Major Department Stores Face Sports Bra Price-fixing Investigation

In September the Office of Fair Trading (OFT) began investigating a number of companies it believed were involved in a price fixing deals related to a popular range of sports bras.

The Shock Absorber sports bras, worn by Anna Kournikova, are manufactured by DB Apparel UK Limited which the OFT has accused of striking anti-competitive deals with John Lewis plc, Debenhams Retail plc and House of Fraser (Stores) Limited.

The investigation underlines the importance with which competition laws are regarded by the OFT when it comes to protecting the interests of consumers. Businesses involved in the manufacturing or resale of goods should therefore be mindful of their obligations under competition legislation.

Gay Rights Trump Christian Beliefs in Supreme Court

Business owners wishing to run their affairs according to their religious customs should take heed.

The long-running battle between Christian guesthouse owners, Hazelmary and Peter Bull, and gay couple, Steven Preddy and Martyn Hall, has reached a conclusion in the Supreme Court.

The Supreme Court refused to overrule the decision of the lower courts which held that the Bulls had acted unlawfully in refusing accommodation to Mr Preddy and Mr Hall.

Should Employers Implement Alcohol Testing At Work?

A campaign is underway to convince employers to offer alcohol testing at work.

As the festive season gets into full swing, employers are unlikely to want to risk considering the proposals in the immediate future and being labelled killjoys in the process. However, the Alcohol Health Network is confident that its arguments in favour of alcohol testing at work would provide worthwhile benefits to employers in the long run.

Whether employers wish to expend time and resources undertaking such paternalistic activities in the work place is open to question though.

Adultery – No Longer the Primary Ground for Divorce

A marriage can end with a divorce provided that the couple has been married at least a year and the marriage has irretrievably broken down.

The petitioner must prove the 'irretrievable breakdown' of the marriage by evidence of one or more of the five statutory grounds for divorce. These are adultery, unreasonable behaviour, desertion, two years' separation with consent and five years' separation without consent.

Although in the past adultery has been the most prevalent ground cited in divorce cases, this is now changing with unreasonable behaviour taking over as the primary ground.

Planning Rules are Not there to be Broken

The rules and systems governing planning in England can be frustratingly complex and technical for the uninitiated. Some developments are automatically “permitted” and others require full planning consent and/or buildings regulation approval.

What’s more, enforcement of planning law can often seem inconsistent throughout the country, with some local authorities being more enforcement happy than others.

The rules are further complicated by a number of urban myths circulating, particularly online, which claim to enable the avoidance of planning laws.

What are the Risks of Breaching Planning Consent?

Amateur developers such as individuals extending their houses are often surprised about the restrictions they face when making changes to their own property.

Planning laws generally aim to balance the interest of the applicant with the wider public interest. There is plenty of debate about whether the planning rules are overly restrictive but it is advisable that individuals do not test planning authorities by building beyond them.

Gaining an understanding of the background to the planning rules is time well spent; it can help you make decisions and avoid major pitfalls when undertaking a building project.

Full-Face Veils in Courts, Hospitals and other Workplaces

The globalised society in which we now live has many benefits stemming from the intermingling of diverse communities.

Living in a diverse society means that we can experience different food, music and cultures all within the borders of the UK. Cultural diversity also means that we can converse with individuals from different countries and backgrounds and appreciate different ideas and values. On the whole, this is considered a positive development of modern Britain.

However, multiculturalism has also been a divisive issue, especially where cultural values clash. The cultural expression of religious values can be particularly problematic when they conflict with an increasingly secular social order or even legislative provisions that protect other rights.

In the UK, the growth of certain Islamic customs such as the wearing of the burqa has been particularly contentious in certain circumstances. Recent debate has focused on the suitability of full-face veils in work environments where face-to-face communication is considered vital, such as hospitals and courts.

Are You Prepared for Cold Weather Commuting?

It’s that time of year again when cold weather may start to disrupt the UK’s rather delicate transport network.

Travel disruption can affect anyone so employers and employees should be prepared in advance with coping strategies in place to reduce the impact on business activities.

An Olympic Legacy for Leyton Orient?

In September, the High Court ruled against allowing Leyton Orient’s application for judicial review into the London Legacy Development Corporation’s (LLDC) decision to grant West Ham United use of the Olympic Stadium.

A judicial review is a court proceeding where the judge considers the lawfulness of a public body’s decisions. In this case Leyton Orient had applied to have the LLDC’s competitive bidding process for the Olympic Stadium reviewed.

FCA Harpoons JPM for the London Whale Trades

JP Morgan Chase has agreed to pay four regulators a total of £572m in fines in relation to a $6.2bn loss incurred as a result of the "London Whale" trades. The UK’s Financial Conduct Authority (FCA) will receive £138m of this amount.

This is the second largest banking fine to be issued by UK regulators and serves as a warning to those carrying out regulated activities.

The Rise of the Contractor

As a result of the huge economic changes of recent years, the employer-employee relationship has evolved dramatically for many workers.

Traditional “employee” roles are no longer considered as the default for many businesses looking to fill positions. Employers often seek more temporary and flexible arrangements by hiring self-employed contractors instead of recruiting salaried employees.

Employers must be cautious when creating these types of new working relationships. It is surprisingly easy to inadvertently create an employee relationship, even where both parties may have initially intended for an employee to be self-employed.

What is Clinical Negligence?

Clinical negligence is a legal term which refers to an injury resulting from medical treatment.

This can be a ‘medical accident’ or an ‘adverse incident’. It might entail the failure to diagnose a condition or a wrong diagnosis; birth injuries; surgical errors; the administration of incorrect drugs or dosages; or the failure to obtain consent or warn about the risks of a particular treatment.

Where actual harm has been caused to a patient from improper medical treatment they may be entitled to compensation.

What Lessons Can be Learned from the Young Divorce Saga?

The long-running and acrimonious divorce case between Scott and Michelle Young has finally reached a conclusion.

Details of the divorce have made headlines at every twist and turn with some developments surprising even the most seasoned legal practitioners. High Court judge, Mr Justice Moore, awarded Michelle Young £20m to settle the case, a sum she described as “disgraceful”.

Although the case is highly unusual due to the large amounts of money involved, there may be a few lessons to be learned for potential divorcees.

Avoid Nasty Festive Surprises

There’s nothing like an unexpected liability to ruin the festive season.

As the holiday season quickly approaches, many employers are planning office parties for their employees. In the past, employer liability for employee injury may have been less of a risk but many businesses now face a range of personal compensation claims if celebrations take an unexpected turn.

Notable hazards include discrimination, harassment and personal injury compensations claims which can all heavily impact a business’s financial solvency, human resources, and employee morale.

Here are some tips for a happy holiday.

Compensation for Businesses: Mis-sold Interest Rate Hedging Products (IRHPs)

Thousands of businesses have been mis-sold IHRP products by banks and could be in line for compensation.

In 2012, a FCA review found serious failings in the sale of interest rate hedging products (IRHPs) to small businesses by some of the UK’s biggest banks.

FCA Sharpens Focus on Hedge Funds

The Financial Conduct Authority (FCA) is increasingly taking a prevention-is-better-than-cure approach to regulating financial institutions.

There is a widening belief that the FCA is showing greater concern for the UK’s financial system than its predecessor the Financial Services Authority.

The latest firms to be probed for greater transparency are hedge funds.

Employee Termination: Scope of Payments in Lieu of Holiday

The recent Employment Tribunal case of Podlasiak v Edinburgh Woollen Mill Ltd has confirmed that a token payment in lieu of holiday upon termination is not acceptable.

The case confirmed that such payments must reflect normal pay, underlining the importance for both employers and employees to have due regard to compensation mechanisms following termination.

How do Courts Decide Jurisdiction in Divorce?

The increasingly globalised nature of society affects both how the laws of different countries interact and the subsequent legal implications for individuals and businesses.

The ease of movement of people is one consequence of globalisation that has profoundly affected family law as a practice area. One particularly prominent issue that attracts family cases to the UK courts is divorce; the approach of the English courts to division of assets in divorce is believed to be a major factor in this trend. However, not every case that is brought before the English courts will automatically be allowed to proceed if the courts of another country are a more appropriate forum.

The recent Appeal case of Mittal v Mittal [2013] has helped to clarified the law on the proper jurisdiction for divorce proceedings.

The Wildlife and Countryside Act 1981: A Legal Landmark

The Wildlife and Countryside Act 1981 consolidated existing countryside law making it an offence to intentionally kill, injure or take any wild bird.

The act also extended state protection of wildlife to wild plants, and wild birds’ nests and eggs.

Most farmers and rural inhabitants will be aware of the Act and many of its provisions but it is important for all users of the countryside to keep abreast of the legislation, particularly newer agri-businesses or other businesses establishing themselves in rural areas.

Sparing Your Firm’s Blushes: Disciplining Errant Employees

Magic circle law firm, Clifford Chance was recently left blushing by a future trainee in an ill-judged candid camera moment.

