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No one gets married thinking they will ever get divorced. It’s a difficult time in anyone’s life and involves complex personal and practical issues. If you have reached the unfortunate conclusion that your marriage has come to an end, here are my top 4 tips to consider before you take steps towards divorce:
In 2012 the United Kingdom Supreme Court confirmed that employer’s insurance liability is triggered when an employee is exposed to asbestos, not when mesothelioma manifests itself. The case BAI (Run off) and Ors v Durham and Ors [2012] known as the employer’s liability ‘trigger’ case was yet another test case in an area of law which has fostered much protracted legal wrangling over many years. The long-awaited outcome of this decision has delayed the resolution of thousands of claims.
The number of parental child abductions is rising fast with the rate nearly doubling in the last decade. Recent figures released by the government have shown an increase of just under 88 per cent in the Foreign Office (FCO) data on parental child abductions since 2003. This is believed to underestimate the actual number however, as many cases go unreported.
It is thought that the rise reflects a lack of understanding of the law by members of the public rather than a deliberate attempt by estranged parents to flout it. The Foreign Office is launching a campaign to combat the issue.
At Rollingsons our family lawyers have dealt with many cases of divorce. As well as offering legal advice, we try to ensure that our service is sensitive to the emotional upheaval faced by our clients and their families.
Christmas time can be particularly difficult following divorce as individuals deal with the festive period on their own for the first time or children spend the holiday without the presence of both parents together. As the winter holiday season reaches its crescendo, feelings of isolation can be overwhelming for those faced with absences left by divorce.
To try and help keep this Christmas season bright, our family team has put together some tips based on their experiences of helping clients overcome the negative emotions associated with divorce.
The implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in April will have a profound effect on access to justice. The Act which was passed in May 2012 and implemented on 3 December 2012 will bring an end to referral fees and contains cost reforms that will change the way many civil claims are funded.
Potential claimants should be aware of the changes, particularly if they may be eligible for Legal Aid or are considering the use of a Conditional Fee Agreement (CFA) to fund a claim.
The Court of Appeal made an important judgement on 23 October in relation to the case of Hussain v Hussain and Another [2012]. The importance of the case rested on the weight given to the defendant’s previously fraudulent behaviour where there was suspicion that he had deliberately ‘staged’ a road traffic accident and the ‘very powerful inferences’ that this implied on the claimant.
In November 2012 Nick Clegg, the Deputy Prime Minister, announced plans to reform parental leave. The plans will mean that both parents could get to share up to one year of leave after their child is born.
The legislation is expected to be introduced to Parliament next year to take effect some time in 2015. This is great news for fathers who want to spend time with their new born baby but for smaller businesses it could represent difficulties.
Employers often include restrictive covenants in employment contacts to protect confidential information that relates to their business. The case of FW Farnsworth and another v Lacey and others [2012] concerned the operation of restrictive covenants in an employment contract that had not been signed by the employee.
In FW Farnsworth v Lacey the court had to decide whether or not the restrictive covenants were in fact enforceable by virtue of the employee’s actions in the absence of a signed contract.
There have been many types of normally private interaction that have been cited as unreasonable behaviour for the purposes of divorce. It is perhaps not surprising then that elements of the biggest phenomenon in recent pop culture have made their way into the divorce courts with the ‘Fifty Shades of Grey Divorce’.
Although there are plenty of people who might not have read the book itself, it will have been hard to have avoided entirely the nature of its contents – sadomasochistic eroticism. So, what exactly has constituted unreasonable behaviour in the ‘Fifty Shades of Grey Divorce’?
Recent tabloid headlines and divorce court history are littered with staggering payouts being handed to wives who have divorced their wealthy husbands. However, the ‘rules’ in these cases are far from clear and the attitude of the courts do appear to be shifting. The Law Commission is also in the process of carrying out a consultation on the matter of divorce settlements but a report will not be published until 2013.
Highlighting the evolution of judicial attitudes in this area are the recent comments by Lord Justice Thorpe in the Court of Appeal who suggested that big payouts in big money divorces unrelated to pure needs should be consigned to history.
The use of social media by employees can bring both tremendous benefits and great difficulties to businesses. In the early days of social media, companies’ greatest concerns were focused on the loss of valuable work time to social networks during office hours. This focus has rapidly shifted as businesses have become more Internet savvy and have sought to use the power of social networks to generate new business.
Social media including LinkedIn, Facebook and Twitter is now being used for sales, marketing, advertising, PR and recruitment as well as peoples’ social lives. Ensuring that company’s employment contracts and HR practices keep up is important to protect both employers and employees from falling foul of expectations.
