Murrell Associates continue to invest in their growing team with two new paralegals

Henry Maples, Emma Robinson and Jessica Bishop

Murrell Associates are continuing to grow and invest in their team with two new paralegals, Jessica Bishop and Emma Robinson, both of whom have recently been awarded training contracts with the firm. Emma and Jessica will complete their training contracts in September 2020.

Both Emma and Jessica grew up in Cornwall and have returned to their Cornish roots after completing their degrees in London. Jessica completed her law degree at BPP University and went on to work for a London law firm before returning to Cornwall. She has begun her training contract working in the commercial and intellectual property team with Rebecca Anforth, who heads up this department at Murrell Associates. Jessica says “I’m really excited to be given the opportunity to complete my training contract with Murrell Associates. They are a specialist business and commercial law firm, the only one in Cornwall, so the experience I will gain will really help me to develop detailed knowledge in this area of law.”

Emma studied law at King’s College, London. She joined Murrell Associates as a paralegal in the summer of 2018 after completing an internship with the firm. Her first seat within her training contract is assisting the corporate team. Emma says “Working at Murrell Associates has been a fantastic learning experience since day one and I am very grateful to the firm for supporting my further training and development. I look forward to the day when I can say that I am a fully qualified solicitor!”

Henry Maples, Partner at Murrell Associates added “We are delighted to be able to offer this opportunity to Emma and Jessica and look forward to seeing them develop their knowledge and complete their journey to becoming qualified solicitors with Murrell Associates. We are a specialist team and work closely with our clients and their businesses, so recruiting and training the right people for this is obviously crucial for us. I wish Emma and Jessica every success.”

Employer Guides: Should I give a reference?

References are often an area of confusion and concern for employers. Many decline to provide a reference for fear of the potential legal consequences of responding honestly. This has the negative side-effect of reducing the worth of a valuable recruitment tool.

So what are the risks involved in providing a reference, and what can you do to minimise these risks, if you would like to provide a reference for an employee.

Do I have to give a reference?
Generally (subject to certain exceptions in the financial services sector and education) there is no obligation to provide a reference. However, if employers do decide to respond to a request, there are three main things to be mindful of:

  1. Civil claims of negligent misstatement, defamation or malicious falsehood from either the employee or prospective employer;
  2. Discrimination claims; and
  3. Data protection (GDPR).

What are the risks?
The general rule is that if a reference is provided it must be fair, accurate and truthful and not give a misleading impression.
The main risk is a claim of negligent misstatement from either the employee, prospective employer or both for damages. In practice such claims are rare and unlikely to result where a positive (and accurate) reference is given. The chances of a reference resulting in a claim are significantly increased where an unfavourable reference is provided, especially where a substantial loss can be shown to have arisen as a result (i.e. because a conditional offer of employment has been withdrawn). Although of course if the reference complies with the aforementioned general rule, the employer will have a defence to the claim.

There is also potential for an employment tribunal discrimination claim if the reference, or even the failure to provide the reference, is due to a protected characteristic (such as age, race, sex, disability, sexual orientation, religion or belief). Adopting a consistent approach to the provision of references is therefore important and you need to be mindful that the content of the reference cannot be seen as discriminatory.

Data protection wise, the provision of a reference will usually be a form of data processing. You should therefore ensure that you have complied with GDPR principles and, if disclosing health-related information about a sickness record or reasons for absence, that the employee consents to the provision of confidential personal information being held on them to the person or entity requesting it.

Do I have to provide a copy of the reference to the employee if this is requested?
Simply put, no. The GDPR and Data Protection Act 2018 permits both the reference provider and the recipient to decline to provide a copy of a reference if it is requested by the subject. This is a change to the previous position under the Data Protection Act 1998.

However, this does not extend to disclosure in legal proceedings. Therefore, if the matter escalates to the court or tribunal stage, you will be required to disclose the document as part of the proceedings.

4 Top Tips – to help avoid any problems, we would recommend:

  1. that employers have a policy to help them handle reference requests, detailing what information they and their employees can provide. This should help ensure compliance with data protection law and reduce the risk of a discrimination claim;
  2. the simple fact is that there is a correlation between the amount of information provided and the risk of liability. When in doubt, adopt a short, factual and consistent approach;
  3. if negative information is included in a reference, it should have been raised with the employee first and clearly documented; and
  4. the use of a clear disclaimer can eliminate the chance of a successful claim by the recipient of a reference.