The trainee, while being interviewed by a student reporter in the early hours, made inappropriate comments about why he enjoyed working in the city, specifically as a “City lad” stating: “I f***ing love the ladness”, and explaining, “The ladness is just basically f***ing people over for money.” 

Needless to say, this was not the sort of PR exercise advocated by a top City firm and disciplinary proceedings swiftly followed.

Not every instance of errant employees merits disciplinary proceedings quite as obviously as this so it is important for employers and employees to understand where the lines are draw.

LinkedIn Challenges for Employers

Most businesses are likely to be familiar with LinkedIn, the social network preferred by professionals. For those that are not, LinkedIn is an online network allowing employees as well as employers to build a collection of professional contacts.

Where it is clear that a systematic list of contact details acquired by the employee in the course of employment is owned by the employer, the use of LinkedIn raises new challenges for lawyers concerning not only ownership of information and confidentiality, but also in relation to non-solicitation and non dealing clauses in employment contracts.

Protecting Your Database from Employee Data Theft

Data theft involves the stealing of personal information belonging to another person, firm or organisation and it is deemed to be a crime.

In the UK, the Data Protection Act of 1998 prohibits the unlawful obtaining of personal data without the consent of the data controller except where the person can show that it was for the detection or prevention of crime, or that the information is required under the law or by the court.

Sadly this does not stop employees stealing data from businesses, particularly when those employees are leaving.

Offensive Football Chants and Public Order Offences

The Football Association is seeking to crack down on the use of the anti-Semitic term ‘Yid’ by Tottenham Hotspur fans.

This has caused some consternation amongst Tottenham Hotspur supporters who are known to chant ‘Yid Army’ at matches as a term of support. It occurs because historically the club had a large contingent of Jewish supporters and the chant was used as a defence mechanism to deflect anti-Semitic abuse.

The recent controversy highlights the difficulty of managing and policing these issues for the authorities and the police.

Business Bribery Risks in Focus

On 15 July 2013, Chinese authorities launched an extensive corruption and bribery investigation against GlaxoSmithKline. The charges allege that GlaxoSmithKline paid travel agencies up to 3 billion Yuan, approximately £303 million, for bribing Chinese officials and doctors.

GlaxoSmithKline’s former head of operations in China, Mark Reilly, stepped down in light of the scandal and remains in China to assist investigators. Meanwhile, several Chinese employees have been detained by authorities, including four senior managers. Chinese officials have also initiated cursory investigations of many other global pharmaceutical companies with offices in Beijing.

GlaxoSmithKline admits to some illegal activity by Chinese executives and is set to re-evaluate its business plan in order to manage the corruption and bribery risks.

The high profile of this case and the recent court appearance of the first defendants to be tried under the 2010 Bribery Act should encourage businesses to take note of potential bribery risks.

The Risks of Corporate Intelligence Gathering Under the Data Protection Act

Operation Millipede has brought the issue of data protection and the illegal gathering of information to the fore of the minds of both businesses and legal practitioners.

Businesses should be aware of the potential offences that can be committed under the Data Protection Act 1998 (DPA) and the penalties that can be imposed when they engage in information gathering exercises.

The companies being investigated under Operation Millipede may have committed a number of offences under the Data Protection Act by commissioning the illegal gathering of information.

Will Peacekeeper Liabilities Weaken UN Effectiveness?

On 6 September 2013 the Dutch Supreme Court ruled that the state was liable for the deaths of three Bosniaks (Muslim Bosnians) in the 1995 Srebrenica massacre, upholding an Appeal Court decision of 2011.

The men worked for the UN/Dutch peacekeeping force and with many others had taken shelter in the UN compound as Bosnian Serb forces overran Srebrenica on 11 July 1995. Three days later the peacekeepers forced the Bosniaks to leave the compound and face death by the Serbs.

The International Court ruled the killings as genocide and Mladic is on trial for these crimes. The Dutch government accepted “political responsibility” for the failure of the mission, but said responsibility for the massacre itself lies with the Bosnian Serbs.

Android KitKat and the Benefits of Co-Branding

The recent release of Android’s latest Operating System created much hype for its surprise branding if not for its technological wizardry. While the name Android KitKat was along the lines of previous releases which have all been named after confectionery or desserts, this release was the first to see a partnership with another global brand.

The union sheds light on a marketing practice that generates interesting strategic and legal issues. Businesses contemplating such an arrangement must assess the goals of co-branding partnerships along with the possible risks that they can create before committing themselves.

The Plague of Asbestos, the ‘miracle mineral’

Once touted as the ‘miracle mineral’ for its strength, resistance to heat and affordability, asbestos was used widely throughout the UK in previous decades across many industries. It was particularly abundant in shipyards, industrial plants and in the construction and insulation of commercial and domestic buildings.

If only we had known then what we know now; asbestos has since caused thousands of deaths in the UK alone and recent figures from the World Health Organisation estimate that more than 107,000 people die each year as a result of lung cancer, mesothelioma and asbestosis as a result of occupational exposure to asbestos.

Legal Issues for Tech Start-ups

When starting a company there are numerous issues entrepreneurs have to contend with and these issues are made all the more complicated when it is a tech company.

While founders normally want to concentrate on developing their idea and growing the business, it is important to bear in mind the legal issues in order to protect the company further down the line.

What Was The Advent of Race Discrimination Law in the UK?

It is just over half a century since racial segregation was deemed illegal in the United States. The relatively recent history of segregation and its effects are not easily forgotten.

Prior to the civil rights movement it was legal for employers to discriminate against individuals on the basis of their ethnicity. There were a number of defining moments that brought about radical social changes in the US such as Dr Martin Luther King Jr.’s pivotal speech on race relations.

Although similar social changes happened in the UK, they were marked with moments that gained less prominence but which were critical nonetheless.

Bank Rate Held, but Increasing Hope for Borrowers with Small Deposits

Ray Boulger, of leading independent mortgage adviser John Charcol, comments on the mortgage market and today’s as expected announcement from the MPC of no change in Bank Rate or the amount of Quantitative Easing.

“The MPC’s no change announcement following its regular monthly meetings has now become little more than a ritual and this looks unlikely to change for many more months. The only question today on central bank rates was whether the ECB would cut. The fact that it has done so, cutting its benchmark rate by 0.25% to a new all time low of 0.25% sooner than most economists expected, is no doubt partly because the Eurozone inflation has fallen to 0.7% but also suggests the ECB remains bearish about the zone’s economic outlook. Unfortunately EU politicians have so much political capital invested in the euro the ECB is unlikely to recognise, at least publicly, the fundamental contradictions and economic illiteracy of a one size fits all policy for the 17 widely diverse countries in the Eurozone.

High Season for Agricultural Disputes

The UK agriculture industry is no stranger to challenge. High land prices, fewer and fewer young people getting involved in farming and recent reductions in farming subsidies make for tough business.

However, for many farmers the toughest challenges do not come from high level national or regional difficulties but from more local problems.

With land in the UK at a premium, agricultural disputes relating to land are common. Where agricultural land is involved it can be critical for a farming business to have boundary or other land disputes resolved as quickly as possible to avoid affecting business income.

Health and Safety: Avoid Expensive Fees for Intervention

The primary legislation regulating health and safety issues in the UK is the Health and Safety at Work etc Law 1974. It applies to employers and self-employed persons and breaches can be costly in several ways.

The Act seeks to ensure that employers, employees and the general public are protected from dangers in the workplace by imposing obligations on employers to provide a safe environment.

Fees for Intervention (FFI) are an hourly cost penalty that the HSE can impose on employers when it carries out inspections related to health and safety breaches.

Many employers have not even heard of FFI, introduced in 2012, but they should take note and be aware that fees can add up very quickly.

McCammon Judgement: Football Still Suffering from Racial Discrimination

On 3 September 2013, Gillingham Football Club lost an appeal ruling that their sacking of Mark McCammon for gross misconduct was an act of racial discrimination.

Football has made much headway with improving its reputation regarding the prevalence of racism, particularly at its highest levels but this case shows that there is still some way to go.

The McCammon case also highlights the importance of anti-discrimination laws in rooting out all forms of discrimination whatever the work environment.

How is Consumer Credit Regulated?

Consumer credit is an essential and significant market in the UK. In 2011-12 UK consumers borrowed £176bn from credit card companies, businesses offering hire-purchase agreements and payday lenders.

In March 2013 the UK Treasury announced that it would transfer responsibility for consumer credit regulation from the Office of Fair Trading (OFT) to the Financial Conduct Authority (FCA).

What does this mean for lenders and borrowers?

Financial Services Ombudsman Flooded with PPI Complaints

Banks sell payment protection insurance (PPI) policies to consumers for loan payment protection should a consumer become unemployed or too ill to work.

However, UK banks recently were caught up in the largest insurance mis-selling scandal the industry has experienced.

The fallout has seen millions of claims being processed but hundreds of thousands of customers have complained to the financial services ombudsman after failing to get satisfactory resolution with their bank.

Are Agency Workers Receiving Fair Treatment From Employers?

Agency workers are individuals who work through employment agencies under a contract of employment or services. They are usually hired on a temporary basis on flexible terms and conditions to cover short-term absences and are often paid the national minimum wage.