Social media is playing an increasingly important role in business relationships. Although social networks like Facebook and Twitter were treated with initial trepidation by employers wary of losing precious work time to the ether of the Internet, many businesses now embrace them as powerful marketing tools. Meanwhile, networking through LinkedIn has become a virtual must in industries such as recruitment.
There are many facets of social media that bring both benefits and pitfalls to the business environment. Business development practices are not excepted from this double-edged sword. Enabling employees to foster relationships with customers online as well as offline can make it very difficult to restrict those relationships if employees decide to move on to a competitor. Can non-solicitation causes keep up?
All companies have information about their business that they would like to prevent from falling into the hands of competitors. That information may include client contact details, internal systems and processes, strategic plans for the future or trade secrets.
There is no real way to guarantee that confidential information will never end up in the wrong hands. Even where breaching confidentiality might be illegal, information can still be leaked – think of the Swiss bank account details that have been leaked to tax authorities in various European countries. However, employers can use restrictive covenants in employment contracts to reduce the risks. If you are an employer this is certainly something you should consider.
Sadly the number of cycling deaths on the roads of London reached double figures in August. The latest death took place during the Olympics at the height of Olympic cycle fever.
Britain’s recent sporting success in track and road racing have been inspirational for all types of cyclists but there are fears that the safety of cyclists is not being adequately prioritised in the nation’s capital. The death toll has so far reached ten in London in 2012 and campaigners are determined to limit further tragedies from happening.
There is increasing recognition of the benefits that cycling can bring for health, enjoyment and convenience. With today’s high levels of congestion, rocketing fuel prices and greater awareness of health issues many people are getting on their bikes for work and leisure.
However, cyclists are particularly vulnerable as a class of road users and are frequently injured in road traffic accidents. Injuries can range from minor cuts and bruises to multiple injuries and serious head trauma.
At Rollingsons our personal injury solicitors are used to dealing with many forms of harm caused to people involved in road accidents. Each case reveals different forms of pain, suffering and loss and our aim is always to help clients reduce the negative effects of victims’ experience as much as possible.
Although many of our clients are involved in accidents through no fault of their own there is always scope for trying to improve measures to prevent injury in the first place. This is particularly relevant to cyclists who are among the most vulnerable groups of road users.
When it comes to cycling there seems to be much confusion about what is legal and what is illegal. Whether it relates to the use of helmets, pedalling back from the pub or ignoring traffic lights; different riders appear to behave in different ways.
Generally the rules of the road are aimed at creating an environment that is as safe as possible for different types of road users while enabling the easy and efficient passage of those users to their destination. While drivers of cars, motorcycles and HGVs are required to pass a test before venturing out onto Britain’s highways, there is no such test for cyclists.
Our personal injury solicitors have helped many people deal with the after-effects of cycling accidents. Although we are always happy to help those involved, we would much prefer to see fewer accidents occur in the first place and the terrible consequences reduced.
A fundamental element of civil litigation is the disclosure and inspection of documents. This is managed under Part 31 of the Civil Procedure Rules (CPR). The rules set out what constitutes a document for the purposes of the rules, the types of documents that must be disclosed and the parameters of the disclosure process.
Injurious falsehood is also known as malicious falsehood which aptly describes what this area of law attempts to redress. An injurious falsehood is a false statement that causes intentional damage to a person's commercial or economic interests.
Injurious falsehood shares similarities with defamation but represents a different form of action to defamation. In certain circumstances claimants may find that both legal routes are open to them so it helps to understand how they differ and what the practical implications are from the perspective of both parties.
If you use a website for your business then you must ensure that it complies with the relevant regulations. There is legislation covering most aspects of online business such as the information a company must provide about itself, rules on distance selling and regulations concerning the storage of customer information. Some of the rules for conducting business over the Internet will depend upon the type of business you are in but others have universal application.
Since May 2012 every website must comply with the rules governing the use of cookies.
Intellectual property is in constant use by businesses. Every time an employee uses an office computer, there are licences that operate to determine the terms of that usage. When employees produce drawings or work on presentations, copyright laws operate to protect that work from being used unlawfully by others.
Most business owners are aware of the existence of the basic intellectual property rights such as copyright, patents and trade mark. There is also wide recognition of problems such as piracy. However an issue that often exists, particularly in small businesses, is a lack of knowledge which prevents them from exploiting intellectual property to its fullest extent.
If one party intentionally induces or procures another to breach a contract and damage is caused then that can form the basis of a legal claim. If the action of the inducing party cannot be justified, they may be liable for a claim under the tort of inducing or procuring a breach of contract.