If you have received a request for a reference, been threatened with legal action concerning a reference you have provided, require assistance with a reference policy or would like to discuss any aspect of employment law generally, please contact Melanie Rowe on 01872 227006 or by email at melanie.rowe@murrellassociates.co.uk.

Employment Settlement Agreements: A brief guide

What’s the appeal, why are they useful and what are the risks?

What is a Settlement Agreement?
A Settlement Agreement (previously known as a Compromise Agreement) is a legally binding contract made between an employer and an employee. They are commonly used by employers on termination of employment as an effective way of ensuring that they are not sued by the employee and have to bear the associated expense, bad publicity and management time associated with a court or tribunal claim.

How do they work?
In essence the employee receives a sum of money in return for signing away their legal rights to sue their employer (commonly known as “paying off” the employee). In addition the employee is usually required to keep the settlement confidential and not to make any derogatory comments about their employer, its directors, agents or employees. Although such confidentiality clauses are extremely common, they have received a lot of press attention lately in the light of the #metoo scandal where they have become commonly referred to as Non-Disclosure Agreements or NDAs.
In order for the Settlement Agreement to be legally binding, it must meet certain statutory requirements and the employee must receive their own legal advice in relation to its terms and effect. It is standard practice for the employer to pay a contribution towards the cost of the employee obtaining this advice.

When are settlement agreements used?
Settlement Agreements are commonly used where an employer wishes to terminate employment in circumstances that could give rise to a claim (e.g. for a long-serving employee who is performing poorly, but has not undergone any formal performance management process, or where an employee is on long-term sick leave and it is not clear when, and in what capacity, they will be able to return to work). Another common example of their use is where an employer is proposing to make an enhanced redundancy payment and wants the certainty of knowing that in doing so, they are not going to get stung for a further payment down the line.

Why not ask the employee to sign a simple waiver and save some money?
Whilst a waiver may have some deterrent effect to an employee ignorant of the law, it will only take one call to an employment advisor, or even a simple Google search, for them to realise that such a waiver as no legal effect whatsoever. This is an extremely risky strategy and not advisable where an employer is handing over an enhanced termination payment.

How much do I offer?
This is completely up to you. Factors which often influence how much employers offer include the following:

  • The amount that would have to be paid to the employee in any event on fair termination of their employment (such as wages, notice pay, redundancy pay and holiday pay);
  • The strength and value of any potential claim they might have in a court or tribunal;
  • Personal knowledge of the employees character – what you think they will accept and the likelihood that they will pursue a claim; and
  • How much you are prepared to pay rather than take your chances defending a court or tribunal claim.
    There are also non-financial incentives that could be offered such as an agreed reference, payment in lieu of working notice, writing off training costs and outplacement support.
    If you require assistance, we are on hand to advise you in relation to an appropriate settlement amount taking into account the circumstances in which the Settlement Agreement is offered.

How is the payment taxed?
Taxation of termination payments has recently become more complex.

In summary:

  • Any contractual payments such as holiday pay, notice pay, wages and bonus payments should be subject to tax and NICs in the usual way.
  • If the employee has worked their full contractual notice period, it is likely that any redundancy payment or remaining goodwill termination payment may be paid free of tax up to £30,000.
  • If the employee has not worked their full notice period, the remainder of the termination award must be split into what is known as “post-employment notice pay” (PENP), which is subject to tax and NICs, and the remainder, the balance of which may be paid tax-free up to £30,000.
    HMRC has set out detailed guidance on the calculation of PENP in accordance with a defined formula. It is extremely important that this is followed sought and termination payments are subject to the correct tax treatment. Failure to do so can amount to a criminal offence therefore advice should be sought where there is any concern.

How do I go about proposing a settlement?
You can make your proposal verbally or in writing (a combination of both is usually best so that you can ensure that the employee understands what is happening and there is no confusion about the process) at any time. We can advise you through this process and assist with the drafting of appropriate correspondence to send to the employee.

