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Alex Sandland a Commercial Litigation and Dispute Resolution Specialist joins Dyne Solicitors in January 2012.

1. Hi Alex! So you’ve decided to joining the award winning team at join Dyne Solicitors (DSL)! What prompted your decision?

The proximity and variety of lunch options in Tattenhall was very compelling! I had also heard many excellent reports about the work undertaken at DSL. I was
persuaded by the opportunity to apply my experience and skills to a growing practice with an exceptional reputation. After early discussions it was clear that we
were a good fit!

2. What role will you be taking up at DSL?

I shall be heading the Litigation and Commercial Services Department as Director
and senior solicitor. I am also excited to be joining the Management Committee in
steering the firm through its development and expansion.

3. It seems all lawyers need to specialise these days; how do you spend
your time?

I am principally a litigator specialising in civil and commercial disputes. I spend my
time winning cases!

4. And what sort of cases do you most enjoy handling?

I particularly enjoy complex and unusual cases - and especially where the
odds are stacked against the client. I have experience in contractual, property
and commercial disputes and I am also able to advise in matters relating to
insolvency, negligence and contested Estates.

5. How would you describe your client ethos?

I am committed to the expectations of the client and I always conduct my cases
with the ultimate objectives in mind. I prefer a direct and proportionate approach
to litigation and I believe that the clarity of the advice is paramount. There is no
room for blagging clients - any case must be dealt with in a cost-effective and
efficient manner. In today’s world - confidence is a luxury that clients expect.

6. What tips can you provide to a business thinking of using a lawyer?

It is unfortunate, but inevitable, that businesses will often become distracted
by the nuisance of the law. If you are thinking of using a lawyer then you will
definitely need one. We are here to help and we are committed to the long-term.
It is in our interests to look after you - whether you require pro-active,
preventative measures, re-assurance or even a sledgehammer for the nut.
Talk to us. Early, effective and specialist advice will ultimately save you time,
money and headaches.

7. Is there anything businesses can do to prevent commercial disputes
arising in these uncertain times?

Seeking advice at an early stage will increase the prospects of achieving a
prompt and less-expensive outcome. DSL are positive in encouraging mediation
and negotiation. Businesses should not forget that favourable Terms and
Conditions and ongoing compliance are essential. Also, the effect of a simple,
well-considered and carefully drafted letter, on headed paper, should not
be underestimated.

8. Finally, when you’re not spending your days as a lawyer, what else do
you like to do?

The midnight oil burns bright at DSL. There is no time for play! In the minimal
spare time available I enjoy racking up runs and taking wickets at Tattenhall
Cricket Club. I also share the pain of many other Aston Villa fans through every
season which is always littered with promise but eventually disappoints. Aside
from my legal and sporting chores, I sometimes get time to see my wife and
children for some dinner and TV!

DSL’s Head of Property and Renewables, Clare Simmons, takes a measured
look at some of the current changes affecting the renewable industry.

Few will have escaped the headlines at the end of last month announcing the halving of the Feed In Tariff rate for small scale solar PV generation. By reducing the payments from 43p per kWh to 21p, the effective rate of return for most domestic or agricultural scale installations has extend payback times to nigh on 20 years – not far off the average lifespan of the equipment. Predictably, the companies which install the equipment are outraged. There has also been a degree of schadenfreude in the press that the middle classes with money to burn are no longer able to enjoy a guaranteed return on investment of circa 8% per annum, at a time when the average savings investment rate is less than half that figure. And certainly there is the legitimate point that all consumers, including those who are least well off, are paying for these subsidies in a levy on the electricity bills they pay.

But it is more interesting to ponder what this government decision means for the
renewables industry as a whole. For while nearly everyone expected the FIT levels to drop in April, the amount of the decrease and the speed did take the industry by surprise. Indeed the “consultation period” for the change ends on 21st December, 9 days after the changes come into effect! “Foregone conclusion” screams the industry.

With the timescales involved in designing installations, ordering equipment, shipping, installing, connecting and processing the paperwork taking months, the period of 6 weeks from announcement to cut-off date has left would be customers having entered into contracts which will produce far lower rates of return than they feel were promised to them at the date of signing. It is not surprising therefore that this short period is one of the grounds for a judicial review being brought by a consortium of solar providers.

Another perspective is that of employment. The solar sector has been booming. Yes, a proportion of that is artificial given the high levels of subsidy, but the effect on jobs is non-negligible. The industry currently employs 25,000 people and that in turn generates tax revenues and a decrease in state dependency. Many of these installers have re-trained in this sector following the slump in the construction industry and spent considerable time and money showing the sort of resourcefulness praised by governments of all colours. What now for them? And who, in the future, will be willing to invest in emerging sectors when policy shifts so abruptly?