A default judgment is a binding judgement made for or against a party when one party to a dispute has failed to take some form of action. The most common type of default judgment occurs when the claimant issues a claim form and serves this on the defendant. If the defendant fails to respond to the particulars of claim within 14 days then the claimant may enter a judgement in default.
Economic duress is a notoriously difficult allegation to bring against a defendant. Closely related to the tort of intimidation, it is necessary for a claimant to show that they were pressured into a contract through illegitimate means. If the relevant tests can be met, a contract is voidable.
The rapid evolution of information technology IT in the latter part of the 20th Century brought great opportunities and huge challenges in equal part. The most significant impact for individuals, businesses and society generally was felt with the arrival of the Internet and the way it transformed how information was communicated, stored and used.
The trial of Paul Chambers has drawn plenty of attention from politicians, the media and celebrity observers. Although much of the focus has been on the widely perceived absurdity of the case, it does raise some interesting questions about the law under which it was brought. Chambers was prosecuted under section 127(1) of the Communications Act 2003; legislation which predates the Twitter service launched in 2006.
Patents are a form of intellectual property that offer an inventor exclusive rights in their invention for a fixed period of time. Rights are granted by the state to the inventor enabling them to exclude others from making, using, selling, offering for sale or importing the patented invention during that period in exchange for the inventor publicly disclosing their invention.
A company must file its annual return and company accounts at Companies House on an annual basis. In addition, it must also file information relating to non-regular events as they occur; for example changes to the appointed officers of the company, changes to the registered office or change of company name.
On-line shopping continues to find favour among consumers despite high streets suffering through the recession. The ease of shopping from the comfort of a chair means that even die-hard shoppers increasingly treat themselves to online retail therapy. Consumers are spoilt for choice when it comes to the types of offerings available. High fashion is just clicks away from online supermarkets and second-hand e-Bay sellers.
International relocation of children is a complex area of family law which requires careful consideration before any decision is made. The primary legislation governing this issue is the Children Act 1989 and the most prominent precedent is Payne v Payne [2001].
A District Judge has ordered that the parties to a recent divorce case remain anonymous. Reporters were also banned from reporting the financial details of the case to avoid causing embarrassment to the husband and his family.
Many childless couples now look to international surrogacy as a means to become parents. In the UK the rise in the numbers of infertile or gay couples seeking surrogate mothers has not been matched by the numbers of women willing to act as surrogates. This, along with high medical costs, has led to a huge increase in international surrogacy.
PIP implants were banned in 2010 after they were found to contain industrial rather than medical grade silicone gel. The implants were also reputed to have an increased risk of rupturing and a possible link to a rare form of cancer, a link now firmly discounted by medical experts in Europe. The eruption of the scandal in the media caused a great deal of distress for many women.
Estoppel is a long-established doctrine of English law that literally means to stop. Generally estoppel prevents a person who causes another to rely upon acts or words from later denying those acts or words.
The ongoing financial crisis continues to claim thousands of victims who are unable to manage their debts. Individual insolvency, governed by the Insolvency Act 1986, has been particularly prevalent peaking in 2011 at over 135,000.
Estoppel is a long-established doctrine of English law that literally means to stop. It can be applied in a number of ways to litigation claims but it basically prevents a person who causes another to rely upon acts or words from later denying those acts or words.
Estoppel is a long-established doctrine of English law that literally means to stop. It has a wide range of uses but can broadly be described as a rule that prevents a person who causes another to rely upon acts or words from later denying those acts or words. The operation of the doctrine changes according to particular circumstances and there is a rich vein of case law underlying the distinct areas in which it applies.
Every employee has an employment contract with their employer whether it is written or not. Although there is considerable statutory protection for employees beyond the terms of their employment contract, the legal basis of the relationship remains contractual. Fundamentally therefore the common law principles of contract remain important to the agreement between the parties and any breach of that agreement.
According to the Companies Act 2006 there is a general duty on companies to maintain adequate accounting records. In broad terms this means that companies must submit accounts to the registrar for filing at Companies House on an annual basis.
There are various reasons why a company might be struck off the register such as liquidation or dissolution. Often a company will be struck off voluntarily when the company has ceased trading or the intention is to dissolve the company. However, there are also circumstances in which a company may be struck off by the Registrar of its own accord.
Pre-emption clauses place an obligation on sellers of shares to offer them to existing shareholders first. The clauses are often found in the articles of association of private companies and have been the cause of significant numbers of shareholder disputes.
