Comment Magazine Issue 7

HOMES UNDER
THE HAMMER
Buying at auction
POWERS OF
ATTORNEY
Are they open to abuse?
READY TO SELL?
Preparing to sell
a business
CITY OF ART
Brighton and Hove
Arts Council
Comment
ISSUE 7
The craft beer
revolution
Fallen Acorn Brewery on the rescue of a much-loved
local brewery and producing great beers.

Issue 7
Welcome to Comment
in this issue...
Miles Brown
CEO
Coffin Mew LLP
milesbrown@coffinmew.co.uk
023 9238 8021
It’s been a very busy second half of the year for Coffin Mew, with many exciting
new developments and opportunities. Our new Thames Valley offices successfully
gained their first Lexcel accreditation – the legal kite mark for quality only held by
16% of law firms.
We welcomed two new Partners and announced the imminent arrival of a third.
Alexander Wood joined as Partner in our growing Insolvency & Restructuring team,
Dominic Travers joined our Corporate team and Julie-Ann Harris will shortly join our
Family team. We also celebrated six senior level promotions.
On 20 October, we held a firm wide event to launch our exciting new strategy –
Our Path to 2020: To bring the best people and innovation together to deliver great
results for every client. The purpose of the event was not only to talk about the vision
and strategic plan, but also to bring everyone together from the Thames Valley and the
South Coast offices and to support our firm’s charity CoppaFeel!, appropriately fitting
on wear it pink day.
We were delighted to raise £1,750 for CoppaFeel!, collecting old £1 coins, sponsoring
runners at the Great South Run and making a firm donation for the incredible 82%
response rate to our workplace survey.
Throughout the year there have been many other amazing charitable feats with
Linden Talbot cycling from Paris to Brighton and Justin White climbing volcanoes in
the Arctic Circle raising an incredible £3,000 for St Wilfrid’s hospice – truly courageous
efforts!
Finally, with great sadness we announced the retirement of our Chairman, Nick
Gross after 34 years at the firm. Nick will retire in April 2018 and will focus on his love
of fitness: marathons, triathlons and training for his legacy event in 2018 - The Gross
Challenge. I feel privileged and proud to have worked with Nick. Without him this
firm wouldn’t be where it is today, but we have a great team in place to drive this firm
forward and Nick will aid and assist with the firm’s future merger plans. “You haven’t
seen the last of me yet,” he jokes!
06 From fallen acorns, mighty
beers grow
Comment meets Fallen Acorn Brewery.
08 Homes under the hammer
Buying a home at auction can land
you a bargain, but it pays to do your
homework first.
04 Insight
News and updates from Coffin Mew.
10 A champion for
amateur artists
The Brighton and Hove Arts Council
champion and celebrate a vibrant
arts scene.
12 What can businesses learn
from Toblerone?
Changes to a product mean
updating intellectual property
protections.
14 All power to powers
of attorney
Beware abuses of Powers of Attorney.
16 How to prepare your business
for sale
A guest article from BCMS.
18 Employing foreign workers
now and in a post-Brexit
world
Practical considerations for
businesses.
20 Separation agreements –
an alternative to divorce
The end of a marriage need not
always end in divorce.
22 Moving beyond the narrow
lens of gender pay reporting
All organisations with more than
250 employees need to report on
the pay gap between its male and
female employees.
We hope you enjoy this edition of Comment.
@coffin_mew
Comment is written and published by Coffin Mew LLP.
Special thanks to Wildfire Creative & Marketing Ltd and
Coast Communications.
For further information about Comment, please contact
Kirsty Hughes on kirstyhughes@coffinmew.co.uk or call
023 9238 8021.
© Copyright 2017. All Rights Reserved. Coffin Mew LLP.
Disclaimer: This information has been prepared by
Coffin Mew LLP as general guidance only and does not
constitute legal advice on any specific matter and should
not be relied upon as such. No liability can be accepted
by Coffin Mew LLP for action taken or not taken as a
result of this information. Coffin Mew LLP is a limited
liability partnership in England and Wales (registered
number OC 323868) which is authorised and regulated
by the Solicitors Regulation Authority (registered number
463138). Lexcel Accredited.
2
3

Insight
Iceland’s volcanoes no obstacle
for Coffin Mew’s Justin White
Coffin Mew’s Justin White has raised over £3,000 for a Chichester
hospice, climbing three of Iceland’s highest volcanoes in just four days.
To mark his 50th birthday, Justin, a
business development manager for
Coffin Mew’s growing real estate and
residential property practice, set himself
the unusual and gruelling challenge
raising much needed funds for St
Wilfrid’s Hospice.
The challenge saw Justin conquer
the still active Eyjafjallajökull, which in
2010 erupted with devastating effect
grounding airlines around the globe,
battle temperatures falling well below
freezing, traversing glaciers and a climb
to 1,700 metres in knee-deep snow.
“I have always been a keen hill walker,
and would regularly spend time walking
the South Downs,” said Justin. “With a
Coffin Mew’s quality kitemark
Coffin Mew’s Thames Valley
offices have been awarded
the coveted and prestigious
Lexcel accreditation. The Lexcel
kitemark is a standard of quality
and excellence in client care and
practice management that is
assessed and awarded by The
Law Society. Just 16% of law
firms in the UK meet its high and
exacting standards.
To achieve this standard so
soon after Coffin Mew’s merger
with Charles Lucas & Marshall
makes it even more impressive.
The independent assessor was
so taken with the scale of positive
change at the firm’s offices that
she made a point of highlighting
how impressed she was with
how far the staff had all come in
such a short space of time.
Bringing you the latest news from Coffin Mew
milestone birthday on the horizon a new
and tougher challenge was needed. It
was a friend that recommended Iceland
and its volcanoes.
“Iceland is a stunning country and a
true wilderness and that made for some
tough walking. The climb to the summit
of Eyjafjallajökull took 13 hours and
involved walking in complete darkness
and blinding sunlight, whilst walking
across snow and ice. The final 600
metres took over two hours checking
constantly for ravines and crevasses. It
was harder than I had imagined and a
truly memorable experience.”