The EU directive and regulations governing this type of employment specifically refers to workers instead of employees, underlining the fact that they do not have the same rights to claim unfair dismissal or redundancy pay. In other words, they have fewer employment rights than permanent staff.

However, in many cases the work carried out by agency workers is of equal value to that done by permanent employees and there is growing pressure to ensure that they are properly protected.

Avoiding Frustration with Third Party Insurance Claims

According to recent figures, insurance companies pay out £57m every day to settle general insurance claims. For many people, dealing with insurance companies after an accident is a frustrating and drawn out process.

After suffering damage through someone else’s negligence or being involved in a car accident, the prospect of claiming against another person and dealing with their insurance company can be daunting.

This should not put people off making a rightful claim and getting professional help can ease the process.

Divorce and Asset Concealment

With rising rates of divorce in the UK the issue of asset values and asset concealment is becoming increasingly important.

This issue has become particularly visible in light of the recent financial crisis and a number of high profile court cases.

Successful Appeal for Father Stopping Mother’s Kenya Holiday with Daughter

A father has won an appeal against an order giving permission to his ex-wife to take their daughter to Kenya on a holiday.

The ruling indicates that courts will err on the side of caution where there is any risk of abduction.

What are Separation Agreements?

Separation agreements can be a useful way to bring some stability to what is often a very uncertain situation.

Catherine Zeta Jones and Michael Douglas recently decided to separate in order to “evaluate and work on their marriage.” It is believed that the couple have a pre-nuptial agreement in place in the event a divorce but many couples looking to take a marriage break may not have.

For those lacking the luxury of a Hollywood lifestyle and the accompanying bank balance, the financial and emotional uncertainty of the wait and see approach is probably unthinkable and impractical.

A separation agreement can provide a practical way to manage this kind of situation by taking account of different eventualities that could eventually arise, including divorce.

FCA Bares its Teeth at Barclays

Barclays is facing a £50m fine from the Financial Conduct Authority (FCA) for breaching disclosure rules during an investment deal with Qatari investors in 2008.

Details of the potential breach of the disclosure rules emerged as Barclays issued its latest prospectus for a £5.9bn fundraising which completed on 4 October 2013. The recent share issue was to plug a capital shortfall due to higher regulatory leverage ratios.

The FCA claim that Barclays acted “recklessly” and “without integrity towards holders and potential holders” of its shares by failing to disclose payments made to Qatari investors relating to share issues in 2008.

The FCA’s aggressive approach in this case highlights once again the need for strict compliance controls.

Feeling Harassed by PPI Calls?

According to the Citizens Advice Bureau, more than 30 million people or nearly two thirds of British adults have received unwanted messages concerning claims for mis-sold Payment Protection Insurance (PPI).

Moreover, 55% of those surveyed state they were contacted more than ten times in 12 months. Out of all those surveyed a considerable 98% of those contacted felt they had not given their permission to be contacted.

Little wonder that people are fed up with unsolicited PPI calls but what can be done about them and how should legitimate business avoid breaking the rules?

Tackling Bullying and Discrimination in the Workplace

Sexual discrimination in the workplace is still rife despite social and legal changes that have sought to correct the balance.

A recent UN Report has stated that women remain under-represented in Parliament and are on the whole, paid less than their male counter-parts.

In addition to these issues, women frequently encounter discrimination on the basis of their gender in the workplace. 

The extraordinary cases that make the headlines such as the female lawyer told to “Stay single” by her boss are just the tip of the iceberg.

When Private Investigation Oversteps the Mark

The private investigator scandals related to the News of the World closure has revealed some interesting insights into their practices.

There may be good reasons for individuals or businesses to use private investigators but when do those activities cross the line into illegality? And where does the buck stop – at the investigator or the client?

The outcome of the current investigations could be a useful guide as to what is and what is not likely to be acceptable in future.

Increasing Rights for Unmarried and Same Sex Couples

Changes to social norms means that couples are increasingly deviating from the traditional institution of marriage even where they intend their relationship to continue indefinitely. At the same time, same sex relationships have also become widely accepted.

Although society has largely absorbed these changes, formal legal structures have adjusted more slowly meaning that discrimination can occur in a number of settings often leaving couples without legal resolve.

Casual Approach to Intellectual Property Can Cost Infringers Dear

Zynga, the company behind popular gaming apps Words With Friends and Chess With Friends recently settled its legal action against Bang with Friends Inc in the US.

Zygna’s ‘With Friends’ games are popular among users of smart phones and tablet devices. The games have become synonymous with the games maker Zygna, which claimed casual sex dating app Bang With Friends sought to take advantage of its reputation.

Zynga filed court papers in San Francisco complaining of trade mark infringement.

From Tweet to IPO: Social Media Comes of Age

The social networking site Twitter recently announced that it has submitted an application to the U.S. Securities and Exchange Commission in a bid to take the company public. It is likely to be the largest tech initial public offering (IPO) since Facebook and demonstrates the meteoric rise of social media.

Nevertheless, with growing popularity, social networks are becoming harder to police and critics argue more needs to be done to prevent abuse and online bullying. It is an area of increasing concern for legislators keen to ensure that the applicable laws are fit for purpose.

Wealth Advisors Should Heed Warning from AXA’s FCA Fine

The insurance company AXA was recently handed a hefty £1.8 million fine by the Financial Conduct Authority (FCA) for failing to provide suitable investment advice to its customers.

The regulator concluded that AXA had fallen short of its responsibilities to inexperienced retail customers in respect of various investment products.

Wealth advisors and those selling investment products to retail customers should take note of the FCA’s tough approach when it comes to protecting ordinary investors from unacceptable risk.

UK Takeover Code Changes Now in Force

Changes to the reach of the Takeover Code came into force on 30^th of September 2013. Affected companies should take note. Any UK, Channel Islands, and Isle of Man incorporated public company whose securities are admitted to trading on a UK multilateral trading facility such as AIM are now subject to the Takeover Code, regardless of the location of that company’s central management and control.

Previously, those companies falling into the above category were subject to a residency test in order to determine whether or not the regulations contained in the Code applied to them. This residency test consists of the following question: where does the central management and control of the company reside? If the answer was in the UK, Channel Islands, or Isle of Man, the Code applied; if the answer was anywhere else, the Code did not apply.

Ensuring the Validity of Break Notices

The High Court has recently confirmed the validity of a tenant’s break notice despite the notice not strictly complying with the break clause in the lease.

The ruling in Siemens Hearing Instruments v Friends Life [2013] confirms that the requirements of a break clause do not necessarily need to be strictly observed but tenants should treat it with caution.

Bitcoin Legal Issues

Bitcoin is the first decentralised digital currency. It operates in a virtual world, run through a peer-to-peer network, independent of central control such as a bank or clearing house. Bitcoins can be bought using conventional currency and can also be accepted as payment for goods or services.

Another way of earning Bitcoins is online through a process known mining which involves solving algorithms to unlock blocks of Bitcoins. Bitcoins are attractive because they can be sent to anyone, anywhere in the world at any time with little or no fees. Bitcoin is also limited in supply and therefore its value cannot be devalued.

Exciting as the Bitcoin phenomenon is, there are legal complexities that are yet to be fully resolved.

Insurance Considerations for Start-ups

Positive, forward thinking entrepreneurs do not generally dwell on worst case scenarios. But factoring risk analysis into business planning is a must. In order to achieve its goals, a business must match its growth ambitions with practical risk considerations and insurance.

Start-up entrepreneurs and small business owners should also be aware that some types of insurance are legally required.

Public Transport Health and Safety

First Capital Connect (FCC) was recently fined £75,000 after passengers were left stranded on a train in London for 3 hours.

The fine demonstrates the seriousness with which health and safety issues are taken for passengers on public transport and should reassure members of the public that there are statutory measures in place to protect them.

Individuals are of course also free to pursue their own legal action if they have suffered harm which has been caused by a company’s breach of health and safety.

FCA Clamp Down: Complying with Client Money Rules

The Financial Conduct Authority (FCA) recently fined Aberdeen Asset Management £7.2m for breaching its client money rules. The case highlights the regulator’s renewed sense of purpose.

Aberdeen Asset Management’s fine was levied for failing to correctly identify client money placed in Money Market Deposits (MMDs) with third party banks from the period May 2008 to September 2011. The lack of clear identification meant that client money was not protected properly, with funds affected totalling an average daily balance of £683m.

In the event of financial collapse or bankruptcy of a fund, client funds should not be exposed to the manager’s losses.

Despite breaching the FCA’s rules, Aberdeen moved to reassure investors that no money was lost.

HS2 Would Require a Host of Compulsory Purchase Orders (CPO)

To most homeowners the property and land where they choose to live is more than just bricks and mortar. The family home is normally purchased over years of hard work, scrimping, saving and endless mortgage payments and carries years of nostalgia and strong ties built up in the surrounding community.

But, if your home happens to stand in the way of development, it can come as a shock to people when they find out that their local authorities have the power to force them to sell their homes by issuing a compulsory purchase order (CPO).