Preference Shares are a special type of stock that have features of both debt and equity securities. They are considered hybrid securities which generally rank above equities but are subordinate to debt instruments.
Every company is obliged to submit an annual return to the Registrar at Companies House each year made up to a date not later than the company’s return date. The annual return is a summary of the company which gives information about the company’s directors, the company secretary, the registered office, the shareholders and its share capital.
There are various administrative tasks that managers of companies must take responsibility for once a company has been incorporated. These generally relate to ensuring that the Registrar of Companies at Companies House is kept up to date with the information held about a company and that sufficient records are kept in relation to the company’s affairs.
It is essential for those starting a new company to understand the basic requirements and implications of setting up a company. Whether you choose to create your company on-line using a company formation agent or through the more traditional route of a lawyer or accountant, there are various issues that you should be aware of.
Under the Companies Act 2006 a company must submit accounts in each financial year. The accounting provisions relevant to individual companies vary depending upon a number of attributes including the size of the company, whether the company is a private or public and whether it is listed or unlisted.
Contracts for the supply of goods and services are subject to the general principles of contract law. Other legislative and common law provisions also apply but they are generally less stringent when a contract is made between two businesses rather than a business and a consumer.
When two businesses agree to enter into a commercial contract, they are generally free to choose and negotiate the terms of that contract between themselves. In doing so, businesses will often attempt to reduce their potential liabilities under the contract; if insurance is not available or is particularly expensive, for example.
A common misconception is that a contract is simply a written agreement between two parties. This is not the case; a contract may be made orally or even implied - lack of written terms can make a contract harder to enforce but do not necessarily deny its existence. There are also a number of factors that must be satisfied before an agreement is actually deemed a contract.
Ensuring sensitive commercial information is adequately protected is essential to businesses, particularly in the information age. Practical measures and pre-emptive contractual provisions may not always be enough so there is always potential recourse through the law of confidential information.
Arbitration is arguably the most important form of alternative dispute resolution and it has made its way into a wide variety of commercial spheres. Parties from all over the world have their contract disputes referred to arbitration in England and Wales in relation to intellectual property disputes, maritime disputes, competition and many other issues.
Alternative dispute resolution (ADR) has grown hugely in significance over the last decade as a means for parties to settle disputes without resorting to litigation. Popular forms of ADR include mediation, conciliation, expert determination and arbitration. Arbitration is perhaps the most important of these, reflected by the fact that it is the only one enshrined in statute.
Premier Waste Management Ltd v Towers [2011]
This case presents a timely reminder to directors regarding the extent of their duties to a company. In particular, directors need to be aware of just how far their fiduciary duties and their duties of loyalty extend when conflicts of interest arise.
This case concerns The Commercial Agent's (Council Directive) Regulations 1993 which were introduced to regulate the relationships between commercial agents and their principals.
Pure economic loss, ie. loss which is not consequential upon some direct physical damage or injury, is not generally considered recoverable in claims for compensation relating to negligence. The basis of such claims is the law of tort in which courts seek to restore parties to a position had negligence not occurred.
Most people understand fraud in the criminal sense whereby an individual makes an intentional deception for personal gain or to damage another person. However, fraud plays an equally important role in civil law, primarily where it is used to induce parties into contract. In this context it is generally dealt with by the Misrepresentation Act 1967 but its earliest legal definition arose at common law.
Ratification is a process whereby a principal approves the actions of an agent who has acted to bind that principal without preceding legal authority. The concept applies to a variety of circumstances such as international treaties and constitutional changes but its most pertinent day-to-day application relates to contract law.
Following on from Part I, in which we set out the definition of ratification and the conditions required for it to be applied, we now examine what actions are capable of being ratified, how ratification is applied and its legal effect.
Misrepresentation is generally understood to be a false statement of fact made by one party to another. It is most relevant in the context of contract law whereby one party attempts to induce another into a contract on the basis of words or conduct that amount to false statement. Where a claimant proves misrepresentation the remedies available may include rescission or damages.
After the basic principles were established for actions in misrepresentation, there were various elements that became refined through judicial interpretation. These requirements shaped the concept into its modern form and may be summarised as follows:
The litigation process can be exceedingly costly for both parties in a dispute. The civil procedure rules (CPR) which have applied to all civil cases in England and Wales since 1999 were designed to improve access to justice by making legal proceedings cheaper, quicker and easier to understand.
The Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE, protect employment contracts when a business, part of a business or service provider changes ownership. Two types of changes invite protection:
There are important distinctions between the roles of shareholders and directors even when an individual or a number of individuals occupy both roles. The separation between the two positions should be borne in mind when a company is established because ownership of a company and management of a company entail different rights and responsibilities. The interaction of the two roles plays an important part in the smooth functioning of a company.