Justin has now developed a taste
for tough challenges, and is currently
Miles Brown, CEO, said: “I am
thrilled that the Thames Valley
offices have successfully met the
Lexcel standard. This has been a
fantastic effort by all of the staff in
the region. In a merger situation,
an assessor will always want to
examine how that process has
gone and what lessons can be
learnt. We should all be very
proud of what we have achieved
and must now focus on realising
the full potential of the merged
firm, having shown what we can
achieve by working together.”
4
Top insolvency and
restructuring lawyer
joins Coffin Mew
Coffin Mew is delighted
to announce that renowned
insolvency and corporate
restructuring lawyer
Alexander Wood has joined
the firm as a partner.
Alexander joins the
firm from the London
office of Michelmores and
brings more than 15 years’
experience on advising
businesses in the renewable
energy, financial services,
healthcare, property, retail,
leisure and manufacturing
sectors on complex
transactions in the UK and
overseas.
exploring a trek across the Sahara
Desert, canoeing across the English
Channel or perhaps a hike up Mount
Kilimanjaro.
Justin would like to thank friends,
family, colleagues at Coffin Mew, Choice
Financial Solutions, Owl Architects and
Jeffries Estate Agents for their support.
Miles
Brown,
CEO,
said:
“We are delighted to have
appointed such a
high-profile partner.
We have seen an
increase in enquiries
regarding insolvency
and restructuring and
Alexander’s expertise is in
high demand. He will be
a valuable addition to the
team and we look forward
to developing this side of
the business as part of our
ambitious growth plans.”
A finger on the business pulse
Coffin Mew is a law firm with its finger on the business pulse. Every year we ask businesses in Brighton,
along the South Coast and in the Thames Valley for their views on business confidence, opportunities
and threats. Comment magazine compares the findings from across the region.
Are you feeling more or less confident
about the prospects for your business
than you were 12 months ago?
Brighton
South Coast
Thames Valley
Brighton
South Coast
Thames Valley
More
confident
Less
confident
Will you be increasing or
decreasing the number of
staff you employ over the
next 12 months?
Increase
Stay the
same
What do you foresee as being the biggest
hindrance to the UK in the next 12 months?
Government
policy
Brexit
Interest
rates
Inflation
Lack of
funding
74 % 7 %
Brighton
0 % 55 % 4 % 4 % 15 %
72 % 14 % Thames Valley
37 % 13 % 12 % 26 % 12 %
65 % 29 %
South Coast
4 % 56 % 4 % 8 % 12 %
Which of the following will you be looking to do in the next 12 months?
Brighton
South Coast
Thames Valley
Recruiting
14 % Seeking
investment
Opening
offices
Introducing
new products
43 % 74 % 14 % 0 %
31 % 46 % 8 % 58 %
17 % 55 % 14 % 45 %
Exporting
4 %
5 %
45 % 48 %
47 % 43 %
75 %
Decrease
7 %
10 %
25 % 0 %
What changes do you think could be made
to attract more businesses into the area?
Brighton
• Stop brain drain
to London
• More affordable
housing for young talent
Thames Valley
• Greater levels of quality
commercial property to
aid expansion
South Coast
• Improve road network
• Regenerate waterfront areas
• More business forums to connect and support business leaders
• Support from local government
5

From fallen acorns,
mighty beers grow
A little over a year ago, much loved Hampshire
brewer Oakleaf Brewery hit hard times and
was facing collapse. It was rescued by local
entrepreneurs Dan Richards and Matt Curd
together with Just Develop iT, and Fallen Acorn
Brewery was born. Comment joined them for
a pint of its award-winning Hole Hearted.
The number of breweries in the UK
is, according to the Campaign for
Real Ale (CAMRA), at its highest since
the 1930s. The craft beer movement
is gathering real pace, with beer
connoisseurs today able to choose
from a staggering variety of beers
from more than 1,700 breweries
across the UK. There is, quite literally,
a beer for every occasion and every
excuse to raise a glass.
Gosport’s new beer on the block,
Fallen Acorn Brewery, has strong roots
in the region having risen from the
financial ashes of the much loved
Oakleaf Brewery in 2016.
“Oakleaf Brewery had been brewing
some terrific beers for over 10 years
in Gosport when it found itself in
financial difficulties,” explains Matt
Curd, Fallen Acorn’s Managing Director
and part of the team at technology
company Just Develop iT. “As a
dedicated fan of its beers, it would
have been a real shame to let it and its
talented team just disappear.”
“Just Develop iT invest in a wide
portfolio of businesses outside of the
tech sector,” explains Dan Richards,
Chief Operating Officer at Just
Develop iT and a director at Acorn,
“and we thought it would be pretty
cool to own a brewery.”
Matt and Dan after much
discussions with the administrators of
Oakleaf Brewery and examining the
numbers discovered a business that
had promise and on which they could
build. They successfully managed
to buy the assets of the brewery and
were able to keep its talented head
brewer, Ed Anderson, and its threestrong
team together, relaunching
in the summer of 2016 as the Fallen
Acorn Brewery.
The brewery, with a small tap room,
is on Clarence Wharf Industrial Estate
in Gosport, with terrific waterfront and
harbour views.
Its beers are created by true
craftsmen and with real passion,
underpinned by a strong commercial
discipline. The brand has been
refreshed, and the team has been
bolstered to include an assistant
brewer and a sales team, all led by
experienced businessman Matt Curd.
“I have spent my career in a number
of different sectors leading sales,
marketing and customer services
teams,” says Matt. “With the support
and guidance from Dan, we are
building a brewing business that
has firm financial footings that will
secure its long-term future creating a
platform for growth.”
Today, Fallen Acorn is producing
some 5,000 litres, or over 8,700 pints
of beer a month, supplying pubs and
micro-pubs and beer festivals across a
40-mile patch. Its stable of five beers
are sold in cask, keg and in bottles.
And within its first year, the Great
British Beer Festival held at Olympia
every year invited the brewery
to include its Black Hearted beer
amongst the country’s best. “It is
almost unheard of for a brewery in
its first year to be invited to join the
Great British Beer Festival as they tend
only to focus on the more established
brewers,” says Dan. “We knew we were
on to something good.”
“The boom in micro-pubs and the
resurgence of craft beers has created
a real and sustained demand for our
beers,” adds Matt, “and we believe
we can grow this substantially over
the next few years. We can push
our geographic boundaries further,
and introduce new beers. We are
currently exploring more bottled
beers, which would open up the
supermarkets. We are also considering
opening our own pubs at some point
too.”