Although the wider political focus is on its costs, the high speed rail project High Speed Two (HS2) would displace many homeowners subjected to CPOs.

Does Surrey Need Another Golf Course?

Developers Longshot Cherkley Court Limited gained early success in their pursuit of planning permission for a golf course on the Beaverbrook estate. The Andy Murray-backed venture was granted planning consent to create a hotel, health club, cookery school and a private 18-hole golf course by Mole District Valley Council.

Despite this early victory, protest group, Cherkley Campaign Limited, successfully brought judicial review proceedings against the plans, arguing that Surrey had no ‘need’ for another exclusive golf course.

Residential Service Charges: A Brief Guide

Residential service charges are amounts payable by the tenant of a property either as a constituent part of or in addition to their rent payments. Service charges generally cover the cost of services provided by the landlord during the course of the lease.

Service charges can be fixed or variable. The latter often form the basis of disputes between landlords and tenants so it is important for parties to understand the basics to enable smooth management of the property.

Have Privacy and Decency Been Sacrificed at the Altar of Social Media?

There are growing concerns over the scant legal protection offered to those whose privacy is abused by fellow users of social networking sites.

Significant media attention has returned to this issue recently after a set of explicit photos went viral. While many accounts sharing the photos were initially shut down, the events continued to create a web sensation with some forums revealing the identity of the person in the photos.

Cases such as this give the appearance of a legislative gap that leaves personal privacy and decency exposed entirely to the whims of irresponsible social media users and cyber bullies.

European Court of Justice Rules on Trademark Colour Protection

The Court of Justice of the European Union (CJEU) recently delivered its judgement in Specsavers v Asda.

The European court’s clarification regarding ‘genuine use’ of trademarks normally used within composite logos and enhanced reputation based on use of marks in a particular colour should be welcomed by brand owners.

Office to Flat Conversions Challenged

Developers in the capital should take heed of Lambeth Council’s challenge to the permitted development rights introduced in the Spring of 2013. A successful challenge may entice other councils to follow suit.

On 19 August 2013, Lambeth Council filed a judicial review application against the government’s decision not to exempt certain areas in Lambeth from the development right to convert offices into flats without planning permission.

Before this, on 30 May, the government granted 17 exemptions from the right to convert without planning permission (165 Councils applied to opt-out), but apart from some areas in Waterloo and Vauxhall, Lambeth Council was unsuccessful in its petition to opt-out for its 31 areas.

Burying King Richard III: What About the Wishes of the Deceased?

Last February regal remains were found buried beneath the not so regal location of a car park in Leicester. The remains were that of King Richard III. The discovery was made 527 years after his death at the battle of Bosworth Field.

The University of Leicester were granted a licence by the Ministry of Justice in order to exhume and rebury the remains before 31 August 2014. The licence permitted the body to be buried at Leicester Cathedral or at an alternative burial ground in Leicester. However, a number of distant relatives of the late King have been granted permission to seek judicial review of the decision to bury the King in Leicester.

Beware the Flash for Cash Car Insurance Fraudsters

For most of us, a quick flash of the headlights from a fellow driver is an expression of courtesy, which is greatly appreciated, however criminal gangs are exploiting this expression of good manners to profit from an insurance fraud that experts have called ‘flash-for-cash’.

Understanding Co-parenting Legal Issues

Co-parenting takes place where two or more adults decide to conceive and parent a child together outside the formalities of a marriage or a legally recognised civil relationship. It means that a co-parent may or may not have a biological link to the child but is responsible for raising the child and taking a full parental role.

Co-parenting used to be the preferred and popular option for lesbian and gay men to have children but has now extended to single people who wish to have children without entering into marriage, civil partnership or even co-habitation.

Co-parenting can involve significant legal complexities which should be properly considered before any commitments are made.

Sky Forces Microsoft Climb-down Over SkyDrive

Microsoft’s tie up with struggling Nokia may be its latest stride to move onwards and upwards but not every cloud has a silver lining for the tech giant. Microsoft has been forced to rebrand its ‘SkyDrive’ cloud storage service following a High Court ruling which it decided not to appeal in a major climb-down.

It follows a claim from BskyB against Microsoft for trademark infringement and passing off. The high profile nature of this decision sends a positive signal to companies keen to protect their intellectual property and serves as a warning to those seeking to exploit the goodwill and reputation of well known brands.

Brand Protection: Tackling Lookalike Products

In May 2013, the Intellectual Property Office (IPO) released its report on lookalikes. The report, “Impact of Lookalikes: Similar Packaging and Fast-Moving Consumer Goods (FMCG)”, was based on extensive research conducted by the IPO.

The IPO report came as a result of pressure from brand owners, keen for greater and more effective protection against lookalike products. The research was carried out to ascertain the effect of lookalike products on consumers and also their effect on business and sales.

It is evident from conducting this exercise that the government takes seriously the importance in consumers being able to quickly identify quality products and make informed choices in a busy market. This in itself is a positive for brand owners.

How Much Tax Did Deferred Bonuses Save UK Employees in 2013?

Payment of top rate income tax can seriously reduce the actual net receipts of employee bonuses for high earners. It was little wonder then that many financial firms decided to pay out bonuses for 2012 after April 2013, when the UK government decreased the top rate tax from 50 pence to 45 pence.

The Office for National Statistics (ONS) reports that many UK insurance and financial services firms deferred their annual bonus season from the traditional December to March window until April 2013. This deferral allowed UK firms to avoid paying £1.3 billion in taxes by eluding the previously higher top rate of tax.

Financiers Feel the Wrath of Regulators

Financial regulators have long been criticised for their meek approach to prosecuting rich and powerful wrongdoers. However, there appears to be renewed vigour on both sides of the Atlantic to make financial crime pay more dearly.

In the US, the SEC recently required an admission of wrongdoing to settle a case in a step away from the no-admit/no-deny policy of the past.

Do You Feel Worked to Death?

The death of a young Bank of America Merrill Lynch (BAML) intern in August highlighted concerns over the long-hours culture in the world of City banking. Moritz Erhardt, a summer intern at BAML, was found dead at his apartment in East London during the course of an apparently gruelling internship.

The young man’s death sparked heated speculation that it was related to the excessive hours he was required to work, although the exact cause was not confirmed at the time.

Are New Homes Short of Space?

The Department for Communities and Local Government (DCLG) seems to think so.

As part of a wider consultation, the DCLG is considering introducing basic space standards in an effort to curb increasing concern around the building of small homes. Arguments over the acceptable amount of space needed to live have seen issues raised relating to the health and general well-being of individuals.

The outcome could have serious implications for developers; the DCLG consultation in relation to housing standards is due to report in October 2013.

Why did Red Bull Threaten Redwell?

For some companies the brand is everything. Red Bull is a great example of a company whose brand extends far beyond its primary product. The energy drinks company sponsors extreme sports, owns five football teams and two racing car teams, to name some of its many ventures.

As such the company is rightly protective of the investment its brand but there can be a fine line between protection and a perception of bullying in trademark disputes.

Legal Issues for Startups

Venturing into small business is becoming an increasingly popular endeavour for individuals.

Budding entrepreneurs should be aware that there are many legal obligations that come along with starting a business which they need to incorporate into their business planning.

Employee Share Schemes for Startup Businesses

Start-ups often have little immediate revenue and can struggle to attract the sort of talent needed to get their business off the ground. Employee share schemes can provide an alternative or an addition to a salary as a way of attracting and rewarding key employees.

Employees working for a company where they have a direct share in businesses performance are more likely to more motivated and loyal than a salaried worker. Some research even shows that businesses operating employee share schemes are more productive. Schemes can also be cost and tax effective.

The Cost of Cyber Crime to UK Business

The Home Affairs Select Committee’s report on e-crime warns that the threat to national security from cyber attacks is real and growing. An equal threat comes from e-crime which ranges from attacks on networks, identity theft, industrial espionage, fraud, phishing, and forgery.

The annual global cost of e-crime is an estimated £250bn. E-crime transcends national borders and can take place at almost any time or in any place; the UK is a prime target for state-sponsored cyber-espionage as well as criminal gangs based in Russia and Eastern Europe.

The National Fraud Intelligence Bureau has found 25 countries where criminals were predominantly targeting Britain; there is deep concern that fellow EU countries are not doing enough to prevent these attacks.

App Developers must Comply with Data Protection Obligations

The surge in apps for mobiles and other devices has been remarkable. It is estimated that between 56 and 82 billion mobile apps will be downloaded worldwide in 2013. People are becoming increasingly reliant on apps for entertainment, communication and information.

Exciting as this industry is, the EU Data Protection Working Group has recently expressed concerns over the ways in which many apps use personal data. Mobile apps may collect a variety of data, whether it is in the form of browsing history, personal information or bank details.

Fortunately for users, there is legislation that regulates how their data can be used; for app developers this entails significant legal obligations that must not be overlooked.

A Quick Guide to Zero Hours Contracts

Zero-hours contracts are employment arrangements where the employee agrees to be available for work as and when they are required.

