Family Law Update: Implications of the Children and Families Bill 2013

The Children and Families Bill 2013 has just undergone the Public Reading stage. Its primary purpose is to provide more support for working families and vulnerable children. The Bill has a number of implications for family law and some aspects of employment law.

Let To Buy Transactions Surge Says John Charcol

· Proportion of clients using Let to Buy increased by 40% in 2012

· Increases buying power, limits stress and allows control of when to sell

· Can also help retirement income planning

John Charcol, the UK’s leading independent mortgage adviser, saw a significant increase in let-to-buy activity in 2012, which is continuing this year. Let-to-buy, where a borrower keeps their existing home to rent out and buys a new main residence, helps mitigate the problems of chains, enables borrowers to sell a property at a time that suits them, and is increasingly used as an opportunity to bolster retirement income.

Social Media and Regulated Corporate Disclosures

If businesses needed further proof that social media cannot be ignored, the United States Securities and Exchange Commission (“SEC”) has just confirmed it can be used to make corporate disclosures. This has direct relevance to UK investors that invest in publicly listed US companies but the implications are far wider.

The use of social media in regulated areas of business practice, as well as for marketing and communication with customers, underlines the dramatic impact social media is having on the way businesses communicate.

Google Challenged Over Privacy Policy and Data Protection

Google controls 95% of the European search engine market, meaning that changes implemented in March 2012 to its privacy policy have affected almost everyone. In attempt to streamline over 60 different privacy policies, Google replaced them with a single, comprehensive policy, designed to cover the collection of personal data from all its services, such as Gmail and YouTube.

Tax Regulations and Offshore Entities

Prospective buyers thinking of using offshore entities to make a property purchase should be aware of tax changes coming into force. Previously, both residents and non-domiciled buyers of property in the UK have been customarily be advised to register a Non-Natural Person (NNP) for tax purposes such as a company, a trust or an investment scheme, to make an acquisition.

The Legal Implications of Crowd-Funding

Crowd-funding has emerged as an innovative entrepreneurial idea at a time when many start-up businesses have struggled to raise finance. A credit crunched economy, near-zero growth, non-existent interest rates and easy communication of ideas across the internet have conspired to create an ideal environment for this alternative form of financing to evolve. Popularized in the US, it has made its way to the UK but it is not without its legal complexities.

A Legal Perspective on Working at Home

The benefits of working from home have become increasingly recognised by both employees and employers. It allows businesses to relinquish expensive office space, while workers benefit from the convenience and efficiency of telecommuting.

Yahoo’s decision to ban working from home and the ensuing publicity has highlighted the extent of the practice; less publicised have been the important legal issues that arise.

Structuring Performance Clauses for Commercial and Employment Contacts

Performance clauses are increasingly common in both employment and commercial contracts, particularly in the current financial climate. It goes without saying that carefully structured clauses are essential to properly set out the parties’ mutual obligations and liabilities.

Ensuring that performance clauses are well drafted is always important to avoid misunderstandings as they can be particularly problematic if they do not reflect the true intentions of the parties. Structuring a performance incentive may seem simple in the context of a discussion but converting an intangible mechanism into writing should only be done with the help of an experienced solicitor who understands the specific details of your arrangement.

Admissibility of covert recordings in employment tribunals in the light of Vaughan v. London Borough of Lewisham and Others [2013]

Employees should understand the limits of using covert tactics to generate evidence to support employment claims. Meanwhile, employers should be aware that covert evidence may be admissible in certain cases.

Admissibility of evidence is generally based on its relevance to the case in question, a point recently reiterated in Vaughan v. London Borough of Lewisham and Others.

Exclusion Clauses and Failure to Perform Contractual Obligations

Businesses should be wary of relying heavily on widely drafted exclusion clauses following the recent case of Kudos Catering (UK) Ltd v Manchester Central Convention Complex Ltd [2013]. The defendant sought to rely upon an exclusion clause to exclude liability for the claimant’s loss of profits following non-performance of a contract.

Although the High Court initially found in favour of the defendant and excluded liability, the decision was subsequently overturned by the Court of Appeal.

Dealing With Late Payments

Dealing with late payments is particularly frustrating for smaller businesses whose very survival can rely on maintaining positive cash flow.

The Late Payment of Commercial Debts Regulations 2013 came into force on the 16^th March 2013, implementing the changes required by the EU’s Late Payment Directive 2011. The changes work to amend parts of the Late Payments of Debts (Interest) Act 1998 instead of repealing and replacing it.

The general aim of the amendments is to tighten the rules on the late payment of commercial debts, discouraging late payment to suppliers.

Issues To Consider When Selling Online

Transacting online is now common practice as it is both cost effective and time saving for consumers and businesses. As online activities continue to expand rapidly, there is still a need to be aware of buyer’s rights and other commercial issues.

In particular, it is important for sellers to be transparent and to ensure clarity about the point at which there is a legally binding contract between the parties.