One area of growth is from its
almost unique ‘pilot brewery’ that
allows Fallen Acorn to experiment
creating small batch and specialist
beers.
The pilot brewery – effectively
the dream home-brew kit – allows
Matt and his team to create up to
80 pints of beer trying new flavours,
celebratory and seasonal beers
(eggnog stout anyone?), and one-offs
for individual pubs or the ultimate
party or wedding bar.
“Head brewer Ed and assistant Miki
are hugely talented and can spend
time with you crafting a beer for every
occasion,” explains Matt. “We have
had stag parties creating beer for the
groom’s wedding day through to beer
festivals creating their own festival
ale. It allows us to create some truly
special beers that may make regular
appearances and even a best seller.”
But perhaps one of the biggest
reasons to celebrate the success of
Fallen Acorn Brewery is the fact that
it has managed to keep its talented
and dedicated team together whilst
creating new jobs at the same time.
Now that is reason to celebrate.
Cheers.
To find out more about Fallen Acorn
Brewery, to visit the tap room or to
order its beers visit
www.fallenacornbrewing.co
THE FALLEN
ACORN BEERS
Hole Hearted
Originally brewed for the Hole in
the Wall pub in Portsmouth. Five
times Hampshire Beer of the Year.
Expedition IPA
A classic pale ale with complex
citrus and grapefruit notes.
Twisted Oak
Malty with a long hoppy finish.
A great session beer.
Black Hearted
The rebel twin and a dark version
of Hole Hearted.
Double Tide
A craft and refreshing pilsner
6
7

Homes under
the hammer
Buying a house at auction can land you a bargain, but it
always pays to do your homework first, says Ian Peach.
require mortgage finance it is essential
to get ahead of the game and ensure
the funds are available in time for
completion.
Do not assume that your conveyancer
can comply with the multitude of
obligations imposed upon them by
your lender as there can be factors
beyond the conveyancer’s control that
impact upon the ability to draw the loan
on your behalf in time. A good rule of
thumb is to ensure your liquidity for the
purchase monies before you enter the
auction room on the day you intend to
bid. The speed of completion is part of
the attraction of buying at auction, but
is also the downfall of many.
Remember also that lenders will want
to value a property themselves before
agreeing to a mortgage, and that too
can cause delay.
The consequences for failing to
complete upon a winning bid can be
serious. It is likely you will forfeit your
deposit and you will also risk a claim
for damages from the seller under the
terms of the sale contract you have
entered into.
4. View and inspect the property
Something else that may sound
obvious, but we see all too often buyers
buying at auction without even having
first viewed the property. Make sure you
view the property and are comfortable
with what you are looking to purchase.
If the property needs work, do consider
taking a surveyor or builder with you to
provide advice and cost estimates.
Viewings will usually be conducted by
the auctioneers. This provides you with
the opportunity to put questions to
them and for them to recognise you as a
serious buyer.
5. Auction legal packs
Properties sold at auction will be
accompanied by an auction pack,
which are usually available in advance
of the sale. The information in these
packs can vary widely, and it pays
to have your solicitor check them
through, paying close attention to
any special conditions attached to
the contract. For example, it is not
uncommon for the buyer to be
responsible for reimbursing all of the
seller’s costs, and that will need to be
budgeted for.
Some of the more routine property
searches are usually included in the
legal pack, but additional bespoke
searches may need to be completed if
time allows in advance of the auction
date. Some law firms, including our
own, will provide a pre-auction report
upon the legal papers providing the
opportunity for any queries arising to
be raised with the seller’s solicitors in
advance of the auction date.
6. Know your budget – and stick to it
The sale room can be exciting with bids
sometimes coming in thick and fast.
Things can get even more fast moving
when telephone or online bidders are
involved, and in those circumstances the
auctioneer works harder tracking the bids
in the room itself as well as those coming
externally.
When the adrenalin kicks in, it can be all
too easy to get carried away, so our advice
is to set your maximum budget and stick
to it. It’s worth considering bringing a
trusted partner or advisor along with
you on the day itself to rein you in from a
temptation you might regret.
In our experience auctioneers are, in the
main, a friendly bunch and are more than
happy to help and provide some advice.
It is increasingly common for auctioneers
to have their preferred solicitors who are
used to dealing with auction properties
on hand in the sale room to offer more
general advice to buyers and sellers.
Do keep in mind that they cannot offer
advice upon legal packs for any lots that
are being sold on the day.
Contact us direct
Ian Peach
Partner - Head of Residential Property
(South Coast)
023 9236 4313
ianpeach@coffinmew.co.uk
Buying a home at auction is not just
the preserve of the hardened property
investor or developer. Home buyers
looking for a bargain and to buy
and complete in double-quick time
are a common sight in the auction
sale room, but it is not for the feinthearted.
As soon as the auctioneer’s
hammer falls the successful bidder
has contracted to buy the property
and is legally obliged to complete
the transaction in just 28 days. The
parties are at liberty to agree an earlier
completion should they choose.
The key to successfully buying at
auction is preparation and homework.
A good place to start is our step by
step guide.
1. Experience the saleroom
Buying a home at auction is a very
different experience from going through
an estate agent. It can be a fast-paced
environment, with the auction lots
shifting quickly. The auction room can
be an intimidating place for those who
have never experienced it before. My
advice to anyone considering buying
a property at auction would be to visit
some sales before you buy in order to
get a flavour of the atmosphere and the
procedures, as well as to get an insight
into the values of properties being sold.
2. Choose a local auction house
Just like a local estate agent, a local
auction house will provide expert and
invaluable local knowledge. Ask to be
added to their mailing lists for future
sales and obtain sale catalogues. The
sale catalogue is where your buying
journey will begin.
3. Have your finances in place
It sounds a simple and obvious
reminder, but make absolutely sure
you have the funds available at the
time completion falls due. The fall of
the auctioneer’s hammer seals the
contract to buy and at that time a
buyer is required to lodge a deposit
equivalent to 10% of the price of their
winning bid with the auctioneer before
they leave the auction. The remaining
90% falls due at completion, so if you
Fox & Sons property auctions across the South
Fox & Sons Property Auctions cover the South and regularly hold auctions at the
Macdonald Botley Park Hotel in Southampton. Coffin Mew supports Fox & Sons at
some of its auctions in Southampton, providing on-hand advice and guidance to
those buying and selling property.