The legal remedy of unfair prejudice seeks to protect the rights of minority shareholders from detrimental actions by majority shareholders. Provisions contained in s994 Companies Act 2006 enable aggrieved shareholders to bring an action against the company.
Contractual negotiations can provide parties with plenty of contentious material for subsequent litigation if relationships sour. One of two litigious approaches is usually taken when commercial relationships become strained: claims for breach of contract or claims for misrepresentation.
Misrepresentation is a false statement of fact made by one party to another, which can induce a party to enter into a contract. A negligent misrepresentation is a statement that is made carelessly or without reasonable grounds for believing it to be true.
Loss of opportunity is something that individuals and businesses encounter every day. Normally it is just part and parcel of the decision-making process but where it is the result of a breach of contract or fraudulent misrepresentation, loss of opportunity is capable of justifying legal action. It should be noted though that a claim for loss of opportunity based on misrepresentation presents significant challenges.
The ongoing economic malaise continues to see businesses succumb to the pressures of financial hardship each day. When companies are on a downward spiral it can be very difficult for managers to know what their best options are; inaction can mean that that decision-making is abruptly taken out of their hands.
Winding-Up Petitions can be a very effective method when pursuing companies for an outstanding debt. Generally a last resort, they are a drastic strategy for recovering money. Faced with being wound up, even the most unresponsive companies can react promptly. If a debt is due, the simplest response is for a company to pay. Often though, companies on the receiving end of a Winding-Up Petition will resort disputing the debt that forms the basis of the petition.
Guarantees are now more common than ever for individuals and business trying to finding credit or rent property. In the event primary debtors default, creditors are usually quick to claim against guarantors but guarantees will not always be considered binding when challenged in the courts. The idea that a guarantee might be set aside on the basis of fraud or misrepresentation may be clear enough. Where undue influence is at issue, more challenging questions can arise.
Arbitration has become a major form of dispute resolution in England and Wales since the introduction of the Arbitration Act in 1996. The 2011 High Court decision in Fulham Football Club (1987) Ltd v Richards and Another has reinforced the enthusiasm of the English courts for the arbitration process. The extent of that enthusiasm is something shareholders and other contracting parties should ensure they are fully aware of when they enter into agreements containing arbitration clauses.
The use of charges as security for the repayment of debt is a common feature of agreements between businesses and their lenders. The current economic environment will have seriously tested the strength of existing charges while ensuring that they are increasingly common.
The current credit environment has become increasingly challenging for individuals and businesses seeking to borrow money. It is more and more common for lenders to seek various forms of security such as guarantees or charges over property.
When selecting a domain name in the UK, it is primarily registered trademark rights that dictate whether or not the domain name is available for use in trade and commerce, regardless of whether the domain name is available for registration. Whether or not the use of the domain name infringes a UK trade mark trade mark is another matter.
Striking Off A Company -Tax Costs Increase
Since 1 March 2012 many companies will have lost out on a valuable tax concession. Until recently, small companies that were solvent but had ceased trading could distribute funds to shareholders in a tax efficient manner. Payments were made subject to capital gains tax at 28% rather than income tax at rates up to 50%.
Companies are legally required to have Articles of Association under the Companies Act 2006. For companies formed before 1 October 2009, the Articles along with a Memorandum of Association formed the constitution of a company. Since 1 October 2009, a Memorandum of Association is no longer part of the constitution (although it is still a requirement on incorporation).
Generally a company may divide its shares into a variety of different categories unless it is restricted from doing so by its Articles of Association. Most people are familiar with ordinary common shares that are issued by companies which give their owners a claim on the equity of that company. A less familiar category of shares is preference shares. Preference shares are a special type of stock that has the properties of both equity and debt instruments such as bonds.
According to the Budget report, “The Government is committed to creating a more sustainable tax system that is fair and supports growth. It will: reward work and support families; reduce tax rates to increase the competitiveness of the UK tax system; restrict tax reliefs and ensure everyone pays the tax they owe; and make the tax system simpler and more sustainable overall.”
The basic premise of any contract is that it is binding on the parties once they have entered into it. The parol evidence rule is a common law rule that aims to uphold this premise and preserve the integrity of written contracts by excluding extrinsic evidence. Where parties have agreed contractual terms in a written document, it is rational that matters which have not been explicitly included should not be interpreted as varying the terms of that contract. To understand the scope of this rule it is necessary to be aware of those matters that are excluded by it. It is worth noting that there are also exceptions to it.
