By

laura.allsopp@acuitylaw.com

Community Infrastructure Levy (“CIL”): Limits on Limitation

Can a Council Enforce CIL Payments Years After Approval?

Author: Jim Ryan

Key Contacts: Steve Morris and Jim Ryan

Shropshire Council (the “LPA”) granted planning permission in 2015 for the erection of a new detached dwelling and garage on land at Ellesmere.  The planning permission was implemented, but it remained incomplete at the material time.

A CIL liability to the LPA of just over £39,500, remained unpaid, so the LPA issued a CIL Stop Notice (the “Notice”) which took effect on 26th September 2022, and required all building work to cease until the Notice was withdrawn.  The Notice would be withdrawn when the outstanding CIL payment was made.

The landowner applied to the Planning Court to judicially review the LPA’s decision to issue the Notice.  The application on the papers was refused by the court, as was a renewal application.  The landowner, however, appealed to the Court of Appeal and permission to proceed was then granted.

At the hearing in November 2024[1], the only ground of appeal which was pursued was a submission that the LPA’s demand for payment, which had been issued on 13th August 2015, was time-barred under section 9 of the Limitation Act 1980 (the “Act”).  It was argued that the issue of the Notice was an “action” to recover a sum within the meaning of section 9(1) of the Act, but in its judgment the Court disagreed.

The LPA was thus not prevented issuing the Notice and the landowner remained liable for the outstanding CIL payment.

Although a CIL payment of just over £39,500 is a significant sum of money, it is thought-provoking to consider whether paying the CIL would have been less expensive than the subsequent legal battle seeking to avoid the payment.

If you have any queries about this issue, please contact Jim Ryan and the Planning and Environmental Team.


[1] Captain Lee Jones -v- Shropshire Council [2025] EWHC 365 (Admin)

New Regulations To Reduce Packaging Waste In Wales

New Regulations To Reduce Packaging Waste In Wales

Commercial solicitor Adam Munn explains the Welsh Government’s new regulations requiring producers of packaging in Wales to collect data on the packaging they supply to others.

Key Contact: Richard Voke

Author: Adam Munn

The Welsh Government has introduced new regulations requiring producers of packaging in Wales to collect and report data on the packaging that they supply. The Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023 (Regulations), which came into force on 17th July 2023, are designed to support the implementation of the Extended Producer Responsibility for Packaging Scheme (EPR Scheme).

The Regulations require small producers – those with an annual turnover of more than £1 million and who handle more than 25 tonnes of packaging each year – to collect data on the packaging that they supply. Furthermore, large producers – those with an annual turnover of more than £2 million and who handle more than 50 tonnes of packaging each year – are required to collect and report this data to Natural Resources Wales.

The data that producers collect and report will be used to calculate the fees that they will need to pay under the EPR Scheme. Under this scheme, producers will be responsible for the collection and disposal costs of this packaging when it becomes waste. Producers were originally required to start paying the packaging fees under the EPR Scheme in 2024. However, the obligation to pay has now been deferred until 2025.

The Welsh Government’s aim is to provide a financial incentive for producers to become more efficient, improve the recyclability of their packaging and reduce the amount of packaging they place on the market. Similar reporting requirements are due to commence in England on 1 October 2023.

We will continue to track the Regulations and the EPR Scheme and any updates as they develop.

For further information on how these regulations might impact your business, please contact our Regulatory team

Building Resilience: How Green Drafting Can Shape Legal Contracts

Building Resilience: How Green Drafting Can Shape Legal Contracts

Green drafting can allow businesses to stay ahead of competitors and comply with ESG obligations. But what is it and how can it shape contracts?

Key Contact: Declan Goodwin

Author: Courtney Wilbor

From start-ups to established companies, the ESG landscape is changing in a way that means mandatory reporting and mitigation of climate-related risks will soon be the norm for all businesses.

The Government’s Sustainability Reporting Guidance for 2022-23 emphasises transparency when considering climate-related risks, highlighting the inevitable shift that it is not only larger companies with 500+ employees or a turnover of £500 million that must proactively monitor and mitigate these risks.

What is Green Drafting?