Whether buying a home, land, letting opportunity, or restoration investment,
property auctions are a busy and exciting place to visit and Fox & Sons make sure
the experience goes as smoothly as possible by giving you all the help you need
under one roof. Year-to-date, Fox & Sons has sold a total of £29,925,000 worth of
property.
Fox & Sons is part of Sequence (UK) Limited, one of the largest national networks
of estate agents throughout the country.
If you are thinking of selling or buying through auction or require professional
help and advice on auctions, please contact their property auction office on
023 8033 8066 or visit www.foxandsonsauctions.co.uk for further information.
2018 Fox & Sons
Auction dates:
9th February
23rd March
4th May
15th June
27th July
14th September
26th October
14th December
8
9

A champion for
amateur artists
The Brighton and Hove Arts Council has for more than 40 years championed
the arts in Brighton and Hove. Artists – whether poets, painters, musicians
or actors – work alongside this important local charity to celebrate a vibrant
amateur art scene and reach out to new audiences.
Comment Magazine spent the morning with Vaughan Rees, the charity’s vice
chairman and discovered the beating heart of Brighton’s cultural life.
Brighton and Hove is a creative hub
for the arts in the UK. Its eclectic and
diverse arts scene offers something
for everyone – whether it is the large
international blockbusters that come
with the Brighton Festival, first class
music, or the alternative arts and culture
found in the Laines. Self-expression is
what the City does well.
The City’s arts scene runs deep, and it is
its talented and enthusiastic amateurs that
really are its beating heart.
The Brighton and Hove Arts Council
was created back in 1974 by a group of
arts enthusiasts as a charity to support
and promote the not-for-profit and
amateur arts community. Today, the
charity is the first port of call for those
wishing to discover the best music
recitals, performances, poetry recitals and
exhibitions.
“Brighton and Hove is an oddly creative
and vibrant place,” says Vaughan Rees,
long-term Brighton resident and vice
chairman of The Brighton and Hove
Arts Council (BHAC). “There are a lot of
amateur groups that struggle to market
and promote what they do. And that is
where we step in.”
BHAC has over 70 member arts groups
across the City, ranging from amateur
dramatics companies with some 200
members through to water colour
painting clubs with just a dozen or so
members. It also has a growing individual
membership.
The Arts Diary, published in print
and online by BHAC, was one of its first
major initiatives and remains today the
backbone of its activity. It is published four
times a year and lists all of the amateur arts
events happening across the City. Initially
printed on a single A4 sheet with a print
run of 500, the latest edition extends to 36
‘professional quality’ pages and a print run
of 5,000.
“The Arts Diary lists some 200 plus
events in each edition for the months
ahead,” explains Vaughan. “It is where
members turn to promote their events,
and where members of the public
can access Brighton and Hove’s most
comprehensive arts listing. It is as popular
today, both in print and online, as it was
when it was first launched back in 1974.”
BHAC also organises a number of
showpiece events each year. Its annual art
exhibition in the spring continues to grow,
as does its drama awards – “our very own
local Oscars” – held in early December.
“We are thrilled to have the actor Trevor
Jones judge this year’s drama awards,” says
Vaughan. “Trevor has appeared in six West
End productions, at the National Theatre
and in two major Clive Donner movies.
He will watch all of performances and give
creative feedback to all those entering.
He will also hand out our ten awards –
it will be a terrific evening.”
And this year, BHAC has introduced
a one-day Sussex poetry competition
and festival, held in November at the Old
Market in Hove, with a prize of £1,000 up
for grabs for the winning entry.
The Poet-Laureate, Carol Ann Duffy,
was the star attraction and will was joined
by Brighton’s own punk-poet Attila the
Stockbroker and Edinburgh-based John
Samson, a classical and jazz musician
well-known for his collaborations with
poets.
“We are enormously excited by our
first poetry festival,” says Vaughan, “and
judging by the hundreds of entries into
the competition, so too are the residents
of Brighton and Hove. The festival will, I’m
sure, become one of our flagship events.”
BHAC is run by a small committee of
just 10 volunteers, who are responsible for
all the charity’s activities. Funding comes
via modest member subscriptions, a grant
from Brighton and Hove Council and from
sponsorship.
The local business community is
increasingly important to BHAC as a
source of revenue. Local businesses,
including Coffin Mew, sponsor and
support individual events and the Arts
Diary.
“We are a charity and it is important that
we are well-funded and financially secure,”
explains Vaughan. “We are enormously
grateful to the local business community
and will continue to work closely with
them in 2018 and beyond.”
For more information visit
www.bh-arts.org.uk.
The Arts Diary can be found online at
www.bh-arts.org.uk/arts-diary
The Arts Diary
Below is a small sample of some
of the events in early 2018 from
the Brighton and Hove Arts
Council Arts Diary.
Robin Hood
26-28 January and
2-4 February 2018
Lewes Theatre Youth Group
Booking: www.lewestheatre.org
Box office: 01273 474826
‘The Age of Jazz’ Art Deco
Fashion and Style
A talk by Sally Hoban
6 February 2018
The Arts Society Brighton & Hove
Contact: 01273 945407
Brighton & Hove
Russian Choir
A mixed programme of
Russian folk songs
16 February 2018
St. Luke’s Church, BN2 9ZB
Contact: 01273 510595
10
11

What can businesses
learn from Toblerone?
Chocolate lovers everywhere were in uproar earlier
this year when Mondelez International, makers of
Toblerone, changed its shape. Budget high street
retailer Poundland, spotting an opportunity, quickly
launched its own version of the popular chocolate
bar, calling it Twin Peaks. Equally quickly, Poundland
found itself on the wrong end of a legal claim.
There is a valuable lesson that businesses should
learn when changing products, says Emma Stevens.
Mondelez International, the makers
of the Toblerone chocolate bars,
in November 2016 changed the
much-loved shape of its product
from a row of 11 triangular chunks
with distinctive peaks to a row
of nine triangular chunks spaced
further apart. The decision not only
left chocolate lovers angry, it also
left with them with a smaller bar of
chocolate.
Adding further to Mondelez’s
misery, Poundland introduced its own
version of the chocolate bar, called
Twin Peaks, reportedly catering to
a gap in the market created by the
change of the Toblerone. Poundland’s
bar features two rows of two joined-up
peaks instead of one; its packaging
is in red and gold and features two
mountains, reportedly based on the
peaks of the Wrekin Hill in Shropshire.