The question as to the effect of the change in policy on those less well off in society is also not as clear as the Government has at times made out. Certainly the levy on the energy costs weighs proportionately more on those who are the most vulnerable; the elderly, the young and the sick. But the high levels of subsidy have enabled the expansion of so-called “rent a roof” schemes. Under such schemes, for no capital outlay, housing associations or householders have been able to use the free electricity generated PV panels, with the installer taking purely the subsidy as its return. The drop in the subsidy will mean that such opportunities are lost as installers withdraw from the market. While as a lawyer I have my concerns about the form of many such leases, they do offer those who are less well off a means of reducing their electricity bills.

Lest it be said that this article conflates what is happening in the solar industry with the whole of the renewables sector, I should also mention a recent decision in Norfolk in which the Environment Minister, Caroline Spelman, has withdrawn £16 million of PFI funding to a proposed Energy from Waste plan, in direct opposition to the current aims of her department which remain “to support the role of energy recovery from waste within the waste hierarchy and aim to improve understanding of this role.” Add to that the resistance of other local Conservative MPs, and those companies who took the risk of tendering for the project and taking it through the tortuous planning and permitting process are likely to be thinking twice before tendering for similar schemes.

Then again, EU requirements forced the government to reduce its proposed large-scale Renewable Heat Incentive rates from 2.7p/kWh to 1.0p/kWh, and delayed implementing the scheme, again denting consumer and business confidence. Many are hoping this that the scheme is only delayed and not effectively killed off. Chris Huhne, at the recent Renewables UK Conference held in Manchester said he wanted to look at what the Government can to do encourage the growth and jobs created by renewable energy. Well, let’s see.

For more information on how the changes might affect your home
or business, please telephone Clare on 01829 773 103 or e-mail her at
cls@dynesolicitors.co.uk.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk © Dyne Solicitors 2011. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Load security under the Spotlight in the Republic of Ireland.

It is clear from recent reports by the RSA that load security is a continuing problem, and, unfortunately many of these incidents result in serious injury or, on occasions, fatalities. Currently each such event is likely to be the subject of an investigation by officers of the Health and Safety Executive (HSE) and an employer might find that he is facing not only a general criminal prosecution but also a prosecution under the health & safety legislation; a situation which could result in substantial penalties if not imprisonment.

The traditional assumption in the transport industry is that a driver will have acquired sufficient knowledge about the ways to secure a load in the course of his work as a driver. In general terms this might be a fair assumption, but the fact remains that loads are lost because they were not properly secured an error which, on the face of it, would seem to be ‘driver error’.

The Safety, Health at Work Act however has dramatically changed the chain of responsibility with the result that, in the case of an insecure load for instance, it is the employer who will have to show that the driver had all the necessary equipment and training to enable the accident to be avoided.

The employer will have to be able to show that such equipment as ropes, straps, tensioners, chains and Stilsons, are routinely checked at appropriate intervals. The rope that is commonly used in the industry is 10mm split-film polypropylene rope. This rope will resist water, oil, and dirt with the result that it may be useable even if it looks to be in a desperate state. It does, however, deteriorate, and, of course, it has a maximum safe loading. A driver must be sufficiently aware of the strengths and weaknesses of the rope
that he is given to use to secure a load so that he can reject a rope that might appear to be unsafe.

Nylon straps, which are normally used with a tensioner, should have the maximum safe load displayed on them. A driver must know what the maximum safe loading is and an employer must ensure that that information is available. Straps can be very susceptible to cutting and it is important to ensure that they are not being passed over a sharp edge. An employer must be able to show that drivers are aware of this and, where necessary, that they are provided with edge protectors.

Tensioners, of course, rely on ratchets and, once they get worn they can slip and release the tension. Many load losses are the result of a loss of tension in the securing ropes or straps. Drivers must be encouraged to look for signs of wear, and, perhaps more importantly, not to use defective straps. Chains are only suitable for certain types of load, as, when tension is applied they can easily cause damage. Chains should always have a safe load rating and drivers must know where to look for this information. ‘Stilsons’ will slowly wear in use and they should not be used if there is any indication that a ratchet may not hold.

It is also important to remember that loads inside ‘curtainsiders’ may not be secure. In the first instance the operator should ascertain what weight the curtain will withstand in the event that the load is thrown against the side. Light cartons may present no problem, but heavier items will normally need to be secured to the vehicle.

It may well be difficult to persuade an experienced driver that he has anything to learn about load security but, as with many health and safety issues, it is the employer who will have to explain how the insecure load could have occurred and it will never be sufficient for the employer to say that he relied on the skill of the driver unless he can show that he had reason to be satisfied that the skill was sufficient.

Yet again, therefore, it is a question of training. Training of this sort need not take any great length of time but the trainer must be competent, that is to say sufficiently experienced, and above all else there must be a written record of the fact that training was given. There should also be purchase records for the ropes, straps and chains and there should be a system of routine checks, these checks being recorded.

To discuss load security in more detail, contact the Transport Team at Dyne Solicitors on 01829 773 100.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk © Dyne Solicitors 2011. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.