What happens if the offer is not accepted? Can the offer be used against the company in court or at a tribunal?
If the offer is not accepted, employment continues until terminated by either party in circumstances that may, or may not, give rise to a claim.
The law does afford some protection to employers in allowing certain settlement negotiations to take place without the fear of the offer being wafted before a judge in any subsequent legal proceedings. It is good practice for all settlement discussions and correspondence to be clearly expressed as “without prejudice” to any claim. This means that if negotiations break down, it should in effect be as though the discussions never happened. However, this will not be sufficient in all circumstances, in particular where there is no existing dispute between you and your employee.
Where there is no dispute, section 111A of the Employment Rights Act 1996 provides additional protection for employers by permitting what is known as a “protected conversation” to take place with an employee in relation to the termination of their employment that cannot be referred to in an employment tribunal. However, it is not possible to have protected conversations in respect of all kinds of claims. For example, discrimination, harassment and whistleblowing claims are not covered by section 111A. It may well be that the “without prejudice” rule could apply in the circumstances or there may be some risk if you decide to go ahead with negotiations. You should always seek advice where you are concerned.

Can I rely on a standard-form Settlement Agreement document? Reliance on standard documents is risky.
Any Settlement Agreement should be customised to the particular employee. It is becoming increasingly important to ensure that the drafting of the settlement agreement fits with the particular circumstances of termination.
In the light of the #metoo movement, the use confidentiality clauses should be carefully considered in respect of certain kinds of claims.
Further, it is extremely important that the law in relation to the tax treatment of PENP is complied with and the correct taxation rules are applied to the termination payment.

Get in touch
If you would like more information on exit negotiations, settlement agreements or employment law generally, please contact Melanie Rowe on 01872 227006 or by email

“Being taken to an Employment Tribunal”: A Brief Guide for Employers

What happens and tips for a successful outcome

Being taken to an employment tribunal is something most employers dread. Whilst not something you would ever wish for, with some basic knowledge of the various steps and solid legal advice, the process needn’t be as daunting as you might imagine.

Most employers usually sense when trouble is brewing. Perhaps an employee has been dismissed who is adamant that they’ve done nothing wrong, or an employee has resigned suddenly who has had a history of being problematic. Even if you have absolutely no idea, when you get the call from the Advisory, Conciliation and Arbitration Service (Acas), it’s time to take stock, get some legal advice and put a plan together.

Acas is a Crown non-departmental public body of the Government of the United Kingdom. Its purpose is to improve organisations and working life through the promotion and facilitation of strong industrial relations practice.

There is currently no cost to employees seeking redress through this process, and the number of claims being submitted is increasing.

So, in a nutshell, what exactly does “being taken to an employment tribunal” actually involve? Melanie Rowe, Employment Law specialist at Murrell Associates, explains the 10 key stages in an Employment Tribunal.

The 10 stages in summary are:

 

  1. Acas settlement discussion (Call from Acas to see whether you wish to settle or fight the claim)
  2. Employee claim form received (Detailing their claim to you)
  3. Complete Employer response form (Explaining what you intend to do)
  4. Case Management Order / Preliminary hearing scheduled (A CMO gives details of what you must prepare for the hearing)
  5. Employee serves schedule of loss (Employee lays out the amount of compensation they are seeking)
  6. Gather Evidence, disclose documents & agree bundle (Listed and indexed evidence are submitted by both)
  7. Prepare and exchange witness statements (Signed documents recording evidence)
  8. Statement of issues and other documents (Relevant questions or other documents to assist the tribunal)
  9. Hearing and judgement (Case heard and considered by judge or tribunal panel)
  10. Costs, applications and appeals (If applicable costs decided and appeals lodged)

 

Stage 1: Acas Early Conciliation (Settlement Discussion)

The disgruntled employee gets in touch with Acas to lodge their complaint. In most instances they must do this within three months of the alleged wrongful act (that is the subject of their complaint) occurring and they cannot lodge an employment tribunal claim without first going through this process.

An Acas conciliator will be appointed to the case. Their job is to ascertain if there’s any scope to resolve the dispute without the cost and stress of an employment tribunal (the tribunal).

You, as their employer, will receive a call from Acas asking if you are interested in exploring early settlement. There is no obligation on you to do so but, if you decide to engage with the process, the conciliator will then go back and forth between the parties to try to reach a deal. If an agreement can be reached, the conciliator will help to draw up a legally binding agreement. If you are not interested in settlement, or a deal cannot be reached, then you move to stage 2.