The Twin Peaks bar was due to be
launched in July, but was delayed
when Mondelez brought a legal
action to protect its intellectual
property in the Toblerone bar.
Mondelez first registered the
distinctive Toblerone shape, with 12
chunks rather than the 11 chunks
sold in the UK since about 2010, as an
EU-trade mark in 1997; the registration
of the shape mark granted Mondelez
the right to take legal action against
anyone who tried to copy the shape
of its Toblerone bar.
It has since been reported that
Mondelez has now issued a claim in
the High Court against Poundland for
damages on the basis of trade mark
infringement of its registered shape
and image marks. Mondelez argues
that the Twin Peaks bar is “deceptively
and confusingly similar” to Toblerone,
in particular on the basis of its shape,
packaging and logo. Poundland has
defended the claim, saying that its
chocolate bar is new and distinctive
from the Toblerone shape.
Interestingly, there may also be
arguments that Mondelez has weakened
its registered mark by changing the
shape of the Toblerone bar.
This is not the first time in recent
years that big brands have made the
headlines in relation to the shapes
of their products, with Nestlé’s
dispute with Cadbury regarding
Nestlé’s attempted registration of
the shape of its KitKat bar. In that
case, the attempted registration
was unsuccessful as the Court of
Appeal found that the shape was not
distinctive enough to be registered
as a trade mark.
What can businesses learn
from Toblerone?
Whilst shape marks have made
the headlines, the range of marks
which can be registered to protect
intellectual property is much wider
including words or phrases (word
marks) and logos (image marks).
With online and real-world
infringement becoming increasingly
common, owners of intellectual
property must take steps to register
and to protect their brands.
Whilst it is possible to take action
against copycat brands if words
and logos are not registered, this
is usually more difficult than if
registrations are in place. The courts
will require a number of elements
to be established which are often
difficult to demonstrate, including
goodwill in the unregistered mark and
a likelihood of confusion between the
unregistered mark and the infringing
one.
When establishing a new product
or brand it is sensible to complete
thorough searches at the outset to
ensure that your intended mark has
not been registered previously and
is not too similar to existing marks;
failure to do this can lead to expensive
litigation in the event that the mark
inadvertently infringes an existing
mark and the previously registered
owner takes action to protect it.
Similarly, ensuring marks are
properly registered at an early stage
can assist in protecting your brand;
where infringement does occur, it is
important to consider taking action
swiftly to ensure that your brand and
intellectual property are not damaged
or devalued.
The same applies following a
rebrand or redesign, as Toblerone no
doubt now recognises.
Contact us direct
Emma Stevens
Associate Solicitor –
Dispute Resolution
023 8057 4303
emmastevens@coffinmew.co.uk
12
13

All power
to powers
of attorney
Former senior Judge Denzil Lush said
this year that he does not wish to grant
a Lasting Power of Attorney (LPA)
appointing others to act on his behalf
in respect of his finances or welfare
should he lose the mental capacity to
do so himself.
Being aware of many of the cases he
has presided over, and indeed acting
on some of them, Annabelle Vaughan
is sympathetic to his view.
The current LPA regime leaves a lot
to be desired. It is open to abuse
and, perhaps more commonly, family
disputes. The biggest mistake people
make is choosing attorneys they think
they ought to appoint rather than those
who would do the job well. Warring
siblings are unlikely to heal their rifts if
asked to decide between themselves
how they spend what would be their
inheritance. Your attorneys should be
people you can trust implicitly to act
in your best interests. Any conflict will
inevitably impair their ability to do so.
There is a lack of routine supervision
over the preparation of Lasting Powers
of Attorney and their operation. Once
an LPA is, at least at face value, executed
correctly and registered there is very little
scrutiny of how the document is used.
LPAs and their predecessor, Enduring
Powers of Attorney, were designed to
give the donor (the person who grants
the power of attorney) control over who
manages their affairs, and it is presumed
that they will choose trustworthy
individuals to do the job. There is no
routine supervision of attorneys by the
Office of the Public Guardian (OPG), the
executive arm of the Ministry of Justice
responsible for their supervision.
It is not safe to assume that third
parties will immediately spot an attorney
acting in a way that is contrary to the
best interests of a donor. A bank will
not query the actions of an attorney
withdrawing large sums of money
provided that they have registered the
power on their system. In fact, most
abuse cases come to light because
care fees or other routine expenses go
unpaid - incidents which take time to get
attention.
Many lay attorneys will go along
merrily doing what they think their loved
ones would have wanted rather than
having regard to the law.
There are important legal principals
around how decisions should be made
on behalf of people who lack capacity. A
member of the public once told me he
wouldn’t be told how to run his mother’s
affairs under an LPA. When I said “yes, but
I’m sure you will adhere to the principals
of the Mental Capacity Act,” he fell rather
silent. I didn’t say this to be unkind - there
is enough onus on would-be attorneys
to demonstrate that they have read or
understood the law that they should act
under.
The OPG will investigate once a
concern is raised, but these investigations
can take time and it is not unusual that
the donor’s assets are exhausted by
the time an investigation is concluded.
Remedies may include closer supervision
of the attorney or an application to the
Court of Protection to appoint a deputy
in the stead of the attorney.
If you do not make an LPA and lose
capacity, then the Court of Protection
will appoint a deputy to make decisions
about your finances or welfare. This
offers a far more robust regime of choice
over the appointed deputy and their
ongoing supervision.
Deputies are required to file annual
accounts and are routinely visited by
OPG caseworkers who check that all
is well. In most cases it will be more
expensive to pursue this route and it is
also important to be aware that the
Court can make orders of its own volition,
and so the obvious candidate may not
be appointed.
A further alternative is to appoint
professional attorneys. Again, this can
be more expensive, but could avoid far
more costly litigation in complex cases
where there are no suitable lay attorneys.
Ultimately, whether or not to have
LPAs will be a matter of personal choice.
However, this decision should not be
arrived at lightly or through a sense of
obligation.
Annabelle
Vaughan’s
top tips
• Think carefully about who you
appoint as your attorneys. If you
can foresee problems with your
chosen attorneys either think again
or try and air a grievance to see if it
can be resolved.