There are no contractual numbers of hours of work or times of work specified over the length of this type of contract, hence the name ‘zero hours’. The result is that the employee is effectively on-call should the employer need them to work for a particular number of hours.

If a worker is made to wait for work on the employer’s premises or is made to take breaks, then they must be paid under this type of contract.

Legal Issues for Sole Traders

Self-employment as a sole trader can be a great choice for those requiring more control over their time. The financial crisis has also meant that many people forced out of employment have found themselves working as self-employed sole traders.

Although it is in many ways the simplest form in which to operate a business, there are important legal considerations that should be taken into account.

Would You Like to Take Your Business Public?

Initial public offers (IPOs) can be one of the pinnacles of business achievement for entrepreneurs.

IPOs are as complex as they are exciting and business owners must get to grip with a myriad of legal issues that come to the fore when Initial Public Offers (IPOs) are being contemplated. Furthermore, as with any major strategic business decision there are advantages and disadvantages that come with this complexity.

Are You Thinking of Selling Your Business?

The legal issues to consider when selling your business will depend largely on its status, be it a sole trader, partnership or a limited company.

Legal advice is essential when selling a business but sellers should have a basic understanding of the issues that need to be considered and the responsibilities different entities place upon them.

Cash Cow or Nest Egg: Running a Business for Lifestyle or Growth

There are a hundred and one things budding entrepreneurs and business owners need to consider when setting up or running a business. Many of these factors have important legal and tax consequences.

One very important way of categorising the business that is often given too little consideration is whether it will be run as a ‘lifestyle business’ that exists primarily to provide an income for the business owner, or a ‘growth business’ with a focus on rapid growth usually with the ultimate aim of selling the business as a going concern in the future.

Farming Regulation: Is Your Agri-business Up to Speed?

Farming is a heavily regulated industry. Like any activity that poses health and safety risks, policymakers have a duty to protect people, animals and the environment from unnecessary harm.

However, as for many other business sectors, the amount of agencies and regulations related to farming only ever seems to increase and become more complicated. This red tape can produce a huge burden on farmers.

First Row Sports Website Earns a Red Card

On 16 July 2013 the High Court in London passed judgement against a number of UK-based internet service providers (ISPs) forcing them to block public access to the ‘First Row’ website.

The big six ISPs including Sky and BT have been banned from allowing public access to the online service, which provides links to unlicensed streams of football and other sporting events.

The High Court ruled that First Row merely by facilitating access to websites streaming unlicensed sporting events was in breach of the Premier League’s copyright on the basis of a ‘communication to the public’ infringement.

An Overview of Agricultural Tenancies

The rules relating to tenancies being used for agricultural purposes are different from those for other properties. These rules give the tenant certain rights such as compensation, and regulate how the landlord can treat the tenant in relation to rent reviews, notice and arbitration over disputes arising from the tenancy agreement.

There are two different types of agricultural tenancy: known as 1986 Act Tenancies, entered into before 1 September 1995, and Farm Business Tenancies (FBTs), entered into after 1 September 1995. The latter recognise the increasingly business-like nature of farming and are far less onerous.

Bad Faith Trademark Application is Superman Workout’s Kryptonite

A successful appeal decision in the recent ‘Superman’ case has highlighted a number of issues relating to bad faith trademark applications. DC Comics, the owner of the trademark Superman and its associated logos, appealed against the decision of the Registrar of Trade Marks in Australia to accept the trademark of Chequot Pty Ltd, owner of the Superman Workout trademark.

Although it was held that the Superman Workout trademark was not deceptively similar to the Superman trademark, as they both relate to different subject matters and the use of the word ‘Superman’ by Chequot was merely descriptive; the use of Superman Workout with its BG device closely resembling the S device of Superman was in bad faith.

Startup Exit Issues

It is not always the first thing on the mind of entrepreneurs but understanding some of the basic startup exit issues is a useful way to keep your options open.

When considering a startup exit, usually the entrepreneur’s aim will be to hand over the management to someone else, to capitalize on their investment or to exit both operationally and financially. There may be a variety of exit options available such as simple handover to a successor, a sale, a management buyout (MBO), an IPO or liquidation.

Simple succession plans deserve serious attention but if a founder wishes to transfer some or all of their financial interest; the issues will generally be more complex than just handing over the reins to new management. MBOs and IPOs can be particularly complex transactions.

Guidance on Illegal Travellers Sites Could Help Landowners and Developers

The Communities Secretary, Eric Pickles, recently issued new guidance to councils explaining how they can use their legal powers to remove illegal travellers, protected camps and squatters from public and private land.

It is hoped that this more determined stance might offer some relief to landowners and property developers who suffer the blight of stubborn travellers on theirs or neighbouring council land.

Beware the Aggressive Regulator: FCA Prosecutions in the Spotlight

After any catastrophic event it is human nature to find someone to blame and the financial crisis has been no different. The wave of public opprobrium directed at the financial service industry in the wake of the financial crisis has meant politicians and authorities have had to act.

Legislators have been in overdrive, rhetoric has been ratcheted up and money has been poured into reducing the high risk and sometimes criminal behaviour felt by many to be responsible.

Legal Issues for ‘Silver Splitters’ Divorcing Couples

Figures published on 6 August by the Office for National Statistics (ONS) show an increase in divorce for couples aged 60 and over, but falling rates for the rest of the population.

Between 1991-2011 divorces for men over 60 (and mostly marriages of 25+ years) increased by 73%; there were 2.3 divorces for every 1,000 married men in 2011, up from 1.6 in 1991.

Although it may be heralded as a bid for freedom by stifled older couples, the statistics also imply some worrying issues for so called ‘silver splitters’.

Challenge to Employment Tribunal Fees

On 29 July 2013 fees were introduced for lodging claims of unfair dismissal or discrimination at the Employment Tribunal (ET) for the first time. The new fees are £160 for a minor claim, such as an unlawful deduction of wages, plus a hearing fee of £230; or £250 for discrimination or unfair dismissal, plus a hearing fee of £950.

Uncertainty now presides over the future of these fees after Unison was given the right to challenge the fees by judicial review which will take place in October.

Employment Law Changes Now In Effect

On Monday the 29 July 2013 a number of employment law reforms came into effect.

The main reforms incorporate changes to the following areas: the inadmissibility of pre-termination discussions, settlement agreements, fees in the Employment Tribunal and Employment Appeal Tribunal, new Employment Tribunal Rules of Procedure and a cap on compensatory awards.

The Legal Implications of Rihanna v Topshop

The case of Rihanna v Topshop is the first of its kind in the UK. Robyn Rihanna Fenty and others v Arcadia Group Brands and others [2013] concerned the IP protection of photographs used on material items.

Pop Sensation Rihanna made a claim against the high-street giant Topshop after the fashion retailer used a photograph of her taken during the filming of the hit “We Found Love” in 2011 on its clothing.

Evidence Mounts that Fixed Rate Mortgage Pricing has Bottomed Out

• MPC’s “Explicit Guidance” Message Backfires

Ray Boulger of leading independent mortgage adviser John Charcol comments on today’s MPC Minutes and other factors influencing mortgage pricing.

A Quick Guide to Sporting Rights and Profit a Prendre

When buying land for the purpose of country pursuits or when planning on taking part in country sports on others’ land it is important to know what sporting rights exist and who they belong to.

In addition to the legal issues surrounding sporting rights themselves, certain types of country pursuit are also subject to specific pieces of additional legislation.

BSkyB Wins First Round of Trademark Fight with Microsoft

Software giant Microsoft has been dealt a major blow after a High Court judge ruled in favour of BSkyB in a claim for passing off and trademark infringement of the ‘Sky’ trademark.

This case began two years ago but the recent ruling could mean that Microsoft will now have to re-brand its cloud storage service ‘SkyDrive’ and face the risk of a possible financial penalty in the form of compensation to BSkyB.

Microsoft are likely to appeal the decision.

Can Creditors Stand Up to Administrators?

The economic crisis has resulted in vast numbers of companies going into administration which in turn has placed the spotlight of scrutiny on administrators. As stipulated in the Insolvency Act 1986, administrators are required to act in the interests of creditors as a whole.

Aggrieved creditors have two principal means within Schedule B1 of the Insolvency Act, Paragraphs 74 and 88, to stand up to the actions of administrators. However, the courts are generally reluctant to interfere in the affairs of administrators.

A Closer Look at the ‘Company ownership: transparency and trust discussion paper’

The Department for Business Innovation & Skills has published a discussion paper on its options to ‘Enhance the transparency of Company ownership and increase trust in UK Business.’

The policy paper has been published subsequent to the UK Government’s commitment at the G8 summit in June 2013 to institute tougher rules on tax evasion, money laundering and the concealment of stolen assets.

Recovering Residential Property from Tenants

In today’s private rental market, most residential tenancies are likely to be assured shorthold tenancies (ASTs) which are protected by the Housing Act 1988 (‘the Act’). Landlords wishing to gain back possession of their properties let under ASTs must use one of the two options available to them under either Section 21 or Section 8 of the Act.