#Tip 1 – Find out what the employee is looking for.
Often, employers find it beneficial to seek legal advice at this stage; to have the strengths and weakness of their position assessed, to obtain advice on the best and worst case scenarios, and to consider the tactics and commercial reality of the situation as a whole. Frequently the knee-jerk response is to resist the claim regardless of the cost. However, sometimes it may not be financially worth fighting. Getting the full picture can help you make an informed decision and save you money in the long term.

 

Stage 2: Employee claim form received (known as an ET1)

The ET1 Claim Form is completed by the employee (the claimant) and filed with the tribunal. The tribunal will send you a copy. The tribunal will refer to you as the respondent.
 

Stage 3: Complete an Employer Response form (known as an ET3)

If you intend to resist the claim, the ET3 must be completed and filed with the tribunal within 28 days of receipt providing full details of your position. Missing this deadline may mean that you are not allowed to defend the case.

#Tip 2 – Appoint a solicitor sooner rather than later
If you are considering appointing a solicitor the sooner you do so the better. This will ensure that there is time to submit a full, consistent and robust defence. It is not always possible to add in new legal points later that are not included in this document. A lawyer will also be able to advise you on whether there are grounds to apply for strike out of the claim or for an Order requiring the claimant to pay a deposit to the tribunal to continue with it.

 

Stage 4: Case Management Order issued and/or Preliminary Hearing scheduled

If the claim is relatively straightforward (for example an unpaid wages or unfair dismissal claim) the tribunal may automatically schedule a hearing and issue a standard Case Management Order giving directions with which both sides must comply to prepare the case for that hearing.

Alternatively, the case may be listed for a preliminary hearing. The purpose of the preliminary hearing is to deal with any initial legal points and to consult with the parties in relation to the steps and timeframes required in order to prepare the case for the final hearing. It may take place in person or over the phone. More complex claims, such as those involving an aspect of discrimination, are usually listed for a preliminary hearing as a matter of course. This is because more bespoke directions are often required (for example to consider the number of witnesses and/or length of the hearing) and there may be legal points requiring further thought or clarification. Following the preliminary hearing, the judge will then issue a tailored Case Management Order.

#Tip 3 – It’s never too late to get some legal support if you are representing yourself
If you are concerned about representing yourself at a preliminary hearing, consider seeking legal advice to explain the process, assist with your preparation and/or represent you at that hearing. You can obtain advice purely in relation to a single issue if you are concerned about spiralling legal costs.

 

Stage 5: The employee will serve a schedule of loss

The point of this document is to set out exactly what remedy the claimant employee is seeking and how this is calculated. You should then know exactly what you are facing and can obtain legal advice as to the likelihood of each of the aspects of the claim being awarded.

 

Stage 6: Gather Evidence, disclose documents and agree bundle

You will need to gather all documents relevant to the claim (whether these assist your case) and compile these into a logical list. This will then need to be sent to the claimant by the date set by the tribunal. Likewise the claimant will send you their list. You may request copies of any of the documents listed. If the claimant is represented, it will normally be their job to combine both sets of documents into an indexed bundle and prepare sufficient copies for use at the hearing. If the claimant is not represented, the tribunal will usually direct that you perform this task. A page limit will normally be set.

 

Stage 7: Prepare and exchange witness statements

Every individual who you wish to give evidence in the case should prepare a statement signed with a statement of truth. Witness statements should be clearly set out with numbered paragraphs. These should be mutually exchanged ahead of the hearing on a date set by the tribunal. Every individual who provides a statement should attend the hearing to be cross examined by the claimant employee or their representative. If they do not attend, their statement will be given very little (if any) consideration by the tribunal.

 

Stage 8: Statement of Issues and other documents

If you are represented, your lawyer is likely to prepare a statement of relevant questions or other documents that will assist the tribunal in making their judgment.

 

Stage 9: Hearing and judgment

The parties attend for a judge or tribunal panel to consider the case and give judgment. However, for various reasons it is not unusual for hearings to be postponed at the eleventh hour and you should be prepared for this. The hearing is much less formal that court proceedings without wigs, gowns or the need to stand up. It is common for witness statements to be “taken as read” which means that witnesses only have to confirm their statement to be true and accurate. They do not give further evidence unless specifically asked. They are then cross-examined by the other party or their representative. The hearing is then adjourned for the judge or panel to contemplate and then reconvened when the judgment is ready. If the evidence is concluded at the end of the allocated time slot without judgment having been given, this may be reserved and given in writing. If the claimant is successful, the hearing will commence again to deal with the issue of how much compensation should be awarded.