In its simplest form, so-called “green drafting” involves embedding express sustainability obligations in written contracts. It allows those drafting and negotiating contracts to identify the right climate causes and sustainability solutions for the specific requirements of that contractual relationship or project, reducing the need for renegotiation later. Examples of green drafting include:

•             Placing obligations on suppliers to procure energy from renewable sources in manufacturing and supply agreements;

•             Repair and alteration covenants, rent review assumptions and covenants for the protection of energy and sustainability ratings in property leases;

•             Carbon budget adjustment clauses in completion accounts in share purchase agreements; and

•             Requiring the management of a dispute in a way that minimises its environmental impact in construction contracts.

How can green drafting assist?

The duty to mitigate climate-related risks should be shared with suppliers, manufacturers, and customers alike.

The uptake in green drafting has been slow, largely due to a lack of awareness about how businesses can impose climate-related obligations and caution around potential impacts on profits and relationships.

Yet, a data protection clause would not be omitted if a business were sharing personal data, so why should climate-related clauses be treated differently? A breach of either can result in reputational damage. Given the prominence attributed to climate change and sustainability, perceived neglect of these key issues could be particularly harmful for a business from both a reputational and compliance perspective.

Where to start?

Engaging in meaningful dialogue about your business’ expectations from the outset of contractual negotiations will assist in the incorporation of these clauses.

All our teams at Acuity are always happy to steer our clients through the ever-changing and complex ESG landscape, including advising them on how they can adapt their commercial contracts in order to achieve their sustainability objectives and support the fight against climate change.

Our dedicated Acuity Law ESG team helps to both manage risk and harness the opportunities that arise from getting ESG right. For further assistance on any ESG queries, please get in touch.

What are The European Sustainability Reporting Standards (ESRS) and What do They Mean for Your Business?

What are The European Sustainability Reporting Standards (ESRS) and What do They Mean for Your Business?

Key Contact: Richard Voke

Author: Elle McCook

With the focus on sustainability becoming increasingly more important to businesses, the EU Commission has introduced the first ever EU-wide Environmental, Social and Governance (ESG) reporting standards.

The EU Sustainability Reporting Standards (ESRS) expand on the existing Corporate Sustainability Reporting Directive (CSRD) and will require companies to report activities on a broad range of ESG issues, including carbon, pollution, water, waste, biodiversity, and human rights.

Who do the ESRS apply to?

The ESRS will apply to all companies currently within the scope of the CSRD, as well as a variety of other SME and large private and listed companies across a range of industries.

While the ESRS do not directly impact UK companies, they will apply to non-European companies that have significant business operations in the EU.

In 2022, the UK adopted similar mandatory ESG disclosure laws requiring companies to make climate-related financial disclosures as part of their annual report. These disclosure requirements apply to:

  • UK companies with 500+ employees and securities admitted to AIM/banking or insurance companies and those with turnover of more than £500 million;
  • Large LLPs (not traded or banking LLPs) with 500+ employees and a turnover of more than £500m; and
  • Traded or banking LLPs with 500+ employees.

While the UK regulations are not considered to be as robust as the ESRS regulations, it is clear that with ESG-related disclosure and reporting requirements being more stringent than ever, UK businesses need to prepare themselves to meet these new reporting requirements.

What does this mean for my business?

The aim of the ESRS is to standardise sustainability reporting and bring it up to the same quality and standards as the existing financial reporting framework.

The ESRS currently consist of 12 draft frameworks. As a starting point, those businesses which fall under the ESRS should carry out a due diligence exercise on current sustainability measures and existing reporting practices (if applicable), which may include gathering data from suppliers, operators, and company partners to understand which of the frameworks will apply.

The new reporting framework is going to be phased in, with the first batch of companies to start reporting as early as 2024.

If you would like more information on how ESG reporting standards will affect your business, please contact our ESG team.                                                                                                                         

An Introduction to eSports in The UK and its Unique Considerations.

An Introduction to eSports in The UK and its Unique Considerations.

Key Contact: Tessa Laws

Author: Alex Cater

Whether or not you know your Pac-Man from your Sonic, the popularity of video games in the UK shows no signs of abating. In 2022, OFCOM reported that 60% of UK adults engage in gaming and the industry has contributed an estimated £2.8 billion to the UK economy – with trends indicating a further upward trajectory. It is then unsurprising that a sub-section of the market has emerged for competitive video games or “eSports”.

eSports are similar to traditional sports in that individuals or teams compete against each other in tournaments in front of spectators for accolades or prizes but matches are played in a digital arena instead of a physical one. These competitions are already garnering huge viewership both online via streaming and in person in the actual eSports arena, with prize pools reaching the millions.