• Read the Mental Capacity Code
of Practice. It is an accessible
document that sets out how
decisions should be made. This
will help you understand how your
attorneys should act and whether
an LPA is right for you, and them.
• It is possible to put guidance and
instructions for your attorneys in an
LPA, but do bear in mind that they
will need to act in your best interests
if you lack capacity in the future.
Think about how you would want to
be treated in those circumstances
rather than imagining yourself as fit
and healthy in a care setting.
• Instructions to your attorneys are
binding and so need to be drafted
carefully. The OPG will delete any
instructions that are unworkable,
so you should take legal advice if
including instructions. You cannot
instruct your attorneys to do
something unlawful in the UK, such
as arrange for euthanasia on your
behalf.
• Think about when you want
your LPA to be used. You must be
mentally incapable for a Health
and Welfare LPA to be used, but
your attorneys can assist you with
your finances under a Property and
Affairs LPA if you are infirm. In
these circumstances, your attorney
will clearly need to be someone who
respects your autonomy and ability
to make decisions to instruct them.
Contact us direct
Annabelle Vaughan
Partner - Head of Court of Protection
& Wills, Trusts & Probate
023 9236 4312
annabellevaughan@coffinmew.co.uk
14
15

Very few business owners choose to start and build companies purely for the
fun of it. For most, the whole point is to turn all that hard work into money
at some point. But getting the best outcome from any eventual business sale
depends largely on what you do in the run-up to sale. With the benefit of more
than 600 successful company sales in the last decade alone, BCMS has identified
the top 10 areas for your business to focus on.
How to prepare
your business
for sale
Even if you aren’t ready to sell your business
yet, there’s plenty you can do to prepare for
your eventual exit. BCMS Executive Director
Jonathan Dunn explains.
Shareholding structure
Check your current company and
management structure is fit for purpose.
Refresh your corporate governance to
ensure it sets boundaries while remaining
flexible enough to work alongside an
ambitious growth plan. Then get a lawyer
to help you simplify your shareholding
structure.
Investment cycle
If turnover is flat-lining, it’s likely that the
business requires additional investment. If
the increased costs and risks required are
getting beyond your comfort zone, this
starts to set a timescale for finding and
securing further external investment.
Funding levels
To fund your next business growth
stage, smaller firms often turn to invoice
discounting – a useful method of
releasing some of the in-built value in
the business. For more ambitious plans,
such as premises expansion or new
equipment, commercial loans are a
popular route. Finally, if your business is
generating upwards of £2m in annual
profit, private equity is increasingly
popular for a mix of loan and equity
funding. Consider how these will impact
on profit margins, and to help time any
shareholder exit.
Management team
If you are growing to sell, consider what
incentive the management team has to
deliver that growth plan. Unless there is
a management buyout on the horizon,
you should consider bringing in a bonus
structure or a tax-efficient share incentive
scheme.
Corporate acquirers and investors will
want to know who’s going to run the
business post-sale. Therefore, it is even
more important for owner-managers
to take a step back from the day-to-day
running of your business, so tying this
together with empowering your senior
managers gives you a stronger hand
when you come to exit.
Processes and procedures
It may seem dull, but all genuine investors
and acquirers put a great deal of focus
closely on regulatory compliance, and any
breach of legislation can see valuations
reduce or an offer withdrawn completely.
Organise a compliance audit early to
avoid future issues arising during the sale
process.
Products and services
Who owns the rights to your products
and services is a key question during a
sale process, and not as straightforward
as it may seem. If you have used a third
party developer or consultant, you may
not own all the relevant intellectual
property rights. This may lead to lengthy
negotiations – and probably a payout – to
assign the rights to your business in all
past and future work.
As part of this exercise, you will also
gain a deeper understanding of what
advantages you have over competing
products or services, and can take steps
to develop these further and protect that
knowledge.
Overseas expansion
This is a huge step for most business
owners, as internationalising your
business can have wide-ranging
and complex legal, financial and tax
implications. You will need a robust
corporate structure that works across all
territories to ensure the business is easy
to transfer to new ownership at a future
date.
Acquisition strategy
It may sound counter-intuitive to buy
companies in order to sell yours, but it
is often a faster route into a new market
than starting out from scratch, while
making your business more appealing
when you come to sell.
Putting together an acquisition strategy
involves setting your criteria, deciding
how to fund deals, and understanding
the integration and culture fit issues.
Timescales
Work out milestones for your growth plan,
including what to do if growth does not
occur in line with expectations. From this,
you can work out a good time to hand
over the business to new ownership.
Exit routes
Businesses change hands in several
guises, including part-sale, management
buyout, flotation or trade sale. Your exit
options will depend on the size and
market positioning of your business, as
well as your personal reasons such as
work-life balance, retirement or financial
exposure.
It goes without saying that many
of these areas involve getting expert
advice, which can be expensive. But this
preparation makes a huge difference in
a business sale – not only on the price
and terms you want, but also significantly
improving the chances of a deal
happening at all.
Jonathan Dunn is Executive Director
at leading business sale advisor BCMS.
Founded in 1989, BCMS has helped sell
more than 600 private companies in
the last decade alone. The firm has 260
professionals, and is headquartered near
Basingstoke. See BCMS.com for more
insights on business sales.
16
17

Employing foreign workers
now and in a post-Brexit world
Charlotte Allery outlines the key practical considerations for business and
family employers taking on foreign workers in the UK and considers the
unknown post-Brexit landscape.
The ease of travel and mobility means
that the world has become a smaller
place and businesses are seeing an
increasing number of foreign applicants.
With skills shortages in most sectors
and an ever-globalising world, many
employers value these overseas workers
with the knowledge and skills they can
bring.
Whilst foreign workers can be a valuable
addition to any business, employers need
to bear in mind their legal obligations.
Recent figures from the Home Office reveal
that getting it wrong can be an expensive
mistake, with £10.5m in penalties being
issued to employers with illegal workers
between 1 January and 31 March 2017.
Right to work in the UK
All employers, irrespective of size or
sector, are required to prevent illegal
working in the UK by confirming that
all potential employees and workers are
entitled to work in the UK.
Employers that fail to adequately carry
out a right to work check and employ an
illegal worker can face tough sanctions,
including a penalty of up to £20,000 per
illegal worker. It is also a criminal offence
to knowingly employ someone who
does not have the right to work in the
UK, which can result in a prison sentence
of up to five years and an unlimited fine.