#Tip 4 – Don’t forget Acas is there to help you too
Throughout the process Acas remains available to assist with settlement if, as evidence is exchanged and the hearing draws closer, either side reconsiders their stance in this regard.

 

Stage 10: Costs applications and appeals

It is unusual for costs orders to be made in employment tribunal proceedings. However, in certain (limited) circumstances it may be appropriate for a party to make an application for some or all of their costs to be paid by the other side.

A Notice of Appeal must be lodged within 42 days of the date of the order, decision or judgment appealed against.

An employment tribunal decision can only be appealed on a point of law. You cannot appeal simply because you are unhappy with the outcome.

If you would like more information on an employment tribunal claim or employment law generally, please contact Melanie Rowe on 01872 227006 or by email at melanie.rowe@murrellassociates.co.uk

Brexit and beyond: 3 key employment issues that could impact your business in 2019

We knew from the beginning of the year that 2019 was going to be dominated, in one way or another, by the single biggest change in politics we’ve seen in a generation: Brexit. Yet, while many of us look on from afar wondering what twist in the tale is coming next, it can be easy to forget many of us still have businesses to run and, from an employer’s point of view, staff to look after.

And, with Brexit dominating the headlines month after month, you might have missed the Government announcing their plans for 2019 regarding employment law.

Here are three of the changes potentially on the horizon for 2019 and beyond:

1. Changes to workers’ rights to reflect changes to modern working relationships (The Gig Economy)

Proposed changes to workers’ rights were announced at the end of 2018 as part of the Government’s: “Good Work Plan.” It has been announced that some of these changes will come into effect in April 2020, whist others do not yet have a timescale. The changes are designed to tackle issues recently seen in the courts and widely reported in the press by improving protection for agency workers, zero-hours workers and others with atypical working arrangements.

While there is to be no outright ban on zero-hour contracts, outlined changes include:

  • Requiring employers to provide a written statement of terms and conditions to workers, detailing their paid leave entitlements, from day one;
  • Increasing the break period required to severe continuity of employment from one week to four weeks;
  • Making the test for employment status under employment law the same or as similar as possible to tax law in an attempt to reduce the number of workers being falsely labelled self-employed;
  • Abolishing the rule that allows employers to pay agency workers less than their own workers if they are employed through an agency;
  • Introducing a right to request a fixed working pattern after 26 weeks’ working on a non-fixed working pattern;
  • Preventing employers making deductions from staff tips.

The Government is also  improving workers’ ability to enforce their rights by bringing forward proposals for a single enforcement body and increasing the penalty for employers who have shown malice, spite or gross oversight in breaching employment rights from £5,000 to £20,000. This came into effect on 6 April this year.

2. The #MeToo effect: Changes to sexual harassment law and confidentiality clauses (or non-disclosure agreements as they have become commonly known in the press)?

The Government also announced it plans to introduce a code of practice for employers so that they can better understand their legal responsibilities to protect staff from sexual harassment. It is anticipated that employers who have demonstrably sought to follow this code will benefit from an inference that they have taken reasonable steps to prevent sexual harassment taking place. The Government will also consult on the use of NDAs and how to strengthen harassment law generally.

3. The reintroduction of employment tribunal fees?

Less than 18 months after they were ruled to be unlawful by the supreme court, the Ministry of Justice has confirmed it is looking at the reintroduction of fees under a new regime. However, no detail has been released yet and such a scheme would require a lot of detailed consideration if it is to escape the access to justice scrutiny that led to the downfall of the last attempted scheme. However, Richard Heaton, permanent secretary at the MOJ, has told the House of Commons that he is confident a scheme can be implemented that would be: “proportionate, progressive and within its powers,” so we will have to wait and see what is to come.

In addition to the headlines above, we should also mention that with effect from 6 April 2019 all workers now have the right to receive an itemised pay statement and, where the worker is paid hourly, the pay statement must state the number of hours worked.

Of course we can’t ignore everyone’s favourite topic – Brexit. However, whether we leave with a deal, or no deal, there is unlikely to be any immediate changes to employment law as a result.

The “Workplace rights if there’s no Brexit deal” notice advises that any changes to employment legislation in the event of a no-deal Brexit, will be solely linguistic and that this will not change substantive employment rights.