Failure to follow the correct procedures could lead to criminal sanctions, as well as providing the tenant with a right to civil redress which can lead to substantial damages being awarded. Using forcible means to evict a tenant could also result in other criminal offences such as assault or harassment. Landlords should seek legal advice to avoid the pitfalls.

“Explicit Guidance” from the Bank of England is just the opposite with all the caveats!

• The key mortgage message is that nothing much has changed

Ray Boulger of leading independent mortgage adviser John Charcol comments on today’s announcement of “explicit guidance” from the MPC and its implications for mortgage pricing.

Businesses Providing Services to Members of the Public Cannot Discriminate on Grounds of Sexual Orientation

In the case of Black & Anor v Wilkinson [2013], the claimants, Mr Black and Mr Morgan were refused a room at Mrs Wilkinson’s Bed and Breakfast, on the grounds that their sexual orientation conflicted with her religious beliefs.

The County Court decided that the defendant’s actions were unlawful discrimination against the claimants contrary to the Equality Act (Sexual Orientation) Regulations 2007, a decision recently upheld by the Court of Appeal.

Will the Home Office’s Immigration Proposals Burden your Business?

Tougher sanctions on the employment of illegal migrants are being proposed by the Home Office. The proposals, currently in the consultation phase, should be noted by businesses as they look likely to tighten up the law and extend the liabilities of directors.

The broad aims of the proposals are to make it harder for illegal immigrants to live and work in the UK while simplifying the way the civil penalty scheme currently operates.

Are You Aware of Claims that Can be Made Against Unregistered Land?

Claims for adverse possession or prescriptive easements can come as a great shock to property owners. Understanding the risks and taking appropriate steps to protect your property from these types of claims is an important first step for owners of unregistered land.

As might be expected, adverse possession and prescriptive easement claims have always been a potent source of disputes. If things get to this stage it is important to seek immediate legal advice.

Contractual Audit Clauses Can Require Broad Disclosures

Long-term commercial contracts often contain complex audit clauses. These audit clauses can require the disclosing firm to maintain extensive records on contract performance over a lengthy period of time and can impose burdensome access and production obligations.

The 2012 case of Transport for Greater Manchester v Thales Transport Security Limited illustrates how the UK legal system interprets a broadly worded audit clause and the wide audit rights conveyed in such a clause.

Mortgage Rates Stable Pending The MPC’S “Guidance”

 

• Record 88% of John Charcol’s Residential Mortgages on Fixed Rates in July

Ray Boulger of leading independent mortgage adviser John Charcol comments on the mortgage market and today’s announcement from the MPC of no change in Bank Rate or the amount of Quantitative Easing.

Could a Review of Your Contracts Bring Cost Savings?

Once contracts have been signed and implemented, it is often the case that they do not see the light of day again. However, after the toing and froing of negotiations has come to an end and both parties have signed on the dotted line, it is important not to simply leave those important documents in a filing cabinet gathering dust; particularly if they relate to long-term relationships.

Are You Thinking of Using a Consultancy Agreement?

Although there are tentative signs of improvements in the economy and the employment market, flexibility remains a priority for many businesses. Consultancy agreements can provide just that.

Consultancy agreements are contracts between a consultant and a business outlining the terms and conditions related to the types of services the consultant will provide. The contracts usually contain provisions for start and finish, consultant liability, payment, roles and responsibilities, confidentiality and specifying the aims and the services.

Protecting Registered Property From Adverse Possession

Owners of registered property have seen the rules on adverse possession tightened in their favour in recent years but they should still remain aware of what it is and how it occurs.

Having a property registered at the Land Registry does not prevent third parties from trying to claim it for themselves where they believe they have occupied it long enough to make a claim for adverse possession. However, the rules have changed in the last 10 years and are not as straightforward as they used to be.

Property Owners Benefiting from Squatting Ban

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a new offence of squatting in a residential property under Section 144, with punishments of up to six months in jail and/or a fine of up to £5,000. It came into force on 1 September 2012, and is “to protect owners and lawful occupiers of any type of residential building” as well as landlords, second homeowners and local authorities.

Prior to the ban, if a property owner could not persuade squatters to leave they faced lengthy and expensive legal proceedings in order to repossess their property. Now the victims of squatting can phone the police and have squatters arrested immediately.

Clampdown on Copyright Infringement Proposed

In 2012, Ofcom was tasked to review legislation pertaining to copyright infringement, which included a wide ranging research operation. Its study showed that 47% of online users were unable to be certain whether what they were accessing was legal or illegal. Furthermore, it was established from a nationally representative sample that one in six people had illegally accessed or downloaded internet content.

Unsurprisingly in June 2012 Ofcom produced a draft Code that suggested changes to the law on copyright infringement. Initially, the new Code was due to take effect in 2014, though that has now been pushed back until 2015.

Warning to NEDs: Regulatory Actions Likely to be Publicised

Angela Burns’ failure to prevent publication of a Decision Notice by the Financial Conduct Authority (FCA) is a clear warning to all non-executive directors (NED).

It signals that issues relating to corporate governance and NED integrity are likely to be actively pursued by the FCA. That entails serious publicity implications for individuals unless the presumption of public interest in publication is outweighed by a significant likelihood of potential damage to their livelihood.

Are You Protecting Your Business from Cyber Attacks?

Advancements in technology enabling businesses to store and access data more easily have brought an increased risk of information being subjected to a cyber attack.

This is a cause for concern but a recent ICSA Boardroom Bellwether survey revealed that 80 per cent of company boards are failing to take the threat of cyber attack seriously.

Mortgage Defaults and Possession Proceedings

Mortgage possession claims must be carried out correctly to avoid legal difficulties.

As might be expected the procedures for a lender to gain possession of a borrower’s house are highly regulated and can be complex.

EU Data Protection Laws to be Harmonised

Impending changes to EU data protection laws will see the implementation of a framework designed to harmonise laws across the EU. A new draft EU Regulation contemplates that rules will be directly applicable in all EU member states without the need for implementation at national level.

Evidently a response to the increasing use of digital material, the draft Regulation places a greater burden on businesses to be more open and transparent about the way they store and transfer data while strengthening individuals’ rights regarding protection of their personal data.

What Happens to Instalment Payments if a Contract is Terminated?

The courts have often been asked what should happen to money already paid in instalments if a contract is terminated. They have usually found that the payment of instalments is not intended as a forfeitable deposit.

However, in Cadogan Petroleum Holdings Ltd v Global Process Systems LLC [2013], the termination of a sale contract resulted in the seller (Cadogan) keeping the instalments paid by the buyer (Global Process Systems). Furthermore, adding insult to injury, the seller was also entitled to the remaining unpaid instalments.

Good Faith Implied into Long Term Contracts: Yam Seng PTE Ltd v International Trade Corporation Ltd [2013]

Despite a general reluctance on the part of judges to do so, many businesses have tried to persuade courts to imply good faith clauses into commercial contracts. Generally though, businesses are reminded that they can only expect to rely on the clauses that are actually contained in their contracts.

There are exceptions to every general rule however and the decision in Yam Seng PTE Ltd v International Trade Corporation Ltd [2013] (Yam Seng) suggests that English courts may be more willing to imply a duty of good faith into commercial contracts where they are long term.

Do You Have a Bring Your Own Device (BYOD) Policy?

A recent YouGov survey revealed that around 47% of British employees use their personal devices for work. At the same time, it found that less than a quarter of businesses have formal Bring Your Own Device (BYOD) policies in place.

Formal BYOD schemes appear to offer excellent opportunities for businesses to reduce costs on company laptops or mobile phones but it also exposes them to a number of risks.

Whether your business has a formal BYOD scheme in place or not, the proliferation of cloud computing, virtual private networks and smart technology means employees are increasingly likely to access corporate systems on personal devices. Managers should understand the risks.

Owner-Managers and the Shareholder-Director Relationship

Owner-managers must have clear agreements governing the terms of their relationship with other shareholders to avoid potential difficulties if relationships break down.

Following the Court of Appeal’s recent decision in Dear and Anor v Jackson [2013], it is also crucial for owner-managers to consider the interaction of shareholders’ contractual agreements and directors’ powers where an there may be a potential conflict between the two.

On a general note, the case once again highlights the reluctance of the courts to imply terms into commercial contracts.

Why Non-Executive Directors Should Do Their Due Diligence

A non-executive director’s role is to bring independent judgment to the board of a company. In doing so, they can bring experience, impartiality, specialist expertise and personal qualities to assist executive members of the board.

The position can require individuals to take a view on matters of strategy, performance, resources and standards of conduct of the company.

Before taking a position, it is therefore important that prospective directors do their homework on the company.

Directors: Are You Liable for the Acts of Your Company?

You might be if you wilfully fail to comply with an injunction made against your company.

The recent case concerning The Lord Mayor and the Citizens of the City of Westminster v Addbins Limited and Others [2012] reaffirmed the potential for directors’ to incur individual personal liability for the unlawful acts of their companies.

Are Your Social Media Policies Properly Protecting You?

Social media has become an inescapable feature of everyday life but there is a lack of awareness about the risks waiting just a mouse click away.