Imminent changes to rules on operator licensing for hire or reward operations.

The rules on operator licensing are based on an existing EC Directive that will be replaced by a new EC Regulation with effect from 4 December 2011. This Regulation makes a number of changes to the rules on operator licensing for transport managers and hire and reward operations.

This article is primarily aimed at Skip Operators and I won’t attempt to cover every aspect of the EC Regulation but will draw attention to some noteworthy changes, particularly for transport managers. Whilst some in the waste industry operate vehicles on a ‘restricted’ licence basis and do not need a nominated transport manager many need the flexibility of a hire or reward ‘standard’ licence and as a result they will be directly affected by these changes.

The aim is for there to be a uniform, modern and effective set of rules across Europe that promotes fair competition. However, I’m not sold on this simply because fair competition through uniform regulation only works if there is consistency in enforcement. If all member states enforce the regulations in the same way as here in the UK then all right. However that simply isn’t the case and here in the UK we could certainly teach some EU Members a thing or two about enforcement; and so therein lies the trouble with regulation in the UK.

Since September 2011 questionnaires have been raining down on operators. This obligatory census heralded the first hint many will have had of the changes in the rules concerning hire or reward operations and transport managers.

The questionnaire is all about intelligence gathering albeit packaged innocuously as a means of ensuring details of the nominated transport managers are up to date and to gather some extra information about them. The reality is information on transport managers and operators is going to be shared between EU Member States. Is there anything to be done about it? No, absolutely nothing, unless you decide to operate outside the system which would of course be illegal or you downgrade to a restricted operation. Again, the EU Regulation only applies to hire or reward operators so non-hire or reward (Restricted) operators are spared.

Behind all this intelligence gathering lies the new power for a Traffic Commissioner to direct regulatory action against a transport manager and to potentially declare him or her ‘unfit’. This declaration of unfitness would be entered into the UK national register of operators and the declaration would be shared with licensing authorities in other Member States. In other words an EU wide ban would be imposed until the transport manager’s repute was restored.

Transport managers are to be categorised as ‘internal’ or ‘external’. An ‘internal’ transport manager will have a genuine link to the operator being a full or part time employee, director or owner. An ‘external’ transport manager will be a person under contract to an operator on a part time basis and who will only be permitted to work for a maximum of 4 operators with a combined total fleet of 50 vehicles (although Traffic Commissioners could set lower limits in individual cases). This requirement could really bite those operators who hire in consultants as their nominated transport managers. Imagine, overnight, your ‘external’ transport manager becoming non compliant because of a breach of the 4/50 rule!

National CPC will be abolished from 4 December 2011. All new examinations will be required to test knowledge of both national and international operations However, national CPCs issued before that date will remain valid indefinitely and holders wishing to update to an international CPC will continue only to be required to pass an additional international module of the CPC examination.

The rules regarding grandfather rights are changing too. Grandfather rights will only be granted to individuals providing proof that they have ‘continuously managed’ a road haulage undertaking or a road passenger transport undertaking for the period of 10 years before 4 December 2009. New claims for grandfather rights will not be permitted after 4 December 2013. An operator will need to ensure that their transport manager is able to provide evidence of his or her exemption. Transport managers who are currently on an operator licence through grandfather rights will maintain those grandfather rights and will be issued with new certification automatically (i.e. a new 'acquired rights' certificate). In addition, the Office of the Traffic Commissioners will keep a master list of acquired rights holders.

One major irritant of the new rules (only applicable to hire and reward) will be the requirement to be able to prove at all times that the operator has at least one vehicle specified on the licence. Prior to this change it was permissible for an operator to hold a licence yet have no vehicles in possession. Why change the rules? I suspect some perceived abuse of the licensing system lies behind this manoeuvring. Informal arrangements to hire or borrow a vehicle will not be sufficient and operators will need to either own the vehicle or it will need to be held under a hire purchase, hire / leasing or other formal arrangement. Operators will be required to self declare that they meet this requirement and if they are found to be in breach they will be liable to enforcement action. It appears Traffic Commissioners may exercise their discretion to allow a period of grace of up to 6 months for the operator to demonstrate compliance.

Finally for hire or reward operations the small trailer exemption is abolished. The exemption is still applicable to restricted operations so that a trailer with an unladen weight not exceeding 1020 kg won’t need to be included when calculating the 3.5T combination plated weight limit.
If you are worried or concerned about anything you have read in this article or you need help or assistance with your operator licence please get in touch.

John Dyne LL. B MinstTA
Dyne Solicitors Limited
Specialists in regulatory law.

Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk © Dyne Solicitors 2011. While we make every effort to ensure the information contained in these RSS feeds is correct at the time of writing, Dyne Solicitors Limited cannot accept any liability for any proceeding, loss, claim, damage or expense (whether direct or indirect) arising in connection with these RSS feeds.This RSS feed is provided for general information only and applies to England and Wales only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.