If you wish to discuss any of the issues raised in this article or would like assistance with any aspect of employment law please contact Melanie Rowe, Senior Associate and employment law specialist, on 01872 227066 or melanie.rowe@murrellassociates.co.uk.

Murrell Associates Breakfast Seminar

Date: Wednesday 6th March
Times: Breakfast from 8.15am, seminar from 8.45am, close at 10am
Location: Epiphany House, Truro, TR1 3DR
Parking: Free parking is available at the venue
Booking email: becky.olds@murrellassociates.co.uk

A complimentary seminar from specialists at Murrell Associates covering some key aspects of employment law, intellectual property law and share incentives for employees.

Melanie Rowe, employment law specialist at Murrell Associates, will speak about business restructuring including varying contracts of employment, redundancies and offer some practical guidance on commonly encountered concerns with the implications of TUPE. Rebecca Anforth, who specialises in intellectual property law will take a session on protecting intellectual property rights, whilst Henry Maples, Partner at Murrell Associates and corporate law specialist, will discuss the benefits of incentivising employees with share options.

Murrell Associates is a specialist team of corporate/commercial lawyers, with experience in large London and West Country legal practices, providing commercial legal services to UK and international businesses from our offices in Truro.

To book your place, please email becky.olds@murrellassociates.co.uk
RSVP by Monday 4th March.

Hubbox expands Exeter presence

Murrell Associates have advised Cornish burger chain Hubbox in its acquisition of a new larger restaurant premises in Exeter.

Born out of Hub, situated on the harbour side of St Ives, Hubbox originally launched serving burgers from a shipping container in Truro in 2012, before moving into Exeter a year later. Last October saw its latest restaurant open in Taunton and now it starts 2019 with this redevelopment.

Its original Exeter site was a modest 36-cover restaurant. The new place will be an all-day eating and drinking venue, set across two floors and serving up to 170 covers at one time.
CEO Richard Boon said: “To say we’re excited about our move is an understatement.
“It’s our belief that if you offer a quality product, fairly priced, in cool surroundings, people will seek you out. We all know that towns are having to work harder to attract and retain shoppers. We want to be part of the solution, but for us, it’s not all about stretching our budgets to place ourselves in highly priced, High Street locations. Catherine Street is the perfect new move and we’re committed to our future there.”

Tamsin Mann, Commercial Property Solicitor at Truro based Murrell Associates advised Hubbox on the purchase of the Catherine Street site. She said: “It was a real pleasure to work with Richard and his team again, and to advise on what was a complex leasehold purchase which involved several parties. The location is a great fit for Hubbox and I wish Richard and the team every success as they expand their offer of good quality food in a cool and relaxed setting.”

The importance of getting the contract wording right

The devil really is in the details and, when you don’t get the basics right, all manner of issues can arise from it. Take the case of Persimmon Homes Ltd v Hillier [2018] EWHC 221 (Ch) as an example.

A housebuilder agreed in principle to sell a developer a development site made up of six plots of land in Felbridge, Sussex. Options over four of the six plots were owned by subsidiaries of one company (Holdings) and freehold title to the other two plots were held in a separate company (Investments) also owned by the seller.

The legal documentation provided for the acquisition of the share capital of Holdings (and with it ownership of rights over four of the plots) but did not include the shares in the capital of Investments nor the final two plots owned by it. The drafting used, in particular in the definition of Properties was unclear as to whether it related to four or six plots. Unfortunately one of the two ‘missing’ plots was the access land for the four plots that had been correctly acquired and had, as a result, become an effective ransom strip.

When the buyer subsequently realised the error it applied to the courts to either ‘interpret’ or ‘rectify’ the acquisition documents to reflect the fact that all six plots should have been included. Based on the evidence available to it, including the conduct of the parties in the course of negotiations, the High Court ruled that the seller had intended to sell all six plots and agreed to use the remedy of ‘rectification’ to amend the terms of the legal documentation which in turn allowed the buyer to sue the seller for damages equal to the loss in value associated with only having ownership rights over four of the six plots.

This case is a good example of the issues that can arise if you don’t get the basics right. If (contrary to the Court’s interpretation) the seller had changed its mind in the course of negotiations, and had intended to exclude the two plots owned by Investments from the acquisition, it would need to have been much clearer in the language used in the legal documents.