Civil and criminal law are constantly evolving to try and meet the demands of modern society and new social mediums so it is imperative that employers implement a social media policy that protects both their employees and their business.

Do Individuals Have a ‘Right to be Forgotten’ by Search Engines?

The short answer is probably not.

According to an Opinion delivered by Advocate General Jääskinen at the European Court of Justice, internet search engine service providers such as Google are not to be regarded as controllers of information on third-party source web pages.

The opinion, which relates to a long-running complaint against Google, implies that Google and other search firms should not be responsible for removing information that appears in their searches.

A Quick Guide to Nuisance Claims

The tort of nuisance is designed to protect the occupier of land from unreasonable interference with enjoyment of their land.

There are two types of nuisance claims: ‘private nuisance’ and ‘public nuisance’.

Gilt Yields Fall As MPC Quells Bank Rate Fears

 

• MPC Statement should stem the increase in fixed rate mortgage pricing

Ray Boulger of leading independent mortgage adviser John Charcol comments on the mortgage and housing markets and the first MPC meeting under Mark Carney’s stewardship, which resulted in, as widely expected, no change in either Bank Rate or the amount of Quantitative Easing (QE).

Holding Companies: Benefiting from the UK Tax Regime

The UK provides an ideal environment for holding companies to seek residence for a number of reasons. A strong rule of law, highly educated and able professionals and London’s reputation as one of the major financial centres are all important factors. A 20% rate of corporation tax rate by 2015 should also help.

In considering the best jurisdiction to establish a holding company for efficiency and effectiveness, the tax regime will often play a decisive role. This is an area that is receiving ever greater focus from policymakers keen to attract more companies to the UK.

Holding companies considering locating their headquarters in the UK should seek expert advice to fully understand the benefits and how to take advantage of them.

Copyright Quotation Exception to be Extended

The Government’s proposed changes to current copyright law will give greater scope for organisations to use quotations for purposes such as criticism and review.

Furthermore, the Intellectual Property Office (IPO) suggests that quotations may also be used for purposes other than, but similar to criticism and review.

It is a move that seeks to better align UK law with EU and international law and harmonise the approach to copyright infringement.

No ‘Jersey’ Trademark for Chanel

Chanel has failed in its application to trademark the word ‘Jersey’ for its lavender scented perfume of the same name.

The Channel Island of Jersey argued that the name would incorrectly imply a certain geographical origin to the product which could mislead consumers.

Warning for Social Media Advertisers

Social media such as Facebook and Twitter give businesses a great opportunity to communicate directly with their target market. It can be very efficient, focused and save costs - the Internet Advertising Bureau suggests that 32% of advertising expenditure is now spent on internet marketing.

Tempting as it is to forge right ahead with a social media advertising strategy, it is important to remember that this form of marketing is still subject to regulation; specifically the Committees of Advertising Practice (CAP) advertising codes.

Proposed Reforms to Unfair Terms in Consumer Contracts

In March 2013 the Law Commission published an Advice Paper recommending simplification and rationalisation of the law on unfair terms in consumer contracts.

What might this mean in practice for contracts concluded between traders and consumers?

Recent Changes to the DBS System

The Protection of Freedoms Act 2012 introduced a number of changes in relation to criminal record status checks on individuals seeking to work with certain vulnerable sections of society.

Among the key changes introduced was the substitution of Disclosure and Barring Service (DBS) in place of the previously separate Criminal Records Bureau (CRB) and Independent Safeguarding Authority.

The most recent change to be implemented is the introduction of the new DBS Update Service for employers and individuals. It is effectively an online database of up to date employee DBS information that employers can access.

What to Do if HMRC Carries Out a Dawn Raid

Dawn raids are carried out by various government bodies including financial authorities, the Serious Fraud office and HMRC. With tax evasion high on the political agenda and millions of pounds of additional budgeting earmarked to tackle it, the chances of a dawn raid by HMRC have increased significantly recently.

If you or your business is subjected to an HMRC dawn raid there are a number of important points to remember as it happens. For immediate legal advice contact Rollingsons on 0207 611 4848.

Trademark Case Update: Interflora v Marks and Spencer

The European Court of Justice has previously ruled in the Interflora case that trademarks belonging to another party could be used as Google AdWords if certain conditions are met.

However, the High Court’s latest decision has found Marks and Spencer’s use of the term ‘interflora’ in the Google AdWord program to be contrary to the ‘origin function’ of trademarks and, as such, in direct violation of the European Union Trade Mark Directive and Community Trade Mark Regulations.

This is a landmark decision and will have huge implications on businesses purchasing space for online advertisements.

Duty of Confidence: Vestergaard Frandsen v Bestnet Confirms Knowledge of Confidentiality Required

The Supreme Court has confirmed in the case of Vestergaard Frandsen v Bestnet [2013] that there can be no implied term imposing strict liability for breach of confidence if a person did not know information was confidential.

Employment Law Changes in the Enterprise and Regulatory Reform Act 2013

As part of the Government’s Employment Law Review, reforms to Employment law are being brought in by the Enterprise and Regulatory Reform Act during 2013 and 2014.

The primary aim is to boost enterprise through improvements to the labour market such as encouraging early resolution of disputes, making the tribunal system more efficient and giving employers confidence to hire new employees.

OFT Reports on Personalised Pricing

The internet and e-commerce offers both traders and consumers a wealth of opportunities for buying and selling in today’s marketplace. Access to this worldwide market is particularly valuable for businesses that can utilise the internet to target their marketing and offer efficient pricing through price discrimination; a practice that has caught the attention of the Office of Fair Trading (OFT).

Personalised pricing is perhaps the ultimate price discrimination strategy. It occurs when businesses offer different prices to individual consumers depending on the specific information they have collected about that individual; a task made increasingly easier by the information available online.

Compensation for Distress Following Breaches of the Data Protection Act

Consumers are able to claim compensation from data controllers when they have contravened the requirements of the Data Protection Act (DPA) and that contravention has caused them damage. Where consumers can show that they have suffered distress from that breach and that damage has also been suffered, compensation may also be awarded in relation to that distress.

However, following a recent Court of Appeal decision, courts are unlikely to award compensation for distress generally unless it was caused directly by a breach of the Act. Furthermore, for distress to constitute a basis for compensation there must have been actual damage related to that distress.

10 Year Prison Sentences for Design Rights Infringers

The Intellectual Property Office (IPO) has announced that premeditated infringement and sale of registered designs for commercial gain will hold criminal penalties of up to ten years in prison in future.

Under the present law, firms may only pursue civil remedies against infringers for theft of registered designs. Meanwhile, similar theft and sale of stolen DVDs and films is considered a criminal offence, punishable by a prison sentence of up to ten years under the Copyright Designs and Patents Act 1988.

Increase in Domain Name Disputes

A record number of domain name disputes were recorded by the World Intellectual Property Office between 2011 and 2012 which is indicative of the increasing competition for domain names.

The figures revealed a year on year increase of 6 per cent to 2,944 cases which shows the growing importance of protecting your online brand.

Choosing a Company Name

There are important practical and legal guidelines for choosing a business name. On a practical level it is usually advisable for a new company name be memorable, to have a positive connotation, to be fairly short and to include information about the nature of business in question.

There are also certain legal rules which one must follow when choosing a company name. Ignoring those rules may be disruptive down the line so it is better to keep them in mind at the start than bear the consequences later.

In the UK, the Company and Business Names (Miscellaneous Provisions) Regulations 2009 govern company names. These set out the permitted characters, letters, punctuation and symbols, which can be used.

Guidance for Twitter Users: McAlpine v Bercow a Cautionary Tale

The case of McAlpine v Bercow makes it clear to Twitter users that defamatory comments which they post will not just be brushed off as harmless coffee table chat and can potentially lead to a law suit against them.

Defamation proceedings can be lengthy and costly, and it is therefore imperative that Twitter users are cautious of making any false comments which can be construed as direct or indirect accusations of a defamatory nature against an individual.

A Victory for Family Law as Petrodel v Prest Appeal Allowed by Supreme Court

The Supreme Court has ruled unanimously in favour of Mrs Yasmine Prest. Property held by her husband’s companies will be transferred to her as part of their divorce settlement.

This is a landmark ruling that is expected to offer significant weight to family law principles in big money divorces, where companies owned by one partner in a marriage are used to hold assets.

Sally Bercow Tweet was Libel

The recent judgment in the case of McAlpine v Bercow sends a message of caution to Twitter users across the country.

The outcome of the case provides a timely reminder of the UK’s strict defamation laws to 21^st Century online publishers.

Supreme Court Decision in Petrodel v Prest Expected on Wednesday

Family lawyers across the country await the outcome of the Supreme Court Decision in Petrodel v Prest with baited breath. The conclusion of this case is eagerly anticipated due to its potential impact upon both family and corporate law.

The central issue at stake is whether courts can ‘pierce the corporate veil’, to look through the company structure, and transfer assets held by companies in the circumstances of divorce, where companies are wholly owned by one of the divorcing parties.