These checks involve following
three steps for each worker:
1. Obtaining specific original documents
as specified by the Home Office, such
as a British passport;
2. Checking the validity of the
documents in the presence of
the worker; and
3. Making and retaining a clear copy,
together with the date of the check.
We recommend that offers of
employment are made conditional on
the individual’s eligibility to work in the
UK being satisfied and, if you are in any
doubt about an individual’s right to work
in the UK, seek legal advice or contact the
Home Office directly before employing
the individual.
Employment rights
Foreign employees working for
employers in the UK will be entitled
to the same employment rights as UK
citizens, such as the National Minimum
Wage, paid annual leave and protection
from discrimination.
However, employers should be
mindful that some foreign workers may
be restricted on the number of hours
they can work, in what capacity and for
what period. Information on restrictions
can be ascertained from an applicant’s
documentation, such as a visa. Further
information should be sought from the
Home Office if there is any uncertainty.
Avoiding discrimination claims
Whilst employers are, of course, entitled
to recruit the best candidates for a
job, race, nationality or ethnicity of a
candidate should not be a factor in the
recruitment process. Race is a protected
characteristic under the Equality Act
2010, meaning that an individual will
have a claim for discrimination if they
have been treated less favourably on the
basis of their race or nationality.
Employers should ensure that they
are carrying out right to work checks
consistently for all potential employees.
Remember not to make any assumptions
about a person’s immigration status on
the basis of their race, nationality, ethnic
origins, accent or the length of time they
have been resident in the UK. A blanket
policy of only carrying out right to work
checks on individuals who appear to
be ‘foreign’ is likely to lead to claims of
discrimination.
What about the self-employed?
Whilst the legal obligation to carry out
right to work checks will not apply to
any self-employed contractors
you engage, there are compelling
commercial reasons for carrying out
such checks. In the event that the
individual’s self-employed status is
challenged and they are found to
instead be an employee or worker,
you will have already complied with
your legal obligations in respect of
immigration checks.
Further to this, if an illegal worker is
removed from your business, it may
disrupt your operations and could cause
widespread reputational damage. From a
risk management perspective, the illegal
status of your contractors or consultants
may also result in an invalidation of
any insurance you hold, such as public
liability insurance.
What if I employ foreign nationals in
my home?
Where you employ a nanny, carer or
personal assistant to carry out work for
you in your own home, you will need to
comply with your legal obligations as an
employer in the same way as a company
would. As such, you will need to carry out
right to work checks on these individuals,
regardless of their nationality. You will
also need to consider all other usual
employer obligations, such as income
tax and National Insurance deductions,
paying the National Minimum Wage etc.
A post-Brexit world
In the immediate and mid-term
aftermath of the UK’s vote to leave the
EU and Theresa May’s triggering of Article
50, nothing has changed. Employers
should continue to employ EU workers
as they always have done, ensuring that
right to work checks are carried out as
currently stipulated by the Home Office.
However, the long-term impact on the
employment of EU nationals is unclear.
In June this year, Theresa May
confirmed that EU nationals and their
families who have spent five years in
the UK will be able to apply for ‘settled’
status to obtain the same rights as UK
citizens. However, the Government’s
further immigration plans are anything
but settled. In September this year, a
Home Office document leaked to the
press outlined for the first time how the
Government intends to approach the
politically charged issue of immigration.
Whilst the leaked document was in
draft form and has not yet been signed
off by Ministers, it suggests that free
movement of labour will end upon exit
from the EU in March 2019. Among its
82 pages, the document also suggests
that low-skilled migrants will be offered
residency for a maximum of two years,
while those in high-skilled occupations
will be granted permits to work for a
longer period of three to five years. It also
proposes that the UK will adopt a more
selective approach to immigration based
on the UK’s economic and social needs.
The Government has said that it will be
setting out its initial proposals for a new
immigration system later in the autumn.
Whether these leaked ideas are the reality
of the future, and what this ultimately
means for employers relying on EU
labour, unfortunately remains to be seen.
Coffin Mew’s Top Tips
• Don’t forget to carry out right to
work checks on all employees or
workers.
• If you are in any doubt about an
individual’s immigration status,
seek legal advice or contact the
Home Office directly before
employing them.
• If EU nationals you employ
are concerned about their
immigration status, reassure
them that there is no immediate
impact on their employment.
• If you typically employ EU
nationals, keep abreast of the
Government’s immigration plans
post-Brexit.
• If a foreign worker does not have
the right to work in the UK, you
may be able to issue sponsorship
certificates to the individual so
that you can employ them. In
order to do this, you will need
a sponsor licence. Contact UK
Visas and Immigration directly
to confirm your eligibility as a
sponsor and the type of licence
you require.
Contact us direct
Charlotte Allery
Solicitor - Commercial
& Employment Services
023 9236 4310
charlotteallery@coffinmew.co.uk
18
19

Separation agreements –
an alternative to divorce
Relationships do not always pass the test of time,
with the Office for National Statistics reporting that
one in three marriages will end in divorce. The end
of a marriage need not necessarily end in divorce,
with many couples choosing instead a separation
agreement. Bryan Scant explains.
Separation agreements are, in short, like
a contract between a married couple
or those in a civil partnership that sets
out clearly the financial arrangements
and responsibilities of each party. They
remain valid until the couple divorces or
until the relationship is restored.
There are many reasons why a couple
may not wish to divorce immediately
and choose a separation agreement,
including religious reasons, family
pressures and, particularly if parties have
been separated for under two years, the
court’s requirement to apportion blame.
Until government reforms divorce
laws and allows for ‘no fault divorces’,
the only option open to couples
separated under two years is to
apportioning blame where none may
exist. This, understandably, leaves
many couples in short marriages,
who are separating without any
real animosity, in an uncomfortable
position.
A separation agreement will allow a
couple to move on in their lives having
agreed how their assets and financial
responsibilities will be managed.
It will also make any future divorce
considerably easier and cheaper.
Separation agreements can cover a
wide range of matters, including:
• Who will pay the mortgage or rent,
and household bills;
• Who will continue to live in the
family home and what happens if it’s
sold;
• What happens to any debts, such as
loans or overdrafts;
• What happens to savings,
investments and other financial
assets;
• What happens to any items such as
cars or furniture, especially if bought
jointly; and
• Whether maintenance is paid to
support a financially weaker spouse.