Economic uncertainty or changes in circumstances will often lead businesses and individuals to reconsider their contractual arrangements. Without specific termination provisions, exiting a position or renegotiating an agreement may be very difficult if one party is intent on holding the other to the original terms.
The legal principle of unjust enrichment allows a claimant to seek redress for any unjust enrichment another party may have gained at the claimant's expense. Unjust enrichment can occur by chance, by mistake or unfairly but there is no requirement of wrongdoing. Where unjust enrichment has occurred the usual legal remedy is restitution. Restitution of unjust enrichment is a developing area of law which has generated much academic commentary due to its awkward fit in the English legal system.
Goodwill is a concept familiar to professionals and business people alike. When a trade mark is bought and sold the transfer normally includes the transfer of goodwill at the same time, so it is important for buyers and sellers to understand what this entails.
The extent of copyright protection offered to software companies is being tested in the case of SAS v WPL with a full judgement due from the ECJ later this year. It is well understood that English Law offers protection to the expression of ideas but not to the idea itself. The recent opinion of Advocate General Bot in SAS v WPL has considered this principle in relation to software development.
Five years after being paralysed and brain damaged in a car crash, 6 year-old Cerys Edwards has received a multi-million pound payout. The settlement, agreed just days before trial was due to commence, includes a £5 million lump sum and £450,000 annually for the rest of her life. It is one of the largest of its kind in English legal history.
Conditional fee agreements (CFAs) have been criticised once again in the Court of Appeal ruling of Simcoe v Jacuzzi. The court ruled that interest should run on an award of costs in favour of a successful claimant represented under a CFA from the date of the costs order (the incipitur rule) and not the date costs are assessed (the allocator rule). While this clarification may be gladly received by practitioners, Master of the Rolls, Lord Neuberger seized the opportunity to condemn the legal bill of £74,000 in a claim worth around £12,750.
In the age of the internet and the digitization of all forms of media from music to books, copyright is an increasingly complex topic. Despite this there is still a great deal to be gained from understanding the basics. Copyright gives the creator of an original piece of work exclusive rights for a limited period of time. However, owners are often unaware of what rights copyright ownership actually confers on them. Having created a piece of work that is able to be protected by copyright law, it is essential that owners are made aware of those rights and their ability to enforce them.
In November 2011 the European Court of Justice (ECJ) delivered a landmark ruling regarding potential obligations imposed on Internet Service Providers (ISP) to prevent copyright infringement. The court ruled that national courts could not impose obligations on ISPs to install, at their own cost, pre-emptive filtering systems that screen all user content in an attempt to identify copyright infringing material.
Employees in client-facing roles will often find that they are bound by restrictions on their freedom to contact former clients when they move on from their current employer. These restrictions usually take the form of non-solicitation clauses and non-dealing clauses. The provisions aim to prevent the poaching of former colleagues and clients. The recent case of Towrey EJ Limited V Barry Bennett has shed light on what “solicitation” actually means and how it applies in practice.
A recent High Court decision has highlighted when a fiduciary duty might be owed by employees to their employers. In Computer Systems plc v Ranson & Others, the claimant sued former employees for £1 million in damages for setting up a rival company while under its employment. The court examined alleged breaches of contractual duty of fidelity, fiduciary duty and a restrictive covenant.
How far can employers go in preventing perceived disloyalty by former employees? A recent Court of Appeal case might put off employers who are considering somewhat aggressive forms of litigation. In Caterpillar Logistics Services (UK) Ltd v Huesca de Crean the High Court’s decision to refuse an interim injunction based on a confidentiality clause was upheld on appeal.
If a purchaser is buying a target company that derives significant commercial value from intellectual property rights then it is important to accommodate this in the sale and purchase contract by including specific intellectual property rights warranties in the buyer’s favour. These not only aim to protect the commercial benefits of the intellectual property but also reduce the potential for unexpected negative surprises after the transaction has taken place.
A distribution agreement governs the commercial and legal relationship between a supplier or manufacturer and a distributor of its products. Generally a supplier will appoint a distributor who will buy products at its own risk and distribute them in a particular territory to its own customers. Agreements may be in the form of a letter or a more detailed contract; either way there are numerous matters for the parties to consider.
Some businesses, particularly software and other technology related businesses, have unique features that require particular attention when potential buyers investigate their assets and liabilities. Unlike a manufacturing or retail business with significant real estate or plant and equipment, a technology business’ main assets are intellectual property and people. The intangible nature of intellectual property means that a due diligence exercise will require a special focus.