However, despite its recent successes, the eSports industry is not without growing pains. It is becoming increasingly clear that, while similar to traditional sports, the industry faces unique challenges and some interesting legal considerations.

Players’ commercial gaming contracts must be drafted in the context of the market and address issues such as whether players can be required to “stream” their gameplay to audiences outside of a competition setting or how they can distinguish practising from playing for fun.

Additionally, it is common practice within the industry for players in a team to live together in a “gaming house” in order to better facilitate team management. Not only does this affect the aforementioned contractual arrangements, but it raises real estate concerns – as access to high-speed internet and relevant equipment is an absolute requirement.

Reputation management also becomes essential for all parties as scandals, such as in 2019 when a video game developer punished an eSports player for voicing support for the Hong Kong protests during an official stream, can cause huge drops in viewership, player base and ultimately revenue.

For advice about legal issues impacting the videogame and eSports sectors, contact our Creative Industries team.

Employee Ownership Trusts

Employee Ownership Trusts

Key Contacts: Christian Farrow

Author: Nia Workman

What is an Employee Ownership Trust?

An Employee Ownership Trust (EOT) is a trust set up by existing company owners for the benefit of all its employees. The EOT becomes a majority owner of the company (meaning that it owns over 50% of its shareholding). EOTs do not give employees a direct share ownership, rather they own the company for the benefit of all its employees collectively.

In 2012, the UK Government undertook a review of employee ownership (the Nuttall Review), which aimed to promote diversification of the economy by encouraging employee ownership. As a direct consequence, the Finance Act 2014 introduced certain tax reliefs to incentivise companies to become EOT owned, and for individuals to sell their controlling interest in a company to an EOT.

What tax reliefs are available for businesses that form EOTs?

For shareholders, the significant advantage is that disposals into an EOT can be made free of capital gains tax and inheritance tax;

For employees – companies owned by EOTs can pay employees bonus payments of up to £3,600 per year free of income tax; and

For companies– corporation tax deductions to the value of any annual bonuses paid to employees.

What do businesses need to know before establishing an EOT?

Setting up an EOT is no small feat and several key factors should be considered before embarking on the process: 

  1. Who will be the trustee?

There is the potential for conflict of interest if an employee or director of the company is also a trustee of the EOT.

  • What is the market value of the shares to be acquired by the trustee?

This may need to be determined by an independent valuer.

  • How will the trustee raise the funds to acquire the shares?

You should establish whether the company will lend money to the trustee or whether the trustee will borrow money independently from the company.

Ultimately, with the correct guidance, setting up an EOT can provide many benefits to both exiting shareholders and a company’s employees. If you would like discuss EOTs in more detail, please contact our corporate team.

Climate Change Claims: Risks For Directors

Climate Change Claims: Risks For Directors

As the High Court dismisses ClientEarth’s shareholder derivative claim against Shell, what could this mean for the future of climate-related litigation?

Key contact: Aisha Wardell

Author: Rachel McCulloch

Climate change-related litigation is a growing trend and is set to continue with the drive to reach net zero. The directors of Shell were recently in the firing line as one of its shareholders, climate activist group ClientEarth, brought a claim against them alleging that as the company cannot achieve its aim of net zero carbon emissions by 2050 with its current climate transition strategy, its directors were in breach of their statutory duties owed to shareholders.

The case was touted as a “world-first” of a shareholder bringing a claim on behalf of a company (termed a ‘derivative action’ in legal terms) to hold the directors of a listed company to account for allegedly failing to manage climate change risks.

ClientEarth, which holds a minority stake of 27 shares in Shell, argued that in failing to accord appropriate weight to climate risk Shell’s directors had breached their statutory duty to promote the success of the company and the duty to exercise reasonable skill, care and diligence.

