 17 A new director can be appointed by a decision of the directors.Article 44 Sets out the right to a poll vote at a meeting of shareholders.The model articles came into force on 1 October 2009; see sch. 1 para. 1.Employment Rights Act 1996 s 98(1)(b), (4) Hare
v Murphy Bros Ltd [1974] ICR 603 and Shepherd & Co Ltd v Jerrom
[1986] I.R.L.R. 358 confirm that an employment contract can be
frustrated by a custodial sentence, so no claims relating to a dismissal
were possible. The sentence was for 12 months in the former case, 39
weeks in the latter. The claims which failed were redundancy payment in
the former and unfair dismissal in the latter.FrustrationKingston
v British Railways Board [1984] ICR 781, [1984] IRLR 146: The Court of
Appeal confirmed that employment ends automatically on imprisonment
through frustration. The conviction was subsequently quashed (so
arguably the contract was not actually frustrated in law) but the
dismissal that had pre-dated the quashing was still fair because the
original custodial sentence of three months was “significant”. It was
for the potentially fair reason of ‘’some other substantial reason’.The
effect of frustration is that the contract is discharged as to the
future, thereby releasing both parties from further performance:
Blakeley v Muller & Co [1903] 2 KB 760n. Therefore, if Paloma is
subject to a custodial sentence, her 12 month notice period will not
apply.Managing Director’s AuthorityHawken
v Bourne (1841) 8 M & W 703 is the general authority used for a
managing director’s authority. Rutherford v Ounan [1913] 2 IR 265
conflicts with this. Smith v Butler [2012] All ER (D) 136 dealt with the
absence of implied authority for a managing director to remove a
chairman of the board. Fusion Interactive Communication Solutions Ltd v
Venture Investment Placement Ltd [2005] EWHC 224 (Ch) confirmed that a
director’s authority may be implied by conduct.COMMENTARY I used the following commentary to support my research and ensure that it was up to date:SourceLocation / ReferenceSubject matter ¶graph headingHalsbury’s Laws 5th Edin Lexis LibraryVol 39, Employment 5(2)(ii) paragraph 729 (including footnote 19) and paragraph 766“Frustration through illness or imprisonment”Employment ending automatically on imprisonment and fairness of the dismissal, if there is one.Common Law Series: The Law of Contract (on LexisLibrary)Chapter 6B paragraph 6.115Implied authority – necessary and incidental acts. This includes general points about a managing director’s implied authority.Buckley on the Companies ActsNotes to Table A 72 (referred to in commentary on Model Article 5), paragraph 3702A
single director cannot exercise a power unless it has been delegated to
him, but a company which appoints a managing director impliedly
authorises him to do all things that fall within the usual scope of that
office.Chitty on ContractsChapter 23, Section 5, 23071“Contract Discharged Automatically” – this explains the consequences of frustration.Chapter 39, Sub-section (ii), 39-215Frustration of a contract of employment does not amount to a dismissal.NOTES I
thought you ought to know that there is a prospective amendment to s167
CA06 but it is not relevant to this problem. It relates to a change to
the way in which a director’s consent is confirmed to the Registrar of
Companies on appointment of a director. There are also proposals to
allow companies not to hold their own register of directors in a new
s167A. This is also not directly relevant.TIME TAKENResearch:1 hour 40 minutes Reporting:2 hoursEmail:20 minutes
Requirements: 2000