On the sale of a business, a buyer will usually require restrictive covenants to limit the ability of the seller to compete with it post-sale. These normally take the form of non-dealing clauses and non-solicitation clauses. Following a recent High Court judgement, Baldwins (Ashby) Limited v Andrew Maidstone, sellers need to ensure that they are fully aware of the risks of breaching non-solicitation clauses even when former clients initiate the contact.
Specific performance is a discretionary remedy that may be ordered by a court in the context of a contractual dispute. The remedy is used to compel a party to a contract to carry out its obligations under the contract where damages would not be adequate.
Trade mark owners may assign their trade marks to another person in much the same way as they might assign other property.
The Companies Act 2006 contains detailed provisions setting out the procedure for a company to purchase its own shares. It is important for directors and shareholders to know that the procedure is available. There can be tax reasons that justify a company buying shares back from a shareholder, although tax advice from an accountant or appropriately qualified tax adviser should first be taken before initiating a share buy-back.
It is common for a company director to have an executive service contract in place with the company. Such a contract will deal with the director's terms of service, including remuneration and benefits. The contract may also give the term of the director's appointment. However, a director may be removed from office before the end of his term of appointment by an ordinary resolution of the shareholders. The procedure is dealt with by sections 168 and 169 of the Companies Act 2006 and can be used notwithstanding any agreement made between that director and the company.
Contract law is based upon the fundamental common law doctrine of privity of contract. Privity of contract provides that a contract cannot confer rights or impose obligations upon any person except the parties to that contract. The Contract (Rights of Third Parties) act 1999 provides an important exception to this rule. The Act may give rights to a third party where the purpose of a contract was to grant them such rights. As such, a third party who is not party to a contract may then enforce the contract on his own terms. There are two situations where this applies.
In simple terms Novation means replacing a party to a contract with a new party. It is a concept that originated in Roman Law and refers to the process by which two contracting parties agree, by consent, to replace one of them with a third party. It provides a means by which parties can work around the doctrine of privity of contract whereby only the original parties to a contract are bound by and are able to exercise the rights created by that contract. The process of Novation actually changes the parties to a contract such that there is effectively a new contract between those parties on the same terms.
When one party to a contract commits a breach that is serious enough for the other party to bring a contract to an end, the contract becomes voidable. The contract is still valid but, at that point; the party suffering the breach may elect to rescinded or affirm the contract. In practice, it can be difficult for innocent parties to spot when a contract might be voidable and their right to rescind can easily be lost unitentionally if care is not taken.
Although commercial agreements are usually expressed in writing, it remains the case in English law that a physical contractual document is not required. Where a physical document does exist, the contract may contain terms that are not explicitly included - implied terms. However, such terms cannot simply be implied at will to rearrange a written contract after it has commenced; implied terms must meet certain criteria.
When minority shareholders in a private company are unfairly prejudiced, the remedy granted most often is a share purchase order. Common grievances leading to this type of order include a minority shareholder being excluded from management of the business, disputes over the sharing of profits and exclusions from meetings.
Buyers and sellers of businesses have a number of alternatives to consider when deciding how to structure payment of the purchase price. The simplest payment alternative may often be a straightforward cash payment. But there are reasons, including tax reasons, for the parties to a business sale transaction to consider other payment structures.
The duty of good faith is often considered the most fundamental principle underlying a partnership. If you are a member of a partnership or considering joining a firm of partners, it would be a prudent step to familiarise yourself with the basic principle.
CICS, administered by the Criminal Injuries Compensation Authority, exists to compensate blameless victims of violent crime. The scheme originally set up in 1964 is free and can currently make awards from £1,000 to £500,000. However, budget cuts mean savings have to be made and reform has been proposed. The government estimates that approximately 20,000 awards valued at nearly £75m have been made to criminals over the last ten years; one major source of cost that has been targeted.
When a buyer agrees to purchase a company from a seller the terms of that deal are captured in a contract often prepared by the buyer's solicitor. Within that contract two things operate to help define the allocation of risk of claims between buyer and seller after the purchase is completed. The first of these is warranties, which we have talked about in more detail elsewhere. The second is the Disclosure Letter.
Since its introduction under the Limited Liability Partnership Act 2000, the Limited Liability Partnership (LLP) has become an increasingly popular legal structure. Its ability to combine limited liability with the tax status and flexibility of a partnership has contributed to its rising prominence as a corporate vehicle. Although originally devised to provide professional partnerships with greater liability protection, it is not limited to this and is often used elsewhere, equity joint ventures for example.