Bringing a Professional Negligence Claim

Professional negligence occurs where a professional such as an accountant, architect, solicitor or surveyor fails to perform their responsibilities to the required standard, resulting in damage or loss. Claims in these circumstances have become more common recently due to increased reliance on professional advice and the struggling economy.

If a professional has caused you loss, what options do you have to obtain redress?

Changes to Trade Mark Registration in 2014

On 27 March 2013 the European Commission announced proposed changes to current trade mark registration systems all over Europe. These changes will make the process of registering trade marks quicker, cheaper and more reliable.

The Internal Market and Services Commissioner Michael Barnier has commented, “There is no need for a major overhaul: the foundations of our system remain perfectly valid. What we are aiming for is a well-targeted modernisation…”

The 2013 Budget – Key Points and Benefits to Small Businesses

The Chancellor claims that this Budget “will help those who aspire to work hard and get on, buy a home, start a business or save for retirement”, despite the financial crisis, inflation and the Eurozone troubles hampering recovery.

A Quick Guide to the Jackson Reforms

On 1 April 2013 a number of changes were made to the Civil Procedure Rules by the Jackson Reforms. The reforms affect three main elements of litigation: costs management, litigation funding and litigation management. Litigating parties will need to take them into account when contemplating how their case is managed and funded.

Another No Change Month from the MPC

  

• Will Mervyn King’s Vote for More QE Attain a Majority by June?
• Help to Buy Shared Equity Scheme Radically Changes New Build Market

 
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).

Small Claims Track for IP Dispute Resolution

A new court system was introduced in the Patents County Court (PCC) at the end of 2012, focused on small disputes over certain types of intellectual property (IP) rights.

The small claims track for IP dispute resolution is a simplified proceeding to enable resolution of disputes for claims worth less than £5,000. Permitted claims include infringement of copyright, passing off, abuses of national and Community registered trademarks or abuses of unregistered national and Community design rights. Patent and registered design claims are not permitted.

Transferring Contracts – Assignment or Novation?

There may be a variety of reasons that a contract would need to be transferred to another party. It can happen in the context of a company acquisition where a business buys the assets of another business or part of a business, during a merger of two companies into one or during a liquidation scenario. In each case, the acquiring company will want the contracts related to the relevant business to be transferred to them.

There are two basic methods used to achieve this; assignment and novation. Each has unique features that must be taken into account when deciding which is the preferred option.

Escrow Agreements for Information Technology

Escrow agreements are used for a wide variety of commercial purposes and they have a specific benefit to information technology businesses. Generally escrow agreements are designed to protect transacting parties by depositing something of value with a third party agent, which may only be released if certain obligations are fulfilled or if certain events occur.

Partnership Disputes and Partnership Dissolution

A partnership may exist where two or more people carry on a business with a view to making profit, whether or not there is an actual partnership agreement in place. It is usual for an explicit partnership agreement to be entered into which covers the consequences of a partnership dispute and the mechanics of dissolution but, failing this, the Partnership Act 1890 provides the details.

Unauthorised Retransmission of Live TV Online Breaches Copyright

The European Court of Justice (ECJ) has recently ruled that streaming unauthorised live TV is a breach of copyright. In ITV Broadcasting Ltd and Others v TVCatchup Ltd [2013], the ECJ took the side of broadcasters in their battle with websites that stream their channels live on the internet. The ECJ explained that “broadcasters are ‘authors’ who have an exclusive right to authorise or prohibit any communication of their work to the public”.

Design Rights: A Quick Guide to the UK Registration System

As the UK desperately seeks growth, great emphasis is being put on innovation and design as an driver in the economy. Before taking the leap in to the world of design or expending time and energy actually creating a new design, it is wise to understand how to protect your efforts.

Here we have set out the basis process of registering a design right in the UK. Although you should understand certain aspects of the substantive law, there are also a number of practical aspects of the application procedure that it is helpful to be aware of.

Misrepresentation in Property Transactions

As property prices wilted during the financial crisis, buyers sought to extract themselves from contractual commitments in a myriad of ways. One of the routes that many considered was to make a claim for misrepresentation against the seller.

Legal Professional Privilege

Legal professional privilege has long been recognised by the common law in England and Wales. It is an absolute right whereby a client is entitled to refuse confidential information being disclosed to third parties. Those third parties may include state institutions such as: courts, tribunals and regulatory bodies. The underlying purpose is to enable individuals to obtain access to the justice system by being able to communicate freely with legal advisers without incriminating themselves.

There are two main types of legal professional privilege; legal advice privilege and litigation privilege.

Fiduciary Duties in a Commercial Context

A fiduciary relationship is a special kind of relationship between two or more parties based upon trust and confidence. The law requires that a fiduciary acts for another person in good faith in exchange for the trust and confidence that person has placed in the fiduciary.

Generally, a fiduciary can be any person who is authorised to act on behalf of another person in a particular matter such as the directors of a company, a partner acting on behalf of other partners in a firm, a solicitor acting on behalf of a client, a trustee acting for a beneficiary or an agent acting for a principal.