ClientEarth’s case was that Shell’s directors owed duties incidental to their statutory duties, including a duty to accord appropriate weight to climate risk and to adopt strategies reasonably likely to meet Shell’s targets to mitigate climate risk. However, the Court disagreed and gave a number of reasons for dismissing the case, namely:

  • the Court was reluctant to interfere with the business decisions of company directors, both in terms of any climate change strategies to be adopted and the way those strategies are implemented;
  • directors themselves are best placed to consider and balance a range of competing considerations to come to a commercial decision- the Court is ill-equipped to carry out this exercise to determine the efficacy of board decisions and strategy; and
  • it is a well-established legal principal that directors themselves determine (acting in good faith) how best to promote the success of a company.

Shareholders bringing derivative claims need to prove they are acting in good faith. Interestingly for future climate-related litigation, the judge stated that as ClientEarth is a climate change activist organisation, an inference must be drawn that its true interest in bringing the claim was not for the benefit of the shareholders of Shell as a whole. This would suggest that in any future derivative claims, it may automatically be assumed that activist groups that hold shares in companies harbour an ulterior motive in bringing  a claim and are pursuing their own policy agenda in alleging breach of directors’ duties.

If the lawsuit had been allowed to proceed, it could have opened the door for shareholders and investors in other companies to sue boards that allegedly fail to adequately manage climate-related risks. However, it may not be the end of the matter as ClientEarth has confirmed its intention to appeal.

If you would like advice on achieving your business’ ESG objectives, please contact our ESG team.

What is expected from banks to tackle fraud? The Supreme Court’s Decision On the so-called Quincecare Duty

What is expected from banks to tackle fraud? The Supreme Court’s Decision On the so-called Quincecare Duty

Good news for banks, but limited relief for Authorised Push Payment fraud victims – we unpack the implications of Philipp v Barclays Bank UK PLC [2023].

Key contacts: Aisha Wardell

Author: Beth Gilbert

The Supreme Court recently handed down its judgment in Philipp v Barclays Bank UK PLC [2023] UKSC 25, finding that Barclays did not owe a duty to protect a customer against fraud by refusing to carry out payment instructions, even in circumstances where the bank had reasonable grounds to believe that the customer was being defrauded by an “Authorised Push Payment” (APP) scam.

What is Authorised Push Payment Fraud?

An APP fraud occurs where a bank’s customer is induced by fraudulent means to authorise its bank to transfer money to a bank account that is controlled by a fraudster. Fraudsters commonly masquerade as legitimate companies to induce individuals to authorise their bank to make such transfers.

Effective relief from APP fraud had until recently been difficult to obtain because the payments are authorised by the individual customer. However, recent case law appeared to signal a departure from this principle and it seemed that banks were increasingly expected by the courts to play a significant role in preventing financial crime, even when the customer authorised the payment- the so called Quincecare duty.

The judgment will be welcome news for banks as the Supreme Court set out the scope of the Quincecare duty and in so doing clarified the relationship between banks and their customers. The Court drew a subtle but key distinction between instances of fraud where a customer unequivocally authorises the bank to make the payment and those where a customer’s agent (such as a director of a corporate customer) acts dishonestly to defraud the customer. In the first scenario, the bank is duty-bound to execute the payment instructions promptly and is not required to enquire further into the transfer, even with reasonable grounds for believing the customer is being defrauded. In the latter, the customer’s agent will lack actual authority to give the instruction and so the bank may rely on the agent’s apparent authority but only in circumstances where there is no apparent dishonesty that would cause a reasonable banker to make inquiries to verify the agent’s authority.

Future victims of APP fraud will now need to look to the new legislative framework of the Financial Services and Markets Act 2023 for any potential reimbursement, rather than seeking redress for any breach of common law duty owed by the bank. This is consistent with the Supreme Court’s view that it is Parliament and the regulators’ role, not the courts, to navigate how losses in APP fraud cases should be shared.

If you need advice on the implications of this ruling for your business, contact our Litigation & Dispute Resolution team.

Acuity Law Welcomes Specialist Immigration Team To New Birmingham Office.

Acuity Law Welcomes Specialist Immigration Team To New Birmingham Office.


Acuity Law is pleased to announce the arrival of three immigration specialists from law firm Axiom Ince.


Partner Sabina Kauser and trainee solicitors Mehreen Ali and Arooj Tussadiq join Acuity’s newly opening Birmingham office, located in the heart of the city’s thriving business community.