Whilst not technically legally binding,
a court case in 2010, known as the
Radmacher case, provided clarity and
legal weight to what the courts call
‘nuptial agreements’, meaning that prenuptial,
post-nuptial and separation
agreements can influence a court’s
decision on divorce settlements.
This means that couples wishing to
create a separation agreement must
do so without any undue influence
from either party, and be prepared
to disclose all of their combined
and individual finances. Separation
agreements must be fair and cannot
leave one party in a financially
disadvantaged position. This will
mean that they will be quite detailed,
addressing every financial aspect of the
relationship.
Whilst it is entirely possible to create
a separation agreement without the
help of a solicitor, perhaps from a free
to download form from the internet,
it is not advisable. For a separation
agreement to have any legal weight,
it is vitally important that each party
takes independent legal advice before
signing the agreement.
If and when a couple eventually seeks
a divorce, the courts will look to the
fairness of the agreement and if they
cannot demonstrate the fairness of the
agreement, the courts can simply ignore it.
It is good practice to keep
arrangements about the care and
access to children outside of a
separation agreement. The courts
will always look to what is in the best
interest and needs of any children from
a relationship at that point in time and
in future years. Separation agreements,
by their very nature, focus on the
financial position of a relationship at
the point of time of separation and
therefore may not adequately address
the needs of any children. It is also
good practice not to combine financial
disputes with child arrangements as
one should not influence the other.
There are some downsides to
separation agreements that couples
should understand before they decide
whether they are the right option for
them.
Separation agreements tend to
be self-policed and work because
the breakdown in the relationship is
largely amicable. However, they can be
difficult to enforce if one party decides
not to abide by its terms, leaving
divorce the only realistic option. An
application to the court is necessary to
begin financial remedy proceedings,
which can be lengthy and costly.
They also do not offer the closure of
a financial settlement approved by the
courts that an order on divorce delivers.
That will mean any such agreement
will need to be revisited from time to
time. And of course, individuals will
remain married which may make future
relationships difficult.
Separation agreements are
increasingly popular, used not as a
long-term alternative to a divorce, but
as a stepping stone towards that final
clean break without the animosity of a
blame based divorce.
Contact us direct
Bryan Scant
Solicitor - Family
023 9236 4954
bryanscant@coffinmew.co.uk
20
21

Moving beyond
the narrow lens
of gender pay
reporting
All organisations with more than 250 employees need to report on the
gap in pay between its male and female employees. It has created for
some organisations, notably the BBC this summer, some awkward
headlines, as Leon Deakin explains.
Following the BBC’s release of its
gender pay figures and the high-profile
claims by Asda retail store workers
seeking to compare their remuneration
to those in the distribution centres,
equal pay has been firmly in the
headlines for the wrong reasons.
Conversely, other companies have
seized the initiative and moved
beyond gender by reporting on
other characteristics such as race and
ethnicity.
Now is, therefore, a good time to
look again at the current gender pay
requirements, but also consider whether
it will become best practice and part of
good risk management to go further than
the law currently requires and report on
other protected characteristics.
As a recap, the requirement from 6 April
2017 was for employers in Great Britain
with more than 250 staff to publish four
different figures annually in relation to the
following:
• Gender pay gap
(mean and median averages);
• Gender bonus gap
(mean and median averages);
• Proportion of men and women
receiving bonuses; and
• Proportion of men and women in each
quartile of the organisation’s
pay structure.
Struggling to close the gap
Gender pay reporting has left some
organisations facing difficult headlines.
Whilst the BBC dominated the news
following the revelation that the highest
paid female earned between £450,000 and
£500,000 compared to the highest paid
male who earnt between £2.2 million to
£2.25 million, it is not alone.
Deloitte recently published a study into
the gender pay gap in the technology
sector in the UK, examining data over
the past 15 years. The study found
that women made up a tiny 14.4% of
workers, ultimately highlighting the
underrepresentation of women in the
sector. The study also forecast the existing
pay gap would not be bridged until 2069.
There are, unsurprisingly, a plethora
of opinions as to why this is the case.
One rather unfortunate now ex-Google
employee’s internal memo made headline
news when he attributed it to inherent
‘biological differences’ and that women’s
biological traits make them less aligned to
become coders at Google.
More encouragingly, some of the
biggest names in the technology sector
have pledged specifically to address this
issue; Virgin Media have gone as far as to
pledge to achieve a 50:50 gender balanced
workforce by 2025.
Getting ahead
An interesting contrast can be seen in the
case of PwC, which gained largely positive
press by taking the gender pay gap
reporting requirements as an opportunity
to get a step ahead and report on other
characteristics such as Black, Asian and
Minority Employees (BAME).
Indeed, even though PwC’s figures
revealed that there is a pay gap between
BAME staff and others, it attributed
this to the fact that, statistically, ethnic
minorities filled the lower paid roles which
unsurprisingly led to a gap between those
at the bottom and top of the pay scale.
PwC’s strategy as a result of their findings
is to retain as many BAME employees at a
junior level to increase diversity across the
business in years to come.
Of course, a more interesting
consideration could perhaps be why BAME
employees are more likely to be employed
at a junior level, but by driving the agenda
at a faster rate than required PwC is more
likely to be able to control it.
All this raises many questions with
potentially difficult answers.
However, for those now required
to report on the gender pay gap, it is
absolutely crucial to interrogate the raw
data obtained and consider not just how
to explain or justify the findings to avoid
costly claims, but to actually grasp the
nettle and try and use findings to launch
an effective diversity strategy. This is, by no
means, an easy task, and it may be a wise
investment to take some advice in relation
to how best to do this.
In addition, while it is currently only a
legal requirement to report on the pay gap
in relation to gender, it could be genuinely
beneficial to explore other characteristics,
such as race, ethnicity and, perhaps, even
disability in order to truly understand
diversity in the work place and address the
barriers that prevent people from reaching
their potential.
Going beyond the narrow lens of
gender pay reporting and exploring other
characteristics could assist in achieving
a fairer and more equal work place and
ultimately attract and retain employees.
Contact us direct
Leon Deakin
Partner - Employment
023 9236 4072
leondeakin@coffinmew.co.uk
22
23

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