This intriguing conflict between family law and corporate law is expected to come to a head on Wednesday 12 June and the outcome may create legal shockwaves.

No Change On Bank Rate Or QE But Cost Of Fixed Rate Mortgages Continue To Fall

• Difference in fixed rates and SVR currently well over 1%
• Over 8 in 10 borrowers taking fixed rate mortgages so far this year

Ray Boulger of leading independent mortgage adviser John Charcol comments on the mortgage market and today’s announcement from the MPC of no change in Bank Rate or the amount of Quantitative Easing (QE).

Copyright Issues for the Internet Age: NLA v Meltwater

Since the advent of the internet it appears that piracy in cyberspace has been endemic, immune to copyright law and with very few being held to account.

Copying of online material without a licence from the copyright holder is not only incredibly difficult to police practically, but identifying an infringement or those guilty of infringement can also be complex.

The courts in Public Relations Consultants Association Ltd (PRCA) v the Newspaper Licensing Agency (NLA) & Others, commonly known as NLA v Meltwater, have considered these and various other copyright issues.

The Supreme Court has finally brought clarity to one outstanding issue related to temporary copies that occur when individuals browse the web.

Amanda Knox Publishers Take Fright Over UK Libel Laws

Following the murder of British student Meredith Kercher and the subsequent high profile court case of American student Amanda Knox, publishers offered Knox a reported £2.5m book deal for her side of the story.

Given the level of public intrigue in the case, they knew her story would sell but perhaps did not immediately anticipate the risks they could face in offering the book for sale in the UK market.

Trademark Infringement and the ‘User Principle’

The ‘user principle’, which dictates the level of damages that should be paid by a defendant where they have breached the intellectual rights of a claimant, has been a long established rule in cases involving patent or copyright disputes.

However, historically it has been unclear as to whether the ‘user principle’ should be applied in cases of trade mark infringement.

Ambush Marketing: Just Not Cricket

The England and Wales Cricket Board ‘ECB’ has trademarked key-terms relating to the upcoming Ashes test series against Australia, in an attempt to kerb ambush-marketing by non-sponsors.

Rising to prominence in last summer’s Olympic Games, ambush-marketing is where a non-sponsor attempts to make financial gain by associating themselves to an event or competition.

LOCOG described its brand for London 2012 as 'its most valuable asset', a factor that is also true for many other events.

Protection for ‘Orphan’ Copyright Works Set to Change

Newly enacted Government legislation has caused a stir in its attempt to bring about change to UK copyright law relating to ‘orphan’ works. These works are defined as works which have no identified owner and include material such as images, books, films and music.

The new law will require those seeking to use orphan works to undertake a ‘diligent search’ to identify the rights holder before a licence may be granted for their authorised use.

No Variation of Unsealed Consent Order Despite Non-disclosure by Husband

A wife’s application to have the financial remedy proceedings of a ‘big money’ case re-opened has been rejected by the family division of the High Court.

The remedy hearing initially took place in July 2012 and, at its conclusion, the heads of agreement and consent order had been approved but were not sealed by the court.

In her application, the wife alleged material non-disclosure by the husband. The husband was found to be guilty of non-disclosure, but that it was not considered material.

Levi’s Red Tabs Protected as Part of Composite Mark

The European Court of Justice’s (ECJ) decision in the seminal case of Colloseum Holding AG v. Levi Strauss & Co. [2013] has provided big brand owners with welcome relief.

The ruling on composite trademarks means that brand owners with distinctive elements of their slogans and packaging designs that have become well-known and instantly recognisable will not lose their trade mark protection where the mark is normally used as part of a composite mark.

Trademark Infringement and ‘Hypothetical Licensing’

An on-going dispute between 32Red and William Hill regarding an issue of trademark infringement has seen 32Red awarded £150,000 damages on the basis of ‘hypothetical licensing’. The infringement concerned the name 32Vegas, an online casino platform offered by William Hill; 32Red successfully claimed that the use of this name was an infringement of its trademark.

The court ruled that a trademark breach had occurred because the name 32Vegas could create confusion among consumers and inadvertently undermine 32Red’s reputation. However, this case is more significant due to the court’s indication that the “user principle” could be extended to trademark infringement.

‘Availability’ is No Defence to Trademark Infringement

A trade mark is used to distinguish goods and services provided by a brand, from its competitors. A registered trade mark can offer protection to a brand’s reputation and ensure that consumers are not misled when purchasing goods and services.

The seminal, 2008 ‘Adidas’ European Court of Justice (ECJ) ruling may have afforded extra trademark protection to well-known brands. The ECJ dismissed the ‘availability’ argument in relation to trade mark infringement.

This means that the public interest in keeping generic signs such as stripes generally available for use will not be a factor taken into consideration in relation to the assessment of potential infringement.

Copyright Proposals May Loosen Infringement Rules for Parody

The Government has proposed various changes to existing copyright laws for autumn 2013 following the Hargreaves report of 2011. The changes seek to introduce a variety of exceptions which will place limitations on copyright infringement for forms of copying that do not interfere with the aims and objectives of copyright law. Underlining the government’s approach is a desire to ensure that the framework for protecting copyright in the UK is flexible, modern and robust.

Although many of the proposals appear designed to help legislation keep up with technological advances in the way copyright material is stored or displayed, the relaxation of the rules on parody are noteworthy for their broader scope.

An Overview of the Commercial Agents Regulations 1993

Businesses or individuals that employ commercial agents or that operate as commercial agents must be aware of the legal regulations they are subject to.

The Commercial Agents Regulations 1993 brought considerable alterations to the agency principle in English law, extending specific rights and liabilities to commercial agents and their principals.

The 1993 provisions are implied into all commercial agency agreements.

Consumer Rights and Harassment

Consumers who reach their wits’ end trying to deal with faceless organisations that persistently send aggressive communications should not be cowed.

And businesses should tread carefully when pursuing consumers for any reason.

Consumer rights were bolstered in 2009 when, in a true case of David and Goliath, Mrs Ferguson succeeded in bringing a claim for harassment against British Gas.

Starting a Franchise Business and Managing Disputes

Franchise businesses can be a great way for individuals to set out on their own while benefiting from the support of an established business model. It is also a great way for existing businesses to leverage their brand and industry knowledge with the help of locally based entrepreneurs.

Before entering into a franchise, both parties should understand the nature of the franchise agreement and have a strategy for dealing with any disputes that arise.

Richest Divorcees – a Recognised Category of Wealth

It may be no surprise that London is often considered the divorce capital of the world. For some of the world’s richest couples it has become the place of choice to get a divorce, meaning the phenomenon of so-called ‘divorce tourism’ is on the rise.

An Overview of the Financial Conduct Authority

In the wake of widespread criticism following the onset of financial crisis, the Financial Services Authority has finally been disbanded with its previous responsibilities split into two newly created entities.

The new bodies which took over responsibilities on April 1, 2013 are the Financial Conduct Authority (“FCA”) and the Prudential Regulation Authority (“PRA”).

MPC Holds Firm, But Evidence Builds Help To Buy Shared Equity Is Radically Impacting New Build

• Many Questions remain on Mortgage Insurance Scheme set for 1 January

• Superb Remortgage Opportunities Now Available To Many SVR Borrowers

Ray Boulger of leading independent mortgage adviser John Charcol comments on the mortgage market and today’s announcement from the MPC of no change in Bank Rate or the amount of Quantitative Easing (QE).

Personalised Pricing Online Investigated by OFT

In today's marketplace, the internet offers both consumers and traders a wealth of opportunities for buying and selling. The expansion of this global market is especially valuable for businesses, providing endless ways in which firms can target potential customers.

Personalised pricing is one way that businesses are using targeted advertising and marketing to maximise margins on goods or services sold online. However, the information required to implement such strategies means they have started to attract close scrutiny from regulators such as the Office of Fair Trading (OFT).

Huge Rise in International Family Disputes

There has been a huge rise in the number of international family disputes overseen by UK courts in the last few years. The Office of the Head of International Family Justice for England and Wales (the “Office”) has just released its 2012 annual report which shows an increase of over 40 per cent compared to 2011.

The latest figures continue a marked trend in the numbers of international family disputes which have been brought to the attention of the Office since its inception in 2005.

SFO Confirms the Use of Civil Recovery Orders

Any doubts about the continued use of civil recovery orders as a means to tackle criminal activity such as serious or complex fraud have recently been dispelled. There were some indications that these orders might be dropped to emphasise a tougher approach by authorities but the SFO has recently confirmed that they will still be used as ‘an additional means of dealing with certain cases’.

Proposed Reforms to Directors’ Remuneration

Proposals are afoot for changes to the way directors of certain companies are remunerated. The proposed reforms to directors’ remuneration are mainly applicable to quoted companies registered in the UK and are likely to take effect on 1 October 2013.

These reforms, which may yet be subject to amendment, have arisen against the backdrop of company failures and excessive remuneration of company executives in spite of poor stewardship.

Going forward, shareholders will be empowered to have binding votes on the remuneration of company executives in order to make them more accountable to the company and provide a nexus between performance and pay.