The arrival of Sabina and her team strengthens Acuity Law’s Immigration offering and complements Acuity’s market-leading Employment & HR practice under the leadership of Senior Partner Claire Knowles.


Sabina brings a wealth of immigration expertise to Acuity, having previously led the immigration practice at Axiom DWFM and managing her own firm for nearly a decade. She chairs the Birmingham Law Society Immigration Committee, and she was awarded Solicitor of the Year at the 2023 British Asian Professional Awards.


Acuity Law is a fast-growing national law firm, that offers partners a choice between joining as an employed partner or as a consultant partner. The firm has over 150 lawyers supporting business clients throughout the UK.


With its new immigration team Acuity Law can provide a full solution to UK businesses making overseas hires and can support individuals moving from abroad to take up positions in the UK. This is expected to be particularly attractive to those Acuity Law clients in the healthcare and hospitality sectors where challenges with recruitment are being addressed by recruiting overseas talent.


“I am delighted to be joining Acuity Law. I am attracted by the opportunity to build my market leading practice and to be part of a top ranked professional team at Acuity Law,” says Sabina Kauser.


Steve Berry, Chairman of Acuity Law, said: “We are delighted to welcome Sabina Kauser and her team as our first lawyers for our new Birmingham office. We hope more ambitious and talented lawyers will join us and be attracted by our flexible and rewarding career structures.”


Claire Knowles, Senior Partner and Employment & HR team lead at Acuity Law said: “Immigration is an important consideration for many of our clients and we can now provide a complete in-house solution to our clients from point of hire, through to starting work. I’m confident that the ability to work with the Acuity immigration team will give our clients a tangible competitive edge.”

To find out more about our Acuity Immigration team, get in touch.

Holiday Entitlement Calculations: A Holiday From Hell For Businesses? 

Holiday Entitlement Calculations: A Holiday From Hell For Businesses?

Key Contact: Claire Knowles

Author: Adam McGlynn

Find out more with a free webinar from Acuity Law.

When the Supreme Court last year agreed with a part-year music teacher that her employer should have based her holiday pay based on a calendar “reference” period (and not the hours she actually worked) it underscored a situation that might oblige many business leaders to take a holiday – after they’ve got their heads around it.

The decision in Harpur Trust v Brazel means that businesses could be hit by claims for several times the holiday pay for casual workers than they might expect and, arguably, several times the holiday pay that would be fair.

Prior to the ruling, ACAS and many other authorities claimed in their guidance that holiday pay calculations could be simplified by using the “percentage method” – multiplying an employee’s earnings by 12.07%.

But the UK’s “Working Time Regulations” (WTR) states that a worker’s holiday leave entitlement continues to accrue for the duration of the contract, regardless of whether work is actually performed.

In its application of the Regulations, the ruling puts a spotlight on what many believe is an error in parliamentary drafting. Crucially, for businesses, it means that the percentage method is unreliable for calculating the entitlement of casual workers who are engaged for only part of the year, because it could award them substantially less pay than they are entitled to.

“The UK has taken a different approach to other EU member states in terms of how you calculate holiday pay. It doesn’t seem like the consequences of that approach were intentional, and it went below the radar for several years until the Supreme Court in Harpur Trust v Brazel exposed it.” explains Acuity Law’s Adam McGlynn.

“The consequence of miscalculated holiday pay is that employers won’t pay enough and employees could bring claims for the outstanding amount.”

Parliament has begun a consultation process on the law, however, it is expected to take some time before change is affected.

But, says McGlynn: “The more publicity the ruling garners, the more jeopardy there is for businesses in the meantime.”

That’s why Acuity Law is offering a free webinar on the highly misunderstood topic of holiday pay and annual leave calculations. The session, held at 11am on Thursday 13th April, helps employers:

  • Understand the basics of holiday entitlement
  • Avoid the exacerbated liability following the Harpur Trust v Brazel ruling
  • Implement simple fixes to avoid these liabilities
  • Take swift remedial action if they discover they have fallen foul of the rules.

Host Adam McGlynn was joined by Nadra Ahmed CBE, Chairman of the National Care Association.

Watch our free webinar here.

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For any queries, please contact a member of the Employment team.

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