The law offers little protection to the buyers of a private business in the absence of fraud or misrepresentation. Most business people are familiar with the concept of caveat emptor, or 'buyer beware' in more modern parlance. However, difficulties arise in the purchase of businesses as going concerns where it may not be possible to identify all problems or potential issues impacting upon the value of the business. It is up to the buyer of a business to ensure that he has taken steps to protect himself as far as possible through contractual negotiation with the seller and in particular obtaining contractual warranties. Contractual warranties are central to the buyer's risk-management process in the sale and purchase of a business.
A recent case in which a six-year-old girl had part of her ear bitten off by a dog in Essex has once again highlighted this growing problem. Police have charged the man with allowing the dog to be dangerously out of control in a public place and causing injury under the Dangerous Dogs Act 1991. Although the victim suffered additional damage to her neck and shoulder she survived the attack. Following such a horrific attack, what sort of recourse might the injured party have against a dog owner to compensate them for their injuries?
The rise of austerity, environmental concerns and healthy living has seeing increased numbers of people resorting to their bicycles for daily transport. The immediate implications appear positive but accident statistics should make cyclists heed a note of caution.
Despite their unpopularity with many motorists, evidence shows that speed cameras have been effective in reducing accidents. Although cameras are often highlighted more for the revenues they produce than the accidents they prevent, figures show that the number of people killed or seriously injured on roads where they have been installed has fallen by up to two thirds in some places. Anyone who has worked with crash victims can only welcome such a trend.
Social networking, an increase in CCTV presence on the street and the ease of mobile phone video recording should be kept in mind by Claimants while they pursue their claim for personal injury compensation.
Early settlement and negotiation is encouraged under the Civil Procedure Rules by providing mechanisms for offers to be made and properly considered.
Most business people are familiar with basic legal structures such as partnerships and limited companies. They are usually also aware of the pros and cons of a choosing a particular corporate vehicle whether it is for tax or liability reasons. A lesser understood concept is the joint venture. Although more complex in terms of legal and business relationships; in the right circumstances, joint ventures can present a number of advantages.
Whenever businesses look to acquire another business or to pursue a joint venture with another business, detailed due diligence is vital. With 'buyer beware' the starting premise, it is critical that acquirers or joint venture partners carry out sufficient investigation into the other party to know what they are getting before they complete a transaction. Thorough due diligence before-hand can help avoid unpleasant surprises and, more importantly, avoid the cost and damage of subsequent disputes or claims - particularly important if there will be an ongoing relationship.
The latest cold snap is a reminder of just how harsh our recent winters have been and how much havoc they cause road users. The pothole menace that ice and snow leaves behind on roads and pavements can cause considerable harm to pedestrians, vehicles and their occupants.
Directors' Loans: when are they permissible?
If directors wish to take loans from their company or use their company for other types of credit transactions, certain procedures must be followed. As a general rule, approval of the company's shareholders is normally required but there are exceptions. If a necessary resolution of shareholders is not passed then the transaction is voidable at the instance of the company and directors may be liable for any gains made. However, a transaction may be affirmed after the loan occurs if done within a reasonable time.
Motorists in the U.K. are likely to face a 40% increase in their insurance premiums this year, as the number of people claiming personal injury compensation continues to soar. This is despite recent Department for Transport figures which show that the number of people killed or injured on Britain's roads over the past decade has dropped by almost a third.
Personal injury lawyers play an important role in ensuring that people are properly compensated when injured in accidents. Making sure that people have access to the right medical treatment and financial support following a car crash, for example, is a matter of public interest.
The Commission on Assisted Dying, chaired by the former Lord Chancellor Lord Falconer, has suggested that there is a strong case for a change in the law.
What is a Part 36 Offer?
In the context of litigation, for example, a civil dispute or a commercial dispute which is before the Courts, a Part 36 offer is an offer by one of the parties to settle the litigation prior to a hearing and decision by a Judge or decision-maker.
Rollingsons' client was recently awarded a successful decision in a domain name dispute. The dispute was decided under the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP has been created by WIPO (the World Intellectual Property Organisation) to set out a legal framework for the resolution of disputes between a domain name registrant and a third party over the abusive registration and use of a domain name.
It's a business reality that invoices and debts are not usually paid immediately. One reason is that businesses have monthly account payment cycles and a few weeks' delay is normal. However, there may be occasions where you are dealing with a business debtor and you have serious doubts about their intention to pay. You can spark the debtor into action with a statutory demand. This is a very effective debt recovery tool because debtors can be made bankrupt if they ignore a statutory demand.
